195 F. 693 | 6th Cir. | 1912
(after stating the facts as above). The right of deportation was denied on the ground that the department was without jurisdiction. The controlling reasons for so holding were (1) that all the charges except the one concerning the woman depended upon the charge that Rewis’ entrance into the United States was on November 17, 1910, while the court was of opinion that since his first entrance occurred September 20, 1904, the three years’ clause of the act of Congress began to run at that time and so the period for deportation had expired at the date of the Detroit entrance; (2) that,
“But, unless and until it is proved to the satisfaction of the judge that a hearing properly so called was denied, the merits of the case are not open, and, we may add, the denial of a hearing cannot be established by proving that the decision was wrong.”
It is true that in both of the cases last cited the court was dealing with a question of exclusion of an alien, where by the act in question the decision of the executive officer was made final, but we think the rules there laid down, as well as those in Lee Lung v. Patterson, supra, are in principle applicable here. Section 25, Act Feb. 20, 1907, 34 Stat. 907; Joint Res. No. 34, 33 Stat. 591. We are confirmed in this view by the decision in Bates & Guild Co. v. Payne, 194 U. S. 106, 109, 24 Sup. Ct. 595, 597 (48 L. Ed. 894), where an order of the Postmaster General was under review on appeal in an equity case, and not as here in a habeas corpus proceeding. Justice Brown said:
“The rule upon this subject may be summarized as follows: That, where a decision of questions of fact is committed by Congress to the judgment and discretion of the head of a department, his decision thereon is' conclusive; and that even upon mixed questions of law and fact, or of law alone, his action will carry with it a strong presumption of correctness, and the courts will not ordinarily review it, although they may have the power, and will occasionally exercise the right of so doing.”
When we consider the complicated duties devolved upon the department and the objects sought to be accomplished by their proper discharge, viz., the ascertainment of conditions requiring particular aliens to be deported, we are convinced that it is not open to us to examine, according to technical tests, into the sufficiency of matters regarded by the -Secretary of Commerce as proof. Thus interpreting the record, we cannot say that it contains nothing tending to support any of the charges other than the one concerning the woman; and of the latter the court said:
“So far as concerns the main question of fact into which the department undertook to examine, viz., the importing of the woman, I do not see suffl*697 eient. ground for these complaints, and, if the department had jurisdiction, under the existing circumstances, to hear and determine this question of fact and to deport upon that ground, I should not undertake to review its conclusion.”
Was the period of three years, mentioned in section 21, applicable in this case to Lewis’ entry into Detroit, or only to his original entry into New York? It must be conceded that there is a diversity of judicial opinions upon the subject of temporary absence of an alien from this country and his re-entry. The difficulty, of course, arises through varying interpretations of acts of Congress; for the question is one of legislative intent. The power of Congress to prohibit a second or later entrance of aliens and the power originally to exclude them are derived from the same source, and are but “parts of one and the same power.” Fong Yue Ting v. United States, 149 U. S. 713, 13 Sup. Ct. 1022, 37 L. Ed. 905. Illustrations of the exercise of the power to prevent and to permit re-entry may be found in the Chinese Exclusion Case, 130 U. S. 603, 604, 9 Sup. Ct. 623, 32 L. Ed. 1068. and Lau Ow Bew v. United States, 144 U. S. 47, 12 Sup. Ct. 517, 36 L. Ed. 340; the first being based upon an act disclosing an intent to forbid return and the other upon an act showing a purpose to permit return.
One contention is that Lewis had been a domiciled resident here for more than three years prior to his entrance into Detroit, and that this entitled him temporarily to leave the country and re-enter without regard to the provisions defining- the excluded classes. True he had in May, 1906, declared his intention to become a citizen of the United States; but he was still an alien at the time of his re-entry. City of Minneapolis v. Reum, 56 Fed. 576, 6 C. C. A. 31 (C. C. A. 8th Cir.); In re Kleibs (C. C.) 128 Fed. 656; In re Moses (C. C.) 83 Fed. 995 ; Maloy v. Duden (C. C.) 25 Fed. 673; Wallenburg v. Missouri Pac. Ry. Co. (C. C.) 159 Fed. 217; In re Polsson (C. C.) 159 Fed. 283.
