Zank

This is a motion by appellant to remand the cause to the district court with instructions to vacate the judgment and to dismiss the action.

Appellant Zank brought an action in the United States District Court for the Southern District of California, Central Division, against the District Director of Immigration and Naturalization Service, Herman R. Landon, for declaratory relief and for a review of the deportation hearing in which it was held that Zank should be deported. The district court rendered a judgment adverse to Zank and he appealed. Included in the findings of fact below were the following: That there were no procedural irregularities in the hearing; that there was. substantial evidence to support the warrant of deportation and that the hearing was fair.

The district court’s decision was entered on December 24, 1952. Subsequently, on March 16, 1953, the Supreme Court rendered its decision in Heikkila v. Barber, 345 U.S. 229 , at pages 234, 235, 73 S.Ct. 603 , holding, that a deportation may be attacked only in a habeas corpus proceeding. Zank apprehends that because of this decision we will be constrained to affirm the judgment and that the facts found will be held res…