1. As the existing treaty with Japan expressly excepts from its
operation any regulation relating to police and public security,
and as the various acts of Congress forbidding aliens of whatever
country to enter the United States who are paupers or persons
likely to become a public charge are regulations for police and
public security, aliens from Japan of the prohibited class have no
right to enter or reside in the United States.
Quaere whether, even in the absence of such a provision
in the treaty, the "full liberty to enter, reside," etc., clause
refers to that class in either country who from habits or
conditions are the object of police regulations designed to protect
the general public against contact with dangerous or improper
persons.
2. It has been firmly established by numerous decisions of this
Court that it is within the constitutional power of Congress to
exclude aliens of a particular race from the United States,
prescribe the terms and conditions upon which certain classes may
come to this country, establish regulations for sending out of the
country such aliens as come here in violation of law, and commit
the enforcement of such provisions, conditions and regulations to
executive officers, without judicial intervention.
3. An administrative officer, when executing the provisions of a
statute involving the liberty of persons, may not disregard the
fundamental principles of due process of law as understood at the
time of the adoption of the Constitution. Nor is it competent for
any executive officer at any time within the year limited by the
statute, to arbitrarily cause an alien who has entered the country,
and has become subject in all respects to its jurisdiction, and a
part of its population, although illegally here, to be arrested and
deported without giving such alien an opportunity, appropriate to
the case, to be heard upon the questions involving his right to be
and remain in the United States.
Where, however, the alien had notice, although not a formal one,
the courts cannot interfere with the executive officers conducting
it. The objections of the alien to the form of the investigation
could have been presented to the officer having primary control of
the case, or by an appeal to the Secretary of the Treasury, and the
action of the executive officers is not subject to judicial
review.
Page 189 U. S. 87
This case presents some questions arising under the act of
Congress relating to the exclusion of certain classes of alien
immigrants.
On the 11th day of July, 1901, appellant, a subject of Japan,
landed at the port of Seattle, Washington, and on or about July 15,
1901, the appellee, an immigrant inspector of the United States,
having instituted an investigation into the circumstances of her
entering the United States, decided that she came here in violation
of law, in that she was a pauper and a person likely to become a
public charge, aliens of that class being excluded altogether from
this country by the Act of March 3, 1891, 26 Stat. 1085, c.
551.
The evidence obtained by the inspector was transmitted to the
Secretary of the Treasury, who, under date of July 23, 1901, issued
a warrant addressed to the immigrant inspector at Seattle, reciting
that the appellant had come into the United States contrary to the
provisions of the above act of 1891, and ordering that she be taken
into custody and returned to Japan at the expense of the vessel
importing her.
The inspector being about to execute this warrant, an
application was presented in behalf of the appellant to the
District Court of the United States for the District of Washington,
Northern Division, for a writ of habeas corpus. The application
alleged that the imprisonment of the petitioner was unlawful, and
that she did not come here in violation of the act of 1891 or of
any other law of the United States relating to the exclusion of
aliens.
The writ having been issued, a return was made by the inspector
stating that he had found upon due investigation and the admissions
of the appellant that she was a pauper and a person likely to
become a public charge, and had "surreptitiously, clandestinely,
unlawfully, and without any authority come into the United States;"
that, "in pursuance of said testimony, admissions of the
petitioner, Kaoru Yamataya, evidence, facts, and circumstances," he
had decided that she had no right to be within the Territory of the
United States, and was a proper person for deportation, all which
he reported to the proper officers of the government, who confirmed
his decision,
Page 189 U. S. 88
and thereupon the Secretary of the Treasury issued his warrant
requiring the deportation of the appellant. That warrant was
produced and made part of the return.
The return of the inspector was traversed, the traverse
admitting that the inspector had investigated the case of the
petitioner, and had made a finding that she had illegally come into
this country, but alleging that the investigation was a "pretended"
and an inadequate one; that she did not understand the English
language, and did not know at the time that such investigation was
with a view to her deportation from the country, and that the
investigation was carried on without her having the assistance of
counsel or friends, or an opportunity to show that she was not a
pauper or likely to become a public charge. The traverse alleged
that the petitioner was not in the United States in violation of
law.
