Wong Sun v. United States

• Decision Date: 12 November 1923
• Docket Number: 3829-3832.
• Citation: 293 F. 273
• Parties: WONG SUN v. UNITED STATES, and three other cases.
• Court: U.S. Court of Appeals — Sixth Circuit

293 F. 273

WONG SUN v. UNITED STATES, and three other cases.

Nos. 3829-3832.

United States Court of Appeals, Sixth Circuit.

November 12, 1923

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

M. A McCormack, Asst. U.S. Atty., of Cleveland, Ohio (A. E Bernsteen, U.S. atty., and Berkeley W. Henderson, Asst. U.S Atty., both of Cleveland, Ohio, on the brief), for the United States.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

KNAPPEN Circuit Judge.

The four appellants, all of whom are of Chinese descent and none of whom claim United States citizenship, were arrested in August, 1915, as Chinese aliens unlawfully within the United States and, as claimed by the commissioner, thus subject to deportation under the Immigration Act of 1907 (34 Stat. 898). Under habeas corpus proceedings, they were discharged, conformably to the decision in United States v. Woo Jan, 245 U.S. 552, 38 Sup.Ct. 207, 62 L.Ed. 466, because entitled to a judicial hearing, as distinguished from a summary or administrative method. They were thereupon rearrested for deportation, under the general Immigration Act of 1917 (39 Stat. 874; Comp. St. 1918, Comp. St. Ann. Supp. 1919, Secs. 4289 1/4a-4289 1/4u). Proceedings in habeas corpus, thereupon instituted by appellants, were dismissed by the District Court, whose action was affirmed by this court (Woo Shing v. United States (C.C.A.) 282 F. 498), upon the authority of Ng Fung Ho v. White, Commissioner, 259 U.S. 276, 42 Sup.Ct. 492, 66 L.Ed. 938, wherein it was held that section 19 of the Immigration Act of 1917 did not preserve the right to a judicial hearing in respect to deportation after May 1, 1917, of Chinese found here, or who shall have entered, in violation of the exclusion acts. Appellants thereupon severally instituted in the District Court below new proceedings in habeas corpus, attacking the deportation order upon various charges of unfairness and irregularity in the departmental hearing awarded, and challenging the sufficiency of the evidence to sustain the findings made. By his return to the writ of habeas corpus the inspector, not only traversed the allegations of the petition relative to asserted insufficiency of proof and unfairness and lack of impartiality of the proceedings on the administrative hearing, but invoked the dismissal by the District Court of the former proceeding in habeas corpus, and the affirmance of that action by this court, as a bar to the present proceeding. Judge Westenhaver discharged the writs of habeas corpus, and ordered petitioners remanded into the custody of the immigration authorities, upon the ground that the previous discharge of the writs by the District Court, and the affirmance thereof by this court, worked a final adjudication of petitioners' liability to deportation. Wong Sun v. Fluckey (D.C.) 283 F. 989. These appeals are from the respective orders discharging the writs.

Appellants contend, first, that the doctrine of res judicata does not apply to an order discharging the writ of habeas corpus; and, second, that in the former proceeding the sufficiency of the hearing before the immigration officer and the conclusions there reached were not considered by either the District Court or this court.

The former petition for habeas corpus, the proceedings in which were so dismissed by the District Court, and whose action was affirmed by this court (282 F. 498), not only asserted and relied upon the denial to petitioner of a judicial hearing, respecting his right to remain in the United States, but also, in the language quoted in the margin, ^[1] directly attacked the sufficiency of the administrative hearing actually had as unfair and not impartial to the petitioner.

The inspector's return to the writ, in the case of each appellant, not only denied petitioner's right to a judicial hearing, but, in the language we have set forth in the margin, ^[2] joined issue upon the allegations of the petition regarding the character of the administrative hearing had. While petitioner's charges in that respect were not as definite and detailed as in the application before us, they were sufficient, especially in view of the issue joined, to permit proof thereof and decision thereon. It is true that, in the former proceeding, the sufficiency of the hearing before the immigration officer, and the conclusions there reached, were not considered by the District Court, nor, at least substantially, by this court; but that was because proof in support of petitioner's allegations in those respects was not presented. ^[3] But it is a commonplace that in ordinary judicial proceedings the final determination of the court is a conclusive adjudication, not only as to matters actually argued and decided, but also as to all matters which might have been so considered and decided. New Orleans v. Citizens' Bank, 167 U.S. 371, 397, 17 Sup.Ct. 905, 42 L.Ed. 202; So. Pacific R.R. Co. v. United States, 168 U.S. 1, 48, 18 Sup.Ct. 18, 42 L.Ed. 355

