1. The inhibition of
ex post facto laws (Const. Art. I,
§ 9) applies only to criminal laws, and not to a law for deporting
aliens who by conviction of crime are shown to be undesirable as
residents of this country. P.
264 U. S.
39.
2. The deportation thus provided is not punishment.
Id.
3. Repeal of the law under which an alien was convicted does not
do away with the conviction as a basis of subsequent deportation.
Id.
4. The Alien Act of May 10, 1920, establishes classes of persons
who in the judgment of Congress are eligible for deportation, and
directs the Secretary of Labor to deport those of these classes who
he finds to be undesirable residents.
Held not invalid as
a delegation of legislative power, since the discretion delegated
is sufficiently defined by the policy of Congress and the common
understanding as to what "undesirable residents" are. P.
264 U. S.
40.
5. Greater precision is required of statutes defining and
punishing crimes (
Cohen Grocery Co. case,
255 U. S.
81) than of those
Page 264 U. S. 33
delegating legislative power to executive boards and officers.
P.
264 U. S.
41.
6. In deportation proceedings pursuant to the Alien Act of May
10, 1920, against aliens found to have been convicted under the
Espionage and Selective Draft Acts, the convictions are sufficient
evidence
per se that the respondents are "undesirable
residents." P.
264 U. S.
42.
7. Failure of aliens to answer questions, under advice of
counsel,
held also to warrant inferences by the Secretary
of Labor against their desirability.
Id.
8. Under the above Act of 1920, a finding by the Secretary of
Labor that an alien is an undesirable resident is a jurisdictional
prerequisite to deportation. P.
264 U. S.
43.
9. The finding must appear in the warrant of deportation itself,
or the warrant is void, and the finding cannot be inferred from
recitals of the warrant that the alien "has been found" in the
United States in violation of the Deportation Act, and has been
finally convicted of the offenses named in that act. P.
264 U. S.
43.
10. It is a general principle that, where a finding of fact is a
condition precedent to an act of an executive officer exercising
delegated legislative power, the record of his act must show that
the finding was made. P.
264 U. S. 44.
Wichita R. Co. & Light Co. v. Public Utilities Comm'n,
260 U. S. 48.
11. This Court, on an appeal, can notice and rectify a plain and
serious error in a habeas corpus proceeding, though unassigned. P.
264 U. S.
45.
12. Where a warrant for deportation, issued under the Act of May
10, 1920, is jurisdictionally defective in not reciting that the
alien had been found an undesirable resident, his discharge in
habeas corpus may be delayed, under Rev.Stats. § 761, for a
reasonable time to give opportunity for the Secretary of Labor to
make the finding, if justified, from evidence in the original or in
a new deportation proceeding, and to issue a new warrant
accordingly. P.
264 U. S.
46.
Reversed.
This is an appeal from a judgment of the District Court of the
United States for Northern Illinois dismissing five writs of habeas
corpus and remanding the appellants, who are aliens, to the custody
of the Immigration Inspector at Chicago for deportation in
pursuance
Page 264 U. S. 34
to warrants issued by the Secretary of Labor. The cases were
consolidated in the court below.
In 1918, all the appellants were tried and found guilty of
violation of § 5 of the Selective Service Act of May 18, 1917, c.
15, 40 Stat. 76, 80, and of § 4 of the Espionage Act of June 15,
1917, c. 30, 40 Stat. 217, 222. All but Petro Nigra were sentenced
to the United States penitentiary at Leavenworth, Kansas, for a
period of 5 years, and Nigra was sentenced to the same place for 18
months. Upon error to the court of appeals, these sentences were
affirmed, and became final.
Pending the imprisonment of appellants, the Secretary of Labor
issued warrants for arrest of the appellants under the Act of May
10, 1920, c. 174, 41 Stat. 593.
They were all in the same form. That as to Mabler was as
follows:
"
WARRENT OF ARREST"
"
No. 54616/151"
"
United States of America"
"
U.S. Department of Labor"
"
Washington"
"To Harry R. Landis, Inspector in Charge, Chicago,
Illinois:"
"Whereas, from evidence submitted to me, it appears that the
alien Herbert Mabler, who landed unknown at the port of Seattle,
Washington, on or about the 1st day of April, 1913, has been found
in the United States in violation of the Act of May 10, 1920, for
the following among other reasons:"
"That he is an alien who, since August 1, 1914, has been
convicted of a violation of or a conspiracy to violate an act
entitled 'An act to punish acts of interference with the foreign
relations, the neutrality, and the foreign commerce of the United
States, to punish espionage, and better to enforce the criminal
laws of the United States, and for other purposes,' approved June
15, 1917,
Page 264 U. S. 35
or the amendment thereof, approved May 16, 1918, the judgment on
such conviction having become final, and that he is an alien who,
since August 1, 1914, has been convicted of a violation of or a
conspiracy to violate an act entitled 'An act to authorize the
President to increase temporarily the military establishment of the
United States,' approved May 18, 1917, or any amendment thereof or
supplement thereto, the judgment on such conviction having become
final:"
"I, Theodore G. Risley, Acting Secretary of Labor, by virtue of
the power and authority vested in me by the laws of the United
States, do hereby command you to take into custody the said alien
and grant him a hearing to enable him to show cause why he should
not be deported in conformity with law,"
etc.
On June 14 and 15, 1921, each appellant had a hearing before
Immigrant Inspector Paul at Leavenworth at which appellants were
examined orally, and the indictment, the judgments, and the opinion
and judgment of the circuit court of appeals were introduced in
evidence. The Secretary of Labor, on the records thus made and
presented to him, issued a warrant of deportation of each appellant
in all respects,
mutatis mutandis, like that in the case
of Herbert Mabler, as follows:
"To Commissioner of Immigration, Montreal, Canada, or to Any
Officer or Employee of the U.S. Immigration Service:"
"Whereas, from proofs submitted to me, after due hearing before
Immigrant Inspector C. H. Paul, held at Leavenworth, Kansas, I have
become satisfied that the alien, Herbert Mabler, who landed at the
port of Seattle, Washington, on or about the 1st day of September,
1913, has been found in the United States in violation of the Act
of May 10, 1920; that he is an alien who since August 1, 1914, has
been convicted of a violation of or a conspiracy to violate an act
entitled"
"An act to punish acts of
Page 264 U. S. 36
interference with the foreign relations, the neutrality, and the
foreign commerce of the United States, to punish espionage, and
better to enforce the criminal laws of the United States, and for
other purposes,"
"approved June 15, 1917, or the amendment thereof approved May
16, 1918, the judgment on such conviction having become final; that
he is an alien who since August 1, 1914, has been convicted of a
violation of or a conspiracy to violate an act entitled 'An act to
authorize the President to increase temporarily the military
establishment of the United States,' approved May 18, 1917, or any
amendment thereof or supplement thereto, the judgment on such
conviction having become final:"
"I, E. J. Henning, Assistant Secretary of Labor, by virtue of
the power and authority vested in me by the laws of the United
States, do hereby command you to return said alien to Canada, the
country whence he came, at the expense of the appropriation,
'Expenses of Regulating Immigration, 1922.'"
"For so doing this shall be your sufficient warrant."
"Witness my hand and seal this 10th day of November, 1921."
"(Signed) E. J. Henning,"
"Assistant Secretary of Labor"
The Act of Congress enacted May 10, 1920, c.174, 41 Stat. 593,
provides that aliens of certain classes described in the act, in
addition to those for whose expulsion authority already exists,
shall, upon the warrant of the Secretary of Labor, be taken into
his custody and deported in the manner provided in §§ 19 and 20 of
the Immigration Act of February 5, 1917, 39 Stat. p. 889, "if the
Secretary of Labor, after hearing, finds that such aliens are
undesirable residents of the United States." The classes include
all aliens interned as enemies by the President's proclamation
under R.S. § 4067 and alien convicts under the Espionage Act, the
Explosives
Page 264 U. S. 37
Act, the act restricting foreign travel, the Sabotage Act, the
Selective Draft Act, the act punishing threats against the
President, the Trading with the Enemy Act, and certain sections of
the Penal Code. Section 2 makes the decision of the Secretary of
Labor in ordering expulsion of an alien under the act final.
The petitions for writs of habeas corpus charged that the
warrant of deportation under which the petitioners were held were
void because, at the time of the issue of the warrants, the
Espionage Act and the Selective Draft Act, for convictions under
which they were about to be deported, had been repealed, that the
Act of May 10, 1920, under which the warrant was issued, was an
ex post facto law, because the convictions for which they
were to be deported were for acts committed before its passage,
that there was no legal evidence to establish that petitioners were
aliens amenable to deportation under the act, that the hearing and
proceedings were without due process of law, and that, for these
and other reasons, the commitment was void.
Counsel for the appellants, in their brief and in their
argument, attacked the constitutionality of the Act of 1920 not
only because it was an
ex post facto law, but because it
delegated legislative power to an executive officer, and because
the criterion for his finding --
i.e., that the persons to
be deported should be "undesirable residents of the United States"
-- was so vague and uncertain that it left the liberty of the alien
to the whim and caprice of an executive officer, in violation of
due process required by the Fifth Amendment. They further attacked
the validity of the warrants on the ground that they did not show a
finding by the Secretary that the appellants were undesirable
residents of the United States, a condition precedent to a legal
deportation. They further alleged that, as to all the petitioners,
there was no evidence to sustain such a finding, if it had been
made, and that ,as
Page 264 U. S. 38
to Petro Nigra, there was also a fatal lack of evidence at his
hearing to show that he had been convicted of the violations of the
statutes charged in the warrant.
MR. CHIEF JUSTICE TAFT, after stating the case as above,
delivered the opinion of the Court.
The theory of the draftsman of the petition for the writ and of
the assignment of errors was that the same
Page 264 U. S. 39
constitutional restrictions apply to an alien deportation act as
to a law punishing crime. It is well settled that deportation,
while it may be burdensome and severe for the alien, is not a
punishment.
Fong Yue Ting v. United States, 149 U.
S. 698,
149 U. S. 730;
Bugajewitz v. Adams, 228 U. S. 585,
228 U. S. 591.
The right to expel aliens is a sovereign power, necessary to the
safety of the country, and only limited by treaty obligations in
respect thereto entered into with other governments.
Fong Yue
Ting v. United States, supra. The inhibition against the
passage of an
ex post facto law by Congress in § 9 of Art.
I of the Constitution applies only to criminal laws,
Calder v. Bull,
3 Dall. 386;
Johannessen v. United States, 225 U.
S. 227,
225 U. S. 242,
and not to a deportation act like this,
Bugajewitz v.
Adams, 228 U. S. 585,
228 U. S. 591.
Congress, by the Act of 1920, was not increasing the punishment for
the crimes of which petitioners had been convicted, by requiring
their deportation if found undesirable residents. It was, in the
exercise of its unquestioned right, only seeking to rid the country
of persons who had shown by their career that their continued
presence here would not make for the safety or welfare of society.
In
Hawker v. New York, 170 U. S. 189, the
validity of a law of New York which forbade, on penalty, anyone who
had been convicted of a felony from practicing medicine was upheld
as a reasonable exercise of the police power, and not an increase
of the punishment for the felony. The present is even a clearer
case than that.
The brief for appellants insists that, as the laws under which
the appellants were convicted have been repealed, the fact of their
conviction cannot be made the basis for deportation. It was their
past conviction that put them in the class of persons liable to be
deported as undesirable citizens. That record for such a purpose
was not affected by the repeal of the laws which they had violated
and under which they had suffered punishment. The repeal
Page 264 U. S. 40
did not take the convicted persons out of the enumerated
classes, or take from the convictions any probative force rightly
belonging to them.
Nor is the act invalid in delegating legislative power to the
Secretary of Labor. The sovereign power to expel aliens is
political, and is vested in the political departments of the
government. Even if the executive may not exercise it without
congressional authority, Congress cannot exercise it effectively
save through the executive. It cannot, in the nature of things,
designate all the persons to be excluded. It must accomplish its
purpose by classification and by conferring power of selection
within classes upon an executive agency.
Tiaco v. Forbes,
228 U. S. 549,
228 U. S. 557.
That is what it has done here. It has established classes of
persons who in its judgment constitute an eligible list for
deportation, of whom the Secretary is directed to deport those he
finds to be undesirable residents of this country. With the
background of a declared policy of Congress to exclude aliens
classified in great detail by their undesirable qualities in the
Immigration Act of 1917 and in previous legislation of a similar
character, we think the expression "undesirable residents of the
United States" is sufficiently definite to make the delegation
quite within the power of Congress. As far back as 1802, the
naturalization statute of that year (chapter 28, 2 Stat. 153)
prescribed that no alien should be naturalized who did not appear
to the court to have behaved during his residence in this
country
"as a man of good moral character, attached to the principles of
the Constitution of the United States, and well disposed to the
good order and happiness of the same."
Our history has created a common understanding of the words
"undesirable residents" which gives them the quality of a
recognized standard.
We do not think that the discretion vested in the Secretary
under such circumstances is any more vague or
Page 264 U. S. 41
uncertain or any less defined than that exercised in deciding
whether aliens are likely to become a public charge, a discretion
vested in the immigration executives for half a century and never
questioned. Act Aug. 3, 1882, c. 376, 22 Stat. 214, and Act Feb. 5,
1917, c. 29, 39 Stat. 874.
See Buttfield v. Stranahan,
192 U. S. 470,
192 U. S.
496.
International Harvester Co. v. Kentucky, 234 U.
