Opposition Brief — Pearson v. Williams

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An the Supreme Court of the United States,

OcroBer Term, 1904.

PreTER PrAnsoN anv ENocn PEARSON, »

petitioners,

v. \ ae:

WintntamM WILLIAMS, ComMIssioONER of 7"

lnunivrationat the port of New York,

respondent,

BRIEF IN OPPOSITION TO THE PETITION FOR

CERTIORARI.

THE FACTS.

The petitioners and one John Wakefield, subjects of

Great Britain, came from England to the United States

and applied for admission at the port of New York on

February 1, 1904. Because of confidential informa-

tion theretofore received the immigration officers held

the applieants for examination by the Board of Special

Inquiry. The testimony before the board was to the

effect that these persons were lace workers and weavers

from Nottingham, England. They denied having come

to the United States under contract to labor or under

promise of labor, although Peter Pearson admitted

(Ree., p. 16) that he had been invited to come here by

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one Joseph s, Lesser, whom he had known for perhaps

twenty years (having frequently met him in England),

Lesser being the owner of a factory for the manufae-

ture of lace curtains, located at Gouverneur, St. Law-

rence County, N. Y., with an office in the city of New

York. They claimed they were going to Wilkesbarre,

Pa., to visit a brother of the Pearsons, although as to

one or two of them, the manifest of the vessel showed

they were going to Gouverneur, N.Y.

While their testimony was contradictory in certain

particulars, the board not fecling justified in excluding

them admitted them, but kept them under surveillance

to await developments. After being admitted they

went direct to Gouverneur and were put to work in

the factory of Lesser, where they were arrested while

at work, about two months after their admission.

It appears trom the record of the proceedings upon

the hearing to deport them, that immediately after their

admission they went direct to Lesser’s office in New

York, where, Upon a promise by Lesser, as they say,

to pay their expenses to his factory and back, if they

Were not satisfied, they went to Gouverneur to obtain

work in his factory. Lesser admits this promise and

alse sdmits that he did, in fuet, pay their expenses

to his factory, and that he sent them in charge of one

of ‘his employees. His explanation is that he feared

if they went to Wilkesbarre they would obtain em-

ployment in the lace factories at that place and would

not return; and as he was very much in need of

laborers, he persuaded them not to go there. The

Withesses were examined separately, and their testi-

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mony fails to agree in a number of particulars. — Afti-

davits and statements of other persons were taken

As a result the board found they were in this country

unlawfully. The Secretary of Commerce and Labor

approved that finding and ordered the deportation of

petitioners as alien contract laborers. (Ree., pp. 151,

152, 169.)

As this court will not review the sufficiency of the

testimony in cases of this character (Chin Bak Kan vy.

U.S, 186 ULS., 193,201: The Japanese Immigrant Case,

189 U.S., 86), a detailed statement of the evidence is

deemed unnecessary. Counsel for the petitioners con-

cede this proposition (brief, prop. 11, p. 39).

Upon the issuance of the order of deportation the

petitioners sued out a writ of habeas corpus in the Cir-

cuit Court of the United States for the Southern Dis-

trict of New York. Upon hearing, the writ was

granted and the petitioners were discharged. (Ree.,

p- 148.) The Government appealed from this order

to the Cireuit Court of Appeals, which court reversed

the order of the Cireuit Court and remanded the

petitioners to the custody of the immigration officers

tor deportation. (Ree., p. 189.) Thereupon applica-

tion was made for the writ herein prayed for.

THE LAW.

The sole question in the ease is whether the Secre-

tary of Commerce and Labor had authority to order

the arrest and deportation of the petitioners, they

having been admitted after a hearing and a tinding in

their favor by the Special Board of Inquiry.

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The petitioners insist that the action of the rand

of Special Inquiry in wimitting them is final, and that

no authority exists in wy officer to cause their Test

and deportation. On the other hand the Government

contends that that aetion is net final and ean have ne

other effect than te permit the admission of an alien,

and in ne Way estops the Secretary from exercising

the power viven him bY sections 20 and 21 of the aet

of Mareh 3, 103 (32 Stat » 1213), to cause their arrest

and deportation, if he finds, as nutter of fet, thar

they are in the country in violation of law

contract laborers.

