The opinion
SIMONS, Circuit Judge
(concurring).
I see no escape from the decision of the court upon consideration of the authorities’ *938 ■cited in its opinion. Some additional comment, however, seems not inappropriate. Ever since it was first held that a departure, however brief and temporary, and without regard to intention to relinquish domicile, makes subsequent return a new entry, courts in border districts have found it difficult to remain silent when the result in human misery of a literal reading of the act has been realized. United States v. Smith (D. C.) 11 F.(2d) 981 ; United States v. Flynn (D. C.) 17 F.(2d) 524 ; United States v. Curran (C. C. A.) 16 F.(2d) 958 . Cf. comment of Judge Denison in Browne v. Zurbrick, supra. To whát has already been said, long experience as a District Judge compels the added observation that the opportunity for trickery and extortion afforded by the rule here applied is not the least of the misfortunes which attend its application.
The Congress relaxed the rigors of the deportation provisions of the act by providing that it shall not apply to one pardoned, nor if the court at the time of sentence, or within thirty days thereafter, recommends against deportation. Recommendation of this character was in the instant case made by the sentencing judge, but it is of no avail to the petitioner because not made within the time fixed by the act, as indeed it seldom is in a busy criminal court, whether state or federal.
The petitioner is a native and citizen of England who entered the United States legally on August 1,1923, and has resided here continuously with his family, consisting of his- father, mother, two brothers, and two sisters. It is true that he has violated the law, but it is also true that he has paid the penalty imposed by law. While the record is silent on the subject, it may safely be inferred that the sentencing judge had not before him such facts as would, warrant the conclusion that, in addition to the statutory penalty, the petitioner would be subject to the far more onerous burden of deportation. It seems to me, therefore, not inappropriate to recommend that before the warrant of deportation is executed opportunity be given the petitioner either to apply to the'Secretary of Labor for an order demitting his temporary visit to Canada, or to apply to the Governor of the state for pardon. Precedent for such recommendation is to be found in United States v. Smith, supra; United States v. Flynn, supra, and in United States v. Davis (C. C. A.) 13 F.(2d) 630 ,