1. Section 1 of the Act of October 16, 1918, as amended,
provides that aliens of described classes, including
"aliens who believe in, advise, advocate, or teach, or who are
members of or affiliated with any organization, association,
society, or group, that believes in, advises, advocates, or teaches
. . . the overthrow by force or violence of the Government of the
United States . . . ,"
shall be excluded from admission to the United States. Section 2
"any alien who at any time after entering the United States is
found to have been, at the time of entry, or to have become
thereafter, a member of any of the classes of aliens
in Section 1, shall, upon warrant of the Secretary of Labor, be
taken into custody and deported, in the manner provided by law.
that an alien who, after entry, becomes a member
of such an organization is not deportable on that ground if, at the
time of his arrest, his membership has ceased. P. 307 U. S.
2. The legislative history of the statute supports this
conclusion. P. 307 U. S.
3. This reading of the statute makes it unnecessary in this case
to pass upon the adequacy of the evidence before the Secretary
Page 307 U. S. 23
the purposes and aims of the Communist Party or the propriety of
the court's taking judicial notice thereof. P. 307 U. S.
4. The record in this case does not justify reversal of a
holding of the court below that the evidence before the Secretary
of Labor was insufficient to support his finding that the
respondent alien believes in and teaches the overthrow, by force
and violence, of the Government of the United States. P.
307 U. S.
5. When no issue of citizenship is raised, an administrative
order for deportation of an alien, made after fair hearing, based
on findings supported by evidence and without error of law, is
conclusive; if any of these elements was lacking, it is void. The
matter cannot be tried de novo
in habeas corpus. P.
307 U. S.
95 F.2d 976; 96 id.
1020, affirmed with
Certiorari, 305 U.S. 587, to review the reversal of a judgment
dismissing a writ of habeas corpus.
MR. JUSTICE ROBERTS delivered the opinion of the Court.
The respondent is an alien who entered the United States in 1912
and has since resided here. In 1933, he applied for naturalization
to a United States District Court in Arkansas. He made certain
admissions to a District Director of Naturalization, as a result of
Page 307 U. S. 24
naturalization was withheld and his case was referred to the
Department of Labor.
November 25, 1933, the Second Assistant Secretary of Labor
issued a warrant for the respondent's apprehension, in which it was
recited that he was in the United States in violation of law in
that (1) he believes in, advises, advocates, or teaches the
overthrow, by force or violence, of the Government of the United
States; (2) he is a member of, or affiliated with, an organization,
association, society, or group that believes in, advises, advocates
or teaches the overthrow, by force or violence, of the Government
of the United States; (3) he is a member of, or affiliated with, an
organization, association, society, or group that writes,
circulates, distributes, prints, publishes or displays, or causes
to be written, circulated, distributed, printed, published or
displayed, or that has in its possession for these purposes written
or printed matter advising, advocating or teaching the overthrow,
by force or violence, of the Government of the United States, and
(4) after his entry into the United States, he has been found to
have become a member of one of the classes of aliens enumerated in
Section 1 of the Act of October 16, 1918, as amended by the Act of
June 5, 1920, to-wit: an alien who is a member of, or affiliated
with, an organization, association, society or group that believes
in, advises, or teaches the overthrow, by force and violence, of
the Government of the United States.
The respondent was apprehended and was given hearings before an
Immigration Inspector at which he was represented by counsel and
testified in his own behalf. The Government offered in evidence
transcripts of his examination by the Naturalization Bureau, of an
interview with him by an Immigration Inspector, and his membership
book in the Communist Party of the U.S.A. issued November 15, 1932,
with stamps affixed showing payment of dues to the end of February,
1933. The rules
Page 307 U. S. 25
of the party, set forth in the book, provided that a failure to
pay dues for three months automatically results in the loss of
membership, and it is admitted there is no evidence respondent
continued to be a member after March 1, 1933.
