1. In a proceeding to deport an alien for having in possession,
for distribution, printed matter advocating the overthrow of the
government by force, knowledge on his part of the seditious
character of the printed matter, though essential to the authority
to deport, is not a jurisdictional fact. P.
264 U. S.
133.
Page 264 U. S. 132
2. Mere error of the Secretary of Labor in finding a fact
essential to deportation from evidence legally, but not manifestly,
inadequate is not a denial of due process of law. P.
264 U. S.
133.
Affirmed.
Appeal from an order of the district court dismissing a writ of
habeas corpus.
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
Tisi, an alien, was arrested in deportation proceedings as being
within the United States in violation of law. The ground specified
was knowingly having in his possession for the purpose of
distribution printed matter which advocated the overthrow of the
government of the United States by force. Act of October 16, 1918,
c. 186, §§ 1 and 2, 40 Stat. 1012, as amended by Act of June 5,
1920, c. 251, 41 Stat. 1008. The warrant of deportation issued
after a hearing. Then this petition for a writ of habeas corpus was
brought in the federal court, and heard upon the return and a
traverse thereto. The order, entered without opinion, dismissed the
writ, remanded the relator to the custody of the commissioner of
immigration at the port of New York, and granted a stay, pending
the appeal to this Court. The case is here under § 238 of the
Judicial Code, the claim being that Tisi was denied rights
guaranteed by the federal Constitution.
Tisi's claim to be discharged on habeas corpus rests wholly upon
the contention that he has been denied due process of law. There
was confessedly due notice of the charge and ample opportunity to
be heard. What Tisi
Page 264 U. S. 133
urges is that there was no evidence to sustain the finding that
he knew the seditious character of the printed matter. Such
knowledge is not, like alienage, a jurisdictional fact.
Ng Fung
Ho v. White, 259 U. S. 276,
259 U. S. 284;
United States ex rel. Bilokumsky v. Tod, 263 U.
S. 149. But it is an essential of the authority to
deport. There is no suggestion that the Secretary of Labor failed
to recognize this requirement. The contention is that he erred in
deciding that there was substantial evidence of such knowledge, and
in allowing the supposed evidence to convince him of the fact. The
printed matter found consisted of leaflets in the English language.
Tisi testified that he cannot read English, that he did not know
the character of the leaflets, and that his presence in the company
of other Italians who were seen folding the leaflets was
accidental. The Secretary of Labor was not obliged to believe this
testimony. The government did not introduce any direct evidence to
the contrary. But there was much evidence of other facts from which
Tisi's knowledge of the character of the leaflets might reasonably
have been inferred. We do not discuss the evidence, because the
correctness of the judgment of the lower court is not to be
determined by inquiring whether the conclusion drawn by the
Secretary of Labor from the evidence was correct, or by deciding
whether the evidence was such that, if introduced in a court of
law, it would be held legally sufficient to prove the fact
found.
The denial of a fair hearing is not established by proving
merely that the decision was wrong.
Chin Yow v. United
States, 208 U. S. 8,
208 U. S. 13.
This is equally true whether the error consists in deciding wrongly
that evidence introduced constituted legal evidence of the fact or
in drawing a wrong inference from the evidence. The error of an
administrative tribunal may, of course, be so flagrant as to
convince a court that the hearing had was not a fair one.
Compare United States ex rel. Bilokumsky v. Tod,
263 U. S. 149;
Kwock Jan Fat v. White, 253 U. S. 454;
Zakonaite
Page 264 U. S. 134
v. Wolf, 226 U. S. 272;
Tang Tun v. Edsell, 223 U. S. 673. But
here no hasty, arbitrary, or unfair action on the part of any
official, or any abuse of discretion, is shown. There is no claim
that the lack of legal evidence of knowledge was manifest, or that
the finding was made in willful disregard of the evidence to the
contrary, or that settled rules of evidence were ignored. The
procedure prescribed by the rules of the department appears to have
been followed in every respect, and the legality of that prescribed
is not questioned. There is no suggestion that Tisi was not allowed
to prepare for the hearing, by prior examination of the written
evidence on which the warrant of arrest issued, or that he was
otherwise restricted in his preparation of the defense. The hearing
was conducted orally. Tisi was present, and was represented by
counsel. He testified fully, and the many witnesses produced by the
government were cross-examined by his counsel. He was given ample
time in which to present the evidence, the argument, and a brief.
Under these circumstances, mere error, even if it consists in
finding an essential fact without adequate supporting evidence, is
not a denial of due process of law.
Affirmed.