» as alien

The Cireuit Court, in discharging the petitioners,

based its conclusion W holly pon What it conceived to

be a material change in the language of the vet of

Mareh 3, 1903 (92 Stat, 1213), from the

prior law of

August 18, 1894 (28 Stat., 390),

The provision of the

aet of IS94, under consideration, is as follows:

In every case where an alien is excluded

froin admission inte the United States under

Hav law or treaty now existing or horeatter

nile, the decision of the Appropriate immigra-

tion or eUstoms officers, jf tulverse te the

adinission of such alien, shall he final, unless

reversed on Appeal to the Seeretary of the

Treasury [now the Secretary of Commerce and |

Lathor}

Section 25 of the act of March 3, 1903, Which, it is

Claimed, materially changes the act of 1804 ahove

quoted, reads as follows ;

Such boards (of special inquiry) shall have

authority to determine whether an alien whe

h

has been duly held shall be allowed to land or be

deported; © * * and the decision of any

two members of a board (which is to consist of

three members) shall prevail and be final, but

either the alien or any dissenting member of

stid board may appeal * * * te the See-

retary of the Treasury, Whose de cision shall then

he final,

It is to be observed that the question the board is

empowered to decide is whether the alien shall be al.

lowed to land: and it is with respec to this question

that the decision of the Secretary is made final,

The provisions of earlier laws Upon this point are

the following:

Section & of the act of Marelh 3, 1891 (26 Stat., 108.1),

atter providing for the deteution aud examination of

any alien, contained this prow ision:

All decisions inale ly the inspection officers

or their assistants fouching the right of any alien

‘ to land, when adverse to such right, shall be

final unless appeal be taken to the superintend-

ent of immigration, whose section shall be subject

to review by the Secretary of the ‘Treasury,

And section 5 of the act of Mareh 3, 1893 (27 Stat.,

| 569), contained this provision :

And ne immigrant shall be admitted on spe-

cial inquiry exeept after a favorable decision

made by at least three of said inspectors; and

any decision to admit shall he subject to appeal

by any dissenting inspector to the superintend-

ent of immigration, whose action shall be sub-

ject to review by the Secretary of the Treas-

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Ury, as provided in section 8 of said immigration

act of Mareh 3, 1891.

It will be noticed that in these acts of IS91 and 1893

there is ne express provision that the decision of the

Secretary shall be tinal: and it is contended that be-

Cruse the words “whose decision shall then be tinal”

were added to the corresponding provision in the act

of 1903, the effect is to forever cut off all right on the

part of any officer of the United States to expel an

alien who has secured admission by reason of his false

statements to the immigration Officers,

In each of the foregoing sections the question to. be

decided is whether the applicant shall be permitted

te land. Upon that question the decision of the Sec-

retary was just as tinal in the acts Of IS9T and 1893 as

in the act of 1903, even though the aets did not, in

express terms, so declare. For no further appeal was

provided to any other officer or to any court. As a

matter of faet, attempts were made, especially in Chi-

Nese cases, tO secure a retrial of such questions by

means of the writ of habeas corpus: and the only pur-

pose and effect of the change in the act of 1894 was to

declare the intention of ¢ ‘ongress that it had committed

finally te the administrative officers the power to de-

termine what aliens should and should not be admitted,

The power of the Secretary to arrest and to deport

is granted in different sections of the statutes, and is a

Separate power, — It is first given in the act of October

19, 1888 (25 Stat., 566), and authorizes the Secretary

of the Treasury—

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In case he shall be satisfied that an immi-

grant has been allowed to land contrary to the

prohibition of the law of February 26, 1885 (23

Stat, 832), as amended by the act of February

23, ISS7 (24 Stat., 566), to cause such immi-

grant, within the period of one vear after land-

ing or entry, te be taken into eustody and re-

turned to the country trom whence he came, ete.

It can hardly be questioned that under this proevi-

sion the Secretary would have had the power to arrest

and deport an alien who was here in violation of law,

even though he had been admitted, after full examina-

tion, by the inunigration officers. The above provi-

sion was in turn amended by section 11 of the act of

Mareh 38, 1801 (26 Siat., 1084), in these words:

That any alien who shall) come into the

United States in violation of law may be re-

turned as by law provided, at any time within

one year thereafter; * * * and any alien

who becomes a public charge within one year

atter his arrival in the United States, from

causes existing prior to his landing therein,

shall be deemed to have come in violation of

law and shall be returned as aforesaid.

