Tijerina v. Brownell, Civ. A. No. 8113.

• Decision Date: 25 May 1956
• Docket Number: Civ. A. No. 8113.
• Citation: 141 F. Supp. 266
• Parties: Felix TIJERINA, Plaintiff, v. Herbert BROWNELL, Jr., Attorney General of the United States, Defendant.
• Court: U.S. District Court — Southern District of Texas

141 F. Supp. 266

Felix TIJERINA, Plaintiff, v. Herbert BROWNELL, Jr., Attorney General of the United States, Defendant.

Civ. A. No. 8113.

United States District Court S. D. Texas, Houston Division.

May 25, 1956.

Philip J. Montalbo and W. J. Knight, Houston, Tex., for plaintiff.

Malcolm R. Wilkey, U. S. Atty., and Sidney L. Farr, Asst. U. S. Atty., Houston, Tex., for defendant.

INGRAHAM, District Judge.

Plaintiff, Felix Tijerina, seeks a declaratory judgment adjudicating and determining that he is a native-born citizen of the United States of America. This relief is sought in his complaint against Herbert Brownell, Jr., Attorney General of the United States, T. C. Carpenter, Acting Officer-in-Charge of the office of the Immigration and Naturalization Service at Houston, Texas (pro se and as successor in office to L. D. Crossman, former Officer-in-Charge), and E. L. Brimberry, an Immigration Inspector stationed at Houston. The latter two defendants were dismissed from the suit upon their motion urging that they were not proper parties, leaving the Attorney General as sole defendant.

Defendant urged his motion to dismiss plaintiff's suit for want of jurisdiction, claiming that there has been no denial of plaintiff's rights or privileges as a national of the United States, by any Department or Agency thereof, on the ground that plaintiff was not a national of the United States. Upon the trial of the case, the court announced that the motion would be taken under advisement with the case and that the court would rule on the motion after a full hearing of the evidence.

Consideration will first be given to defendant's motion to dismiss. It appears that a controversy was engendered between the Immigration and Naturalization Service of the United States Department of Justice and the plaintiff, which continued over a period of time. Incidents in such controversy were as follows:

(a) In 1940 the Immigration and Naturalization Service of the United States initiated an investigation and inquiry into plaintiff's American citizenship, asserting that doubts were cast thereon by the following documents:

(1) An application for an immigration visa for entry into the United States signed and sworn to by plaintiff on July 20, 1925, in which he stated that he was born in General Escobedo, Nuevo Leon, Republic of Mexico, on April 29, 1905.

(2) Certified copy of a record of birth of a male child by the name of Feliberto Tijerina to Dionicia Villareal Tijerina and Rafael Tijerina, stating that the birth was recorded in the official birth records of the Village of General Escobedo, Nuevo Leon, Republic of Mexico, July 29, 1905.

The investigation and inquiry was referred to Inspector Autrey of the Immigration and Naturalization Service. At the conclusion of such investigation and inquiry, Inspector Autrey recommended to plaintiff that he obtain a delayed birth certificate under the provisions of the laws of the State of Texas, but no formal findings were made.

(b) In May 1953 plaintiff and his wife filed with the Immigration and Naturalization Service a request for leave to file a petition for naturalization of their adopted son, Felix Tijerina, Jr., a Mexican national. In September 1953, prior to the filing of the petition for naturalization, plaintiff was again confronted with the aforesaid documents casting doubt on his American citizenship.

(c) Based on the documents in question, Naturalization Examiner Elsenbroich moved for and obtained a continuance of the petition to naturalize plaintiff's adopted son for a period of 30 days.

(d) Contemporaneous therewith, Inspector Brimberry, of the Immigration and Naturalization Service, denied that plaintiff was an American citizen and warned plaintiff that he would be subject to arrest should he leave this country and attempt to return. Inspector Brimberry advised and urged plaintiff to file a petition for naturalization.

(e) During a recess of the hearing held by Naturalization Examiner Elsenbroich on the question of whether plaintiff's adopted son could be naturalized, Inspector Brimberry, who had conducted the investigation, denied plaintiff's American citizenship and advised plaintiff that as a Naturalization Officer he would not be bound by the findings of the Naturalization Examiner, and threatened plaintiff that if he left the United States for Mexico and sought to return, he would be arrested as an alien seeking admission to this country and required to make proof of his citizenship in a special inquiry proceeding.

(f) Thereafter, on July 10, 1954, plaintiff returned from a visit to Mexico City by commercial airline. Upon plaintiff's arrival at the Houston International Airport, he was met by Inspector Brimberry, who arrested plaintiff, asserted before plaintiff and others that plaintiff was not a citizen of the United States, questioned plaintiff's right to enter the United States, threatened to return him to Mexico, and threatened the carrying airline with penalties of law for transporting an alien. After a brief detention of plaintiff, Inspector Brimberry released plaintiff under orders to report to a special inquiry officer at the Houston office of the United States Immigration and Naturalization Service the following Monday, July 12, 1954.

(g) On July 12, 1954, a Special Inquiry Officer was assigned to hold a special inquiry proceeding to determine the admissibility of plaintiff as a native-born American citizen, and on that date plaintiff appeared in person before said Special Inquiry Officer and said proceeding was postponed by said Officer to a date to be later determined, pending the final hearing of which plaintiff was released under parole with orders to report to the Inquiry Officer upon the resumption of the inquiry proceeding.

(h) Plaintiff's request for permanent passport was refused by the United States Department of Justice pending final disposition of this cause.

The Supreme Court established in Perkins v. Elg, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320, that a dispute between a citizen and an administrative agency regarding the status of citizenship presents a justiciable controversy, with respect to which Federal Courts have jurisdiction under the Declaratory Judgments Act, 28 U.S.C.A. § 2201. In this case administrative action was pending but held in abeyance at the time the suit for declaratory judgment was filed. The Supreme Court, in effect, sustained the Court of Appeals in holding that jurisdiction under the Declaratory Judgments Act might be rested upon threats of deportation and declarations made by administrative officers that the plaintiff was an alien.

Following this decision it has been held consistently that denial of citizenship or eligibility for citizenship by an administrative officer creates a controversy...