The Secretary of Commerce and Labor has a right under § 21 of
the Act of March 3, 1903, 32 Stat 1218, to order the deportation of
an alien as having come to this country under contract to perform
labor, after a second hearing before a board of special inquiry,
although there had previously been a special inquiry, pursuant to §
25 of the act at the time of his landing before the same persons,
and upon the same questions, and he had been allowed to land.
The board of inquiry under § 25 of the act of 1903 is not a
court, but an instrument of the executive power, and its decisions
do not constitute
res judicata in a technical sense.
The facts are stated in the opinion.
Page 202 U. S. 282
MR. JUSTICE HOLMES delivered the opinion of the Court.
This case comes here by certiorari. 198 U.S. 585. It is a writ
of habeas corpus, addressed to the Secretary of Commerce and Labor
and to the commissioner of immigration of the port of New York, on
which the circuit court made an order discharging the petitioners,
but the circuit court of appeals reversed the order by a divided
court. 136 F. 734. The return to the writ discloses that the
petitioners are British aliens, that they arrived in New York on
February 1, 1904, were detained for examination by a board of
special inquiry, were examined, and were allowed to land. The
return further shows that afterwards, in March, they were arrested
by order of the said Secretary, and after another hearing before a
board of special inquiry were ordered to be returned to England, as
being in this country in violation of the acts of Congress touching
the matter. The only question is whether the Secretary had the
right to direct the second hearing and to make the order of
deportation under § 21 of the Act of March 3, 1903, c. 1012, when
there had been an inquiry at the time of the petitioners' landing,
and a decision in their favor under § 25, 32 Stat. 1218, 1220. It
is proper to add, as giving more dramatic force to the contention
of the petitioners, that the proceedings upon both inquiries are
incorporated into the return by reference, and that they appear to
have been before the same persons, upon the same question -- namely
whether the petitioners came to this country under contract to
perform labor, contrary to the statutes of the United States. Act
of February 26, 1885, c. 164 (23 Stat. 332, U.S.Comp.Stat. 1901, p.
1290); February 23, 1887, c. 220, 24 Stat. 414; March 3, 1891, c.
551, 26 Stat. 1084; March 3, 1903, c. 1012, 32 Stat. 1213.
See
also Acts of October
Page 202 U. S. 283
19, 1888, c. 1210, 25 Stat. 566; March 3, 1893, c. 206, 27 Stat.
569; August 18, 1894, c. 301, 28 Stat. 390.
It is provided by § 24 of the above-mentioned act of 1903
that
"every alien who may not appear to the examining immigrant
inspector at the port of arrival to be clearly and beyond a doubt
entitled to land shall be detained for examination in relation
thereto by a board of special inquiry."
The following section, § 25, directs the appointment of such
boards as shall be necessary for the prompt determination of cases
of aliens detained, to consist of three members, to be selected
from the immigrant officials in the service. "Such boards shall
have authority to determine whether an alien who has been duly held
shall be allowed to land or be deported." They are to keep records,
"and the decision of any two members of a board shall prevail and
be final," subject to appeal by the alien or a dissenting member
"through the commissioner of immigration at the port of arrival and
the Commissioner General of Immigration, to the Secretary of the
Treasury" (now the Secretary of Commerce and Labor, Act of February
14, 1903, c. 552, §§ 4, 7, 10, 32 Stat. 826, 828, 829), "whose
decision shall then be final." In this case, the first decision of
the board was unanimous, and the petitioners contend that it was
final by the very words of the act.
On the other hand, it is provided by § 21
"that, in case the Secretary of the Treasury shall be satisfied
that an alien has been found in the United States in violation of
this act, he shall cause such alien, within the period of three
years after landing or entry therein, to be taken into custody and
returned to the country whence he came,"
with details as to the method. It is insisted by the government
that this power is not qualified or cut down by § 25. Of course, if
the government is right on the construction of the act, there is no
question of the validity of the provision. By that construction,
the finality given to the decision of the board is only a finality
consistent with and subject to § 21, as, conversely, by that
contended for on the other side, the power of the Secretary is
subject to § 25.
Page 202 U. S. 284
On the former view, the United States admits aliens
conditionally, and preserves that condition notwithstanding a
preliminary decision in their favor by a board which it provides.
The authority of Congress to impose such conditions hardly was
disputed and is not open to doubt.
Lem Moon Sing v. United
States, 158 U. S. 538,
158 U. S. 543;
Nishimura Ekiu v. United States, 142 U.
S. 651;
Japanese Immigrant Case, 189 U. S.
86,
189 U. S. 97-99.
The only question is what it has done.
