United States v. Sprung

ROSE, District Judge. The appellee will be called the petitioner. On May 25, 1909, she applied to the court below for a writ of habeas corpus to be directed to the United States immigrant inspector in charge at Norfolk. The writ issued. A return was made. A traverse was filed. A hearing was had. The court ordered that the petitioner be discharged. The United States appealed. The pleadings show that the petitioner is a native of Austria. She came to this country about 1894. She has since made several trips to Europe. She returned from the most recent of'these on May 4, 1909. Eighteen days afterwards she was arrested under a warrant of the Secretary of Commerce and Labor. It recited that upon evidence submitted it appeared that she was an alien, that she had entered the United States within three years for purposes of prostitution, and had since her entry been an inmate of a house of prostitution. The inspector was commanded to take her into custody and bring her before himself to enable her to show cause why she should not be deported. This hearing was had May 24, 1909. At the time of the return she was held to await the action of the Secretary of Commerce and Labor. The return alleged that she had originally entered the United States for the purposes of prostitution and had for a number of years led the life of a prostitute in various cities of this country. This portion of the return was not traversed. The traverse denied the allegation of the return that she had practiced prostitution since May 4, 1909, the date of her latest entry into the United States. The petition denied that she was an alien. It said that she was the wife of Otto Sprung, a naturalized.citizen of the United States. The return asserted that she was not the wife of Otto Sprung, and was an alien. The learned judge who sat in the court below held that the Secretary of Commerce and Labor had no jurisdiction to order the deportation of the petitioner because he had not acted within three years after her entry into the United States. Under the provisions of the Act of February 20, 1907, c. 1134, 34 Stat. 898 (U. S. Comp. St. Supp. 1909, p. 447), before its amendment by the Act of March 26, 1910, c. 128, 38 [905] Stat. 263, the power of the Secretary of Commerce and Eabor over alien prostitutes was limited to the period of three years after their entry into the United States. In the opinion of the court below limitations began to run from the date of her original entry into this country. In view of the admitted fact that she had been domiciled in the United States for the greater part of 15 years, it was immaterial that her return from her latest visit to Europe had taken place only 18 days before her arrest. In reaching this conclusion he relied upon Lau Ow Bew v. United States, 144 U. S. 47, 12 Sup. Ct. 517, 36 L. Ed. 310; In re Buchsbaum (D. C.) 141 Fed. 221; United States v. Aultman Co. (D. C.) 143 Fed. 922. In Eau Ow Bew’s Case the petitioner was a Chinese merchant. He had been long domiciled in the United States and had been there engaged in business. He visited China. On his return to this country he was refused permission to land because he had not the certificate from the Chinese government required by an act of Congress to be obtained by a Chinese person other than a laborer who “shall be about to come into the United States.” This certificate was to show, among many other things, the present and former occupation or profession of the person to whom it was issued, when, where, and how long he had pursued it, his place of residence, and, if a merchant, the nature, character and estimated value of the business carried on by him, prior to, and at 4he time of his application for a certificate. It was held that to ask that the Chinese government should give such a certificate to a merchant who had long been in business in the United States was “absurd and unreasonable.” That government neither had nor ordinarily could acquire the knowledge of the facts to be certified. The treaty with China secured to Chinese merchants who had been lawfully domiciled in the United States the right of free ingress and egress and all other rights, privileges, and immunities enjoyed in this country by the citizens or subjects of the most favored nation. To say to a Chinese merchant lawfully domiciled amongst us, “You cannot return here after a visit abroad unless you comply with a condition which in all cases will be exceedingly difficult and in many, if not most, impossible,” would be to show a contempt for treaty obligations. It was accordingly held that Congress could not be presumed to have intended that persons in like class with the petitioner in that case should procure such certificates as a condition of their return here. Congress shortly thereafter so amended the law as to leave to executive officials the determination