The last court cited by counsel is Rash v. Zurbrick, 75 F. (2d) 934 (C. C. A. 6, 1935). There, the court in discussing the claim of right of entry to return to an unrelinquished domicile of 7 consecutive years, made the following statements:

Assuming that in the exercise of this discretion, the Secretary may lawfully permit an alien to reenter the country without a permit or an immigration visa or without a showing that he had previously been lawfully admitted, we cannot say from the facts alleged in the bill, that the hearing given the appellant was so unfair or that the Secretary's refusal to admit him was such a manifest abuse of discretion as to confer upon us the power to enjoin the enforcement of the order of exclusion. [Italics added.]

It is therefore self-evident that the court was not passing on the discretionary power to admit under the 7th proviso, but was assuming such a power existed for the sake of argument, and was very careful to show that his statement was an assumption by his use of the word "assuming."

Other cases cited by counsel concern administrative decisions. These cases concern the exercise of the discretionary action under the 7th proviso to section 3 of the Immigration Act of 1917, to remove certain grounds of inadmissibility created by the act of 1917, and in one case with a ground of exclusion created by the Act of February 18, 1931, relating to traffic in narcotics (an act which the decision. mentioned by counsel points out has been judicially determined to be virtually interdependent with the act of 1917).

With the proposition that the 7th proviso may be exercised to remove a ground of inadmissibility created by the act of 1917 or Acts amendatory of the Immigration Act of 1917, we have no quarrel. The administrative decisions cited by counsel need therefore not be further discussed.

We believe a court decision more to the point is contained in Madokoro v. Del Guercio, 160 F. (2d) 164 (C. C. A. 9, 1947), rehearing denied April 4, 1947, certiorari denied, October 13, 1947; 68 S. Ct. 68; 332 U. S. 764.

In this case the alien, a citizen of Japan, a person ineligible to citizenship under the Immigration Act of 1924, entered the United States in 1916 as an alien seaman and remained in the United States continuously, with the exception of certain temporary visits to Mexico in 1926, under authority of a permit issued by the Government of the United States. After the expiration of the permit, the appellant, on December 26, 1926, temporarily crossed into Mexico, returned on the same day, and was admitted to the United States. The Government contended that at the time the alien reentered without a permit he was inadmissible under the Immigration Act of 1924 as an alien ineligible to citizenship, and that therefore, he was deportable. The alien contended that he was entitled to enter the United States

under the authority contained in the 7th proviso as an alien returning after a temporary absence, to an unreliquished United States domicile of 7 consecutive years.

The court stated that section 25 of the Immigration Act of May 26, 1924, provided with reference to all the prior immigration laws, that “*** an alien, although admissible under the provisions of the immigration laws other than this act, shall not be admitted to the United States if he is excluded by any provisions of this act." The court therefore held, that the Immigration Act of 1924 repealed section 3 of the Immigration Act of 1917 (relating to the 7th proviso insofar as it applied to aliens ineligible to citizenship, and that aliens to whom the regulations relating to relief under the 7th proviso [referred to by the court as rule 12 (of the immigration regulations of 1925)] are those "otherwise admissible" under sections 10 and 13 of the Immigration Act of 1924 [referred to by the court as rule 3 (of the immigration regulations of 1925)] which required an immigrant to present an immigration visa or reentry permit to enter the United States, with the exception of aliens who have been previously lawfully admitted to the United States and who are returning from a temporary visit of not more than six months to adjacent and contiguous territory. It is clear from section 25 of the Immigration Act of 1924 and the opinion of the court that an alien inadmissible under the Immigration Act of 1924 may not be admitted to the United States under the discretion contained in the 7th proviso. This consistently has been the view of this Service.

Therefore, since the alien's sole ground of excludability arises from his inability to secure immigration documents under the Immigration Act of 1924, his application for relief under the 7th proviso to section 3 of the Immigration Act of 1917, will be denied.

Order: It is ordered that the alien's application for relief under the 7th proviso to section 3 of the Immigration Act of 1917, be denied.

BEFORE THE BOARD

(January 9, 1952)

Discussion: The case presents an appeal from an order entered on August 31, 1951, by the Assistant Commissioner denying the alien's application for admission as a returning resident alien under the authority contained in the seventh proviso to section 3 of the Immigration Act of 1917.

The facts of the case are fully set forth in the decision of the Assistant Commissioner. Briefly, the record relates to a native and citizen of Greece, 54 years old, who was lawfully admitted to the United States at the port of New York for permanent residence on July 26, 1915. Thereafter he departed from the United States about

February or March 1921 and returned from Greece about November 1922, entering as a deserting crew member of the S. S. King Alexander. This entry could not be verified. He next departed to Greece in December 1925 and reentered the United States on May 7, 1926, and was admitted upon presentation of a reentry permit which had been issued upon the basis of the original lawful entry on July 26, 1915, the applicant apparently not revealing his absence from the United States from February or March 1921 to November 1922 when he returned as a deserting seaman. He again visited Greece from May 1931 to April 25, 1932, and was again admitted upon the presentation of another entry permit obtained under similar circumstances. He last departed from the United States on August 27, 1938, and has since resided in Greece. He was not in possession of a reentry permit at the time of his last departure on August 27, 1938, and on July 13, 1939, the Board of Review held that in the absence of a record of lawful admission on the occasion of the applicant's alleged reentry as a deserting seaman at New York on November 1922 ex S. S. King Alexander, the applicant was not entitled to the reentry permits he had subsequently obtained on the basis of original lawful entry on July 26, 1915; the applicant was consequently a quota immigrant within the meaning of section 3 of the Immigration Act approved May 26, 1924 (8 U. S. C. 203).