The book contained printed matter stating the purposes and
objects of the party. The Government also offered a copy of a
magazine called "The Communist," dated April 1934, and read into
the record excerpts from articles appearing therein. The respondent
admitted that he joined the Communist Party in November, 1932,
asserted that his membership terminated prior to March 1, 1933, and
had never been renewed, and professed ignorance of the magazine
called "The Communist" and its contents. In some respects, his
testimony as to his beliefs and actions was contradictory of his
statements on prior examinations, and testimony was elicited from
him in an effort to show that his denial of present affiliation
with the Communist Party might not be made in good faith; but there
was no sufficient evidence to sustain that conclusion. After a
review of the record by the Board of Review of the Department of
Labor, a warrant of deportation was issued by the Assistant
Secretary which recites an affirmative finding as to each of the
counts in the warrant of arrest and orders the respondent's
deportation. [Footnote 1
The respondent petitioned a federal district court in Arkansas
for a writ of habeas corpus to deliver him from the custody of the
Immigration Inspector. The writ was denied. Thereafter, he filed
the petition in the instant case in the District Court for
Louisiana. In this petition
Page 307 U. S. 26
he alleged that he had not been accorded a fair hearing; that
the Department of Labor had not correctly construed the immigration
laws applicable to his case; that the findings were without support
in the evidence; that he had been denied due process of law, and
that he is not a citizen of Poland, to which the warrant directed
his remission. The District Court dismissed the writ. The
respondent appealed to the Circuit Court of Appeals, assigning
error to the District Court's action in denying each of his
contentions. That court found that the hearings had been fair, but
held that each of the findings recited in the warrant was without
support in the evidence. The court was of opinion the evidence
failed to show that the respondent is now a member of the Communist
Party, or that he or that party, in 1933, taught, advocated, or
incited the overthrow of the Government by force and violence, and
that the record was bare of evidence to countervail his denial that
he had ever taught or believed in the unlawful destruction or
overthrow of the Government by force. The court held that the Acts
of 1918 and 1920 were passed to meet a situation caused by crises
in Russia in 1918 and 1919; [Footnote 2
] that the major changes in policy and conduct
of the Soviet Socialist Republics which had taken place between
1918 and 1933 rebutted the implications arising from membership in
the Communist Party at the time the Acts were adopted; that mere
membership in that party in 1933 is not a statutory ground for
deportation. The order of the District Court was reversed, and the
cause was remanded for further proceedings not inconsistent with
the opinion. [Footnote 3
The Government moved for a rehearing, pressing specially the
contention that the overwhelming weight of
Page 307 U. S. 27
authority is to the effect that membership in the Communist
Party is sufficient to warrant deportation. The petition was
entertained, the judgment was amended to provide: "Reversed, with
directions to try the issues de novo
as suggested in
Ex parte Fierstein
41 F.2d 53 at 54," and a rehearing was
denied. [Footnote 4
Sibley dissented on the ground that, on the basis of the
respondent's membership book, which refers to the Third Communist
Internationale, the court could take judicial notice of the
objectives and programs of the Communist Party and the Third
The United States petitioned for certiorari, asserting that the
single question presented is
"whether the court below erred in failing to sustain an order of
deportation against respondent, an alien who in 1932 became a
member of the Communist Party of the United States."
In its specification of errors to be urged, the Government
enumerated (1) the holding that an alien who became a member of the
party in 1932 is not, by reason of that fact, subject to
deportation; (2) the holding that the evidence before the Secretary
of Labor concerning the principles of the party was insufficient to
sustain the order; (3) the remand for a trial de novo
the District Court, and (4) the failure to affirm the judgment of
the District Court. As reason for the granting of the writ, the
Government urged a conflict of decision on the question whether
membership by an alien in the Communist Party of America subjects
him to deportation. By reason of the allegation of conflict and the
action of the Circuit Court of Appeals in ordering a trial de
in the District Court, we granted the writ.
The Government does not attempt to support the warrant of
deportation on the second and third grounds therein specified --
namely, that the respondent "is a member
Page 307 U. S. 28
of or affiliated with" an organization described in the Act. The
only evidence of record is that his membership ceased months before
the issue of the warrant for his arrest. The contention is that
respondent is deportable because, after entry, he became a member
of a class of aliens described in Section 1 of the Act, to-wit, a
member of the Communist Party, an organization membership in which
is made a cause of deportation because the organization believes
in, advocates, and teaches the overthrow of the Government of the
United States by force and violence. This contention presents the
question whether the Act renders former membership in such an
organization, which has ceased, a ground of deportation. Respondent
insists that the statute makes only present membership in an
organization described in the Act such ground.
