SWAN, Circuit Judge.
This appeal presents interesting procedural questions as to the remedy available to a concededly deportable alien who contends that he has been denied the opportunity to present evidence as to his eligibility for suspension of deportation under § 19(c) (2) of the Immigration Act of 1917, as amended, formerly 8 U. S.C.A. § 155(c), now dealt with in the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1254.
The plaintiff is a native and citizen of Portugal, 42 years old. He first entered the United States as a stowaway in 1940. He resided here until his departure under a warrant of deportation in December 1945, when he returned to his family in Portugal for more than a year. He came back to the United States, again as a stowaway, in April 1947.
In the light of Heikkila v. Barber, 345 U.S. 229, 73 S.Ct. 603, it may well be doubted whether habeas corpus, after the alien has been taken into custody under the warrant for deportation, is not the sole remedy for reviewing the order of deportation. The appellant contends, however, that Heikkila did not overrule the exception recognized in McGrath v. Kristensen, 340 U.S. 162, 71 S.Ct. 224, 95 L.Ed. 173 and that he is within that exception. The Kristensen case held that an administrative decision against a requested suspension of deportation under § 19(c) of the Immigration Act of 1917 (based solely on the ground that the alien was ineligible for naturalization by reason of having claimed exemption from military service) can be challenged in a suit for a declaratory judgment by an alien not in custody. The appellee argues that that case is distinguishable from the case at bar because the Commissioner's order of May 31, 1951 denying the appellant's motion to reopen the hearing, was made upon the assumption of the alien's eligibility for suspension of deportation and was a decision on the merits and not, as in Kristensen, solely on the basis of the alien's ineligibility for naturalization.
Assuming arguendo that the appellant could have brought a declaratory judgment action against the Attorney General and the Commissioner of Immigration, as in the Kristensen case, to establish his eligibility for suspension of deportation, he did not do so. He sued only the District Director of Immigration in New York. Judge Dimock held that the Commissioner and/or the Attorney General were indispensable parties. We agree, and see no occasion to add to his discussion and citation of authorities. Judgment affirmed.
"For our immediate purposes we will assume without conceding that the respondent meets the statutory requirements for suspension of deportation. Nevertheless he is a recent illegal entrant into the United States whose only close relative in the United States is a son whose emulation of his father's disregard of the immigration laws also resulted in his coming to the United States illegally.
"On the assumption that respondent is eligible for suspension of deportation and voluntary departure, the conceded facts should preclude either form of relief.
"Since the facts sought to be proved by counsel at the reopened hearing could not affect the decision, the motion will be denied."