No. 325.Circuit Court of Appeals, Second Circuit.
March 21, 1927.
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 Ickowicz, 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.
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. § 4289¼kk), 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 case 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 Tullman 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.