A-6420754 A-6726086 A-6726088
Decided by Board February 21, 1957
Evidence — Res judicata — Collateral estoppel — Differing burden of proof in suit for declaratory judgment and in deportation proceedings.
(1) A suit under section 503 of the Nationality Act of 1940 for a judgment declaring respondent to be a national of the United States is not the same cause of action as a proceeding to deport respondent. Hence, the doctrine of res judicata cannot be invoked in the deportation proceeding as settling the issue of alienage, notwithstanding the court's dismissal of the declaratory judgment suit.
(2) Because of the different burden of proof involved, the doctrine of collateral estoppel does not render conclusive in the deportation proceeding the findings as to expatriation made by the court in dismissing respondent's suit for declaratory judgment.
(3) In his action for a judgment declaring him to be a national of the United States, the respondent had the burden of proving his case by a preponderance of the evidence. In the deportation proceeding, the Government has the burden of proving alienage; and where it is shown that respondent acquired United States citizenship by birth in the United States, the Government must prove expatriation by clear, unequivocal and convincing evidence.
CHARGE:
Warrant: Act of 1952 — Section 241 (a) (1) ( 8 U.S.C. 1251 (a) (1)) — Excludable at entry under 8 U.S.C. 213 (a), 1946 ed. — No immigration visa (all respondents).
BEFORE THE BOARD
Discussion: On October 26, 1956, the special inquiry officer ordered that the proceedings be terminated and the record has been certified to us for review. During oral argument, the Service representative requested that the decision of the special inquiry officer be reversed and that deportation of the respondents be directed.
The respondents are a 62-year-old male, his 59-year-old wife, and their daughter, who is 22 years of age. The male respondent was born at New York, New York, of parents who were German nationals, and the two other respondents were born in Germany. All claim to be United States citizens — the male respondent by virtue of birth in the United States; his wife, by reason of her marriage to him on August 14, 1920; and their daughter, in accordance with section 1993 of the Revised Statutes (8 U.S.C. 6). The respondents last arrived in the United States on October 21, 1946. They had United States passports but were excluded by a board of special inquiry on the ground that they were aliens who were not in possession of immigration visas. That decision was affirmed by the Acting Commissioner on August 20, 1947. On June 23, 1948, this Board reversed the Acting Commissioner's decision and ordered that the respondents be admitted as citizens of the United States.
In 1952, the male respondent filed an action against the Secretary of State under section 503 of the Nationality Act of 1940 (8 U.S.C. 903) for a judgment declaring him to be a national of the United States and requiring the defendant to issue a United States passport to him. This suit was dismissed on May 11, 1953. Thereafter, the present proceedings were instituted.
Counsel for the respondents does not contend that they were in possession of immigration visas when they applied for admission to the United States in 1946, and the question of whether the respondents were then aliens or citizens is the principal issue for determination. Since we are here considering a deportation proceeding, the question resolves itself into whether the Government has sustained its burden of proving that the respondents are deportable. The Service contends that, under the doctrine of res judicata, the male respondent must be considered an alien because of the dismissal of the suit under 8 U.S.C. 903. The Service further contends that, if he is an alien, the female respondents are also aliens because they claim derivative citizenship through him. The latter proposition would, of course, be dependent upon whether the male respondent's asserted expatriation occurred prior to the date when the female respondents acquired citizenship.
In his order terminating the proceedings, the special inquiry officer relied on In re Joslyn's Estate, 171 F. (2d) 159 (C.A. 7, 1948), and Winkelman v. General Motors Corporation, 48 F. Supp. 490, 494 (S.D.N.Y., 1942). The latter case involved the question of whether the filing of the court's decision was tantamount to a judgment, and the court said that until judgment was actually entered its decision was not a judgment. In re Joslyn's Estate, supra, does contain a statement that findings of fact carry no finality from which an appeal can be taken and are not res judicata of the facts so found. However, it is clear from the opinion (p. 165) that the court was referring to certain findings of fact which were not essential to the question under consideration in the prior judicial decision. Hence, we do not regard these cases as being analogous to the case of the male respondent.
Before discussing the specific questions involved, it appears appropriate to distinguish between the doctrine of res judicata and a related doctrine. It is well settled that under the doctrine of res judicata a judgment on the merits in a prior suit bars a second suit between the same parties on the same cause of action, and that under the doctrine of collateral estoppel by judgment there is precluded relitigation of issues actually litigated and determined in the prior suit regardless of whether it was based on the same cause of action as the second suit ( Lawlor v. National Screen Service Corporation, 349 U.S. 322, 326 (1955); Cromwell v. County of Sac, 94 U.S. 351, 352-353 (1876)). It is clear that the proceeding to deport the male respondent is not the same cause of action as his suit for a judgment declaring him to be a national of the United States. Hence, the doctrine of res judicata is not involved but consideration must be given to the doctrine of collateral estoppel by judgment.
