Congress has power to order the deportation of aliens whose
presence in the country it deems hurtful, and this applies to
prostitutes regardless of the time they have been here.
The determination of whether an alien falls within the class
that Congress had declared to be undesirable, by facts which might
constitute a crime under local law, is not a conviction of crime,
nor is deportation a punishment.
Page 228 U. S. 586
The prohibition of
ex post facto laws in Art. I, § 9 of
the federal Constitution has no application to the deportation of
aliens.
There is a distinction between the words "as provided" and "in
the manner provided;" the former may be controlled by an express
limitation in the statute, while the latter must not be so
controlled, and so
held that the limitation in § 3 of the
Act of February 20, 1907, was stricken out by the Act of February
26, 1910, notwithstanding a reference in the latter act to a
section in the former act in which the limitation was referred
to.
The facts, which involve the power of Congress to deport aliens
and the construction of the Acts of Congress relating to
deportation of alien prostitutes, are stated in the opinion.
Page 228 U. S. 590
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is an appeal from an order discharging a writ of habeas
corpus and remanding the petitioner to custody. The ground of the
appeal is that the Act of March 26, 1910, c. 128, § 2, 36 Stat.
263, 265, relied on as authority for the arrest, impairs the
petitioner's constitutional rights. It appears from the petition
and the return to the writ that the petitioner is an alien; that
she entered the United States not later than January 4, 1905, and
that she was arrested on August 3, 1910, on an order of the Acting
Secretary of Commerce and Labor, directing the Immigrant Inspector
to take her into custody, and to grant her a hearing to show cause
why she should not be deported. The order recited that she was then
a prostitute and inmate of a house of prostitution, and that she
was a prostitute at the time of entry, and entered the United
States for the purpose of prostitution or for an immoral purpose.
The answer to the return demurs to its sufficiency, and denies that
she was a prostitute at the time of entry, or that she entered the
United States for any of the purposes alleged; but we must take it
at least that she is a prostitute now.
By the Act of February 20, 1907, c. 1134, § 3, 34 Stat. 898,
899, any alien woman found practicing prostitution within three
years after she should have entered the United States was to be
deported "as provided by sections twenty and twenty-one of this
act." This section was amended by the Act of March 26, 1910, c.
128, § 2, 36 Stat. 265,
Page 228 U. S. 591
and the limitation of three years was stricken out, but the
amendment still refers to §§ 20, 21, and orders deportation "in the
manner provided by" §§ 20, 21. The beginning of these two sections
provides for the taking into custody of aliens subject to removal,
within three years from entry, and so it has been argued in other
cases that the three-year limitation still holds good. The
construction of the amendment was not relied on here, but, before
we can deal with the constitutional question, it becomes necessary
to dispose of that point. We are of opinion that the effect of
striking out the three-year clause from § 3 is not changed by the
reference to §§ 20 and 21. The change in the phraseology of the
reference indicates to narrowed purpose. The prostitute is to be
deported, not "as provided," but "in the manner provided," in §§
20, 21. Those sections provide the means for securing deportation,
and it still was proper to point to them for that.
United
States v. Weis, 181 F. 860;
Chomel v. United States,
192 F. 117
The attempt to reopen the constitutional question must fail. It
is thoroughly established that Congress has power to order the
deportation of aliens whose presence in the country it deems
hurtful. The determination by facts that might constitute a crime
under local law is not a conviction of crime, nor is the
deportation a punishment; it is simply a refusal by the government
to harbor persons whom it does not want. The coincidence of the
local penal law with the policy of Congress is an accident.
Fong Yue Ting v. United States, 149 U.
S. 698,
149 U. S. 707,
149 U. S.
728-730;
Wong Wing v. United States,
163 U. S. 228,
163 U. S. 231;
Zakonaite v. Wolf, 226 U. S. 272,
226 U. S. 275;
Tiaco v. Forbes, ante, p.
229 U. S. 549.
The prohibition of
ex post facto laws in Article 1, § 9,
has no application,
Johnannessen v. United States,
225 U. S. 227,
225 U. S. 242,
and, with regard to the petitioner, it is not necessary to construe
the statute as having any retrospective effect.
Judgment affirmed.