and avers that she is a British subject, although born in Russia, and not showing naturalization. She holds an apparently unexpired British passport, under which she arrived in Canada in September, 1925, and has there remained until now. She is not engaged in any gainful occupation, but is supported by her children, six in number, ranging in age from 18 to 29, all born in England, and all now living, apparently in the same house, in New York City.

Simkin is a citizen of Finland, aged 43, a widower, with three children, who are in Finland. He holds an unexpired Finnish passport, under which he arrived in Canada in June, 1926, and has since remained there. He has not sought work in Canada, but, although by occupation a "ladies' designer," he avers a desire to come to the United States "to finish my designing business at a school there." His reserve of means for this educational project is limited to $150 owing him by a brother living (with his father and mother) in Flushing, N. Y., yet his children in Finland are daughters (the oldest 18) dependent upon him for support.

The remaining relator, Leskova, or Leszek, is a girl whose age is variously stated in the record as 16, 17, or 18. She is by birth a Pole, and apparently of Polish nationality, is possessed of an unexpired Polish passport, and under it arrived in Canada in January, 1926. Her condition as to family is extraordinary and lamentable. Her only relative disclosed by the record is a mother, now living in New York City, who testifies thus: She was married in Poland to the father of the relator, who left her behind when, before the relator was born ("seven months after our marriage'), he came to the United States. She remained in Poland until about five years ago, when she endeavored to rejoin her husband at Ithaca, N. Y. She left her daughter in Poland, and found her husband "cohabiting with another woman. She was "driven out of the house," and has not heard from her husband since, though she "presumes he is still living." Since then she has lived and is living with another man, to whom she "may be married later." There is no evidence of the financial responsibility of the mother, upon whom the daughter is dependent; nor is there any evidence of means on the daughter's part, who is described as a "domestic," but has not apparently sought occupation while in Canada.

The documents exhibited by the relators are bare of any evidence of intent on their part to use Canada merely as a corridor of

entrance into the United States. All of them have applied to the United States consul general at Montreal for a visa upon their respective passports, authorizing them to enter as aliens "visiting the United States temporarily," etc. (section 3 [2] Immigration Act of 1924 [Comp. St. § 42893⁄4aa]), and all of them have failed to procure the same. The reasons for the consul's refusal are not always stated in the same way, in relators' petitions and their evidence before the board of special inquiry; but I think it a fair inference from all the evidence and affidavits that the consul did not regard any of them as tourists or persons intending to visit this country "temporarily for business or pleasure" (section 3 [2], supra), notwithstanding their own repeated assertions that such was their purpose.

Several of these relators have tried to enter this country before this present effort; this time they all came together, and by offering to pass the line with unvisaed passports have presented a test case. The returns to the writs show that each relator was excluded as an alien "without a passport visaed by any American consul," and Leontine Leskova was further excluded as a person likely to become a public charge.

At hearing, the returns filed in all cases but that of Mrs. London were accepted without traverse. An objection was made to the return in the London Case, in that the minutes of the board of special inquiry contained as a sort of heading or caption the phrase "Obj. Migr-Reside," which relator's counsel wished to contradict by calling relator as a witness, asserting that the minutes as written out purported to be a statement by relator that she was migrating with intent to reside in the United States. I held that the notation was no more than an indication of, at most, a finding by the board, the propriety of which (if material) would depend on the evidence; wherefore this single objection was overruled, further evidence on the point denied, and exception noted and allowed.

Francis E. Hamilton and H. Ely Goldsmith, both of New York City, for relators. Allen Martin, Asst. U. S. Atty., of Essex Junction, Vt., opposed.

HOUGH, Circuit Judge (after stating the facts as above). The foundation stone of argument for relators is that they are not immigrants. This must be emphasized, both to do justice to the legal propositions advanced by relators' counsel, and to dissipate a certain illogicality arising from the de

partmental decision in Re Leskova. That young woman, like all the rest, stoutly denies that she wishes to remain permanently in the United States; she is a tourist or visitor whose one purpose is to visit her mother, yet she has been excluded (inter alia) because she is likely to become a public charge. Such ground of exclusion presupposes that the applicant is an immigrant; there is no provision of law for keeping out visitors or tourists because they may become public charges while visiting. The possibility is so remote that it has not been covered by legislation.

So I disregard this finding as irrelevant to the argument, and for the further reason that, if the girl or any of the other relators is such an immigrant, he or she must be excluded under section 13 of the act of 1924 (Comp. St. § 428934ff), because none of them has or pretends to have an "unexpired immigration visa." Indeed, these cases arise under the "immigration laws" only because, by section 28 (g) of the act of 1924 (Comp. St. § 428934m), all laws relating to the exclusion of aliens are included under that term; for what prevented the entry of these people as visitors was and is the passport laws and regulations of this country. [1] What is commonly known as the War or War-Time Passport Act became law May 22, 1918 (Comp. St. §§ 7628e-7628h), and beside penal provisions, now repealed, it conferred on the President power to provide how and when the movements of aliens were to be watched, permitted, or restricted. The statute does not use the word "visa," omission in my opinion unimportant, for the function of a visa on a passport is too old and well known to need statutory definition. It is a recognition by the country ad quem of the validity of a passport issued by the country a quo, and the country of the visa may attach to it any other significance or importance deemed desirable.

an

The Act of March 2, 1921 (Comp. St. § 7628hh), in most general terms continued in force the provisions of the act of 1918, so far as they relate "to requiring passports and visas from aliens seeking to come to the United States." This undoubtedly continued, while specifically recognizing visas, the power of the President to apply and enforce the act as he deemed best. Then the President, by executive order dated January 12, 1925, required all aliens, being nonimmigrants, to present as a condition of entry into the country passports "duly visaed by consular officers of the United States," and further authorized the Secretary of State

and the Secretary of Labor to make "additional rules and regulations not inconsistent with this order for the purpose of carrying out" the provisions of the statute and the executive order.

