206 F.2d 870 | 9th Cir. | 1953
Lead Opinion
This is an appeal from an order of the United States District Court for the Southern District of California, discharging a writ of habeas corpus.
The question raised by this appeal is whether one who is claiming to be a United States citizen must first exhaust his administrative remedies in deportation proceedings before the question of citizenship may be raised by habeas corpus.
The allegations of the pleadings reveal that Florentine was born on March 18, 1911, in Los Angeles, California. The Director claims that Florentine expatriated himself under Section 401 (j) of the Na
The district court concluded that the restraint which existed on Florentine as a result of the order of conditional parole was not sufficient to invoke the jurisdiction of the court on a writ of habeas corpus and ordered the writ previously issued to be discharged.
Florentine had had a full hearing on the deportation proceedings, but they had been reopened at his request. The petition below was filed while the deportation proceedings thus reopened were pending before the Service. Under these circumstances the petition for the writ should have been dismissed as premature. United States v. Sing Tuck, 194 U.S. 161, 24 S.Ct. 621, 48 L.Ed. 917; U.S. ex rel. Russo v. Thompson, 2 Cir., 188 F.2d 244, certiorari denied, 341 U.S. 954, 71 S.Ct. 1005, 95 L. Ed. 1376; U. S. ex rel. Zdunci v. Uhl, 2 Cir., 144 F.2d 286, 287.
There is no merit to Florentine’s claim that the fact that he is claiming United States citizenship gives him a right to institute this habeas corpus proceeding without regard to the status of the administrative proceeding. As was stated in United States v. Sing Tuck, supra, 194 U. S. at page 168, 24 S.Ct. at page 623, “ * * * it is one of the necessities of the administration of justice that even fundamental questions should be determined in an orderly way. If the allegations of a petition for habeas corpus setting up want of jurisdiction, whether of an executive officer or of an ordinary court, are true, the petitioner theoretically is entitled to his liberty at once. Yet a summary interruption of the regular order of proceedings, by means of the writ, is not always a matter of right.” He,re Florentine is not imprisoned, and if he is successful in his pending proceedings, he will not be. No special circumstances exist why the orderly way provided by Congress to raise the fundamental question of citizenship through the administrative proceedings should not be pursued. They should be carried through to completion before a habeas corpus proceeding may be instituted. Even where a person claiming citizenship is permitted to bring an action for declaratory relief in order to determine citizenship, the administrative renn edies must first be exhausted. Cf. McGrath v. Kristensen, 340 U.S. 162, 169, 71 S.Ct. 224, 95 L.Ed. 173.
The judgment of the district court is ordered affirmed.
Concurrence Opinion
(concurring).
I concur in the opinion of the Court. In the instant case questions of fact were presented for determination' in the deportation action. Under such circumstances the administrative proceedings must be ex
I would further affirm on the ground relied on by the trial court that the restraint upon the person of the petitioner by virtue of the order, of conditional parole was not sufficient to invoke the jurisdiction of the court on a writ of habeas corpus. Stallings v. Splain, 1920, 253 U.S. 339, 40 S.Ct. 537, 64 L.Ed. 940; In re Rowland, D. C.W.D.Ark. 1949, 85 F.Supp. 550, affirmed, 8 Cir., 1950, 179 F.2d 709, certiorari denied, 339 U.S. 952, 70 S.Ct. 841, 94 L.Ed. 1365; Sibray v. United States, 3 Cir., 1911, 185 F. 401.