William J. Brennan, Jr.

“ At the same time Congress recognized the possibility of abuse of this liberalized procedure on the part of nonresident claimants who might seek certificates of identity only to achieve entry into this country, without any thought of pressing their citizenship claims; and an attempt was made to guard against such abuse. Accordingly, the section was written to provide that certificates of identity should be furnished only upon 'a sworn application showing that the claim of nationality presented in such (declaratory judgment) action is made in good faith and has a substantial basis' ”

“ Accordingly, it follows from the interpretation advanced by the dissent that a person abroad who just prior to the adverse administrative action admittedly had been deemed a citizen, entitled to all the incidents of citizenship including the freedom to re-enter the country, may by unreviewable administrative action be relegated to the status of an alien confronted by all the barriers to alien entry and the limited access to judicial review that an alien enjoys. ”

“ Prior to 1940, immigration and nationality statutes were silent on the form and scope of judicial review in deportation, exclusion, and nationality cases. In 1905 this Court, in a habeas corpus proceeding involving an administrative denial of admission to this country of a nonresident citizenship claimant who had temporarily departed, held that due process did not require a judicial trial of the issue of citizenship ”

“ Justice, on the other hand, recommended that all nonresidents whose claims to citizenship were not frivolous should be required to obtain a special certificate of identity, or its equivalent, so as to permit them to come to this country to test their claims in accordance with normal immigration procedures. ”

“ During the debates concern was expressed lest under existing law some persons might not get their 'day in court' with respect to claims to citizenship. 86 Cong.Rec. 13247. This led to the enactment of § 503 under which declaratory relief was made available to resident and nonresident claimants alike, and, in the case of the latter, authorizing, but not requiring, their provisional entry into the United States under certificates of identity, issuable in aid of a declaratory judgment suit already filed. ”

“ To protect such persons the Department recommends adding to section 360 language which would permit the issuance to such persons of a special certificate of identity or a special 'visa.' That document should be described in such a manner as merely to authorize the person in question to proceed to a port in the United States and apply for admission as a national, in the usual manner. ”

“ Necessarily implicit in the administrative denial of a right or privilege of citizenship on the ground that the individual affected has committed an expatriating act enumerated in § 401 of the 1940 Act or § 349 of the 1952 Act, is the assumption that the individual was theretofore a citizen. ”

“ The reason for the modification is that the issue of citizenship is always germane in an exclusion and deportation proceeding, in which case an adjudication of nationality status can be appropriately made. ”

“ On the other hand, it is entirely evident from the questioning of all witnesses that the problem which was uppermost in the minds of the committee members on this aspect of the bills was how best to afford adequate judicial relief to nonresidents under tight controls which would minimize the dangers of abuse. ”

“ Early in the following year three additional bills were placed before the Congress, one in the Senate and two in the House. S. 716, [12] a revision of the earlier McCarran bill, and H.R. 2379, [13] introduced by Representative Walter, both provided for 'citizenship' declaratory relief only as to persons 'within the United States.' The third, H.R. 2816, [14] introduced by Representative Celler, afforded such relief to 'any person' (making no reference to location) , and in other respects was also substantially like existing § 503. ”