Section 21 of the Immigration Act of February 20, 1907, c. 1134,
34 Stat. 898, empowers the Secretary of Labor, when satisfied that
an alien has been found in the United States in violation of that
act, or is subject to deportation under the provisions of that act
or of any law of the United States, to cause such alien within the
period of three years, etc., to be taken into custody and returned
to the country whence he came; § 43, however, provides that the act
shall not be construed to repeal, alter, or amend existing laws
relating to the immigration or exclusion of Chinese persons or
persons of Chinese descent.
Held that § 43 preserves the
judicial proceedings prescribed by the Chinese Exclusion acts for
the cases to which those acts apply, and that, where the ground was
a violation of the Exclusion Acts and not a violation of the
Immigration Act, the summary administrative method provided by § 21
cannot be used.
United States v. Wong You, 223 U. S.
67, distinguished.
The case is stated in the opinion.
The Immigration Act of February 20, 1907, c. 1134, 34 Stat. 898,
provides as follows:
"Sec. 21. That, in case the Secretary of [Commerce and]
Page 245 U. S. 553
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 [italics ours], he shall cause
such alien within the period of three years after landing or entry
to be taken into custody and returned to the country whence he
came. . . ."
It is provided, however (§ 43):
"That this act shall not be construed to repeal, alter, or amend
existing laws relating to the immigration or exclusion of Chinese
persons or persons of Chinese descent. . . ."
The relation of these sections has given rise to diversity of
decision, district courts of different districts and circuit courts
of appeals for different circuits being in opposition.
Ex parte
Woo Shing, 226 F. 141, sustains the power of the Secretary of
Labor exercised under § 21, and the decision was approved by the
Circuit Court of Appeals for the Eighth Circuit.
Lo Pong v.
Dunn, 235 F. 510;
Sibray v. United States, 227 F. 1.
The power of the Secretary was denied in the instant case by the
District Court for the Eastern District of Kentucky, 228 F. 927,
and the decision has been followed by the circuit courts of appeals
for the Seventh and Fifth Circuits.
United States v. United
States ex rel. Lem Him, 239 F. 1023;
Lee Wong Hin v.
Mayo, 240 F. 368.
The circuit court of appeals, reciting this diversity, certifies
to this Court the following questions, "(a in the abstract, b
concretely)":
"(a) Has the Secretary of Labor, acting within three years from
the last entry, jurisdiction to arrest and deport a Chinese alien
upon the sole ground that he is found in this country in violation
of the Chinese Exclusion Act?"
"(b) Are the facts stated in Woo Jan's petition and admitted by
demurrer inconsistent with any jurisdiction in the Department of
Labor to cause his arrest and deportation? "
Page 245 U. S. 554
The answer that is received to "(a)" determines the answer to
"(b)." In other words, if the first be answered "No," the second
will necessarily be answered "Yes," the second being, as indicated
by the circuit court of appeals, the concrete application of the
abstraction of the first.
The facts are these: the Secretary of Labor, attempting to
exercise the power supposed to be conferred upon him by § 21,
caused the arrest of Woo Jan as a Chinese alien unlawfully within
the United States, with the view and purpose of deporting him. The
warrant of arrest recited
"that the said alien is unlawfully within the United States in
that he is found therein in violation of the Chinese Exclusion
Laws, and is therefore subject to deportation under the provisions
of § 21"
of the Act of Congress of February 20, 1907, amended by the Act
of March 26, 1910. It was directed to the "Inspector in Charge,
Cleveland, Ohio, or to any immigrant inspector in the service of
the United States."
Woo Jan petitioned the district court in habeas corpus to be
discharged from the arrest, asserting his right to be and remain in
the United States and setting up as grounds of it that he was a
merchant, and that his status as a resident had been investigated
by the authorities of the United States and established, and that
there was no authority of law for the issue of the warrant. To the
petition the District Attorney demurred, and the court, holding
that the warrant had been issued without authority of law, ordered
the discharge of Woo Jan. The case therefore presents to us through
the questions certified the validity of the judgment.
We are admonished at the outset by the diversity of opinion that
there are grounds for opposing contentions. Indeed, §§ 21 and 43
seem to be, at first impression, in irreconcilable conflict. The
declaration of § 21 is that the power of the Secretary of Labor
shall extend to taking into custody and returning to the country
from whence
Page 245 U. S. 555
he came whoever is subject to deportation under the provisions
"of any law of the United States." The universality of the
declaration would seem to preclude exception and compel a single
judgment. But, passing on to § 43, we find another law preserved
and kept in function, a function so firm and exclusive that it is
provided that the act, of which § 21 is but a part, shall not be
construed to "repeal, alter or amend" it. Let us repeat the
language:
"
Provided, that this act shall not be construed to
repeal, alter, or amend existing laws relating to the immigration
or exclusion of Chinese persons or persons of Chinese descent."
There is, therefore, an express qualification of the
universality of § 21 -- indeed, from all of the provisions of the
act, the Chinese exclusion laws are excepted. They, the latter, are
to stand in their integrity and efficacy. But it is asserted that
they are so left to stand, and that § 21 only gives another remedy,
and
United States v. Wong You, 223 U. S.
67, is cited, first as to the assertion, then as to the
cited case.
That we may estimate both, we insert in the margin the
provisions of the Exclusion Laws. [
Footnote 1] The government,
Page 245 U. S. 556
confronted with those provisions, conceded at bar that the
remedy of § 21 is not their equivalent. The difference is marked.