It appears to be conceded that the applicant has maintained an unrelinquished domicile in the United States since 1915 despite his present lengthy absence since 1938. The vice consul at Athens, Greece, has disapproved the applicant's application for a nonquota visa as a returning resident alien under section 4 (b) of the Immigration Act of 1924, because of the absence from 1921 to 1922 and the illegal reentry of the applicant in November 1922 which terminated his prior lawful residence in the United States. Since he was not lawfully admitted on the occasion of his last reentry in 1932 because of the invalid reentry permit, his case does not fall within section 13 (b) of the Immigration Act of 1924.

Counsel, however, has vigorously contended that the applicant, despite his lack of an immigration visa which is required by law under section 13 (a) of the Immigration Act of 1924 (8 U. S. C. 213 (a)) of all quota immigrants, and despite the absence of a permit to reenter as provided by section 10 of the Immigration Act of 1924 (8 U. S. C. 210), the applicant may nonetheless be permitted to return to the United States as an alien returning after a temporary absence to an unrelinquished domicile of 7 consecutive years under the discretion contained in the 7th proviso to section 3 of the act of February 5, 1917 (8 U. S. C. 136 (p)). The Assistant Commissioner has dealt at length with arguments advanced by counsel, and we believe

that the decision of the Assistant Commissioner is dispositive of the issue and we concur in the conclusion that the discretion contained in the 7th proviso to section 3 of the act of 1917 cannot be substituted for the documents required by section 13 of the Immigration Act of 1924 (8 U. S. C. 213).

The principal case relied upon by counsel, U. S. ex rel. Polymeris v. Truedell, 49 F. (2d) 730 (C. C. A. 2, 1931), affirmed 284 U. S. 279 (1982), does not, upon examination, sustain counsel's position. The holding in the Polymeris case is to the effect that a returning alien cannot enter unless he has either an immigration visa or a reentry permit. Counsel has seized upon obvious obiter dictum used by the circuit court in reference to the general power of the Secretary of Labor to admit under 8 U. S. C. 136 (p), and by a resort to a negative inference, has sought to sustain his argument. As we have already stated, we do not believe that the cited case stands for the proposition advanced by counsel, and an examination of the administrative decisions cited in counsel's brief fails to reveal a single instance in which the discretion contained in the 7th proviso to section 3 of the act of February 5, 1917, was used to waive the documentary requirement of section 13 (a) of the Immigration Act of 1924. Finally, we believe that section 25 of the Immigration Act of 1924 (43 Stat. 166; 8 U. S. C. 233), by the use of the following quoted language is dispositive of the issue raised by counsel:

An alien, although admissible under the provisions of this act, shall not be admitted to the United States if he is excluded by any provision of the immigration laws other than this act, and an alien, although admissible under the provisions of the immigration laws other than this act, shall not be admitted to the United States if he is excluded by any provision of this act.

Order: It is ordered that the appeal be and the same is hereby dismissed.

IN THE MATTER OF O

In DEPORTATION Proceedings

A-7985967

Decided by Board September 5, 1951

Place of deportation-Section 20 of the Immigration Act of 1917, as amended by the Internal Security Act of 1950-8 C. F. R. 151.5 (a) and 8 C. F. R. 152.2 (e).

Section 20 of the Immigration Act of February 5, 1917, as amended by section 23 of the Internal Security Act of 1950 (Title I "Subversive Control Act of 1950”), and 8 C. F. R. 151.5 (a) and 8 C. F. R. 152.2 (e) contemplate that the determination of the place of deportation is primarily a matter for determination by the administrative officer, and that the local field officer has a degree of discretion whether to permit the alien (ordered deported) to depart at his own expense.

CHARGES:

Warrant: Act of 1924-No immigration visa.

Act of 1917-Stowaway.

BEFORE THE BOARD

Discussion: Counsel for the respondent has noted an appeal to us from the order of deportation entered by the Assistant Commissioner.

The case concerns a native and citizen of France, 48 years of age, who entered the United States on September 7, 1946 as a stowaway. The order of deportation is based upon the charges of "no immigration visa" and "entered as a stowaway."

The alien requested voluntary departure without an order of deportation. He is without family ties in the United States and has been here but a short time. These facts coupled with the circumstances of his entry into the United States, operate against a grant of the application for departure without an order of deportation.

We note that in his argument before representatives of the Commissioner counsel stressed the respondent's alleged fear for his life if he were returned to France; that he desires to go to Argentina. During the hearing the respondent testified that he intended, if granted departure, to go to Argentina, Canada, or Spain. The decision of the Assistant Commissioner states: