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United States v. District Director of Immigration and Naturalization at Port of New York. United States

UNITED STATES COURT OF APPEALS SECOND CIRCUIT


decided: March 17, 1950.

UNITED STATES EX REL. PICICCI
v.
DISTRICT DIRECTOR OF IMMIGRATION AND NATURALIZATION AT PORT OF NEW YORK. UNITED STATES EX REL. RIZZI V. DISTRICT DIRECTOR OF IMMIGRATION AND NATURALIZATION AT PORT OF NEW YORK.

Author: Frank

Before L. HAND, Chief Judge and GOODRICH and FRANK, Circuit Judges.

FRANK, Circuit Judge.

The statute, 8 U.S.C.A. § 136(l) provides that stowaways shall be excluded but that, "if otherwise admissible," they "may be admitted in the discretion of the Attorney General." The parties to these appeals appear to agree that the orders of the Board of Special Inquiry, in directing the relators' exclusion, held, in effect, that relators were not "otherwise admissible."

8 U.S.C.A. § 136(q) provides that the Commissioner, with the approval of the Attorney General, shall issue regulations "to control and regulate the admission and return of otherwise inadmissible aliens applying for temporary admission."*fn2 Regulations on that subject are found in 8 C.F.R. (1949 Ed.) §§ 132.2 to 132.4. Section 132.4 reads: "The cases of all aliens of the excludable classes brought to seaports of the United States who apply for temporary admission, except cases within § 132.3, shall be submitted to the Department for special ruling." Relators are not within the terms of § 132.3.*fn3 We construe the word "Department" in § 132.4 to mean the Board of Immigration Appeals.*fn4 Accordingly, we think the Commissioner was required to submit to that Board the relators' applications for temporary admission. As § 132.4 is mandatory, it was not necessary for relators to appeal to that Board. Consequently, they had exhausted their administrative remedies. We think, also, that an application for temporary admission may be made at any time before actual departure from our shores. We do not agree with respondent's argument that temporary admission is restricted to the kinds of persons described in 8 U.S.C.A. § 203, since 8 U.S.C.A. § 136(q) contains no such restriction.*fn5

We reverse and remand with directions to release the relators unless, within a reasonable time to be fixed by the District Court, (1) the Commissioner submits to the Board of Immigration Appeals relators' applications for temporary admission, and (2) the Board acts upon those applications.*fn6

Reversed and remanded.


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