United States ex rel. Gonzalez v. Kirk

HUTCHESON, District Judge. This is a case in which the applicant makes a bona fide claim of citizenship. Under these circumstances, she is entitled to a judicial trial on the facts. Ex parte Kazan (D. C.) 5 F.(2d) 243. The United States presents against her claim to a judicial determination of the fact of citizenship the proposition that she is in the same case as one excluded, and that this court has no jurisdiction to consider her case except by review of the completed action of the Department of Labor. Kwock Jan Fat v. White, 253 U. S. 454, 40 S. Ct. 566, 64 L. [247] Ed. 1010; Low Wah Suey v. Backus, 225 U. S. 460, 32 S. Ct. 734, 56 L. Ed. 1165; Jung See v. Nash (C. C. A.) 4 F.(2d) 643. None of these eases have application to the present one. Here the applicant effected entrance into the United States without surreption or evasion, but with the express consent of the Department of Labor. Under these circumstances, plaintiff is entitled to a judicial trial upon her claim of citizenship, and that being established to the satisfaction of the court, the department is without jurisdiction to take any proceedings against her. Relator should therefore have her writ and thereupon be discharged.