The above provision, authorizing the deportation of

an alien who might become a public charge within a

year after his arrival from causes existing prior thereto

and declaring that his landing should be deemed to

have been unlawful, shows that Congress intended by

the use of the term ‘in Violation of law” to inelude

all who under the law were in fact members of the

prohibited classes, no matter whether they secured

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admission by means of false statements to the immi-

gration officers or got into the country by evading

them. Congress meant that certain classes of persons

should not be permitted to come here: and if they did

succeed in entering, no matter how, they might he

deported.

We then eome to the aet of March 3. 1903 (32 Stat.,

1213), the present law, the construction of which is

involved in this ease. By section 20 of the act it is

provided:

That anv alien eho shall come into the United

States in violation of law, or who shall be found

a publie charge therein, trom causes existing

prior to landing, shall be deported, as herein-

atter provided, to the country whence he came

atany time within two years after arrival, ete.

And by section 21 it is further provided ;

That in ease the Secretary of the Treasury

shall be satistied that an alien has been found in

the United States in violation of this act he

shall cause such alien, within the period of

three years aiter landing or entry therein, to be

taken into custody and returned to the country

whence he eame, as provided in section 20 of

this act, ete.

The court will nete the difference in the language

of the two sections. In section 20 it is “that any

alien who shall come into the United States in viola-

tien of law;” while in section 21 the language is “has

been found in the United States in violation of this

act,” shall be deported. "The first section reaches the

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unlawful coming, the second the unlawful being here.

That section 21 does not refer to entrance into but

to residence aithin the United States is shown by the

fact that section 20, reenacting former provisions of law,

makes express provision for the deportation of those

whose entry is unlawtul, Seetion 21 corresponds,

therefore, to seetion 13 of the Chinese exclusion law of

September 13, 1888 (25 Stat., 479), which provides for

the arrest of any Chinese person found unlawfully in

the United States, and for a hearing before a justice,

judge, or commissioner as to his right to reside within

the United States. The method provided) by section

21 is more expeditious than that provided in the Chi-

nese exclusion Jaw, in that the matter is committed

wholly o the immigration officers: and of necessity it

must be. because of the large number of aliens coming

to our country.

This distinetion between the question of admission

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and the right to continuous residence in the United

States has been repeatedly recognized by the courts.

Thus. in United States v. Lan Sun Ho (85 Fed., 422), a

proceeding to deport a Chinese person who had been

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permitted to enter the United States by means of false

and fraudulent representations that she was born here,

the court, speaking with respect to the eftfeet which

: should be given to the action of the collector in ad-

| mitting such person, said, page 423:

But the action of a collector of customs in

permitting a Chinese alien te land in this coun-

try is net In any sense pac. * * * The

law does not give to such order or permission

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the effect of a judgment that sueh person is en-

titled to remain inthe United States. The only

effect of such permission is that the passenger

claiming the right so to do is allowed to land,

and if subsequently such alien is arrested, and

charged with being unlawfully within” the

United States, the ordcy of the colleetor of eus-

toms, under which such person was permitted

to land, is not even prima facie evidence of his

right to remain in the United States, and the

court, in such a proceeding, inquires into the

truth of the matter, unembarrassed by such

order of the collector.

To the same effeet is the case of Chain Chio Tong v.

United States (133) Fed., 154), decided by the Circuit

Court of Appeals for the Ninth Circuit. In that ease

the Chinaman, upon presenting a merchant's certificate,

Was permitted to enter. As a matter of faet, he was a

laborer, and was permitted to land because of his false

statements. The court held that such entry was un-

lawful and did not entitle him to remain in the United

States, and atlrmed the order of deportat on, which

had been made by the Commissioner and aftirmed by

the Distriet Court.

