# United States Ex Rel. Medeiros v. Watkins > Court of Appeals for the Second Circuit · March 9, 1948 · 166 F.2d 897 URL: https://www.frixlaw.com/law-library/cases/9636801 ## Case - **Full name:** UNITED STATES Ex Rel. MEDEIROS v. WATKINS, District Director, Immigration and Naturalization Service - **Court:** Court of Appeals for the Second Circuit - **Decided:** March 9, 1948 - **Citations:** 166 F.2d 897; 1948 U.S. App. LEXIS 2389 - **Precedential status:** Published - **Opinion:** Dissent by Frank - **Judges:** Frank, Chase, Clark - **Cited by:** 11 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9636801 ## Opinion text FRANK, Circuit Judge (dissenting). Were my colleagues’ decision correct, the following rule would now prevail: If a citizen leaves this country and if, upon his return, the immigration officials give him a hearing after which they decide as a fact that he is not a citizen, that decision is final, provided only there was conflicting evidence before those officials as to his citizenship, and the hearing was fair. I cannot agree. I therefore think that the district judge erred in holding that relator here was not entitled to a judicial trial de novo of his claim to citizenship. 1 *901 Where the immigration authorities seek to deport an individual, and that individual claims to be a citizen by birth and supports his claim with substantial evidence, he is entitled to a judicial rather than an administrative determination of the jurisdictional fact of his citizenship. 2 My colleagues hold that, where the immigration authorities are acting in exclusion rather than deportation proceedings with respect to such a person, despite the fact that for many years he resided in the United States, he is not entitled to such judicial administration. I think that sound reasons compel a contrary conclusion, and that we are not bound by controlling decisions to come to that startling conclusion. Clearly, a citizen of the United States cannot be either excluded or deported. Clearly, too, the Immigration and Naturalization Service has no jurisdiction either to exclude or deport any person unless in fact he is an alien. The determination of this jurisdictional fact of alienage must be made in the first instance, of course, by the Immigration Service, which exercises the jurisdiction in either type of proceeding. But the question whether that determination is reviewable de novo by the courts should, in reason, depend not on the category of “exclusion” or “deportation” in which circumstances place the alleged alien, but on the substantial nature of the evidence which he advances to support his claim of citizenship. Absent conflicting testimony, his own assertion of birth within the United States, plus a plainly established period of residence within the United States, would he evidence sufficient to support a finding of citizenship by either the Immigration Service or a court. 3 I think, therefore, that when such a person makes a claim of citizenship supported by such evidence, he should be entitled to a writ of habeas corpus, and a trial de novo of his claim, whether it be made in support of an assertion of a right to re-enter or in defense against a deportation. If, on the other hand, the courts are to follow the distinction made by my colleagues, a person bom m the United States, who had lived here continuously, would, by the mere circumstance of taking a voluntary business trip outside this country, deprive hinp-sclf of a judicial determination of his right to return to this country. I am disturbed, indeed, shocked by that conclusion. Support for my position can, I believe, be found in the Supreme Court cases dealing with the problem of review of administrative findings in exclusion and deportation cases. True, in the early leading case of United States v. Ju Toy, 198 U.S. 253 , 25 S.Ct. 644 , 49 L.Ed. 1040 , an exclusion case, a person o'f Chinese parentage who showed long residence in the United States and claimed birth here was held not entitled to a writ of habeas corpus where there was no showing of an unfair hearing by the Immigration Board; a fair hearing, though administrative, was considered due process of law. But that case made no distinction between deportation and exclusion proceedings, and I think its force has been considerably weakened by later holdings. The weakening began with Ng Fung Ho v. White, 259 U.S. 276 , 42 S.Ct. 492, 494 , 66 L.Ed. 938 . There the 'Court considered the question of deportation of four Chinese who had lawfully entered the United States. *902 Two claimed citizenship by birth, and the other two did not. As to the latter, the Court held that they were entitled to no judicial hearing. As to the former, the Court said that a constitutional question was raised: “If at the time of the arrest they had been in legal contemplation without the borders of the United States, seeking entry, the mere fact that they claimed to be citizens would not have entitled them under the Constitution to a judicial hearing. United States v. Ju Toy, 198 