It is the difference between administrative and judicial action,
and the government recognized that the difference -- we might say
contrast -- is the step on which it "must fall down, or else
o'erleap." And necessarily so. Manifestly the remedy of § 21 has
not the safeguards of impartiality and providence that the remedy
of the Exclusion Laws has. Mere discretion prompts the first and
last act of the former; the latter has the security of procedure
and ultimate judgment of a judicial tribunal, where all action
which precedes judgment is upon oath and has its assurance and
sanctions.
The remedies are too essentially different to be concurrent. And
yet we are asked to decide that the law which permits the first --
that is, permits the deportation of an
Page 245 U. S. 557
alien simply upon the warrant or determination of an executive
officer, is not an amendment or alteration of a law which prohibits
it. And there can be no doubt of the result if such decision be
made. The summary and direct remedy of § 21 will always be used. No
Chinese person will be given the formal procedure of the Exclusion
Laws, with their safe guards. The cases demonstrate this, and we
cannot believe that Congress was insensible of it and left it
possible. Nor can we ascribe to Congress a deliberately deceptive
obscurity and an intention, by the use of words which can be given
a double sense, to grant a right that can have no assertion. We
must, indeed, assume that § 43 was intended to be sufficient of
itself -- fully exclusive and controlling.
We might terminate the discussion here and leave the case to the
explicit language of § 43 that § 21 (to pass at once to the
particular) "shall not be construed to alter, repeal or amend
existing laws relating to the immigration or exclusion of Chinese
persons." The government, however, contends, as we have seen, that
this Court has decided to the contrary in
United States v. Wong
You, supra.
The government's understanding of the case is erroneous. It
concerned Chinese persons, but not the Exclusion Laws, and it was
decided that such persons might offend against the Immigration Act
and be subject to deportation by the Department of Labor if they
should so offend. This was the extent of the decision, and its
language was addressed to the contention that the latter act was
applicable to all persons except Chinese because of § 43. The
contention was declared to be untenable, and it was untenable. The
case, therefore, is different from that at bar, and the opinion was
considerate of the difference -- that is, considerate of the
difference between the Immigration Act and the Exclusion Laws.
This difference must be kept in mind. The Chinese Exclusion Laws
have not the character or purpose of the Immigration
Page 245 U. S. 558
Act. They are addressed under treaty stipulations [
Footnote 2] to laborers only. Other classes
are not included in their limitation, and it was provided by the
treaty that the limitation or suspension of the entry of laborers
should be reasonable. The questions, therefore, which could arise
were deemed different from any under the Immigration Act, and the
Exclusion Laws are adapted to them, and their procedure is hence
saved by § 43.
We therefore answer question "(a)" No, and question "(b)"
Yes.
And it is so ordered.
MR. JUSTICE CLARKE took no part in the consideration and
decision of this case.
[
Footnote 1]
The act of May 6, 1882, § 1, as amended by the act of July 5,
1884 (22 Stat. 58; 23 Stat. 115), provides that:
"From and after the passage of this act, and until the
expiration of ten years next after the passing of this act, the
coming of Chinese laborers to the United States be and the same is
hereby suspended, and during such suspension, it shall not be
unlawful for any Chinese laborer to come from any foreign port or
place, or having so come to remain within the United States."
Section 13 of the Act of September 13, 1888, 25 Stat. 476, 479,
entitled "An act to prohibit the coming of Chinese laborers to the
United States," provides:
"That any Chinese person, or person of Chinese descent, found
unlawfully in the United States, or its territories, may be
arrested upon a warrant issued upon a complaint, under oath, filed
by any party on behalf of the United States, by any Justice, Judge,
or Commissioner of any United States court, . . . or before any
United States court, and when convicted, upon a hearing, and found
and adjudged to be one not lawfully entitled to be or remain in the
United States, such person shall be removed from the United States
to the country whence he came. But any such Chinese person
convicted before a commissioner of a United States court may,
within ten days from such conviction, appeal to the judge of the
District Court for the district."
Section 3 of the Act of March 3, 1901, 31 Stat. 1093,
provides:
"That no warrant of arrest for violation of the Chinese
Exclusion Laws shall be issued by the United States Commissioners
except upon the sworn complaint of a United States District
Attorney, Assistant United States District Attorney, Collector, . .
. or Inspector of Customs, Immigration Inspector, United States
Marshal, or Deputy United States Marshal, or Chinese Inspector,
unless the issuing of such warrant of arrest shall first be
approved or requested in writing by the United States District
Attorney of the district in which issued."
By the Act of April 29, 1902, § 1, as amended and reenacted by §
5 of the Deficiency Act of April 27, 1904 (32 Stat. 176; 33 Stat.
428),
"all laws . . . regulating, suspending, or prohibiting the
coming of Chinese persons or persons of Chinese descent into the
United States . . . are hereby reenacted, extended, and continued,
without modification, limitation, or condition."
[
Footnote 2]
Article I of the treaty [November 17, 1880, 22 Stat. 826]
provides that, whenever, in the opinion of the United States, the
coming of Chinese laborers to the United States or their residence
therein might affect the interests of the United States, it was
agreed that the United States might regulate, limit, or suspend
such coming or residence, but not absolutely prohibit it, and that
the limitation should be reasonable, and apply only to laborers,
other classes not being included in the limitation. Article II of
the treaty is as follows:
"Chinese subjects, whether proceeding to the United States as
teachers, students, merchants, or from curiosity, together with
their body and household servants, and Chinese laborers who are now
in the United States, shall be allowed to go and come at their own
free will and accord, and shall be accorded all the rights,
privileges, immunities, and exemptions which are accorded to the
citizens and subjects of the most favored nation."
22 Stat. 827.