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February 18, 1948

CLARK, Attorney General

The opinion of the court was delivered by: BLACK

The petitioner has brought this proceeding in this court to obtain a judgment declaring that he is, and since his birth in China and entry thereafter in 1908 into the United States has been, a citizen of the United States. The action is brought pursuant to 8 U.S.C.A. § 903, being Sec. 503 of the Nationality Act of 1940.

The respondent by answer admits the allegations of the petition in part and denies the rest upon information and belief. The respondent's answer further 'admits that the United States does not recognize petitioner as a citizen of the United States' and prays that the petitioner be denied relief.

 The petitioner shortly before commencing this proceeding had ben denied a certificate of derivative citizenship which he had made application for to the Commissioner pursuant to 8 U.S.C.A. § 739, which is referred to by the Department in its ruling as Sec. 339 of the Nationality Act of 1940.

 In exhibit 1 admitted in this case and being one of the Immigration and Naturalization Department files relating to the petitioner, the position of the respondent is set forth in a ruling dated September 23, 1947. In such it is stated:

 'The certificate was denied because this Service was not satisfied that the petitioner had established the claimed relationship to a citizen. * * *

 'The proceedings in the instant case is a mere denial of an application for a certificate of citizenship. The applicant does not allege any threat of deportation and such an allegation could be overcome by the showing that he has remained here many years without deportation proceedings being instituted against him. It is a case in which the Service is not satisfied whether the man is a citizen or not; hence, takes no steps to furnish him evidence that he is a citizen or any step towards deporting him as an alien. * * *

 'In this case it is the function of the court to decide the question of fact as well as of law whether this petitioner is a citizen of the United States.'

 The position of the Department and the respondent as set forth therein is that the burden of proof is upon the petitioner to affirmatively establish his citizenship. And in conclusion it is stated in such ruling:

 'Furthermore, if the decree of the court is that the petitioner is a citizen, the decree has the same effect as is given by section 327 of the Nationality Act of 1940 to a certificate of citizenship issued by the Commissioner under section 339 of that act.'

 It is alleged by the petitioner and conceded by respondent that the court has jurisdiction of the proceeding under said*U.S.C.A. § 903 aforesaid. This court coincides with such views as to its jurisdiction. The authority of the court under such section was declared in Brassert v. Biddle, Attorney General, 2 Cir., 148 F.2d 134, 136, where the court said:

 'The District Court raised question of its own jurisdiction to proceed under 8 U.S.C.A. § 903, which provides for a judicial declaration that one is 'a national of the United States' upon denial of rights and privileges as such, pointing out that 'national' may be a more inclusive term than 'citizen.' But it concluded that its jurisdiction was complete under the Declaratory Judgments Act. 28 U.S.C.A. § 400; Perkins v. Elg, 307 U.S. 325, 350, 59 S. Ct. 884, 83 L. Ed. 1320, modifying and affirming 69 App.D.C. 175, 99 F.2d 408. While we agree that the latter Act might be a sufficient basis for the judgment we think it too narrow a reading of the procedure set forth in the Nationality Act itself to hold it unavailable here. One of the two statutory definitions of 'national of the United States' is 'a citizen of the United States,' 8 U.S.C.A. § 501(b), and, when nationality depends upon and is identical with citizenship, Sec. 903 appears to be applicable according to its direct wording.'

 While the respondent's contention, as stated above, is that the burden of proof is upon the petitioner, the petitioner insists that the burden is upon the respondent.

 The respondent, over petitioner's objection, introduced in evidence the Immigration and Naturalization files with respect to individuals coming from China after the admission of the petitioner in 1908. Theses subsequent Immigration and Naturalization files related to individuals whom the alleged father of the petitioner had sought to have admitted as his children and ultimately succeeded, at least as to four of them. In such later proceedings, to which the petitioner was not a party and concerning which he had no notice, the petitioner's alleged father and these various applicants all denied any kinship to or knowledge of this petitioner.

 The petitioner, having been admitted in 1908 at San Francisco as the Chinese-born son of an American-born father, contends under Fong Lum Kwai v. United States, 9 Cir., 49 F.2d 19, and Chun Kock Quon v. Proctor, 9 Cir., 92 F.2d ...

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