to depart temporarily may make application to the Commissioner of Immigration and Naturalization for a permit to re-enter the United States. If the Commissioner finds that the alien has been legally admitted to the United States and has made the application in good faith, the Commissioner is authorized, with the approval of the Attorney General, to issue the permit which the alien upon his return shall surrender to the Immigration Officer at the port of inspection. 8 U.S.C.A. § 210(a, b).
The holder of a re-entry permit possesses no additional rights to re-enter except that he is placed in the non-quota class. His permit is accepted as evidence of the temporary character of his departure but does not vest in him any right to enter the United States if he is subject to exclusion on any other ground under the Immigration laws. Hansen v. Haff, 1934, 291 U.S. 559, 54 S. Ct. 494, 78 L. Ed. 968.
The permit is merely prima facie evidence of his status as a resident alien and is accepted as a substitute for an immigration visa to satisfy the statutory requirement. Hamburg-American Line v. U.S., 1934, 291 U.S. 420, 54 S. Ct. 491, 78 L. Ed. 887.
The very purpose of requiring the visa or permit is to facilitate his arrival and to avoid the necessity of an investigation to verify his status. Hamburg-American Line v. Elting, 2 Cir., 1934, 73 F.2d 272.
If an alien voluntarily leaves this country, he is subject to all the provisions of the immigration law whenever he seeks to return. Lapina v. Williams, 1914, 232 U.S. 78, 34 S. Ct. 196, 58 L. Ed. 515. Lewis v. Frick, 1914, 233 U.S. 291, 34 S. Ct. 488, 58 L. Ed. 967. Bendel v. Nagle 9 Cir., 1927, 17 F.2d 719.
Thus, regardless of other qualifications the statutes clearly require that a non-quota immigrant seeking re-admission to the United States have either an unexpired immigration visa or an unexpired re-entry permit. Possession of one or the other of these two documents is a condition precedent to his admission. U.S. ex rel. Polymeris v. Trudell, 1931, 284 U.S. 279, 52 S. Ct. 143, 76 L.Ed 291, affirming 2 Cir., 1931, 49 F.2d 730. U.S. ex rel. De Vita v. Uhl, 2 Cir., 1938, 99 F.2d 825, certiorari denied 306 U.S. 631, 59 S. Ct. 464, 83 L. Ed. 1033 (1939). Rash v. Zurbrick, 6 Cir., 1935, 75 F.2d 934. U.S. ex rel. Lamp v. Corsi, 2 Cir., 1932, 61 F.2d 964.
In view of the conflicting ruling expressed earlier by the Court of Appeals for the First Circuit in Johnson v. Keating, 1926, 17 F.2d 50, the Supreme Court granted certiorari in U.S. ex rel. Polymeris v. Trudell, supra. The Johnson case held that a non-quota immigrant returning from a temporary visit abroad was entitled to admission if he could establish his right before the immigration authorities, and that an immigration visa or a return permit was intended merely as convenient, but not essential, evidence to establish such right.
Justice Holmes in delivering the opinion of the Court in the Polymeris case stated (284 U.S. 279, 52 S. Ct. 144): 'The relators have no right to enter the United States unless it has been given to them by the United States. The burden of proof is upon them to show that they have the right. * * * By section 13 and the regulations under it, * * * a returning alien cannot enter unless he has either an immigration visa or a return permit. The relators must show not only that they ought to be admitted, but that the United States by the only voice authorized to express its will has said so. Obviously it has not done so * * *.'
In U.S. ex rel. De Vita v. Uhl, supra, an alien who had been lawfully admitted for permanent residence went abroad for a temporary visit. When he returned, he entered the United States surreptitiously without an immigration visa or a re-entry permit. The Court held that even assuming the alien was returning to an unrelinquished domicile in this country, he could not enter lawfully unless he had either a re-entry permit or an unexpired immigration visa. The Court said, 'Despite the fact of his previous lawful residence here, he was an alien immigrant within the definition of that term * * *. He has failed to show that he was within any of the exceptions dispensing with his need for an immigration visa. It is immaterial that he might, perhaps, have secured a re-entry permit which would have done away with the need of an immigration visa for he had no re-entry permit.'
Applying the foregoing principles it appears firmly established that the failure of a non-quota immigrant to have either an immigration visa or a re-entry permit in any case is a failure to comply with the immigration law. In the circumstances the Court will not disturb the Board's findings to that effect.
Plaintiff also contends that it was error to hold him excludable as a stowaway. He avers that there was no substantial evidence in the record to support the charge of being a 'stowaway'; that the record shows he boarded the ship at Southampton with the knowledge and consent of the ship's officers; that he actually became a member of the crew of the ship; and that under the regulation relied upon by defendants 'a so-called 'workaway' must have been a stowaway sometime on the trip arriving at our ports.'
Section 136(l) of Title 8 U.S.C.A. provides: 'The following classes of aliens shall be excluded from admission into the United States: * * * (l) Stowaways, except that any such stowaway, if otherwise admissible, may be admitted in the discretion of the Attorney General'.
The regulation published under that authority of the statute so far as pertinent here provides: 'Stowaways. Aliens arriving at seaports of the United States as 'stowaways' or alien 'stowaways' who arrive as 'workaways' shall be held for examination by a board of special inquiry.' 8 C.F.R. 110.50, 1949 Ed.
By his own admission Plaintiff pleads that he boarded the ship at Havre, France, as a stowaway with the intention of obtaining free passage to the United States. There being no statutory definition of stowaway the Board's determination under the circumstances was justified. Cf. United States ex rel. Candreva v. Smith, 7 Cir., 1928, 27 F.2d 642. The mere failure of the Attorney General to exercise his discretionary power favorably toward Plaintiff in the making of this determination does not constitute a violation of any constitutional right or an abuse of discretion. It is well settled that the Courts cannot direct or control the discretion conferred by Congress upon an executive or an administrative agency. Marbury v. Madison, 1803, 1 Cranch 137, 2 L. Ed. 60. Louisiana v. McAdoo, 1914, 234 U.S. 627, 34 S. Ct. 938, 58 L. Ed. 1506. Phelps Dodge Corp. v. National Labor Relations Board, 1941, 313 U.S. 177, 61 S. Ct. 845, 85 L. Ed. 1271. American Power & Light Company v. Securities and Exchange Commission, 1946, 329 U.S. 90, 67 S. Ct. 133, 91 L. Ed. 103. Ludecke v. Watkins, 1948, 335 U.S. 160, 68 S. Ct. 1429, 92 L. Ed. 1881. U.S. ex rel. Knauff v. Shaughnessy, 1950, 338 U.S. 537, 70 S. Ct. 309, 94 L. Ed. 317. Judicial action on review under the Administrative Procedure Act is permissible where the Board's determination under its discretionary power has been arbitrary, capricious, or otherwise not in accordance with law. 5 U.S.C.A. § 1009(e). But an examination of the record does not disclose any prejudicial, arbitrary or unfair denial of Plaintiff's rights. The presumption of regularity of official acts of public officials in the absence of evidence to the contrary is applicable in the present instance, and supports the validity of the official acts complained of. In the circumstances the Court determines that the determination by the Board that Plaintiff was a stowaway is not violative of any constitutional right of Plaintiff or an abuse of discretion.
Counsel for Defendant will prepare proposed judgment in accordance with the foregoing.