289 F. 60 | 2d Cir. | 1923
(after stating the facts as above). It may be assumed for purposes of argument that both these aliens belonged to classes which, under the act of 1907, had to be deported, if at all, within three years from their respective entries. But an alien unprotected by treaty is an intruder; his status is matter of statute, and irrespective of mere lapse of time may be regulated, declared, and redeclared by successive statutes. We thus follow the Ninth Circuit in holding that the provisions regarding deportation contained in the act of 1917 are retroactive, as was held in Akira Ono v. United States, 267 Fed. 359. Further, the retroactive validity of this statute was recognized by this court in Lauria v. United States, 271 Fed. 261. Thus the legality of departmental proceedings is to be ascertained from the act of 1917 alone.
Both these aliens belonged to classes which must under section 19 be “taken into custody and deported” within “five years after entry.” If this section (19) were the whole of the applicable statute, the reasoning which prevailed with us in International Mercantile Marine Co. v. United States, 192 Fed. 887, 113 C. C. A. 365, and United States v. Oceanic, etc., Co., 211 Fed. 967, 128 C. C. A. 465, would require the holding that since, at the furthest, the aliens were not tendered to some vehicle of transportation for actual physical deportation within five years from their entry, the power to deport was exhausted.
But the section must be read with and in harmony with section 20, which is as much a regulation of deportation as is section 19; and
The case seems to us a clear one for resorting, not to legislative debates, but at least to the considered labors of committees to ascertain the true intent of Congress. In the report of the Senate committee on the bill which became the Immigration Act of 1917, the committee explained that:
“By using the expression ‘if deportation proceedings are instituted at any time within five years after the entry of the alien,’ .the situation of doubt as to the meaning of section 20 of the existing law (the act of 1907) is cared for. Some courts have held that the limitation of the statute ceases to run with the institution by department of deportation proceedings, and others that it does not.” 64th Cong., 1st Sess. Keport, 352.
The committee then specifically 'cites the two cases from this court, supra, and also United States v. Redfern (C. C.) 180 Fed. 506, and Botis v. Davies (D. C.) 173 Fed. 996, and also the lower court decision which was the subject of review in International Mercantile Marine Co. v. United States, supra. The citations clearly show a marked divergence of judicial opinion as to whether the deportation limitation period shall be treated (as this court treated it) as an absolute termination of all departmental power or like a statute of limitations which is ordinarily tolled by issuing process or its equivalent.
When it is observed that Congress deliberately inserted in section 20 of the act of 1917 words exactly in accord with the ruling in United States v. Redfern, supra, all doubt is dispelled as to what Congress intended by its enactment. It meant to explain the- words used in section 19 agreeably to the interpretation put upon the words of similar literal import by (inter alios) Foster J., in the Redfern Case, supra. We accordingly hold that the decisions in the above-cited cases of International and Oceanic Companies cannot be applied to limit the operation of the Department of Uabor in respect of deportation proceedings under the act of 1917. Whether under tire later statute, the cost, of deportations effected after the expiration of the five-year period can be placed upon the original transportation companies is a matter not before us, and as to which therefore no opinion can be presently expressed. • "
It follows that, as in each of these cases deportation proceedings were begun within the five-year period, each proceeding is valid; a result in agreement with Bun Chew v. Connell, 233 Fed. 220, 147 C. C. A. 226.
6The order of the lower‘court in Re Schnirmacher is affirmed, and that in Re David is reversed.
