Low Kwai v. Backus

ROSS, Circuit Judge. This is an appeal from an order discharging a writ of habeas corpus in behalf of the female appellant, Mrs. Low Kwai, alias Ho Shee, and remanding her to custody for deportation. It appears from the record that she was admitted into this country as tiie wife of the appellant Low Kwai, who, it appears, was a native of this country. Subsequently she was arrested by an immigration officer on the ground that she was practicing prostitution, and [482] after various proceedings set forth in the record, resulting in the finding that' she was such prostitute and never was the wife of Low Kwai, was ordered’deported. If the immigration officer was legally authorized to proceéd against the woman, we would not have'the slightest difficulty in affirming the order; but was he so authorized ? is tire real, and the very important, question in the case. We say important, because if, after due examination, an alien is admitted into this country, an immigration officer can, without legal warrant and of his own motion, arrest such alien upon the gfound that he or she is engaged in a business denounced by the law, and thus initiate proceedings that may result in an order 'for the deportation of such alien, as the present proceeding has .done, there would be no safety for any alien so permitted to enter the country. No such provision of law has been cited, and we think it safe to say that no such provision can be found. ■ By the act of. March 26, 1910 (36 Stat. 263, Congress so amended section 3 of the Act of February 20, 1907 (34 Stat. 898), entitled “An act to regulate the immigration of aliens into the United States,” as to read in part as follows: “See. 3. That the importation into the United States of any alien for the purpose of prostitution or for any other immoral purpose is hereby forbidden: and whoever shall, directly or indirectly, import, or attempt to import, into the United States, any alien for the purpose of prostitution or for any other immoral’purpose, or whoever shall hold or attempt to hold any alien-for any such purpose in pursuance of such illegal importation, or whoever shall keep, maintain, control, support, employ, or- harbor in any house of other place, for the purpose of prostitution or for any other immoral purpose, in pursuance of such illegal importation, any alien, shall, in every such case be deemed guilty of a felony, and on conviction thereof be imprisoned not more than ten years and pay a fine of not more than five thousand dollars. * * * Any alien who shall be found an inmate of or connected with the management of a house of prostitution or practicing prostitution after such alien shall have entered the United States * * * shall be deemed to be unlawfully within the United States and shall be deported in the manner provided by sections 2.0 and 21 of this act” — namely, the act of February 20,,1907. Section 21 of the last-mentioned act provides, among other things: “That in case the Secretary of Commerce and Labor shall be satisfied that an alien has been found in the United States in violation of this act, or that an -alien is subject to deportation under the provisions of this act or of any law of the United States, he shall cause such alien within the period of three years after landing or entry therein to be taken into custody and returned to the country whence he came, as provided by section 20 of this act.” And by section 22 of the act of February 20, 1907, it is provided, among other things: “That the Commissioner-General of Immigration, in addition to such other duties as may by law be assigned to him, shall, under the direction of the Secretary of Commerce and Labor, have charge of the administration of all laws relating.to the immigration of aliens into the United States, and shall have the control, direction, and supervision of all officers, clerks, and employés appointed thereunder. He shall establish such rules and regulations, prescribe such forms of bond, reports, entries, and other papers, and shall issue from time to time such instructions, not inconsistent with law, as he shall deem best calculated for carrying out the provisions of this act, and for protecting the United States and aliens migrating thereto from fraud and [483] loss, and shall have authority.to enter into contract for the support and relief of such aliens as may fall into distress or need public aid; all under the direction or with the approval of the Secretary of Commerce and Labor.” It will be seen from the provisions of section 21 above cited that the power to cause an alien found in the United States in violation of the act to be taken into custody for return to the country whence he came is given to the Secretary of Commerce and Labor, and to' no one else. Now, turning to the record in the present case, it is seen that the proceeding against the Chinese woman here in question was initiated by this “Application for Warrant of Arrest under sections 20 and 21 of the Act of February 20, 1907”: U. S. Department of Labor, Immigration Service. No. 12020-190. (Place) Angel Island Station, S. F. Oal., April 2, 1913,--191 — . The undersigned respectfully recommends that the Secretary of Labor issue his warrant for the arrest of Ho Slice, or Haw Shee, the alien named In the attached certificate, upon the following facts which the undersigned has carefully investigated, and which, to the best of his knowledge and belief, are true: (.1) (Here state fully facts which show alien to be unlawfully in the United States. Give sources of information, and, where possible, secure from informants and forward with this application duly verified affidavits setting forth the facts within the knowledge of the informants.) Herewith find verification of landing. It is stated from an anonymous source that this woman is now practicing prostitution in either the Oriental Hotel or the Republic Hotel, keeping one of the rooms in either hotel from time to time. She was landed as the wife of a native, but her husband deserted her. (2) The present location and occupation) of above-named alien are as follows: -. Pursuant to rule 22 of the Immigration Regulations there is attached hereto and made a part hereof the certificate prescribed in subdivision 2 of said rule, as to ihe landing or entry of said alien, duly signed by.the immigration officer in charge at the port through which said alien entered the United States. (Signature) (.Signed] H. lidsell, (Official Title) Acting Commissioner. The record further shows that, based upon that application, the Secretary of Commerce and Labor on the 11th day of April, 1913, signed a warrant directing the commissioner of immigration at Angel Island station, Sail Francisco, Cal., to take the woman in question into custody, “and grant her a hearing to enable her to show cause why she should not be deported in conformity with law,” and transmitted, the said warrant with this letter: Department of Labor, Washington. No. 53575/255. April 11, 1913. Commissioner of Immigration, Angel Island Station, San Francisco, Oal. Pursuant to your request of the 2d instant, No. 12020/190, there Is transmitted herewith warrant for the arrest of the Chinese alien Ho Shoe, or Haw -Shee, alias Ho Shi. This warrant should not be executed, however, unless your investigation develops facts justifying such action. Form 533, forwarded with your application, is inclosed, as requested. [Signed] W. B. Wilson, Secretary. [484] It is perfectly manifest that by thi§ action of the Secretary of Commerce and Labor he left it to the commissioner of immigration to decide what Congress committed to the Secretary of Commerce and Labor to decide. It is, according to the express language of the act of Congress, as has been seen, the Secretary of Commerce and Labor who shall be satisfied that the alien has been found in the United States in violation of law and therefore subject to deportation, and who, upon being so satisfied, “shall cause such alien, within the period of three years after landing or entry therein, to be taken into custody and returned, to the country whence he came, as provided'by section 20 of” the act of February 20, 1907. In this instance the acting commissioner of immigration undertook, as has been seen, to. satisfy the Secretary of Commerce and Labor •that the woman here in question had violated the law, by simply saying: “It is stated from an anonymous source that this woman is now practicing prostitution in either the Oriental Hotel or the Republic Hotel, keeping one of the rooms in either hotel from time to time. She was landed as the wife of a native, but her husband deserted her.” The mere statement from an anonymous source that the woman referred to was violating the law evidently, and very properly, did not satisfy the Secretary of such fact, and, instead of requiring some sufficient evidence thereof, he undertook to depute to the Commissioner of Immigration at Angel Island, Cal., to satisfy himself, and .thus to' decide the question authorizing the arrest of the party charged that was committed by Congress to the Secretary of Commerce and Labor only. That course, in our opinion, was wholly unauthorized by the statute. It results that the order appealed from must be reversed, and the cause remanded, with directions to discharge the petitioner. It is so ordered.