Where an alien enters this country more than once, the period of
three years from entry prescribed by §§ 20 and 21 of the Alien
Immigration Law runs not from the date when he first entered the
country, but from the time of his entry under conditions within the
prohibitions of the act.
Lapina v. Williams, 232 U. S.
78.
Where, as in this case, there was evidence sufficient to justify
the Secretary of Commerce and Labor in concluding that the alien
was within the prohibitions of the Alien Immigration Act, and the
hearing was fairly conducted, the decision of the Secretary is
binding upon the courts.
Under § 2 of the Alien Immigration Act of 1907 as amended in
1910, it is an offense for any person, citizen or alien, to bring
into this country an alien for the purposes of prostitution, and
any alien so doing or attempting to do may be excluded on entry or
deported after entry.
A conviction under § 3 of the Alien Immigration Act is not
necessary
Page 233 U. S. 292
for exclusion on entry or deportation after entry of an alien
who has brought into this country an alien for the purpose of
prostitution, nor is a verdict of acquittal of a charge under § 3
res judicata as to a proceeding before the Secretary under
§ 2 of the act.
There is a distinction between a criminal prosecution and an
administrative inquiry by an Executive Department or subordinate
officers thereof.
Zakonaite v. Wolf, 226 U.
S. 272.
The destination of an alien whose deportation after a second
entry is based on § 2 of the Alien Immigration Act is to be
determined in the light of §§ 20, 21 and 35 of the act, and is not
controlled by the factitious circumstance of his going to a
contiguous country to obtain the alien brought in for purposes of
prostitution. The act admits of his being returned to the country
whence he came when he first entered the United States.
Quaere whether the act leaves any room for discretion
on the part of the Secretary, and whether that part of a
deportation order determining destination of the alien is open to
inquiry on habeas corpus.
195 F. 693 affirmed.
The facts, which involve the construction of the provisions of
the Alien Immigration Act in regard to deportation of undesirable
aliens, are stated in the opinion.
MR. JUSTICE PITNEY delivered the opinion of the Court.
Petitioner is an alien and a native of Russia. He came thence to
this country, entering at the port of New York, in the month of
September, 1904, lived in or near New York city until March, 1901,
then removed to Detroit, Michigan, and has since made that city his
home. On November 17, 1910, he crossed the river from Detroit to
Windsor, Canada, and brought back with him into the United States a
woman, avowed by him to be his wife, but
Page 233 U. S. 293
whose actual status was questioned, as will appear. A few days
later, he was arrested upon a warrant from the Department of
Commerce and Labor, issued under the Immigration Act of February
20, 1907, as amended March 26, 1910, and, after a hearing conducted
by an inspector, the Secretary, on February 14, 1911, found "that
said alien is a member of the excluded classes, in that he . . .
procured, imported, and brought into the United States a woman for
an immoral purpose," etc., and thereupon ordered that he be
deported to the country whence he came, to-wit, Russia.
Meanwhile, he was indicted in the United States district court
for a violation of § 3 of the act, the charge being that, on the
occasion above referred to, he knowingly imported an alien woman
from a foreign country for an immoral purpose, to-wit, illicit
concubinage and cohabitation. The trial of the indictment resulted,
on March 23, 1911, in a verdict of not guilty.
On April 13th petitioner, being in custody under the deportation
warrant, sued out a writ of habeas corpus from the United States
circuit court. Appended to his petition for the writ was a copy of
the record of his examination by the inspector, including the
testimony and a list of exhibits, but not the exhibits themselves.
In his answer, the immigration inspector set up the warrant of
deportation as his authority for detaining petitioner, and recited
the arrest and examination, and the finding of the Secretary of
Commerce and Labor.
The circuit court held that there was no authority in the
immigration law for deporting an alien because he had imported a
woman for immoral purposes; that such importation might be fully
proved, or, indeed, might be admitted by the alien, and still the
Department of Commerce and Labor would be without jurisdiction to
deport; that it had such jurisdiction only under § 3 of the act,
and only in case of conviction; that because, by § 3, Congress
Page 233 U. S. 294
provided that, where the woman imported is an alien and the
person importing is an alien, a felony is committed, and the person
convicted of this felony may be deported, therefore, under the
ordinary rules of statutory construction, it must be held that, out
of the general class covered by § 2, Congress had selected a
particular class named in § 3 and subjected it to a severe
punishment, but in connection therewith had limited the right to
deport to cases where there was a conviction. That the right to
prosecute criminally and the right to deport are inconsistent as
concurrent rights, and cannot both be exercised at the same time,
and that Congress saw the necessity of making the proceedings
successive, and clearly made the second step depend upon the result
of the first. Hence, an order was made for the discharge of
petitioner. 189 F. 146.
