SWAN, Circuit Judge.
The appellant is an alien who concededly is illegally in the United States and is subject to deportation. After a warrant was issued directing his deportation to Yugoslavia, if that country would accept him, and otherwise to Italy, he was granted an administrative stay to enable him to present before a hearing officer evidence that deportation to Yugoslavia would subject him to physical persecution. On May 21, 1952, the Commissioner of Immigration, as the duly designated delegate of the Attorney General, reported that "after a review of the facts in this case, I do not find that if this alien is deported to Yugoslavia he would be subjected to physical persecution."
It may well be doubted whether a motion for rehearing on the ground of newly discovered evidence is an appropriate procedure in a habeas corpus case. There would appear to be no need for it. The doctrine of res judicata is inapplicable to writs of habeas corpus, consequently newly discovered facts can be presented by a new petition for a writ without the necessity of obtaining reversal of the order dismissing a prior writ.
In any event the appeal brings up for review the denial of the movant's alternative prayer for relief, namely, that a writ of habeas corpus be issued on the basis of new evidence set forth in the motion papers. The appellee calls attention to the fact that there was no compliance with 28 U.S.C.A. § 1914(a), which requires the applicant for a writ of habeas corpus to pay a five dollar filing fee, and Rule 26 of the General Rules of the United States District Court for the Southern District of New York, which requires such fee to be paid in advance. We are not disposed, however, to rest affirmance on so technical a ground. We pass, therefore, to a consideration of the merits.
The appellant complains that he was denied procedural due process because in deciding that he would not be subjected to physical persecution if deported to Yugoslavia the Commissioner resorted to matters outside the record and used confidential information never disclosed to the appellant. He supports this assertion by quoting a statement made in March 1953 by Robert L. Stern, Acting Solicitor General, regarding this very case.
That section modified the language of the former statute
The second item of alleged new evidence is the claim that it was general practice of the United States to make diplomatic inquiry of the foreign government as to persecution of the alien if deported. That this was the general practice of the Government was categorically denied. In a single instance a subordinate official made such an inquiry without so far as appears any authorization to do so. Whether a diplomatic inquiry should be addressed to a foreign government is a purely discretionary matter, and in the absence of proof of a general practice, the contention that the Attorney General acted arbitrarily in not making such an inquiry of Yugoslavia merits no discussion.
The final item of new evidence is the alleged arbitrary transfer of the appellant from Ellis Island to the Federal House of Detention on West Street. That aliens may be legally there detained has been twice decided by this court. United States ex rel. Russo v. Thompson, 2 Cir., 172 F.2d 325; United States ex rel. Russo v. Thompson, 2 Cir., 188 F.2d 244, certiorari denied 341 U.S. 954, 71 S.Ct. 1005, 95 L.Ed. 1376; see also 8 U.S.C.A. § 1252(c).
"We are advised by the Commissioner of Immigration and Naturalization that such transcripts, exhibits and the reports of investigators are carefully examined by persons assigned to this work in the Immigration and Naturalization Service, who also compare and consider any additional information adduced by or concerning the alien in the record of the deportation hearing and any additional information available or, when necessary, obtained from other governmental sources. Obviously, certain of the information and its sources cannot be disclosed. Hence, the undesirability, as well as lack of necessity, of adducing of evidence by the Government at the inquiry."