Supplemental Brief — Commissioner of Immigration of Port of NY v. Gottlieb

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— Office Supreme Court

FILED

MAR 10 192

WM. R. STAASB

Supreme Court of the United States

OcTOBER TERM, 1923.

No. 221.

COMMISSIONER OF IMMIGRATION OF

PORT OF NEW YORK,

Petitioner,

against

GITTEL GOTTLIEB and ISRAEL GOTTLIEB.

ON WRIT OF CERTIORARI TO THE UNITED STATES

Circuit CouRT OF APPEALS FOR THE SECOND

CIRCUIT.

RESPONDENTS’ SUPPLEMENTAL BRIEF.

Louis MARSHALL,

JOSEPH G. M. BROWNE,

Barnet E, KopELMAN,

Max J. KOHLER,

of Counsel.

PREss OF FREMONT PAYNE, INC., 80 Washington St., New York City.

SUBJECT INDEX.

Oe EPP EL EE TTR UTE TPCT TET 1

ARGUMENT:

Port I. Giving due consideration to our

past policy, to the provisions of our

basic Immigration Act of 1917 and to

the Quota Law of 1921, a clear purpose

is manifest to avoid the separation of

their wives and children from those

husbands and fathers belonging to the

classes enumerated in the second pro-

viso of Section 2 (d) of the Quota Law,

including “ministers of any religious

denomination” who enter the United

States. Such wives and children are,

therefore, admissible as immigrants re-

gardless of quota restrictions ........ 2, 19

Pornt IL. The Quota Law does not author-

ize deportation because at the time when

the immigrant arrives the quota as-

signed to his nationality has been ex-

GROEN inc cic Covncnccccpcveceseses 19, 32

Cases and Authorities Cited.

PAGE

Chin Yow vs. U. 8. (208 U. S., 8) .------++-- 31

Church of the Holy Trinity vs. U. 8. (143

U. ., 457) ccc ccc ccccccccccccececsecee 13

Duplex Co, vs. Deering (254 U. 8, 443) .... 27

x parte Fong Yim (134 Fed. Rep., 938) .... 5

Ex parte Hasaye Sakaguchi (277 Fed. Rep.,

ba) >) Bene 5

Fong Yue Ting (149 U. 8., G98) ...----++++- 28

Gegiow vs. Uhl (239 U. 8., BO) cccscsccecs 30

Gonzales vs. Williams (192 U. 8., 1315) .... 31

Harless vs. U. 8. (88 Fed. Rep., 97-102) .... 8

In Re: Chun Teoy Hoy (42 Fed. Rep., 298) . 5, 11

In Re: Ng Look (56 Fed. Rep., 81) ..----- 28

Lau Ow Beu vs. U. 8. (144 U. S., 47) .------ 13

Lewis vs. Frick (233 U. 8., 291-297) ......-- 31

Lionberger vs. Rouse (9 Wall., 476) ........ s

Low Wah Suey vs. Backus (225 U. 8., 460) .. 18

Morrill vs. Jones (106 U. 8., 466) .....----- 22

Nishimura Ekin vs. U. 8. (142 U. 8., 651) .... 31

Opinions of Atty. Gen’l (32-200) .....c000- 10, 31

Pafthian, The (276 Fed. Rep., 903) ........-. 22

Tsoi Sun vs. U. 8. (116 Fed. Rep., 920) ..... 30

U. S. vs. Heth (3 Cranch., 409) ....-.----- 8

U. S. vs. Lee Chee (224 Fed. Rep., 447) ...--. 5

U. S. vs. Laws (163 U. 8., 258) ......------ 13

U.S. vs. Mrs. Gue Lim (176 U. S., 459) ...... 4

U. S. vs. Tod (290 Fed. Rep., 689) ......-. 5

U. 8. vs. Woo Jan (245 U. S., 552) .......-- 19

U. 8. ex rel. D’Amato vs. Williams (193 Fed.

Rep., 228) ...-cccccceccceeeeceeeeeees 30

Upton vs. U. 8. (19 Ct. CL, 49) .....---+++- 12

Yee Won vs. White (256 U. 8., 399) ......... 19

Zartarian vs. Billings (204 U. S., 170) .... 18

Zakonaite vs. Wolf (226 U. S., 272) ......... 31

Statutes and Text Books.

PAGE

Chinese Exclusion Act of July 5, 1884 ...... 4

Cong. Record, Vol. 60, page 2401 ........... 24

Cong. Record, Vol. 60, pages 2892-3455 ...... 25

Cong. Record, Vol. 60, pages 3965-3966 ....25, 26

Cong. Record, Vol. 61, page 500.. ......... 27

Coolidge’s Chinese Immigrant, 224 ......... 30

Emmigration and Immigration, Legislation

and Treaties (Geneva, 1922, pages

CGE dsedndoddéwedes i ixndhe ees ks 10, 11

Geary Act (sec. 2) (149 U. S., 670-691) .... 28

Hearings for 1921 of House Committee on Im-

migration (pages 992-994) ............. 22

House Committee Rep. (No. 4-67) ......... 9, 26

H. R. Rept. (67 Cong., 4th Sess., 1621) ..... 5

Immigration Act of 1917 ............... 5, 6, 21

Opinion of Lacombe J., on Geary Act ...... 29

RED BT 6 cc ccc ccccccessccssstscasess 6, 7, 22

Quota Law (7th Ed., 1922) page 97 ......... 15

Report of Immigration Commission (Dated

December 5, 1910), Vol. 1, page 42 ...... 3

Richardson's Messages of the Pres. (9-436) .. 28

Some Roads Towards Peace (Elliot) ........ 4

Treaty of 1910 (Switzerland & Germany, 361) 11

Treaty with China—November 17, 1880 .... 4

U. 8. Revised Statutes (Secs. 2172 & 1994) .. 18

Supreme Court of the United States

OcToBER TERM, 1923.

