Elizarraraz v. Brownell, 14083.

• Citation: 217 F.2d 829
• Decision Date: 21 December 1954
• Docket Number: No. 14083.,14083.
• Parties: Jesus ELIZARRARAZ, Appellant, v. Herbert BROWNELL, Jr., as Attorney General of the United States, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

217 F.2d 829 (1954)

Jesus ELIZARRARAZ, Appellant, v. Herbert BROWNELL, Jr., as Attorney General of the United States, Appellee.

No. 14083.

United States Court of Appeals Ninth Circuit.

December 21, 1954.

John F. Sheffield, Jacque Boyle, Los Angeles, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Robert K. Grean, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before STEPHENS and FEE, Circuit Judges, and GOODMAN, District Judge.

GOODMAN, District Judge.

This case originated in the United States District Court for the Southern District of California, upon a petition by appellant to have himself declared a national of the United States pursuant to Section 503 of the Nationality Act of 1940, 8 U.S.C. § 903.¹ James T. McGranery was then Attorney General of the United States and was named a defendant. By subsequent proceedings, the present Attorney General of the United States, Herbert Brownell, Jr., has been substituted. The petition below alleged that the plaintiff (appellant herein) was a native born citizen of the United States, having been born in Los Angeles on November 9, 1912; that the Attorney General of the United States "has denied the plaintiff his rights and privileges as a national of the United States in that he has decided and determined that the plaintiff is not a national of the United States;" that plaintiff was a permanent resident of Los Angeles, California, within the Southern District and desirous of having the court declare him to be a national of the United States and prayed judgment accordingly.

The answer, upon information and belief, denied the birthplace of appellant, and admitted that the Attorney General had determined that the plaintiff was not a national of the United States, but denied that his rights and privileges as an alleged national had been denied him. The answer further alleged that appellant took up his residence in Mexico in 1932; became a member of the Mexican police force in 1943 and continued as such until 1947 and thereby expatriated himself as a national of the United States pursuant to Section 401(d) of the Nationality Act of 1940, 8 U.S.C. § 801(d).² The answer also alleged that the plaintiff failed to state a claim upon which relief could be granted. Upon a trial stipulation below, the District Court made findings and granted judgment for the defendant. Elizarraraz appealed from that judgment.

The complaint contained no allegation that appellant was denied any specific right or privilege as a national by any department or agency of the United States upon the ground that he was not a national of the United States. Indeed, the transcript of the record before us contains neither evidence nor stipulation showing that any officer, agency or department of the United States denied appellant any specified right or privilege as a national on the ground that he was not a national of the United States. Thus we could well affirm the judgment below upon the ground that there was neither allegation nor proof that appellant was denied any right or privilege as a national upon the ground that he was not a national. See Fong Wone Jing v. Dulles, Secretary of State, 9 Cir., 217 F.2d 138.

But in view of the fact that in the briefs and argument, both appellant and the government were in agreement that the cause was presented below and appealed on the issue of expatriation, and in the interests of justice, we will pass the obvious deficiencies in the record and rest...