Upon appeal, the circuit court of appeals reversed this
judgment, 195 F. 693, holding that the power to deport an alien
existed under §§ 2 and 21 of the act, irrespective of § 3, and
further that the right to deport in this case could be found in § 3
in connection with § 21, without regard to conviction or acquittal
under § 3. The court also held that the acquittal of Lewis was not
res judicata of the present proceeding, and that, since
there was evidence tending to support the finding of the Secretary
of Commerce and Labor respecting the bringing in of the woman for
the purpose of prostitution, that finding was conclusive. And
finally it sustained the deportation of petitioner to Russia,
rather than to Canada, holding that the former was "the country
whence he came," within the meaning of the act.
The provisions that are especially pertinent are set forth in
the margin.
*
Page 233 U. S. 295
The decision of the circuit court of appeals is attacked here on
several grounds. The first is based upon the fact that the alien
had an established domicil and residence in the United States
dating from September 20, 1904, having obtained his admission into
the country legally, and maintained a domicil here continuously
from the date
Page 233 U. S. 296
of his entry until the time of his arrest, and it is insisted
that the fact of his having crossed the river to Canada, even
though it was done with the object of bringing a woman into this
country for the purpose of prostitution, did not bring him within
the reach of the Immigration Act or subject him to the summary
procedure therein prescribed.
This question is settled adversely to the contention of
petitioner by out recent decision in
Lapina v. Williams,
232 U. S. 78. That
case arose under the Act of February 20, 1907, while this arises
under the same act as amended March 26, 1910. But the changes are
not such as to affect the authority of that decision upon the
present point.
In
Lapina v. Williams, it did appear that the alien had
practiced prostitution for many years before her temporary
departure from the country, and that she not only returned with the
intent to continue the practice, but did almost immediately engage
in it, and continued it until her arrest under the provisions of
the Immigration Act. But the real ground of decision was that
Congress, in the Act of 1903, sufficiently expressed, and in the
Act of 1907 reiterated, the purpose of extending the prohibition
against the admission of aliens of certain classes, and the mandate
for their deportation, to all aliens within the descriptive terms
of the excluding clause, irrespective of any qualification arising
out of a previous residence or domicil in this country. This view
was based (a) upon the legislative history of the Act of 1903 (from
which the material provisions of the 1907 act were taken), which
was a reenactment of previous laws, but with the deliberate
omission of the word "immigrant" and of certain other qualifying
phrases that had been construed by the courts as giving so limited
meaning to the word "alien" as not to include aliens previously
resident in this country, and who had temporarily departed with the
intention of returning; (b) upon the clear language of the
excluding clause of § 2
Page 233 U. S. 297
of the Act of 1907 (quoted in full, 232 U.S.
232 U. S. 91);
(c) upon the fact that none of the excluded classes (with the
possible exception of contract laborers) would be any less
undesirable if previously domiciled in the United States, and (d)
upon the fact that the section contains its own specific provisos
and limitations, which, upon familiar principles, tend to negative
any other and implied exception.
We hold, therefore, that the fact that the petitioner, Lewis,
had been domiciled for six years or more in this country, he
remaining still an alien, did not change his status so as to exempt
him from the operation of the Immigration Act, and that, if he
departed from the country, even for a brief space of time, and on
reentering brought into the country a woman for the purpose of
prostitution or other immoral purpose, he subjected himself to the
operation of the clauses of the act that relate to the exclusion
and deportation of aliens, the same as if he had had no previous
residence or domicil in this country. In short, the period of three
years from entry, prescribed by §§ 20 and 21, runs not from the
date when the alien first entered the country, but from the time of
the prohibited entry -- that is to say, in the present case, the
entry made by the alien when bringing in the woman.
