1. On certiorari, only so much of the judgment below as was
adverse to the petitioner is reviewable. P.
287 U. S.
331.
2. Section 9 of the Immigration Act of 1917, as amended, which
confers upon the Secretary of Labor, as an administrative officer,
authority to impose money penalties upon persons or transportation
companies bringing to the United States aliens afflicted with any
of the diseases therein enumerated, or with any mental or physical
defect which may affect his ability to earn a living, when it
appears to the satisfaction of the Secretary that such disease or
defect was existent and discoverable by competent medical
examination at the time of embarkation, was a valid exercise of the
power of Congress. P.
287 U. S.
334.
3. The statute is an incident to the exercise by Congress of its
plenary power to control the admission of aliens, and inasmuch as
the fines prescribed are not unreasonable or confiscatory in
amount, their imposition by administrative action, rather than by
judicial procedure, does not deny due process. P.
287 U. S.
335.
4. In determining liability under the section, the Secretary's
conclusion as to the weight of the evidence is final, and his
determination will not be set aside where challenged solely upon
this ground. P.
287 U. S.
338.
Page 287 U. S. 330
5. Where, in determining liability, the Secretary fails to
consider evidence before him, he exceeds his authority; where he
relies alone upon the medical opinion of examining physicians at
the port of entry, without submitting to them facts which might
properly have influenced their opinion, he acts arbitrarily and
unfairly; and, in either case, his determination must be set aside.
P.
287 U. S.
339.
6. The statute is violated when an alien not admissible under
its terms is brought to the United States, and a penalty may
thereupon be imposed notwithstanding that the admissibility of the
alien could not be determined in advance of his arrival, or that he
was not seeking to remain here permanently.
Eltin v. North
German Lloyd, ante p.
287
U. S. 324. P.
287 U. S.
340.
7. To secure remission of the fine imposed under § 16 of the
Immigration Act of 1924, a transportation company which brought to
the United States a quota immigrant having a nonquota visa, in
violation of that section, has the burden of establishing to the
satisfaction of the Secretary that it could not have been
ascertained by the exercise of reasonable diligence that the alien
was a quota immigrant. P.
287 U. S. 341.
55 F.2d 1048 reversed in part.
Certiorari,
286 U. S. 53, to
review a judgment which affirmed in part and reversed in part a
judgment in an action brought by the steamship company against the
Collector of Customs to recover fines imposed under the Immigration
Act. Opinion of District Court, 45 F.2d 405;
see also 46
F.2d 315.
MR. JUSTICE STONE delivered the opinion of the Court.
Petitioner, a steamship transportation company, brought suit in
the District Court for Southern New York to recover from the
collector of customs certain fines
Page 287 U. S. 331
alleged to have been illegally exacted by the Secretary of Labor
under § 9 of the Immigration Act of 1917, c. 29, 39 Stat. 874, 880,
or its amendment by § 26 of the Immigration Act of 1924, c.190, 43
Stat. 153, 166, 8 U.S.C. § 145. The complaint stated fifteen causes
of action, one for each fine involved. The trial court directed a
verdict for the petitioner on three causes of action, the ninth,
eleventh, and fifteenth, and for the respondent on all the others,
and gave judgment accordingly. 45 F.2d 405.
See also, 46
F.2d 315. Upon appeal by both parties, the judgment of the District
Court was affirmed by the Court of Appeals for the Second Circuit,
55 F.2d 1048, except as to the fifteenth cause of action, with
respect to which it was reversed. As certiorari was granted, 286
U.S. 539, on petition of the steamship company alone, only so much
of the judgment below as decided in favor of the collector is
brought before us for review.
Federal Trade Commission v.
Pacific Paper Assn., 273 U. S. 52,
273 U. S. 66;
The Malcolm Baxter, Jr., 277 U. S. 323.