S. 216, and
United States v. Cohen Grocery Co.,
255 U. S. 81, are
cited on behalf of petitioners. In those cases, statutes were held
invalid for vagueness. They were both criminal cases, in which the
uncertain words of the statute encountered the limitation of the
Fifth and Sixth Amendments. They did not inform the accused
sufficiently of the nature and cause of the accusation. The rule as
to a definite standard of action is not so strict in cases of the
delegation of legislative power to executive boards and officers.
Cases like the one before us were distinguished from the
Cohen case by Chief Justice White in his opinion in that
case, when he said (p.
255 U. S.
92):
"the cases relied upon all rested upon the conclusion that, for
reasons found to result either from the text of the statutes
involved or the subjects with which they dealt, a standard of some
sort was afforded."
The next objection is that there was no evidence before the
immigration inspector and the Secretary upon which a warrant could
properly issue. A special objection of this kind is taken in the
case of Petro Nigra. It is said that, in the record of the hearing
of his case before the inspector, there does not appear any
evidence of his conviction under the Espionage and Selective Draft
Acts. It is true that the certified copies of the indictment and
judgment against all the petitioners do not appear in the hearing
of Nigra as shown, but there is a stipulation between the parties
in another part of the record herein that such certified copies
were used in the hearing of each
Page 264 U. S. 42
petitioner. It is clear that the hearing of Nigra was not
properly reported, and that his case is like the others.
But it is said there was no evidence in the hearings of any of
them as to their being undesirable residents of the United States.
There were their convictions. Those were enough to justify the
Secretary in finding that they were undesirable. The statute does
not expressly require additional evidence. If it did, there was
here the circumstance that, after the examination of the
petitioners had proceeded to a certain point of inquiry, the
petitioners, under the advice of counsel, declined to answer
further questions, an attitude from which the Secretary might well
infer that what would be revealed by answers would not add to their
desirability as residents. Of course, the question how much
additional evidence should be required must vary with the class
which makes its members eligible for deportation. Alien enemies
interned during war may be very good people, and their having been
interned may have little bearing on their being good material for
residents or citizens when peace returns; but the aliens in this
case were convicted of crimes under such circumstances that the
Secretary, without more, might find them undesirable as
residents.
But the Secretary made no express finding, so far as the warrant
for deportation discloses. It is contended that this renders the
warrant invalid. It is answered on behalf of the appellee that, in
habeas corpus proceedings, the prisoner is not to be discharged for
defects in the original arrest or commitment, because the object of
the proceeding is not like an action to recover damages for an
unlawful arrest or commitment, but is to ascertain whether the
prisoner can lawfully be detained in custody, citing
Nishimura
Ekiu v. United States, 142 U. S. 651,
142 U. S. 662.
What that case really decided was that, even if the arrest was
unjustified by the warrant or commitment on its face, yet if the
evidence on the hearing of the petition for habeas
Page 264 U. S. 43
corpus showed either that facts existed at the time of the
arrest or had occurred since, which made the detention legal, the
court would not release the prisoner, but would do what justice
required, and would dispose of the prisoner accordingly.
Iasigi
v. Van De Carr, 166 U. S. 391;
Stallings v. Splain, 253 U. S. 339,
253 U. S. 343;
United States ex rel. Bilokumsky v. Tod, 263 U.
S. 149,
263 U. S. 158;
United States ex rel. Mensevich v. Tod, post, 264 U. S. 134.
In the case before us, the defect in the warrants of deportation
has not been supplied. The defect is jurisdictional. There is no
authority given to the Secretary to deport, except upon his finding
after a hearing that the petitioners were undesirable residents.
There is no evidence that he made such a finding except what is
found in the warrant of deportation. The warrants recite that, upon
the evidence, the Secretary has become satisfied that the
petitioner aliens have been found in the United States in violation
of the Act of May 10, 1920, and that they were finally convicted of
the offenses named in the act. They could not have been found in
the United States in violation of the Act of 1920 until after the
Secretary had found that they were undesirable residents.
Appellees' argument is that therefore this must be taken to mean
that he finds them undesirable citizens. But the words "have been
found" naturally refer to a time when the warrant of arrest was
served on them, and before he had them before him. They exclude a
possible meaning that he was then making their stay in the country
illegal by implication of a finding that they were undesirable.
This conclusion is borne out by the language of the Secretary in
the warrant of arrest, which, before the hearings, he issued
against the petitioners and in which he directed their arrest on
the ground that they had been found in the United States in
violation of the Act of May 10, 1920. It would clearly appear from
these two documents, which are naturally to be construed
in
pari materia, that the
Page 264 U. S. 44
Secretary did not deem his finding that the petitioners were
undesirable citizens essential to enable him to deport them.
Indeed, he seems to have used forms applicable to aliens of a fixed
excluded class, to be deported on identification with the class,
without any further finding by him. The natural construction of his
language is that he has become satisfied that they are in the
country in violation of the act solely because they have been
convicted as stated.
Does this omission invalidate the warrant? The finding is made a
condition precedent to deportation by the statute. It is essential
that, where an executive is exercising delegated legislative power,
he should substantially comply with all the statutory requirements
in its exercise, and that, if his making a finding is a condition
precedent to this act, the fulfillment of that condition should
appear in the record of the act. In
Wichita R. Co. & Light
Co. v. Public Utilities Commission, 260 U. S.
48, a statute of a state required that a Public Utility
Commission should find existing rates to be unreasonable before
reducing them, but there was no specific requirement that the order
should contain the finding. We held that the order in that case,
made after a hearing and ordering a reduction, was void for lack of
the express finding in the order. We put this conclusion not only
on the language of the statute, but also on general principles of
constitutional government. After pointing out the necessity for
such delegation of certain legislative power to executive agencies,
we said (p.
260 U. S.
59):
"In creating such an administrative agency, the legislature, to
prevent its being a pure delegation of legislative power, must
enjoin upon it a certain course of procedure and certain rules of
decision in the performance of its function. It is a wholesome and
necessary principle that such an agency must pursue the procedure
and rules enjoined and show a substantial compliance therewith
to
Page 264 U. S. 45
give validity to its action. When, therefore, such an
administrative agency is required, as a condition precedent to an
order, to make a finding of facts, the validity of the order must
rest upon the needed finding. If it is lacking, the order is
ineffective."
"It is pressed on us that the lack of an express finding may be
supplied by implication and by reference to the averments of the
petition invoking the action of the commission. We cannot agree to
this."
If the principle thus stated is to be consistently adhered to,
it is difficult in any view to give validity to the warrants of
deportation before us.
It is said that no exception was taken to the warrant on this
account until the filing of the brief of counsel in this Court.
There was an averment that the warrant was void without definite
reasons in the petition of habeas corpus. There was nothing of the
kind in the assignment of error. But we may, under our rules,
notice a plain and serious error, though unassigned. Rule 21, § 4,
and Rule 35, § 1, 222 U.S. appendix, pp. 27, 37;
Wiborg v.
United States, 163 U. S. 632,
163 U. S. 658;
Clyatt v. United States, 197 U. S. 207,
197 U. S.
221-222;
Crawford v. United States,
212 U. S. 183,
212 U. S. 194;
Weems v. United States, 217 U. S. 349,
217 U. S. 362.
The character of the defect is such that we cannot relieve
ourselves from its consideration. The warrant lacks the finding
required by the statute, and such a fundamental defect we should
notice. It goes to the existence of the power on which the
proceeding rests. It is suggested that if the objection had been
made earlier, it might have been quickly remedied. There was no
chance for objection afforded the petitioners until after the
warrant issued, in the petition for habeas corpus. The defect may
still be remedied on the objection made in this Court.
We need not discharge the petitioners at once because of the
defective warrant. By § 761 of the Revised Statutes, the duty of
the court or judge in habeas corpus proceedings is prescribed as
follows:
Page 264 U. S. 46
"The court or justice or judge shall proceed in a summary way to
determine the facts of the case by hearing the testimony and
arguments, and thereupon to dispose of the party as law and justice
require."
Under this section, this Court has often delayed the discharge
of the petitioner for such reasonable time as may be necessary to
have him taken before the court where the judgment was rendered,
that defects which render discharge necessary may be corrected.
In re Bonner, 151 U. S. 242,
151 U. S. 261;
Medley, Petitioner, 134 U. S. 160,
134 U. S. 174;
Coleman v. Tennessee, 97 U. S. 509;
United States v. McBratney, 104 U.
S. 621,
104 U. S. 624;
Bryant v. United States, 214 F. 51, 53. The same rule
should be applied in habeas corpus proceedings to test the legality
of confinement under the decision of an administrative tribunal
like the Secretary of Labor in deportation cases. No time
limitation is imposed upon proceedings under the Act of May 10,
1920. If, upon the evidence, the Secretary finds that these
petitioners are undesirable residents and issues warrants of
deportation reciting that finding with the other jurisdictional
facts, there will then be no reason, so far as this record
discloses, why they should not be deported.
Accordingly, the judgment of the district court is reversed with
directions not to discharge the petitioners until the Secretary of
Labor shall have reasonable time in which to correct and perfect
his finding on the evidence produced at the original hearing, if he
finds it adequate, or to initiate another proceeding against
them.