The next question is whether there was sufficient evidence to
fairly sustain the finding of the Secretary of Commerce and Labor
to the effect that petitioner did, on November 17, 1910, import and
bring into the United States a woman for an immoral purpose. Upon
this question, petitioner's contention was and is that the woman is
in fact his wife. He testified that he married her in Warsaw
shortly before he came from Russia to this country, and that, when
he brought her across the river from Windsor, he intended that he
and she should live together in Detroit as husband and wife. The
contention
Page 233 U. S. 298
of respondent was and is that the story of the marriage was a
pure fabrication, resorted to in the effort to conceal the fact
that the woman was a prostitute and imported by petitioner for
immoral purposes. There is much in the evidence to support this
view. Petitioner admitted that his real name was not Lewis, but
Prezysuskier, and his "other name" was Nossek; that he first used
the name of Lewis after coming to this country; that his father's
name was Chaskel Prezysuskier; that he knew his alleged wife as
"Leah," and did not know her other name, if any; that he knew her
father as "Isaac," but did not know whether he had any other name;
that two friends were present at the ceremony, but he could not
remember their names; that he lived with the woman in Warsaw for
five or six months, and then separated from her because he heard
stories of improper conduct on her part, and that he afterwards
heard she had had children before the marriage. Being questioned
concerning his life in New York, he professed himself unable to
give the names of several persons among those with whom he said he
had come in contact, and who could presumably have been called
either to corroborate or to contradict his testimony. He declared
that he had not seen his alleged wife since coming to America until
the occasion when he met her at Windsor. Being asked "How did you
happen to meet her at that time?" he answered as follows:
"I was home not working one day, and Berman comes up and asks
for me, and I don't know how he got my address, and I was surprised
that a strange man should ask for my name, but my cousin, Mrs.
Newman, told him he should come back at night when I got home from
work, and he came back and said 'I have regards for you,' and he
said 'Are you Lewis,' and I said 'Yes,' and he asked me questions,
if I was ever in Warsaw, and I said 'Yes,' and he said, 'I have
regards from your wife,' and I pretended to say that I haven't got
any, because I kept myself single, but still
Page 233 U. S. 299
when he mentioned the name, I knew what it was, and I said,
'Where is she, what does she want of me,' and he said 'She is not
here, she is in Canada, but I will let you know when she gets
here.' On the 17th, I went to work in the morning, and at dinner
time when I got back, Mr. Berman was there waiting for me. I said,
'What is the matter,' and he said, 'I received a telegram that my
wife and your wife are coming here, and I want you to come over
with me to Windsor and meet them,' and I said, 'She will come over
to the Immigration Office they, should send for me over there and
she could get out.' Well, he said, it was better for me to come
over there, 'For you know how a woman is;' he said, 'She might make
you trouble' and I didn't think about it, so I went there and met
her and I went over to Windsor and stood there fifteen or twenty
minutes and got a train to the station at Windsor and met her
there, but very cool, and came over here to the Immigration
Office."
The story is extraordinary. How it happened that the alleged
wife, who had known him as Prezysuskier in Warsaw, was able through
the good offices of an entire stranger to identify him as Lewis, in
Detroit, more than six years later, was not explained. The alleged
husband's readiness to accept her is equally suspicious. There were
other circumstances tending to discredit the story of the marriage.
And if that story fell, the inference of an unlawful purpose was
irresistible. It should be mentioned that the exhibits introduced
upon the examination on which the warrant of deportation was issued
are not included in the record; but it does appear that among them
was a statement made by the alien at police headquarters in Detroit
on November 21, 1910. Were there doubt whether the testimony
itself, without the documentary evidence, would support the action
of the Secretary of Commerce and Labor, we should be inclined to
say that a court ought not set aside that action without at least
requiring the
Page 233 U. S. 300
production of the exhibits that were presented to the Secretary.
But, without regard to them, enough appears to show that he was
fully justified in concluding as a matter of fact that the whole
story of the marriage in Warsaw was a fabrication, and that in
truth Lewis went from Detroit to Windsor upon information from
which he inferred that the woman was an alien and a prostitute,
willing to accompany him to Detroit for an immoral purpose, and
that he brought her to Detroit for that purpose.
This being so, and there being no contention that the hearing
was not fairly conducted, the finding of the Secretary upon the
question of fact is binding upon the courts.
Low Wah Suey v.
Backus, 225 U. S. 460,
225 U. S. 468;
Zakonaite v. Wolf, 226 U. S. 272,
226 U. S.
275.
