United States ex rel. Patti v. Curran

18 F.2d 953, 1927 U.S. App. LEXIS 2116

• Court: Court of Appeals for the Second Circuit
• Decided: April 4, 1927
• Docket: No. 193
• Status: Published

Opinion

PER CURIAM.

The questions argued on this appeal relate to the proper construction of certain sections of the Immigration Act of 1924 (Comp. St. § 4289% et seq.) and to the validity of portions, of the Immigration Rules of 1925 and of Executive Order No. 4125. For reasons hereafter stated, we do not think we have jurisdiction to pass upon these questions.

No question has been raised by either party as to whether the order appealed from is a final order. But, as the court’s appellate jurisdiction extends only to final decrees, the court’s duty is to consider the matter sua sponte when the problem presents itself. Collins v. Miller, 252 U. S. 364, 40 S. Ct. 347, 64 L. Ed. 616. An order which either discharges the writ or discharges the relator is final. This order does neither. It “sustains” the writ but remands the relators to the custody whence they came in order that a rehearing may be had. What fate has befallen them on that rehearing we do not know. Should we affirm the order, the relators might still be held for deportation, and further proceedings would be required in the District Court to determine whether they should be discharged. Such further order might likewise be appealed. The record upon which the court acts in ordering their release from or continuance in custody ought to be brought up for review as an entirety, not piecemeal. On the author- t ity of Collins v. Miller, supra, we feel constrained to dismiss the appeal. See, also, Backus v. Yep Kim Yuen, 227 F. 848 (C. C. A. 9th).

Appeal dismissed.

HOUGH, Circuit Judge, owing to absence, has not seen this opinion, but he concurred in the result.