MATTER OF T -

In DEPORTATION Proceedings 

A-11407466 

Decided by Board January 15, 1959 

Evidence--Alienage—Effect to be given dismissal of section 503 action in subsequent deportation proceedings. 

Special inquiry officer was not justified in refusing to receive evidence on 

issue of alienage from respondent admitted temporarily with certificate of 

Identity to prosecute action under section 503 of Nationality Act of 1940 

whose suit was dismissed by court without entry of final order determining 

citizenship. 

CHARGE' 

Order Act of 1952--Section 241(a) (2) [8 U.S.C. 1251(a) (2)]—Remained 

longer. 

BEFORE THE BOARD 

Discussion: This is an appeal from the order of the special inquiry officer requiring respondent's deportation on the ground stated 

above. 

The respondent, a 32-year-old male, native of China, was admitted to the United Sla tes on February 25, 1952, upon the presentation of a certificate of identity issued under section 503 of 

the Nationality Act of 1940 (8 U.S.C. 903). This law provided for 

the admission of a claimant to United States nationality who had 

filed a judicial action for declaration that he is a national of the 

United States. The respondent had filed such an action in the 

United States District Court at San Francisco, California. Trial 

of the case was postponed while the State Department conducted an 

investigation abroad. The action was dismissed by the court on 

May 9, 1958, pursuant to a stipulation between counsel for the 

respondent and the United States attorney. The Service then informed the respondent that he was required to depart from the 

United States by July 7, 1958. Respondent remained beyond the 

period authorized and these proceedings were brought. At the deportation hearing, the Service established the fact that the respondent had entered the United States on a certificate of identity, and 

that the judicial action had been dismissed without a declaration 

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by the court that respondent is a national of the United States. 

The Service then rested. The respondent attempted to introduce 

evidence that he was a citizen of the United States. The special 

inquiry officer refused to receive this evidence. He held that by 

statute the jurisdiction to determine the nationality of a holder of 

a certificate issued under section 503 is in the court and that until 

the respondent obtained a court ruling to the effect that he is a 

national, the special inquiry officer was required to find him to be 

an alien. 

Tt appears that, counsel entered into the stipulation for the withdrawal of the case because he had been shown evidence which 

established that the respondent was not the son of the man he 

claimed to be the son of. However, counsel is of the belief that the 

respondent is a citizen through the person who is his father and 

counsel wishes to present evidence on this issue.' I'he question for 

determination is whether respondent should have been permitted to 

present evidence on his own behalf on the issue of nationality. 

The Service representative asks that the decision of the special 

inquiry officer be sustained since he finds it to be the congressional 

intent that an individual admitted under section son was to receive 

only a judicial trial of his claim to citizenship. He points out that 

the regulations interpreting the act, and the certificate of identity 

bearing respondent's signature, indicate that the holder of the certificate would depart from the United States unless he obtained a 

favorable decision by the court finding him to be a citizen of the 

United States. The Service representative states that the issue is of 

importance not only to the case before us but because it will serve 

as a precedent in other cases which are pending in district courts. 

He states that a decision permitting the introduction of evidence 

as by ultizmiship will place a great burden upon the Service and 

will permit the individuals who have been in the United States for 

periods of time to prolong their residences since they can again 

resort to court action to test the administrative decision in deportation proceedings if it is adverse to them. 

Section 503 of the Nationality Act of 1940 provides in pertinent 

part as follows: 

If any person who claims a right or privilege as a national of the United 

States is denied such right or privilege by any Department or agency, or 

executive official thereof, upon the ground that he is not a national of the 

uniten States, such person, rug. alu,s of ohoffici Le i. wuLhiu the TJoltull 

States or abroad, may institute an action against the head of such Depart- 

'At the hearing counsel contended that he had been requested by the gaseminent to enter into a stipulation for dismissal of the court action so that 

the Service could reexamine the issue. The examining officer has submitted a 

brief pointing out that the United States attorney who handled the matter 

has denied the allegation. 

245 
meat or agency In the District Court of the United States for the District of 

Columbia or in the district court of the United States for the district in 

which such person claims a permanent residence for a judgment declaring 

aim io be a national of the United States. If such person is outside the 

United States and shall have instituted such an sego' is 'mart. he may. 

upon submission of a escorts application showing that the claim of nationality 

presented in such action is made in goad faith and has a subStautial basis, 

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 wills such certificate upon the condition ,that he shall be subject to deportation in soon it shall be decided by the court that he is not a 

national of the United States. v * 

The pertinent regulations in effect at the time of the respondent's 

arrival were as fnllows; 

8 CFR § 112.2 Entry upon certificate of identity; conditions. me holder of 

such a certificate of identity shall he regarded as an alien until otherwise 

finally held by the court in the action for a judgment declaring him to be a 

national of the United States. He may be admitted to the United States as 

a temporary visitor for business on the condition, including, when deemed 

necessary, the giving of a bond with sufficient surety, that he shall depart 

from the United States if it is discovered that he has obtained admission by 

fraud or other illegality or sr the liens action in court to determine his nationality is not to the effect that he is a national of the United States. 

