Puig Jimenez v. Glover, 5285.

• Decision Date: 02 May 1958
• Docket Number: No. 5285.,5285.
• Citation: 255 F.2d 54
• Parties: Maria Luisa PUIG JIMENEZ, Plaintiff, Appellant, v. John H. GLOVER et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

255 F.2d 54 (1958)

Maria Luisa PUIG JIMENEZ, Plaintiff, Appellant, v. John H. GLOVER et al., Defendants, Appellees.

No. 5285.

United States Court of Appeals First Circuit.

Heard February 7, 1958.

Decided May 2, 1958.

B. F. Sanchez Castaño, San Juan, P. R., for appellant.

Ruben Rodriguez-Antongiorgi, U. S. Atty., San Juan, P. R., for appellees.

J. B. Fernandez Badillo, Atty. Gen., Commonwealth of Puerto Rico, and Arturo Estrella and Edgar S. Belaval, Asst. Attys. Gen., for Roberto Sanchez Vilella, Secretary of State of the Commonwealth of Puerto Rico, submitted on the brief filed by the U. S. Atty., by leave of Court.

Before MAGRUDER, Chief Judge, and WOODBURY and STALEY, Circuit Judges.

MAGRUDER, Chief Judge.

Litigation involving nationality is apt to be tangled with technical niceties, and this case is no exception. It is an appeal by Maria Luisa Puig Jimenez from a judgment of the United States District Court for the District of Puerto Rico, entered May 2, 1957, adjudging that she is not and never was a citizen of the United States, and dismissing her complaint for a declaratory judgment that she is such citizen.

Appellant was born in San Juan, Puerto Rico, on August 24, 1922, her parents being Cristobal Puig and Sofia Perez, both alien Spanish nationals. She was not, therefore, automatically a citizen of the United States by birth, according to the provision of the law then in force, which was § 5 of the Organic Act of 1917. (39 Stat. 953) While § 5 would have permitted her to achieve American citizenship by filing with the United States District Court a sworn declaration of allegiance to the United States upon her twenty-first birthday on August 24, 1943, and for one year thereafter, she failed to take advantage of this procedure.

The Nationality Act of 1940 contained the following provision:

"Sec. 322. A person born in Puerto Rico of alien parents, referred to in the last paragraph of section 5, Act of March 2, 1917 (U.S.C., title 8, sec. 5), and in section 5a, of the said Act, as amended by section 2 of the Act of March 4, 1927 (U.S.C., title 8, sec. 5a), who did not exercise the privilege granted of becoming a citizen of the United States, may make the declaration provided in said paragraph at any time, and from and after the making of such declaration shall be a citizen of the United States." 54 Stat. 1148.^*

It is true this § 322 was repealed, along with the whole of the Nationality Act of 1940, by the Act of June 27, 1952 (66 Stat. 280), but of course if appellant had obtained American citizenship under § 322 while it was in force, its repeal would not have affected her status. However, it is not claimed that she ever filed with the district court the declaration of allegiance as required in § 322.

Appellant bases her claim to American citizenship upon the automatic provision of § 202 of the Nationality Act of 1940. We shall discuss the statutory language of this section later on, after dealing with the question whether the court below had jurisdiction to entertain the present complaint for a declaratory judgment.

It appears from the record that in 1936 appellant was taken to Palma de Mallorca, Spain, by her Spanish parents. So far as appears this was intended by the parents to be no more than a temporary visit to Spain, without relinquishment of their residence and domicile in Puerto Rico. At all events, appellant was caught up in the confusion of the Spanish civil war so that for a time it was impossible for her and her parents to return to Puerto Rico, though the American consul at Barcelona was notified of their desire to return to Puerto Rico as soon as conditions would permit. On July 14, 1941, they did return to Puerto Rico. At this time, since appellant was still a minor, she traveled on her father's Spanish passport.

