46 F.2d 669 | D. Vt. | 1928
The relator is a returning Italian immigrant, and has been denied admission by a board of special inquiry because he did not have an immigration visa in accordance with the Immigration Act of 1924.
The legal question is: Is he a nonquota immigrant having been lawfully admitted to the United States, and is ho returning from a temporary visit abroad? The evidence is all one way. Section 4 (b) of the Act of 1924 (8 USCA § 204 (b) defines a nonquota immigrant as “an immigrant previously lawfully admitted to the United States, who- is returning from a temporary visit abroad.” Section 13(a), 8 USCA § 213 (a) (1, 4), (b), provides: “No immigrant shall be admitted to the United States unless he (1) has an unexpired immigration visa * * * and (4) is otherwise admissible under the immigration laws.” Subsection (b) provides: “In such classes of eases and under such conditions as may be by regulations prescribed immigrants who have been legally admitted to the United States and who depart therefrom temporarily may be- admitted to the United States without being required to obtain an immigration visa.” Subdivision I, par. 2, of rule 3 of the Rules of July 1, 1925 (p. 96), provides: “An alien claiming to- bo nonquota immigrant by reason of having been previously lawfully admitted to the United States and to be returning from a temporary visit abroad shall bo required to establish such fact to the satisfaction of the examining immigration official: Provided, That the presentation of a return permit duly issued to such alien pursuant to the provisions of section 10 of the immigration act of 1924 shall be deemed prima facie evidence of the fact that such alien is returning from a temporary visit abroad.” And par. 5 of the same rule (p. 96) provides: “Where an immigrant claiming a non-quota, status fails to satisfactorily establish such status in the manner required by this subdivision, he shall he held for examination in relation thereto by a board of special inquiry.”
The relator came to the United States from Naples, Italy, when a boy eight years old, and was lawfully admitted at the port of New York in 1908. He has had his domicile in New York ever since. The evidence of this is clear. His father came over from
After his graduation in June, 1924, he was refused an Italian passport to the United States because there were two or three hundred thousand applicants ahead of Mm. He then obtained a passport for England. There it was reissued for Canada, and there reissued for the United States, but a non-quota immigration visa was refused by the United States Consul at Montreal, Canada.
He was temporarily admitted to the United States for six months at Montreal, on June 16, 1925, on giving a bond conditioned that he would return to Canada, etc. Later the time was extended- to January 10, 1927. During this time, after being at Ms home in New York City for about a month, he entered Flower Hospital at Sixty-Fourth street as an interne-exteme, and after eight or nine months he became a regular interne there. He went to Montreal and presented himself to Immigrant Inspector Lavandeira for inspection and admission as a returning nonquota immigrant having been lawfully admitted to the United States and returning from a temporary visit abroad, was held by the inspector and examined hy a board of special inquiry there, and rejected on August 20, 1926, because he did not have a nonquota visa. He then came back to his home in New York City and resumed his position as an interne at the hospital until January 10, 1927, when he returned to Montreal in obedience to the condition of his bond and had it canceled. Later he presented himself to Immigrant Inspector Lineourt at the port of St. Albans, Vt., for inspection and admission as a returning nonquota .immigrant having been lawfully admitted to the United States and returning from a temporary visit abroad, was held by the inspector, examined by a board of special inquiry -at the port of St. Albans, Vt., and on February 10 was rejected because he did not have a nonquota visa “in conformity with the Immigration Act of 1924.”
The evidence introduced at both hearings is made the record of the last examination. The relator was returning from a temporary visit' abroad and was entitled to be admitted without a nonquota visa, as provided in section 4(b) of the Act of 1924, 8 USCA § 204(b), and section 13 (a) (4) and (b) of that Act, 8 USCA § 213 (a) (4) and (b), and subdivision I, par. 2, of rule 3 of the Buies of 1925. He was returning to Ms home which had actually been kept for him by Ms father and mother during all the time he was away. He was returning to his family — Ms father and mother, his brother -and sister. This was more than a retention of domicile. It was retaining an actual home wherein Ms parents and his brother and sister were actually living and actually waiting for Ms home-coming. U. S. v. Day (C. C. A.) 21 F.(2d) 307. Section 10 of the Act of 1924 (8 USCA § 210) and subdivision F of rule 3 (p. 93) of the Buies of 1925 do not apply to a returning immigrant who left the United States for a temporary visit abroad before that act was passed and the rules adopted. Such immigrants returning from a temporary visit abroad could not comply with that section or that rule. In the act of 1924, Congress did not limit returning nonquota immigrants to those who have temporarily been abroad for six months. The only condition wMeh Congress has imposed is that they have departed temporarily and that they are returning from such temporary visit abroad. From the language of section 10 (8 USCA § 210) and subdivision F of rule 3 (p. 93) of the Buies of 1925, it is plain that they apply only to immigrants leaving for a temporary visit abroad after the statute was passed. Any other construction would prevent all immigrants who happened to be temporarily vis
The relator should have been admitted. Therefore he is discharged.