Leng May Ma v. Bruce G. Barber, District Director Immigration and Naturalization Service, San Francisco District

This is an appeal from the denial by the court below of a petition for the writ of habeas corpus seeking a stay of deportation.

Petitioner is a native of China. She claimed acquisition of United States citizenship at birth on the statutory ground that her father was a United States citizen. She arrived in this country in 1951, and was by the Immigration Service accorded hearings on her claim but failed to establish her identity as a United States national to the satisfaction of the Service. Thereupon she was ordered to surrender for deportation to China. She pér titioned the Service for a stay on the ground that she would, be subjected to physical persecution and probable death if she were to return to China, seeking this relief on the basis of § 243 (h) of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1253 (h), reading as follows:

The Service notified petitioner that no stay of- deportation could be granted her inasmuch as aliens excluded from the United States are not eligible for relief under the above statute. She then brought this proceeding in habeas corpus.

The question for decision is whether an alien seeking admission to the. United States is “within the…