COMMISSIONER OF IMMIGRATION

oF Port OF NEW York,

Petitioner,

against No. 221.

GITTEL GOTTLIEB and ISRAEL

GOTTLIEB,

ON WRIT OF CERTIORARI TO THE UNITED STATES

CircuIT CourT OF APPEALS FOR THE SECOND

CIRCUIT.

RESPONDENTS’ SUPPLEMENTAL

BRIEF.

The importance of the questions presented by

the record in this case and the conceded hardship

of a decision adverse to the respondents, are our

justification for presenting additional considera-

tions in support of the conclusions reached in the

District Court and in the Circuit Court of Appeals.

Every effort will be made to avoid repetition, al-

though it may be necessary, incidentally, to refer

to some of the authorities cited in the main brief.

Co Oe les Ea Se ang Ai Ue a male at ee eli ee eee : Sieben bans EDEL erg RE

POINTS.

Giving due consideration to our

past policy, to the provisions oz our

basic Immigation Act of 1917 and to

the Quota Law of 1921, a clear pur-

pose is manifest to avoid the separa-

tion of their wives and chiidren from

those husbands and fathers belong-

ing to the classes enumerated in the

second proviso of Section 2 (d) of the

Quota Law, including ‘ministers of

any religious denomination” who

enter the United States. Such wives

and children are, therefore, admis-

sible as immigrants regardless of

quota restrictions.

There can be no doubt that Congress intended to

afford an exceptional privilege to those enumerated

in the proviso. They were apparently looked upon

as especially desirable immigrants. They include

professional actors, artists, lecturers, singers, min-

isters of religious denominations, professors for col-

. leges or seminaries, and aliens belonging to a recog-

nized learned profession. Naturally they were re-

garded as likely to make valuable contributions to

the moral, intellectual and artistic life of our coun-

try. It could not have been intended, when our

doors were opened to them, that they would be

subjected to the mental anguish and to the suffer-

ing attendant upon separation from their wives and

children. Nor could it have been purposed that

these wives and children should be left behind and

isolated. The breaking up of the families of these

Peek, eee

persons, leaving the husbands to pursue their voca-

tions in the United States and the wives and chil-

dren to languish in other lands and to depend for

their protection upon strangers, could never have

been contemplated by Congress when it conferred

upon these selected persons the right to enter.

In the Brief of the Government, page 4, it is

said :

“We venture the opinion that there should

be such elasticity in the practical administra-

tion of the law as would permit the Commis-

sioner of Immigration to make an exception in

isolated cases, where the enforcement of the

law requires the separation of a family, a re-

sult which seems to us abhorrent.”

It is safe to say that such a result as that which

the Petitioner is seeking to accomplish in the pres-

ent case must have been just as abhorrent to the

members of the Congress which enacted this pro-

viso as it is to the learned counsel who are arguing

for such a result. The welfare of the state is pro-

moted by preserving the unity of the family. The

well-being of the individual is preserved when he

is free to pursue his activities without undergoing

the suffering consequent upon a separation from his

wife and children, and from anxiety for their secur-

ity occasioned by such separation.

In the report rendered to Congress on December

5, 1910, by the Immigration Commission, of which

Senator Dillingham, the father of the Quota Law,

was the Chairman (Vol. I, page 42), the impor-

tance of preserving family life was emphasized, and

the preferability of married immigrants to those

who were unmarried, was dwelt upon.

In 1913, Dr. Charles W. Elliott submitted a re-

port to the Carnegie Endowment for International

7a Sa

Peace, entitled “Some Roads Towards Peace.”

That far-sighted philosopher said:

“The desirable immigrant is the healthy,

strong man who comes to the new land with

wife and children, meaning to settle there for

good. All laws against contract labor impede

family immigration, because a prudent head of

a family wants to know before he starts from

home where he is to earn his family’s liveli-

hood in the new land.”

This merely expresses a truth recognized by

every normal mind. That it has been interwoven

into our immigration legislation will appear by

reference to statutes, treaties and conventions in

pari materia, and to decisions interpreting them.

(1) The Chinese Exclusion Act of July 5, 1884,

read in conjunction with the Treaty with China of

November 17, 1880, affords a striking illustration.

The statute required Chinese, other than labor-

ers, to be identified by certificates issued by the

Chinese Government. Chinese subjects who were

merchants were, under the Treaty, accorded the

right to go and to come of their own free will and

accord. The wives and children of merchants were

not mentioned, either in the Exclusion Act or in

the Treaty. Yet it was held that they were entitled

to come to the United States without the certificate

and to be admitted, because the companionship of

the wife and of the children of a Chinese merchant

were his by natural right and that he should not

be deprived of either unless Congress in clear and

unmistakable terms so provided.

United States vs. Mrs. Gue Lim, 176 U.8.,

459 ;

-—

In re Chun Teoy Hoy, 42 Fed. Rep., 398,

399, 402.

In other words, where an exception was made

in favor of a merchant as a member of a privileged

class, his wife and children were intended to come

within the same privilege even though they were

not specified as members of the class.

(2) This rule was applied to the adopted chil-

dren of Chinese non-laborers.

Ex parte Fong Yim, 134 Fed. Rep., 938;

approved in

United States vs. Tod, 290 Fed. Rep., 689;

United States vs. Lee Chee, 224 Fed. Rep.,

447.

In the first of these cases the Court regarded the

subject as involving not only the right of wife and

child to enter, but of husband and father to have

them join him.

(3) Under the Gentlemen’s Agreement with

Japan it was provided that a husband domiciled

in -the United States might send for his wife.

Under that agreement it was held that, even

though the wife was a laborer and would not have

been entitled to a passport had she sought admis-

sion with the avowed intention of assuming a status

independent of her husband, she was, nevertheless,

entitled to enter.

Ex parte Hasaye Sakaguchi, 277 Fed.

Rep., 913, 915.

O¢ R. Report (67th Congress, 4th Session),

No. 1621, pages 19-23.

(4) Under the so-called literacy test contained

in Section 3 of the Immigration Act of 1917 all

aliens over sixteen year's of age, physically capable

of reading, who could not read the English lan-

guage or some other language or dialect, including

Hebrew or Yiddish, were excluded from admission.

It was, however, provided that any alien thereto-

fore or thereafter admitted “may bring in or send

ace? © oe we whether such

relative can read or not, and such relative shall

be permitted to enter.”

(5) Section 3 of the Act of 1917 likewise con-

tains the provision which the Circuit Court of Ap-

peals in this case held generally applicable, but

which the Government contends relates merely to

those coming from the Asiatic barred zone. By

that clause an exception is made in favor of Govern-

ment officers, ministers or religious teachers, mis-

sionaries, lawyers, physicians, chemists, civil engi-

neers, teachers, students, authors, artists, mer-

chants, and travelers for curiosity or pleasure, and

“their legal wives or their children under sixteen

years of age who shall accompany them or who

subsequently may apply for admission to the

United States.”

If this clause is to receive the interpretation

given to it by the Circuit Court of Appeals, then

it would apply to the wives and children of the

similarly privileged classes of immigrants enumer-

ated in the second proviso of Section 2, subdivision

(d), of the Quota Law, inasmuch as the provisions

of that law are declared by Section 4 to be “in

addition to and not in substitution for the provi-

sions of the immigration laws.”

If that clause, however, relates solely to the enu-

merated classes who shall come from the Asiatic

barred zone, then it is difficult to understand why

the wives and childven of persons of the designated

classes, as, for example, ministers or religious

teachers, shall be admitted as of right, while the

wives and children of ministers of any religious

denomination, specified in the second proviso of

Section 2d of the Quota Law, shall not be

admitted after the exhaustion of the quota of the

nationality to which they belong. It is scarcely

conceivable that the wives or children of a minister

or of a teacher or artist from Afghanistan or Siam

should be admitted, while the wife or the children

of a person of similar occupation from England,

Italy or Palestine should be excluded after the

quotas of the countries named had been exceeded.

Nobody would venture the assertion that the for-

mer are more desirable than the latter or are sub-

ject to more acute suffering, or are endowed with

more profound emotions or are possessed of greater

social needs.

(6) This is an especially significant inquiry

when one considers the fact that, by Section 2 (a)

of the Quota Law, it is provided that that Act is

not to apply at all to eight enumerated categories,

the sixth being “aliens from the so-called Asiatic

barred zone, as described in Section three of the Im-

migration Act.”

If the aliens referred to, who are “not to be

counted in reckoning any of the percentage limits

provided in this act” (the Quota Law), are to in-

} clude the persons having the status or occupations

named in the proviso contained in Section 3 of the

Act of 1917, which immediately follows the clause

relating to the Asiatic barred zone, that would nec-

essarily admit the legal wives or children under

sixteen years of age of the designated persons com-

ing from that barred zone.

Having thus, in the Quota Law itself, declared

that the wives and children under sixteen years of

age of ministers or religious teachers coming from

the Asiatic barred zone shall be admitted, it would

be ludicrous to attribute to Congress any different

intention with respect to the wives and children of

ministers of religious denominations coming from

countries outside of the barred zone. ,

The injustice resulting from such aon oronee

should be avoided.

Lionberger vs. Rouse, 9 Wall., 476.

See also

Harless vs. United States, 88 Fed. Rep.,

97, 102.

The words of Mr. Justice Johnson in United

States vs. Heth, 3 Cranch., 409, are impressive:

“* * * Where it can be shown, that a

government has once adopted a certain rule

of justice for its conduct, it is fair to infer

that, in legislating afterwards upon the same

subject, it intended to pursue the same rule,

unless the contrary shall be clearly expressed.”

Mr. Justice Washington said (page 411):

“The change of expression in the latter law,

I take to be perfectly accidental.”

(7) As further indicative of a solicitous purpose

to provide for the wives and children of immigrants,

weight should be given to the last proviso of Sec-

tion 2 (d) of the Quota Law, which, dealing with

the general mass of immigrants who do not belong

to any of the privileged classes previously enumer-

ated, provides “that in the enforcement of this Act

preference shall be given so far as possible to the

wives * * * children under eighteen years of

age and fiancees * * * of aliens now in the

United States who have applied for citizenship in

the manner provided by law.”

(8) Returning to the Immigration Act of 1917,

attention is now directed to Section 22, as indicat-

ive of a tender consideration for immigrants and

their wives and children. It provides:

“That whenever an alien shall have been

naturalized or shall have taken up his perma-

nent residence in this country, and thereafter

shall send for his wife or minor children to

join him, and said wife or any of said minor

children shall be found to be affected with any

contagious disorder, such wife or minor chil-

dren shall be held, under such regulations as

the Secretary of Labor shall prescribe, until

it shall be determined whether the disorder

will be easily curable or whether they can be

permitted to land without danger to other per-

sons; and they shall not be either admitted or

deported until such facts have been ascer-

tained; and if it shall be determined that the

disorder is easily curable and the husband or

father or other responsible person is willing to

bear the expense of the treatment, they may

be accorded treatment in hospital until cured

and then be admitted, or if it shall be deter-

mined that they can be permitted to land with-

—<—<—<_-. . )

out danger to other persons, they may, if

otherwise admissible, thereupon be admitted.”

See

32 Opinions of Attorney-General, 209.

(9) As indicative of the same idea as to the non-

separation of husbands from their wives and chil-

dren, we direct attention to a number of foreign

treaties and conventions bearing on the subject.