Section 1 of the Act of October 16, 1918, as amended in 1920,
] has to do with the
exclusion of alien immigrants, and specifies five classes, members
of which may not be admitted to the United States. One of these
classes -- subsection (c) -- includes
"aliens who believe in, advise, advocate, or teach, or who
members of or affiliated with any organization,
association, society, or group, that believes in, advises,
advocates, or teaches . . . the overthrow by force or violence of
the Government of the United States. . . ."
Section 2 of the Act of 1918, [Footnote 6
] which was not altered by the Act of 1920,
deals with deportation. It provides that
"any alien who, at any time
after entering the United
States, is found to have been, at the time of entry, or to have
a member of any one of the classes of
in § 1, shall, upon warrant
Page 307 U. S. 29
of the Secretary of Labor, be taken into custody and deported,
in the manner provided by law.
Relying on the phrases italicized in the quotation, the
Government insists that the section embraces an alien who, after
entry, has become a member of an organization membership in which,
at the time of his entry, would have warranted his exclusion
although he has ceased to be a member at the time of his arrest. We
hold that the Act does not provide for the deportation of such an
alien. This conclusion rests not alone upon the language, but as
well upon the context and the history of the legislation.
The phrase "at any time" qualifies the verb "found." Thus, if at
any time the Secretary finds that, at entry, the alien was a
member, or has thereafter become and is a member, he may be
deported. The natural meaning is that, as the alien was excludable
for present membership, he is deportable for present membership
subsequently acquired. The Government's construction, which
collocates the phrase "at any time" with the phrase "or to have
become thereafter," is unnatural and strained. If Congress meant
that past membership, of no matter how short duration or how far in
the past, was to be a cause of present deportation, the purpose
could have been clearly stated. The section does not bear this
By the first section of the Act, as amended in 1920, aliens are
to be excluded who are
members of a described
organization. The section does not require the exclusion of those
who have been in the past, but are no longer, members. When the
Congress came to provide for deportation, instead of again
enumerating and defining the various classes of aliens who might be
deported, it provided that if at any time it should be found that
an alien had been admitted and at the time of admission, was a
member of any of the proscribed classes, or had thereafter become
such, he should be deported. It is not to be
Page 307 U. S. 30
supposed that past membership, which does not bar admission, was
intended to be a cause of deportation. And the fact that
naturalization is denied to an alien only on the ground that he
a member of or affiliated with any organization
entertaining" disbelief in or opposition to organized government,
and not for past membership or affiliation, [Footnote 7
] lends added force to this view.
In the absence of a clear and definite expression, we are not at
liberty to conclude that Congress intended that any alien, no
matter how long a resident of this country or however well disposed
toward our Government, must be deported if, at any time in the
past, no matter when or under what circumstances or for what time
he was a member of the described organization. In the absence of
such expression, we conclude that it is the present
or present affiliation
-- a fact to be
determined on evidence -- which bars admission, bars
naturalization, and requires deportation. Since the statute deals
not only with membership in an organization of the described class,
but with affiliation therewith and, as well, with belief and
teaching, it enables the Secretary of Labor, as trier of the facts,
fully to investigate and to find the true relation, belief and
activity of the alien under investigation.
The legislative history of the statute supports this conclusion.
By Act of March 3, 1903, [Footnote
] Congress directed the exclusion of "anarchists, or persons
who believe in or advocate the overthrow by force or violence of
the Government of the United States, [Footnote 9
] . . ." , and also of any
"person who disbelieves in or who is opposed to all organized
government, or who is a member of or affiliated with any
organization entertaining and teaching such disbelief
Page 307 U. S. 31
in or opposition to all organized government. . . . [Footnote 10
The only section authorizing deportation of such persons is
directed to an alien found to have entered in violation of the Act,
if proceeded against within three years after entry. [Footnote 11
] These provisions were
reenacted without alteration in the Act of February 20, 1907.
The first legislation authorizing deportation of persons who had
entered lawfully is H.R. 6060, enacted by the 63rd Congress but
vetoed by President Wilson January 28, 1915. [Footnote 13
] This bill required deportation of
"any alien who, within five years after entry,
found advocating or teaching" the defined doctrines. It also
altered existing law in respect of deportation of those who had
entered illegally to provide that, "at any time within five
years after entry
, any alien who, at the time of
was a member of one or more of the classes excluded by
law" should be deported.
