United States .Ex Rel. Polymeris E Al v. Trudell, Immigration Inspector.. Certiorari To the Circuit Court of Appfals for the Second Circuit

No. 162. Argued December 9, 193.-Decided January 4, 1932.

1. Under the Immigration Act of *May 26, 1924, § 13. (a), (b), and

the .executive regulations pursuant thereo, an alien.who was law- fully domiciled in this country but who went abroad for a'tem- porary visit, cannot reenter unless he has either an immigration visa or a return permit. P. 280.

2. In habeas corpus-to determine the right of an alien to enter the

* country, the burden of proof is upon the alien. P. 281...

49 F, (2d) 730, dffirmed.

CERioRRI,.post, p. 601, to review a judgment reversing.

an order of the District Court, discharging two aliens froi the custody of immigration officers by a writ of habeas corpus.

Mr. Harold.Van Riper for.petitioners.

280

:

Opinion of the Court.

Mr. Claude R. Branch, with whom Solicitor -General Thacher, Assistant Attorney General Dodds, and Messrs.

Frank M. Parrish and William H. ley, Jr., wete on the brief, for respondent.

MI. JusTIcE HOLMES delivered the opinion of the Court.

The. relators, A'spasia Polymeris and. her daughter Antigone, are .Greek citizens who lawfully entered the United States in 1909 and lived for a number of years in New York City, which became nd remains.their domicil. .In 1923, on account of the illness .of "Aspasia's husband, they went back to Greece with the intention; which the courts below found that they retained, of malig only a- temporary visit. The death of the husband aid the ne- cessity of settling his "estate prolonged their stay until

cessfuI applications to the United States Consul General at Athens for documents that would permit them to re- turn to New York. -Finally, in 1929,. they got authority to cross Canada, on a pretended trip from Greece to Japan, and, in 1930, presented themselves ht St. Albans, Ver- mont, for admission to the United States. They were- taken into custody. by -the inmigration inspector and sought release by habeascorpus, on the ground that they were entitled to enter the country.

It. was held that they "were -properly excluded under § 13 (a) of the Immigra-- tion Act. of May 26, 1924, 43 Stat. 153, 161., since the Sec-

* retary.of Labor did not adiit them in his discretion,-.

and neither presented an unexpired valid im~migroation visa, or an unexpired valid permit to regnter in accordance with the regulations- promulgated under •§ 13 (b) of that Act."-

49 F.. (2d) 730. A contrary decision was reached in John--

son V. Keating, 17 F. (2d)" 50. Therefore a writ of cer- tiorari was granted by this Court.

The relators have no right to entei 'the United States. unless it has been given to them by the United States.

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Counsel for Parties.

The burden of uroof is upon them to show that they have the right. Immigration Act of 1924, § 23, 43 Stat. 165; Code, Title 8, § 221. By § 13, and the- regulations under it, as remarked by the court belowi- a returning alien can not enter unless.he has either.an immigration visa or a return permit. The relators must show not only that they ought to be admitted but that the United States, by the only voice authorized to express its will, has said so. Obviously it has not -done so, andtherefore the judg- ment mustbe affirmed.'