Waterman, Marshall and Anderson,*fn* Circuit Judges.
This is a petition to review under section 106 of the Immigration and Nationality Act, as amended in 1961, 8 U.S.C. § 1105a.
We surmise that petitioner was born in Italy in 1914 of Italian nationals and lawfully admitted to the United States in 1919 for permanent residence. Save for his military service abroad, he has lived in the United States continuously since 1919, for a period spanning almost a half-century and consisting of all of his adult life. He is married to an American citizen and is the father of an American citizen son. During World War II petitioner served in the United States Army for a period just short of three years, was a paratrooper, fought valiantly for the United States in military campaigns in France and Germany, and upon termination of his service received an honorable discharge.
In his pleadings, petitioner claims that he was naturalized pursuant to sections 701 and 702 of the Nationality Act of 1940, as amended, 56 Stat. 182-183 (1942), while he was serving in the Army. Section 701*fn1 liberalized the requirements and procedure for naturalizing those that served honorably in the military service and entered the United States lawfully -- a description that petitioner fits. Petitioner pleads that he satisfied the remaining requirements, which in reality consisted of little more than filing an application with the appropriate authorities, and having those authorities perform the ceremonial act of granting naturalization.Section 702*fn2 empowered representatives of the Immigration and Naturalization Service designated by the Commissioner or a Deputy Commissioner to perform the functions otherwise reserved for a naturalization court, including granting naturalization and issuing certificates of citizenship, if the alien serving in the military is "not within the jurisdiction of any court authorized to naturalize aliens." Petitioner alleges that such a designated representative administered an oath of allegiance and swore him in as a citizen while he was serving in the armed forces.
In October 1954 deportation proceedings were commenced against petitioner. Section 241(a) (4) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a) (4) provides that "any alien in the United States * * * shall, upon the order of the Attorney General, be deported who * * * at any time after entry is convicted of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct * * *." This provision was invoked by reason of the fact, apparently undisputed, that in 1936 petitioner was convicted of armed robbery and in 1953 he was convicted of breaking into a United States Post Office with intent to commit larceny. The deportation proceedings were commenced while petitioner was in a federal penitentiary in Atlanta, Georgia, serving the sentence for this second conviction. At the outset of the hearing before the Special Inquiry Officer, which was conducted only upon two weeks' notice, petitioner vigorously demanded the opportunity to be represented by counsel at the hearing. He claimed that he was unable to pay the expenses of counsel to come to Atlanta and that the decision to conduct the proceedings in Atlanta thus had the effect of depriving him of the assistance of counsel. The Special Inquiry Officer was willing to postpone the hearing for one month. But he refused to adjourn it until 1956, at which time petitioner would be released and back home in New York, nor did the officer offer to pay the expenses of counsel coming to Atlanta or to provide petitioner with local counsel, although there is no indication that he disbelieved petitioner's claim as to lack of funds. Petitioner registered his protest by walking out of the hearing. In his absence the hearings were concluded in short order, the only other witness being an investigator for the Immigration and Naturalization Service. In February 1955 an order was entered finding petitioner to be a deportable alien within the meaning of section 241(a) (4) and directing that he be deported. Petitioner appealed this order to the Board of Immigration Appeals. The Board dismissed the appeal, reasoning that there were no procedural irregularities in the hearing, that "there was substantial evidence * * * to support the special inquiry officer's conclusion," and that petitioner is ineligible for discretionary relief. The Board's opinion closed with this regret: "While we are aware of the appealing factors present in this case, we have no alternative but to affirm the decision of the special inquiry officer * * *."
More than five years later, on October 5, 1960, petitioner was notified by the Immigration and Naturalization Service that in 30 days he would be deported to Italy and that he "should arrange * * [his] personal affairs accordingly." At that point, petitioner moved the Board of Immigration Appeals to reopen the deportation proceedings to permit the introduction of evidence to establish his citizenship and, in the alternative, to afford him the opportunity to apply for discretionary relief. The motion was denied, and technically that is the order before us in this timely section 106(a) petition to review, see Giova v. Rosenberg, 379 U.S. 18, 85 S. Ct. 156, 13 L. Ed. 2d 90 (1964).
(1) The Claim of Citizenship, Petitioner claims to be a national of the United States. This claim is certainly not frivolous, and a genuine issue of material fact bearing on petitioner's claim of citizenship has been presented. Thus, under section 106(a) (5) (B) of the Immigration and Nationality Act, 8 U.S.C. § 1105a(a) (5) (B), we transfer the proceedings to the United States District Court for the Eastern District of New York, the district in which petitioner resides, for a hearing de novo on the claim of citizenship and we hold this petition for review in abeyance pending this judicial determination of petitioner's claim of citizenship.
