1. Section 2172 of the Revised Statutes, by which naturalization
of parents extends to minor children "if dwelling in the United
States," does not apply where a child was rightly denied entry as a
feeble-minded person and ordered deported but permitted, under
special safeguards, to remain in this country with her father while
the deportation was temporarily suspended because of the late war.
P. 229.
2. Under the above circumstances, the alien, properly speaking,
has not "entered" the United States and is not "found" there, but
is in custody at the limit of jurisdiction awaiting the order of
the authorities; consequently the limitation of five years upon
liability to deportation (Act of February 5, 1917, c. 29, § 19, 39
Stat. 889) is inapplicable. P.
267 U. S.
230.
Affirmed.
Appeal from an order of the district court dismissing a petition
for habeas corpus.
Page 267 U. S. 229
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is an appeal from an order dismissing a petition of the
appellant for a writ of habeas corpus. The petition alleges that
the petitioner is a citizen of the United States, and that she is
unlawfully detained by the respondent under a warrant of
deportation issued by the Assistant Secretary of Labor, without
jurisdiction and without due process of law contrary to the Fifth
Amendment of the Constitution of the United States. An appeal was
taken directly to this Court on the alleged infringement of the
appellant's constitutional rights.
Chin Yow v. United
States, 208 U. S. 8,
208 U. S. 13;
Ng Fung Ho v. White, 259 U. S. 276,
259 U. S.
284.
The appellant was born in Russia. On July 20, 1914, being then
about thirteen years old, she was brought to this country, where
her father already was, by her mother. Upon examination, she was
certified to be feeble minded, and was ordered to be excluded, but,
before the order could be carried into effect, the European war had
begun. Deportation necessarily was suspended, and she was kept at
Ellis Island until June, 1915. In the latter half of that month,
she was handed over to the Hebrew Sheltering and Immigrant Aid
Society upon its undertaking to accept custody of the child until
she could be deported safely, to return her when required, and
meanwhile to prevent her becoming a public charge. The Society
allowed her to live with her father, which she has done ever since.
On December 14, 1920, her father was naturalized, she being then
about nineteen. The warrant of deportation was issued on January
19, 1923; the writ of habeas corpus was allowed on April 24, and
was dismissed on the following October 9.
It is not questioned that the appellant rightly was denied
admission in July, 1914, or that she is feeble minded
Page 267 U. S. 230
still. Act of March 26, 1910, c. 128; 36 Stat. 263. But it is
said that she became a citizen by the naturalization of her father
while she was a minor and in this country, Rev.Stats. § 2172, and
that she cannot be deported upon a warrant issued more than five
years after her entry into the United States. Act of February 5,
1917, c. 29, § 19, 39 Stat. 874, 889; Act of February 20, 1907, c.
1134, § 20; 34 Stat. 898, 904. The answers to both arguments are
much the same. Naturalization of parents affects minor children
only "if dwelling in the United States." Rev.Stats. § 2172. The
appellant could not lawfully have landed in the United States in
view of the express prohibition of the Act of 1910 just referred
to, and until she legally landed "could not have dwelt within the
United States."
Zartarian v. Billings, 204 U.
S. 170,
204 U. S. 175.
Moreover, while she was at Ellis Island, she was to be regarded as
stopped at the boundary line and kept there unless and until her
right to enter should be declared.
United States v. Ju
Toy, 198 U. S. 253,
198 U. S. 263.
When her prison bounds were enlarged by committing her to the
custody of the Hebrew Society, the nature of her stay within the
territory was not changed. She was still in theory of law at the
boundary line, and had gained no foothold in the United States.
Nishimura Ekiu v. United States, 142 U.
S. 651,
142 U. S. 661.
She never has been dwelling in the United States within the meaning
of the Act. Still more clearly, she never has begun to reside
permanently in the United States within the later Act of March 2,
1907, c. 2534, § 5; 34 Stat. 1229.
United States ex rel. Patton
v. Tod, 297 F. 385,
aff'g 292 F. 243;
United
States ex rel. De Rienzo v. Rodgers, 185 F. 334.
The later of the limitation acts, the Act of February 5, 1917,
c. 29, § 19, 39 Stat. 874, 889, applies to "any alien who at the
time of entry was a member of one or more of the classes excluded
by law" and to "any alien who shall have entered or who shall be
found in the United
Page 267 U. S. 231
states in violation of this Act." For the reasons already
stated, the appellant never has entered the United States within
the meaning of the law, and is not properly described in the
warrant as "found in the United States in violation of the
immigrant authorities." Theoretically she is in custody at the
limit of the jurisdiction awaiting the order of the authorities. It
would be manifestly absurd to hold that the five years run in favor
of one held at Ellis Island for deportation, and as we have said
the position of the appellant is the same.
Order affirmed.