Sire v. Berkshire

MAXEY, District Judge (after stating the facts as above). The order of deportation issued by the Secretary of Commerce and Labor was made pursuant to the provisions of section 3 of the Act of February 20, 1907, c. 1134, 34 Stat. 899 (U. S. Comp. St. Supp. 1909, p. 450), as amended by section 2 of the Act of March 26, 1910, c. 128, 36 Stat. 264. The manner or method of deportation is shown by sections 20 and 21 of the former act. Counsel for the petitioner, throughout the argument, proceeded upon the assumption that the proceeding to deportan alien is a criminal prosecution, and that the person resisting deportation is entitled to the constitutional guaranties and safeguards with which a citizen of the country, accused of crime, is invested. The Supreme Court, however, has decided, in language too plain to be misunderstood, that such a proceeding is not a criminal prosecution, and the order of deportation is not a punishment for crime. Fong Yue Ting v. United States, 149 U. S. 730, 13 Sup. Ct. 1016, 37 L. Ed. 905; Wong Wing v. United States, 163 U. S. 236, 16 Sup. Ct. 977, 41 L. Ed. 140. Thus it was said by Mr. Justice Gray, speaking for the court, in the Eong Yue Ting Case: “Tlie order of deportation is not a punishment for crime. It is not a banishment, in the sense in which that word is often applied to tlie expulsion of a citizen from his country by way of punishment. It is but a method of enforcing the return to his own country of an alien who has not complied with the conditions upon the performance of which the government of the nation, acting within its constitutional authority and through the proper departments, has determined that his continuing to reside here shall depend. He lias not, therefore, been deprived of life, liberty, or property, without due process of law; and the provisions of the Constitution, securing the right of trial by jury, and prohibiting unreasonable searches and seizures, and cruel and unusual punishments, have no application.” But it is insisted by counsel that the petitioner was denied the right to consult an attorney on the hearing before the immigration officials [970] until after she had been examined by them touching her right to remain in the country, and that the denial of the right claimed was inconsistent with the due process clause of the fifth amendment of the Constitution. In this connection it is well to state that nowhere in the record does the petitioner deny her alienage, but, on the contrary, affirms it; nor does she deny that, at the time of her arrest, she was plying the business or calling of a prostitute. She seems to rely upon the law, by implication conceding the plain facts recited in the orders of deportation. Adverting then to the clause of the fifth amendment invoked by her counsel, did the proceeding constitute, in her case, due process of law? The x'ecord discloses that there was a hearing — although claimed by the petitioner to be a pretended one — before the officials at El Paso. It is further shown that the record was transmitted to the Secretary of Commerce and Eabor, and _after its examination by that officer the order of deportation was duly issued. That the petitioner was Represented by counsel at the hearing before the Secretary was conceded on the argument. She therefore had a hearing before executive officers authorized to entertain it, and the order issued hy them, under such circumstances, constituted due process of law. The Japanese Immigrant Case, 189 U. S. 86, 23 Sup. Ct. 611, 47 L. Ed. 721; United States v. Ju Toy, 198 U. S. 253, 25 Sup. Ct. 644, 49 L. Ed. 1040; Nishimura Ekiu v. United States, 142 U. S. 651, 12 Sup. Ct. 336, 35 L. Ed. 1146; Fong Yue Ting v. United States, supra; Lem Moon Sing v. United States, 158 U. S. 538, 15 Sup. Ct. 967, 39 L. Ed. 1082; Turner v. Williams, 194 U. S. 279, 24 Sup. Ct. 719, 48 L. Ed. 979. ' Not only so; such order of the secretai-y is final, and the courts are without power to review it. In the Japanese Immigrant Case, already referred to, it was said by the court: “That Congress may exclude aliens of a particular race from the United States; prescribe the terms and conditions upon, which certain classes of aliens may come to this country; establish regulations for sending out of the country such aliens as come here in violation of law; and commit the enforcement of such provisions, conditioxis, and regulations exclusively to executive officers, without judicial intervention — are prixiciples firmly established by the decisions of this court.” 189 U. S. 97, 23 Sup. Ct. 613, 47 L. Ed. 721, and authorities cited. See, also, section 25 of the Act of 1907, 34 Stat. 907, as to the finality of the secretary’s decision. It is further insisted by counsel for the petitioner that her arrest in Eos Angeles, Cal., in July, 1909, on the charge of being in the United States in violation of the act of .February 20, 1907, and her discharge upon that hearing, should be a bar to the present proceeding. And counsel base this contention on that clause of the fifth amendment of the Constitution which declares: “Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” - The defense of former jeopardy applies to criminal causes, and. since this is not a criminal proceeding, the clause of the fifth amendment relied on by counsel is without application. It, however, may be said that immigration officials are administi'ative officers, and their de-. [971] cisions are those of the executive department, and “cannot constitute res judicata in a technical sense.” Pearson v. Williams, 202 U. S. 285, 26 Sup. Ct. 610, 50 L. Ed. 1029. Touching the contention of counsel that the petitioner is held in violation of section 860 of the Revised Statutes, it need only be remarked that the section referred to .was expressly repealed by the Act of May 7, 1910, c. 216, 36 Stat. 352. It is further claimed that, since the petitioner had been in this country more than three years prior to the act of March 26, 1910, she acquired the right to remain here under the act of .February 20, 1907, and that therefore the former, act is not applicable to her. The contention appears to be that the act of 1910 may not be given a retrospective effect for the purpose of divesting a supposed vested right. The position assumed by counsel is altogether untenable. In reply it may be said: (1) That it does not appear from the order of the secretary, nor from the allegations of her petition, that she was arrested for practicing prostitution, or for being an inmate oí a house of prostitution, prior to the passage of the act of 1910; and (2) admitting for the sake of argument that it does so appear, the court is not aware of any principle of law, either constitutional or statutory, that would vest in an alien the right to come to this country and to remain here to ply the calling ,of a prostitute. By the terms of section 3 of the act of February 20, 1907, an alien prostitute could be deported only within the period of three years from the date of her entry. This provision of the statute was, by implication, repealed by section 2 of the amendatory act of March 26, 1910, and as the law now stands the three-year limitation no longer exists. The two acts were so construed in United States ex rel. Brion v. Prentis (D. C.) 182 Fed. 894, and in United States ex rel. Mango v. Weis (D. C.) 181 Fed. 860, and in such construction the writer concurs. The court is of the opinion that the prayer of the petition for a writ of habeas corpus should be denied, and it is so ordered.