U.S. 253 , 25 S.Ct. 644 , 49 L.Ed. 1040 ; Tang Tun v. Edsell, 223 U.S. 673 , 32 S.Ct. 359 , 56 L.Ed. 606 . But they were not in the position of persons stopped at the border when seeking to enter this country.” Neither had they merely asserted a claim of citizenship; they had “supported the claim by evidence sufficient, if believed, to entitle them to a finding of citizenship.” The Court held them entitled to a judicial determination of their claims. “Jurisdiction in the executive to order deportation exists only if the person arrested is an alien. * * * If the jurisdiction of the Department of Labor may not be tested in the courts by means of the writ of habeas corpus, when the prisoner claims citizenship and makes a showing that his claim is not frivolous, then obviously deportation of a resident may follow upon a purely executive order, whatever his race or place of birth.” This case apparently is in part the basis of the distinction my colleagues draw between exclusion and deportation proceedings. But, just as obviously it seems to me to put the emphasis on the undisputed fact of residence in this country plus substantial evi-dentiary support of the claimed citizenship as requiring judicial determination. To be sure, in the Ng Fung Ho case, the relators held entitled to a judicial hearing de novo were residents of the United States when the administrative proceedings began. But, in Quon Quon Poy v. Johnson, 273 U.S. 352, 358 , 47 S.Ct. 346, 348 , 71 L.Ed. 680 , the latest case of exclusion to come before the Supreme Court where there was a claim of citizenship, the Court said a judicial hearing de novo was not required where the petitioner “Imd never resided in the United States.” That statement plainly implies that the critical factor is not residence in this country at the time of institution of the administrative proceedings but the undisputable fact of residence here at any time in the past. The Supreme Court has never since held that a United States resident returning from a trip abroad was not entitled to a judicial determination of his claim to citizenship. 'Consistently, with regard to administrative proceedings in deportation cases, it has stated that “the claim of citizenship” is “a denial of an essential jurisdictional fact,” 4 that where the claim is supported by substantial evidence, the claimant is “entitled to have his status finally determined by a judicial, as distinguished from an executive, tribunal,” 5 and, most recently, that, “The status of the relator must be judicially determined, because jurisdiction in the executive to order deportation exists only if the person arrested is an alien.” 6 I cannot believe that the executive’s jurisdiction over citizens extends to exclusion any more than deportation. Deportation, of course, while not a criminal penalty, is certainly a deprivation of liberty, and “may result also in loss of both property and life, or of all that makes life worth living.” 7 My colleagues mention “the practical reasons justifying strict proof in the case of deportation, which necessarily severs one from his home and present connections,” and say that those reasons are “non-operative, or at least much less compelling, in the case of exclusion of nonresidents.” If practical considerations control the right to a judicial determination of citizenship, the following *903 facts in the case at bar seem to me to illustrate the fallacy of making a distinction between exclusion and deportation. With the exception of several months spent as a fireman on British merchant ships and three years spent as an American prisoner of war in Germany after his ship was sunk by the Germans, relator has been a resident of the United States at least for a period of more than twenty years. If excluded now, he will literally become a man without a country, since the British authorities, after a police investigation conducted for the Governor of Bermuda, determined that he was not a citizen of Bermuda, and would not give him travel papers to go there. Furthermore, the following circumstances which have led to his transfer from the “deportation” to the “exclusion” category add no weight to the position of those who would now deny him a judicial hearing: Relator was discharged from prison on November 11, 1939, after serving only ten years of a twenty-year sentence. A warrant of deportation was issued, directing his deportation to Bermuda, as a result of an American consular investigation in Bermuda mentioned by my colleagues which reported that Medeiros had been born there. But the deportation could not be effected because of the refusal of the British authorities, based on their own investigation of his citizenship, to issue travel documents. Relator was nevertheless induced by our government officers to sign an agreement to depart voluntarily from the United States 8 in lieu of deportation; and, according to his story, in need of a job, he shipped out on June 12, 1940, as a crew member of a British ship, in a berth secured for him by our Immigration