INUIT.= Ur 

In DEPORTATION Proceedings 

A-10828430 

Decided by Board February 28,1961 

Deportability—Adverse court decision under section 503 of the :'•:Tationality 

A -!:, of 1940 makes alien deportable. 

Where respondent was admitted in 1952 to prosecute an action 1!7 , 

5O1 of the Nationality Act of 1940 and the court issued a final 

judgment in 1958 declaring that respondent is not a national or citizen of 

the United States following which respondent was notified of a departure 

date and failed to depart, it was held that the adverse judgment by the 

court in the section 503 proceedings without more required respondent's 

deportation. 

{2) Hence, respondent was properly found deportable under section 241(a) (2) 

of the Immigration and Natiot ality Act as having remained in the United 

States in violation of law. 

(Note: Mutter of T—, 8-244, distinguished.) 

CHAR4E : 

Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)]—Nonimmigrant remained longer than permitted. 

BEFORE THE BOARD 

DiSCUSSION: This case is before us on appeal from a decision 

of a special inquiry officer directing the respondent's deportation. 

The respondent is a male, about 20 or 25 years old, and apparently unmarried. He is a native of China and claims United States 

citizenship. His only entry into the United States occurred on 

January 28, 1952, at which time he was admitted as a nonimmigrant visitor under section 3(2) of the Immigration Act of 1924 

[8 U.S.C. 203] for the purpose of prosecuting his suit under section 

.503 of the Nationality Act of 1940 [8 U.S.C. 903] for a judgment 

declaring him to be a national of the United States. A judgment 

adverse to this respondent was entered in the United States District 

Court for the Southern District of California, Central Division, and 

this was affirmed by the United States Court of Appeals for the 

Ninth Circuit on November 6, 1958 (Wong Ho a. Guardian ad 1'e:tent 

of Wong Kwok Wei v. Pullet, 261 F.2(1 456 (CA. 9, 1958)). The 

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sole issue involved is whether the respondent's deportability has 

been established. 

We have carefully reviewed the entire record. The respondent 

admitted the allegations of the order to show cause except that he 

did not admit his alienage and did not admit that. he is a citizen of 

China. He as3crtcd that he was born in China on April 30, 1935, 

and that he is the son of W—H---. It. is not disputed that the 

latter was a United States citizen who had resided in this country 

prior to the birth of the respondent. The alleged mother of the 

respondent has never been in the United States and W—H—'s last 

trip to China was from May 30, 1934, to June 23, 1937. At the 

trial, there was medical testimony, based on. X-rays, indicating that 

the respondent was born about 1941. In the respondent's suit under section 503 of the Nationality Act of 1940, the District Court 

found that he was not born on April 30, 1935, but after that date, 

and that, he had not sustained his burden of proving (1) that he 

is the true and lawful blood son of W H—, and (2) that he is a 

national or citizen of the United States. 

At the hearing, counsel again asserted that the respondent is a 

United States citizen and that he is actually the son of W—H—. 

The special inquiry officer held that the respondent was precluded 

from presenting further evidence on the issue of alienag-e for two 

reasons: (1) under the doctrine of collateral estoppel by judgment., 

and (2) because of the specific provision in section 503 relating to 

deportation if the court decides that the plaintiff in the suit is nota national of the United States. 

We will first discuss the second reason, that. is, the statutory 

provision. Exhibit 2 is a certificate of identity issued by the 

American consular officer which contains a statement to the effect 

that it, is issued upon condition that the individual shall be subject 

to deportation if the. final outcome of his action is adverse to his 

claim of United States nationality, and item 11. of the application 

for the certificate of identity is, in part. as follows: "I understand 

that my admission to the United States shall be * * * upon the 

condition that I shall be subject to deportation if the final outcome 

of such court action is not to the effect that I am a national of 

the United States and if I then fail to depart without delay from the 

United States in accordance with directions from the Immigration and Naturalization Service." In view of the savings clause 

contained in section 400(al of the Immigration and Nationality Act 

[8 U.S.C_. 1101. Note; 66 Stat. 280], section 503 of the Nationality 

Act of 1940 [54 Stat. 1171; 8 U.S.C. 903] is continued in force and 

effect as to this respondent. Section 50 provided that an action 

might be instituted against the head of a governmental department 

for a judgment declaring a person to be a national of the United 

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States where he had been denied a citizenship right or privilege 

upon the ground that he was not a national of the United States. 

This section further provided, in part, as follows: 

If such person is outside the United States and shall have instituted 

such an action in court, he may * * obtain from a diplomatic or consular 

officer of the United States in the foreign country in which he is residing a 

certificate of identity stating that his nationality status is pending before the 

court, and may be admitted to the United States with such certificate upon 

the condition that he shall be subject to deportation in case it shall be deciefrd 

by the court that he is not a national of the United States. * (Emphasis 

supplied. ) 

We believe it is crystal clear from section 503 in its entirety that 

Congress intended that where the claim of United States nationality 

was made in good faith and the person making it was outside the 

United States, he should be permitted to enter this country in order 

to prosecute his suit, but if the court decided against him, that fact 

alone -would require his deportation. In the respondent's case, it 

was decided by the ecu./ [Itio he is not a national of the Unites 

States and the case, therefore, differs from Matter of T—, 8-244 

(1959) in which there was no decision by the court and the suit was 

merely dismissed upon stipulation of the parties. 

Exhibit 6 shows that on May 26, 1959, the respondent was notified that, in view of the adverse court decisions, the time for 

which he was originally admitted had expired; he was directed to 

depart from the United States on or before June 30, 1959; and he 

was informed that failure to do so would result in the institution 

of deportation proceedings. The order to show cause contains the 

assertion that the respondent was admitted to the United States as 

a nonimmigrant under section 3 of the Immigration Act of 1924 for 

the purpose of proceeding with his action in a federal court for a 

judgment declaring him to be a national of the United States, and 

it was charged that he is deportable under section 241(a) (2) of 

the Immigration and Nationality Act. This statutory provision re-

-quires the deportation of any alien who "* * * is in the United States 

in violation of this Act or in violation of any other law of the 

United States * * *." Since the respondent has remained in the 

United States for a longer time than permitted and is now in the 

United States in violation of the provisions of section 503 of the 

Nationality Act of 1940, we hold that he is deportable on the charge 

stated in the order to show cause, and his appeal will be dismissed. 

The alternative basis for the special inquiry officer's decision was 

his ruling that' the doctrine of collateral estoppel by judgment applies in this case so as to preclude the respondent from presenting 

further evidence to establish his claimed United States citizenship. 

This was the only issue which counsel discussed at the oral argument. Since we have concluded. that the respondent's deportation 

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is required because of the judicial decisions adverse to him and 

the specific language of section 503 of the Nationality Act of 

1940, we do not consider it necessary to discuss herein the collateral estoppel question or counsel's contentions concerning it. 

ORDER: It is ordered that the appeal be and the same is hereby 

dismissed. 

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