In this proceeding the relator seeks his discharge from detention at Ellis Island where he is held as an enemy alien pursuant to Title 50 U. S. C.A. § 21, and the Proclamation of the President of the United States No. 2526 [6 Fed. Reg. 6323] dated December 8, 1941.
In substance the petition and travers allege that the relator was horn in Danzig on December 26, 1914; that by the Versailles Treaty, dated June 28, 1919, Danzig became a Free City with a constitution of its own and was placed under the protection of the League of Nations; that the relator entered this country in 1936 on a Danzig passport and that he is not and never was a native, citizen, subject or denizen of Germany and that he never did reside in Germany or became naturalized in Germany.
The Government’s return to the writ alleges that, the relator is a native, citizen, denizen or subject of Germany.
It therefor appears that the petition, return and travers raise questions of fact which should be determined at a plenary hearing with proof. Walker v. Johnston, 312 U. S. 275, 61 S.Ct. 574, 85 L.Ed. 830; United States ex rel. Schwarzkopf v. Uhl, 2 Cir., 137 F.2d 898.
If it be established upon the hearing that the relator is either a citizen, denizen or subject of Germany, the question of his nativity would become immaterial. United States ex rel. Reichel v. Carusi, 3 Cir., 157 F.2d 732, certiorari denied 330 U.S. 842, 67 S.Ct. 1081.
The relator will be grantt d a plenary hearing for the purpose of passing upon these controverted allegations.
Settle order on notice.