In September, 1023, the appellant, a British seaman in the British navy, deserted his ship at the port of San Francisco and entered the United States, where, follоwing industrial pursuits., he remained until an undetermined date in May, 1924, when he made a trip into Mexico, returning on the same day, without having presented himself for examinatiоn. Thereafter he remained continuously in the United States. On September 21, 1927, the Secretary of Labor issued a warrant for his arrest on the ground that in May, 1924, he еntered the United States without being admitted 'and charged to the quota allotted to the country of which he was a native for the fiscal year ended Junе 30, 1924. The decision of the Secretary was that the appellant was never lawfully admitted for permanent residence, and that as, on the occasion of his last entry, he was not charged to the quota of his native country, and was not admissible as exempt from quota requirements, the charge in the wаrrant was fully sustained, and the order of deportation was •affirmed.
The appellant’s contention that, at the time of his re-entry in 1924, he was not subject to thе quota restrictions, because he was an alien returning’ from a temporary visit abroad, and that he was such a returning alien, since ho had merely takеn a little pleasure trip to Tia Juana, is not sustainable. He had never been lawfully admitted to the United States, nor was he an immigrant returning from a temporаry visit abroad, within the provisions of the immigration laws. Ffrom the time when he first entered, and up to the time of his visit abroad, he could claim none of tho rights, and immunities granted to alien seamen. He eeased to be an alien seaman, and was subject to deportation, at the moment when, without the intention to roship, but with tho intention to reside unlawfully in the United States, he deserted Ms ship. Masenori Tanaka v. Weedin (C. C. A.)
The question arises whether or not the act approved May 26, 1924 (8 USCA § 201 et seq.), is applicable here. It is shown that the appellant re-еntered, the United States in May, 1924, but whether before or after May 26 is not definitely fixed by the proof. If that act was applicable, the appellant was dearly not entitled to re-enter, because he could not show, as required thereby, that he was an immigrant “previously lawfully admitted to the United States” and wаs returning from a temporary visit abroad. Turning to the Act of 1924, 8' USCA § 204 (b), we find that it makes all aliens returning from a temporary visit abroad nonquota emigrants. We think tho returning aliens there referred to .are aliens who had been lawfully .domiciled in the United States. Such is the construction placed upon tho act by the Secrеtary of Labor, in providing by rule 2a that temporary absence shall be construed to mean “an absence in any foreign country without relinquishment of domiсile,” thus clearly importing that the domicile in the United States must have been lawful. No domicile in the United States can. be established by an alien whose originаl entry was unlawful, United States v. Flynn (D. C.)
But whether the appellant’s right to re-enter be measured by tho act of 1924, or
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by the act of 1921, the result is the same. The act of 1921 is not the only statute which affected the question of his right to re-enter. That statute is not a substitution for the Act of February 5, 1917, 8 USCA § 136, which in subdivision (o) exempts from the operar tion of the illiteracy test “all aliens who have been lawfully admitted to the United States and who have resided therein continuously for five yéars and who return to the United States within six months from the date of their departure therefrom,” and in subdivision (p) provides: “Aliens returning after a tempoi’ary absence to an unrelinquished United States domicile of seven consecutive years may be admitted in the discretion of the Secretary of Labor, and under such conditions as hе may prescribe.” The act of 1917 and the act of 1921 are to be construed in pari materia, in determining the question here involved. United States v. Commissionеr of Immigration (C. C. A.)
The appellant’s re-entry was a new entry. The statutory limitation time for his deportation began to ran from the date thereof. Ex parte Parianos (C. C. A.)
We cannot agree that section 34 applies in any of its provisions to an alien whо intentionally deserts his ship in a port of the United States, abandons his calling as a seaman, and surreptitiously enters the country with intention to remain and engаge in other pursuits. In enacting section 34 of the act of 1917, we think the purpose was to include as alien seamen only those aliens who in the caрacity of seamen had been discharged in ports of the United States, or who under prescribed regulations had been pex’mitted to land temporarily in the United States, but who had failed to re-ship, or to return to their vessels after the expiration of their permission to remain ashore, and that it is not conceivable that, in enacting the immigration laws, Congress intended to favor alien seamen, or offer them inducements to desert their ships and change their occupation, or to condone their unlawful entry into the United States. The case differs from Nagle v. Hansen,
We think that the appellant entered the United States in violation of the Quota Law of 1921 (42 Stat. 5), аnd that within the meaning of 8 USCA § 155, he was an alien who at the time of his x’e-entry was a member of one of the classes excluded by law, and that his ease does not come within the provision of that poxfion of the section which limits to a period of three years after entry the deportation of aliens “who shall have entered the United States by water 'at any time or place other than as designated by immigration officials,” or by land, etc., or who enter “without inspection,” for the classes of aliens referred to in that provision are evidently persons who at the time of entry are such as are entitled to enter*, and not persons who are excluded by any prevision of the law.
The judgment is affirmed.