Garcia

Appellant seeks reversal of an Order of Dismissal entered in the District Court. In that Court he had filed a Petition for Declaratory Judgment and for Determination of United States Citizenship.

The Petition alleged that jurisdiction was invoked pursuant to Section 360(a) of Public Law 414, 1 Section 2201, Title 28 U.S.C.A.

In his brief appellant contends that jurisdiction arises under Section 503 of the Nationality Act of 1940. That statute has been superseded by the Nationality Act of 1952, but it has been judicially declared that where one was excluded from admission to the United States prior to the repeal of Section 503 of the Nationality Act of 1940, his right to have his citizenship judicially determined was preserved by the savings clause contained in the Immigration and Nationality Act of 1952. In that case 3 plaintiff was excluded and remained outside this Nation pending determination of the litigation.

Garcia's petition does not state a claim upon which relief can be granted, and this was the only basis for dismissal recited in the Order of Dismissal.

Both statutes relied upon by petitioner are in their nature declaratory relief laws. It has always been, and now…

(dissenting).

The court’s opinion dismissing Garcia’s petition ignores entirely the affidavit of the Immigration officer now in charge of entry into the United States of persons from Tiajuana on the Mexico border line of California through San Ysidro in California. The controversy concerns visits by Garcia, residing in California, to his relatives in this border town of Tiajuana.

Since the Attorney General moves to ■dismiss and offers Del Guercio’s affidavit which states facts supporting the petition, the allegations of the petition must be taken as true and the right to dismiss based upon them and the support of the affidavit.

This affidavit discloses an existing controversy in 1951. We are all agreed that if it existed then it exists now. The affidavit at great length describes the proceedings under which Garcia was first excluded, in which the Board of Special Inquiry found that Garcia is not a citizen of the United States, which decision was affirmed by the Commissioner and his decision in turn affirmed on March 31, 1947 by the Board of Immigration Appeals.

It is obvious that there is no reason for the long recital in Del Guercio’s affidavit of the 1947 procedure and…