Before GOODRICH, McLAUGHLIN and KALODNER, Circuit Judges.
Can a district court review a final order of deportation in a hearing on a petition for naturalization?
That is the sole question presented on this appeal from the Order of the District Court*fn1 dismissing a petition for naturalization on the ground that Section 318 of the Immigration and Nationality Act of 1952 ("Act of 1952")*fn2 requires such action when, as here, there is outstanding a final order of deportation against the petitioner.
The facts are as follows:
Marko Terzich ("petitioner") filed his petition for naturalization on December 11, 1945. Thereafter, on June 15, 1953, he was arrested in deportation proceedings as an alien unlawfully in the United States. The warrant of arrest charged him with violation of Section 241(a)(6)(C) of the Act of 1952,*fn3 in that he was, or had been subsequent to his entry into the United States, a member of the Communist Party of the United States and the Communist Political Association. After a hearing, the Special Inquiry Officer, on January 8, 1954, found petitioner to be a deportable alien and entered an Order directing his deportation. An appeal by petitioner from this Order was dismissed by the Board of Immigration Appeals ("Board") by Order dated June 22, 1954. Petitioner has not sought to secure judicial review of the outstanding order of deportation by writ of habeas corpus or by petition for declaratory judgment or injunctive relief.
Section 318 of the 1952 act provides inter alia:
"* * * no person shall be naturalized against whom there is out-standing a final finding of deportability pursuant to a warrant of arrest issued under the provisions of this chapter or any other Act; and no petition for naturalization shall be finally heard by a naturalization court if there is pending against the petitioner a deportation proceeding pursuant to a warrant of arrest issued under the provisions of this chapter or any other Act * * *".*fn4
The Government submits that this provision deprives a naturalization court of jurisdiction to act upon a petition for naturalization while deportation proceedings pursuant to a warrant of arrest are pending, and compels such court to deny the petition when, as here, there has been a final finding and a deportation order. A naturalization court, says the Government, is entirely without jurisdiction to review the merits of the deportation order.
Petitioner, however, contended in the court below that the District Court had jurisdiction in a naturalization proceeding to review the validity of an existing deportation order. He adheres to that contention here and adds another: that his eligibility for citizenship is preserved by the Savings Clause in Section 405(a) of the Act of 1952*fn5 since his petition for naturalization was filed prior to the effective date of the Act under which the deportation order was entered.
As to the petitioner's first contention:
The Order of January 8, 1954, was "final",*fn6 constituting a "final finding of deportability" within the meaning of Section 318 (or its predecessor provision, Section 27 of the Internal Security Act of 1950).*fn7 Federal courts, once they have determined an administrative final finding of deportability is outstanding, have proceeded no further.*fn8 The District Court in the instant case was right in pursuing the same course.
Our conclusion is buttressed by the decisional law restricting the form of judicial review of deportation orders. Prior to the enactment of the Act of 1952, such review was limited to habeas corpus proceedings.*fn9 In Shaughnessy v. Pedreiro, 1955, 349 U.S. 48, 75 S. Ct. 591, 99 L. Ed. 868, the Supreme Court held that, in addition to habeas corpus, an alien ordered deported by the Attorney General under the provisions of the Act of 1952 could test the legality of such ...