Respecting the construction of the act, we cannot assent to the
view entertained by the circuit court. Section 2 declares that
certain classes of aliens shall be excluded from admission into the
United States, and among them, "persons who procure or attempt to
bring in prostitutes or women or girls for the purpose of
prostitution or for any other immoral purpose." This section
applies only where an alien brings in a woman or girl for the
purpose indicated. It does not declare that the woman or girl need
be an alien. Section 3 prohibits the importation of "any alien" for
the purpose of prostitution or for any other immoral purpose. Of
course, in order to constitute an offense against this section, the
person brought in must be an alien. But the person need not be a
woman or girl. This is clear from the changes made by Congress in §
3 when amending it in 1910. The section as it stood in the 1907 act
(34 Stat. 898, 899, c. 1134) forbade and rendered felonious the
importation or attempt to import "any alien woman or girl for the
purpose of prostitution or for any other immoral purpose," the
phrase "alien woman or girl" being repeated in other
Page 233 U. S. 301
clauses of the section, and one of the principal changes made in
1910 (36 Stat. 263, 264, c. 128) was to eliminate the words "woman
or girl," so that now the section prohibits the importation of "any
alien" for the purposes referred to, and declares that whoever
shall import or attempt to import "any alien for the purpose,"
etc., or shall hold or attempt to hold "any alien" for any such
purpose, etc., or shall keep, etc., in pursuance of such illegal
importation, "any alien," shall be deemed guilty of a felony. The
purpose of the amendment is not to be mistaken. Moreover, the
offense is made a felony irrespective of whether it is committed by
an alien or by a citizen of this country, the only difference being
that, by one of the clauses, any alien convicted under this section
is, after the expiration of his sentence, to be returned to the
country whence he came, or of which he is a subject or a
citizen.
Again, § 20 provides "that any alien who shall enter the United
States in violation of law" shall be deported "at any time within
three years after the date of his entry into the United States."
This certainly includes those who enter in violation of § 2;
indeed, violators of § 3 may not have "entered" at all, within the
meaning of the act.
Consequently, we deem that the circuit court erred in holding
that the act does not provide for deporting an alien for the
offense of procuring or attempting to bring in prostitutes, etc.,
in the absence of a conviction for the felony under § 3. Section 2,
read in connection with §§ 20 and 21, is not thus conditioned. And,
as just now pointed out, the offense aimed at in § 2 and that which
is punishable under § 3 are not the same. In short, it cannot be
said that, out of a general class covered by § 2, Congress selected
the particular class named in § 3, for the latter class is not
entirely included within the former.
We agree with the circuit court of appeals that the
Page 233 U. S. 302
verdict and judgment acquitting petitioner under the indictment
does not render the present controversy
res judicata. The
issue presented by the traverse of the indictment was not identical
with the matter determined by the Secretary of Commerce and Labor.
And, besides, the acquittal under the indictment was not equivalent
to an affirmative finding of innocence, but merely to an
adjudication that the proof was not sufficient to overcome all
reasonable doubt of the guilt of the accused. The distinction
between a criminal prosecution and an administrative inquiry by an
executive department or subordinate officers thereof has been often
pointed out.
Zakonaite v. Wolf, 226 U.
S. 272,
226 U. S. 275,
and cases cited;
Williams v. United States, 186 F.
479.
The final contention is that petitioner should have been
deported to Canada, whence he came upon the occasion of his
unlawful entry into this country, rather than to Russia, the land
of his birth, from which he came six years earlier. By § 20, the
alien is to be "deported to the country whence he came at any time
within three years after the date of his entry into the United
States;" by § 21, the Secretary of Commerce and Labor, upon being
satisfied that an alien is subject to deportation,
"shall cause such alien within the period of three years after
landing or entry therein [within the United States] to be taken
into custody and returned to the country whence he came, as
provided by section twenty of this act;"
by § 3, an alien convicted thereunder is, at the expiration of
his sentence, to be "returned to the country whence he came, or of
which he is a subject or citizen, in the manner provided in §§
twenty and twenty-one of this act;" and by § 35,
"The deportation of aliens arrested within the United States
after entry and found to be illegally therein, provided for in this
act, shall be to the trans-Atlantic or trans-Pacific ports from
which said aliens embarked for the United States; or if such
embarkation
Page 233 U. S. 303
was for foreign contiguous territory, to the foreign port at
which said aliens embarked for such territory."
