Reyes v. Neelly, 17435.

• Decision Date: 22 April 1959
• Docket Number: No. 17435.,17435.
• Citation: 264 F.2d 673
• Parties: Felix Martinez REYES joined by Jose Martinez, Benjamin Martinez and Guadalupe Martinez, Appellant, v. Marcus T. NEELLY, Director of Immigration & Naturalization Service, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

264 F.2d 673 (1959)

Felix Martinez REYES joined by Jose Martinez, Benjamin Martinez and Guadalupe Martinez, Appellant, v. Marcus T. NEELLY, Director of Immigration & Naturalization Service, Appellee.

No. 17435.

United States Court of Appeals Fifth Circuit.

March 10, 1959.

Rehearing Denied April 22, 1959.

Wellington Y. Chew, El Paso, Tex., for appellant.

James E. Hammond, Asst. U. S. Atty., El Paso, Tex. (Russell B. Wine, U. S. Atty., San Antonio, Tex., on the brief), for appellee.

Before HUTCHESON, Chief Judge, and RIVES and JONES, Circuit Judges.

HUTCHESON, Chief Judge.

Alleging that, upon an immigration show cause hearing, he was found deportable for the reason that he was not, as he was required to be, in possession of an immigrant visa at the time of entry into the United States, plaintiff brought this suit under Sec. 1503, Title 8 U.S. C.A., for a judgment declaring that he was a national and citizen of the United States.

This is another of the many cases,¹ the filing of which the enactment of this statute, with its opportunity for an independent suit with a trial and decision de novo, has brought about. In these cases, just as it is in other civil cases, the burden of establishing in the trial court the truth of the facts alleged is on the plaintiff. In the same way, in an appeal in such cases, the burden is on the appellant to show that the findings of the district judge are clearly erroneous.

While all of these cases are fraught with human interest and this case is especially so because the plaintiff is an old man with a large family of children and their children whose rights as American citizens will stand or fall with him, and the court and everyone concerned in it have taken counsel to afford every possible alleviation of unduly harsh results, the legal principles governing the hearing and disposition of such suits are no different from those governing ordinary civil cases and decisions, and review of decisions in them must conform to those principles. In short, simple and uncomplicated in law as these cases essentially are, each can and must be determined below and here on its particular facts.

In this case these consisted primarily of: the oral testimony in court of the plaintiff; the admission by stipulation into the record of the Immigration hearing; the baptismal certificate, in which the place of birth is not shown, showing plaintiff's baptism in St. Joseph's Church in Fort Davis, Texas, on August 4, 1888; the delayed birth certificate secured by plaintiff, issued April 4, 1945, and affidavits with respect thereto. There was no testimony, however, of any person, including of course the plaintiff, who could or did testify to the fact that Reyes had been born in Fort Davis, Texas, as he claims. They amounted in substance to no more than a claim by him that: he was born in Fort Davis, Texas, March 30, 1888, and lived in San Antonio del Bravo, Mexico, where he was married, most of his children were born, and where he held office and conducted himself as a citizen of Mexico until 1944, when he entered the United States at Presidio, Texas, and that in 1940 or 1941, when one of the Immigration employees picked up one of his daughters and asked him where he was born, he told him, that "I would have to look it up, I didn't know." In addition, he testified that he found an older brother and got from him the baptismal certificate, above referred to, and he later got his father to swear to the delayed birth certificate, referred to above.

The show cause proceeding, conducted by the Immigration Department, was for the purpose of determining the validity of Reyes' claim that he was a national of, and, therefore, validly in the United States. During that hearing plaintiff testified substantially as he did on the trial of the case and while there was considerably more detail in those proceedings and plaintiff's prior inconsistent acts and statements were more fully explored, they contained nothing of benefit to plaintiff that his own testimony did not afford.

Though at the beginning of the trial, the United States Attorney insisted that it was not a de novo proceeding but was a mere review of the immigration proceeding, the district judge stated that he would determine the matter later and that the plaintiff could offer any testimony that he wanted to, and the case proceeded as a trial de novo and was so determined.

Finding: (1) that petitioner was born in San Antonio del Bravo, Chihuahua, Mexico; (2) that petitioner is not a national of the United States, and as a conclusion of law that the findings of the Immigration hearing are supported by substantial evidence; he thus affirmatively decided the issues submitted to him for decision, and while his conclusion, that the findings of the Immigration proceeding were supported by substantial evidence, was unnecessary to the decision, it did not in any manner depart or detract from his basic findings.