authorities. After a voyage to England and a round trip from there to South Africa, he shipped on another ship returning to the United States, and during this trip was captured by the Germans and sent to a German prison camp, whence he was repatriated in 1945. In those circumstances, I regard as peculiarly untenable the distinction, between exclusion and deportation proceedings, grounded solely on the fact that relator was not a United States resident at the time when the exclusion proceedings began. When relator left the country, he would have been entitled to a judicial determination of his citizenship, according to all the cases. Because he voluntarily shipped out at a time when the authorities were unable to deport him, my colleagues are now depriving him of that right. A trial de novo for relator would be but a futile gesture were there no room for difference of opinion about his citizenship. In the recent case of United States ex rel. Lapides v. Watkins, 2 Cir., 165 F.2d 1017 , we held it unnecessary to consider whether relator by reason of his claim to citizenship was entitled to a trial de novo, since on the conceded facts relator had lost his citizenship, and no evidence additional to that before the board of special inquiry was offered. In this context, the following facts of the instant case are pertinent: The Board of Immigration Appeals order excluding relator apparently rested on the theory that Medeiros was in fact one Henry Brown, bom in Bermuda, who had deserted from the British Navy and came to the United States in 1920 or 1921. (Relator had claimed that he had known this Henry Brown, but that Brown had died in Boston in 1927.) The same order, however, admitted that it was “extremely difficult to ascertain the true facts as to this man’s identity,” adding that no one had checked to find whether a Henry Brown had died in Boston in 1927, as claimed by relator. After the Board had made its order, and after the District Court had handed down its first opinion denying a writ of habeas corpus, relator’s attorney discovered a Boston death certificate, dated 1927, of one Henry Brown who answered in every way the description given by relator. This important piece of evidence was never considered by the Immigration Board, nor by the District Court, since the latter founded its decision on the Board’s finding of fact. The District Court, granting a trial de novo on the issue of citizenship, might, with the evidence now available to it, come to a *904 conclusion different from the Board’s. I think it should be given an opportunity and be required to exercise its independent judgment on the issue of fact. lt is clear that the District Court (although relator appeared before it during the argument on rehearing on the dismissal of the writ) did not give relator a trial de novo on the issue of Ms citizenship, but merely affirmed the findings of the Immigration Board. The court said, in its first opinion: “Ms sta *901 tus as a citizen, was decided on facts, to some extent now in dispute, by a body authorized to make the decision, and which I hayo no power to review on the merits.” In the second opinion, the court said: “The general rule is that where jurisdiction exists, a finding of fact by a Board of Special Inquiry is conclusive, and this court cannot interfere unless there was a denial of a fair hearing, the finding was without support in evidence, or an erroneous rule of law was applied. This court cannot consider the weight of evidence adduced before such a Board. * * * The record shows that there was a fair hearing, relator was given the privilege of having counsel or friend present, and stated that he did not care to have such, the finding is not without support in the evidence, and I cannot see that an erroneous rule of law was applied.” Ng Fung Ho v. White, 259 U.S. 276, 282 , 42 S.Ct. 492 , 66 L.Ed. 938 ; United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 152 , 44 S.Ct. 54 , 68 L.Ed. 221 ; Kessler v. Strecker, 307 U.S. 22, 34 , 59 S.Ct. 684 , 83 L.Ed. 1082 ; Espino v. Wixon, 9 Cir., 136 F.2d 96 ; Chin Hoy v. United States, 6 Cir., 293 F. 750 . Espino v. Wixon, 9 Cir., 136 F.2d 96 ; United States v. Wong Gong, 9 Cir., 70 F.2d 107 . Ng Fung Ho v. White, 259 U.S. 276, 282 , 42 S.Ct. 492, 495 , 66 L.Ed. 938 . United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 152 , 44 S.Ct. 54, 55 , 68 L.Ed. 221 . Kessler v. Strecker, 307 U.S. 22, 34 , 59 S.Ct. 694, 700 , 83 L.Ed. 1062 . Ng Fung Ho v. White, 259 U.S. 276, 284 , 42 S.Ct. 495 , 66 L.Ed. 938 ; Bridges v. Wixon, 326 U.S. 135, 154 , 65 S.Ct. 1443 , 89 L.Ed 2103. “It is bettor that many Chinese immigrants should be improperly admitted than that one natural born citizen of the United States should be permanently excluded from his country.” Kwock Jan Fat v. White, 253 U.S. 454, 465 , 40 S.Ct. 566, 570 , 64 L.Ed. 1010 . If relator is in fact a citizen, such an agreement could not, of course, affect his rights. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9636801. Public record. Not legal advice.