222 F2d 958 Gagliano v. A Nabers

222 F.2d 958

Giuseppe GAGLIANO, Appellant,


Horace A. NABERS, Acting Officer in Charge, United States

Immigration& Naturalization Service (John M. Bonds, Officer

in Charge, substituted as appellee in place and stead of

Horace A. Nabers), Appellee.

No. 15056.

United States Court of Appeals Fifth Circuit.

June 21, 1955.

Rehearing Denied Aug. 16, 1955.

P. M. Flanagan, Wm. C. Orchard, New Orleans, La., for appellant.

Prim B. Smith, Jr., Asst. U.S. Atty., New Orleans, La., George R. Blue, U.S. Atty., New Orleans, La., for appellee.

Before HOLMES, RIVES and TUTTLE, Circuit Judges.


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This appeal, argued and submitted on January 20, 1955, has been held awaiting decision of the Supreme Court in Marcello v. Bonds, 75 S.Ct. 757. The decision in the Marcello case rendered May 31, 1955, admittedly forecloses all of the appellant's contentions except one. As we understand that contention, it is that Section 1251(a)(11), Title 8 U.S.Code, when considered in the light of the savings clause embodied in the 1952 Act, Section 405(a), 66 Stat. 280, 8 U.S.Code, § 1101 note, and the decisions in United States ex rel. De Luca v. O'Rourke, 8 Cir., 213 F.2d 759, and Ex parte Robles-Rubio, D.C.Cal., 119 F.Supp. 610, should not be construed to affect the status of a nondeportable resident alien. Unfortunately for appellant, we think that issue also, whether formally presented and argued or not, was implicitly foreclosed by the Marcello decision, and, hence, is no longer open for decision by this Court. The judgment is therefore