Before MARIS, KALODNER and STALEY, Circuit Judges.
Does the doctrine of res judicata apply with respect to a judgment of a United States district court granting a writ of habeas corpus in a deportation proceeding which was premised on the judicial determination that the rights of the alien were governed by the Immigration Act of 1917 and that he was not deportable under its provisions?
That issue is presented by this appeal by Vincenzo Anselmo from the judgment of the United States District Court for the District of New Jersey dismissing his action for a declaratory judgment under the Federal Declaratory Judgment Act*fn1 and for review under the Administrative Procedure Act,*fn2 with respect to a ruling of the Immigration and Naturalization Service that he is deportable and as such is to be deported to his native country, Italy.
Necessary to the consideration of this appeal are the following facts:
On November 15, 1938, the Secretary of Labor issued a Warrant for Anselmo's deportation to Italy pursuant to his determination that Anselmo had entered the United States at New York "about 1930" and "that at the time of his entry he was not in possession of an unexpired immigration visa" and was accordingly deportable under the Immigration Act of 1924.*fn3
Anselmo, in his Declaration of Intention to be naturalized, filed on November 16, 1934, had stated that he had arrived at New York on June 28, 1924, and on examination by the Immigration Service on May 14, 1936 and at subsequent hearings, conducted by the Service, he made the same contention.
The time of Anselmo's entry into the United States was the critical and dispositive factor in the 1938 deportation proceedings inasmuch as July 1, 1924 was the effective date of the Immigration Act of 1924 and had Anselmo entered prior to that date he would have attained a non-deportable status under the provisions of Section 19 of the Immigration Act of 1917,*fn4 which established a five-year statute of limitations (the deportation proceedings were not commenced until January 17, 1938, when the Warrant For Arrest of Alien was issued).
Subsequent to the issuance of the deportation warrant Anselmo, on March 2, 1939, filed a petition for a writ of habeas corpus in the United States District Court for the District of New Jersey. The late Judge Avis of that Court, following hearing, in a Memorandum Opinion dated May 23, 1940, made these findings:
"'There is no direct testimony which sustains the position of the respondent [Secretary of Labor]. The indirect evidence does not substantially support the finding. It follows that the order of deportation is arbitrary and capricious, and cannot be sustained under the evidence presently before the court. However, a reading of the record indicates that a proper investigation would develop facts upon which to base a determination one way or the other. The writ will be held for a reasonable time and the matter referred to the Department of Labor for further investigation and determination.'" [See 150 F.Supp. 294.]
Apparently no further investigation was made by the immigration authorities because, as Government counsel asserts in his brief here "Due to the conditions in Italy as a result of the war, further investigation at that time was impossible."
On March 24, 1944, Chief Judge Forman of the District Court for the District of New Jersey (Judge Avis having died), upon application of Anselmo's counsel, after hearing, entered an order granting the writ of habeas corpus, and directed that Anselmo be discharged from custody. The Government did not appear in opposition to the writ, and, it may be noted parenthetically that the record discloses that "There appears on this order a pencil notation that the Assistant United States Attorney, Rossbach, had no objection to the entry of the order."
No appeal was taken by the Government from the order of March 24, 1944. In October, 1947, Chief Judge Forman denied the Government's request to reopen the habeas corpus proceeding. Thereafter, on December 2, 1947, the Acting Commissioner of Immigration filed a Motion with the Board of Immigration Appeals "* * * that the outstanding order of deportation be withdrawn and proceedings cancelled without prejudice." On January 16, 1948 in a formal "Opinion of Immigration Board", the Acting Commissioner's Motion was denied. In doing so the Board, in its Opinion, stated:
"It is our opinion that the action of the District Court in granting the writ of habeas corpus and discharging respondent from custody effectively terminated the deportation proceeding. Hence, there is nothing before us to consider."
A new deportation proceeding was begun on March 11, 1948 by issuance of a Warrant of Arrest based on the identical charge of lack of an unexpired visa set forth in the original Warrant of Arrest of January 17, 1938. Hearings were held in December, 1950, December, 1951, February and March, 1952, and in February, 1953. At the last mentioned hearing the Government added the additional charge that Anselmo had entered the United States without inspection.
On July, 6, 1953, the Special Inquiry Officer found Anselmo deportable on the charges contained in the Warrant of Arrest. On October 28, 1954, the Board of Immigration Appeals denied Anselmo's appeal and thereafter on November 3, 1954, an order of deportation was ...