(after stating the facts as above). The issuance of the writ is urged upon two grounds: (1) That petitioner was not accorded a fair hearing; and (2) that his right of admission being based upon his claim of citizenship, he is entitled as matter of right to have that claim judicially determined. Both contentions are based upon a misapprehension of the Jaw.

1. The first proposition is based upon the claim that the evidence preponderated so strongly in favor of petitioner’s contention as to the status of his father that the adverse determination is itself evidence that the Board of Special Inquiry was actuated by bias and prejudice against petitioner and in and of itself discloses that the hearing was unfair. But it is not controverted that the record discloses a serious discrepancy, sufficient to raise a substantial conflict, on this essential feature of petitioner’s case, and this being so, the question of fact involved was essentially one for the determination of *274 that Board and is not open to review by this court. And the fact, if it be a fact, that the evidence may have preponderated in favor of petitioner’s contention, does not tend to show that the hearing was in any proper sense unfair or that the decision of the Board involved an abuse of discretion. White v. Chan Wy Sheung (C. C. A.) 270 Fed. 764 . As there held:

There is nothing in the record to bring the case within the doctrine of Kwock Jan Fat v. White, 253 U. S. 455 , 40 Sup. Ct. 566, 64 L. Ed. 1010 .

2. Nor does the fact that the petitioner’s alleged right of admission is based upon his claim of citizenship entitle him, in such an instance as the present, to a judicial determination of that claim before he may be (Reported. While one lawfully within the United States, claiming to be a citizen thereof, may not competently be deprived of his right to be here by mere executive order, but is entitled to have the question of^ his asserted citizenship judicially determined before he may be removed (Ng Fung Ho v. White, 259 U. S. 276 , 42 Sup. Ct. 492, 66 L. Ed. 938 ) no such right attaches to one who, like the petitioner, is seeking admission to the country for the first time, and the fact that his claim to admission may be based upon the asserted right of citizenship does not bring him within the category of those entitled to invoke the jurisdiction of our courts for the determination of that’question (United States v. Ju Toy, 198 U. S. 253 , 25 Sup. Ct. 644, 49 L. Ed. 1040 ; Tang Tun v. Edsell, 223 U. S. 673 , 32 Sup. Ct. 359, 56 L. Ed. 606 ).

The distinction is between the case of one lawfully within our borders defending his asserted right to remain, and one who, like petitioner, is in legal contemplation without our borders seeking to get in. In the latter case the rights of the applicant are controlled by the Immigration Act, Ng Fung Ho v. White, supra.

The writ is denied, and the petition will be dismissed.