Frausto v. Brownell

• Decision Date: 16 April 1956
• Docket Number: No. 18245.,18245.
• Citation: 140 F. Supp. 660
• Court: U.S. District Court — Southern District of California
• Parties: Vicente Cevallos FRAUSTO, Plaintiff, v. Herbert BROWNELL, Attorney General of the United States, Defendant.

140 F. Supp. 660

Vicente Cevallos FRAUSTO, Plaintiff, v. Herbert BROWNELL, Attorney General of the United States, Defendant.

No. 18245.

United States District Court S. D. California, Central Division.

April 16, 1956.

David C. Marcus, Los Angeles, Cal., for plaintiff.

Laughlin E. Waters, U. S. Atty., Max F. Deutz, Asst. U. S. Atty., Chief of Civil Division, Arline Martin, Asst. U. S. Atty., Los Angeles, Cal., for defendant.

WESTOVER, District Judge.

Plaintiff herein was born April 5, 1926 at Fillmore, Ventura County, California, and by reason of such birth became a native-born citizen of the United States of America. When he was six years of age his parents took him to a small, isolated, rural community at Hacienda Mague, adjoining the Rancho Francisco I. Madero, State of Zacatecas, Republic of Mexico. He grew up in that rural community and engaged in agricultural work, the proceeds of which were used to support the entire family.

Plaintiff spent only one year in school in Mexico and can neither read, write nor understand the English language. He has only a very rudimentary education in the Spanish language.

Plaintiff identifies the person who seemed to be the head of public affairs in the rural community where he resided as the "comisario." The comisario was apparently entrusted with the responsibility of "getting out the vote" in Mexican elections in that area. In July, 1946, when petitioner was twenty years of age, he was approached by the comisario who stated in effect that petitioner was old enough to vote and would have to vote in the approaching national election. Plaintiff told the comisario that he was a citizen of the United States and, therefore, could not vote in a Mexican election. According to petitioner, he was informed by the comisario that if he failed to vote, he would be put in jail.

On election day the comisario gathered up the voting population of the small community, including plaintiff herein, and transported them some distance to the voting place. Again, according to petitioner, he protested voting, stating that he was an American citizen; and again the comisario threatened to put plaintiff in jail if he did not vote. When petitioner was taken into the room to vote he stated to the voting officials that he was an American citizen and therefore could not vote, but again he was threatened with imprisonment for failure to vote. Forced by this threat of prison, petitioner cast his vote in a Mexican National Election for president.

Some time thereafter petitioner made his way to El Paso, Texas, where he asked to be admitted into the United States, but because he did not have evidence of his citizenship he was told to return when he had such evidence. In August, 1952 petitioner appeared before the Immigration authorities at Calexico, California, presented the birth certificate and asked to be admitted into the United States as an American citizen. Instead of admitting petitioner, upon presentation of his birth certificate, the Immigration authorities questioned him, and when it was ascertained that he had voted in Mexico, petitioner was taken before a special board of inquiry, and the special board of inquiry determined through questioning that he had voted in Mexico. When asked whether or not the voting had been voluntary, petitioner replied in the affirmative. Whereupon the special board made findings of fact and conclusions of law, finding that petitioner was born in Fillmore, California, on April 5, 1926; that he had been taken by his parents to Mexico about 1932; that he had remained in Mexico since that time; that he voted of his own free will in the presidential election of June 7, 1946 in Mexico and that because of such voting he had lost his American citizenship.

An appeal was taken from the decision of the special board of inquiry but was dismissed. No reason appears in the record as to why or under what circumstances the appeal was dismissed.

In February, 1953, petitioner went to the United States Consul at Mexicali, B. C., Mexico, requesting that he be admitted to the United States as a citizen, and on February 10, 1953, the American Consul issued a certificate of loss of nationality of the United States on the ground that petitioner had expatriated himself by voting in Mexico at a national election. According to the record, petitioner stated to the Consul that he was told that if he did not vote, he would be taken to jail.

After his appearance before the Consul at Mexicali petitioner, using credentials which he had obtained from some other person, crossed the border and relocated within the Southern District of California. On March 26, 1955, he filed his petition for declaratory judgment and judicial determination of United States citizenship.