A bill, in substance the same, was introduced in the 64th
Congress and enacted February 5, 1917, over Presidential veto.
] While this
measure was in course of passage, the Chairman of the House
Committee in charge of it moved, on behalf of the Committee, to
amend § 19 by inserting the phrase "at any time" so that the
section should provide for deportation of "any alien who, at
any time after entry,
shall be found advocating or teaching"
forcible overthrow of the government. The Act, as adopted, was in
this form. The purpose of the amendment was to make plain that no
time limit was fixed for deportation of aliens found advocating the
doctrine. [Footnote 15
Page 307 U. S. 32
The Act of 1917 was amended by that of October 16, 1918, here
under consideration, which, by its title, purported to apply to
"aliens who are members of the anarchistic and similar classes. . .
Section 1 enlarged one of the classes of excludable aliens by
the addition of the words
"aliens who are
members of or affiliated with any
organization that entertains a belief in, teaches, or advocates the
overthrow by force or violence of the Government of the United
States. . . ."
Section 2 modified the earlier Act in respect of deportation,
both in form and substance. The provision for deportation of those
who, at the time of entry, were members of one of the proscribed
classes was retained, but the five-year period of limitation within
which deportation might be had was eliminated. [Footnote 16
] The provision for deportation
of aliens of anarchistic and similar classes was expanded by
including as causes of deportation
all the causes of
enumerated in § 1, which were themselves much
broader than those included the 1917 Act. Thus, although there was
no provision in the Act of 1917 for deportation of aliens who did
not personally advocate the proscribed doctrine, but were members
of an organization which did, the Act of 1918 embodied such a
provision. This alteration, and the elimination of the five-year
time limitation, were the important changes, relevant to the
question under examination which the Act of 1918 effected in the
earlier legislation. These modifications lend no support to the
contention that § 2 of the Act of 1918 was intended to make
membership a ground of deportation.
Nor is there anything in the formal alteration worked by the Act
of 1918 which leads to a different conclusion. Section 19 of the
Act of 1917 dealt in distinct clauses with the various classes of
aliens who might be deported, specifying
Page 307 U. S. 33
in one clause an alien "who, at the time of entry, was a member
of the classes excluded by law" and, in another clause, an alien
"who, at any time after entry, shall be found advocating or
teaching" the obnoxious doctrines. Section 2 of the Act of 1918
combined the clauses dealing with the two groups in a single
sentence, with a somewhat different locution. We think this
consolidation was not intended to alter the substantive law as it
The only decisions which support the Government's position are
those in the Second Circuit. [Footnote 17
] We cannot approve their reasoning or result.
It is claimed that the administrative construction has always
accorded with the Government's contention in the present case. We
cannot find that there has been such a uniform construction as
requires an interpretation of the Act in accordance with that view.
The administrative construction seems to have been in favor of the
respondent's view until after the decision in the Yokinen
case, [Footnote 18
] and the
construction seems to have been changed in deference to the
decision in that case. [Footnote
Our reading of the statute makes it unnecessary to pass upon the
conflicting contentions of the parties concerning the adequacy of
the evidence before the Secretary concerning the purposes and aims
of the Communist Party or the propriety of the court's taking
judicial notice thereof.
Page 307 U. S. 34
The Solicitor General suggests that the evidence is sufficient
to sustain the warrant of deportation on the first ground therein
stated -- namely, that the respondent believes in and teaches the
overthrow, by force and violence, of the Government of the United
States. It is said that the error of the Circuit Court of Appeals
in reversing the District Court is, in this aspect, so plain that
we should notice it, although the petition does not present the
question. We have the power to do this in the case of plain error,
] but we
exercise it only in clear cases and in exceptional
We do not know on what grounds the District Judge's action
rested, since he wrote no opinion. The Circuit Court of Appeals
held the evidence insufficient to support the Secretary's finding.
We think that the record does not justify a reversal of the holding
of the court below upon this point.
The Circuit Court of Appeals remanded the cause to the District
Court for a trial de novo.
