UNITED STATES ex rel. ICKOWICZ v. DAY, Commissioner of Immigration

UNITED STATES ex rel. ICKOWICZ v. DAY, Commissioner of Immigration. (Circuit Court of Appeals, Sedond Circuit. March 21, 1927.) No. 325. Aliens @=54(16) — Secretary of Labor’s denial of rehearing to alien, remaining by sufferance after being denied admission, held not reviewable by courts (Immigration Act of 1917, § 21 [Comp. St. § 4289(/4kk]). Where application for rehearing under Immigration Act of 1917, § 21 (Comp. St. § 4289%kk), to permit him to remain, by alien who remained in United States on sufferance after he was denied admission, and his writ of habeas corpus was dismissed and dismissal affirmed, was denied by Secretary of Labor, order of District Court, dismissing writ of habeas corpus to review denial of rehearing, must be affirmed. Appeal from the District Court of the United States for the Southern District of New York. Habeas corpus by the United States, on the relation of Lieba Ickowiez, against Benjamin M..Day, Commissioner of Immigration for the Port of New York. Writ dismissed (18 F.[2d] 962), and relator appeals. Affirmed. John C. Judge, of Brooklyn, N. Y., for appellant. Emory R. Buckner, U. S. Atty., of New York City (Alvin McKinley Sylvester, Asst. U. S. Atty., of New York City, of counsel), for appellee. Before MANTON, HAND, and SWAN, Circuit Judges. [MAJORITY — PER CURT AM.] PER CURT AM. The relator arrived at the port of New York on June 5, 1922, and was denied admission. After an appeal to the Secretary of Labor, he sued out a writ of habeas corpus which was dismissed. On review here, we affirmed the dismissal. Tullman v. Tod (C. C. A.) 294 F. 87. Remaining here at sufferance, he later applied, under the Immigration Act of February 5, 1917, § 21 (Comp. St. § 4289(4kk), to the Secretary of Labor to grant him a rehearing, so as to permit him to remain in this country. The District Judge, who considered the habeas .corpus below, and the United States attorney for the district, both recommended granting his application to remain here. However, it was denied. The learned court below quite properly said (18 F.[2d] 962): “The ease is, however, one of the most deserving and pathetic ones that has come to my notice and I strongly recommend his admission if the Secretary of Labor can see any way through a rehearing or otherwise under section 21 of the act of 1917 lawfully to admit him.” We cannot reverse the determination below, and it is affirmed on authority of Tull-man v. Tod, supra. However, we will withhold" our mandate 30 days to permit the appellant to apply to the Secretary of Labor for a reconsideration of his decision on another application. Order affirmed.