U.S. Court of Appeals for the D.C. Circuit, 1955

Tom We Shung v. Herbert Brownell, Jr., Attorney General of the United States

U.S. Court of Appeals for the D.C. Circuit · Decided October 13, 1955 · Edgerton, Miller, Fahy

227 F.2d 40; 97 U.S. App. D.C. 25; 1955 U.S. App. LEXIS 3154 (Federal Reporter, Second Series)

Counsel

Mr. Jack Wasserman, Washington, D. C., with whom Mr. Andrew Reiner, was on the brief, for appellant., Mr. Lewis Carroll, Asst. U. S. Atty., with whom Messrs. Leo A. Rover, U. S. Atty., George E. Hamilton, III, Asst. U. S. Atty., and Albert E. Reitzel, Asst. Gen. Counsel, Immigration and Naturalization Service, were on the brief, for ap-pellee.

Cases that cite this one

6 later published cases cite this decision.

Bong Youn Choy and Tung Suck Choy v. Bruce G. Barber, District Director, Department of Justice, Immigration and Naturalization Service (9th Cir. 1960)
Vallejos v. Barber (United States District Court for the Northern District of California 1956)
Georgia Association of Retarded Citizens v. Dr. Charles McDaniel in His Official Capacity as State Superintendent of Schools (11th Cir. 1988)
Matter of Lincoln Plaza Towers Associates (United States Bankruptcy Court, S.D. New York 1980)
United States Ex Rel. Tom We Shung v. Murff (District Court, S.D. New York 1959)
Brownell v. Tom We Shung (Supreme Court of the United States 1956)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion

EDGERTON, Circuit Judge.

Before the 1952 Immigration and Nationality Act 1 was passed, the Attorney General ordered Tom We Shung excluded from the United States and Tom We Shung sought review under the Administrative Procedure Act [5 U.S.C.A. § 1001 et seq.] and a declaratory judgment. We decided against him on the merits. 93 U.S.App.D.C. 32, 207 F.2d 132. The Supreme Court, citing Heikkila v. Barber, 345 U.S. 229, 73 S.Ct. 603, 97 L.Ed. 972, vacated our judgment and remanded the case to the District Court with directions to dismiss the complaint. Tom We Shung v. Brownell, 346 U.S. 906, 74 S.Ct. 237, 98 L.Ed. 405. The Supreme Court thereby held that an exclusion order, like a deportation order, could not be reviewed, otherwise than in habeas corpus, on a complaint filed before the 1952 Act took effect.

Obviously our judgment settled nothing, since it was vacated. After the 1952 Act took effect Tom We Shung filed the present complaint, based on the same exclusion order and seeking the same relief. The District Court ruled that it was “without jurisdiction to review an order of exclusion in proceedings other than habeas corpus.”

We think the court had jurisdiction to review the order of exclusion. *41 Estevez v. Brownell, 97 U.S.App.D.C.-, 227 F.2d 38. Since the complaint was filed after the 1952 Act took effect, we think it immaterial, so far as the right to judicial review is concerned, that the exclusion order was issued before the Act took effect. Muscardin v. Brownell, 97 U.S.App.D.C. -, 227 F.2d 31.

The present question, whether review may be had on a complaint filed after the 1952 Act took effect, is not res juMcata, since it neither was nor could have been decided in the previous suit, filed before the Act took effect. 2

Reversed.

. 66 Stat 163, 8 U.S.C.A. § 1101 et seq.

. In this respect we disagree with Heikkila v. Barber, 9 Cir., 216 F.2d 497, certiorari denied 349 U.S. 927, 75 S.Ct. 769.

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