United States ex rel. Picicci v. District Director of Immigration & Naturalization

FRANK, Circuit Judge. The statute, 8 U.S.C.A. § 136(1) 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 rela306 tors’ 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.” 2 Regulations on that stibject 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 ’brou'ght 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 áre .not within the terms of § 132.3.3 . We construe the word “Department” in § 132.4 to mean the Board of Immigration Appeals.4 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 timé before actual departure' from 'our: shores. We dp 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.5 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.6 Reversed and remanded. Footnotes [2] That failure to possess a visa does not preclude the exercise of such- discretion, cf. Stone ex rel. Colonna v. Tillinghast, 1 Cir., 32 F.2d 447. [3] Nor within §§ 132.1 or 132,2. [4] In his petition for rehearing, -respondent did not dispute the correctness of this construction. [5] Moreover, 8 U.S.C.A. § 136 (r) provides that nothing in § 136 shall be construed to apply to one class included in 8 U.S. C.A. § 203, i. e., “accredited, oificials of foreign governments.” This goes to show that 8 U.S.C.A. § 203 does not govern 8 U.S.C.A. § 136 (q). [6] Mahler v. Eby, 264 U.S. 32, 46, 44 S.Ct. 283, 68 L.Ed. 549; Tod v. Waldman, 266 U.S. 113, 45 S.Ct. 85, 69 L.Ed. 195; Mastrapasqua v. Shaughnessy, 2 Cir., 1950, 180 F.2d 999; U. S. ex rel. Di Pa-olo v. Reimer, 2 Cir., 102 F.2d 40, 42; U. S. ex rel. Mazur v. Commissioner of Immigration, 2 Cir., 101 F.2d 707, 709.