Section 106(a) (5) codifies, and establishes the procedure for effectuating the constitutional principle announced by Mr. Justice Brandeis in Ng Fung Ho v. White, 259 U.S. 276, 284, 42 S. Ct. 492, 495, 66 L. Ed. 938 (1922) -- that the claim of citizenship must be judicially rather than administratively determined since "jurisdiction in the executive to order deportation exists only if the person arrested is an alien [and] the claim of citizenship is thus a denial of an essential jurisdictional fact." Accord: Kessler v. Strecker, 307 U.S. 22, 34-35, 59 S. Ct. 694, 83 L. Ed. 1082 (1939). It is not inconsistent with this principle to require, as the statute does, that there be a modicum of substantiality to the claim of citizenship. However, what the petitioner is seeking, and is entitled to, is a de novo judicial determination of the claim, not judicial review of the administrative disposition of that claim. Thus what section 106(a) (5) requires, as a condition of a de novo judicial determination of the claim of citizenship, is nothing more than the claim not be frivolous. Petitioner's claim of citizenship can hardly be classified as frivolous, and the Board of Immigration Appeals in its decision denying a reopening of the deportation proceedings did not take a contrary view. It merely reasoned, quite correctly, that this administrative relief was not a prerequisite to obtaining the judicial determination.
The requirement of subdivision (B) of section 106(a) (5) that a genuine issue of material fact be presented goes, not to whether petitioner is entitled to a de novo judicial determination of the claim of citizenship, but to whether this determination is to be made only after an evidentiary hearing in a district court or whether it could be made by the circuit court of appeals on the basis of the pleadings and affidavits. Drawing on the familiar principles relating to summary judgment in the federal courts, the statute permits the circuit court of appeals to determine the claim of citizenship only "when it appears from the pleadings and affidavits filed by the parties that no genuine issue of material fact is presented." If such an issue does appear, then the proceedings should be transferred to a district court for an evidentiary hearing on this claim of citizenship, and that determination would be subject to appellate review by this Court, according to those appellate standards used in declaratory judgment proceedings commenced under 28 U.S.C. § 2201.
Petitioner's claim of citizenship involves delicate issues of credibility that could only be resolved with the benefit of live testimony and a more complete documentary record. His claim, that he was naturalized pursuant to section 701 and section 702 of the Nationality Act of 1940 while he was serving in the military in World War II, is coherent and credible, especially when supplemented by an affidavit (not part of the administrative record) by the leader of his company, and by the fact that his discharge papers list him as an American citizen. Respondent refers us to a written statement given to an investigator for the Immigration and Naturalization Service in 1954, while appellant was in prison and he was without the assistance of counsel. In this statement, petitioner states that he "applied for 1st papers in New York in 1946" after getting out of the army. Yet if this prior allegedly inconsistent statement is introduced into evidence, it is for the trier-of-fact to decide what petitioner understood his statement to mean, if anything, to determine whether this statement was the result of oversuggestion by the investigator, and, if need be, whether this statement should be believed. Respondent also seeks to dispute petitioner's claim of citizenship by pointing to such evidence (also not part of the administrative record) as an unexecuted application for naturalization found in petitioner's army record and a certificate from an officer of the Immigration and Naturalization Service attesting to the absence of any record of naturalization of petitioner. Yet, once again, it is for the trier-of-fact to sift and weigh this evidence, to determine whether petitioner had executed another application and filed it with the appropriate authorities, and whether it was possible or likely that in a time of war and chaos one record of naturalization may have been misplaced or lost by the authorities, even though petitioner did all he could to assure that the statutory requirements were satisfied. We thus find that genuine issues of material fact bearing on petitioner's claim of citizenship have been presented, and we transfer this proceeding to a district court for an evidentiary hearing de novo to resolve this issue, and we do so with the thought that "when we deal with citizenship we tread on sensitive ground," United States v. Minker, 350 U.S. 179, 197, 76 S. Ct. 281, 291, 100 L. Ed. 185 (1956) (Douglas, J., concurring), quoted approvingly in Nishikawa v. Dulles, 356 U.S. 129, 135 n. 6, 78 S. Ct. 612, 2 L. Ed. 2d 659 (1958), which is particularly apt in the special circumstances of this case, where the individual has valiantly risked his life for this country, lawfully entered the country, and has lived here for more than fifty years.
(2) Discretionary Relief. The parties stipulated in the district court that the sole issue for judicial inquiry was whether petitioner is a citizen. Nevertheless, it is not amiss to point out that the Immigration and Naturalization Service now concedes that the petitioner, if not a citizen, is prima facie eligible for discretionary relief from deportation. For example, it would seem that petitioner, if indeed an alien, may, as a result of congressional enactments in 1961 and 1962, be statutorily eligible to apply for suspension of deportation under 8 U.S.C. (1964 ed.) § 1254(b), and, being so eligible to apply, may also be eligible to obtain relief.
Therefore, if it is determined in the district court that petitioner was never naturalized, and if that finding is left undisturbed by this court, then the Board of Immigration Appeals should reopen its proceedings so as to allow petitioner to apply for discretionary relief from deportation. In mentioning this possible alternative disposition, which is based on the premise that petitioner is not a citizen, we do not intend to prejudge the merits of petitioner's claim of citizenship in the slightest degree.
We also hold that if it is finally determined that petitioner is an alien, and the proceedings are reopened, the petitioner may apply for another form of discretionary relief -- termination of the deportation proceedings so as to allow petitioner to apply for naturalization. This relief would remove the bar to the petitioner now applying for naturalization posed by section 318 of the Immigration and Nationality Act, 8 U.S.C. § 1429, which ...