In the male respondent's suit against the Secretary of State, judgment was entered on May 11, 1953, and the order of the court reads as follows: "ORDERED and ADJUDGED that the complaint herein be and the same is hereby dismissed, on the merits, against the defendant, and that the said defendant have and recover from the plaintiff the sum of $20 costs as taxed" (exh. 12). The findings of fact and conclusions of law in that proceeding appear in a document marked exhibit 6 of the present record. There are 41 findings of fact, including findings that the plaintiff (the male respondent) was born in the United States; that he served in the German army from November 1914 to July 1915; that it was the regular practice to require all soldiers in the Germany army in 1914 and 1915 "to take an oath of allegiance to the German state or a symbol thereof"; that between November 1914 and July 1915, "plaintiff swore an oath of allegiance to the foreign State of Germany or a symbol thereof"; that in 1930 he voluntarily joined the Nazi Party and remained a member until 1944; that all persons joining the Nazi Party were required to take an oath of allegiance to Adolph Hitler and to the Nazi Party; and that the plaintiff renewed this oath at least once after 1933. The conclusions of law were as follows:
1. That by reason of plaintiff's having voluntarily taken an oath of allegiance to the Emperor of Germany, incident to his service in the German army during the period from November 1914 to June 1915, and by reason of his subsequent conduct after reaching majority ratifying such oath, he expatriated himself from citizenship of the United States of America under section 2 of the Nationality Act of 1907.
2. That, in any event, had the plaintiff not expatriated himself as stated in paragraph 1 hereof, his subsequent voluntary membership in the Nazi Party from 1930 to 1944, incident to which he repeatedly and continuously, by oaths and otherwise, manifested his allegiance to Adolph Hitler, both in his capacity as Fuehrer or Leader of the Nazi Party, and in his capacity as Fuehrer or Leader of the German Reich, would have similarly effectuated his expatriation from United States citizenship under section 2 of the Nationality Act of 1907.
3. That, irrespective of, and apart from the foregoing findings of fact and conclusions of law, the complaint should be and is dismissed for want of equity, in that it appears that the plaintiff has refused, on grounds of possible self-incrimination, to answer relevant questions relating to his allegiance to the United States and to his credibility as a witness, and on the further cumulative ground that he has in this proceeding admitted that he made false statements to achieve a favorable result in a prior court proceeding in Germany dealing with his nationality status.
Counsel contends that the dismissal of the suit was actually on the grounds mentioned in the third conclusion of law; that the first and second conclusions do not refer to the dismissal of the suit on those grounds; and that the findings of fact relating to the first 2 conclusions of law are not essential to the judgment. It is true that where the causes of action are different, as in the instant case, a prior judgment between the parties operates as an estoppel in the second suit "only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered" ( Partmar Corporation v. Paramount Pictures Theatres Corporation, 347 U.S. 89, 91 (1954); Cromwell v. County of Sac, supra, at page 353). Hence, if we were to hold that the judgment was, in fact, rendered on the grounds mentioned in the third conclusion of law, it would seem that the findings of fact relating to foreign oaths of allegiance in 1914 or 1915, 1930 and "after 1933" would not be essential to the judgment.
An immigration case which illustrates that it is only the findings essential to the judgment, which operates as an estoppel, is Mannerfrid v. Brownell, 145 F. Supp. 55, aff'd 238 F. (2d) 32 (C.A.D.C., 1956). Mannerfrid filed a petition for naturalization which was denied by the court in 1951 on the ground that he was an alien ineligible to citizenship. The court's written opinion contained the specific statement that Mannerfrid was lawfully admitted into the United States for permanent residence on April 5, 1949 ( Application of Mannerfrid, 101 F. Supp. 446 (S.D.N.Y., 1951)). In affirming the order denying the petition, the Court of Appeals also stated that he had been admitted as a permanent resident in April 1949 ( Mannerfrid v. United States, 200 F. (2d) 730 (C.A. 2, 1952), cert. den. 345 U.S. 918). In 1953, deportation proceedings were instituted against Mannerfrid on the ground that his admission to the United States on April 5, 1949, and his subsequent reentries were not lawful admissions because in 1949, and thereafter, he was excludable as an alien ineligible to citizenship. In Mannerfrid v. Brownell, supra, the court rejected the contention of Mannerfrid's counsel that the earlier decision, finding that he had been lawfully admitted for permanent residence on April 5, 1949, constituted judicial res judicata which precluded the Government from proceeding on the basis of the illegality of that entry. This was because a determination of whether Mannerfrid had been lawfully admitted in 1949 was not essential to the 1951 decision denying his petition for naturalization.
We decline to base our decision on counsel's proposition that the findings of fact concerning the taking of foreign oaths of allegiance were not determining factors in the judgment which was rendered. Instead, we conclude that the doctrine of collateral estoppel by judgment does not render conclusive the findings mentioned because of the different burden of proof involved in the male respondent's action and in the present deportation proceeding. We will discuss later herein the reasons which have impelled us to this conclusion.
During the oral argument, the Service representative cited, among other cases, Estevez v. Nabers, 219 F. (2d) 321 (C.A. 5, 1955), and Matter of Z----, A-8302063, 5 IN Dec. 708 (1954). In the Estevez case all of the facts are not apparent from the court's opinion and we have examined our decision of December 15, 1953, in the same case. Estevez was a native and citizen of Honduras who on May 14, 1953, applied for temporary admission to the United States for 3 months as a visitor. A special inquiry officer found that he had been admitted for permanent residence in 1943 and departed from this country in 1950 for the purpose of avoiding United States military service. That officer concluded that the alien was inadmissible under 8 U.S.C. 1182(a) (22), and we concurred in that conclusion in our order of December 15, 1953, but authorized the alien's temporary admission under the discretion contained in 8 U.S.C. 1182 (d) (3).
Estevez thereafter filed an action to review the exclusion order which action was dismissed on the ground that there was no justiciable controversy. While the subsequent court decision does not show the basis for the original disposition of the case, it is possible that it was due to the fact that the alien had applied only for temporary admission and had, in fact, secured temporary admission under the order of this Board dated December 15, 1953. The alien remained beyond the period of his authorized admission and deportation proceedings were instituted. He then filed another suit to secure a review of the exclusion order alleging that a controversy then existed because of the order of deportation which had been entered.
The District Court dismissed the second suit of Estevez on the ground that the matter was res judicata and this judgement was affirmed in Estevez v. Nabers, supra. In its decision, the Court of Appeals stated that the cardinal principle which was involved was that the second action was precluded unless the new allegations made therein supply a material deficiency of the complaint in the first action. The court then commented on the fact that, in the alien's two suits, the first 16 paragraphs were identical and that the only additional matters alleged in the second suit were the bringing and dismissal of the first action, plaintiff's arrest and the deportation order. The court concluded that these additional matters were not such as would create a controversy where none had previously existed. In other words, the causes of action in both suits were the same and this was demonstrated by the fact that the complaints were identical with the exception of the matters which arose after the first action had been filed. Hence, the Estevez case was purely a question of applying the doctrine of res judicata; there were no findings of fact in the first suit (since the court decided that there was not even a justiciable controversy); and the case is not of assistance in arriving at a decision concerning the male respondent, since here we have involved the doctrine of collateral estoppel by judgment rather than res judicata. Matter of Z----, supra, bears a certain analogy to the case of the male respondent. In that case we held that a person who was convicted of procuring an immigration visa by the false statement of a material fact was thereafter estopped in a deportation proceeding from denying that the visa was so obtained. We specifically said there that the court in the criminal action found it had been established beyond a reasonable doubt that the visa which was issued to that alien was obtained by the false statement of a material fact and that the same question was before us in the deportation proceeding in which it was necessary for the Government to prove the issue by a mere preponderance of the evidence. Hence, Matter of Z---- is not only distinguishable but it indicates that burden of proof must be considered in determining the conclusiveness of findings of fact made in another proceeding.
We believe that the relevance of the burden of proof element in cases involving collateral estoppel by judgment is clearly demonstrated by the rule that an acquittal in a criminal case will not bar a subsequent civil suit based upon the same facts as in the criminal proceeding ( Helvering v. Mitchell, 303 U.S. 391, 397 (1938); Lewis v. Frick, 233 U.S. 291, 301-302 (1914); Stone v. United States, 167 U.S. 178, 188-189 (1897)). In each of these cases the Supreme Court specifically commented on the greater degree of proof required of the Government in a criminal proceeding than that required in a civil proceeding, and it is clear that the conclusion which the court reached was to a large extent predicated on that factor. In Helvering v. Mitchell, supra, the court specifically said: "The difference in degree of the burden of proof in criminal and civil cases precludes application of the doctrine of res judicata." Where a different burden of proof existed in 2 civil suits arising out of an accidental death, it was held that a finding that the deceased was not guilty of contributory negligence in the first suit was not binding upon that issue in the second suit ( United States Fire Insurance Co. v. Adirondack Power Light Corporation, 206 App. Div. 584, 201 N.Y.S. 643 (1923)).
When the male respondent filed his suit under 8 U.S.C. 903, he had the burden of proving his case by the preponderance of the evidence, and the effect of the judgment dismissing his suit may mean no more than that he failed to sustain that burden of proof. As in the cases cited above, where there had been an acquittal in a criminal proceeding, it does not necessarily follow that the dismissal of the male respondent's suit requires a conclusion that the Government has sustained its burden of proof in a deportation proceeding since 8 U.S.C. 1252 (b) (4) specifically provides that no decision of deportability shall be valid unless it is based upon reasonable, substantial and probative evidence. We will later refer to court decisions regarding the high standard of proof required of the Government in cases involving the alleged expatriation of native-born citizens. In view of the judicial decisions cited and the different burden of proof existing in the declaratory judgment action and in the deportation proceeding, it is our considered opinion that the doctrine of collateral estoppel by judgment does not operate to make the court's findings of fact in the male respondent's suit conclusive against him in the deportation proceeding.
Having concluded that the court's findings of fact in the male respondent's suit are not alone sufficient to establish the Government's case, we turn to a consideration of the present record in order to determine whether the Government has sustained the burden of proving alienage and deportability. It is not disputed that the male respondent was, in fact, born in New York City on May 10, 1894. In 1898, he was taken to Germany by his parents. He came back to the United States about September 1913, and returned to Germany about September 1914. A letter of the State Department dated January 27, 1936, shows that he obtained a United States passport in New York City on August 29, 1914, and that other United States passports were issued to him in Germany during 1916 and 1924. The male respondent remained in Germany from about September 1914 until his return to the United States on October 21, 1946.
Exhibit 5 of the present record contains copies of this Board's letter of May 11, 1948, and the reply of the Department of State on June 4, 1948, which had been received prior to our decision of June 23, 1948. Our letter of May 11, 1948, specifically stated that it was understood from a telephonic conversation with an officer of the State Department that the male respondent took an oath of allegiance to Adolph Hitler subsequent to 1933. The State Department's reply and a copy of a consular letter of September 26, 1946, show that, in connection with the issuance of the United States passport in 1946, the American consular officer at Munich, Germany, informed the Department that the male respondent belonged to the Nazi Party from 1930 to 1944, and that "according to the best available evidence" he took an oath to the Party in August 1930, and none after December 1, 1933. The State Department in its letter said that the Nazi Party was not an integral part of the German state when Mr. H---- took the oath to the Party in 1930. Hence, it seems clear from this portion of the State Department's letter that it did not consider that the male respondent had become expatriated by reason of the taking of an oath of allegiance to the Nazi Party, and that the State Department did not have information that he took an oath of allegiance to Hitler after 1933. In view of the phrase quoted above, there is evidently no concrete evidence that he even took an oath to the Party in August 1930. The male respondent denied ever having taken an oath of allegiance to Hitler or to any other person during his membership in the Nazi Party. We have found no evidence in the present record that the male respondent took such an oath after 1933.
The State Department's letter of June 4, 1948, also contains the statement that the male respondent served in the German army from October 1914 to July 1915; that the Department had not been aware of such service prior to December 17, 1946; and that moreover, "on November 23, 1923, Mr. H---- stated under oath in part at the Consulate at Stuttgart, Germany, that `At the entrance of the United States into the War I was treated as an American citizen and not forced into the German Army'." The significance of the latter statement is not apparent to us since the United States entered World War I on April 6, 1917; the male respondent served in the German army from October 1914 to July 1915; and there is nothing to indicate that he was forced into the German army or served therein after April 1917.
On June 4, 1948, the State Department also informed us that it had on May 8, 1947, informed its consular officer concerning the approval of his report of expatriation "upon the grounds that by his protracted residence in Germany after reaching his majority and his membership in the Nazi Party Mr. H---- confirmed the usual oath of allegiance to Germany which he obviously took in connection with his service in the German army during his minority." A copy of the report of expatriation dated December 16, 1946, is contained in exhibit 5. It asserts that the male respondent became expatriated by taking an oath of allegiance to Germany; that the evidence consists of the fact that he served in the German army from October 1914 to July 1915; and that, "Lacking evidence to the contrary it is assumed that an oath of allegiance to Germany was taken in connection with this army service."
