272 F. 480 | D. Mass. | 1921
Habeas corpus to the Immigration Commissioners. The petitioner’s contentions are: (1) That having been actually discharged from detention and admitted into the country under the decision of the Board of Special Inquiry, before an appeal was taken on behalf of the government, that proceeding was terminated, and he could not he rearrested, except upon a proper warrant, which admittedly was not issued; and (2) that the Secretary acted unfairly and in violation of the petitioner’s fundamental rights in reversing the Board of Special Inquiry and excluding the petitioner.
As to the first question: The facts are not in dispute and are as follows: At the conclusion of the hearings before the Board of Special Inquiry, the board voted to admit the applicant. No appeal was at that time taken by the dissenting member. In accordance with the usual practice in the department, the decision was immediately put into effect; the applicant was notified of his admission; he was given a slip which released his baggage; he presented this slip at the baggage room of the detention station and received his baggage; and he thereupon left the station with the full knowledge and permission of the immigration officers, who understood that he had been legally admitted to the country. Shortly afterwards the dissenting member of the hoard gave notice of an appeal. A friend of the applicant was sent after him, and found him on the street about a quarter of a mile from the station. He told the applicant that his presence was desired at the immigration station, and the applicant went back with him. Arriving there, lie was again placed in detention.
The Immigration Rules do not explicitly provide as to the time when an appeal shall be taken by a dissenting member of the board. They say, “An appeal may also be taken by a board member who dissents from a majority vote to admit” (Rule 17, subd. 2), and that “Appeals must be filed promptly” (Rule 17, subd. 3). An alien loses his right of appeal, except in the discretion of the immigration officer, unless it is taken within forty-eight hours after the decision. By the practice of the department, an appeal by a dissenting member of the board from an order of admission is taken at the time when the decision of the board to admit is made, and it stays the admission pending the appeal. Without sucli an appeal the vote becomes effective at once. The admission of this alien was in accord with the established practice.
It follows that the petitioner is entitled to the writ. It is unnecessary to pass upon the other question.
Writ to issue.