Some meaning must be found for § 21, no less than for § 25. For
the petitioners, it is said that § 21 is satisfied by confining the
power of the Secretary to cases where a board of special inquiry
has not acted. But this would limit his action to a very narrow
scope, since the act provides for such a board in every case where
the alien does not appear to the inspector "to be clearly and
beyond a doubt entitled to land." Section 24, quoted above. Again,
it would defeat in great measure the policy of the original Act of
October 19, 1888, c. 1210, § 1, 25 Stat. 566, (
see also
Act of March 3, 1891, c. 551, § 11), which obviously was to give a
chance for fuller investigation than is possible at the moment of
landing, when any inquiry necessarily must be of a very summary
sort.
See Japanese Immigrant Case, 189 U. S.
86,
189 U. S. 99.
Yet this policy is emphasized and reinforced by changing the period
of probation from one year to three, while in other respects § 21
follows almost literally the words of the earlier act. The
petitioners' construction also would empty the requirement in § 20
that "any alien who shall come into the United States in violation
of law" shall be deported, of the greater part of its natural
meaning since it would limit it to such aliens only as appeared to
the inspector to be entitled beyond a doubt to land, and for that
reason escaped a board of special inquiry before they came in.
Turning now to § 25, that section seems to us to disclose
additional reasons on the government's side. The board is an
instrument of the executive power, not a court. It is made up, as
we have mentioned, of the immigrant officials in the
Page 202 U. S. 285
service, subordinates of the Commissioner of Immigration, whose
duties are declared to be administrative by § 23. Decisions of a
similar type long have been recognized as decisions of the
executive department, and cannot constitute
res judicata
in a technical sense.
Nishimura Ekiu v. United States, supra;
Fong Yue Ting v. United States, 149 U.
S. 698,
149 U. S. 713;
Lem Moon Sing v. United States, 158 U.
S. 538;
Fok Yung Yo v. United States,
185 U. S. 296,
185 U. S. 305;
Japanese Immigrant Case, 189 U. S. 86,
189 U. S. 98;
United States v. Ju Toy, 198 U. S. 253,
198 U. S. 263.
The decisions necessarily are made, as we have said, in a summary
way in order to reach the "prompt determination" declared by § 25
to be an object. The board has no power to compel witnesses to
attend, but, as was said by the circuit court of appeals, must
decide upon such evidence as is at hand or is readily accessible.
These are considerations against the likelihood that Congress meant
such decisions to be binding upon the Secretary of Commerce and
Labor, the superior officer of the members of the board. On the
other hand, there is a plain and sufficient meaning for the words
making their decision final, and that is that it shall be final
where it is most likely to be questioned -- in the courts.
It is true that the decision hardly will be questioned in the
courts except when it is against the right to land. In the earlier
acts, the decision of an inspector was made final in terms, only
"when adverse to such right." Act of March 3, 1891, c. 551, § 8, 26
Stat. 1085. Since then, it is said, Congress has gone on increasing
the importance of the decision, first by providing a board in cases
of doubt, with a limited appeal, Act of March 3, 1893, c. 206, § 5,
27 Stat. 570, and then by enlarging the right of appeal and
extending the finality of the ultimate decision to every case by
the present § 25. But this appears to us to strain and even pervert
the conclusions to be drawn from the change. There can be no doubt,
we think, that the provision of the act of 1891 referred to the
courts. The adverse decision of an inspector would be followed by
deportation unless that should be stopped by habeas corpus. To
Page 202 U. S. 286
prevent a retrial in that event the provision was passed. It is
not likely that the purpose was changed when the words "when
adverse to such right" were dropped. More probably, they were
omitted simply as superfluous. If the question ever could arise in
the courts, except when the alien was ordered to be deported, there
was no reason why the decision to admit should not be given an
effect equal to that of a decision to exclude. If the question
could arise only in the former case, there was no need of the
omitted clause. But the matter which was before the mind of
Congress presumably was that which had been before it on the former
occasion, which had been the subject of judicial discussion,
Lem Moon Sing v. United States, 158 U.
S. 538;
Fok Yung Yo v. United States,
185 U. S. 296,
185 U. S.
304-305, and which was not quite disposed of until the
last term of this Court.
United States v. Ju Toy,
198 U. S. 253.
There was a suggestion at the argument that the decision of the
Secretary was not warranted by the evidence. But if, for the
purposes of decision, we assume that question to be open, we do not
think that it needs discussion. We are of opinion that the decision
of the circuit court of appeals was right.
Judgment affirmed.
MR. JUSTICE HARLAN, MR. JUSTICE BREWER, and MR. JUSTICE PECKHAM
dissent.