Opinion
James H. Brennan, of Boston, Mass., for petitioner.
Edmund J. Brandon, U.S. Atty., and William J. Koen, Sp. Asst. U.S. Atty., both of Boston, Mass., for defendant.
BREWSTER, District Judge.
This petition for a writ of habeas corpus is the second brought to test the exclusion decision of a Board of Special Inquiry, affirmed on appeal to the authorities in Washington.
The first petition was dismissed by Judge McLellan after hearing the parties on an issue involving the age of the applicant. An appeal from Judge McLellan's decision was entered, but, instead of perfecting it, the applicant elected to request the Department to re-open the case in order that additional medical evidence might be introduced bearing upon the applicant's age.
It appears from the record of the immigration service that two physicians examined him and radiographs showing his skeletal development, with a view of giving testimony in his behalf. Thereafter his attorney advised the Board of Special Inquiry that no further testimony would be submitted. After an adverse decision in this court, a request for re-opening was made and denied.
For all present purposes, the question of age is foreclosed by the earlier decision of this court. The only question open, therefore, in these proceedings is whether this denial was arbitrary and unfair.
In view of the decision in this circuit, there can be but one answer to that question upon the facts disclosed in the record. The denial affords no ground upon which this court can take jurisdiction. Flynn ex rel. Jew Yet Wing v. Tillinghast, Com'r, 1 Cir., 44 F.2d 789; Jew Yet Wing v. Tillinghast, Com'r, D.C., 37 F.2d 615. See also-- United States ex rel. Chin Cheung Nai v. Corsi, Com'r, D.C., 55 F.2d 360.
Petition is dismissed.