Wong Kay Suey v. Brownell, No. 12092-12094.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: EDGERTON, WILBUR K. MILLER, and FAHY, Circuit
• Citation: 227 F.2d 41,97 US App. DC 26
• Docket Number: No. 12092-12094.
• Decision Date: 13 October 1955
• Parties: WONG KAY SUEY, Appellant, v. Herbert BROWNELL, Jr., Attorney General of the United States, et al., Appellees. WONG POO SING, Appellant, v. Herbert BROWNELL, Jr., Attorney General of the United States, et al., Appellees. Emily WONG, Appellant, v. Herbert BROWNELL, Jr., Attorney General of the United States, et al., Appellees.

97 US App. DC 26, 227 F.2d 41 (1955)

WONG KAY SUEY, Appellant,
v.
Herbert BROWNELL, Jr., Attorney General of the United States, et al., Appellees.
WONG POO SING, Appellant,
v.
Herbert BROWNELL, Jr., Attorney General of the United States, et al., Appellees.
Emily WONG, Appellant,
v.
Herbert BROWNELL, Jr., Attorney General of the United States, et al., Appellees.

Nos. 12092-12094.

United States Court of Appeals District of Columbia Circuit.

Argued April 20, 1955.

Decided October 13, 1955.

227 F.2d 42

Mr. Charles R. Richey, Washington, D. C., for appellants.

Mr. Lewis Carroll, Asst. U. S. Atty., with whom Mr. Leo A. Rover, U. S. Atty., Miss Catherine B. Kelly, Asst. U. S. Atty., and Mr. Albert E. Reitzel, Asst. Gen. Counsel, Immigration and Naturalization Service, were on the brief, for appellees.

Before EDGERTON, WILBUR K. MILLER, and FAHY, Circuit Judges.

EDGERTON, Circuit Judge.

These are exclusion cases that have been consolidated. The plaintiffs arrived in the United States in August or October, 1952. They claimed and were denied admission as citizens of the United States. Section 503 of the Nationality Act of 1940, 54 Stat. 1171, 8 U.S.C. (1946 ed.) § 903, provides that "if any person who claims a right or privilege as a national of the United States is denied such right or privilege * * such person, regardless of whether he is within the United States or abroad, may institute an action * * * for a judgment declaring him to be a national of the United States * * *."

In 1954 the plaintiffs filed separate complaints for judgments declaring them to be citizens of the United States, and asked that the defendants be restrained from interfering with their rights as citizens. In each case the District Court denied a preliminary injunction on the ground that it was "without jurisdiction to hear plaintiff's complaint for declaratory judgment." These appeals followed.

In December, 1952, the Immigration and Nationality Act of 1952, 66 Stat. 163, 8 U.S.C.A. § 1101 et seq., had become effective. Section 403(a) (42), 66 Stat. 280, repeals the Nationality Act of 1940. Section 360(a) of the Act of 1952 provides in effect that if any person "who is within the United States" claims a right as a national of the United States, and the right is denied upon the ground that he is not a national, he may institute an action for a declaratory judgment, "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 or any other act, or (2) is in issue in any such exclusion proceeding." 66 Stat. 273, 8 U.S.C. § 1503(a).

The question is whether the 1952 Act deprived the plaintiffs of their right under the 1940 Act to have the issue of their citizenship, which had arisen in exclusion proceedings, decided...