
    In re MONACO et al.
    (Circuit Court, S. D. New York.
    April 1, 1898.)
    IMMIGRATION— INSPECTOR’S DlSCISIONS — JURISDICTION OH COURTS.
    28 Stat. 390, malring decisions of Uie customs or immigration omcers excluding aliens final, “unless reversed on appeal to the secretary of the treasury.” does not exclude The jurisdiction ol rlie courts in habeas corpus when, although an appeal to Ute secretary lias been taken, through some rule of procedure in the office the papers will not be sent to him.
    This was an application for a writ of habeas corpus by Sofia Monaco and others, who have been refused a right to land in this country by the immigration or customs officers.
    Henry Q-otlieb, for the motion.
    Loronzo Ullo, opposed.
   LAOOMBE, Circuit Judge.

The statutes regulating immigration evidently contemplate that the alien immigrant shall have at least the opportunity to appeal from the subordinate officers to the secretary of the treasury; and, where he is prevented by the subordinate officers from presenting his case to that tribunal of review, it seems not to be within the intent of congress that the decision of the subordinate officers shall be final. The language used is, "Shall be final unless reversed on appeal to the secretary of the treasury.” 28 Hlai. 8!)(). When it is remembered that this section took away from the courts the power to determine upon habeas corpus whether the alien was in fact an immigrant, and as such within the operation of the exclusion acts, it is the most natural construction of this language to hold that it gave the alien the right to have that important question passed upon by the secretary of the treasury. If the statement» of petitioners’ counsel are correct, this is a case in which a review somewhere should be allowed; for he asserts that the physician who at first reported that the immigrants were suffering from a loathsome contagious disease has modified his diagnosis. And upon the facts as asserted by petitioners, and not contradicted, two of the aliens are not immigrants; they have been domiciled here 10 years, and are now' returning after a brief absence. The counsel for the board concedes that petitioners have appealed to the secretary of the treasury, but that the papers have not been, and will not be, forwarded to him, in accordance with some rule of procedure in their office. Under these circumstances, the decision of the board cannot be accepted as final, and the case is sent to the clerk of the court, to take testimony and report the facts bearing on the questions: (1) Whether petitioners a.re immigrants; (2) whether they, or any of them, are suffering from a loathsome, contagious disease.  