Jurisdiction was invoked pursuant to Section 360(a) of Public Law 414, § 1503, Title 8, U.S.C.A., and under the provisions of § 2201, Title 28, United States Code, and Article III and the Fourteenth Amendment of the Constitution of the United States. Upon service of summons and petition upon defendant, the government questioned the jurisdiction of this court and filed its Motion to Dismiss.

The first question confronting the court in these proceedings was that of jurisdiction. The petition on file indicates jurisdiction was invoked on three grounds:

1. Pursuant to Section 360(a) of Public Law 414,

2. Under provisions of Title 28, § 2201, United States Code (Declaratory Judgment procedure), and

3. Under the 14th Amendment of the Constitution.

The Motion to Dismiss was denied by the Court, and the matter was regularly set for hearing.

At the hearing the government contended, among other things, that petitioner could not maintain this action because he is illegally within this country. The rule is stated in Nevarez v. Brownell, 5 Cir., 218 F.2d 575, at page 577, in which the Court said:

"* * * He came into the country in violation of the orders excluding him and cannot now take advantage of his own illegal action to give the court jurisdiction * * *."

Whether petitioner was illegally in this country at the time the action was filed depends entirely upon the fact of citizenship. If he was not a citizen, he was illegally within the United States and could not use the courts to establish his rights. However, if he was a citizen of the United States, he was entitled to have recourse to its courts. The Immigration authorities have no right to keep out of this country one who is a citizen.

The government has contended that a proceeding such as this is impossible under the Immigration and Nationality Act of 1952. The Act went into effect in December, 1952, and since that time very few of the Circuit Courts have determined the rights of litigants affected by the saving clause of the Act. The right of petitioner to proceed under Section 360(a) of Public Law 414 depends entirely upon the saving clause of the 1952 Act, which reads as follows:

"§ 405. (a) Nothing contained in this Act, unless otherwise specifically provided therein, shall be construed to affect * * * any status, condition, right in process of acquisition, act, thing, liability, obligation, or matter, civil or criminal, done or existing, at the time this Act shall take effect; but as to all such prosecutions, suits, actions, proceedings, statutes, conditions, right, acts, things, liabilities, obligations, or matters the statutes or parts of statutes repealed by this Act are, unless otherwise specifically provided therein, hereby continued in force and effect. * * *" 66 Stat. 280, 8 U.S.C. p. 734, 8 U. S.C.A. § 1101 note.

The government has contended, and the Court is in agreement, that the proceedings in August, 1952, before the Department of Immigration and Naturalization and before the special board of inquiry was a proceeding within the meaning of Paragraph 405(a) of the Act of 1952.

In Wong Kay Suey v. Brownell, D.C.Cir., 227 F.2d 41, (decided October 13, 1955) this identical problem was presented to the Court, and the Court says, at page 43:

"We take § 360(a) to mean that no right to have the issue of citizenship determined in a suit for a declaratory judgment shall arise in the future, if the issue of citizenship arose in connection with exclusion proceedings. In view of the savings clause, we do not take § 360(a) to mean that an existing right to sue for a declaratory judgment shall be cut off."

To put the matter in another way — it is our opinion that the right to have the issue of citizenship determined in a suit for declaratory relief is not prohibited by the Immigration and Nationality Act of 1952, if the issue of citizenship arose in connection with exclusion proceedings commenced before the effective date of the Act.

The Act in question did not go into effect until December 26, 1952. These hearings were held in August, 1952. They were initiated and concluded prior to the date when the Act took effect. We hold that petitioner comes within the saving clause and can maintain this action for declaratory judgment under the Immigration and Naturalization Act of 1952 as his proceedings were commenced before the expiration of the prior Act.

Jurisdiction is claimed under the provisions of Title 28, § 2201, U.S.C.A. Section 2201 reads as follows:

"In a case of actual controversy * * *, upon the filing of an appropriate pleading the court may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. * * *"

It appears that petitioner is entitled to a judicial review under the provisions of Section 10 of the Administrative Procedure Act, 5 U.S.C.A. § 1009, which provides that:

"Any person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action within the meaning of any relevant statute, shall be entitled to judicial review thereof."

And § 12 of the Act, 5 U.S.C.A. § 1011, provides:

"No subsequent legislation shall be held

...