David C. Marcus, Los Angeles, Cal., for appellant.

Francis C. Whelan, U.S. Atty., Donald A. Fareed and James Dooley, Asst. U.S. Attys., Los Angeles, Cal., for appellee.

Before BARNES and HAMLIN, Circuit Judges, and SOLOMON, District Judge.

SOLOMON, District Judge.

Appellant, Jesus Arellano-Flores, appeals from the District Court's dismissal of a habeas corpus proceeding in which he challenged the legality of an order for his deportation.

Appellant is a native and citizen of Mexico. He last entered the United States in 1954, although he has been a permanent resident alien in the United States since 1925.

In 1956, appellant was convicted of selling marijuana in violation of 11,500, Health and Safety Code of the State of California. For this violation, the Los Angeles County Superior Court ordered the proceedings suspended and Arellano-Flores placed on probation for a period of five years on condition that he serve one year in the county jail.

Shortly thereafter, upon notice, a Special Inquiry Officer of the United States Immigration and Naturalization Service held a hearing and ordered appellant deported pursuant to 8 U.S.C.A. 1251 (a)(11), which provides for the deportation of an alien convicted of a narcotics violation.

The Board of Immigration Appeals affirmed the deportation order and issued a warrant of deportation. Appellant then brought proceedings for judicial review of the deportation order. This Court affirmed a judgment which upheld the deportation order and warrant. Arrellano-Flores v. Hoy, 9 Cir. 1958, 262 F.2d 667; cert. denied 362 U.S. 921, 80 S. Ct. 673, 4 L. Ed. 2d 740 (1960).

While his petition for certiorari to the United States Supreme Court was pending, appellant asked the Board of Immigration Appeals to reconsider the deportation order. Appellant contended that if his conviction under the California Health Code were to be expunged under California Penal Code, 1203.4,1 then there would be no conviction to support the deportation order. The Board of Immigration Appeals denied the motion.

On May 13, 1960, appellant filed a motion in the Los Angeles County Superior Court to terminate his probation, dismiss the cause, set aside the plea of guilty, and enter a plea of not guilty. In accordance with the provisions of 1203.32 and 1203.4, California Penal Code, the Court granted the motion. Appellant again requested the Board of Immigration Appeals to reconsider its decision and order, but the Board denied the motion on the ground that on October 12, 1959, the Attorney General of the United States had ruled that an expungement based upon a statute such as the California Penal Code, 1203.3 and 1203.4, would not invalidate a finding of deportability under Title 8 U.S.C.A. 1251(a)(11).

On May 20, 1960, appellant filed a declaratory judgment action, Civil Action No. 582-60 WB, in the United States District Court for the Southern District of California, in which he challenged the validity of the deportation order in the ground that the order was made moot and the warrant void by the May 13, 1960, proceedings in the Los Angeles County Superior Court.

The District Court found that the deportation order was valid and arellano-Flores deportable on the ground that the termination of probation and the expungement of the record of conviction in accordance with the California State law did not wipe out the conviction within the meaning of Title 8 U.S.C.A. 1251(a)(11). Appellant did not appeal.

On June 20, 1961, Arellano-Flores filed a petition for a writ of habeas corpus in the same District Court. He again challenged the validity of the deportation order. He raised the identical grounds which he asserted in the prior action, Civil Action No. 582-60 WB, but instead of again bringing a declaratory judgment proceeding, he filed a habeas corpus petition. The trial court held that all of the issues raised by the petition concerning Arellano-Flores' deportability and the validity of the order of deportation were determined by the judgment in the prior declaratory judgment action, and, on the theory of res judicata, may not be relitigated. The Court also held that even if the doctrine of res judicata were not applicable, the order of deportation is valid and Flores deportable for the reasons set forth in the findings, conclusions and judgment of Civil Action No. 582-60 WB.

We need not consider the alternative holding by the District Court, for we hold that the declaratory judgment was final and determinative of all of the issues raised in the present habeas corpus proceeding.

Either habeas corpus or declaratory judgment proceedings are appropriate to review deportation or exclusion orders. Shaughnessy v. Pedreiro, 349 U.S. 48, 75 S. Ct. 591, 99 L. Ed. 868 (1955); Brownell v. Tom We Shung, 352 U.S. 180, 77 S. Ct. 252, 1 L. Ed. 2d 225 (1956). But judicial relief is not intended to be cumulative. This Court on two occasions has held that the validity of a deportation order may not be relitigated on the same issues in collateral proceedings. Cruz-Sanchez v. Robinson, 249 F.2d 771 (1957). Rystad v. Boyd, 246 F.2d 246 (1957); cert. denied 355 U.S. 912, 78 S. Ct. 340, 2 L. Ed. 2d 273; rehearing denied 355 U.S. 967, 79 S. Ct. 534, 2 L. Ed. 2d 543 (1958).

In Cruz-Sanchez v. Robinson, supra, an alien who was ordered deported failed to appeal a decision rendered against him in a habeas corpus proceeding. He later filed a petition for declaratory judgment. In a persuasive opinion the District Court denied relief. Cruz-Sanchez v. Robinson, 136 F. Supp. 52 (D.C.S.D.Cal.1955). Cruz-Sanchez appealed, and we denied relief:

'We find nothing in the statutes, and nothing in decisions has been called to our attention which premits cumulative remedies by habeas corpus and declaratory petition, respectively or in reverse order, against the same order of deportation or the same proceedings upon which it is based.

'Cruz-Sanchez had a complete review in habeas corpus. * * * In the declaratory petition, Cruz-Sanchez set up nothing which had not been passed upon already. * * * No excuse is alleged for failure to set up all grounds for relief in the habeas corpus proceedings.' 249 F.2d 774-775.

In Rystad v. Boyd, supra, the alien first brought an action for declaratory judgment in which she challenged the validity of a deportation order. She failed to appeal from an adverse judgment. After the Board of Immigration Appeals refused fused to reconsider its order for her deportation, she filed a second declaratory judgment petition, coupled with a habeas corpus petition. We held that the first judgment was 'final and determinative' of the issue raised in both proceedings. 246 F.2d 248.

In Anselmo v. Hardin, 3 Cir. 1958, 253 F.2d 165, the Court held that a habeas corpus judgment in favor of an alien was res judicata when the alien later sought a declaratory judgment to invalidate a subsequent deportation order based on the same ground adjudged in valid in the prior habeas corpus proceeding. See also Wong Doo v. United States, 265 U.S. 239, 44 S. Ct. 524, 68 L. Ed. 999 (1924).

The judgment of the prior action (declaratory judgment, Civil Action No. 582-60 WB) disposed of all of the issues raised in this habeas corpus proceeding. Arellano-Flores may not relitigate in a subsequent proceeding the matters previously decided from which no appeal was taken. He may not use a writ of habeas corpus as a substitute for an appeal. McMullen v. Squier, 9 Cir. 1944, 144 F.2d 703; cert. denied 324 U.S. 842, 65 S. Ct. 586, 89 L. Ed. 1404 (1945).

Affirmed.