DOS REIS v. Nicolls

• Decision Date: 15 November 1946
• Docket Number: Civ. No. 7236.
• Citation: 68 F. Supp. 773
• Court: U.S. District Court — District of Massachusetts
• Parties: DOS REIS ex rel. CAMARA v. NICOLLS.

68 F. Supp. 773

DOS REIS ex rel. CAMARA v. NICOLLS.

Civ. No. 7236.

District Court, D. Massachusetts.

November 15, 1946.

David Silverstein, of Fall River, Mass., for plaintiff.

Oliver S. Remington, Acting District Director of Immigration and Naturalization, George F. Garrity, U. S. Atty., and Gerald J. McCarthy, Asst. U. S. Atty., all of Boston, Mass., for Henry Nicolls.

HEALEY, District Judge.

This is the petition of Arthur C. dosReis on behalf of Joao Camara who is now detained at Westover Air Field, Springfield, Massachusetts, under order of deportation issued by the Attorney General, and now in custody of the District Director of Immigration and Naturalization.

The petition was filed October 3, 1946. On that date, the court ordered the issuance of a summons to show cause returnable October 7, 1946. At the hearing on that date, it was ordered that the writ should issue, returnable within 10 days. The respondent's return was filed October 11, 1946, and the hearing on the writ was held on October 15 and 16, 1946.

The petitioner has instituted this proceeding for a writ of habeas corpus on the ground, among others, that the relator is a natural-born citizen of the United States. The Commissioner of Immigration and Naturalization in affirming the excluding decision of the Board of Special Inquiry, found as a fact that the relator was a natural-born citizen, but on the basis of other findings of fact, which are not subject to review here, concluded that the relator had forfeited his United States citizenship under the provisions of Section 401(c) of the Nationality Act of 1940, 8 U.S.C.A. § 801(c).

Since I have been unable to find any case which has judicially interpreted Section 401 (c) of the Nationality Act of 1940, and since under decisions of the United States Supreme Court in cases interpreting the Act of 1907, 34 Stat. 1228, from which this Act was derived, citizenship could not be lost, except by a purely voluntary act of the person concerned, (Perkins v. Elg, 307 U.S. 325, 334, 59 S.Ct. 884, 83 L.Ed. 1320), I ordered the writ to issue in this case solely to determine whether or not the officials of the Department of Justice had erred in their conclusion that the relator had forfeited his American citizenship under the circumstances. Marslin v. Schmucker, 4 Cir., 89 F.2d 765; Colyer v. Skeffington, D.C., 265 F. 17, 19; Ex parte Koerner, 9 Cir., 176 F. 478; Lavin v. LeFevre, 9 Cir., 125 F. 693. The facts to be found from the evidence introduced at the hearing are as follows:

The relator was born in the City of Fall River, Massachusetts, on December 31, 1921. His father was a native and citizen of Portugal, and his mother was a native of Brazil. On or about July 4, 1934, the petitioner was taken to the island of Saint Michael in the Azores by his parents and he resided in the Azores with his parents until about October 27, 1943, when he was called for service in the Portuguese Army, in which he served until about October 26, 1945.

When the relator learned that he was about to be called into service in the Portuguese Army, he, in company with other young men of American birth who lived in the same vicinity, went to see the Consul, but was told by some one at the Consulate that if he wanted to join the American Army and avoid service in the Portuguese Army, he should return to America. The cost of passage to America at that time was prohibitive for a person of very small means, and the relator, being without sufficient funds was unable to pay the cost of his passage, so he remained in the Azores. On reporting to the Portuguese military authorities, he told them of his American citizenship and of his desire not to serve in the Portuguese Army. He was told that the only way in which he could escape service in the Portuguese Army was to go to a concentration camp, since, according to the law of Portugal, relator was a Portuguese citizen. He was then inducted into the Portuguese Army, and served as a soldier therein for a period of two years. Relator did not swear allegiance to Portugal at any time while in the army.

Upon his release from the Portuguese Army, relator obtained a job in the Azores as a salesclerk in the Post Exchange at an American Army Air Transport Command Base. While working at that base, he secreted himself in the baggage compartment of an air transport command plane on August 8, 1946, and arrived at Westover Field, Chicopee, Massachusetts, on August 9, 1946.

After the arrival of the plane at Westover Field, relator's presence in the plane was discovered, and he was put under arrest and turned over to the Immigration authorities, when it was learned that he had no immigration visa, passport, or other travel document.

The relator was given a hearing before a board of special inquiry of the Immigration and Naturalization Service on the day of his arrival at Westover Field. He was not represented by counsel, nor told that he had any right to be represented by counsel at that hearing. He was told that he had the right to have a friend or relative with him at the hearing, and was asked, "Have you such a friend or relative immediately available?" He answered, "No." The Board of Inquiry determined that relator was an alien; namely, a citizen of Portugal, and that since he was not in possession of a valid Portuguese passport or an unexpired quota immigration visa, that he should be refused admission to the United States.

On August 15, 1946, the relator indicated to an immigration inspector on duty at Westover Field that he desired to take an appeal from the decision of the special board of inquiry excluding him from the United States.

On August 26, 1946, the hearing was reopened by the Immigration authorities for the purpose of developing additional information. The Board of Inquiry again found that the relator was not entitled to admission into the United States. The relator then expressed his desire to appeal this decision to the Attorney General at Washington, D. C.

The decision of the special board of inquiry was affirmed by the Commissioner of...