Appellant, a citizen of Denmark, entered the United States in August, 1939 under a sixty-day temporary visitor’s visa to attend the New York World’s Fair and to visit his relatives. Caught here by the outbreak of war in Europe, he secured two extensions of stay—each for six months. Before the expiration of the second six-months’ period, ■ he obtained employment, allegedly because of economic necessity, only to find that he had thereby violated the terms of his visa. A warrant of deportation issued against him on May 15, 1941, but was stayed because of the impossibility of travel during hostilities. Meanwhile, as an alien subject to a deportation order, he had filed Form DSS 301 (“Application by Alien for Relief from Military Service”) on or about March 30, 1942 which resulted in his exemption from military service under the Selective Training and Service Act of 1940, as amended in 1941, 50 U.S.C.A.Appendix, § 301 et seq., (cited hereafter as STSA). He subsequently married an American citizen in 1944 and, in 1946, applied for suspension of deportation under the Immigration Act of 1917, as amended, 54 Stat. 672, 8 U.S.C.A. § 155(c), which authorizes the Attorney General, in certain circumstances, to suspend deportation of an alien who is not “ineligible to naturalization.” The Board of Immigration Aрpeals denied his application, according to appellant’s uncontroverted allegation in his complaint, “solely and exclusively” because appellant’s exemption from military service had been secured at the price of a perpetual bar to naturalization. STSA § 3(a), 50 U.S.C.A.Appendix, § 303(a). After exhausting his administrative remedies, appellant sued in the District Court for a declaratory judgment and an injunction against the Attorney General and the Commissioner of Immigration, contending that he was not “residing in the United States” at the time he claimed exemption from sеrvice and therefore STSA § 3(a) is inapplicable to him. Appellant was not in custody at the time he brought suit, nor is he today. The District Court sustained defendant’s motion to dismiss the complaint.
We think the District Court erred. The initial problem posed is not the availability of review but rather the method by which it may be sought. Is habeas corpus the exclusive remedy to test the legality of a de *798 portation order, as appellee insists, or did the Declaratory Judgment and Administrative Procedure Acts add to the available •methods of review?
Before the • enactment of these measures, habeas сorpus was the sole means of questioning the jurisdiction, fairness and conformity to statute of deportation proceedings.
1
But with the passage of the Declaratory Judgment Act, 48 Stat. 955, 28 U.S.C.A. §§ 2201, 2202, the courts were given the power to forestall injury by deciding justiciable cases or controversies at the earliest possible moment. Nor did the use of the declaratory judgment in immigration proceedings await the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq. In 1938 the Supreme Court sustained this court’s decision in Perkins v. Elg, 1938,
In view of the decision in Perkins v. Elg, supra, it may well be that even if the Administrative Procedure Act had not been enacted, declaratory judgment procedure would have been available after a deportation order had been entered against an alien. At any rate, the Elg case disposes of appellees’ assertion that habeas corpus is the exclusive remedy in deportation cases. But § 10 of the Administrative Procedure Act, 60 Stat. 243, 5 U.S.C.A. § 1009 (1948 Supp.) makes it unnecessary to proj ect that line of authority to the present case. That section makes judicial review : available at the suit of
“(a) Any person suffering legal wrong ! because of any agency action, or adversely affected or aggrieved by such action within the meaning оf any relevant statute * * *.
“(b) The form of proceeding for judicial review shall be any special statutory review proceeding relevant to the subject matter in any court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action (including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus) in any court of competent jurisdiction * * *.
“(c) Every agency action made reviewable by statute and every final agency action for which there is no other adequate remedy in any court shall 'be subject to judicial review * * (Emphasis supplied throughout.)
The. only exceptions to this sweeping grant of review authority exist where “(1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion.” 5 U.S.C.A. § 1009 (1948 Supp.). Neither exception is satisfied in this case. The immigration statute does not on its face preclude judicial review but merely states that “the decision of the Attorney General shall be final.” 8 U.S. C.A. § 155(a). Such a statutory declaration of finality, which has not precluded review by way of habeas corpus for a considerable number of years, can hardly qualify now as а bar to review under this statute. United States ex rel. Trinler v. Carusi, 3 Cir., 1948,
Legislative discussion of the second exception, agency action “committed to agency discretion,” similarly reveals no intention to bar the sort of review sought herein. For it was made clear to Congress that “questiоns of law properly presented” were not withdrawn from review. See House and Senate Committee Reports cited supra, reprinted in Sen. Doc. No. 248, 79th Cong., 2d Sess., pp. 212, 275 (1946); statement of Rep. Walter, 92 Con. Rec. 5654 (1946). And since there is no doubt that, if appellant were in custody, habeas corpus would lie to examine into the fairness of the proceedings and their conformity to the governing statutes, it seems obvious that no completely unreviewable discretion has been vested in the Attorney General, within the meaning of the “discretion” exception. United States ex rel. Trinler v. Carusi, 3 Cir., 1948,
In essence, appellees’ contention is that the legislative history of the Administrative Procedure Act evidences an intention to freeze the remedies previously used to test each agency’s actions. Under this view, “any applicable form of legal action (including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus)” would by an unexplained transference process read “the hitherto applicable procedure” and hence codify the case law holding habeas corpus the exclusive remedy in deportation proceedings. 3 We believe, however, that the language of the statute is clear and that it is satisfied by an interpretation which permits the use of any one of the parenthetically enumerated remedies which fits the circumstances of the case then before the court.
Even if the plain meaning of the statutory language were to be ignored and the legislative history examined for a different content, the search would be fruitless. Only when a “special statutory review” exists under § 10(b) is the use of “any applicable form of legal action” restricted. But examinatiоn of the Senate and House reports makes it quite dear that § 10(b)’s reference to “special statutory review” includes only those “common-law forms referred to amd adopted by other statutes as the appropriate mode of review.” House and Senate Committee Reports, cited supra, reprinted in Sen. Doc. No. 248, 79th Cong., 2d Sess., pp. 212-13, 276 (1946). The immigration statute here relevant makes no reference to habeas corpus and hence, that remedy cannot fit within the category of “special statutory review.”
The generally liberal attitude of Congress with regard to the declaratory judg *800 ment procedure is revealed in the explanation of § 10(b) offered by the Senate Committee on the Judiciary: “Although the declaratory judgment ‘proceeding has not yet been extensively used to bring Federal administrative action before the Federal courts, its potentialities are indicated by its wide use in other fields.’ (Final Report, Attorney General’s Committee, p. 81).” Senate Judiciary Committee Print, June 1945, reprinted in Sen. Doc. No. 248, 79th Cong., 2d Sess., p. 37 (1946). Even where j a “special statutory review” existed, it was ! not contemplated that declaratory judgment procedure would be foreclosed. Thus, the House and Senate reports state, “Declaratory judgment procedure * * * may be operative before statutory forms of review are available and may be utilized to determine the validity or application of any agency action.” Id. at 276, 212-13. Hence, its use where there is no “special statutory review” would follow a fortiori.
Our examination of the legislative history brings us to the same conclusion as that reached ’by the Third Circuit in the Trinler case, supra. We hold that the Administrative Procedure Act’s judicial review section was not intended to perpetuate preexisting rigidities in the use of extraordinary legаl remedies but rather to simplify and make more flexible the avenues to judicial relief. 4 Thus viewed, appellant’s suit for a declaratory judgment is well taken if he can prove the existence of a justiciable case or controversy.
Our decision in Kaminer v. Clark, 1949, 85 U.S.App.D.C.-,
That this is a case ripe for judicial cognizance is not seriously challenged by the appellees,' All that remains for appellant Jo do is either to depart voluntarily or to go into custody for deportation. To compel him to go into custody before he can have his rights determined would be to defer to formalism and order the performance of a useless act, an act which may require him to sacrifice his possessions in preparation for leaving the country. As Mr. Justice Douglas pointed out in Estep v. United States, 1946,
The only substantive issue before the District Court concerned appellant’s contention that the Board of Immigration Appeals ruled incorrectly when it held him “ineligible to naturalization” solely because he filed a claim of exemption from military service under STSA § 3(a). The applicable portion of § 3(a) reads:
“Except as otherwise provided in this Act * * *, every male citizen of the United States, and every other male person residing in the United States * * * shall be liable for training and service in the land or naval forces of the United States: Provided, That any citizen or subject of a neutral country shall be relieved from liability for training and service under this Act * * * if, prior to his induction into the land or naval forces, he has made application to be relieved from such liability in the manner prescribed by and in accordance with rules and regulations prescribed by the President, but any person who makes such application shall thereafter be debarred from becoming a citizen of the United States.” 50 U.S.C.A. Appendix, § 303(a). 6
To support his request for relief, appellant urges that he was not “residing in the United States” within the meaning of § 3(a) at the time he filed the exemption form, was thereforе never liable for military service, and hence his claim of exemption does not bar him from naturalization.
It is axiomatic that residence is not a term of fixed legal definition but takes on shades of meaning according to the statutory framework in which it is found. Beale, Residence and Domicil, 4 Iowa L. Bull. 3, 4 (1918); Raymond v. Leishman, 1914,
Appellant’s permit to enter this country as a “temporary visitor” was in the nature of a conditional grant from the sоvereign,
7
subject to revocation the instant he violated the designated status. Schacht v. Young, 5 Cir., 1947,
This view accords with the way in which residence is generally treated under the immigration laws. The nature of an alien’s stay in this country under those statutes takes its meaning from the terms of the original permission to enter and its continued recognition by the sovereign. Thus, time spent here illegally, as аfter the expiration or revocation of a temporary visa, is not credited to the five year residence requirement prerequisite to naturalization. United States v. Kreticos, 1930,
In addition to the fact that the sovereign had withdrawn its consent by issuing a deportation order, there is the additional circumstance that appellant’s continued presence in this country between the time of the order and his claim of exemption was the result of the outbreak of war in Europe. Presence in a foreign land because of war, and the attendant inability to return to one’s own country, does not possess the volitional element which is basiс to residence. Thus, as Judge Learned Hand pointed out, “there is substantial unanimity that, however construed in a statute, residence involves some choice * * * and that presence elsewhere through constraint has no effect upon it.” Neuberger v. United States, 2 Cir., 1926,
Clearly, at the time he registered and subsequently filed Form DSS 301, appellant
*803
had been deprived of the volition necessary to residence because proceedings against him had been completed and he was awaiting the purely ministerial act of deportation. An alien similarly situated was held not to be a “resident” for the purpose of taxation in Florica Constantinescu v. Commissioner of Internal Revenue, 1948,
Appellant’s lack of choice is further illustrated by the fact that even voluntary departure pursuant to the deportation order was unavailable to him because Denmark was under German occupation. Under similar facts, a person who left thе United States to travel in Germany and was caught there by the course of war, was held not to be “resident within” Germany within the meaning of the Trading with the Enemy Act, 50 U.S.C.A.Appendix, § 1 et seq. McGrath v. Zander, 1949, 85 U.S.App.D.C. —,
In all the cases involving liability for military service under § 3(a) of the Selective Training and Service Act which have come to our attention, the aliens held to be “residing in the United States” had lived in this country for long periods of time, were not here under temporary visitor’s visas, and no deportation orders were involved.
8
The only case holding that a “temporary visitor” is “residing in the United States” within the terms of § 3(a) is Benzian v. Gоdwin, 2 Cir., 1948,
We are unable to agree that Congressional use of a term having as rich a lay and legal meaning as “residing” was intended to include all “temporary visitors,” regardless of the surrounding circumstances, or their own attitude and that of our government toward their presence here. Cf. Mertens, op. cit. supra at 249-50. If Congress had meant to make liable to military service “all male persons in the United States,” we do not think that it would have inserted the requirement that such persons be “residing.”
We hold that, absent any showing of acts or declarations indicating an intention to remain at the time the form was filed, the immigration authorities erroneously construed “residing in the United States” when they held it applicable to an alien in this country under a temporary visitor’s visa whose deportation had been ordered and then stayed because of war. Since, under the facts taken to be admitted by the pleadings, appellant was not a resident at the time he filed Form DSS 301, the claim of exemption was without effect and he was not “ineligible to naturalization” solely because of such filing. 13 Of course, our conclusion does not obviate the' *805 requirement that apрellant otherwise comply-with the naturalization statutes.
The judgment below is reversed and the cause remanded to the District Court for appropriate action in accordance with this opinion.
Reversed.
Notes
. Nishimura Ekiu v. United States, 1892,
. The finality of the decision would seem to refer to the administrative process rather than to the Attorney General’s interpretation of the statute under which he operates. As Mr. Justice Holmes pointed out in an exclusion case, Gegiow v. Uhl, 1914,
. This view is expressed in the Attorney General’s Manual on the Administrative Procedure Act 97 (1947).
. The Sixth Circuit came to the same general conclusion in Lincoln Electric Co. v. Commissioner of Internal Revenue, 1947,
. Decisions cited by appellees in -which this court refused to permit use of the declaratory judgment procedure to interfere with the administrative process are therefore inapplicable. Such cases are Miles Laboratories v. F. T. C., 1944,
. The amicus curiae brief filed herein and appellant in his reply brief state that Denmark was not a neutral, citing Military Government Law No. 3, Office of Military Government for Germany (U. S.), Title 23, enacted November 15, 1944, and conclude therefrom that appellant was not covered by STSA § 3(a). It appears, however, that the Selective Service Board classed Denmark as a neutral within this Act beginning March 16, 1942. Local Board Memorandum No. 112. No conclusive detеrmination of Denmark’s status during the period pertinent to this ease has been made by tbe State Department. But since we decide the case on other grounds, consideration of this issue is unnecessary.
. Nishimura Ekiu v. United States, 1892,
. See, e. g., Cervantes v. United States, 9 Cir., 1947,
. Originally, the Act made all “male persons residing in the United States” subject to registration but only those who had declared their intention of becoming citizens were liable to service.
. Crane v. Commissioner of Internal Revenue, 1947,
. No reference is made to the Attorney General’s opinion in the Conference Report of the House and Senate on the 1941 amendment, H.R.Rep.No.1554, 77th Cong., 1st Sess. (1941).
. United States v. Missouri Pac. R. Co., 1927,
. The government suggests that appellant, by filing Form DSS 301, was es-topped from later challenging its validity as applied to Mm. But obviously, as Judge Frank pointed out in the Benzian case, supra,