United States ex rel. Di Mieri v. Uhl

Second Circuit

United States ex rel. Di Mieri v. Uhl

96 F.2d 92, 1938 U.S. App. LEXIS 3429

CourtCourt of Appeals for the Second Circuit

DecidedApril 4, 1938

DocketNo. 277

StatusPublished

Cited by2 cases

This text of 96 F.2d 92 (United States ex rel. Di Mieri v. Uhl) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States ex rel. Di Mieri v. Uhl, 96 F.2d 92, 1938 U.S. App. LEXIS 3429 (2d Cir. 1938).

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Opinion

PER CURIAM.

The issue in this case is as to the exclusion of an alien who came here as a temporary visitor under section 3(2) of the Act of 1924, 8 U.S.C.A. § 203(2). He arrived on March 11, 1937, in possession of an Italian passport which expired on March 26, 1937, duly certified for a temporary visit by the visa of an American consul.. On the way over he changed the date of the passport from “1937” to “1938”; this was discovered before he was admitted, and he was excluded on the ground that he had not a valid passport and visa.

The Act of 1924 does not prescribe what documents such an alien must bring with him; he is not an “immigrant” at all; section 3(2), 8 U.S.C.A. § 203(2), and section 13, 8 U.S.C.A. § 213, do not apply to him. However, Rule III, subdivision F, paragraph 2 of the Immigration Rules requires a passport and a visa, and that is a condition obviously within the powers of the Commissioner General and Secretary under section 24 of the Act of 1924, 8 U. S.C.A. § 222. It does not seem to us that we need inquire whether the alteration of the passport made it void under the doctrine of the common law, applicable to documents inter partes. Wood v. Steele, 6 Wall. 80, 18 L.Ed. 725; Clyde S. S. Co. v. Whaley, 4 Cir., 231 F. 76, L.R.A.1916F, 289; Barringer v. Dinkier Hotels, 4 Cir., 61 F.2d 82. A temporary visitor may be admitted for “a fixed reasonable period, under no circumstances to exceed one year”; (Rule III, subd. PI, pars. 1 & 2) ; and the duration of the passport is certainly a material factor in fixing that “reasonable period.” Hence the passport required by Rule III, subd. F, par. 2, must be understood to be the passport as it actually issues; and when the alien forged the date, it ceased to be what the rule required. Thus he attempted to enter without complying with conditions lawfully prescribed, and was properly excluded.

Order affirmed.

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PER CURIAM.

The issue in this case is as to the exclusion of an alien who came here as a temporary visitor under section 3(2) of the Act of 1924, 8 U.S.C.A. § 203(2). He arrived on March 11, 1937, in possession of an Italian passport which expired on March 26, 1937, duly certified for a temporary visit by the visa of an American consul.. On the way over he changed the date of the passport from “1937” to “1938”; this was discovered before he was admitted, and he was excluded on the ground that he had not a valid passport and visa.

The Act of 1924 does not prescribe what documents such an alien must bring with him; he is not an “immigrant” at all; section 3(2), 8 U.S.C.A. § 203(2), and section 13, 8 U.S.C.A. § 213, do not apply to him. However, Rule III, subdivision F, paragraph 2 of the Immigration Rules requires a passport and a visa, and that is a condition obviously within the powers of the Commissioner General and Secretary under section 24 of the Act of 1924, 8 U. S.C.A. § 222. It does not seem to us that we need inquire whether the alteration of the passport made it void under the doctrine of the common law, applicable to documents inter partes. Wood v. Steele, 6 Wall. 80, 18 L.Ed. 725; Clyde S. S. Co. v. Whaley, 4 Cir., 231 F. 76, L.R.A.1916F, 289; Barringer v. Dinkier Hotels, 4 Cir., 61 F.2d 82. A temporary visitor may be admitted for “a fixed reasonable period, under no circumstances to exceed one year”; (Rule III, subd. PI, pars. 1 & 2) ; and the duration of the passport is certainly a material factor in fixing that “reasonable period.” Hence the passport required by Rule III, subd. F, par. 2, must be understood to be the passport as it actually issues; and when the alien forged the date, it ceased to be what the rule required. Thus he attempted to enter without complying with conditions lawfully prescribed, and was properly excluded.

Order affirmed.

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