US SUPREME COURT DECISIONS

The Immigration and Naturalization Service brought proceedings to deport petitioner as an alien who had unlawfully entered the United States. At a series of hearings before an Immigration Judge, the INS presented documentary evidence that petitioner was born in Italy in 1927 of unknown parents, was placed in a foundling home there, and ultimately was adopted by an Italian couple. Petitioner and several other witnesses testified that he was born in Ohio of an Italian mother and sent to Italy at an early age to reside with the above couple. Rejecting petitioner's evidence, the Immigration Judge issued a deportation order, and the Board of Immigration Appeals affirmed. Petitioner then petitioned the Court of Appeals for review of the Board's decision, claiming that he was entitled to a de novo hearing in District Court pursuant to § 106(a)(5)(b) of the Immigration and Nationality Act, which provides that, whenever a petitioner seeking review of a deportation order claims to be a United States citizen and makes a showing that his claim is not frivolous, the court of appeals, if it finds that "a genuine issue of material fact as to the petitioner's nationality is presented," must transfer the proceedings to the district court for a hearing de novo of the nationality claim. The Court of Appeals refused to transfer the case to the District Court for a de novo hearing and affirmed the deportation order, apparently holding that, in order to obtain a de novo hearing, petitioner was required by Kessler v. Strecker, 307 U. S. 22, to present "substantial evidence" in support of his citizenship claim and that he had failed to do so.

Held:

1. The Court of Appeals' decision, to the extent that it holds de novo review to be required only where the petitioner presents substantial evidence in support of his claim to citizenship, is contrary to the plain language and clear meaning of § 106(a)(5)(B), and there is nothing in the legislative history to indicate that Congress intended to require de novo judicial determination of citizenship claims only when such determinations would be compelled by the Kessler "substantial evidence" standard. Pp. 436 U. S. 752-757. chanrobles.com-red

Page 436 U. S. 749

(a) Although § 16(a)(5)(b) was intended to satisfy any constitutional requirements relating to de novo judicial determination of citizenship claims, the statute clearly does not restrict de novo review to cases in which the "substantial evidence" test is met. Rather than incorporating the language of Kessler in the statute, Congress chose to require hearings where there is "a genuine issue of material fact," thus incorporating the same standard as governs summary judgment motions under Fed.Rule Civ.Proc. 56. Pp. 436 U. S. 753-755.

(b) Since summary judgment principles control, it follow that a court of appeals cannot refuse to allow a de novo review of a citizenship claim if the supporting evidence would suffice to entitle a litigant to trial were such evidence presented in opposition to a motion for summary judgment. Pp. 436 U. S. 756-757.

2. Applying the appropriate standard to the record in this case, it is apparent that the Court of Appeals erred when it failed to transfer he case to the District Court for a de novo hearing. While the INS's documentary evidence would suffice, if uncontradicted, to establish petitioner's birth in Italy, such evidence would be refuted by petitioner's witnesses' testimony if that testimony were accepted by the trier of fact. Hence, there is a genuine issue of material fact for the District Court on the question of petitioner's citizenship. Pp. 436 U. S. 757-761.

549 F.2d 806, reversed and remanded

MARSHALL, J., delivered the opinion of the Court, in which BURGER, C.J.,and BRENNAN, STEWART, WHITE, BLACKMUN, and STEVENS, JJ., joined. POWELL, J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 436 U. S. 761.