Here appellant does not claim that the court did not give him a hearing. He stands almost entirely on the proposition that the certificate of citizenship issued by the Immigration Department in effect conferred upon him citizenship which gave rise to the presumption that the plaintiff was a citizen and placed upon the defendant a burden equivalent to that imposed in a denaturalization proceeding.

While the opinion of the Court of Appeals for the Third Circuit, Delmore v. Brownell, note 1 supra, affirming the finding of the district judge that plaintiff was a citizen, does seem to lend some support to this view, the opinion itself recognizes that it is contrary to the opinion in Mah Toi v. Brownell, 9 Cir., 219 F.2d 642, cited by us with approval in De Vargas v. Brownell, 5 Cir., 251 F.2d 870, and with which we wholly agree.

When the evidence as a whole is considered, it is seen that the certificate of citizenship was based upon evidence furnished by plaintiff and that it could have no greater standing or force than that evidence on which the determination was based. In that view we think it clear: that any force that it had has been completely dissipated by the evidence in this case; and that, with the finding of the district judge that the fact of plaintiff's birth in the United States, on which the certificate was purportedly based, does not exist, the proof failed, and the certificate of citizenship failed with it.

No ground appearing for holding that the district judge's findings are clearly erroneous, the judgment is

Affirmed.

RIVES, Circuit Judge (dissenting).

Respectfully dissenting, I would keep constantly in mind that most important part of the judicial function to "administer justice without respect to persons, and do equal right to the poor and to the rich." 28 U.S.C.A. § 453. That certainly does not mean that the more sympathetic the plight of the underdog the more hardhearted and recalcitrant must be the judges in order to do substantial justice. With deference, I hold the firm opinion that my brothers have disregarded several important rules of law, any one of which must command a reversal of this case.

Let us examine this case. Felix Martinez Reyes is a blind, diabetic, seventy-year-old Mexican, having twelve children and more than a score of grandchildren, who has lived in this Country continuously since 1944. On December 13, 1956, a Special Inquiry Officer of the Immigration and Naturalization Service decided that at the time of Reyes' entry into the United States in October, 1944, he was a native and citizen of Mexico and was not in possession of a valid immigration visa, and ordered that, if Reyes failed voluntarily to depart, he should be deported. On appeal to the Board of Immigration Appeals, the decision of the Special Inquiry Officer was affirmed on March 14, 1957. On May 2, 1957, Reyes filed this action seeking a declaratory judgment, under 8 U.S.C.A. § 1503, that he was a national of the United States.

Section 1503 of Title 8 U.S.C.A.,¹ affords to any person within the United States who claims to be a national and who has been denied such right or privilege by any department or agency of the Government the right to a judgment in the United States courts declaring him to be a national. Before 1940 the only judicial remedy to determine the validity of a deportation or denaturalization order was by writ of habeas corpus directed against the Immigration Authorities, and the courts emphasized that due process required a judicial trial and determination before a resident of the United States asserting United States citizenship could be deported.² Section 503 of the Nationality Act of 1940 (then 8 U.S.C.A. § 903) provided such persons the method of obtaining a judicial determination of citizenship by declaratory judgment. This Act was superseded by Section 360 of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1503, which, except in certain exclusion proceedings not here material and which still afford habeas corpus, continues to afford this right of judicial determination.³ The issue of citizenship has been so jealously protected that some federal courts have allowed the dual remedy of habeas corpus and declaratory judgment to an alleged citizen.⁴ Such a declaratory judgment is a declaration of status which is binding not only on governmental authorities but, also, upon the whole world, it being equivalent to a certificate of naturalization.⁵ And the plaintiff has the same burdens and benefits of well-established rules of pleading, procedure, evidence, proof, presumptions, and appellate review in this proceeding under 8 U.S.C.A. § 1503 as fall upon a plaintiff in any civil action, for this proceeding is a trial de novo in its broadest sense, affording absolutely no presumption to the prior administrative ruling.⁶

I

It is manifest that Reyes had anything but a trial de novo. The District Attorney through dogmatic assertions, the District Judge through a misconception of the law, and the plaintiff's attorney...