Joseph Frank, Appellant, v. William P. Rogers, Attorney General of the United States, Appellee, 253 F.2d 889 (D.C. Cir. 1958)

Section 10, in pertinent part, provides:

"Sec. 10. Except so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion —

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"(e) Scope of review. — So far as necessary to decision and where presented the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of any agency action. It shall (A) compel agency action unlawfully withheld or unreasonably delayed; and (B) hold unlawful and set aside agency action, findings and conclusions found to be (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) contrary to constitutional right, power, privilege, or immunity; (3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (4) without observance of procedure required by law; (5) unsupported by substantial evidence in any case subject to the requirements of sections 7 and 8 or otherwise reviewed on the record of an agency hearing provided by statute; or (6) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations the court shall review the whole record or such portions thereof as may be cited by any party, and due account shall be taken of the rule of prejudicial error." (Italics supplied.)

The italicized words are clearly broad enough to permit a trial de novo of the issue of citizenship in cases like the present. The test normally applied in judicial review of deportation proceedings is whether the agency's "action, findings, and conclusions" are "supported by substantial evidence." See Attorney General's Manual on the Administrative Procedure Act 110 (1947), citing United States ex rel. Vajtauer v. Commissioner, 1927, 273 U.S. 103, 106, 47 S. Ct. 302, 71 L. Ed. 560, and Bridges v. Wixon, 1945, 326 U.S. 135, 149, 65 S. Ct. 1443, 89 L. Ed. 2103. In general, of course, Section 10 (e) (6) refers "to those existing situations in which judicial review has consisted of a trial de novo." Manual, 109-110, giving examples. But, as the Manual goes on to point out, at note 22, page 110, in review of deportation proceedings "a judicial trial de novo may be had on the issue of citizenship," citing Kessler v. Strecker, 1939, 307 U.S. 22, 35, 59 S. Ct. 694, 83 L. Ed. 1082.

Not only is the language of Section 10 comprehensive enough to allow a de novo trial of the issue, but we find nothing in the language of Section 360 to support the District Court's view that appellant could obtain a trial de novo of his claim of citizenship only in a suit under the latter Section.¹  Congress did not indicate that it intended any such result. The predecessor statute, Section 503 of the Nationality Act of 1940, 54 Stat. 1171, 8 U.S.C. § 903 (1946), appears to have been chiefly designed to aid persons outside the United States who had been denied recognition as American citizens, and to clarify the rights of similarly situated persons inside the United States.²  Section 360 of the 1952 Act was patterned after Section 503 of the 1940 Act, but was limited in its application to persons "within the United States." Neither Section 360 nor its predecessor recites that the remedy there given is to be exclusive, or that when the issue of citizenship is necessarily involved in another proceeding, it may not be there considered, or that existing remedies are to be denied: in fact, the legislative history of the predecessor statute indicates the contrary.³ 

In habeas corpus, as we have noted, the issue of the citizenship of a person sought to be deported has always been subject to inquiry, and on such an issue the petitioner in habeas corpus is entitled to a judicial trial de novo. Ng Fung Ho v. White, supra; Kessler v. Strecker, supra, 307 U.S. at page 35, 59 S. Ct. at page 700.⁴  The present suit is not, of course, a petition for habeas corpus: it seeks review under Section 10 of the Administrative Procedure Act. But clearly the same considerations should govern. The Supreme Court has held that habeas corpus is not the sole remedy available to an excluded alien under the 1952 Act: he can bring suit for a declaratory judgment under Section 10 of the Administrative Procedure Act, and can secure relief of the same scope on the merits as habeas corpus would provide. Brownell v. We Shung, 1956, 352 U.S. 180, at pages 183-184, 186, 77 S. Ct. 252, 1 L. Ed. 2d 225. Parity of reasoning calls for a similar result in deportation cases. See Rubinstein v. Brownell, 1953, 92 U.S.App.D.C. 328, 206 F.2d 449, affirmed by an equally-divided Court, 1954, 346 U.S. 929, 74 S. Ct. 319, 98 L. Ed. 421; United States ex rel. Brzovich v. Holton, 7 Cir., 1955, 222 F.2d 840. Cf. Cruz-Sanchez v. Robinson, 9 Cir., 1957, 249 F.2d 771.

We hold that the issue of citizenship, properly raised, is to be tried de novo in a suit under Section 10, if plaintiff so requests.

For these reasons, the judgment of the District Court must be reversed, and the cause remanded for further proceedings not inconsistent with this opinion. We do not reach the other contentions of the parties.

So ordered.