Thus from a recent compilation prepared by a

Commission on Immigration appointed by the

International Labor Office, entitled “Emigration

and Immigration, Legislation and Treaties,” Ge-

neva, 1922, we excerpt the following passages :

“In the course of recent years, international

agreements concerning emigration have devel-

oped to such an extent that it is no longer pos-

sible to neglect them; laws and treaties now

form an indivisible whole” (page xi).

“In practice, these provisions (seven preced-

ing classes of regulations concerning immigra-

tion) are not always applied in a very rigid

manner, and there are in most laws clauses

which permit of exceptions being made, The

application is much more important than the

text itself. * * * Many exceptional clauses

facilitate the reunion of families. Wives,

minor children, old parents or other members

of the family or friends specified by the immi-

grants, are received either by way of exception

to the ordinary law, or under special condi

tions” (pages 218-19).

Examples in point from which this general state-

ment is deduced are specified. For example, the

term “immigrant” is expressly defined to include

Fea EMER, NER RR MERE ND CS IPE LU 9 Ne

PH. EUNET ETE

wife and child in the following among other coun-

tries, according to the definitions reprinted (pages

155-159): Austria (page 156); Canada (page

157), as to officers and men connected with his

Majesty’s regular naval and military forces; Mex-

ico (page 158). So, also, the term “emigrant” is

in various countries expressly defined to include

the families of such person (page 2 et seq.) :

Czechoslovakia (page 2); Finland (page 3); Po-

land (page 7).

In several recent special immigration treaties

between different countries the family’s right to

accompany the immigrant is expressly provided for

(see pages 342-344 for Franco-Italian Treaty of

1919, etc.). The Belgian treaties for repatriation

with Germany, Italy and Switzerland of 1887, 1890

and 1896 in terms provide (page 393) :

“Tn the case of repatriation, wives shall not

be separated from their husbands nor children

from their pareats, except in the case of per-

sons treated or maintained by means of public

funds.”

The treaty of 1910 between Switzerland and

Germany (page 361) to the same effect, is typical,

and the general conclusion is expressed (page

361):

“The country of origin undertakes to receive

its nationals at any time, provided that they

have preserved their rights of nationality.

This obligation usually includes the family of

the person expelled.”

See also, opinion of Judge Deady, in Chun Teoy

Hoy, 42 Fed. Rep., 398, 399.

ee ae ee eae, eT ee eee te ae

(10) Section 2 (a) of the Quota Law also enu-

merates as a class of immigrants who are not to

be counted in reckoning any of the percentage

limits provided in the Act:

“gS Aliens under the age of eighteen years

who are children of citizens of the United

States.”

In this connection we may be permitted to call

attention to the fact, as illustrative of the inac-

curacies and inconsistencies to be found in the

Act, that in the last proviso of Section 2, subdivi-

sion (d), children under eighteen years of age of

citizens of the United States and of alien declar-

ants are among those to whom preference merely is

given in the enforcement of the Act. Is it, there-

fore, especially significant that, in the previous

proviso of the same section, no reference is made

to the wives or chikiren of the privileged classes,

which include “ministers of any religious denomi-

nation”? Hasty draftsmanship is a sufficient ex-

planation.

“In this country, where statute law is the

hurried work of over-busy individuals, very

little importance can be attached to accidents

of phraseology.”

Upton vs. U. 8., 19 Ct. CL, 49.

(11) The fact that, in the second proviso of Sec-

tion 2 (d) of the Quota Law, “aliens employed as

domestic servants” are to be admitted, just as are

ministers of any religious denomination and other

professionals, even though the maximum number

of aliens of the same nationality shall have entered

the United States, naturally gives rise to the infer-

ence that Congress must have intended that the

wives and minor children of such professionals were

also admissible. There is an infinitely stronger

eS ee ee ee —

reason, based on public policy and the dictates of

humanity, for admitting wives and children than

for admitting domestic servants. It would be the

very irony of fate, or rather the height of absurdity

if a minister of religion coming to this country

with his wife, his child and a domestic servant,

were admitted with the servant, while his wife and

child would be excluded because the quota limits

had been reached. That was one of the considera-

tions which impressed this Court in United States

vs. Mrs. Gue Lim, supra. The words “together with

their body and household servants,” contained in

the Treaty with China there under cousideration,

led to the conclusion that, although the wives and

children of merchants were not mentioned, it must

have been intended to include them, by necessary

implication, in the Treaty.

In the course of the Government’s Brief various

arguments are adducew which we regard as falla-

cious and will now briefly consider:

(a) The Government's argument is based largely

on the absence from the second proviso of Section

2 (d) of the Quota Law of a reference to the wives

and children of the persons therein mentioned.

This is merely an effort to apply the expressio unius

rule to this statute. In view of the decisions in

United States vs. Mrs. Gue Lim, supra, Church

of the Holy Trinity ws. United States, 143 U. S.,

457, Lau Ow Bew vs. United States, 144 U. S., 47,

and (nited States vs. Laws, 163 U. 8., 258, 265,

there is no potency in its application here.

(6) The petitioner's brief, in attempting to mini-

mize the argument that the wives and children of

the persons enumerated in the second proviso of

Section 2(d) are to be deemed included in its

terms, calis attention to the fact that among the

a Re EE RET ITY AS OAT IMO MILT OE

classes specified are “nurses” and “aliens employed

as domestic servants.” i vom this it is contended

that if the husbands, wives or children of “nurses”

and “domestic servants” were to be regarded ipso

facto as admissible immigrants, it would tend to in-

crease the quota limits indefinitely.

The argument proceeds on an erroneous inter-

pretation of the words referred to. These two

classes are to be found among those specified in the

fourth proviso of Section 3 of the Immigration Act

of 1917, which relates to contract labor and which

declares the contract labor clause inapplicable to

“professional actors, artists, lecturers, singers,

nurses, ministers of any religious denomination,

professors for colleges or seminaries, persons be-

longing to any recognized learned profession, or

persons employed as domestic servants.” These

are the identical classes mentioned in Section 2(d)

of the Quota Law of 1921, here under consideration.

