(dissenting).

This is not the ordinary case, and the result reached by my brothers in treating it as though it were such serves, not to accomplish justice, but rather to perpetuate an injustice. The government itself admits that the warrant of deportation arose out of an unfair hearing. (As stated by the majority, after a fair hearing was had the Board of Immigration Appeals, reversing both the Board of Special Inquiry and itself, held Eng entitled to remain here.) Yet the government now contends, and my brothers hold, that the bond posted to guarantee Eng’s surrender “in case he is found to be unlawfuly within the United States” was properly forfeited notwithstanding such a finding was unlawfuly made.

The majority opinion states that “The question of liability of the bondsman must be determined by the condition existing at the time of the alleged forfeiture.” What was that condition? The Board of Special Inquiry after a hearing had authority to determine whether Eng might be admitted to the United States, 39 Stat. 874 , 887. Lack of a fair hearing vitiated its order of deportation, Chin Yow v. United States, 208 U.S. 8 ., 28 S.Ct. 201 , 52 L.Ed. 369 , Estep v. United States, 327 U.S. 114, 120-125 , 66 S.Ct. 423 , 90 L.Ed. 567 , so there was no valid finding that Eng was unlawfully within the United States. Applying the majority’s test, therefore, there was at the time of the alleged forfeiture no valid order for Eng’s deportation. It would seem unconscionable to require one to surrender to the immigration authorities for deportation if it were clear that there was no legal basis for the requirement.

The majority cite a number of cases— five altogether — none of which is pertinent or germane to the facts here. Unlike this case, none of them involved an order to appear arising out of a proceeding which violated due process and all of them concerned matters taking place after a default, rather than existing at the time of the alleged default.

I would affirm the holding of the trial judge.