This is the view taken by the Cireuit Court of Ap-

peals in this ease. (Ree. p. 189.) The court held that

the decision of the Board of Special Inquiry had no effect

other than a determination that the petitioners should

be permitted to land; and that it was competent for the

Secretary, within the time fixed by these sections, if

satistied that the petitioners had been allowed to enter,

Pe ee ae eee ee en Save

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Dg when in facet they ought to have been excluded,

arrest and deport them; and in’ support of its cai

sion cites the Japanese Immigrant Case (189 U.S., 86,

so). It ‘s true that in that ease the entry was hy

evading the officers: but that fact in no way detracts

: from the force of the reasoning of the court as to the

intention of Congress in passing these sections. The

court, Mr. Justice Harlan delivering the opinion in

that case, says, page Jv:

Taking all its enactments together, it is clear

that Congress did not intend that the mere ad-

mission of an alien, or his mere entering the

COTY, should place him at all times thereatter

entirely heyond the control or authority of the

executive officers of the Government. On the

contrary, if the Secretary of the Treasury

became satisfied that the immigrant had been

allowed to land contrary to the prohibition of

that law, then he could at any time within a

year after the landing cause the immigrant

to be taken into custody and deported. The

immigrant must be taken to have entered sub-

ject to the condition that he might be sent out

of the country by order of the proper executive

oflicer if within a vear he was found to have

been wrongfully admitted into or had illegally

entered the U nited States.

This language, we submit, is decisive of the case

here. The evidence shows these people were wrong-

fully admitted, and may now rightfully be deported.

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Biesin Peele aPet Ans

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The Cireuit Court of Appeals in its opinion savs

(Ree., }. 191):

We ave of the opinion that the decision of the

board has no other effect: than a determination

that the alien shall be permitted to land; that

its functions are contined to this initial inquiry ;

and that it is competent for the Secretary of

Commeree and Labor at any subsequent. time

during the three vears, upon being satistied that

the allen who has been allowed to enter is not-

withstanding here in violation of law, to exercise

the power of deportation. "Phe beara is a sub-

ordinate tribunal whose powers extend merely

to the decision ot the particular inquiry com-

mitted to it, and any adjudication bevond this,

even if it were toe be regarded as a judicial

decision, would be COAL RO} pucdix e.

In view of these decisions, it seems clear that the

purpose of the provision of section 25 was not to tix ab-

solutely the right ot an alien to remain in this country,

but only to vest in the otticers the power to determine

Whether, trom the tacts presented, the alien should be

admitted: and that the sole purpose of making the de-

cision of the appellate otlieer upon the question of ad-

Mission tinal was to prevent the taking of appeals to

the courts by an alien by means of the writ of habeas

corpus. Of course Congress would not provide that a

subordinate should take an appeal trom the decision of

the head of his Department.

Finally, it is claimed that the question tried under

the deportation proceedings is the same question tried

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upon the application of the petitioners for admission,

and that to retry them upon the same charge after a

decision in. their faver “would be abhorrent. to the

principles of commen law and of all civilized comunu-

nities.”

‘The answer to this elaim is that the charge of being

unlawfully ins the United States was not. tried when

these persons presented themselves for admission: and

if it were, there is no principle, moral or equitable,

whieh ean be inveked that will enable the petitioners

to take advantage of their own wrong. ‘They were

alien contract laborers, members of aelass prohibited

hy section 2 of the act of 1903 from coming to or

remaining in the United States. They came, or are

presumed to have come, with full knowledge that they

were not entitled te enter; they secured adinission

because of the false statements made by them te the

proper oflicers: they can not be heard to complain

beeause the law has overtaken them and js about to

expel them trom the country. “The proceeding ts nota

criminal one, nor in the nature of one: it ts nothing

more than a proceeding te expel persons wo have

entered the country uulawfully and who have no

right to remain. Phe action of the immieration

officers was in no sense a judicial proceeding. by

section 23 of the act their duties are expressly deelared

to be “of an adminisirative character.” With thou-

sands of aliens daily entering our gates it would be

impossible for the officers to investigate each case in

order to determine finally that the person is entitled to

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enter and to remain in the United States. For this

reason Congress enacted the provision that any person

found to be unlawfully here may be arrested and de-

ported by the proper administrative officers. And we

submit that the cases of the petitioners show the wis-

dom of this provision, Their acts subsequent to their

admission furnished the evidenee which satisfied the

ofticers that their former statements were untrue and

that they have no right to be or remain in the United

States.

We submit that the judgment of the Cireuit Court

of Appeals is right and that the petition should be

denied.

Henry M. Hoyr,

Solicitor-General.