Reference to the Immigration Rules which were

adopted on May 1, 1917, and which were in force

at the time of the enactment of the Quota Law,

enables one to appreciate what must have been

understood by Congress as covered by these two

categories at the time of such enactment.

Rule 27, Subdivision 2, on the subject of alien

’ contract laborers, reads as follows:

“Subd. 2. Eavemptions. Aliens falling

within the foregoing definition may be ad-

mitted to the United States, however, upon

presenting satisfactory evidence that they are:

(a) Professiona! actors;

(b) Professional artists;

(d) Professional singers;

(€) Professional nurses (i.e., trained nurses

holding diplomas from recognized nurses’

training schools or hospitals) ;

PEELE EE PPL II 2 RON PNG HT RICE IVIMS

(f) Ministers of any religious denomina-

tion ;

(yg) Professors for colleges or seminaries ;

(h) Persons belon

ging to any recognized

learned profession ;

(t) Persons employed as domestic servants

(i.¢., employed in household affairs, as distin-

guished from work not immediately connected

with the conduct of a family establishment,

and as distinguished from personal service

such as that rendered by valets and ladies’

maids) ;”

This demonstrates how unfounded is the fear

that our interpretation of the statute would ap-

preciably increase the number of immigrants. It

' would not precipitate a flood of immigration.

This is made even more certain by the Immigra-

tion Regulations approved by the Secretary of

Labor and adopted under the Quota Law, as shown

by the Seventh Edition of the Rules, page 97, pro-

mulgated in August, 1922, by which it is provided

under Subdivision (b) of Rule 2:

“Aliens employed as domestic servants. Do-

mestic servants, for the purposes of the Act,

are those only who have actually been em-

ployed, either in the United States or an y for-

eign country, in the household of the person

or persons accompanying them or to whom

‘destined in the United States, coming for the

purpose of continuing such employment.”

(¢) Nor is ther@any virtue in the contention

that it is the husband coming to this country, who

is responsible for the separation which has oc-

curred in his family, and that it is not the opera-

tion of our laws but his own act which has created

the hardship of which complaint is made.

We are merely dealing with a class of immi-

grants who, by express provision of the statute, are

Barren exec ems nn pee ene ete So NNNN A AN NE Nee

permitted to enter regardless of the Quota Law.

As to them, we conteuu that the right granted

implied immunity from enforced separation of the

admissible class of immigrants from their families.

The fact. that these immigrants were given the un-

conditional right to enter the United States, indi-

cates that Congress in conferring such privilege

considered itself as giving expression to a sound

principle of public policy and as believing that

the admission of the enumerated classes promoted

the public welfare. Otherwise they would not have

been singled out for special consideration. That

negatives the idea that it could have been contem-

plated that the persons thus virtually invited to

come, were to be deprived of the companionship

of their wives and children*and were to be charged

with what is the equivalent of their wilful abandon-

ment, if they were not adutitted by reason of the

rigorous application of the Quota Law.

In the present case, Rabbi Gottlieb arrived here

in 1920, before it was supposed that the quota prin-

ciple would be incorporated into our law. He

could not have anticipated that his wife and child

would be debarred_ from entering for any such

reason as that Wes urged by the petitioner. On

May 10, 1921, he made a declaration of intention

to become a citizen of the United States (Rec.,

fol. 51). From the time of his arrival he con-

tributed to the support of his wife and child

out of his earnings. He entered into a contract

with a religious corporation to preach for it dur-

ing a term of three years (Rec., fols. 48-51). He

sent money to his family to bring them to the

United States, and on May 19, 1921, a passport

was issued to them by the Government of Palestine,

and was visaed by the American Consul at Jeru-

salem on May 23, 1921. They departed from Jeru-

EP LENT IT NE EE ONT POSE EON

salem eight days after the passport was visaed,

proceeded to Alexandria, whence they sailed to

Marseilles and were detained for six months in

France in an effort to secure transportation, al-

though they had been supplied with steamship

tickets (Rec., fols. 43-46). The Quota Law was

not enacted until May 19, 1921.

To say, under these circumstances, that Rabbi

Gottlieb has been responsible for the effort made

by the Commissioner of Immigration during the

past two years to deprive him of his family, merely

adds the poignancy of injustice to the bitterness

of his suffering.

(d) Nor is it a sound argument to assert that

the exclusion of the respondents because the quota

for 1921 had been exceeded at the time of their

arrival, would not prevent their making an effort

to enter during the next fiscal year or some year

thereafter, and that the exclusion was not a perma-

nent one.

In view of the fact that the total quota for Pales-

tine is approximately 50 and that that quota might

be exceeded in any year, or for that matter, in

any month, while the respondents were on their

way to the United States from a foreign port,

it would afford them but little solace to be in-

formed that they might try again in another year.

In the meantime there are pending before Congress

a number of bills by which it is sought to reduce

the quotas; and there are even those who are advo-

cating a total prohibition of immigration, and are

thus adding to the difficulties encountered by those

who are yearning for a reunited family group. It

is not believable that Congress had it in mind to

confer upon the families of the privileged immi-

grants such tender mercies as those dangled before

their hungry hearts by the petitioner.

Sot

(e) The decisions principally relied upon by the

petitioner are inapplicable here.

Zartarian vs. Billings, 204 U. 8., 179, merely

held that a child of a naturalized citizen of the

United States who was born abroad prior to such

naturalization, arr’ving here, but not permitted to

land because she was afflicted with a dangerous

contagious disease, was not entitled to admission

because of the prohibition contained in the Immi-

gration Act. That seemed to involve a brief separ-

ation only, of parent and child.