In this we think there was
error. The proceeding for deportation is administrative. [Footnote 21
] If the hearing was
fair, if there was evidence to support the finding of the
Secretary, and if no error of law was committed, the ruling of the
Department must stand, and cannot be corrected in judicial
proceedings. [Footnote 22
If, on the other hand, one of the elements mentioned is lacking,
the proceeding is void, and must be set aside. [Footnote 23
] A district court cannot, upon
habeas corpus, proceed de novo,
for the function of
investigation and finding has not been conferred upon it, but upon
the Secretary of Labor. Only in the event an alleged alien asserts
his United States
Page 307 U. S. 35
citizenship in the hearing before the Department, and supports
his claim by substantial evidence, is he entitled to a trial de
of that issue in the district court. [Footnote 24
] The status of the relator must
be judicially determined, because jurisdiction in the executive to
order deportation exists only if the person arrested is an alien,
and no statutory proceeding is provided in which he can raise the
question whether the executive action is in excess of the
jurisdiction conferred upon the Secretary. [Footnote 25
It follows from what has been said that, as the Secretary erred
in the construction of the statute, the writ must be granted, and
the respondent discharged from custody.
The judgment of the Circuit Court of Appeals is accordingly
modified, and the cause is remanded to the District Court with
instructions to proceed in conformity with this opinion.
Affirmed with modification.
The delay in this case is due to the fact that respondent was
born an Austrian subject, but was refused reentry into that country
on the ground that the place of his birth is now in Poland.
Protracted negotiations on the part of the Department were required
to obtain the consent of the government of Poland to his return to
That this view is erroneous is shown by the history of the
legislation referred to infra,
p. 307 U. S. 30
House Report 504, 66th Cong., 2nd Sess., p. 7;
Senate Report 648, 66th Cong., 2nd Sess., p. 4.
95 F.2d 976.
96 F.2d 1020.
Act of Oct. 16, 1918, c. 186, 40 Stat. 1012, as amended by the
Act of June 5, 1920, c. 251, 41 Stat. 1008, U.S.C. Tit. 8, § 137(a)
40 Stat. 1012, U.S.C. Tit. 8, § 137(g).
Act of June 29, 1906, c. 3592, § 7, 34 Stat. 596, 598.
32 Stat. 1213.
§ 2, 32 Stat. 1214.
§ 38, 32 Stat. 1221.
§ 21, 32 Stat. 1218.
34 Stat. 898, §§ 21 and 38, pp. 905, 908.
House Document No. 1527, 63rd Cong., 3rd Sess.
39 Stat. 874.
53 Cong.Rec. Part. 5, p. 5165, 64th Cong., 1st
Sess.; Sen.Rep. 352, p. 14, 64th Cong., 1st Sess. to accompany H.R.
House Rep. 645, 65th Cong., 2nd Sess.
United States ex rel. Yokinen v. Commissioner of
57 F.2d 707; United States ex rel. Mannisto
77 F.2d 1021.
House Rep. 504, p. 9, 66th Cong., 2nd Sess. Hearings Communist
and Anarchistic Deportation Cases, H.R. 66th Cong., 2nd Sess.
Subcommittee of Committee on Immigration and Naturalization, April
21, 24, 1920, p. 17.
letter of Secretary of Labor embodied in Senate
Rep. 769, 75th Cong., 1st Sess.
Mabler v. Eby, 264 U. S. 32
264 U. S.
Pearson v. Williams, 202 U. S. 281
Zakonaite v. Wolf, 226 U. S. 272
Zakonaite v. Wolf, supra; United States ex rel. Tisi v.
Tod, 264 U. S. 131
264 U. S.
United States ex rel. Vajtauer v. Commissioner,
273 U. S. 103
273 U. S. 106
Gegious v. Uhl, 239 U. S. 3
United States v. Sing Tuck, 194 U.
, 194 U. S. 167
United States ex rel. Bilokumsky v. Tod, 263 U.
, 263 U. S.
Ng Fung Ho v. White, 259 U. S. 276
compare Tod v. Waldman, 266 U. S. 113
266 U. S.
MR. JUSTICE McREYNOLDS, dissenting.
MR. JUSTICE BUTLER and I cannot acquiesce in the disposition of
this cause or in the supporting opinion just announced. It seems
worthwhile briefly to indicate our views.
