Rusk v. Cort/Concurrence Brennan

Mr. Justice BRENNAN, concurring.

While I agree with the reasoning of the Court and join its opinion, I wish to note my view that its interpretation of § 360 of the Immigration and Nationality Act of 1952 is further supported by serious doubt as to whether the statute as construed and applied by the dissenting opinion would be constitutional. Compare, e.g., United States v. Witkovich, 353 U.S. 194, 201-202, 77 S.Ct. 779, 783, 784, 1 L.Ed.2d 765.

Necessarily implicit in the administrative denial of a right or privilege of citizenship on the ground that the individual affected has committed an expatriating act enumerated in § 401 of the 1940 Act or § 349 of the 1952 Act, is the assumption that the individual was theretofore a citizen. Accordingly, it follows from the interpretation advanced by the dissent that a person abroad who just prior to the adverse administrative action admittedly had been deemed a citizen, entitled to all the incidents of citizenship including the freedom to re-enter the country, may by unreviewable administrative action be relegated to the status of an alien confronted by all the barriers to alien entry and the limited access to judicial review that an alien enjoys. That Congress may, consistently with the requirements of due process, circumscribe general grants of jurisdiction so as to deny judicial review of administrative action which peremptorily initiates the treatment as an alien of one who had been a citizen seems at least doubtful enough that we should, if reasonably possible, avoid interpreting any statute to accomplish such a result.

If § 360(b), (c) provided the sole avenue to judicial review for one who while abroad is denied a right of citizenship, the following consequences would result: He would have to apply for a certificate of identity, which would be granted only if an administrative official was satisfied that the application was made in good faith and had a substantial basis. If the certificate were initially denied, an administrative appeal would have to be taken. If that failed, an attempt might be made to secure judicial review. A holding that no such review is available would mean that one who admittedly had been a citizen would have been conclusively converted into an alien without ever having gained access to any court. On the other hand, if review were forthcoming at this stage, and if issuance of a certificate were ordered, the individual would have gained only the right to travel to a United States port of entry-if he could afford the passage-there to be 'subject to all the provisions of this chapter relating to the conduct of proceedings involving aliens seeking admission to the United States.' He would, in other words, have to submit to detention as an alien although it is assumed that he was once a citizen and no court had ever determined that he had been expatriated. Should he still encounter an administrative denial of the right to enter, he would finally get into court, but 'in habeas corpus proceedings and not otherwise,' with whatever limitations upon the scope of review such language may imply.

The dissent would construe § 360 to mean that administrative action resulting in such a stark limitation of such fundamental rights is totally unreviewable. For the very procedures of subsections (b) and (c), which according to the dissent's interpretation are the only avenues to review open to the putative expatriate abroad, accomplish a conversion of citizenship into alienage. To read Congress as having denied judicial review of administrative action which throws an individual into this bind would be to tread upon a constitutional quicksand.

The dissent finds shelter in United States v. Ju Toy, 198 U.S. 253, 25 S.Ct. 644, 49 L.Ed. 1040, but that case does not resolve the constitutional doubts I have suggested. The precise issue there was the degree of finality to be accorded in habeas corpus proceedings to an administrative refusal of entry based on a finding that the petitioner was not, as he claimed, native-born and so had never been a citizen. Ju Toy was not an expatriation case in which administrative officials purported to withdraw rights of citizenship which admittedly once existed. Even if 'the mere fact that (persons seeking entry) claimed to be citizens would not have entitled them under the Constitution to a judicial hearing,' it does not follow that rights attaching to admitted citizenship may be forfeited without a judicial hearing. To deny the rights of citizenship to one who previously enjoyed them 'obviously deprives him of liberty * *  *. It may result also in loss of both property and life, or of all that makes life worth living. Against the danger of such deprivation without the sanction afforded by judicial proceedings, the Fifth Amendment affords protection in its guarantee of due process of law. The difference in security of judicial over administrative action has been adverted to by this court.' Ng Fung Ho v. White, 259 U.S. 276, 284-285, 42 S.Ct. 492, 495, 66 L.Ed. 938.

Mr. Justice HARLAN, whom Mr. Justice FRANKFURTER and Mr. Justice CLARK join, dissenting.

The decision that the District Court had jurisdiction to entertain this declaratory judgment action, notwithstanding that the appellee is a foreign resident, seems to me manifestly wrong, in light of the governing statute and its legislative history which could hardly be more clear.

This issue depends upon § 360 of the 1952 Act. That section is entitled: 'Proceedings For Declaration of United States Nationality in The Event of (the administrative) Denial of Rights And Privileges as National.' The provisions of the section set out in full in the margin, may be summarized as follows:

(1) If the person whose rights as a national have been     administratively denied 'is within the United States,' he may bring a declaratory judgment action under 28      U.S.C. § 2201, 28 U.S.C.A. § 2201, to establish his      citizenship, unless that issue was, or is, already involved      in an 'exclusion' proceeding. The action must be brought within five years after the final administrative denial, and     in the district where such person resides or claims      residence. (Subsection '(a).')

(2) If such person is 'not within the United States,' but had     previously been 'physically' there, or was born abroad of an      American citizen parent and is under the age of 16, (i) he      may apply abroad for a 'certificate of identity' to enable      him to seek admission to the United States (subsection      '(b)'); and (ii) if admission at a port of entry is finally      denied him by the Attorney General, he may have that      determination judicially reviewed 'in habeas corpus      proceedings and not otherwise.' If ultimately excluded from      the United States, such person is made subject to all the      provisions of the immigration law relating to the admission      of aliens to the United States. (Subsection '(c).')

As will be shown later, these provisions of the 1952 Act, among other things, departed from the comparable procedural provisions of § 503 of the Nationality Act of 1940, 54 Stat. 1137, 1171-1172, which had expressly made declaratory relief available to all citizenship claimants, whether 'within the United States or abroad,' following an administrative denial of that status. The purpose and effect of the new provisions are shown by the following extract from the Senate Judiciary Committee's report on the bill (S. 2550), § 360 of which, with only a minor addition and deletion, now bears the same number in the 1952 Act:

'Under the provisions of section 503 of the Nationality Act     of 1940 any person who claims a right or privilege as a      national of the United States and who is denied such right or      privilege by a governmental agency on the ground that he is      not a national of the United States may institute an action      in a district Federal court for a judgment declaring him to      be a national of the United States. If such person is outside     the United States and shall have instituted the action in      court, he may obtain from a diplomatic or consular officer a      certificate of identity and may be admitted to the United      States with the certificate 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.

'The bill modifies section 503 of the Nationality Act of 1940     by limiting the court action exclusively to persons who are      within the United States, and prohibits the court action in      any case if the issue of the person's status as a national of      the United States (1) arose by reason of, or in connection      with, any deportation or exclusion proceeding or (2) is an      issue in any such deportation or exclusion proceeding. The     reason for the modification is that the issue of citizenship      is always germane in an exclusion and deportation proceeding,      in which case an adjudication of nationality status can be      appropriately made.

'The bill further provides that any person who has previously     been physically present in the United States but who is not      within the United States who claims a right or privilege as a      national of the United States and is denied such right or      privilege by any government agency may be issued a      certificate of identity for the purpose of traveling to the      United States and applying for admission to the United      States. The net effect of this provision is to require that     the determination of the nationality of such person shall be      made in accordance with the normal immigration procedures. These procedures include review by habeas corpus proceedings     where the issue of the nationality status of the person can      be properly adjudicated.' S.Rep. No. 1137, to accompany S.     2550, 82d Cong., 2d Sess., p. 50. (Emphasis added.)

The Court now holds, however, that under § 360 declaratory relief is still available to those 'not within the United States' as well as those 'within the United States,' as was so under § 503 of the 1940 Act; that the certificate of identity procedure provided in subsections (b) and (c) of § 360 is not the exclusive remedy available to nonresident citizenship claimants; that Congress' 'predominant concern' in enacting those subsections was to fend against possible misuse of certificates of identity in effecting fraudulent entry into this country; and that jurisdiction of this action accordingly lies under the Declaratory Judgment Act and the Administrative Procedure Act. These conclusions, which I believe are plainly inconsistent with the congressional purpose, as reflected on the face of § 360 itself and in the foregoing Senate Judiciary Committee report, are refuted beyond any doubt by the background and legislative history of § 360.

Prior to 1940, immigration and nationality statutes were silent on the form and scope of judicial review in deportation, exclusion, and nationality cases. In 1905 this Court, in a habeas corpus proceeding involving an administrative denial of admission to this country of a nonresident citizenship claimant who had temporarily departed, held that due process did not require a judicial trial of the issue of citizenship; and that the courts could inquire into the administrative decision only within the conventional limits of habeas corpus review. United States v. Ju Toy, 198 U.S. 253, 25 S.Ct. 644, 49 L.Ed. 1040 (Holmes, J.). In 1922, however, the Court held that a resident claimant in a deportation proceeding was entitled to a judicial determination of his citizenship status, thus turning the availability of full judicial relief on the geographical location of the claimant. Ng Fung Ho v. White, 259 U.S. 276, 42 S.Ct. 492, 66 L.Ed. 938 (Brandeis, J.).

