Cornell

By this action, plaintiff, an alien, sought a judicial declaration in the District Court that an order of deportation issued by the United States Department of Justice, Immigration and Naturalization Service, was invalid. Plaintiff prayed for declaratory relief, and for an injunction restraining the execution of said order of deportation, alleging that appellant had exhausted his administrative remedies. The District Court 1 denied relief .to appellant. This is an appeal therefrom.

Section 212(a) of the Immigration and Naturalization Act of 1952, 66 Stat. 182 , Title 8 U.S.C.A. § 1182 (a) provides in pertinent part:

The order of deportation issued against the defendant rested on two grounds:

(1) that prior to his last entry into the United States he had been convicted of a crime involving moral turpitude, to wit, the crime of wilfully attempting to defeat or evade the income tax; (Internal Revenue Code of 1939, Title 26, U.S.C.A. § 145 (b) );

(2) that he had procured a visa for such last entry by fraud or by wilfully misrepresenting a material fact.

The District Court found that the warrant of arrest was issued, charging appellant with being subject to deportation, on April…

(concurring).

My opinion in Twentieth Century-Fox Film Corp. v. Lardner, 9 Cir., 216 F.2d 844 , 51 A.L.R.2d 728 , has created some trouble here. Therein we divided crimes into three categories: 1. Those necessarily involving moral turpitude. 2. Those not involving moral turpitude. 3. Those which might or might not involve moral turpitude. As an example of class *940 (3), we referred to a conviction of willful failure to pay federal income tax. We then cited In re Hallinan, 43 Cal.2d 243 , 272 P.2d 768 , where the California Supreme Court held that Hallinan’s conviction did not import per se moral turpitude.

Without retreating from what was there said, it is evident that a word of explanation is necessary. Lardner’s case was a civil diversity case. We were bound to apply California law. At the time of the decision in Lardner, Hallinah’s case was new. California had just held that for California purposes — a statute for disbarment involving moral turpitude — Hallinan’s conviction was one that might or might not involve moral turpitude. If California should hold any kind of a federal income tax conviction could never involve moral turpitude, we should follow California in…