More than five years have passed since the alien respondent was
arrested and ordered to show why he should not be deported. The
record of the following proceedings before the Labor Department and
in the courts, printed on eighty-four pages, is before us. It is
not very difficult to understand. Without question, we have power
finally to dispose of the cause upon the merits notwithstanding
Page 307 U. S. 36
any omissions or defects found in the petition for certiorari.
In the circumstances, we think that course should be taken. The
District Court, upon another view of the record, can ascertain
nothing not open to us.
If this alien is guiltless of the charge against him, he should
be liberated without more ado; if guilty, the public should be
relieved of his presence now. That he is an undesirable is made
The construction of the statute adopted by the Court seems both
unwarranted and unfortunate. If, by the simple process of resigning
or getting expelled from a proscribed organization, an alien may
thereby instantly purge himself after months or years of
mischievous activities, hoped-for protection against such conduct
will disappear. Escape from the consequences of deliberate
violations of our hospitality should not become quite so facile.
Seven years ago, the Circuit Court of Appeals, Second Circuit,
construed the statute under consideration in United States ex
rel. Yokinen v. Commissioner of Immigration,
57 F.2d 707, 708.
There, the alien had been expelled from the Communist Party before
his arrest, and, for that reason, he unsuccessfully claimed
exemption. The following excerpts from the court's opinion, with
force and directness, express our view concerning the true meaning
of the enactment --
"It is true that he was not a member of the Communist Party when
arrested. He had recently been expelled because of his attitude
toward negroes, but that did not remove him from the reach of the
statute. We have nothing to do with shaping the policy of the
Page 307 U. S. 37
toward aliens who come here and join a proscribed society.
Congress has provided that"
"any alien who at any time after entering the United States, is
found to have been at the time of entry, or to have become
thereafter, a member of any one of the classes of aliens enumerated
in this section"
"shall be deported. 8 U.S.C. § 137(g). This alien concededly did
become after entry a member of 'one of the classes . . .
enumerated,' and, from that time, became deportable. We are urged
to ameliorate the supposed harshness of the statute by reading into
it words that Congress saw fit to leave out, and interpret it to
apply not to aliens who became members, but only to those who
become and continue to the time of their arrest to be members, of
one of the enumerated classes. If the words used in the statute
were equivocal or the intention of Congress for any reason
uncertain, there might be room for such a construction as that for
which the appellant now contends. Perhaps the sufficient answer is
that, had Congress intended membership at the time of arrest to be
the criterion, it would have said so. It has the power to determine
what acts of an alien shall terminate his right to remain here.
Skeffington v. Katzeff et al.,
277 F. 129. What it did do
was to make the act of becoming a member a deportable offense
without regard to continuance of membership, and it did that in
language so plain that any attempt to read in any other meaning is
no less than an attempt to circumvent the law itself."
"Since the appellant admittedly had, after entry, become a
member of a proscribed organization, the undisputed evidence
required the order from which this appeal was taken. All proof upon
which he was held to be affiliated with the Communist Party was
unnecessary, and, while we do not mean to intimate that any
evidence on that phase of the case was unfairly received and
considered, in any event, it did him no harm. "
Page 307 U. S. 38
A petition for certiorari asking this Court to review the
judgment of the Circuit Court of Appeals was refused October 10,
1932 (287 U.S. 607). It stressed the point that --
"A fair and proper construction of the statute requires that it
be confined in its operation to aliens who are members of or
affiliated with a proscribed organization at the issuance of the
warrant of arrest."
The unusual importance of the question was not difficult to
In the presence of clear and positive expression of
Congressional intent to the contrary, we do not feel at liberty to
conclude that an alien who after entry has shown his contempt for
our laws by deliberately associating himself with a proscribed
organization must be allowed to remain if he resigned or was
debarred a day, a month or a year before his arrest. An experienced
court years ago declared that would be "no less than an attempt to
circumvent the law itself."
* Strecker, born in Poland in 1888, was admitted to the United
States in 1912.
He joined the Communist Party November, 1932, but paid no dues
subsequent to February, 1933. He claims that, under the Party
rules, failure to pay for four weeks causes membership to cease.
Warrant for his arrest issued in November, 1933.