parent, who is not a party to the litigation, even if he appears as guardian ad litem. Leung v. Dulles, 226 F. 2d 74 (C.A. 9, 1955); Dulles v. Fong, 237 F. 2d 496 (C.A. 9, 1956).

As in deportation proceedings under section 242, questions sometimes arise in these declaratory judgment suits as to the effect of a prior determination that the plaintiff was a citizen. If a court has ruled on the merits, whether for or against plaintiff, its determination ordinarily would be dispositive, under the principle of res judicata. Moon v. Dulles, 237 F. 2d 241 (C.A. 9, 1956); Gim v. Brownell, 238 F. 2d 77 (C.A. 9, 1956). Cf. Fujii v. Dulles, 259 F. 2d 866 (C.A. 9, 1958) (prior decision not on merits). A favorable administrative ruling may establish a prima facie title to citizenship, which can be upset only by a clear, unequivocal evidence of fraud or error. Delmore v. Brownell, 236 F. 2d 598 (C.A. 3, 1956); Lung v. Dulles, 261 F. 2d 719 (C.A. 9, 1958). The Government's burden of disproof thus is heavy, particularly if its ruling has been relied on for many years. Cheung v. Rogers, 272 F. 2d 354 (C.A. 9, 1959). However, it has succeeded in prevailing in a number of cases by showing convincingly that the previous ruling was induced by fraud, error of fact (Cheung v. Rogers, supra), or error of law (Montana v. Rogers, 278 F. 2d 68 (C.A. 7, 1960), affirmed, 366 U.S. 308).

This supplement has been prepared at the request of Subcom-
mittee No. 1 of the Committee on the Judiciary, House of Repre-
sentatives, under the direction of L. Paul Winings, General Counsel,
Immigration and Naturalization Service, Department of Justice.
It carries through June 30, 1964, the study of pertinent judicial
decisions.

SECTION 101. DEFINITIONS

6. Good moral character (f)

Isolated acts of sexual intercourse by a man whose wife had aban-
doned him were found in Wadman v. INS, 329 F. 2d 812 (C.A. 9,
1964) not to constitute adultery within the statute and did not pre-
clude the establishment of good moral character. The court stated
that the statute was aimed at "extramarital intercourse which tends
to destroy an existing marriage; which evidences disregard of marital
vows and responsibilities.'

7. Deportation (g)

Reciting the definition of deportation in earlier law, which is carried forward in the present statute, the Supreme Court found that an alien who had left the United States while an order of deportation against him was outstanding had been deported. Mrvica v. Esperdy, 376 U.S. 560 (1964).

SECTION 106. JUDICIAL REVIEW

In Foti v. INS, 375 U.S. 217 (1963), the Supreme Court rejected the narrow reading of the statute adopted by some of the lower courts. and ruled that the courts of appeals now have exclusive jurisdiction to review orders denying suspension of deportation. It also declared that the consideration of other discretionary relief during the deportation proceeding (such as applications for adjustment of status and registry and to withhold deportation because of anticipated physical persecution) are merged in the final deportation order and that denials of such relief during the course of the deportation proceeding are reviewable only in the courts of appeals. Left open was the question whether the denial of a motion to reopen the deportation proceeding likewise is reviewable only by the courts of appeals. On this issue the Supreme Court has granted certiorari in Giova v. Rosenberg, No. 15 Misc. Oct. Term 1963, which should be argued during the Court's 1964 Term.

The United States Court of Appeals for the Seventh Circuit has reiterated the expansive reading of the statute it announced in Roumeliotis v. INS, 304 F. 2d 453 (C.A. 7, 1962), cert. den. 371 U.S. 921, and again has ruled that the denial of a visa petition on behalf of an alien whose deportation has been ordered is ancillary to the deportation order and is reviewable by the courts of appeals under this section. Skiftos v. INS,—F. 2d—(C.A. 7, 1964).

SECTION 212. ALIENS EXCLUDED FROM UNITED STATES.

3. Aliens coming to perform labor (sec. 212(a)(14))

The district court decision in Texas State AFL-CIO v. Kennedy was affirmed in 330 F. 2d 217 (C.A.D.C., 1964). The Court of Appeals did not consider the merits but found that the plaintiffs did not have legal standing to challenge the validity of the alien commuter program. A petition for certiorari is pending in the Supreme Court. 8. Parole of inadmissible aliens (sec. 212(d) (5))

Relevant to the procedure for revoking parole is Gomez-Fernandez v. INS, 316 F. 2d 732 (C.A. 5, 1963), cert. den. 375 U.S. 942, which holds that no hearing is required for the revocation of the privilege of indefinite voluntary departure granted to a supposed Cuban refugee.

SECTION 215. TRAVEL CONTROL DURING TIME OF WAR OR NATIONAL EMERGENCY

The restrictions imposed upon travel by American citizens to Cuba have been upheld. Zemel v. Rusk, 228 F. Supp. 65 (Conn. 1964), MacEwan v. Rusk, 228 F. Supp. 306 (E.D. Pa., 1964). However, in Worthy v. United States, 328 F. 2d 386 (C.A. 5, 1964), the criminal penalty imposed upon a citizen entering the United States without a

valid passport was found unconstitutional, as an improper restraint on his right to return to his own country.

