Agosto v. Immigration and Naturalization Service

• Decision Date: 06 June 1978
• Docket Number: No. 76-1410,76-1410
• Citation: 98 S.Ct. 2081,436 U.S. 748,56 L.Ed.2d 677
• Parties: Joseph V. AGOSTO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE
• Court: U.S. Supreme Court

436 U.S. 748

98 S.Ct. 2081

56 L.Ed.2d 677

Joseph V. AGOSTO, Petitioner,

v IMMIGRATION AND NATURALIZATION SERVICE.

No. 76-1410.

Argued Feb. 28, 1978.

Decided June 6, 1978.

Syllabus

The Immigration and Naturalization Service brought proceedings to deport petitioner as an alien who had unlawfully entered the United States. At a series of hearings before an Immigration Judge, the INS presented documentary evidence that petitioner was born in Italy in 1927 of unknown parents, was placed in a foundling home there, and ultimately was adopted by an Italian couple. Petitioner and several other witnesses testified that he was born in Ohio of an Italian mother and sent to Italy at an early age to reside with the above couple. Rejecting petitioner's evidence, the Immigration Judge issued a deportation order, and the Board of Immigration Appeals affirmed. Petitioner then petitioned the Court of Appeals for review of the Board's decision, claiming that he was entitled to a de novo hearing in District Court pursuant to § 106(a)(5)(B) of the Immigration and Nationality Act, which provides that whenever a petitioner seeking review of a deportation order claims to be a United States citizen and makes a showing that his claim is not frivolous, the court of appeals, if it finds that "a genuine issue of material fact as to the petitioner's nationality is presented," must transfer the proceedings to the district court for a hearing de novo of the nationality claim. The Court of Appeals refused to transfer the case to the District Court for a de novo hearing and affirmed the deportation order, apparently holding that in order to obtain a de novo hearing petitioner was required by Kessler v. Strecker, 307 U.S. 22, 59 S.Ct. 694, 83 L.Ed. 1082, to present "substantial evidence" in support of his citizenship claim and that he had failed to do o. Held:

1. The Court of Appeals' decision, to the extent that it holds de novo review to be required only where the petitioner presents substantial evidence in support of his claim to citizenship, is contrary to the plain language and clear meaning of § 106(a)(5)(B), and there is nothing in the legislative history to indicate that Congress intended to require de novo judicial determination of citizenship claims only when such determinations would be compelled by the Kessler "substantial evidence" standard. Pp. 752-757. (a) Although § 106(a)(5)(B) was intended to satisfy any constitutional requirements relating to de novo judicial determination of citizenship claims, the statute clearly does not restrict de novo review to cases in which the "substantial evidence" test is met. Rather than incorporating the language of Kessler in the statute, Congress chose to require hearings where there is "a genuine issue of material fact," thus incorporating the same standard as governs summary judgment motions under Fed.Rule Civ.Proc. 56. Pp. 753-755.

(b) Since summary judgment principles control, it follows that a court of appeals cannot refuse to allow a de novo review of a citizenship claim if the supporting evidence would suffice to entitle a litigant to trial were such evidence presented in opposition to a motion for summary judgment. Pp. 756-757.

2. Applying the appropriate standard to the record in this case, it is apparent that the Court of Appeals erred when it failed to transfer the case to the District Court for a de novo hearing. While the INS's documentary evidence would suffice, if uncontradicted, to establish petitioner's birth in Italy, such evidence would be refuted by petitioner's witnesses' testimony if that testimony were accepted by the trier of fact. Hence there is a genuine issue of material fact for the District Court on the question of petitioner's citizenship. Pp. 757-761.

549 F.2d 806, reversed and remanded.

Robert S. Bixby, San Francisco, Cal., for petitioner.

Marion L. Jetton, Washington, D. C., for respondent.

Mr. Justice MARSHALL delivered the opinion of the Court.

The question for decision is whether petitioner, Joseph Agosto, has made a sufficient showing in support of his claim to United States citizenship to entitle him to a de novo judicial determination of that claim under § 106(a)(5)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1105a(a)(5)(B) (1976 ed.).

I

In 1967, the Immigration and Naturalization Service began deportation proceedings against petitioner by issuance of a show-cause order charging that he was deportable as an alien who had unlawfully entered the United States. App. 4-6. Petitioner opposed deportation, claiming that he was born in this country and therefore is a citizen of the United States not subject to deportation. Over the course of several years, a series of hearings were held before an Immigration Judge,¹ at which the Service presented documentary evidence in an effort to show that petitioner was born in Italy in 1927 of unknown parents, placed in a foundling home there, and ultimately adopted by an Italian couple. Petitioner presented testimony from himself and several other witnesses to show that he was born in Ohio of an Italian mother and sent to Italy at an early age to reside with the aforementioned couple.

