196 F.2d 120 (9th Cir. 1952), 12986, Wong Wing Foo v. McGrath

Docket Nº:12986.
Citation:196 F.2d 120
Party Name:WONG WING FOO v. McGRATH, Atty. Gen. of the United States.
Case Date:February 14, 1952
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 120

196 F.2d 120 (9th Cir. 1952)

WONG WING FOO

v.

McGRATH, Atty. Gen. of the United States.

No. 12986.

United States Court of Appeals, Ninth Circuit.

February 14, 1952

As Amended on Denial of Rehearing April 28, 1952.

of 1940, Sec. 201(c), 8 U.S.C.A. 601(c).

Page 121

Chow & Sing, San Francisco, Cal., for appellant.

Chauncey Tramutolo, U.S. Atty., Edgar R. Bonsall, Asst. U.S. Atty., San Francisco, Cal. (A. W. Hargreaves, M. M. Levine, Adjudication Section Immigration and Naturalization Service, San Francisco, Cal., on the brief), for appellee.

Before DENMAN, Chief Judge, ORR, Circuit Judge, and LEMMON, District judge.

DENMAN, Chief Judge.

This is an appeal from a judgment in a suit brought under 8 U.S.C.A. § 903 for a judgment declaring appellant, plaintiff below, hereafter called plaintiff, to be a national of the United States. The district court held him not to be the son of one Wong Yem, an American citizen, and hence not entitled to enter the United States under the provisions of 8 U.S.C.A. § 601(c).

Plaintiff was born in China in 1928 and resided there until his voyage to San Francisco, California, where he arrived November 28, 1948. Upon presenting a passport from the American Consulate General at Hongkong he was denied his claimed right as an American citizen to enter at once and was held in detention by the immigration authorities. Instead of filing at once the instant suit under Sec. 903 he waited until after the immigration authorities had determined in a proceeding under 8 U.S.C.A. § 153 before a board of special inquiry that he was not the son of Wong Yem.

Plaintiff here contends that the district court erred in not treating the instant Sec. 903

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proceeding as an independent action, but instead as a review of the special board of inquiry proceeding in which the evidence before that board was considered with other evidence taken before the district court. That is to say, the court below regarded the Sec. 903 proceeding as though it were a review trial de novo. We can find nothing in the language of Sec. 903 warranting treating the action there provided as anything other than an independent action which plaintiff could have brought as soon as the immigration officials refused to accept his passport and to allow him to enter. Such an action brought at once could not have its independent character changed by a subsequent administrative proceeding under Sec. 153.

The pertinent portion of Sec. 903 reads: '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 United States, such person, regardless of whether he is within the United States or abroad, may institute an action against the head of such Department or agency in the District Court of the United States for the District of Columbia or in the district court of the...

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