Petitioner not having been convicted under § 3, his destination
is to be determined, rather, in the light of §§ 20, 21, and 35. And
first, we take it to be clear (notwithstanding the peculiar
phraseology of § 20) that the three-year period limits only the
authority to deport, and does not affect the determination of the
country to which an alien is to be deported. Respecting this
matter, the sections are somewhat lacking in clearness. But at
least, § 35 indicates a legislative intent that aliens subject to
deportation shall be taken to trans-Atlantic or trans-Pacific
ports, if they came thence, rather than to foreign territory on
this continent, although it may have been crossed on the way to
this country. This was recognized by Rule 38 of the Immigration
Regulations, in force December 12, 1910.
It is to be noted that the classes of aliens who are subject to
deportation are not wholly made up of those who enter in violation
of the law; in some cases, cause for deportation may arise after a
lawful entry. And in many cases, the unlawfulness of the entry may
not be discovered until afterwards. The theory of the act, as
expressed in § 2, is that the undesirables ought to be excluded at
the seaport or at the frontier; but §§ 20, 21, and 35 recognize
that this is not always practicable. Of course, if petitioner's
attempt to bring a woman into the country for an immoral purpose
had been discovered in time, he might have been physically excluded
from entry at Detroit upon his return from Windsor. In that event,
he would naturally have remained upon Canadian soil. But since his
offense was not discovered in time to permit of his physical
exclusion, so that he becomes subject to the provisions for
deportation, his destination ought not be to controlled by the
factitious circumstance that he went into Canada to procure the
prostitute. And, upon the whole, it seems to
Page 233 U. S. 304
us that the act reasonably admits of his being returned to the
land of his nativity, that being in fact "the country whence he
came" when he first entered the United States.
See Lavin v. Le
Fevre, 125 F. 693, 696;
Ex Parte Hamaguchi, 161 F.
185, 190;
Ex Parte Wong You, 176 F. 933, 940;
United
States v. Ruiz, 203 F. 441, 444. We need go no further, and
may therefore leave undecided the question whether the act leaves
any room for discretion on the part of the Secretary of Commerce
and Labor.
We have assumed, without deciding, that that part of the
deportation order which determines the destination of the alien is
open to inquiry upon habeas corpus
Judgment affirmed.
* "An Act To Regulate the Immigration of Aliens into the United
States," approved February 20, 1907, c. 1134, 34 Stat. 898, as
amended by act of March 26, 1910, c. 128, 36 Stat. 263.
"SEC. 2. That the following classes of aliens shall be excluded
from admission into the United States . . . persons who procure or
attempt to bring in prostitutes, or women or girls for the purpose
of prostitution, or for any other immoral purpose. . . ."
"SEC. 3. That the importation into the United States of any
alien for the purpose of prostitution or for any other immoral
purpose is hereby forbidden, and whoever shall, directly or
indirectly, import, or attempt to import, into the United States,
any alien for the purpose of prostitution or for any other immoral
purpose . . . shall, in every such case, be deemed guilty of a
felony, and on conviction thereof be imprisoned not more than ten
years and pay a fine of not more than five thousand dollars. . . .
Any alien who shall be convicted under any of the provisions of
this section shall, at the expiration of his sentence, be taken
into custody and returned to the country whence he came, or of
which he is a subject or a citizen, in the manner provided in
sections twenty and twenty-one of this act. . . ."
"SEC. 20. That any alien who shall enter the United States in
violation of law . . . shall, upon the warrant of the Secretary of
Commerce and Labor, be taken into custody and deported to the
country whence he came at any time within three years after the
date of his entry into the United States. . . ."
"SEC. 21. That, in case the Secretary of Commerce and Labor
shall be satisfied that an alien has been found in the United
States in violation of this act, or that an alien is subject to
deportation under the provisions of this act or of any law of the
United States, 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, as provided by
section twenty of this act. . . ."
"SEC. 35. That the deportation of aliens arrested within the
United States after entry and found to be illegally therein,
provided for in this act, shall be to the trans-Atlantic or
trans-Pacific ports from which said aliens embarked for the United
States, or, if such embarkation was for foreign contiguous
territory, to the foreign port at which said aliens embarked for
such territory."