In the year 1949 she traveled again to Spain, this time on an American passport issued to her by the Governor of Puerto Rico. There she married Rafael Jimenez Luque, a citizen of Spain, on July 15, 1950. But on July 8, 1953, the United States consul at Barcelona informed her that her American passport was void, on the ground that she was not, and never had been, an American citizen, and the said passport was taken away from her. However, there was issued to her a visa as a Spanish quota immigrant, on the basis of which she was enabled to re-enter Puerto Rico on July 14, 1954, though admittance was denied to her at that time in her asserted capacity as a citizen of the United States by the officer in charge of the immigration service at San Juan. Presumably at the same time her Spanish husband obtained entry into Puerto Rico as a quota immigrant, for the record discloses that he is now a resident alien in Puerto Rico. So far as the record shows, appellant has continued to reside in Puerto Rico since her return in 1954. It was alleged in appellant's amended complaint, and admitted by the answer, that "Roberto Sanchez Vilella, Esq., as Secretary of State of the Commonwealth of Puerto Rico refused to issue a passport to the complainant as a citizen of the United States of America." We take it that this denial of American citizenship, which took place in Puerto Rico, must have been at some time subsequent to her return to Puerto Rico in 1954.

There is no doubt that appellant's amended complaint exhibits a controversy suitable for judicial determination. Perkins v. Elg, 1939, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320. In the latter case the complaint was held to have been properly brought under the general provisions of the Declaratory Judgments Act. 28 U.S.C. § 2201. As applied specifically to nationality cases, § 503 of the Nationality Act of 1940 (54 Stat. 1171) provided that any person claiming to have been denied a right or privilege as a national of the United States could have his status determined in a declaratory judgment action. Under § 503, the complaint could be filed against the head of the offending department in either the District of Columbia or in the district of the plaintiff's permanent residence. It did not matter whether the plaintiff was in the United States or abroad at the time the right or privilege was denied. If it happened that the plaintiff was outside the United States, and had instituted such a declaratory action, it was provided that he could obtain from the local consul a certificate of identity permitting him to come to the United States to prosecute the lawsuit "upon the condition that he shall be subject to deportation in case it shall be decided by the court that he is not a national of the United States".

This provision of § 503 of the Nationality Act of 1940 had the attention of the Congress when it was considering the McCarran Act of 1952; and § 360 of the latter act was passed (66 Stat. 273) with the evident intention of limiting the opportunity of persons claiming to be citizens to seek a judicial declaration of their rights. Some concern was expressed about the flooding of the courts by such declaratory judgment actions and about the misuse of the so-called certificate of identity so as to allow undesirable persons to slip into the population. See Developments in the Law — Immigration and Nationality, 66 Harv.L. Rev. 643, 674 (1953); (1953) U.S.Code Cong. & Ad.News 2889; Joint Hearings Before the Subcommittee of the Judiciary on Bills to Revise the Laws Relating to Immigration, Naturalization and Nationality, 82d Cong., 1st Sess. 108, 529-31 (1951).

Section 360(a) of the McCarran Act provides as follows:

"If any person who is within the United States claims a right or privilege as a national of the United States and is denied such right or privilege by any department or independent agency, or official thereof, upon the ground that he is not a national of the United States, such person may institute an action under the provisions of section 2201 of Title 28, United States Code, against the head of such department or independent agency for a judgment declaring him to be a national of the United States, except that no such action may be instituted in any case if the issue of such person\'s status as a national of the United States (1) arose by reason of, or in connection with any exclusion proceeding under the provisions of this chapter or any other act, or (2) is in issue in any such exclusion proceeding. An action under this subsection may be instituted only within five years after the final administrative denial of such right or privilege and shall be filed in the district court of the United States for the district in which such person resides or claims a residence, and jurisdiction over such officials in such cases is hereby conferred upon those courts." 66 Stat. 273, 8 U.S. C.A. § 1503(a).

For a claimant to United States citizenship "who is not within the United States", an administrative procedure is set forth in § 360(b). 8 U.S.C.A. § 1503(b). Such a person, if he is denied his rights as an alleged national, may make application to a diplomatic or consular officer "in the foreign country in which he is residing" for a certificate of identity for the purpose of traveling to a port of entry and applying for admission. If such a certificate of identity is refused by the consular officer, an appeal may be taken to the Secretary of State. The statute makes no specific provision for judicial review in case the Secretary of State should affirm the action of the consular officer, though it may be that such review would be available under the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq. Cf. McGrath v. Kristensen, 1950, 340 U.S. 162, 71 S. Ct. 224, 95 L.Ed. 173; Brownell v. Tom We Shung, 1956, 352 U.S. 180, 77 S.Ct. 252, 1 L.Ed.2d 225. Whether judicial review could constitutionally be denied at this stage we do not have before us in the present case. Section 360(c) (8 U.S. C.A. § 1503(c)) provides that the holder of such a certificate of identity may apply for admission to the United States at any port of entry...