
    In re KORNMEHL.
    (Circuit Court, S. D. New York.
    May 23, 1898.)
    1. Exclusion and Return op Immigrants — Department Rules and Regulations.
    Tlie treasury department may make rules and regulations to carry out the statutes and facilitate the exclusion and return of persons whose immigration congress has forbidden, but no mere rule can operate to exclude a person not excluded by the statutes.
    2. Same — Finality op Decision op Commissioners — Habeas Corpus.
    A return of the commissioner of immigration, to a writ of habeas corpus that, upon arrival, relator was detained, and upon special inquiry the inspectors decided that she belonged to a class of aliens excluded by law, “in accordance with department circular,” etc., indicates that the inspectors felt themselves constrained to render such decision because of some instructions from the treasury department; and hence it is not a bar to inquiry into the facts, in such proceeding.
    This is a habeas corpus, brought to inquire into the cause of detention of relator, an alien, who has recently come to this country to join her husband, who has been here several years. Eelator is accompanied by a child under five years of age.
    Maurice H. Uotlieb, for the motion.
    Lorenzo Ullo, opposed.
   LACOMBE, Circuit Judge.

“If any minor alien, suffering with said loathsome disease is accompanied by its parents, oik; parent should be returned with such alien as its natura! guardian or protector.”

This instruction seems to he wholly unwarranted by any provision of the statutes. At least, such examination of them as this court has been able to give fails to disclose any phraseology which can he construed as leaving the exclusion of immigrants to the mere arbitrary discretion of the secretary of the treasury or of the commissioner genera] of immigration. Rules and regulations may be made to carry out the, statutes and facilitate the exclusion and return of persons belonging to the classes whose immigration congress has forbidden ; but no mere rule of the department can operate to exclude persons not belonging to one or other of the classes named in the statutes. Congress ban noi: forbidden the immigration of “parents of minor aliens, when such minor aliens are affected with a loathsome, contagious disease.” The immigration authorities therefore cannot lawfully exclude such parents for such cause; nor should they he excluded under the pretense that they are liable to become a public charge, when the board of special inquiry is not of the opinion that there is any such liability. The alien is entitled to the honest decision of the inspecting officers, wholly untrammeled by any instructions not authorized by the statutes. The return in this case indicates that there has been no such decision in this case. Therefore the finality which the statute accords to a proper decision of the inspection officers is not a, bar to inquiry here into the facts. The mat Í er is referred to the clerk of the court, with instructions to give relator an opportunity to show, if she can, that she is not within any of the classes of immigrants whom congress has excluded, and to report the evidence to the court.  