In Lem Moon Sing v. United States, 158 U. S. 538, 547, 15 Sup.
'“Is a statute passed in execution of that power (to exclude aliens) any less applicable to an alien, who has acquired a commercial domicile within the United States, but who, having voluntarily left the country, although for a temporary purpose, claims the right under some law or treaty to re-enter it? We think not. The words of the statute are broad and include ‘every case’ of an alien, at least every Chinese alien, who, at the time of its passage, is out of this country, no matter for what reason, and seeks to come back. He is none the less an alien because of his having a commercial domicile in this country.”
True, the decision was limited to the question whether appellant bad been constitutionally committed to officers of the executive department for final determination (158 U. S. 550, 15 Sup. Ct. 972, 39 L. Ed. 1082), but the judgment below denying an application for a writ of habeas corpus was affirmed; and we regard the decision as applicable alike to the questions respecting domicile, and legislative in-, tent touching the present use of the word “alien.”
Now, as to the Windsor-Detroit entry, it is safe to say that, according to the present trend of decision of the federal Courts of Appeals, the entry was within the purview of section 2 of the amended act. See Ex parte Hoffman, 179 Fed. 839, 103 C. C. A. 327 (C. C. A. 2d Cir.), which was based on the earlier decision of the same court in Taylor v. United States, 152 Fed. 1, 4, 81 C. C. A. 197. In our opinion it was not meant by the reversal of the Taylor Case to change the conclusion there reached in the majority opinion as to aliens re-entering this country with apparent intent to remain. 207 U. S. 120, 28 Sup. Ct. 53, 52 L. Ed. 130. See, also, Sibray v. United States, 185 Fed. 401, 402, 107 C. C. A. 483 (C. C. A. 3d Cir.); United States v. Sprung, 187 Fed. 903, 905, 906, 110 C. C. A. 37 (C. C. A. 4th Cir.); Prentis v. Petros Stathakos, 192 Fed. 469, decided July, 1911 (C. C. A. 7th Cir.). The decisions in Redfern v. Halpert, 186 Fed. 150, 108 C. C. A. 262 (C. C. A. 5th Cir.), and United States v. Nakashima, 160 Fed. 842, 87 C. C. A. 646 (C. C. A. 9th Cir.) are to the contrary.
The decision of this court in United States v. Aultman Co., 148 Fed. 1022, 79 C. C. A. 457, affirming the judgment of the court below (143 Fed. 922), is not applicable. .That was a prosecution for alleged violation of the law, which forbade and denounced with penalties any encouragement, through solicitation, promise, or agreement, of the importation or immigration of aliens for the purpose of performing labor in this country. No question of deportation was involved. The marked difference to be observed between that case and this is that there the action was against the company to recover the penalty inflicted for inducing an alien to come here, while this is a proceeding to deport an alien. The statute there considered disclosed an intent to protect American labor against foreign pauper labor, and the act of the Aultman Company was regarded under all the circumstances as not falling within the intention of the law. We think it plain that the learned judges taking part in the case—the judge deciding it below and the judges affirming it alone upon his opinion— could not have thought it necessary even to consider the question with
In view of the changes made in the statutes and the ends sought to be accomplished under them—which, for example, are so clearly and cogently stated by Judge Lacombe in Taylor v. United States and Ex parte Hoffman—we are constrained to believe that those decisions and their class, when applied to the present statute, more certainly and completely effectuate the intention of Congress than the two opposing decisions do. The power and duty vested in the department to exclude and to deport objectionable aliens are in their nature continuing. The only limitation stated is that deportation shall take place within three years. This is plainly meant to enable the officials to determine the fitness of aliens admitted. Aliens of fitness may, however, leave the country and return later In a condition and under circumstances that would obviously present the very evils which the act was passed to remedy. Such new conditions and new entry as clearly fall within the letter and purpose of the enactment as the same conditions and an original entry admittedly do.
