Opinion
Leo E. Ypsilanti, of New York City, N.Y., for relator.
HOLTZOFF, District Judge (sitting by designation).
This is a petition for a writ of habeas corpus to stay the relator's deportation while he pursues certain administrative remedies and while an action for declaratory judgment brought by him in the United States District Court for the District of Columbia to set aside the deportation order is determined.
A writ of habeas corpus may not, however, be issued for any such purpose. The great prerogative writ may be used only to test the legality of a restraint of liberty. In other words, in a deportation proceeding it may be employed as a means of attacking the legality or the regularity of the order of deportation. It may not be used as a means of an appeal to the court to stay deportation in its discretion. As the petition does not disclose any valid ground why the order of deportation should be set aside and the relator discharged, the petition is denied.
The court may observe in addition that another application made by this relator on substantially similar facts was denied by this court about ten days ago. While an adverse decision in a habeas corpus proceeding does not constitute res judicata, nevertheless, in the absence of some exceptional showing, repeated applications based on substantially the same facts, are not to be favored.