Section 9 of the Immigration Act, as amended, provides that:
"[I]t shall be unlawful for any person, including any
transportation company, . . . to bring to the United States . . .
from a foreign country . . . any alien afflicted with idiocy,
insanity, imbecility, feeble-mindedness, epilepsy, constitutional
psychopathic inferiority, chronic alcoholism, tuberculosis in any
form, or a loathsome or dangerous contagious disease, and if it
shall appear to the satisfaction of the Secretary of Labor that any
alien so brought to the United States was afflicted with any of the
said disease or disabilities at the time of foreign embarkation,
and that the existence of such disease or disability might have
been detected by means of a competent medical examination at such
time, such person or transportation company . . . shall pay to the
collector of customs of the customs district in which the port of
arrival is located the sum of
Page 287 U. S. 332
$1,000, and in addition a sum equal to that paid by such alien
for his transportation . . . for each and every violation of the
provisions of this section, such latter sum to be delivered by the
collector of customs to the alien on whose account assessed. . .
."
The same section also makes it unlawful
"to bring to any port of the United States any alien afflicted
with any mental defect other than those above specifically named,
or physical defect of a nature which may affect his ability to earn
a living, as contemplated in section 136(3) of this Act, and if it
shall appear to the satisfaction of the Secretary of Labor that any
alien so brought to the United States was so afflicted at the time
of foreign embarkation, and that the existence of such mental or
physical defect might have been detected by means of a competent
medical examination at such time, such person shall pay to the
collector of customs of the customs district in which the port of
arrival is located, the sum of $250, and, in addition a sum equal
to that paid by such alien for his transportation. . . ."
Between the years 1923 and 1927, the petitioner brought to the
United States in its vessels the thirteen aliens with respect to
whose transportation the fines now in question were imposed. All
were found, upon arrival, to be inadmissible because they were
afflicted either with one of the diseases specified in § 9, or with
a physical defect which might affect the alien's ability to earn a
living. In each case, in the proceedings before the Board of
Special Inquiry to pass on the admissibility of the alien, the
examining physicians of the Health Department certified to his
diseased condition or disability on arrival, adding: "In our
opinion, the condition herein certified might have been detected by
competent medical examination at the port of embarkation." In each
instance, the petitioner was notified of the certificate of the
medical examiners, advised that such findings indicated its
liability to fine
Page 287 U. S. 333
under § 9 of the Act of 1917 or its amendment of 1924, and given
thirty or sixty days in which to have a hearing. In each case, the
petitioner responded to the notice by depositing the amount of the
possible fine, in order to secure clearance of the vessel,
[
Footnote 1] and transmitting
an unverified letter of protest against the imposition of the fine,
stating generally that it was the regular practice of the
petitioner to have each immigrant carefully examined by competent
doctors before embarkation, and that therefore the disease or
disability either did not exist at the time of embarkation or could
not then have been discovered by means of competent medical
examination, or was of such a nature as could not affect the
alien's ability to earn a living. In one case, that of Fusco,
stated in the tenth cause of action, the letter of protest was
accompanied by affidavits tending to confirm the statements
contained in the protests. In all thirteen cases, fines were
imposed by the Secretary, and the funds deposited by petitioner
were retained by the government.
The "files" or "records" upon which the Secretary of Labor based
his decisions that the fines should be imposed consisted in general
of the transcript of the hearing and examination before the Board
of Special Inquiry at Ellis Island, in which the admissibility of
the alien was passed upon, which included a reference to the
medical certificate, the petitioner's letter of protest and any
accompanying documents, and various communications of an
interdepartmental character relating to the disposition of the
alien by the Secretary.
At the trial in the District Court, the petitioner introduced
evidence which had not been presented to the Department of Labor
tending to show that a competent medical
Page 287 U. S. 334
examination had been made of the aliens at the port of
embarkation, and that the diseases or disabilities, on the basis of
which the fines had been imposed, had not in fact been discovered,
and were not discoverable at that time by such an examination.
Although the trial judge thought that this evidence tended to show
in detail the thoroughness of the examinations and the competence
of the physicians, he struck out this class of testimony and held,
on the basis of the record made before the Secretary, that there
was evidence supporting his action.
The petitioner contends here, as it did before the courts below,
that the evidence offered at the trial was erroneously excluded;
that, if § 9 is construed to preclude a judicial trial of the
issues before the Secretary, it denies to petitioner due process of
law, and, finally, that in any case the fines were not validly
imposed because the Secretary of Labor abused the discretion
reposed in him by the statute.
