Ex parte MILICICH

Ex parte MILICICH. (District Court, S. D. New York. October 28, 1924.) Habeas corpus 112 — Proceeding not reopened, where prior fraud on court is disclosed. Habeas corpus proceeding, involving right of alien wife to enter, will not be reopened, where it appeared that husband at no time intended in good faith to lend assistance to and to co-operate with wife, and therefore committed a fraud on the court. In -the matter of the petition of Silvio Milicieh for writ of habeas corpus for Anna Momiei (Milicieh), an alien. On motion to reopen proceeding. Motion denied. William Hayward, U. S. Atty., of New York City (James C. Thomas, Asst. U. S. Atty., of New York City, of counsel), for the United States. Gould & Gould, of New York City, for alien. [MAJORITY — WINSLOW, District Judge.] WINSLOW, District Judge. This matter comes before the court on a motion to reopen the proceeding. A special master was appointed in this proceeding to determine whether or not the relator had had a fair hearing, and whether or not she belonged to the exempt quota as a professional nurse. The record satisfies the court that she was a profesional nurse, and, had the evidence been presented on the original hearing, she would have been admitted without question. It appears, however, that the proceedings were opened on the theory that the assistance and co-operation of the husband of the relator had been denied her. It is apparent, however, from the entire record, that the husband at no time intended in good, faith to lend such assistance and to so co-operate. This, in itself, is a fraud upon the court. However, it is apparent that on the merits of the ease the relator is entitled to admission, and the court will deny the motion to reopen the case for the reasons herein-' before stated. In doing so the court desires to record its disapproval of the palpable fraud imposed upon the court by the husband, and the United States attorney is directed to inquire as to the reason why the husband absented himself from the hearing before the special master, and also whether the husband is himself illegally within this .country: The motion to reopen is denied.