A demurrer to the traverse was sustained, the writ of habeas
corpus was dismissed, and the appellant was remanded to the custody
of the inspector. From that order, the present appeal was
prosecuted.
Page 189 U. S. 94
MR. JUSTICE HARLAN delivered the opinion of the Court.
It will conduce to a clear understanding of the questions to be
determined if we recall certain legislation of Congress relating to
the exclusion of aliens from the United States, and to the Treaty
of 1894 between Japan and the United States.
By the deficiency appropriation Act of October 19, 1888, c.
1210, it was provided that the Act of February 23, 1887, c. 220,
amendatory of the act prohibiting the importation and immigration
of foreigners and aliens under contract or agreement to perform
labor in the United States, its territories, and the District of
Columbia, 24 Stat. 414, be so amended
"as to authorize the Secretary of the Treasury, in case he shall
be satisfied that an immigrant has been allowed to land contrary to
the prohibition of that law, to cause such immigrant, within the
period of one year after landing or entry, to be taken into custody
and returned to the country from whence he came at the expense of
the owner of the importing vessel, or, if he entered from an
adjoining country at the expense of the person previously
contracting for the services."
25 Stat. 566.
By the first section of the Act of Congress of March 3, 1891, c.
551, amendatory of the various acts relating to immigration and
importation of aliens under contract or agreement to perform labor,
it was provided:
"That the following classes of aliens shall be excluded from
admission into the United States, in accordance with the existing
acts regulating immigration, other than those concerning Chinese
laborers: all idiots, insane persons, paupers, or persons likely to
become a public charge, persons suffering from a loathsome or a
dangerous contagious disease, persons who have been convicted of a
felony or other infamous crime or misdemeanor involving moral
turpitude, polygamists, and also any person whose ticket or passage
is paid for with the money of another or who is assisted by others
to come, unless it is affirmatively and satisfactorily shown,
on
Page 189 U. S. 95
special inquiry, that such person does not belong to one of the
foregoing excluded classes, or to the class of contract laborers
excluded by the Act of February twenty-sixth, eighteen hundred and
eighty-five (23 Stat. 332). . . ."
26 Stat. 1084.
By the eighth section of that act, it was provided:
"That upon the arrival by water at any place within the United
States of any alien immigrants, it shall be the duty of the
commanding officer and the agents of the steam or sailing vessel by
which they came to report the name, nationality, last residence,
and destination of every such alien, before any of them are landed,
to the proper inspection officers, who shall thereupon go or send
competent assistants on board such vessel and there inspect all
such aliens, or the inspection officers may order a temporary
removal of such aliens for examination at a designated time and
place, and then and there detain them until a thorough inspection
is made. . . . The inspection officers and their assistants shall
have power to administer oaths, and to take and consider testimony
touching the right of any such aliens to enter the United States,
all of which shall be entered of record. During such inspection,
after temporary removal, the superintendent shall cause such aliens
to be properly housed, fed, and cared for, and also, in his
discretion, such as are delayed in proceeding to their destination
after inspection. All decisions made by the inspection officers or
their assistants touching the right of any alien to land, when
adverse to such right, shall be final unless appeal be taken to the
superintendent of immigration, whose action shall be subject to
review by the Secretary of the Treasury. It shall be the duty of
the aforesaid officers and agents of such vessel to adopt due
precautions to prevent the landing of any alien immigrant at any
place or time other than that designated by the inspection
officers, and any such officer or agent or person in charge of such
vessel who shall, either knowingly or negligently, land or permit
to land any alien immigrant at any place or time other than that
designated by the inspection officers, shall be deemed guilty of a
misdemeanor and punished by a fine not exceeding one thousand
dollars, or by imprisonment for a term not exceeding one year, or
by both such fine and imprisonment."
26 Stat. 1085.
Page 189 U. S. 96
By the tenth section, it is provided that "all aliens who may
unlawfully come to the United States shall, if practicable, be
immediately sent back on the vessel by which they were brought
in."