It is true that to apply to the present case the rule laid down in the majority decisionl is, as respects the time of Lewis’ absence, to subject the rule to a severe test. Lewis was in Windsor only about an hour; but, unless we decline to recognize the charges contained in the warrant of deportation, we must hold that, when Lewis re-entered Detroit, he was engaged in the execution of a scheme that was plainly violative of the alien act. He was not returning from the discharge of a temporary and lawful errand; and, having no such question as that before us, we do not pass upon it. If we yield then to the mere duration of Lewis’ absence, we must grant to that feature greater importance than we do to the conditions attending his re-entry and to 'ihe intention of the law itself.
It is to be observed that under section 21 the Secretary’s power to deport is in terms vested when he is satisfied that an alien is here “in violation of this act.” It needs only to be stated that, if we are right in believing (upon the charges) that section 2 is applicable, Lewis’ reentry and his remaining here were “in violation of this act.” Haw Moy v. North, 183 Fed. 91, 105 C. C. A. 381 (C. C. A. 9th Cir.); Ex parte Avakian (D. C.) 188 Fed. 690; Ex parte Kaprielian (D. C.) 188 Fed. 694; Williams v. United States, 186 Fed. 479, 481, 108 C. C. A. 457 (C. C. A. 2d Cir.). See, also, the Japanese Immigrant Case, 189 U. S. 86. 99, 23 Sup. Ct. 611, 47 L. Ed. 721; Turner v. Williams, 194 U. S. 281, 290, 24 Sup. Ct. 719, 48 L. Ed. 979.
We are convinced that the right to deport in this case may be found also in section 3 in connection with section 21, without regard to conviction or acquittal under section 3 alone. Obviously no difference in principle can arise from the fact that two courses are open in the same act, instead of being found in two acts.
Besides, section 2 in terms is limited to aliens and section 3 is not. For example, the first clause of section 3 by general language fofbids “importation” of any alien for the purpose of prostitution or other immoral purpose; and the next clause—the one corresponding to a clause of section 2—provides that “whoever shall * * * import or attempt to import * * * any alien for the purpose of prostitution or for any other immoral purpose” may be punished. Clearly a citizen as well as an alien is embraced within this language. This is fortified by a later clause of the section; for, while the forbidden acts are denounced and punished as felonies, yet the distinction between citizen and alien is consistently carried out in the last clause, which provides that “any alien who shall be convicted under any of the provisions of this section shall, at the expiration of his sentence” be deported. It follows, we think, that the fact that two corresponding clauses are found in sections 2 and 3 plainly signifies an intent (in connection with section 21) to create and maintain two distinct rem-_ edies under which the right to deport may be exercised.
The judgment of acquittal of Lewis under the indictment returned is not res adjudicata of the present proceeding. Williams v. United States, 186 Fed. 479, 481, 108 C. C. A. 457 (C. C. A. 2d Cir.). Alluding to the charge relating to the woman, the learned trial judge said:
“The jury found Lewis not guilty. From my familiarity with the evidence, I can say I think the evidence, as fully developed on the trial (it being, in a substantial way, the same as the evidence before the department) justified a strong suspicion that Lewis was guilty, but did not justify a conviction under the rules of criminal law. The case is one where the courts could not review the conclusion of the department, if the department has jurisdiction to hear such question at all.”
It results that the right to deport in virtue of section 21 is also applicable under section 3. For one of the charges made by the Secretary of Commerce and found to be true in the warrant to deport is that Lewis “imported and brought into the United States a woman for an immoral purpose,” and this is expressly “forbidden” by the first clause of section 3.
The judgment of the court below must be reversed, and appellee remanded to the custody of appellant.