The conditions shall be such as may be deemed necessary to safeguard the 

piddie and to require periodic reports by the person of his whereabouts to the 

immigration authorities or the -Coifed 2tato., so that departure or deportation 

therefrom may be effected in the event it is discovered that he obtained admission by fraud or other illegality or if the Anal outcome of his action in 

court to determine his nationality is not to the effect that he is a national of 

the United. States and if he then fails to depart without delay from the United 

States in accordance with directions from the immigration authorities. v v 

A person admitted on a certificate of identity shall be informed at the time of 

admission that, mail he departs from the United States or there is a decision 

of the court that he Is a national of the United states, ho is required hir law 

to notify the Commissioner of Immigration and Naturalization, Washington, 

D.C., in writing of his address at the expiration of each three months' period 

of residence in the United States, Also, at the time of such admission, a 

report of the name of such person and the date and port of his admission 

shall be made by the immigration office at once to the United States attorney 

for the judicial district in which the action by the person Is pending for a 

judgment declaring that he is a national of the United States. If the final 

decision in such action in court be that he is a national of the United States, 

a. record to that effect shall be made by the immigration authorities at the 

purl of admission. 

8 Chat § 112.4 When deportation proceedings coats ae tostitorm Steps for 

the institution of deportation proceedings against a person admitted on the 

basis of a certificate of identity shall be taken by the Immigration and Nature 

ralization Service in accordance with the applicable sections of Part 150 of 

this chapter if found to have obtained admission to the United States unlaw 

fully or if he fails to comply with the conditions under which admitted ti 

the United States. 

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These regulations are not applicable at this time. They are included in this discussion for the light they may shed upon the 

construction to be given the statute. There are no Service regulations now specifically referring to admission or deportation of 

"persons holding a certificate of identity under section 503." The 

State Department does have regulations concerning the issuance of a 

certificate of identity (22 CFR 50.45). 

The laiv and regulations contemplate a situation where the court 

has declared either the claimant is a citizen or that he is not. It 

does not appear to contemplate a situation where the court took 

action other than upon the merits. Here, by reason of a stipulation entered into by the parties who appeared in the action, there 

was a voluntary dismissal. This left the situation as if suit had 

never been filed (Burger v. United States Blind Stitch Mach. Corp., 

8 F.R.D. 362, D.C. N.Y. (1948) ). Deportation is sought not under 

section 503, but under section 241(a) (2) of the Immigration and 

Nationality Act. What is presented to us is the case of one who 

was admitted as a temporary visitor for business and who has 

remained beyond the period for which he was authorized to enter. 

Unless somewhere there is a clear statement to the contrary, as is 

found in 8 CF1% 214.2(c) relating Cy (attach, aliens, the piocedura 

normally followed must control. In such procedure, alienage is a 

jurisdictional fact and the special inquiry officer has authority to 

make a determination of deportability only after the percon placed 

under proceedings has had a reasonable opportunity to present evidence in his own behalf. Moreover, the decision must be based upon 

evidence which is reasonable, substantial, and probative (section 

242(b), Immigration and Nationality Act, 8 U.S.C. 1252(b); 8 

CFR 242). As a matter of fact, the procedure here was instituted 

under such a theory. The order to show cause bearing the allegation that respondent is not a citizen or national of the United States 

also states that if the allegations are not admitted, the individual 

"will be given reasonable opportunity to present evidence" on his 

own behalf. 

The special inquiry officer's ruling that respondent is deprived 

of the right to contest the issue of alienage is apparently based on 

the belief that a conclusive presumption of alienage exists. The 

special inquiry officer relies upon the language of section 503 and 

the regulations promulgated thereunder. However, this proceeding 

is not brought under sertion 5n2, and in any event., neither the statute 

nor the regulations state that a conclusive presumption of alienage 

exists in deportation proceedings concerning an individual admitted 

with a certificate of identity. The statute and regulations merely 

state that the holder of the certificate shall be admitted upon condition that he shall be subject to deportation in a case where the 

247 
court decides that he is not a national of the United States. This 

may be no more than a warning to the individual that he will not 

be permitted to remain in the United States if his application is 

rejected by the court; that he receives no right as the holder of 

the certificate except the right to prosecute an action; and that 

while he is in the United States, he is to be considered an alien 

and is not to exercise the rights of a citizen until decision is made 

in his favor. The old regulations which we have set fOrth state 

that if the holder of the certificate fails to depart from the United 

States, steps to effect his removal were to be taken under 8 CFR 

150 which then provided for the deportation of aliens against whom 

a prima facie case of deportability has been made. The procedure 

then used is similar to the procedure followed at present in that 

alienage was a jurisdictional matter and the presentation of "all 

available evidence" concerning alienage and other matters was required (8 CFR 151). The old regulations contain no express statement concerning a conclusive presumption of alienage. 

Deportation proceedings here do not differ from any proceeding 

brought under eeetion 241(a) (2) of the Immigration and Nationality 

Act. Evidence by the respondent on the issue of alienage should 

be permitted so that he can refute the prima facie case of alienage 

which exists. The burden of establishing alienage still rests upon 

the Service. 

In passing, we note that the Service itself apparently has recognized as citizens holders of certificates of identity who have not 

been declare' nationals by judicial action. It cannot with consistency take the position that it is not estopped from administratively 

weighing the merits of a case which it believes will establish citizenahip, but that it is estopped from considering the merits of a sass 

in which in some manner unstated it has formed the opinion that 

the holder of a certificate is an alien. 

Proceedings will be ordered reopened in accordance with the foregoing. 

Order: It is ordered that the proceedings be reopened in accordance with the foregoing and for such further action as the special 

inquiry officer may deem appropriate. 

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