100 F. 404 | 9th Cir. | 1900
Upon the petition of T. Yamasaka, a Japanese, alleging that he was unlawfully detained and restrained of his liberty by Samuel C. Walker, an immigration inspector, acting under the authority of the secretary of the treasury, a writ of habeas corpus was issued from the district court of the United States for the Northern district of Washington, to which writ the said Samuel C. Walker made answer, setting forth, in substance, that the petitioner, the appellee, is a Japanese, who about December 15, 1898, unlawfully and surreptitiously entered the United States without the permission of the immigration officers, and that in June, 1899, the said Samuel C. Walker, immigration inspector, found said petitioner within the territory of the United States, and in the district of Washington, and proceeded, in the ordinary and usual manner, to investigate his right there to be, and discovered, upon such investigation,’that the said petitioner was a pauper, and was a person likely to become a public charge, and that he belonged to one of the prohibited .classes of aliens, under the immigration laws of the United States; that, in pursuance of the regulations of the secretary of the treasury, the said inspector, by virtue of his office, arrested the petitioner, and held him in custody pending the report of his action and finding to the secretary of the treasury, for his action thereon; that he also reported said arrest to the bureau of immigration, and that the bureau also, upon the evidence produced,
The question presented on the appeal is whether an alien who succeeds in surreptitiously landing in the United States may, within a year from the date of such landing, be arrested and deported by the secretary of the treasury without a judicial proceeding before a court. The first statute providing for the return by the secretary of the treasury of prohibited aliens from a port in this country to the country whence they came is the act of February 28, 1887 (1 'Supp. Rev. St. [2d Ed.] p. 541). It is there enacted that aliens arriving at the ports of the United States under contract to perform labor in the United States shall not be permitted to land, and that all persons included in the prohibition shall upon arrival be sent back to the nations to which they belong and from whence they came, and that the secretary of the treasury shall prescribe regulations for the return of such persons to the countries whence they came, and that the expense of such return shall be borne by the owners of the vessels in which such persons came. On October 19, 1888, said act was amended (1 Supp. Rev. St. [2d IOd.j p. 638). The amendment authorizes the secretary of the treasury, in case he shall be satisfied an immigrant has been allowed to land contrary to the prohibition of the statute, to cause such immigrant, within the period of one year after landing or entry, to be taken into custody, and returned to the country from whence he came, at the expense of the owner of the importing vessel. On March 3, 1891, the prior acts were further amended. 26 Btat. 1084. By this amendment the office of superintendent of immigration was created, and, among other provisions, the following sections were enacted. A portion of section 8 is as follows:
“The inspection officers and their assistants shall have power to administer oaths, and to take and. consider testimony touching the right of any such aliens to enter the United States, all of which shall he entered of record. During such inspection after temporary removal the superintendent shall cause such aliens to be properly housed, fed, and eared for, and also, in his discretion, such as are delayed in proceeding to their destination after inspection. All decisions made by the Inspection officers or their assistants touching the right of any alien to land, when adverse to such right, shall be final unless appeal be taken to the superintendent of immigration, whoso action shall be subject to review by the secretary of the treasury.”
Section 10 provides that:
“All aliens who may unlawfully come to the United States shall, if practicable, be immediately sent back on the vessel by which they were brought in.”
“That any alien who shall come into the United States in violation of law may he returned as by law provided, at any time within one year thereafter, at the expense of the person or persons, vessel, transportation company, or corporation bringing such alien into the United States, and if that cannot be done, then at the expense of the United States; and any alien who becomes a public charge within one year after his arrival in the United States from causes existing prior to his landing therein shall be deemed to have come in violation of law and shall be returned as aforesaid.”
Section 13:
“That the circuit and district courts of the United States are hereby invested with full and concurrent jurisdiction of all causes, civil and criminal, arising under any of the provisions of this act; and this act shall go into effect on the first day of April, eighteen hundred and ninety-one.”
JSTo question can be made of the power of the United States to deal summarily with aliens who have succeeded in landing in the United States in violation of law, a's well as with those who are applying for admission. Said the court in Fong Yue Ting v. U. S., 149 U. S. 713, 13 Sup. Ct. 1022, 37 L. Ed. 905: “The power to exclude aliens, and the power to expel them, rest upon one foundation, are derived from one source, are supported by the same reasons, and are in truth but parts of one and the same power.” The question before the court, therefore', is one purely of the construction of the provisions of the acts above mentioned. What is meant by the provision of section' 11 of the act of March 3, 1891, that any alien who shall come into the United States in violation of law may bé returned “as by law provided”? In enacting that provision congress obviously had in mind its previous statutory regulation for returning to the country whence they came aliens who, coming under a contract to perform labor, had been unlawfully permitted to land in the United States. Turning to the law of October 19, 1888, above referred to, it will be seen that by its provisions the secretary of the treasury is authorized, in case he shall be satisfied that an immigrant has been allowed to land contrary to the prohibition of that law, to cause such immigrant, within the period of one year after landing or entering, to be taken into custody, and returned to the country whence he came, at the expense of the owner of the importing vessel. We find no other statutory provision to which the language of section 11, “as by law provided,” is referable. By using those words, congress clearly declared that there was to be found in its statutory enactments a manner provided by law to meet the requirements of the statute. The act of March 3, 1891, is declared to be amendatory of the “various acts relative to immigration and the importation of aliens under contract or agreement to perform labor.” Among such acts was the act of October 19, 1888. The amendment adds to the class of persons wlm may be deported by the former act, and includes therein idiots, insane persons, paupers, or persons likely to become a public charge, and other classes of persons, but it makes no change in the method which was prescribed for dealing with such cases of unlawful entry. The procedure remains as before — First, the secretary of the treasury shall be satisfied that an immigrant has landed in violation of the
It is contended that warrant for the ruling of the district court is found in section 13 of the act of 1891, which confers concurrent jurisdiction upon the circuit and district courts of all causes, civil and criminal, arising under the act. In the case of Nishmura Ekiu v. U. S., 142 U. S. 651, 12 Sup. Ct. 336, 35 L. Ed. 1146, the supreme court, in considering that i>rovision of the statute, said that section 13 “evidently refers to causes of judicial cognisance, already provided for, whether civil actions in the nature of debt for penalties, under sections 3 and 4, or indictments for misdemeanors, under sections 6, 8, and 10. Its intention was to vest concurrent jurisdiction of such causes in the circuit and district courts, and it is impossible to construe it as giving the courts jurisdiction to determine mailers which the act has expressly committed to the final determination of executive officers.” While it may not be claimed for (his utterance of the court that it was intended thereby to itemize