Florentine

This is an appeal from an order of the United States District Court for the Southern District of California, discharging a writ of habeas corpus.

The question raised by this appeal is whether one who is claiming to be a United States citizen must first exhaust his administrative remedies in deportation proceedings before the question of citizenship may be raised by habeas corpus.

The allegations of the pleadings reveal that Florentine was born on March 18, 1911, in Los Angeles, California. The Director claims that Florentine expatriated himself under Section 401 (j) of the Na *871 tionality Act of 1940, 58 Stat. 746 , former 8 U.S.C. § 801 (j), U.S.Code Cong.Service, 1944, p. 743, by leaving the country in time of war and going to Mexico in order to avoid an order of the Selective Service authorities to report for induction. On his seeking to enter the country in 1944, he was excluded from permanent admission but was paroled into the United States to answer the criminal charge arising out of his failure to report for induction. On March 27, 1951, a warrant of arrest was issued on the ground that at the time of his entry in 1944 he was an immigrant alien not in possession of a…

(concurring).

I concur in the opinion of the Court. In the instant case questions of fact were presented for determination' in the deportation action. Under such circumstances the administrative proceedings must be ex *872 hausted before habeas corpus can be entertained, It has been held, however, that in a case where a question of jurisdiction is raised and the facts undisputed, leaving for determination solely a question of law, a writ of habeas corpus is a proper remedy even though administrative proceedings have not been exhausted. United States ex rel. Bradley v. Watkins, 2 Cir., 1947, 163 F.2d 328 .

I would further affirm on the ground relied on by the trial court that the restraint upon the person of the petitioner by virtue of the order, of conditional parole was not sufficient to invoke the jurisdiction of the court on a writ of habeas corpus. Stallings v. Splain, 1920, 253 U.S. 339 , 40 S.Ct. 537 , 64 L.Ed. 940 ; In re Rowland, D. C.W.D.Ark. 1949, 85 F.Supp. 550 , affirmed, 8 Cir., 1950, 179 F.2d 709 , certiorari denied, 339 U.S. 952 , 70 S.Ct. 841 , 94 L.Ed. 1365 ; Sibray v. United States, 3 Cir., 1911, 185 F. 401 .

206 F.2d 870 FLORENTINE v. LANDON, District Director of Immigration and Naturalization. No. 13730. United States Court of Appeals Ninth Circuit. August 27, 1953. David C. Marcus, Los Angeles, Cal., for appellant. Walter S. Binns, U. S. Atty., Los Angeles, Cal., Clyde C. Downing, Asst. U. S. Atty., Chief, Civil Division, Max F. Deutz, Asst. U. S. Atty., Los Angeles, Cal., for appellee. Before DENMAN, Chief Judge, and HEALY and ORR, Circuit Judges. DENMAN, Chief Judge. 1 This is an appeal from an order of the United States District Court for the Southern District of California, discharging a writ of habeas corpus. 2 The question raised by this appeal is whether one who is claiming to be a United States citizen must first exhaust his administrative remedies in deportation proceedings before the question of citizenship may be raised by habeas corpus. 3 The allegations of the pleadings reveal that Florentine was born on March 18, 1911, in Los Angeles, California. The Director claims that Florentine expatriated himself under Section 401(j) of the Nationality Act of 1940, 58 Stat. 746 , former 8 U.S.C. § 801 (j), U.S.Code Cong.Service, 1944, p. 743, by leaving the country in time of…