The first two objections are untenable. By the words of the
statute, the Secretary's is the only voice authorized to express
the will of the United States with respect to the imposition of the
fines; the judgment of a court may not be substituted for the
discretion which, under the statute, he alone may exercise. In
conferring that authority upon an administrative officer, Congress
did not transcend constitutional limitations. Under the
Constitution and laws of the United States, control of the
admission of aliens is committed exclusively to Congress, and, in
the exercise of that control, it may lawfully impose appropriate
obligations, sanction their enforcement by reasonable money
penalties, and invest in administrative officials the power to
impose and enforce them.
Oceanic Steam Navigation Co. v.
Stranahan, 214 U. S. 320;
Passavant v. United States, 148 U.
S. 214;
see Hampton & Co. v. United States,
276 U. S. 394,
276 U. S. 406;
Navigazione Libera Triestina v. United States, 36 F.2d
631;
Zakonaite v. Wolf, 226 U. S. 272,
226 U. S.
275.
Page 287 U. S. 335
In
Oceanic Steam Navigation Co. v. Stranahan, supra,
this Court upheld the constitutionality of § 9 of the Immigration
Act of 1903, c. 1012, 32 Stat. 1213, 1215, which is substantially
the same as the present section, except that it imposed smaller
penalties. Petitioner contends that, as the fines have been
increased tenfold, the issue of liability has become so grave that
the
Stranahan case is no longer controlling, and the
imposition of the fines by administrative action is a denial of due
process unless opportunity is afforded at some stage to test their
validity in court by a trial of the facts
de novo.
As was pointed out in the
Stranahan case, the statute
imposing the fines must be regarded as an incident to the exercise
by Congress of its plenary power to control the admission of
aliens, and due process of law does not require that the courts,
rather than administrative officers, be charged, in any case, with
determining the facts upon which the imposition of such a fine
depends. It follows that, as the fines are not invalid, however
imposed, because unreasonable or confiscatory in amount, which is
conceded, Congress may choose the administrative, rather than the
judicial, method of imposing them. Indeed, the Court rested its
decision in
Oceanic Steam Navigation Co. v. Stranahan,
supra, on the authority of cases arising under the revenue
laws, authorizing the administrative imposition of civil penalties
frequently much greater than those imposed here.
Bartlett
v. Kane, 16 How. 263,
57 U. S. 274;
Passavant v. United States, supra; Origet v. Hedden,
155 U. S. 228;
See Murray's Lessee v. Hoboken
Land & Improvement Co., 18 How. 272.
The action of the Secretary is, nevertheless, subject to some
judicial review, as the courts below held. The courts may determine
whether his action is within his statutory authority,
compare
Gonzales v. Williams, 192 U. S. 1;
Gegious v. Uhl, 239 U. S. 3, whether
there was any evidence before him to support his determination,
Page 287 U. S. 336
compare Vajtauer v. Commissioner of Immigration,
273 U. S. 103, and
whether the procedure which he adopted in making it satisfies
elementary standards of fairness and reasonableness, essential to
the due administration of the summary proceeding which Congress has
authorized.
Compare Kwock Jan Fat v. White, 253 U.
S. 454;
Tang Tun v. Edsell, 223 U.
S. 673;
Chin Yow v. United States, 208 U. S.
8,
208 U. S. 12;
The Japanese Immigrant Case, 189 U. S.
86,
189 U. S.
100-101;
see United States ex rel. Iorio v.
Day, 34 F.2d 920;
Whitfield v. Hanges, 222 F.
745.
The statute plainly authorizes the imposition of the fine only
if it shall appear, to the satisfaction of the Secretary, that the
existence of the disease or disability for which the alien was
excluded "might have been detected by means of a competent medical
examination" at the time of sailing. That § 9 imposed upon the
Secretary the official duty and responsibility of making such a
determination was held by both courts below, and is not questioned
by the government. Accordingly, his action in particular cases is
subject to judicial review within the limits mentioned. Whether, as
was suggested in the
Stranahan case,
supra,
214 U. S. 332,
214 U. S. 342,
Congress, while adhering to the statutory declaration that the fine
is incurred only when the alien's disease or disability could have
been detected by competent medical examination at the point of
embarkation, might constitutionally provide that the certificate of
the examining physician at the port of entry should be conclusive
as to that fact, we need not determine. We think it clear, despite
language in the
Stranahan case intimating a different
view, that the statute, as it has been consistently construed
administratively, [
Footnote 2]
contemplates
Page 287 U. S. 337
that the Secretary should fairly determine, after a hearing and
upon the evidence, the facts establishing its violation.
