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May 22, 1952

McGRATH, Atty. Gen. et al.

The opinion of the court was delivered by: MCLAUGHLIN

This matter came before the Court on motion filed by the Attorney General and the Commissioner of Immigration and Naturalization for a judgment on the pleadings in an action brought by Plaintiff for a declaratory judgment on the Findings of the Immigration Authorities by which he was denied readmission to the United States when he attempted to return to this country after a temporary absence abroad.

The Court, upon application of respective counsel, has considered the matter as a dual motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure as provided in Rule 12(c) of the Rules, 28 U.S.C.A. There is no dispute as to the basic facts. They were either admitted by the pleadings, or the pre-trial order, or established during the oral argument.

 For convenience the parties are designated as in a trial court. The facts are as follows:

 The Plaintiff, a native and citizen of Greece, was lawfully admitted to this country for permanent residence in 1920. He resided here continuously until November, 1936, when he went abroad. In August, 1937, he returned to the United States as a stowaway; but departed again in September, 1938.

 In March, 1939, Plaintiff boarded a United States commercial ship, the S.S. City of Baltimore, at Havre, France, as a stowaway with the intention of obtaining free passage to the United States. When the ship landed at Southampton, England, he was discovered and put ashore. However, the British Immigration authorities returned him to the ship.

 The Captain of the ship then put him to work under the Chief Engineer, who assigned him quarters with the crew. The following entry in the log of the S.S. City of Baltimore was made: 'Port of Southampton, March 11, 1939, 1:50 P.M. John Zacharias, Greek stowaway was found and put ashore but was returned to the ship by immigration authorities having boarded ship at Havre, March 10, 1939. Put to work unde Ch. Engr. D. A. Beaton, Ch. Engr. F. E. Cross, Master.'

 At the Port of New York, Plaintiff was taken into custody on exclusion charges. A Board of Special Inquiry determined that he should be excluded from admission to the United States. The grounds for said Board's determination, so far as pertinent here, were (1) that he did not possess an immigration visa, and (2) that he was a stowaway. Plaintiff was permitted to land, however, and at a later date he was released on bond conditioned upon his appearing when called for deportation.

 Plaintiff filed an appeal. The Board of Immigration Appeals in entering its decision held that Plaintiff was eligible for consideration as an alien who after a temporary absence abroad was returning to an unrelinquished domicile in the United States of seven (7) consecutive years as provided in Sec. 13(b) of the Act of May 26, 1924, as amended, Title 8 U.S.C.A. § 213(b) *fn1" ; also in Title 8 U.S.C.A. § 136(p) *fn2" and 8 Code of Federal Regulations (C.F.R.) part 132.1 (formerly Sec. 132.1 of Immigration Regulations *fn3" ). However, favorable consideration under said statutory provisions was denied and the Board affirmed the exclusion order. In said order of affirmance the Board limited the exclusion charges against the Plaintiff to two grounds, namely, 1) that he did not possess an unexpired immigration visa at the time of his arrival in New York on March 21, 1939, and 2) that he was a stowaway at the time of his arrival.

 Later, the Board of Immigration Appeals denied a motion for reconsideration and the Plaintiff then filed this action against the Attorney General and the Commissioner of Immigration and Naturalization.

 The basis of Plaintiff's contention is that as a member of the class of persons described in said statute he is immune from the requirement of possession of an immigration visa as a requirement for entry into the United States. This claim of statutory immunity is based upon Title 8 U.S.C.A. § 213(b), supra, and the regulation, (8 Code of Federal Regulations) prescribed pursuant thereto.

 Plaintiff claims that Section 13(b) of the Immigration Act of 1924, 8 U.S.C.A. § 213(b), supra, was a substitute for the general discretion given the Attorney General under the 7th Proviso of the 1917 Act, 8 U.S.C.A. § 136(p), supra. He asserts that the regulation prescribed thereunder, 8 C.F.R. 132.1, supra, limits the inquiry of the Board to only the determination of two things, namely, 1) 'satisfactory proof of domicile in the United States for seven consecutive years', and 2) 'of departure therefrom with the intention of returning thereto'; that both of these requirements are new; and that the discretion given in the 1917 Act is terminated by the 1924 Act.

 Plaintiff further claims he has satisfied the only two conditions allegedly imposed by the regulation and that the Attorney General is not given any power to revert to the full discretion granted him under the Act of 1917, 8 U.S.C.A. § 136(p), supra, or to impose in an individual case, conditions which have not been formally prescribed for the class as a whole. It is Plaintiff's position that the Attorney General's full discretion, outside of those conditions, died with the Act of 1924, 8 U.S.C.A. § 213(b), supra.

 It cannot be inferred that Congress intended to eliminate or modify the discretion of the Attorney General. On the contrary it appears clear that the provisions of the Immigration Act of 1924 are an addition to and not a substitution for the provisions of the general ...

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