It was likewise decided that she was not to be

regarded as a citizen of the United States because

of the express limitation contained in Section 2172

of the United States Revised Statutes, that it was

only children of a naturalized citizen “themselves

dwelling in the United States” who became citizens

as a result of their father’s naturalization.

By Section 22 of the Immigration Act of 1917

such diseased children may now enter temporarily

under certain conditions.

Low Wah Suey vs. Backus, 225 U. 8., 460, was

the case of a Chinese woman who could not be

naturalized and who came to the United States

after her marriage in China to a citizen of the

United States. She acquired no status as a citizen

because so married by reason of the limitations

contained in Section 1994 of the United States

Revised Statutes. It was found that, after her ar-

tival here, she had violated the privilege of the

Immigration Act by being in a house of prostitu-

tion. It was held that her marriage did not afford

her immunity ; and the case was distinguished from

United States vs. Mrs. Gue Lim (supra) on obvious

grounds, which are equally applicable here.

Yee Won vs. White, 256 U. S., 399, 402, was the

case of the wife and minor children of a Chinese

person who had been originally admitted io the

United States as the son of one who at the time of

entry was a merchant. He was therefore admissible

under the decision in United States vs. Mrs. Gue

Lim (supra). He subsequently changed his status

and became a laborer, and then returned to China,

where he married and had two children. He then

returned to the United States with his wife and

minor children. It was held that his change of

status brought them outside of the scope of the de-

cision in the case cited.

II.

The Quota Law does not authorize

deportation because at the time

when the immigrant arrives the

quota assigned to his nationality has

been exceeded.

The Quota Law is silent as to the consequences

resulting from the existence of an excess of immi-

grants over the maximum number assigned to their

respective countries. It does not purport to amend

the Immigration Laws. It is merely an addition

to and not in any way a substitute for them. It

does not make the administrative provision of the

Immigration Act applicable to the excess quota

cases,

United States vs. Woo Jan, 245 U. S., 552.

Section 18 of the Immigration Act of 1917 con-

tains a provision for deportation “unless in the

opinion of the Secretary of Labor immediate de-

portation is not practicable or proper.” Section

19 contains provisions for deportation in various

contingencies which have no application here. See-

sah de la SAL ae ee

tion 21 provides for the giving of a bond in certain

other cases in order to stay deportation.

Even if Section 18 of the Act of 1917 were to

apply to cases of quota excesses, it would only be

subject to the qualification just referred to, “un-

less in the opinion of the Secretary of Labor in-

mediate deportation is not practicable or proper.”

It would also be subject to the condition con-

tained in the eighth proviso of Section 3 of the Act

of 1917:

“Provided further, that the Commissioner

General of Immigration, with the approval of

the Secretary of Labor, shall issue rules and

prescribe conditions, including exaction of

such bouds as may be necessary, to control and

regulate the admission and return of other-

wise inadmissible aliens applying for tempo-

rary admission.”

The right of the Secretary of Labor with judi-

cial approval to bond immigrants, even in the ab-

sence of an express statute, has long been exercised

as an inherent power possessed by him.

A fact even more significant is that Section 9 of

the Act of 1917, which penalizes steamship com-

panies for bringing aliens to the United States

whom they should have known to be inadmissible,

was not extended to cover excess quota cases by

any provision contained in the Quota Law of 1921.

A provision relating to the subject was, however,

enacted by the Act of May 11, 1922, long after the

decision by the District Court in this case. How

could the immigrants possessed of passports duly

vised by Consuls of the United States, know

whether or not at the time of their embarkation the

quotas assigned to their countries had been ex-

hausted or were approaching exhaustion? The

Commissioner General of Immigration officially re-

ported, under date of September 23, 1921, that

steamship companies could not be fined under the

general provisions of the Act of 1917. He said:

“The department has not endeavored to

penalize steamship companies by levy ing ad-

ministrative fines against them for bringing to

ports of the United States aliens in excess of

the quota limits of the act referred to; this

for the reason that said act contains no pr ovi-

sion authorizing it to do so, and there is no

fine or penalty provided in the general immi-

gration act (Act of Feb. 5, 1917) to which the

Act of May 19, 1921, is an addition, which can

possibly be constr ued as applicable. moat

The said Act makes no provision, however, iss

penalizing (either administratively or other-

wise) steamship companies which bring aliens

to the United States who are found to be inel-

igible for admission on other (and general)

grounds. * * * There are now at some of

our ports immigrant-laden vessels which, judg-

ing from present indications, will merely re-

main in port until the beginning of a new cal-

endar month, when they will seek to discharge

their alien passengers to the prejudice of

aliens on other vessels, which have so timed

their sailing as to arrive at, or shortly after

the beginning of the month. * * * The de-

partment has no particular reason to believe

that some (at least) of the steamship com-

panies will not continue to bring them without

particular regard to the question of whether

or not they will be admitted. * * * The

present disposition of the department is to

charge the October quotas with these admis-

sions (aliens admitted by the department

under bond temporarily, though in excess of

quotas), although there is the possibility that

it will see fit to charge them against the quotas

of some other month or months. * *

When the total amount of immigration per

missible from some of these countries (coun:

tries with annual quotas ranging between 22

and 663) is divided into monthly allotments

(as is necessary to do under the terms of the

Act), it becomes apparent that even a moder-

ate sized family would not be admitted all at

one time—it would be necessary to return

some of the members thereof, leaving them. the

option of remaining abroad or endeavoring

again to reach a port of this country in a sub-

sequent month before the quota for that month

shall have become exhausted. * * oe

would be of aid to the department in the mat-

ter of the enforcement of this law and would

render more just and equitable its application

to some of the smaller countries * * 7a

a change were made in its provisions which

would permit of a larger immigration from

these countries. * * * It is suggested that

this minimum number be fixed at 1200.”

Hearings for 1921 of House Committee on

Immigration, pages 992-994.