Hence, we pass to the petitioner's remaining contention, that
the action of the Secretary here in determining liability was
arbitrary and unfair. In all of the cases before us, the
Secretary's decision was supported by at least one item of
evidence. It was the certified opinion of the examining physicians
of the Health Department, based upon a physical examination of the
alien in the proceeding in which his admissibility was determined,
that, at an earlier date, that of embarkation, the existence of the
disease with which he was afflicted upon arrival might have been
detected by competent medical examination. This opinion as to the
physical condition of the alien at the time and place of
embarkation was not accompanied by a statement of the facts
observed. Nevertheless, it was some evidence tending to establish
the discoverability of the disease at the time of embarkation.
In all the cases but that of Fusco, the evidence presented to
the Secretary, in support of the petitioner's contention that the
disease or disability could not have been discovered by competent
medical examination at the point of embarkation, consisted of the
general statement in the protests that it was the practice of the
company to conduct such an examination, and, in a few instances,
that the alien had received a consular visa. Petitioner argues
Page 287 U. S. 338
that the alien must have received a medical examination in order
to secure the visa. But the protest did not assert that such was
the fact, or invite the Secretary to consider it. No details were
presented showing the nature or results of any medical examination
claimed to have been made before sailing.
As the protests were not rejected by the Secretary, the facts
they disclosed were properly before him, and were evidence which,
in an administrative proceeding, must be considered and acted upon
by the administrative officer.
Vajtauer v. Comm'r of
Immigration, supra; Tang Tun v. Edsell, supra. But we cannot
say, on the records before us, that the Secretary did not consider
them, as such, for what they were worth, regarding the official
medical certificates as conflicting evidence entitled to greater
weight. No ground exists, therefore, for setting aside his
determination in these cases. The only question is the weight of
the evidence, as to which the Secretary's conclusion is final.
Compare Zakonaite v. Wolf, supra.
In the case of Fusco, affidavits were submitted along with the
protest, and the two together tended to show with some certainty
that the alien had been subjected to three medical examinations
shortly before embarkation, once by the Royal Italian Immigration
Service in Naples, once by a physician there enjoying the
confidence of the American consul, whose certificate was available
to the Secretary, and once by petitioner's own ship physician, all
of whom found the immigrant in good health.
The letter imposing the fine in the Fusco case does not show
definitely whether the Secretary considered the evidence submitted
by petitioner. It recites in one place,
"The alien gave no history of the disease. Indeed, he was not
questioned with regard thereto, and the only evidence in the record
is the official certificate itself,"
and in another,
"It is believed that the evidence placed in the record by the
company is not sufficient to call into question
Page 287 U. S. 339
the accuracy of the opinion expressed in the official medical
certificate."
We need not inquire whether this ambiguity in the record of
itself requires the administrative determination to be set aside.
Cf. Tod v. Waldman, 266 U. S. 113,
266 U. S.
119-120;
Mabler v. Eby, 264 U. S.
32,
264 U. S. 43;
Kwock Jan Fat v. White, supra, 253 U. S. 464.
For the same result must follow if the record is considered,
whichever way the doubt is resolved. If the Secretary failed to
consider evidence before him, he exceeded his authority. If he
treated the protest and affidavits as evidence relevant to the
issue of the discoverability of the immigrant's disease at the time
of sailing, but nevertheless chose to rely upon the certified
opinion of the examining physicians at Ellis Island, we think that
more is involved than the weighing of the evidence, and that his
determination cannot stand. For the medical opinions did not reveal
the facts upon which they were based, and they were formulated by
physicians who, so far as appears, were not apprised of the fact
that three previous examinations of the nature described had been
made. The detailed information as to those examinations which
petitioner submitted to the Secretary in this case might reasonably
have affected the expert judgment of the physicians at Ellis
Island. In relying upon their opinion alone, without putting these
additional facts before them, we think the Secretary acted
arbitrarily and unfairly.