Subsequently, and on September 30, 1925, the Secretary of State, by rule 42, instructed consuls, before issuing visitors visas, to "satisfy" themselves of the temporary nature of the proposed visit. The subject is covered from the standpoint of the Department of Labor by supdivision H of the Immigration Rules of July 1, 1925.

While antedating these particular regulations or orders, the Chryssikos Case (C. C. A.) 3 F. (2d) 372, shows that, when a consul had issued a visitor's visa, exclusion by the Department of Labor, on the ground that the alien was not a bona fide visitor, was still possible, though difficult. That the act of 1921 continued (semble) all but the penal provisions of the act of 1918 is, I think, held by Flora v. Rustad (C. C. A.) 8 F. (2d) 335, and Koyama v. Burnett (C. C. A.) 8 F.(2d) 940, and to the same effect is the opinion of the Attorney General dated March 30, 1921.

[2] From this statement it is, I think, evident that the inspector at St. Albans did the only thing he could do under the regulation, and the return, in stating that none of the relators had a passport visaed by an American consul, forecloses all discussion, except of the possible invalidity of the rules under which the inspector was bound to act. On this point it is urged, first, that there is no law requiring visas on visitors' passports. This is equivalent to saying that the President had no lawful right to make the order of January 12, 1925. To this I cannot agree, believing that the power was specifically continued in him by the act of 1921.

Second, it is further said that, even if visas are required, it is merely a "ministerial" act to affix them; the consul is bound (semble) to visa any passport presented by one who says he is a visitor only; and, if he refuses, "equity should consider as done that which ought to be done" and treat as visaed the passports presented by these relators. This argument, of course, involves the nullification of rule 42 of the Secretary of State.

The core of this argument is that the consul in Montreal has no right to satisfy himself that these relators are real visitors, and the Secretary of State had no right to instruct him so to do. Having regard to the nature of consular action as to passports, and general knowledge of history, I should

United States. At that time and place she was given a hearing before a board of special inquiry at Rouse's Point, N. Y., and said board thereupon refused to grant her application for admission to the United States on the following grounds: (1) That she was a person liable to become a public charge. (2) That she was reapplying for admission within one year of her previous exclusion; consent to reapply not having been given her by the Secretary of Labor. (3) That she was not in possession of an immigration visa or a passport visaed for admission to the United States.

The first two of these grounds may be disregarded, in view of the opinion hereafter referred to. She was advised thereupon of her right to appeal to the Secretary of Labor, but declined to appeal. The testimony taken upon both her attempts to enter the United States is attached to the return.

At the hearing of October 26, 1925, at Montreal, the alien said she could furnish a bond of $500, and her counsel asked that the American consul at Montreal be notified to issue a passport visa upon production of a letter from the United States Fidelity & Guaranty Company to the effect that that company will furnish a bond of $500, conditioned upon the departure of the alien from the United States, and also that the alien shall not become a public charge. Such letter, it appears, was shortly thereafter produced, but the request of the counsel for the alien was not granted. Such letter, it appears, has recently been withdrawn.

At the hearing in Montreal the alien testified that she could get no work in Russia and was supported by her uncle in Montreal. It appeared, also, that she had not worked since her arrival in Canada, and that the $40 she then possessed was given her by her uncle in Montreal.

At her second hearing of March 30, 1926, at Rouse's Point, the alien testified that she was employed as a finisher in Montreal, had $25 in her possession, and $35 in a bank in Montreal. On both occasions she claimed she desired only to visit another uncle in New York City, one Max Gruber, of 254 Broome street.

The relator insists that she is not an immigrant, quota or nonquota, but is merely an

alien residing with relatives in Montreal, who wishes to visit another relative in New York City, and has unlawfully been deprived of her right to do so by the alleged arbitrary action of the United States immigration authorities in Montreal and Rouse's Point.

The question here turns upon whether or not any discretion is vested in the immigration authorities. In other words, must such authorities be bound by the statement of the alien that she is a visitor, and not an immigrant, and are their powers limited to requiring a $500 bond for the departure of the alien? If such is the construction of the statute and regulations, then, indeed, the immigration law is as feeble as the relator claims. Every alien who is willing to testify that the purpose of entry is a visit and can procure a $500 bond can enter the country without let or hindrance.

In the absence of alien registration, every such person may lose himself or herself in the populous parts of the country, and remain the rest of his or her natural life. It means, in short, that every alien who can procure a $500 bond may enter the country. Such a construction flouts the purpose of the immigration law, and exclusion or limitation is largely a myth.

In the cases of U. S. ex rel. Tamara Johanson and Others v. Clifford D. Phelps, United States Immigration Officer, 14 F. (2d) 679, decided July 29, 1926, Judge Hough in a wellconsidered opinion held that the statute was valid, that the proclamation and regulations thereunder were also valid and were within the scope and purpose of the statute, and that the immigration officers were vested with discretion to determine whether or not the alien demanding admission was in fact a visitor in good faith or an immigrant in disguise.

The evidence here warranted the decision made by the immigration officers, and hence the court has no power to interfere with the action of the officers. On the authority of Judge Hough's decision, the writ is dismissed and the prisoner remanded.

The alien having been allowed to return to Montreal pending this decision, no further action by the officers having her custody is necessary.