The eleventh section of the same act provided:
"That any alien who shall come into the United States in
violation of law may be returned as by law provided at any time
within one year thereafter at the expense of the person or persons,
vessel, transportation company, or corporation bringing such alien
into the United States, and, if that cannot be done, then at the
expense of the United States, and any alien who becomes a public
charge within one year after his arrival in the United States, from
as causes existing prior to his landing therein, shall be deemed to
have come in violation of law, and shall be returned as
aforesaid."
26 Stat. 1084.
In the Sundry Civil Appropriation Act of August 18, 1894, c.
301, was the following provision:
"In every case where an alien is excluded from admission into
the United States under any law or treaty now existing or hereafter
made, the decision of the appropriate immigration or customs
officers, if adverse to the admission of such alien, shall be
final, unless reversed on appeal to the Secretary of the
Treasury."
28 Stat. 372, 390.
Then came the treaty between the United States and the Empire of
Japan, concluded November 23, 1894, and proclaimed March 21, 1895,
and which, by its terms, was to go into operation July 17, 1899. By
the first article of that treaty it was provided:
"The citizens or subjects of each of the two high contracting
parties shall have full liberty to enter, travel, or reside in any
part of the territories of the other contracting party, and shall
enjoy full and perfect protection for their persons and
property."
29 Stat. 848. But, by the second article, it was declared.
"It is, however, understood that the stipulations contained in
this and the preceding article do not in any way affect the laws,
ordinances, and regulations with regard to trade, the immigration
of laborers, police and public security, which are in force or
which may hereafter be enacted in either of the two countries."
29 Stat. 849.
1. From the above acts of Congress, it appears that, among
Page 189 U. S. 97
the aliens forbidden to enter the United States are those, of
whatever country, who are "paupers or persons likely to become a
public charge." We are of opinion that aliens of that class have
not been given by the treaty with Japan full liberty to enter or
reside in the United States; for that instrument expressly excepts
from its operation any ordinance or regulation relating to "police
and public security." A statute excluding paupers or persons likely
to become a public charge is manifestly one of police and public
security. Aside from that specific exception, we should not be
inclined to hold that the provision in the treaty with Japan, that
the citizens or subjects of each of the two counties should have
"full liberty to enter, travel, or reside in any part of the
territories of the other contracting party," has any reference to
that class, in either country, who, from their habits or condition,
are ordinarily or properly the object of police regulations
designed to protect the general public against contact with
dangerous or improper persons.
2. The constitutionality of the legislation in question, in its
general aspects, is no longer open to discussion in this Court.
That Congress may exclude aliens of a particular race from the
United States, prescribe the terms and conditions upon which
certain classes of aliens may come to this country, establish
regulations for sending out of the country such aliens as come here
in violation of law, and commit the enforcement of such provisions,
conditions, and regulations exclusively to executive officers,
without judicial intervention -- are principles firmly established
by the decisions of this Court.
Nishimura Ekiu v. United
States, 142 U. S. 651;
Fong Yue Ting v. United States, 149 U.
S. 698;
Lem Moon Sing v. United States,
158 U. S. 538;
Wong Wing v. United States, 163 U.
S. 228;
Fok Yung Yo v. United States,
185 U. S. 296,
185 U. S.
305.
In
Nishimura's case, the Court said:
"The supervision of the admission of aliens into the United
States may be entrusted by Congress either to the Department of
State, having the general management of foreign relations, or to
the Department of the Treasury, charged with the enforcement of the
laws regulating foreign commerce, and Congress has often passed
Page 189 U. S. 98
acts forbidding the immigration of particular classes of
foreigners, and has committed the execution of these acts to the
Secretary of the Treasury, to collectors of customs, and to
inspectors acting under their authority."
After observing that Congress, if it saw fit, could authorize
the courts to investigate and ascertain the facts on which depended
the right of the alien to land, this Court proceeded:
"But, on the other hand, the final determination of those facts
may be entrusted by Congress to executive officers, and in such a
case, as in all others in which a statute gives a discretionary
power to an officer, to be exercised by him upon his own opinion of
certain facts, he is made the sole and exclusive judge of the
existence of those facts, and no other tribunal, unless expressly
authorized by law to do so, is at liberty to reexamine or
controvert the sufficiency of the evidence on which he acted.
Martin v.
Mott, 12 Wheat. 19,
25 U. S.
31;
Philadelphia & Trenton Railroad v.
Stimpson, 14 Pet. 448,
39 U. S.
458;
Benson v. McMahon, 127 U. S.
457;
In re Oteiza, 136 U. S.
330. It is not within the province of the judiciary to
order that foreigners who have never been naturalized, nor acquired
any domicil or residence within the United States, nor even been
admitted into the country pursuant to law, shall be permitted to
enter, in opposition to the constitutional and lawful measures of
the legislative and executive branches of the national government.
As to such persons, the decisions of executive or administrative
officers, acting within powers expressly conferred by Congress, are
due process of law.
Murray v. Hoboken Co., 18
How. 272;
Hilton v. Merritt, 110 U. S.
97."
In
Lem Moon Sing's case, it was said:
"The power of Congress to exclude aliens altogether from the
United States, or to prescribe the terms and conditions upon which
they may come to this country, and to have its declared policy in
that regard enforced exclusively through executive officers,
without judicial intervention, is settled by our previous
adjudications."
And in
Fok Yung Yo's case, the latest one in this
Court, it was said:
"Congressional action has placed the final determination of the
right of admission in executive officers, without judicial
Page 189 U. S. 99
intervention, and this has been for many years the recognized
and declared policy of the country."
What was the extent of the authority of the executive officers
of the government over the petitioner after she landed? As has been
seen, the Secretary of the Treasury, under the above Act of October
19, 1888, c. 1210, was authorized, within one year after an alien
of the excluded class entered the country, to cause him to be taken
into custody and returned to the country whence he came.
Substantially the same power was conferred by the Act of March 3,
1891, c. 551, by the eleventh section of which it is provided that
the alien immigrant may be sent out of the country, "as provided by
law," at any time within the year after his illegally coming into
the United States. Taking all its enactments together, it is clear
that Congress did not intend that the mere admission of an alien,
or his mere entering the country, should place him at all times
thereafter entirely beyond the control or authority of the
executive officers of the government. On the contrary, if the
Secretary of the Treasury became satisfied that the immigrant had
been allowed to land contrary to the prohibition of that law, then
he could at any time within a year after the landing cause the
immigrant to be taken into custody and deported. The immigrant must
be taken to have entered subject to the condition that he might be
sent out of the country by order of the proper executive officer
if, within a year, he was found to have been wrongfully admitted
into, or had illegally entered, the United States. These were
substantially the views expressed by the Circuit Court of Appeals
for the Ninth Circuit in
United States v. Yamasaka, 100 F.
404.
It is contended, however, that in respect of an alien who has
already landed, it is consistent with the acts of Congress that he
may be deported without previous notice of any purpose to deport
him, and without any opportunity on his part to show by competent
evidence before the executive officers charged with the execution
of the acts of Congress, that he is not here in violation of law;
that the deportation of an alien without provision for such a
notice and for an opportunity to be heard
Page 189 U. S. 100
was inconsistent with the due process of law required by the
Fifth Amendment of the Constitution.
Leaving on one side the question whether an alien can rightfully
invoke the due process clause of the Constitution who has entered
the country clandestinely, and who has been here for too brief a
period to have become, in any real sense, a part of our population,
before his right to remain is disputed, we have to say that the
rigid construction of the acts of Congress suggested by the
appellant are not justified. Those acts do not necessarily exclude
opportunity to the immigrant to be heard, when such opportunity is
of right. It was held in
Murray's Lessee v. Hoboken
Land & Improvement Co., 18 How. 272,
59 U. S.
280-281,
59 U. S. 283,
that,
"though 'due process of law' generally implies and includes
actor, reus, judgex, regular allegations, opportunity to
answer and a trial according to some settled course of judicial
proceedings, . . . yet this is not universally true,"
and
"that though generally, through judicial action, there are more
summary through judicial action, there are more summary
extrajudicial remedies for both."
Hence, it was decided in that case to be consistent with due
process of law for Congress to provide summary means to compel
revenue officers -- and, in case of default, their sureties -- to
pay such balances of the public money as might be in their hands.
Now, it has been settled that the power to exclude or expel aliens
belonged to the political department of the government, and that
the order of an executive officer invested with the power to
determine finally the facts upon which an alien's right to enter
this country, or remain in it, depended, was
"due process of law, and no other tribunal, unless expressly
authorized to do so, was at liberty to reexamine the evidence on
which he acted, or to controvert its sufficiency."
Fong Yue Ting v. United States, 149 U.
S. 698,
149 U. S. 713;
Nishimura Ekiu v. United States, 142 U.
S. 651,
142 U. S. 659;
Lem Moon Sing v. United States, 158 U.
S. 538,
158 U. S. 547.
But this Court has never held, nor must we now be understood as
holding, that administrative officers, when executing the
provisions of a statute involving the liberty of persons, may
disregard the fundamental principles that inhere in "due process of
law" as understood at the time of the adoption of the
Constitution.
Page 189 U. S. 101
One of these principles is that no person shall be deprived of
his liberty without opportunity at some time to be heard before
such officers in respect of the matters upon which that liberty
depends -- not necessarily an opportunity upon a regular, set
occasion, and according to the forms of judicial procedure, but one
that will secure the prompt, vigorous action contemplated by
Congress, and at the same time be appropriate to the nature of the
case upon which such officers are required to act. Therefore it is
not competent for the Secretary of the Treasury or any executive
officer, at any time within the year limited by the statute,
arbitrarily to cause an alien who has entered the country, and has
become subject in all respects to its jurisdiction, and a part of
its population, although alleged to be illegally here, to be taken
into custody and deported without giving him all opportunity to be
heard upon the questions involving his right to be and remain in
the United States. No such arbitrary power can exist where the
principles involved in due process of law are recognized.
This is the reasonable construction of the acts of Congress here
in question, and they need not be otherwise interpreted. In the
case of all acts of Congress, such interpretation ought to be
adopted as, without doing violence to the import of the words used,
will bring them into harmony with the Constitution. An act of
Congress must be taken to be constitutional unless the contrary
plainly and palpably appears. The words here used do not require an
interpretation that would invest executive or administrative
officers with the absolute, arbitrary power implied in the
contention of the appellant. Besides, the record now before us
shows that the appellant had notice, although not a formal one, of
the investigation instituted for the purpose of ascertaining
whether she was illegally in this country. The traverse to the
return made by the immigration inspector shows upon its face that
she was before that officer pending the investigation of her right
to be in the United States, and made answers to questions
propounded to her. It is true that she pleads a want of knowledge
of our language, that she did not understand the nature and import
of the questions propounded to her, that the investigation made was
a
Page 189 U. S. 102
"pretended" one, and that she did not, at the time, know that
the investigation had reference to her being deported from the
country. These considerations cannot justify the intervention of
the courts. They could have been presented to the officer having
primary control of such a case, as well as upon an appeal to the
Secretary of the Treasury, who had power to order another
investigation if that course was demanded by law or by the ends of
justice. It is not to be assumed that either would have refused a
second or fuller investigation if a proper application and showing
for one had been made by or for the appellant. Whether further
investigation should have been ordered was for the officers charged
with the execution of the statutes to determine. Their action in
that regard is not subject to judicial review. Suffice it to say it
does not appear that appellant was denied an opportunity to be
heard. And as no appeal was taken to the Secretary from the
decision of the immigration inspector, that decision was final and
conclusive. If the appellant's want of knowledge of the English
language put her at some disadvantage in the investigation
conducted by that officer, that was her misfortune, and constitutes
no reason, under the acts of Congress or under any rule of law, for
the intervention of the court by habeas corpus. We perceive no
ground for such intervention -- none for the contention that due
process of law was denied to appellant.
The judgment is
Affirmed.
MR. JUSTICE BREWER and MR. JUSTICE PECKHAM dissented.