The Act of Congress confers on the Secretary great power, but it
is not wholly uncontrolled. It is a power which must be exercised
fairly, to the end that he may consider all evidence relevant to
the determination which he is required to make, that he may arrive
justly at his conclusion, and preserve such record of his action
that it may be known that he has performed the duty which the law
commands. Suppression of evidence of its concealment from a party
whose rights are being determined by the administrative tribunal
has been held to be so unfair
Page 287 U. S. 340
as to invalidate the administrative proceeding.
Kwock Jan
Fat v. White, supra; Lewis ex rel. Lai Thuey Lem v. Johnson,
16 F.2d 180. It is equally offensive to conceal from the experts,
whose judgment is accepted as controlling, facts which might
properly have influenced their opinion.
Petitioner makes contentions with respect to several of the
cases which require special consideration. They embrace the cases
of aliens with physical defects affecting their ability to earn a
living, aliens who came to the United States with a transit visa
for the purpose of passing through the United States to their
ultimate destination, Canada, and the case of an alien who came to
the United States to enroll as a member of the crew of a vessel to
be taken back to Italy. All entered or sought to enter the United
States, and all were afflicted with a disease or disability
specified in the statute. That their admissibility could not be
determined in advance of their reaching the United States, that
they were not seeking to remain permanently within the United
States, are immaterial in the face of the express language of the
statute, which imposes the penalty for bringing them here.
See
Elting v. North German Lloyd, ante, p.
287 U. S. 324.
Crimi, who was blind, a disability which might affect his
ability to earn a living, came to the United States as a student.
He had a consular visa under § 4(e) of the Act of 1924, c.190, 43
Stat. 155, 8 U.S.C. § 204(e), which exempts from the quota students
coming to the United States to attend an accredited school. To
exempt the alien from the quota under § 4(e), the school which he
comes to attend must have been approved by the Department of Labor,
and a list of such accredited schools is supplied to all American
consuls. The alien was excluded because he did not come for the
purpose of study at an accredited school. The petitioner insists
that it was entitled, on the basis of the consular visa, to assume
that the alien was admissible. But § 16 of the applicable
Immigration
Page 287 U. S. 341
Act of 1924, c.190, 43 Stat. 163, 8 U.S.C. § 216, imposes the
fine for bringing any quota immigrant, which Crimi was found to be,
having a nonquota visa. It provides that the fine shall not be
remitted or refunded unless it appears to the satisfaction of the
Secretary of Labor that the vessel or transportation company "could
not have ascertained by the exercise of reasonable diligence" that
the individual transported was a quota immigrant. The consular visa
did not make Crimi a nonquota immigrant entitled to enter.
Immigration Act of 1924, § 2(g), 8 U.S.C. § 202(g). To secure
remission of the fine, the statute placed upon petitioner the
burden of establishing to the satisfaction of the Secretary that it
could not have been ascertained by the exercise of reasonable
diligence that the alien was a quota immigrant.
Compare Elting
v. North German Lloyd, supra. We cannot say that the Secretary
did not have ground for holding that reasonable inquiry of the
alien or the Consul issuing the visa would have disclosed to
petitioner that the alien was not coming to the United States for
the purpose of studying in an accredited school.
The judgment will be reversed as to the tenth cause of action
and affirmed as to all the others.
Reversed in part.
[
Footnote 1]
The statute provides that no vessel shall be granted clearance
pending a determination of the question whether the fine should be
imposed, except upon deposit of the amount of the possible fine or
of a bond to secure its payment.
[
Footnote 2]
Ever since the promulgation by the Department of Commerce and
Labor, in January, 1905, of Department Circular No. 58, the
administrative regulations have provided for a hearing.
See Immigration Regulations of July 1, 1907, Rule 28,
amended December, 1910; Immigration Rules of November 15, 1911,
Rule 28, amended October, 1915; Immigration Rules of May 1, 1917,
Rule 28, amended August, 1922; Immigration Rules of February 1,
1924, Rule 22; Immigration Rules of July 1, 1925, Rule 22;
Immigration Rules of March 1, 1927, Rule 22; Immigration Rules of
January 1, 1930, Rule 23.
During this time, the general provisions of § 9 of the Act of
1903, 32 Stat. 1213, 1215, have been reenacted three times. Section
9, Act of 1907, 34 Stat. 898, 901; § 9, Act of 1917, 39 Stat. 874,
880; § 26, Act of 1924, 43 Stat. 153, 166.