In April 1973, the Immigration Judge issued the deportation order challenged here, rejecting the evidence tendered by petitioner and his witnesses that he was born in the United States. App. 23-59. The Board of Immigration Appeals affirmed. It noted that, "[i]f believed, the testimony of [petitioner's witnesses] clearly refutes the Service's otherwise strong documentary demonstration of [petitioner's] alienage" and that "[i]t is not beyond the realm of possibility that [petitioner's] claim to United States citizenship is legitimate." Pet. for Cert. viii. The Board nevertheless accepted the Immigration Judge's credibility determinations and found that the "Service's case as to alienage is clear, convincing and unequivocal." Id., at xi.

Agosto petitioned for review of the Board's decision in the United States Court of Appeals for the Ninth Circuit pursuant to § 106 of the Act, and claimed that, pursuant to § 106(a)(5), he was entitled to a de novo hearing in District Court to determine whether he was a United States citizen. Section 106(a)(5) provides that whenever a petitioner "claims to be a national of the United States and makes a showing that his claim is not frivolous," the court of appeals is to transfer the proceedings to the district court for a hearing on that claim if "a genuine issue of material fact as to the petitioner's nationality is presented." When no genuine issue of material fact is presented, the court of appeals has authority to "pass upon the issues presented." ² The Court of Appeals, with one judge dissenting, refused to transfer the case to the District Court for a de novo hearing on petitioner's citizenship claim, and affirmed the deportation order. Pet. for Cert. i; affirmance order, 549 F.2d 806. It held that "[t]he evidence presented to the immigration judge does not disclose a colorable claim to United States nationality." Pet, for Cert. ii. Further, the Court of Appeals apparently concluded that in order to obtain a de novo hearing petitioner was required to present "substantial evidence" in support of his citizenship claim and that he had failed to do so. Ibid. The dissenting judge, while acknowledging that as a factfinder she would not have credited petitioner's testimony, stated that "I do not believe our legally assigned role includes a decision on credibility, and, on that basis, I am unable to sa that petitioner's evidence, if believed, would not present a colorable claim to American citizenship." Ibid.

We granted certiorari, 434 U.S. 901, 98 S.Ct. 294, 54 L.Ed.2d 187 (1977), to consider the proper construction of § 106(a)(5)(B), and we now reverse.

II

In 1961, Congress enacted § 106 of the Immigration and Nationality Act, 8 U.S.C. § 1105a (1976 ed.), in order "to create a single, separate, statutory form of judicial review of administrative orders for the deportation . . . of aliens from the United States." H.R.Rep.No.1086, 87th Cong., 1st Sess., 22 (1961), U.S.Code Cong. & Admin.News 1961, pp. 2950, 2966.³ This statutory provision eliminated district court review of deportation orders under § 10 of the Administrative Procedure Act, 5 U.S.C. § 702 (1976 ed.), and replaced it with direct review in the courts of appeals based on the administrative record. Congress carved out one class of cases, however, where de novo review in district court would be available: cases in which the person subject to deportation claims to be a United States citizen.

In carving out this class of cases, Congress was aware of our past decisions holding that the Constitution requires that there be some provision for de novo judicial determination of claims to American citizenship in deportation proceedings. See H.R.Rep.No.1086, supra, at 29; H.R.Rep.No.565, 87th Cong., 1st Sess., 15 (1961). In Ng Fung Ho v. White, 259 U.S. 276, 284, 42 S.Ct. 492, 495, 66 L.Ed. 938 (1922), the Court observed:

"Jurisdiction in the executive to order deportation exists only if the person arrested is an alien. . . . To deport one who . . . claims to be a citizen, obviously deprives him of liberty, . . . [and] may result also in loss of both property and life; or of all that makes life worth living."

We therefore held that a resident of this country has a right to de novo judicial determination of a claim to United States citizenship which is supported "by evidence sufficient, if believed, to entitle [him] to a finding of citizenship." Id., at 282, 42 S.Ct., at 494. See also United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 152-153, 44 S.Ct. 54, 55-56, 68 L.Ed. 221 (1923). In Kessler v. Strecker, 307 U.S. 22, 34-35, 59 S.Ct. 694, 700, 83 L.Ed. 1082 (1939), we reaffirmed that holding and indicated in dictum that judicial determination of citizenship claims is required where "substantial evidence" is presented to...