In 1934 the Declaratory Judgments Act was passed. 48 Stat. 955-956; 28 U.S.C. § 2201, 28 U.S.C.A. § 2201, as since amended. In a case decided in 1939, this Court held that remedy applicable to resident citizenship claimants, see Perkins v. Elg, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320. However, despite the Elg decision, and no doubt because of the Ju Toy and Ng Fung Ho cases, the continuing prevailing view prior to 1940 seems to have been that relief under the Declaratory Judgments Act was not available to nonresidents seeking a determination of their citizenship claims.

It was not until 1940 that Congress, in the Nationality Act of 1940, first specifically dealt with the availability of declaratory relief in nationality cases. Under that statute the requirements for citizenship were greatly tightened and the provisions for loss of citizenship expanded. During the debates concern was expressed lest under existing law some persons might not get their 'day in court' with respect to claims to citizenship. 86 Cong.Rec. 13247. This led to the enactment of § 503 under which declaratory relief was made available to resident and nonresident claimants alike, and, in the case of the latter, authorizing, but not requiring, their provisional entry into the United States under certificates of identity, issuable in aid of a declaratory judgment suit already filed. Note 3, supra.

At the same time Congress recognized the possibility of abuse of this liberalized procedure on the part of nonresident claimants who might seek certificates of identity only to achieve entry into this country, without any thought of pressing their citizenship claims; and an attempt was made to guard against such abuse. Accordingly, the section was written to provide that certificates of identity should be furnished only upon 'a sworn application showing that the claim of nationality presented in such (declaratory judgment) action is made in good faith and has a substantial basis'; it also authorized the Secretary of State, with the approval of the Attorney General, to prescribe regulations for the issuance of such certificates. Note 3, supra.

Commencing soon after the close of World War II, and perhaps in part as a result of the then recent repeal of the Chinese Exclusion Act and continuing Communist successes in China, a large number of suits were filed in the federal courts by Chinese citizenship claimants. These carried in their wake consequences which Congress could hardly have fully anticipated when it enacted § 503. Such consequences were principally of three kinds. First, there was an increase in the volume of fraudulent entries into this country; many Chinese who had obtained certificates of identity incident to the institution of a declaratory judgment citizenship action would abandon the suit upon arrival here and disappear into the stream of the population. Second, the courts experienced difficulty in adjudicating 'derivative' citizenship claims without the claimants having been first exposed to normal immigration screening; such claims were often based on the assertion that the claimant was the foreign-born child of an American citizen who had temporarily returned to China, an assertion frequently difficult to disprove. Third, the federal court dockets became cluttered with these suits. See, e.g., United States ex rel. Dong Wing Ott v. Shaughnessy, D.C., 116 F.Supp. 745, 751-752, aff'd, 2 Cir., 220 F.2d 537; Mar Gong v. McGranery, D.C., 109 F.Supp. 821, rev'd sub nom. Mar Gong v. Brownell, 9 Cir., 209 F.2d 448. By the end of 1952, 1,288 such cases had been instituted. See Ly Shew v. Acheson, D.C., 110 F.Supp. 50, 54-55, vacated and remanded sub nom. Ly Shew v. Dulles, 9 Cir., 219 F.2d 413; Annual Reports of the Attorney General for 1956 (pp. 111-113) and 1957 (pp. 121-123). This state of affairs contributed in no small degree to the revamping of § 503 by § 360 of the statute now before us, enacted after five years of investigation pursuant to a 1947 Senate Resolution authorizing a general study of the immigration laws. S.Res. No. 137, 80th Cong., 1st Sess. (1947).

The first step in this direction occurred in 1950 when Senator McCarran introduced S. 3455, § 359 of which, entitled 'Judicial Proceedings for Declaration of United States Nationality in the Event of Denial of Rights and Privileges as a National,' was the earliest version of what ultimately became § 360 of the 1952 Act. Section 359 provided declaratory relief only for 'any person in the United States.' The Senate Report accompanying that bill, after observing that § 503 of the 1940 Act permitted persons 'within or without' the United States to file declaratory judgment suits, went on to say of proposed new § 359:

'In spite of the definite restrictions on the use and     application of section 503 to bona fide cases (see supra, 369      U.S., pp. 389-390, 82 S.Ct., pp. 799-800), the subcommittee      finds that the section had been subject to broad      interpretation, and that it has been used, in a considerable      number of cases, to gain entry into the United States where      no such right existed. * *  * The subcommittee therefore      recommends that the provisions of section 503 as set out in      the proposed bill be modified to limit the privilege to      persons who are in the United States *  *  * .' (Emphasis      added.)

Read in connection with this report it is surely beyond doubt that the § 503 'privilege' which was intended to be changed was not merely the right to a certificate of identity, which, under the existing statute, was an optional, not a necessary, appurtenance of a declaratory judgment suit, but the right of one abroad to maintain such a suit itself. Since a person 'in' the United States had no need for a certificate of identity, the 'privilege' limited by this bill to persons 'in' the United States can only mean the privilege of bringing a declaratory suit. In other words, the new proposal did not view the 'entry' problem as something that could be dealt with independently of the character of the judicial remedy to be afforded those administratively denied citizenship. This, as will be seen, remained in the forefront of the subsequent legislative discussions.

Early in the following year three additional bills were placed before the Congress, one in the Senate and two in the House. S. 716, a revision of the earlier McCarran bill, and H.R. 2379, introduced by Representative Walter, both provided for 'citizenship' declaratory relief only as to persons 'within the United States.' The third, H.R. 2816, introduced by Representative Celler, afforded such relief to 'any person' (making no reference to location), and in other respects was also substantially like existing § 503.

In the ensuing Joint Hearings on these bills attention became sharply focused on the question of what, if any, judicial relief (other than habeas corpus) should be available to nonresident citizenship claimants. The most revealing points of view are found in the statements submitted on behalf of the Departments of State and Justice. While both Departments took the position that some such relief should be afforded nonresidents, their proposals were quite different. State suggested declaratory relief for persons abroad limited to those whose original citizenship status was not in doubt, but who were deemed to have lost it; and that certificates of identity should be made available to such persons, on an optional basis, to permit their coming to this country in aid of their suits. Justice, on the other hand, recommended that all nonresidents whose claims to citizenship were not frivolous should be required to obtain a special certificate of identity, or its equivalent, so as to permit them to come to this country to test their claims in accordance with normal immigration procedures.

'The Department of Justice objects to the enactment of section 360 unless it is amended to provide for the protection of persons abroad who have more than a frivolous claim to citizenship but who are unable to obtain a United States passport. To protect such persons the Department recommends adding to section 360 language which would permit the issuance to such persons of a special certificate of identity or a special 'visa.' That document should be described in such a manner as merely to authorize the person in question to proceed to a port in the United States and apply for admission as a national, in the usual manner. * *  * However, the intent of this suggestion is that the person claiming citizenship shall be required to apply for admission to the United States at a port of entry and go through the usual screening, interrogation, and investigation, applicable in the cases of other persons seeking admission to the United States, so that the Immigration and Naturalization Service will have as complete a record as possible on each person entering this country claiming to be a national thereof.' Joint Hearings, p. 721. (Emphasis added.) However, it is evident that the proposals of both State and Justice were intended to fill the remedial gap in S. 716 respecting nonresidents; that they contemplated either limiting, or entirely doing away with, the unrestricted declaratory relief available to nonresidents under § 503 of the 1940 statute; that they were envisaged as constituting the exclusive remedy for those living abroad; and that they negative any idea that one so situated was to have the choice between such procedures and the general remedies provided by the Declaratory Judgments Act or the Administrative Procedure Act.

Following the Joint Hearings, the McCarran bill, S. 716, was redrawn as S. 2055, and the Walter bill, H.R. 2379, was revised as H.R. 5678, in consultation with representatives of the State and Justice Departments. The revised McCarran bill adopted the Department of Justice proposals, in effect limiting the judicial remedy for testing nonresident citizenship claims to that afforded in connection with 'exclusion' cases, that is habeas corpus. The new Walter bill was in effect a combination of existing § 503 and the suggestions of the State Department. That bill was eventually passed by the House. The McCarran bill, except for two minor deletions, was reported out by the Senate Judiciary Committee as S. 2550 and passed by the Senate. Supra, 369 U.S., pp. 386-387, 82 S.Ct. p. 798.

Congress, thus squarely faced with making, or not making, declaratory relief available to nonresident citizenship claimants, chose the latter course. It accepted S. 2550, the judicial remedy provisions of which became § 360 of the Immigration and Nationality Act of 1952. Note 1, supra.

In light of this unambiguous course of events, I do not understand how the Government's contention that the District Court lacked jurisdiction over this declaratory judgment action can be successfully challenged, the appellee at all relevant times having resided abroad. To say the least, the Court's contrary conclusion seems to me to rest on the most insecure kind of reasoning.

