This is an immigration case. It is a sequel to Marcello v. Bonds, 349 U.S. 302, 75 S.Ct. 757, 99 L.Ed. 1107, in which the Supreme Court declared Carlos Mar-cello to be a deportable alien. That was in 1955. Since that time numerous efforts have been made by the Government to effect his deportation. Roadblocks have been placed in its path by litigation brought by Marcello, as well as by refusals by other countries to accept him.
Finally, on April 4, 1961, the Government physically removed Marcello from Louisiana to Guatemala. On the following day, Marcello’s ' attorneys brought this suit on his behalf in the United States District Court for the District of Columbia. The complaint alleged that the Government had utilized a false birth certificate to procure his entry into Guate-' mala; that the deportation was accomplished in violation of a stipulation by the Solicitor General that Marcello would receive three days notice of any proposed deportation; that he was denied the assistance of counsel; and that the statutory provision for deportation to any country willing to receive an alien (8 U.S. C. § 1253(a) (7) ) is unconstitutional. The complaint asked (1) for a declaration that appellant’s deportation to Guatemala was illegal; (2) that enforcement of the statute be enjoined; and (3) that the immigration authorities be ordered to authorize his reentry into this country.
On cross-motions, the District Court granted summary judgment for the Government, and dismissed the complaint, under date of May 24, 1961. A motion by Marcello for reconsideration was denied on June 5. A motion was then made by Marcello on June 9th to vacate the summary judgment under Fed.R.Civ.P. 60(b), attaching an affidavit of counsel' that Marcello had surrendered himself to the Immigration and Naturalization ■ Service in New Orleans on June 5th. A hearing on this motion was held on June 16, 1961, at which it appeared that Mar-cello had reentered the United States in some fashion, and that the Government had begun a criminal prosecution against him in New Orleans. On June 20, 1961, the District Court denied the motion to vacate; on June 26, it filed an opinion *876purporting to decide the case on the merits, in favor of the Government. See 194 F.Supp. 750. Appeal was taken from the summary judgment and from the court’s orders of June 5 and June 20.
It is to be noted, in the first place, that the Government filed no counterclaim for a declaration that Marcello was properly deported, and no declaratory judgment to that effect was actually issued. Judge Holtzoff’s opinion does not purport to be a judgment: it is an explanation of his views and of his refusal to vacate the existing judgment. Accordingly, the binding effect on Marcello of the judgment below — as a decision on the merits rather than as a mere dismissal of his 'complaint — may well be subject to some question.1
In our view, the District Court should simply have dismissed the complaint, in the exercise of its informed discretion. By June 20th it was clear that the question of reentry was irioot, since Marcello was back in the United States. The only possible relief asked in the complaint which did not become moot was a declaration of rights. But such a declaration must settle a case or controversy. It should not be issued — either formally or informally — where (as here) its significance and effect remain in doubt.
By June 20 it was also clear that Mar-cello’s defense to the pending criminal prosecution would be that his deportation to Guatemala was illegal. Further, it was clear that the Government was issuing a new deportation order against Marcello; that this order could and in all probability would be subjected to judicial review; and that the question of the legality of the deportation to Guatemala would be a vital issue on review. All these proceedings, including any judgment of conviction rendered in the criminal prosecution, would be reviewable in the Fifth Circuit Court of Appeals.2
In its brief the Government, in urging us to affirm the judgment below on the merits, states that “appellant’s illegal reentry has produced a criminal prosecution and a new deportation proceeding which may both essentially rest upon the judgment of the District Court below. In view of its potential effect on those proceedings, the declaratory aspect of his case obviously still presents a live controversy. * * * The whole object of the declaratory judgment procedure is to remove uncertainty from legal relations, by expeditiously settling disputed issues ‘on which a whole complex of rights may depend.’ ” This statement of the situation appears to us to demand the very opposite conclusion from that which the Government (and appellant also, it may be mentioned) suggests. We think that under these circumstances a court sitting in the District of Columbia should not have attempted to settle the questions raised by this complaint,3 or to pass upon the merits of Marcello’s position, either favorably or unfavorably, particularly on a record consisting solely of affidavits and exhibits. We assume that in the criminal prosecution Marcello would assert that he was entitled to produce live witnesses and have the jury decide issues of credibility. We assume that he would likewise assert that the trial judge in the criminal case would not be bound to accept the result here reached by Judge Holtzoff, on a different record, and that the judge would not be bound to instruct the jury as a matter of law on the basis thereof that Marcello’s deportation to Guatemala was legal. (We do not, of course, decide or infer that any of these assertions would be valid: we merely point out that issues of this sort would be almost certain to arise.)
It is true that Marcello initiated the action here, and there is much to be said for holding him to the result. But in a crim*877inal case the burden of proof is on the Government, and the question whether it has met its burden should be decided in the criminal proceeding, on the record there made. We are also aware that as of May 24, 1961, the date the judgment of dismissal was entered, the circumstances on which we now rely either had not come to pass or had not been made known to the District Court. Consequently, the initial assumption of jurisdiction can hardly be said to have constituted an abuse of discretion. These facts had come to light, however, by the time appellant made his motion to vacate the judgment of dismissal as well as at the time Judge Holtzoff rendered his opinion explaining the basis of the dismissal. Consideration should have been given to these intervening circumstances. Cf. McKay v. Clackamas County, 349 U.S. 909, 75 S.Ct. 599, 99 L.Ed. 1244 (1955), vacating 94 U.S.App.D.C. 108, 126, 219 F.2d 479, 497 (1954).
The courts have a broad measure of discretion to decline to issue declaratory judgments, see Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 300, 63 S.Ct. 1070, 87 L.Ed. 1407 (1943), and such discretion to decline should have been exercised in this case. Under the circumstances, “The judgment of dismissal below must therefore be affirmed, but solely on the ground that, in the appropriate exercise of the court’s discretion, relief by way of a declaratory judgment should have been denied * * Great Lakes Dredge & Dock Co. v. Huffman, supra at 301, 63 S.Ct. at 1074, 87 L.Ed. 1407. To clarify the record, the judgment and orders on appeal will be vacated, and the case remanded to the District Court with directions to dismiss the complaint.
So ordered.
. Cf. Bobchard, Declaratory Judgments at 812 ff. (2d Ed. 1941).
. See Act of September 26, 1961, 75 Stat. 651, 8 U.S.C. § 1105a.
. Cf. Williams v. Virginia Military Institute, 91 U.S.App.D.C. 206, 198 F.2d 980 (1952), cert. denied, 345 U.S. 904, 73 S.Ct. 640, 97 L.Ed. 1341 (1953).