At the common law a refusal to discharge on habeas corpus one in custody on a criminal charge was no bar to further and repeated applications of the same nature, even upon the identical grounds existing or alleged on the first application. The prominent considerations leading to this state of the law seem to have been that a proceeding by habeas corpus-- which was the 'writ of freedom'-- is purely summary, without provision for framing or trying issues of fact (the officer's return to the writ being taken as true), and without right of review. To-day, generally, and in the federal courts specifically, the hearing in court of a petition for habeas corpus is essentially a judicial proceeding, involving a trial of the truth of the officer's return when challenged on the facts, and hearing on the questions of law involved, with a right of review by an appellate court (United States v. Fowkes (C.C.A. 3) 53 F. 15, 3 C.C.A. 394; In re Graves (C.C.A. 1) 270 F. 181), not merely by writ of error, but by appeal, bringing up for review on both law and facts the entire record presented to the court below (In re Neagle, 135 U.S. 1, 41, 42, 10 Sup.Ct. 658, 34 L.Ed. 55). As a practical proposition, the basis for the old common-law rule has thus disappeared.

On the question of res judicata, as involved here, we find no decisions of the Supreme Court of the United States in point. In Re Jugiro, 140 U.S. 291, 11 Sup.Ct. 770, 35 L.Ed. 510, cited by appellant, the appeal was from a denial by the federal Circuit Court of a second application for habeas corpus, made after the affirmance by the Supreme Court of a former denial by the Circuit Court, with remand of petitioner to the state court. The second petition presented a matter occurring after the affirmance by the Supreme Court; also several other matters of which petitioner claimed to have been ignorant when the first application was made. The Supreme Court held that the matter later occurring did not render the action of the state court void, and that the other errors alleged could not be reached by habeas corpus. There was thus no second hearing of any question once decided, or that might have been decided, and the question of res judicata was not raised or presented, nor was there room therefor.

In Rose v. Roberts (C.C.A. 2) 99 F. 948, 40 C.C.A. 199, an order of the Circuit Court dismissing the writ of habeas corpus had been affirmed upon the holding that the judgment of a court-martial cannot be reviewed by a writ of habeas corpus, except to determine the question of jurisdiction, which was found to extend to the action of the court-martial. In Carter v. McClaughry, 105 F. 614, the Circuit Court for the District of Kansas held, as applied to the above-stated action of the Circuit Court for the Southern District of New York and of the Circuit Court of Appeals for the Second Circuit, that the denial of a writ of habeas corpus by the federal courts of one circuit does not render questions determined res judicata, so as to preclude their re-examination by the courts of another circuit in subsequent habeas corpus proceedings instituted therein by the same petitioner. The Supreme Court, in dismissing an attempted review of the judgment of the Circuit Court for the Southern District of New York, did not pass upon the questions of fact and the validity of the conviction and sentence, but held merely that the Supreme Court would not entertain a direct appeal therefrom. Carter v. Roberts, 177 U.S. 496, 20 Sup.Ct. 713, 44 L.Ed. 861. The affirmance by the Supreme Court (Carter v. McClaughry, 183 U.S. 365, 22 Sup.Ct. 181, 46 L.Ed. 236) of the action of the District Court of Kansas did not involve or consider the question of res judicata, which manifestly could not arise in the case. We therefore see no basis for the suggestion that the Supreme Court, by its action in either of the cases cited, impliedly recognized the right of repeated review.

We think the same is true of Chin Fong v. White (C.C.A 9), 258 F. 849, 169 C.C.A. 569, also cited by appellant, in support of his denial of the doctrine of res judicata. The first application for habeas corpus involved the contention that the construction of a treaty was involved. Ex parte Chin Fong (D.C.) 213 F. 288. An appeal to the Supreme Court was dismissed on the ground that appellant's rights depended upon the statutes regulating Chinese immigration and not upon a construction of treaty provisions, and that there was thus no right of direct appeal from the District Court to the Supreme Court. Chin Fong v. Backus, 241 U.S. 1, 36 Sup.Ct. 490, 60 L.Ed. 859. The District Court then granted appellant permission to file a new petition for habeas corpus, basing his claim to relief upon his alleged statutory rights, and not upon claimed treaty rights. Chin Fong v. White, supra...