When the male respondent was first questioned on November 12, 1946, he readily admitted having served in the German army during World War I. Parenthetically, we observe that this testimony was given before the State Department was aware of such service, that Department having learned of it on December 17, 1946. The male respondent further stated that he was conscripted in November 1914; that he protested to the American consul; that the latter succeeded in securing his discharge about July 1915; and that he had served about 7 months. He has consistently testified that he did not take an oath of allegiance during his service in the German army. The male respondent was born on May 10, 1894, and became 21 years of age on May 10, 1915. The letter of the Department of State dated June 4, 1948, indicates that it was of the opinion that, because of the male respondent's protracted residence in Germany after reaching majority and his membership in the Nazi Party (1930 to 1944), he "confirmed the usual oath of allegiance to Germany which he obviously took in connection with his service in the German army during his minority."
In connection with the assertions of the Department of State and the American consular officer concerning a presumption that the male respondent took an oath of allegiance while in the German army, a similar presumption concerning the administration of an oath of allegiance to Italian recruits was rejected by the court ( Monaco v. Dulles, 210 F. (2d) 760 (C.A. 2, 1954)). In Mandoli v. Acheson, 344 U.S. 133 (1952), which involved a dual national as was the male respondent, the court indicated its approval of the position of a former Attorney General that service in the army of Fascist Italy and the taking of an oath of allegiance must be considered as having been under legal compulsion amounting to duress. Relying on the Mandoli decision, it was held in Augello v. Dulles, 220 F. (2d) 344, 347 (C.A. 2, 1955), that Augello's conscription into the Italian army was sufficient proof of duress to preclude a finding that his taking of the oath of allegiance was voluntary in the absence of rebuttal evidence by the Government.
The facts in Soccodato v. Dulles, 226 F. (2d) 243 (C.A.D.C., 1955), are analogous to the facts concerning the male respondent except that Soccodato admitted that he took an oath of allegiance to Italy whereas the male respondent denies having taken an oath of allegiance to Germany. Soccodato was born in the United States but was at birth also an Italian national. He had entered the Italian army in April 1935, and took the Italian oath of allegiance in July 1935, while a minor. It is stated in the court's decision that the position of the Government was that Soccodato's subsequent army service from September 1940 until 1946, and his act of voting in 1946 in a political election confirmed the 1935 oath with like effect, as though it had been taken during majority. The court concluded that these acts should not be held to have brought about loss of his American citizenship.
We take cognizance of the fact that in 1939 the male respondent secured a decree from a German court to the effect that he had been a German citizen since birth (that is, that he had acquired German and United States nationality at birth) and that the German court indicated that the male respondent claimed that he went from America to Germany to volunteer in World War I and that he had appealed from the order discharging him from the German army. The male respondent admitted that these statements were untrue and that he had made them for the purpose of "dressing up" his application to the German court. Our order of June 23, 1948, specifically shows that we had then considered these prior statements of the male respondent. In 1946 he testified that he returned to Germany in 1914 because his parents were living there and it was easier and cheaper for him to study there; that he did not return to Germany for the purpose of volunteering for the German army; that he was drafted; that he would not have returned to Germany in 1914 if he had known that he would be drafted; and that he did not appeal his discharge from the German army. Insofar as concerns the conflict between the male respondent's 1939 statements to the German court and his subsequent testimony, we have no doubt that the 1939 statements were untrue and that his present testimony is correct, because his testimony that he and his father took steps immediately following his induction to secure his discharge from the German army is corroborated by the fact that within 7 months he was, in fact, discharged.
It is now well settled that in cases where a person has acquired United States citizenship, by birth in the United States or otherwise, the Government must do more than establish expatriation by a mere preponderance of the evidence; it must establish expatriation by clear, unequivocal and convincing evidence ( Gonzales v. Landon, 350 U.S. 920 (1955); Monaco v. Dulles, supra, at page 762; Lehmann v. Acheson, 206 F. (2d) 592, 599 (C.A. 3, 1953); Acheson v. Maenza, 202 F. (2d) 453, 456 (C.A.D.C., 1953)). When the male respondent's case is considered in the light of the judicial authorities cited and the provisions of 8 U.S.C. 1252 (b) (4), we believe it is clear that the Government has not met the burden of establishing that the male respondent became expatriated or that he is deportable. It follows that a similar conclusion must be reached with respect to the 2 female respondents who claim citizenship through the male respondent. Accordingly, the special inquiry officer's order will be approved.
Order: It is ordered that the special inquiry officer's order of October 26, 1956, terminating the proceedings with respect to the 3 respondents, be and the same is hereby approved.