Although there have been deportations under the

Quota Law, on the ground that the quotas have

been exceeded, they have been effected under a de-

partmental regulation, not authorized by statute,

reading :

“When the maximum number of aliens of

any nationality who may be admitted in any

period under this Act shall have been admitted

all other aliens of such nationality, except as

otherwise provided by said Act, who may apply

for admission during that period shall be re-

ferred to a board of special inquiry for appro-

priate action.”

By this administrative fiat the general provisions

of the Act of 1917 have been attempted to be ap-

plied to excess quota cases. This, it is believed, is

illegal.

Morvill vs. Jones, 106 U. 8., 466;

The Parthian, 276 Fed. Rep., 903.

A critical examination of the Quota Law shows

that it is not only devoid of a provision for depor-

tation, couched even in the vaguest terms, but, with

a single exception, that it uniformly speaks only

of “aliens who may be admitted.” That phrase is

found at the beginning of Section 2 (a) and of

Section 2 (d) ; and at the end of the first sentence

of the latter section, by way of antithesis, there

occur the words “shall be excluded.”

It will naturally be borne in mind that although

aliens of a particular nationality may sail from

countless foreign ports to numerous American

ports, in vessels flying various flags, the statute is

silent as to how quota distribution shall take place

as between the different ports. It has been impos-

sible for any one to ascertain in advance whether

on arrival at any of our ports the quotas for any

particular country have been exceeded or not. Nor

is it possible to foretell which of the various pas-

sengers arriving here on the same vessel or at the

same time are to be deemed admissible, and at what

instant. cf time the quota limits will have been

reached. It has sometimes been a matter of sec-

onds as to whether the passengers of one vessel are

to be admitted and those of another to be declared

non-admissible, although both arrived on the same

day and the fortunate vessel may have sailed sev-

eral days later than that whose passengers have

been, so to speak, regarded as “excess baggage.”

Section 3 of the Quota Law contains provisions

which require the Commissioner General of Immi-

gration to publish certain statistics relative to the

number of aliens of the various nationalities who

may be admitted to the United States, and monthly

statements showing the number of aliens of the na-

tionality already admitted during the then current

fiscal year and the number who may be admitted

under the provisions of the Act during the remain-

der of the year, and when seventy-five per cent. of

the maximum number of any nationality admis-

sible during the fiseal year shall have been admit-

ted such statements are to be issued weekly there-

after. The Secretary of Labor is required to sub-

mit these statements to the Secretary of State,

“who shall transmit the information contained

therein to the proper diplomatic and consular of-

ficers of the United States, which officials shall

make the same available to persons intending to

emigrate to the United States and to others who

may apply.”

In spite of the vagueness of this provision, it was

clearly intended to make it possible for our Consuls

abroad to prevent excess quotas and thereby to

avoid hardship to the intending immigrants by lim-

iting the number of visas affixed to passports pre-

sented to them.

The Court will take judicial notice that from the

time when we entered into the European war no

aliens could come to this country except with pass-

ports visaed by our consular officers abroad. This

was accomplished by the terms of Section 1 of the

Passport Act of May 22,1918. That law was made

a part of our permanent legislation by the Act of

March 2, 1921 (41 St. L., 1217).

The Permanent Passport Law had been favor-

ably reported by the House Foreign Affairs Com-

mittee on January 31, 1921, about two weeks be-

fore the Quota Law was reported in the Senate.

This report emphasized the desirability of prevent-

ing deportations here by the sifting of immigration

abroad (Cong. Record, Vol. 60, page 2401; House

—

Report No. 1280 of the 66th Cong., 3rd Session).

To ensure its passage, the Senate ¢ ‘ommittee made

the proposed law a rider to the “Diplomatic and

Consular Appropriation Bill,” reported on Febru-

ary 10, 1921. It passed the Senate on February

18, 1921; was accepted by the Conference Commit-

tee and duly approved by President Wilson March

2, 1921, becoming Public Act No. 357 (Cong. Reec-

ord, Vol. 60, pages 2892, 3373, 3374-18, 3801, 3999

and 14, 3859, 3896, 3841).

When the Quota Act was under consideration,

Senator Colt, Chairman of the Senate Committee

on Immigration, alone discussed the method of

winnowing out the inadmissibles under this meas-

ure. On February 19, 1921, when it was not vet

certain that the Passport Law would become per-

manent legislation, he said (Cong. Record, Id.

page 3455):

“Selection must largely be at the source. It

may be a matter of diplomatic regulation,

through the consuls and the immigration com-

missioners of foreign countries * * ".. - OF

course, we could say we might do it under the

visa system.”

After the bill passed the Senate, it was acted

upon by a Conference Committee: which reported

(Cong. Record, page 3965) :

“Provisions of treaties, conventions and

agreements with various countries are not dis-

turbed by the bill as amended.”

In the House, Mr. Johnson, Chairman of the

House Committee on Immigration, in charge of

the bill and a member of the Conference Committee,

in the course of the debate said (Id. page 3966) :

“The in free provision under certain condi-

tions is necessury to prevent possible individ-

ual hardships, and answers criticisms on that

score. Jt is not planned to shut out by ones

and twos those who have arrived at our gates,

and who pass all the other immigration re-

quirements. Gentlemen wili notice ihe clause

which provides that not over twenty per cent.

admitted in a year may come ina month, It

is that to which I have just been referring.”

After President Wilson’s pocket veto of the

Quota Law, when first passed, practically the iden-

tical bill was re-introduced and passed on May 19,

1921, at the special session of Congress, Meantime,

as we have shown, the Passport Act had been made

permanent, and the House Committee report (No.

4 of the 67th Cong., Ist Session, dated April 19,

1921, page 8), points out that it was then incident-

ally recognized that the quotas were to be regu-

lated through our consuls abroad. It was there

stated :

“Provisions of treaties, conventions and

agreements with various couutries are not dis-

turbed by the bill. Should any country which

has made an agreement with respect to the

limiting of immigration elect to act under the

provisions of this bill, and give passports to

its nationals to the number of three per cent.

of its people in the United States on the census

of 1910, that step would itself end the agree-

ment.”

