257 F.2d 606
KWONG HAI CHEW, Appellant,
William P. ROGERS, Attorney General of the United States, et al., Appellees.
United States Court of Appeals District of Columbia Circuit.
Argued March 18, 1958.
Decided May 7, 1958.
Mr. Carl S. Stern, of the bar of the Court of Appeals of New York, pro hac vice by special leave of court, New York City, with whom Mr. David Rein, Washington, D. C., was on the brief, for appellant.
Mr. Harold D. Rhynedance, Jr., Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., and Lewis Carroll, Asst. U. S. Atty., were on the brief, for appellee.
Before WASHINGTON, DANAHER, and BASTIAN, Circuit Judges.
This case came on for consideration on the transcript of the record and was argued by counsel.
Upon consideration whereof, the court has concluded: (1) that the law of this case is that if Chew is to be deprived of his status — a status described in Kwong Hai Chew v. Colding, 344 U.S. 590 at page 596, 73 S.Ct. 472, at page 477, 97 L.Ed. 576, as "assimilate[d] * * * to that of an alien continuously residing and physically present in the United States" — the Immigration and Naturalization Service may do so only in proceedings in which the Service is the moving party, and bears the burden of proof; (2) that the proceedings here under review were conducted under a different theory than that just stated, to the prejudice of the appellant; and (3) that it is not necessary at this time for this court to express an opinion with respect to the other contentions of the parties in this case.
Now, therefore, it is Ordered by the court that the judgment of the District Court appealed from herein be, and it is hereby, vacated and that this case be, and it is hereby, remanded to the District Court with directions to remand the case to the Immigration and Naturalization Service for reopening of the deportation proceedings and for reconsideration and further findings in the light of the foregoing and of Rowoldt v. Perfetto, 1957, 355 U.S. 115, 78 S.Ct. 180, 2 L.Ed.2d 140.