Wong Sun v. Fluckey

• Decision Date: 06 October 1922
• Docket Number: 11569.
• Citation: 283 F. 989
• Parties: WONG SUN v. FLUCKEY, Immigration Inspector.
• Court: U.S. District Court — Northern District of Ohio

283 F. 989

WONG SUN v. FLUCKEY, Immigration Inspector.

No. 11569.

United States District Court, N.D. Ohio, Eastern Division.

October 6, 1922

Wm. J Dawley, of Cleveland, Ohio, for petitioner.

B. W Henderson, Asst. U.S. Atty., of Cleveland, Ohio, for defendant.

WESTENHAVER District Judge.

Petitioner is a person of Chinese descent, and not a citizen of the United States. His petition for a writ of habeas corpus challenges the validity of a deportation order made by the immigration authorities June 5, 1920. Upon presentation of his petition an alternative writ was issued, the petitioner produced in court, and return made thereto.

This case has a prolonged history. On August 3, 1915, the petitioner was arrested on a warrant issued by the Secretary of Labor, charging him with being in the United States unlawfully and having procured his admission by fraud. A warrant of deportation was made thereon April 5, 1916. He was discharged from custody under that order on a writ of habeas corpus March 28, 1918, following the decision of the United States Supreme Court in United States v. Woo Jan, 245 U.S. 552, 38 Sup.Ct. 207, 62 L.Ed. 466 overruling Ex parte Woo Shing (N.D. Ohio) 226 F. 141. A new warrant was issued under section 19, General Immigration Act February 5, 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 4289 1/4jj), by the Acting Secretary of Labor, charging him with being unlawfully in the United States, on the same grounds, namely, being found within the United States in violation of section 2, Chinese Exclusion Act (Comp. St. Sec. 4316), and having procured his admission by fraud, not having been at the time of entry a lawfully domiciled exempt returning to resume a lawful domicile to follow an exempt pursuit in this country, and that he has been found within the United States in violation of section 6, Chinese Exclusion Act May 5, 1892, as amended by Act Nov. 3, 1893 (Comp. St. Sec. 4320), being a Chinese laborer not in possession of a certificate. After another prolonged hearing, these charges were held to be sustained, and on June 15, 1920, the warrant of deportation now in issue was made.

The petition, briefly stated, attacks the deportation order on various grounds going to the fairness and regularity of the hearing accorded him, and the sufficiency of the evidence to justify the findings as made. These grounds need not be stated in detail. The answer denies all charges of unfairness, irregularity, and insufficiency of evidence. In addition thereto, the proceedings on a former application made by the petitioner against this same defendant, attacking the same order of deportation, are set up in the return as a bar.

The facts with reference to this former application and the result therein are not in dispute. The petitioner on June 29, 1920, presented to this court his application for a writ of habeas corpus against the present defendant. By this petition he sought to be discharged from custody and restraint under the present deportation order dated June 15, 1920, now in issue. In that application the validity of this deportation order was attacked on the grounds: First, that he had been given only an executive hearing by the immigration authorities, and not a judicial hearing before a United States justice, judge, or commissioner; and, second, that the hearing accorded him by the immigration authorities 'was manifestly unfair and not impartial to this petitioner, but, on the contrary, was examined on several occasions by said J. Arthur Fluckey and his assistants, without the privilege of counsel, and found by said Fluckey to be unlawfully in the United States, solely from the testimony of witnesses, cross-examination of whom was not had by your petitioner's counsel. ' The return, after reciting in detail the proceedings before the immigration authorities, denies petitioner's right to a judicial, as distinguished from an executive, hearing, and also denied both specially and generally all other allegations relating to the unfairness and irregularity of the hearing and proceedings accorded by the immigration authorities. On December 14, 1920, his application was denied. From this judgment an appeal was prosecuted to the Circuit Court of Appeals, and on June 28, 1922, that court affirmed the judgment of the lower court.

These former proceedings are relied upon by defendant on the principles of res judicata as a bar to relief on the present application. Petitioner, in reply, relies on two grounds: (1) That in the former proceedings the only question raised, or at least argued and decided, was the right to a judicial, as distinguished from an executive, hearing; (2) that the doctrine of res judicata has no application in a habeas corpus proceeding when the order is one refusing to issue or discharging the writ.

As to the first proposition, it is true that, so far as the record discloses, no question going to the validity of the deportation order was treated by the District Judge in his opinion other than petitioner's right to a judicial hearing. In the Circuit Court of Appeals the range of discussion and the questions treated in the opinion seem to have been broader. It was held in both courts that the immigration authorities, under section 19, General Immigration Act Feb. 5, 1917, might arrest and deport a person on an executive hearing only, notwithstanding he had entered the United States before that act was passed. This holding accords with the decision of the United States Supreme Court in Ng Fung Ho v. Edward White, 258 U.S. . . ., 42 Sup.Ct. 492, 66 L.Ed. . . ., decided May 29, 1922. It is not true, however, that the pleadings therein did not put in issue the fairness and regularity of the proceedings nor the sufficiency of the evidence to justify the order of deportation. The allegations, it is true, are general, but they were sufficient, had the petitioner so desired, to permit the introduction of testimony, including the record of the proceedings before the immigration authorities, and to allow his discharge if petitioner were entitled to relief on any of the grounds now urged. The cause of action then, as now, was the validity of the deportation order and the right of petitioner to be or remain in the United States.

According to the general principles of the doctrine of res judicata, a former judgment is a bar not only as to matters actually argued and decided, but also as to all other matters which might have been put in issue, argued, and decided. See New Orleans v. Citizens' Bank, 167 U.S. 371, 397, 17 Sup.Ct. 905, 42 L.Ed. 202; Southern Pacific R. Co. v. United States, 168 U.S. 1, 48, 18 Sup.Ct. 18, 42 L.Ed. 355, and cases therein cited. A party may not bring forward one ground of relief, and, after that is decided adversely, bring forward another and a different ground which might as well have been brought forward in the first instance, and thereby indefinitely prolong litigation. Unless, therefore, a different rule is to be applied in habeas corpus cases, petitioner is now estopped because the grounds upon which relief is now sought might have been, if they were not, put in issue and decided in the former case.

Counsel urges that the doctrine of res judicata has no application in habeas corpus cases when the order is one refusing to issue or discharging the writ. He insists that, notwithstanding the former judgment of this court and its affirmance on appeal, the petitioner may of right again apply to this court, and, if denied relief, may appeal from its order. If this be true, petitioner may not only do this, but he may apply to any other judge of this court or any District Court of co-ordinate jurisdiction anywhere else in the United States, if petitioner should be removed there, and litigate over again not only the questions heretofore decided, but such as this court may now decide; and he may also do this notwithstanding an appeal from the order now to be made may result in an affirmance. As will appear in Lui Lum v. United States (3 C.C.A.) 166 F. 106, 92 C.C.A. 90, presently to be reviewed, this is what a Chinese person once did.

In view of the protracted efforts of the United States immigration authorities to exclude this petitioner from the United States, and his hitherto successful efforts in opposition these propositions are somewhat startling and should not be sustained unless such is clearly the law. I have given the questions of law the most careful consideration and have concluded that this petition should not be entertained, and that the doctrine of res judicata, upon the facts of this case, does apply. Briefly stated, I believe the authorities support the following propositions: (1) That, inasmuch as the former judgment denying relief was affirmed on appeal, this court can and should not in any event entertain a new petition without change of...