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PINESICH v. MILLER

UNITED STATES DISTRICT COURT, EASTERN DISTRICT PENNSYLVANIA.


March 22, 1950

PINESICH
v.
MILLER, Commissioner of Immigration and Naturalization.

The opinion of the court was delivered by: CLARY

CLARY, District Judge.

This is an action by an alien against the Commissioner of Immigration and Naturalization for review of an order of deportation. The matter is before us on defendant's motion to dismiss the action on the ground that this Court lacks jurisdiction of the person of Watson B. Miller, Commissioner of Immigration and Naturalization.

 The precise question was before Bard, J. for consideration and was resolved in favor of the defendant, Stamatiou v. Miller, D.C., 88 F.Supp. 556. For the reasons expressed in that opinion, we hold that this Court lacks jurisdiction over the defendant and venue is improperly laid. In the Stamatiou case, the cause was transferred to the District Court for the District of Columbia under the provisions of 28 U.S.C.A. ยง 1406, which provided for a mandatory transfer to the proper district. That section has been changed and now provides as follow: "a) The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought."

 There appear no reasons of record requiring a transfer rather than a dismissal and, therefore, the petition for review will be ordered dismissed, without prejudice, of course, to the right of the petitioner to seek a remedy in the proper district.

19500322

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