Petition for writ of habeas corpus in behalf of a father and mother and four children. One of the children, 3 years of age, Dousnig Keshishian, was excluded by the board of special inquiry, as affirmed by the Secretary of Dabor, for the reason that the quota for the country of her birth, to wit, Cyprus (Other Asia), was exhausted prior to her arrival. Medical certificate was issued in accordance with the provisions of the stаtute, certifying to her helplessness from infancy. The father, therefore, was excluded as accompanying alien, under section 18 оf the Immigration Act of February 5, 1917 (39 Stat. 874 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289J4j])- The balance of the family, the mother and the other three children, were excluded as persons likely to
The petitioner specifically relies upon the late decisions of the United States Circuit Court of Appeals in this circuit, for his relief, to wit, the case of United Stаtes ex rel. Gottlieb v. Commissioner,
Keshishian, in the instant case, had never been to the United States, is coming to remain permanently, and therefore receives no right under the Quota Act as an exception. Following the decision in the Gоttlieb Case, Keshishian has a right of admission under section 3 of the Basic Act as a Merchant, as also has his wife and minor children under 16 years of age. As pointed out by Judge Rogers in the Gottlieb decision at page 298, the Quota Act mentioned certain specified classes as exceptions to this provision of limitation, among them “ministers of any religious denomination.” These classes are admissible, even though thе quota for their nationals has been exhausted.
This presented the following situation: A case where a minister and his wife and children had a right оf admission under the Basic Act, and the minister a right of admission under the Quota Act, but the Quota Act failed to mention his wife and minor children. Judge Rogeirs then said:
“In construing these statutes it is, of course, the duty of the court to endeavor to ascertain the intention and policy of Congress in thе enactment of the legislation in question, and then to make practical application of that intention to the facts of this casе. The fundamental rule of interpretation is that a statute isi to be expounded ‘according to the intent of them that made it.’ ”
Further, Judge Rogers said:
“A constructiоn of a statute which would lead to an absurd result is to be avoided, if possible.”
And in his final paragraph Judge Rogers said:
“Keeping in mind the above rules of interpretation, we cоnstrue the acts of 1917 and 1921 as one statute; the second act being, as provided therein, an addition to, and not a substitute for, the first act. The effect of the second act is to add to the classes excluded under the original act an additional class*806 to those prеviously excluded, but it does not deprive those, to whom a right of entry was expressly given in the first act of the right so granted. Neither the letter nor thе spirit of the second act calls for a construction imputing to Congress the intention to create a condition so unreasonаble and absurd as to admit a minister while at the same time excluding the members of his family.”
It appears that the crux of the entire Gottlieb deсision is based on the last sentence quoted above; the court saying that it would be an unreasonable construction of the two statutеs to say that he should have a right of admission under the Basic Act together with his wife and minor children, and to say that he should have a right under the Quotа Act without his wife and minor children. In other words, the court held that Congress had no intention to separate the minister and his wife.
In the case at 'bar Keshishian, under the Gottlieb decision, had a right of admission under the Basic Act, together with his wife and minor children under 16 years of age, as he cаme within the exceptions included under section 3 of the Basic Act as a merchant; but four years later, when Congress passed the Quotа Act limiting immigrants, it did not give to the merchant a right of admission under the Quota Act, as it did in the Basic Act, so under the Quota Act Keshishian is not entitled to admissiоn.
There is a clear distinction between the Gottlieb and Markarian Cases and this case. In the Gottlieb Case, Gottlieb had a right of admission undеr the Basic Act together with his wife and children, and Gottlieb himself had a right of admission under the Quota Act, and when Congress gave Gottlieb the right of. admission under the Quota Act, and construing the two acts together, so as to follow its constant policy of not separating a husband from his wife and family, it must have intended to admit the wife and minor children with the husband and father.
Judge Rogers has pointed out that Congress has the right to prescribe who shall and who shall not come into the United States. It did not make a merchant an exception under the Quota Act, as it did ministers of the religious denomination. Keshishian, therefore, cannot be heard to say that his case is like the Gottlieb Case, because he himself had no right of admission, and Congress, not intending that he should come in, therefore could not have intended that his wife and minor children might come in. To hold to the contrary would be giving to an alien merchant a right greater than that enjoyed by a citizen merchant now residing in the United States, for the third proviso of section 2, subdivision d, provides as follows:
“That in tbe enforcement of this act, preference shall be given as far as possiblе to the wives * * * of (1) citizens of the United States. * * * ” Comp. St. Ann. Supp. 1923, § 4289%a.
If the wife and other three children desire to be separated from their husbаnd and father, and to come into this country, the writ will be sustained as to them, for the only ground charged by the board of inquiry for excluding them is that they are likely to become a public charge; but as to the father and daughter, Uo-usnig Keshishian, the writ is dismissed.