Certainly, the past cases in this Court lend no support to this decision. Perkins v. Elg, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320, holding that a resident, threatened with deportation, could maintain a declaratory judgment action to establish citizenship, was of course quite in line with Ng Fung Ho v. White, supra. Moreover, the case was decided in 1939, before Congress, for the first time, addressed itself to the availability of declaratory relief in nationality cases. Supra, 369 U.S. p. 389, 82 S.Ct., p. 799. McGrath v. Kristensen, 340 U.S. 162, 71 S.Ct. 224, 95 L.Ed. 173, is even more inapposite. The issue there was simply whether, in the circumstances involved, an alien then in this country was eligible for naturalization, so that the Attorney General had power to stay his deportation. The Court noted that § 503 of the 1940 Act was not available to the alien, since his citizenship status was not in issue. Incidentally, the Court did not reach the applicability of the Administrative Procedure Act. Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435, involved a nonresident alien's right to social security benefits, not citizenship.

Shaughnessy v. Pedreiro, 349 U.S. 48, 75 S.Ct. 591, 99 L.Ed. 868, and Brownell v. Tom We Shung, 352 U.S. 180, 77 S.Ct. 252, 1 L.Ed.2d 225, the two cases relied on by the Court as supporting the applicability of the Administrative Procedure Act in this instance, were, respectively, simply straightforward deportation and exclusion cases, neither involving a citizenship claim. Unlike the sections in the 1952 Act relating to nationality, those governing deportation and exclusion then had no specific provisions dealing with judicial relief, and unlike this case, the relief in those cases was sought only after the administrative process had run its full course, and a 'final' determination had been made by the Attorney General.

When it comes to § 360 itself and the legislative history of the section, the Court's analysis is, if anything, even more cursory and unpersuasive. The Court initially finds that the declaratory judgment provision respecting nonresidents, contained in the predecessor of § 360-s 503 of the 1940 Act-was understood 'to be merely a confirmation of existing law, or at most a clarification of it.' In this, the Court has overlooked the Ju Toy and Ng Fung Ho cases which of course indicate precisely the contrary. Supra, 369 U.S., p. 388, 82 S.Ct., p. 799, and note 6.

Proceeding from that premise, and despite the unequivocal directive in subsection (c) of § 360 that a final determination of the Attorney General denying admission to a citizenship claimant shall be subject to judicial review 'in habeas corpus proceedings and not otherwise,' the Court concludes that such is not indeed the exclusive remedy. This is said to be so because § 360 provides only that the claimant 'may' apply abroad for a certificate of identity (subsection (b)), and upon arrival at our shores 'may' apply for admission (subsection (c)). This conclusion is supported only by a quotation from the District Court's opinion in this very case. It cannot withstand the statute and legislative history already discussed.

Finally, the Court considers that Congress' 'predominate concern' in enacting subsections (b) and (c) of § 360 was with fraudulent entry, not judicial remedies. It is said that this 'seems obvious' because the phrase 'such person,' contained in the extract quoted by the Court from the Judiciary Committee Report on S. 2550 (ante, 369 U.S., pp. 378-379, 82 S.Ct., p. 794), refers grammatically only to those persons who had elected to pursue the certificate of identity procedure in prosecuting their citizenship claims. But this conclusion also will hardly stand up when the full text of the Judiciary Committee Report, especially the clause 'The bill modifies section 503 of the Nationality Act of 1940 by limiting the court action exclusively to persons who are within the United States * *  * ,' is read (supra, 369 U.S., p. 387, 82 S.Ct., p. 798), and the relevant legislative history is considered.

In deciding the jurisdictional issue as it has, I fear that the Court has become the victim of the manner in which it has put that issue to itself:

'More precisely stated, the question in this case is whether,     despite the liberal provisions of the Administrative      Procedure Act, Congress intended that a native of this      country living abroad must travel thousands of miles, be      arrested, and go to jail in order to attack an administrative      finding that he is not a citizen of the United States.'

But to sustain the Government's position on this issue it is not necessary to find that Congress, in enacting § 360, subdenly became severe, irrational, or capricious. As a result of the unfavorable experience with § 503 of the 1940 Act, Congress simply restored, with some alleviations, what until 1940 had been the procedure in such cases-a procedure whose constitutionality had long since been upheld by this Court with the firm support of such men as Holmes and Brandeis, JJ. And in so doing Congress acted only after the fullest inquiry, debate, and deliberation.

I am unable to grasp how the Court could have reached the conclusion that the present declaratory action is not precluded by § 360, except by making its own wish father to the thought.