During the debate in the House, Chairman John-

son, who was in charge of the measure, on April

20, 1921 (Cong. Record, Vol. 61, page 500) an

swered an inquiry as follows:

“Mr. Sinnott: ‘In case more than three per

cent. applied to come to our country from some

joreign country, im case, say five per cent.

apply, who makes the selection of the three per

cent.?”

Mr. Johnson of Washington: ‘/ncoming

aliens come with passports. They must have

passports from their Governmenis and vises

of those passports by our consular agenis.

Should there be a surplus from any couwiiry

undertaking to seek passport vises, the con-

sular agent at that particular place would

have, on the information here of the number

which can be received, to refuse further vises.’

Mr. Sinnott: ‘Would the consular agent

calculate on the three per cent. from the for-

eign country?’

Mr. Johnson of Washington: ‘No. His

power to vise would not go beyond the number

that might be permitted to proceed to the

States. ”

Resort to these statements made by those in

charge of the bill, on its passage, in the course of

the debates, which is permissible (Duplea Co. vs.

Deering, 254 U. S., 443, 474, 475), makes it abso-

lutely clear that Congress had no idea that deporta-

tions for mere excess of annual or monthly quotas

were to take place from our shores from among

holders of visaed passports. That was attempted to

be accomplished solely by the departmental regula-

tions, which were not authorized by the statute. It

is, moreover, significant, that the construction con-

tended for, to make consular action conclusive as

to quota limits, is precisely in line with new bills

to extend this Quota Act, through “consular cer-

tificates” provided for, as reported by the House

Committee on Immigration on February 15, 192:

(House Report No. 1621, of 67th Cong., 4th Ses-

sion, page 15) and February 9, 1924 (House Re-

port No, 176 of 68th Cong., Ist Session, page 5).

An authoritative and important decision under

the Chinese Exclusion Laws, gave relief under

somewhat similar circumstances, even where the

beneficiaries were not the innocent and hapless vic-

tims of others, as is the case here.

As is well known, nearly all the Chinese in the

United States in L892, refused to register under

Section 6 of the Geary Act of that year, having been

advised by distinguished counsel that the Act was

unconstitutional. In conseqence, more than 90%

of the 100,000 Chinese in the United States were

subject to deportation when that anomalous law

was sustained by a divided court in the Fong Yue

Ting case (149 U.S., G98) on May 15, 1895, shortly

after the time to register had expired. Although

they had been recalcitrant, and not merely as the re-

spondents here, the unfortunate victims of an un-

toward fate, they had been misled. President Cleve-

land thereupon urged Congress to afford further

time for registration (9 Richardson’s Messages of

the Presidents, 4536), and Congress adopted his sug-

gestion on November 3, 1893. Meantime, however,

deportations would have taken place between May

and November, but Judge Lacombe in the U. 8.

Circuit Court for the Southern District of New

York, held in habeas proceedings that the statute

which contained the provision, “ordered that he

(the unregistered person), be deported from the

United States as hereinbefore provided,” was too

indefinite to authorize deportation.

In re Ng Look, 56 Fed. Rep., 81.

In an earlier provision of the Geary Act, Section

2 (copied in 149 U. S., 670 at 691), Congress had

provided that persons convicted or adjudged to be

not lawfully entitled to be or remain in the United

States “shall be removed from the United States

to China, unless he or they shall make it appear

* * * that he or they are subjects or citizens of

some other country, in which case he or they shall

be removed from the United States to such coun-

try,” with a further proviso that deportation

should be to China, if such other country demands

a head tax as a condition of entry of Chinese into

it. Section 4 (id. page 700) also provided for

sentence of hard labor for not over a year, and

removal thereafter from the United States as here-

inbefore provided.”

On deciding in May, 1893, that the yeary Law

provision for deportation was too indefinite to be

enforced Judge Lacombe said:

“The sixth section says that it shall be the

duty of the judge ‘to order his deportation

from the United States as hereinbefore pro-

vided.’ Examination of the prior sections of

the act, however, discloses no provisions for

such deportation. The most that I can do,

therefore, is to order his deportation whenever

provision shall be made for the same by the

proper authority—presumably, by Congress—-

though some other act, to which my attention

has not been called, may contain sufficient pro-

vision for this, in which case ao further legis-

lation would be needed. TI find no provision

authorizing the United States Judge, in such

cases, to order the person found without certi-

ficate to be imprisoned for an indefinite time,

while awaiting deportation, and therefore

shall discharge him from immediate custody.

This order will presumably be sufficient war-

rant for his future removal, when some proper

officer appears, charged with the duty, and

clothed with the authority, so to remove him.”

Attorney General Olney acquiesced in J udge La-

combe’s opinion, and no deportations took place

except of persons who subsequently did not comply

with the Amendatory Act of November 3, 1893,

which conferred six months more time for registra-

tion. (See also Coolidge’s Chinese Immigration,

page 224 et seq., for a detailed account of this

incident. )

In an important decision concerning “alleged

stowaways,” which was accepted by the Immigra-

tion authorities, U. S. ex rel. D’Amato vs. Wil-

liams, 193 F., 228, it was held that Congress did

not intend deportation of innocent persons, coming

over here in good faith, without knowing that some

provision of the Act was being unconsciously vio-

lated. Judge Learned Hand said:

“The special provision laid down for the en-

forcement of manifests, which contain no pro-

vision for deportation, seems to me to indicate

that Congress meant to limit the first words

of Sec. 19 to the excluded classes mentioned in

Sec. 2. * * * Jam not inclined to visit the

sins of the ship’s master upon the aliens, pro-

vided they are not in privity with him.”