of the right of a person claiming to be a domiciled Chinese merchant to re-enter this country. The Supreme Court thereupon pointed out that the decision in Eau Ow Bew’s Case had ceased to be applicable. Lem Moon Sing v. United States, 158 U. S. 549, 15 Sup. Ct. 967, 39 L. Ed. 1082. The two Federal Reporter cases cited by the judge below, viz., Buchbaum’s Case (D. C.) 141 Fed. 221, and United States v. Aultman (D. C.) 143 Fed. 922, turned upon the construction of the words, “alien immigrant” used in the statutes then tinder consideration. They held that, when a domiciled alien returned from a visit abroad, he was not an “immigrant,” although he was an “alien.” After these deci [906] sions had been rendered Congress struck the word “immigrant” out of the statutes. The Court of Appeals for the Second Circuit has examined the cases cited by the learned judge below as well as others to the same effect. It held that the omission of the word “immigrant” from the statute under which the proceedings in this case have been taken rendered them inapplicable. Ex parte Hoffman, 179 Fed. 839, 103 C. C. A. 327. The same conclusion had been previously reached by Judge Morris in the case of the United States v. Hook (D. C.) 166 Fed. 1007. We are therefore of opinion that the action of the Secretary of Commerce and Labor was taken within the time limited by law. The court below further held that, even if the proceeding was not barred by limitations, it was nevertheless one’ which, under the circumstances, the Secretary could not lawfully take. It was of opinion that, as Congress had no power to authorize the deportation of citizens by administrative process, the courts had jurisdiction to inquire and determine whether a claim to citizenship made by a person about to be deported as an alien was or was not well founded. It did not feel itself concluded by the finding- of the executive officials that as a matter of fact the petitioner had never married Otto Sprung and was still an alien. The Supreme Court has, however, held that Congress has by the immigration statutes lawfully conferred upon executive officials final and exclusive jurisdiction to hear and determine whether any particular individual is an alien or a citizen, in so far at least as such determination depends upon conclusions which may be reached upon disputed questions of fact. United States v. Sing Tuck, 194 U. S. 161, 24 Sup. Ct. 621, 48 L. Ed. 917; United States v. Ju Toy, 198 U. S. 253, 25 Sup. Ct. 644, 49 L. Ed. 1040. See, also, In re Tang Tun (9th Circuit) 168 Fed. 488, 93 C. C. A. 644; Edsell v. Mark (9th Circuit) 179 Fed. 292, 103 C. C. A. 121; Haw Moy v. North (C. C. A. 9th Circuit) 183 Fed. 89; Hoo Choy v. North (C. C. A. 9th Circuit) 183 Fed. 92. The finding that the petitioner was not the wife of Otto Sprung was the decision of a question of fact, or, at most, of mixed law and fact. Even those cases which lean most strongly in the direction of maintaining judicial control over the actions of the executive officials in dealing with aliens do not hold that the courts can review the decisions made by such officials on any questions except those which turn upon matters of law exclusively. Davies v. Manolis (7th Circuit) 179 Fed. 823, 103 C. C. A. 310. It has been suggested that some of the cases above cited arose under the Chinese exclusion acts, and that a different rule applies to questions arising under the general immigration statutes. The Japanese Immigrant Case, 189 U. S. 86, 97, 23 Sup. Ct. 611, 47 L. Ed. 721, was under the immigration, and not under the Chinese, acts. It is said that the decision of the Secretary of Commerce and Labor in a deportation case is not expressly made final as it is as to questions concerning the right of an alien to land. The courts have held otherwise. Looe Shee v. North (9th Circuit) 170 Fed. 566, 95 C. C. A. 646. In all that has been said it has been assumed that the alien or alleged alien has had a fair, although it may be a speedy and summary, hear [907] Ing. The law is well .settled that, where such hearing has not been given by the executive officials, their action will be reviewed, and, if the facts justify, reversed. Chin Yow v. United States, 208 U. S. 8, 28 Sup. Ct. 201, 52 L. Ed. 369. In this case there is no allegation that a fair hearing was not given the petitioner. It follows that in obedience to the acts of Congress and the decisions of the courts we are constrained to hold that the court below had no jurisdiction to review the action of the immigrant inspector and the Secretary of Commerce and Labor. Its order discharging the petitioner must therefore be reversed, and the cause remanded, with direction to dismiss the writ of habeas corpus and to remand the petitioner to the custody of the immigrant inspector. Reversed. Footnotes [*] For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes