The opinion of the court was delivered by: FORMAN
The plaintiff in this suit is Nicholas Delmore, also known as Nicholas Amoruso, a resident of Freehold, Monmouth County, New Jersey, within the jurisdiction of this court. He names as defendants, Honorable Herbert Brownell, Attorney General of the United States, in his capacity as head of the Immigration and Naturalization Service, Department of Justice, and agency of the United States Government, and Raymond G. Hoffeller, as Agent in Charge of the Immigration and Naturalization Office at Newark, New Jersey.
In his complaint the plaintiff alleges, among other things:
That he acquired United States citizenship by virtue of his birth in San Francisco, California, on December 25, 1888 and that as a small child he was taken to Italy by his parents where he remained for several years and then returned to the United States where he has lived continuously for over fifty years;
that for the purpose of clarifying his status, on the advice of an attorney, prior to October 5, 1942, he presented himself to an official of the United States Immigration and Naturalization Service at Philadelphia, Pennsylvania, and requested that an investigation be conducted into his citizenship status and that it be adjudicated, so that he 'could conduct himself according to law';
That on October 5, 1942, the Commissioner of Immigration and Naturalization made an 'adjudication' that plaintiff was a citizen of the United States, and a copy of such 'adjudication' is annexed to the complaint;
that despite the aforesaid 'adjudication' on January 27, 1953, a warrant of arrest was issued against plaintiff charging him with being an alien illegally in the United States, based upon his re-entry into the United States at Miami, Florida, on January 2, 1952, after a brief visit to Cuba, and on September 3, 1953, following a hearing, an order was made by a Special Inquiry Officer of the Immigration and Naturalization Service declaring plaintiff to be an alien and that he be deported on the grounds (1) that he illegally entered the United States on or about January 2, 1952 from Cuba and (2) that he so entered the United States without inspection;
that the plaintiff appealed these findings to the Board of Immigration Appeals which affirmed them;
that the findings of the Special Inquiry Officer, affirmed as aforesaid, were based upon improper and incompetent evidence and 'unfounded assumptions and procedures' which constitute a denial of due process of law and
that as a result of the action against him a warrant has been issued for the immediate deportation of the plaintiff to Italy and unless restrained the defendants and their agents will deport him to his irreparable injury.
In their answer the defendants, among other things, deny that the plaintiff acquired United States citizenship by being born in San Francisco, California, and that the Commissioner of Immigration and Naturalization of the United States made an adjudication that he is a citizen of the United States on October 5, 1942. They admit that plaintiff was required to respond in deportation proceedings and that a deportation order has been entered against him based upon the finding that he is an alien.
The case turns on the factual issue of whether the plaintiff left this country and re-entered as an alien in violation of 8 U.S.C.A. § 155(a) (now 8 U.S.C.A. § 1251(a)(2)), or whether he is, as he insists, a United States citizen by birth. Because the issue is framed in terms of plaintiff's status as a United States citizen he is entitled under 8 U.S.C.A. § 1503 to bring this action for a trial de novo on that issue free from the burden of overcoming a prior administrative finding. Wong Wing Foo v. McGrath, 9 Cir., 1952, 196 F.2d 120; Mah Ying Og v. McGrath, 1950, 88 U.S.App.D.C. 87, 187 F.2d 199.
Plaintiff, of course, has the burden of proving his citizenship, but he need do this by no more than a preponderance of the evidence. Lee Shew v. Brownell, 9 Cir., 1955, 219 F.2d 301. While plaintiff carries the ordinary burden of proof, once he makes a prima facie case of citizenship the government's rebuttal must be by clear, unequivocal, and convincing evidence. Lehmann v. Acheson, 3 Cir., 1953, 206 F.2d 592, 598-599; Monaco v. Dulles, 2 Cir., 1954, 210 F.2d 760; Rueff v. Brownell, D.C.N.J.1953, 116 F.Supp. 298, 307; Gensheimer v. Dulles, D.C.N.J.1954, 117 F.Supp. 836, 839; Ah Kong v. Dulles, D.C.N.J.1955, 130 F.Supp. 546. It is true that in all but the latter of these cases the government was required to establish by evidence of that quality the expatriation of one who had concededly once been a citizen of the United States. Ah Kong v. Dulles was a suit to establish citizenship as the son of an American father and the same quality of proof was demanded of defendant. Since the heavier burden placed upon the government is in recognition of the preciousness of American citizenship, fundamental fairness requires that it bear that burden in every case where a claim to citizenship is to be torn down. It is the rule where a plaintiff's claim to citizenship is to be disproved by evidence of expatriation (cases cited, supra), and in denaturalization proceedings the government also is required to carry the heavier burden of proof. Knauer v. United States, 1946, 328 U.S. 654, 657, 66 S. Ct. 1304, 90 L. Ed. 1500; Schneiderman v. United States, 1943, 320 U.S. 118, 124-125, 63 S. Ct. 1333, 87 L. Ed. 1796. It follows that the same rule should govern in this case.
Plaintiff claims to have been born in San Francisco, California, on December 25, 1888. The government's case places his birth at Nicosia, in Sicily, Italy, on December 23, 1891. Plaintiff admits spending his childhood in Italy, but asserts that he was taken there by his parents shortly after his birth.
Plaintiff began his presentation of evidence with an attempt to bring himself under the rule that a prior determination of citizenship by the Immigration and Naturalization Service constitutes a prima facie case in a later litigation over the issue:
'If the alien in compliance with his duty to go forward with the evidence presents evidence that the immigration authorities have previously determined that the alien is a citizen of the United States * * * the alien establishes a prima facie case which is sufficient to satisfy the statute, in the absence of contrary evidence, and which shifts to the government the duty to go forward with the evidence.' Wong Kam Chong v. United States, 9 Cir., 1940, 111 F.2d 707, 710. See also McGrath v. Chung Young, 9 Cir., 1951, 188 F.2d 975, 977.
During World War II, so plaintiff testified, he was asked to produce his birth certificate. He had none and consulted Eugene A. Liotta, a member of the bar of New Jersey, who advised him to travel to California to try to find a record of his birth. Plaintiff made this trip, but it was a fruitless one. Following this Mr. Liotta made inquiry of the Immigration Service and addressed the following letter to it:
'Bureau of Immigration and Naturalization 'Franklin Street 'Philadelphia, Pa. 'Gentlemen:
'I beg to advise that I represent one Nicholas Delmore, born at San Francisco, California, on December 25th, 1888, the son of Luigi Amoruso and Providenzia Amoruso. The mother and father of Delmore were born at Necosia, Sicily, Italy. During Delmore's infancy his parents migrated to Italy and took ...