Espino v. Wixon
| Decision Date | 27 May 1943 |
| Docket Number | No. 10330.,10330. |
| Parties | ESPINO v. WIXON. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Andersen & Resner and Herbert Resner, all of San Francisco, Cal., for appellant.
Frank J. Hennessy, U. S. Atty., and Louis R. Mercado and A. J. Zirpoli, Asst. U. S. Attys., all of San Francisco, Cal., for appellee.
Before WILBUR, MATHEWS, and STEPHENS, Circuit Judges.
Juan Espino, a petitioner for the writ of habeas corpus in the District Court of the United States for the Northern District of California, Southern Division, appeals from an order of that court which denied the issuance of the writ and discharged the court's order to show cause why he was restrained of his liberty by the United States Immigration Authorities.
Appellant was arrested in the United States and within the territorial jurisdiction of the court above named, and, after hearing before the Immigration Authorities, he was ordered deported to the Republic of Mexico in accordance with the following laws: "The immigration act of 1924, in that at the time of his entry he was not in possession of an unexpired immigration visa; and the act of 1917, in that he has been convicted of having committed a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit: Rape; and that at the time of entry he was a member of a class excluded by law, to wit: Section 1(a) of the act approved March 4, 1929 8 U.S.C.A. § 180, as amended, being an alien who had been arrested and deported in pursuance of law, and who had not received permission to apply for admission."1 Since the issuance of the order of deportation, appellant has been, and is now, under restraint by such officials.
In a hearing before an Immigration Inspector, such as is usually held in immigration cases, appellant claimed and testified that he is a native born citizen of the United States, having been born in Santa Rosa, New Mexico, April 27, 1902, that his mother, dead since 1913, told him so, and that his earliest recollection is of going to school at that town. No birth records were kept in Santa Rosa, New Mexico, at this time. He testified that he registered for the military draft in Arizona in 1917, and it appears that he exhibited his draft card at the hearing, but the card contains no information as to his birthplace. However, his testimony at the hearing indicates that he gave Mexico as his birthplace at the time he registered. It appears that he has worked in the United States for many years, and that his Social Security card indicates that he was born in the United States.
In his testimony he recalls that he crossed the border into Mexico at an early age. The evidence is not clear, but it seems that he crossed and recrossed the border at least once between his first crossing and his last return to the United States. Upon that occasion he stated to the authorities that he was a native of Mexico. He testified at the hearing that this statement was false and that he only made it in order to obtain re-entry.
While in San Quentin prison as a prisoner under sentence for a felony, he stated that he was born at Nazas, Durango, Mexico. Thereafter, he was deported to Mexico. He explains his statement that he was born in Mexico as a falsehood and as being prompted by his desire to get out of prison.
While the judge of the court reviewed the evidence taken at the deportation proceedings before the immigration officials, trial on the writ was never had. If the testimony received in the deportation proceedings is substantial and would, if believed, support a finding that appellant is a native born citizen of the United States, it was error for the trial court to make the order appealed from.
That a judicial trial of the issue of citizenship is necessary seems clear from the facts and the authorities. The act of deportation of a person from this country is authorized and enforced through an executive proceeding. Appellant, like the applicants for a writ of habeas corpus in the case of Ng Fung Ho v. White, 259 U.S. 276, 282, 42 S.Ct. 492, 494, 66 L. Ed. 938, did not merely assert his citizenship of the United States and was not in the position of a person stopped at the border when seeking to...
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Reyes v. Neelly, 17435.
...in a controversy affecting his citizenship otherwise justiciable such as the case at bar, would be unconstitutional." 4 Espino v. Wixon, 9 Cir., 1943, 136 F. 2d 96. See, Ex parte Gros, D.C.N.D. Cal.1954, 123 F.Supp. 718, 719, and cases there cited. Contra, United States ex rel. Chu Leung v.......
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...v. Tod, 263 U.S. 149, 152, 44 S.Ct. 54, 68 L.Ed. 221; Kessler v. Strecker, 307 U.S. 22, 34, 59 S.Ct. 694, 83 L.Ed. 1082; Espino v. Wixon, 9 Cir., 136 F.2d 96; Chin Hoy v. United States, 6 Cir., 293 F. 750. 3 Espino v. Wixon, 9 Cir., 136 F.2d 96; United States v. Wong Gong, 9 Cir., 70 F.2d 1......
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Ex parte Gros, 33426.
...to a judicial trial on the issue of his citizenship. Ng Fung Ho v. White, 1922, 259 U.S. 276, 42 Sup.Ct. 492, 66 L.Ed. 938; Espino v. Wixon, 9 Cir., 1943, 136 F.2d 96; Riley v. Howes, 1 Cir., 1928, 24 F.2d 686; Chin Hoy v. U. S., 6 Cir., 1923, 293 F. 750. See U. S. ex rel. Bilokumsky v. Tod......
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Frausto v. Brownell
...hearing. Judge Murphy said the question of expatriation is included in the question of citizenship. In the Ninth Circuit case of Espino v. Wixon, 136 F.2d 96, the appellant claimed and testified that he was a native born citizen of the United States. He had made several statements to the au......