Matter of Loo

• Decision Date: 03 April 1969
• Docket Number: Interim Decision Number 1952,A-11407844
• Citation: 13 I&N Dec. 182
• Parties: MATTER OF LOO In Deportation Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

13 I&N Dec. 182

MATTER OF LOO

In Deportation Proceedings

Interim Decision Number 1952

A-11407844

Board of Immigration Appeals.

Decided by Board January 10, and April 3, 1969

Since the annulment of a judicial judgment of citizenship obtained by fraud in a proceeding under section 503, Nationality Act of 1940, does not permit the individual concerned to be regarded as an alien during the time the judgment was in effect, respondent is not deportable on a no visa charge relating to an entry as a U.S. citizen which occurred during a time when such a judicial judgment was in effect.

CHARGE:

Order: Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)] —Excludable at time of entry—immigrant not in possession of immigrant visa (section 212(a)(20) of the Act, 8 U.S.C. 1182(a)(20)).

ON BEHALF OF RESPONDENT: Gerald L. McVey, Esquire, 559 Washington Street, San Francisco, California 94111 (Brief filed)

ON BEHALF OF SERVICE: Stephen M. Suffin, Trial Attorney (Brief filed) Charles Gordon, General Counsel

Respondent appeals from the special inquiry officer's order finding him deportable as charged and denying his application for suspension of deportation. We find respondent is not deportable as charged.

The respondent, an alien, fraudulently procured judicial and administrative declarations that he was a citizen. Thereafter, he was admitted from time to time as a United States citizen. The declarations of citizenship were cancelled after these entries. The question is whether it is proper to charge respondent with the lack of a visa when he entered as a citizen. We hold it is not.

Respondent, a 46-year-old married male, a native and citizen of China, sought admission in 1951 as a United States citizen. Ordered excluded on May 22, 1952 as an alien, he instituted proceedings asking the District Court, District of Columbia, to declare him a United States citizen (section 503, Nationality Act of 1940 (54 Stat. 1171). The court upheld his claim in a decree entered on January 29, 1954. The Service issued a certificate of citizenship to him on January 10, 1958.

From 1963 to 1966, respondent made about 10 foreign trips as a crewman. He was readmitted as a United States citizen on each occasion. He last returned on February 2, 1966; he did not then have an immigrant visa. Shortly after his last return, the respondent confessed to the Service that he is an alien, and that he had fradulently claimed United States citizenship. On July 25, 1966, the court set aside its decree declaring his citizenship. On October 18, 1966, the Service cancelled his certificate of citizenship.

The Service charge is based on the reasoning that the respondent was in fact an alien when he last returned and since he was coming to resume his residence, it is proper to charge him with the lack of the immigrant visa needed by an alien entering for permanent residence. The special inquiry officer sustained the charge. He held that when the court set aside its decree, respondent was returned to the status of one who had never held United States citizenship, so that it followed that he could be charged with having failed to comply with the vist requirements applicable to an alien coming for permanent residence.

Counsel contends that judicial and administrative decisions require dismissal of the documentary charge. He relies on precedents which hold that naturalized citizens whose naturalizations were cancelled could not, as far as deportation proceedings were concerned, be treated by the Service as if they had been aliens at the time they were ostensibly citizens. Counsel states that since conclusive proof of respondent's citizenship existed at the time he last applied for admission, the Service had to admit him as a citizen; he, therefore, did not need a visa, and in fact, as a citizen, could not have obtained one.

We believe that for deportation purposes, the precedents require us to hold that respondent must be treated as the United States citizen he ostensibly was during the period he had uncancelled judicial and administrative orders stating that he was a citizen.

In Costello v. Immigration and Naturalization Service, 376 U.S. 120 (1964), the Court refused, in the absence of a congressional directive, to hold that judicial divestment of United States citizenship related back to a date earlier than the divestment to make a person deportable under the general deportation statute. The Court ruled that the immigration provision requiring the deportation of a convicted alien did not apply to one who is an alien at the time of the deportation proceeding but who was a naturalized citizen at the time of the conviction. The Court ruled that this is so even though the naturalization was cancelled ab initio for having been fradulently obtained.

U.S. ex rel Brancato v. Lehmann, 239 F.2d 663 (6 Cir., 1956), too, held that in a deportation proceeding, a retroactive effect could not be given to a court order which vacated and annulled Brancato's naturalization and "enjoined [him] from setting up or claiming any right or privilege whatsoever by virtue of" his naturalization (at p. 664). Brancato, a naturalized citizen, was convicted of perjury two years after his return from a visit to Italy. Five years after his return, the Government started an action to cancel his naturalization. Seven years after the return, the court entered the annulment order mentioned previously. Twelve years after his return, the Service started deportation proceedings on the theory that the denaturalization order cancelled Brancato's citizenship ab initio, making him an alien at the time of his last return, that the return was an "entry" for immigration purposes, and that he was deportable because he had been convicted of the crime which was committed within five years of that "entry." Brancato was ordered deported (Matter of B----, 5 I. & N. Dec. 405). On judicial review, the District Court sustained the order of deportation (U.S. ex rel Brancato v. Lehmann, 136 F.Supp. 322 (N.D.Ohio, 1955). The court held that Brancato had not become a citizen by the...