(after stating the facts as above).
The learned District Judge adopted the views expressed in the opinion in Johnson
Although we have great respect for the court which rendered the decision in Johnson v. Keating, Supra, we cannot agree with that decision. Section 13 (a) of the Immigration Act of 1924, 8 USCA § 213 (a), so far as pertinent to the present ease, denies an immigrant admission to the United States unless he has an unexpired immigration visa..
.Subdivision (b) of the same section is as follows: “(b) 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.” (8 USCA § 213(b).
The 1930 regulations prescribed and applicable provide: “Par. 2. An alien claiming to be a non-quota immigrant on the ground that he had been previously lawfully admitted to> the United States and is returning from a temporary visit abroad shall not be admitted as such unless at the time of arrival he shall establish that he has been previously lawfully admitted to the United States and is returning from a temporary visit abroad, and presents an unexpired valid immigration visa duly issuedP by an American consular officer designating the holder as such: Provided, that the presentation of an unexpired valid permit to reenter, duly issued to the holder thereof pursuant to the provisions of Sec. 10 of the Immigration Act of 1924, shall be deemed to show prima facie that such holder is returning from a temporary visit abroad, and shall he accepted also in lieu of immigration visa.”
Thus it appears that, regardless of other requirements, a returning alien cannot enter unless he has either an immigration visa or a return permit. If he has one or the other, he is not limited in the proof of his right to enter to the prima facie proof afforded by the visa or the permit, but possession of one or the other of those two documents is an absolute condition upon his admission. Seo United States ex rel. Timpano v. Day (D. C.) 21 F.(2d) 852.
It is true that section 10 (f) of the Immigration Act of 1924, 8 USCA § 210 (f), provides that: “(f) A permit issued under this section shall have no effect under the immigration laws, except to show that the alien to whom it is issued is returning from a temporary visit abroad; but nothing in this section shall be construed as making such permit the exclusive means of establishing that the alien is so returning.”
If read literally, this might be taken to nullify the regulation in so far as it provides that the return permit “shall be accepted also in lieu of immigration visa.” But we think it plainly has to do only with the effect of the permit as evidence and not with its possession being made a condition for dispensing with the necessity for having an immigration visa if an alien can bring himself within the regulations authorized by section 13 (b) of the Act of 1924, 8 USCA § 213 (b). U. S. ex rel. Timpano; v. Day, supra.
Order reversed.