United States v. Watkins, 28

• Decision Date: 06 November 1947
• Docket Number: Docket 20669.,No. 28,28
• Parties: UNITED STATES ex rel. GREGOIRE v. WATKINS, District Director of Immigration and Naturalization.
• Court: U.S. Court of Appeals — Second Circuit

164 F.2d 137 (1947)

UNITED STATES ex rel. GREGOIRE v. WATKINS, District Director of Immigration and Naturalization.

No. 28, Docket 20669.

Circuit Court of Appeals, Second Circuit.

November 6, 1947.

John F. X. McGohey, U. S. Atty., of New York City (Harold J. Raby, Asst. U. S. Atty., of New York City, of counsel), for appellant.

Gunther Jacobson, of New York City, (John Windsor, of Jackson Heights, N. Y., of counsel), for appellee.

Before L. HAND, SWAN, and CHASE, Circuit Judges.

SWAN, Circuit Judge.

This appeal raises two questions: (1) whether the district court erred in granting the relator a hearing in view of previous habeas corpus proceedings, and (2) whether the relator is a "native" of Germany within the meaning of the Alien Enemy Act, 50 U.S.C.A. § 21. The relevant facts are not in dispute.

The relator is a descendant of an old French family which had resided in the Province of Lorraine for many generations. He was born at Metz in that province in 1894. By the Treaty of Versailles Lorraine was restored to France as of November 11, 1918 and the relator became a French citizen. On a French passport and an immigration visa issued under the French quota, he legally entered the United States in March 1941, and took up residence in California. In January 1942 he was there arrested and was ordered by the Attorney General to be interned as an alien enemy. He forthwith applied to the United States District Court for the Northern District of California for a writ of habeas corpus, but his application was denied by Judge St. Sure, without opinion, and no writ issued. Three years later, in April 1945, he made a second application which the same judge again denied without issuance of a writ. Ex parte Gregoire, D.C., 61 F.Supp. 92. Thereafter the relator was taken to Ellis Island and was informed that an order had been issued by the Attorney General for his removal to Germany. Before this order was served upon him, he instituted a habeas corpus proceeding in the Southern District of New York. A writ was issued but after argument was denied on the ground that the circumstances, save for the order of removal, were the same as Judge St. Sure had considered and, with respect to the removal order, the writ was premature.¹ On May 17, 1946 the removal order was served upon the relator and he thereupon sued out the present writ which Judge Knox sustained.

We cannot accept the appellant's contention that the earlier habeas corpus proceedings should have precluded Judge Knox from an independent consideration of the legality of the relator's detention at Ellis Island. Although this issue involved the same question of law decided by Judge St. Sure, the doctrine of res judicata does not extend to a decision on habeas corpus refusing to discharge a prisoner, Salinger v. Loisel, 265 U.S. 224, 44 S.Ct. 519, 68 L.Ed. 989. This does not mean that a prisoner may again and again call upon a court to repeat the same ruling; the court may, in the exercise of discretion, protect itself against a pertinacious relator. United States ex rel. McCann v. Thompson, 2 Cir., 144 F.2d 604, 606, 156 A.L.R. 240. But there was no abuse of discretion by Judge Knox in granting a hearing on the present writ. He was only the second judge to pass upon the merits; Judge Mandelbaum did not consider them. Moreover, imminence of the relator's deportation to Germany, under the removal order just served upon him, brought a new fact into the case entitling the relator to a hearing, even though the new fact might prove irrelevant, if the court should determine, in agreement with Judge St. Sure, that the relator was a "native" of Germany.

Upon the merits the question presented is the proper meaning to be ascribed to the statutory phrase "natives * * * of the hostile nation or government."² If we say that the words...