Bauer v. Watkins (171 F.2d 492, 1948)

L. HAND, Chief Judge.

Bauer has appealed from the denial of a second writ of habeas corpus, issued after our affirmance of the denial of bis first writ. We then held no more than that the judgment of the Seventh Circuit in the action for a declaratory judgment had conclusively established that he had forfeited his American citizenship by his induction into the German army dn 1940. The Seventh Circuit had said at the end of its opinion — which states all the facts so fully that we need not repeat them here— that it would not pass upon the question whether Bauer was a German or a French citizen; and, since upon his appeal before us he had rested bis case only upon the assertion that he was still an American citizen, we too did not consider that question. Now, however, his enemy citizenship does come up, and upon its answer depends whether he is deportable under the Act of 1798. Since the respondent concedes that he is not to be regarded as a “denizen” of Germany, we have to inquire only whether he is either a “native” or a “citizen” of Germany, an issue on which the respondent has the burden of proof. In United States ex rel. D’Esquiva v. Uhl and United States ex rel. Gregoire v. Watkins we decided that under the Act of 1798 a person