SECTION 237. DEPORTATION OF EXCLUDED ALIENS

2. Physical persecution claims

The holding of Szlajmer v. Esperdy, 188 F. Supp. 491 (S.D., N. Y., 1960), cited in the original discussion, has been disputed by another district court which held that an alien crewman whose conditional landing permit had been revoked had not gained a foothold in the United States, was not entitled to a deportation hearing, and thus could not take advantage of section 243 (h). Glavic v. Beechie, 225 F. Supp. 24 (S.C., Texas, 1963). In the latter case, however, it did appear that the alien crewman's claim of anticipated physical persecution could be considered through a special procedure authorized by a regulation promulgated after the Szlajmer decision, 8 CFR 253.1(e).

SECTION 241. GROUNDS FOR DEPORTATION

1. Interpretation of deportation statutes

The principle that deportation statutes must be narrowly construed was reiterated and applied in Costello v. INS, 376 U.S. 120 (1964). 2. Constitutionality

A deportation order based on a retrospective construction of a 1960 amendment making excludable and deportable an alien convicted for illegally possessing marihuana before enactment of the amendment was approved and the statute was found constitutional in Gardos v. INS, 324 F. 2d 179 (C.A. 2, 1963).

3. Persons amenable to expulsion

Costello v. INS, 376 U.S. 120 (1964), ruled that under the language relating to deportation upon conviction for two crimes involving moral turpitude (sec. 241(a)(4)) a deportation order was not proper against a person who was a naturalized citizen at the time of such conviction, even though his naturalization was later revoked for fraud.

Marks v. Esperdy, summarized in the original discussion, was affirmed by an equally divided Supreme Court. 377 U.S. 214 (1964). 5. Crimes involving moral turpitude (sec. 241 (a) (4))

a. Conviction for crime.-A finding of guilt in California for a narcotics violation after which the proceedings were suspended and defendant placed on probation for 3 years, on condition that he spend the first 90 days in the county jail was held to be a conviction under the deportation statute. Gutierrez v. INS, 323 F. 2d 593 (C.A. 9, 1963). The court adhered to its earlier decision that the finality of a conviction is a Federal, and not a State, question.

6. Narcotics violators

The 1960 amendment subjecting to deportation aliens convicted of possession of marihuana was found applicable to an alien who has entered the United States before the amendment, having been convicted for this violation in Canada prior to such entry. The constitutionality of such a retroactive application was upheld. Gardos v. INS, 324 F. 2d 179 (C.A. 2, 1963). See paragraph 5(a) for discussion of convictions.

SECTION 242 (a). ARREST AND DETENTION PENDING DISPOSITION
OF DEPORTATION PROCEEDINGS

An alien's release on bail in criminal proceedings has been deemed not inconsistent with the authority of the Service to detain the alien pending the determination of his deportability. Application of Bruno, 224 F. Supp. 152 (Puerto Rico, 1963).

SECTION 242 (b). DEPORTATION HEARINGS

6. Effect or prior determinations

There have been continued efforts by deportees who have reentered illegally to challenge the original deportation. In Palma v. INS, 318 F. 2d 645 (C.Ă. 6, 1963), the court restated the rule that such attacks are not permitted unless it is shown that there was a gross miscarriage of justice in the former proceedings, but found no such manifest injustice in the record before it.

SECTION 244. SUSPENSION OF DEPORTATION

The requirement of continuous physical presence was read expansively in Wadman v. INS, 329 F. 2d 812 (C.A. 9, 1964), where the court found that the continuity of such physical presence was not interrupted by a 5-day vacation trip in Mexico.

SECTIONS 245 AND 249. ADJUSTMENT OF STATUS AND REGISTRY

The statute prescribes continuous residence in the United States originating prior to a prescribed date-June 28, 1940-as a prerequisite to eligibility for registry of lawful entry for permanent residence under section 249. In Mrvica v. Esperdy, 376 U.S. 560 (1964), the Supreme Court held that the continuity of such residence was broken by the alien's deportation after the prescribed date, followed by his reentry shortly thereafter.

SECTION 273. BRINGING ALIENS WITHOUT VISA

This section authorizes the imposition of a fine of $1,000 against a transportation line which brings an alien returning to a lawful permanent residence in the United States without a reentry permit or equivalent document. Swissair v. Kennedy, 327 F. 2ď 860 (C.A., Ď.C., 1963).

SECTION 287. POWERS OF IMMIGRATION OFFICERS

Further confirmation of the power of immigration officers to board and search vehicles within a reasonable distance from the border is found in Fernandez v. United States, 321 F.2d 283 (C.A. 9, 1963). The court endorsed the administrative regulation defining the limit to such reasonable distance as 100 miles and upheld a conviction for smuggling narcotics based on evidence produced by such search by immigration officers.

The authority of immigration officers to make arrests without warrant in appropriate cases was supported in United States v. Alvarado, 321 F.2d 336 (C.A. 2, 1963), thus applying and extending the holding in Abel v. United States, 362 U.S. 217 (1960).