259 U.S. 276 (1922), 176, Ng Fung Ho v. White

Docket Nº:No. 176
Citation:259 U.S. 276, 42 S.Ct. 492, 66 L.Ed. 938
Party Name:Ng Fung Ho v. White
Case Date:May 29, 1922
Court:United States Supreme Court
 
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259 U.S. 276 (1922)

42 S.Ct. 492, 66 L.Ed. 938

Ng Fung Ho

v.

White

No. 176

United States Supreme Court

May 29, 1922

Argued March 17, 20, 1922

CERTIORARI TO THE CIRCUIT COURT OF APPEALS

FOR THE NINTH CIRCUIT

Syllabus

1. Congress has power to order at any time the deportation of aliens whose presence in the country it deems hurtful, and may do so by appropriate executive proceedings. P. 280.

2. The Chinese Exclusion Act of May 5, 1892, as amended, makes it unlawful for a Chinese laborer not in possession of a certificate of residence to remain in the United States, irrespective of the legality of his entry. P. 281.

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3. A Chinese person thus unlawfully in the United States is subject to executive deportation under the General Immigration Act of February 5, 1917, § 19, without giving it a retroactive effect, although he entered the country before it was passed, because the act applies to any alien who "shall be found" here in violation of any federal law, as well as those who shall have entered unlawfully. P. 280.

4. Persons of Chinese blood who have been admitted into the country by the immigration authorities and afterwards arrested and held for deportation, who claim to be citizens of the United States in virtue of the citizenship of their father (Rev.Stats. § 1993), and who support the claim by evidence both before the immigration officer and upon petition for habeas corpus, are entitled, under the Fifth Amendment, to a judicial hearing of the claim in the habeas corpus proceeding. P. 282.

266 F. 765 affirmed in part and reversed in part.

The petitioners, Chinese held for deportation under warrants issued by the Secretary of Labor pursuant to the Immigration Act of 1917, obtained from the district court a writ of habeas corpus. That court subsequently ordered the writ quashed and the petitioners remanded to custody. The present review is directed to a judgment of the circuit court of appeals affirming the action of the district court as to all of the petitioners except one, whom it ordered released.

BRANDEIS, J., lead opinion

MR. JUSTICE BRANDEIS delivered the opinion of the Court.

On January 27, 1919, five persons of the Chinese race, of whom four are petitioners herein, joined in an application for a writ of habeas corpus to the judge of the Federal Court for the Southern Division of the Northern District

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of California. A writ issued directed to the Commissioner of Immigration for the Port of San Francisco, who held the petitioners in custody under warrants of deportation of the Secretary of Labor pursuant to § 19 of the General Immigration Act of February 5, 1917, c. 29, 39 Stat. 874, 889. The case was heard upon the original files of the Bureau of Immigration, containing the record of the deportation proceedings. Each petitioner had entered the United States before May 1, 1917, the effective date of the General Immigration [42 S.Ct. 493] Act of February 5, 1917, and within five years of the commencement of the deportation proceedings. As to each, the warrant of deportation recited that the petitioner was a native of China, was found to have secured his admission by fraud, and was found within the United States in violation of § 6 of the Chinese Exclusion Act of May 5, 1892, c. 60, 27 Stat. 25, as amended by Act Nov. 3, 1893, c. 14, § 1, 28 Stat. 7, being a Chinese laborer not in possession of a certificate of residence. The district court entered an order quashing the writ and remanding the prisoners to the custody of the immigration authorities. The judgment was affirmed by the Circuit Court of Appeals for the Ninth Circuit except as to one appellant, who was ordered released. 266 F. 765. The case is here on writ of certiorari. 254 U.S. 628.

There is a faint contention, which we deem unfounded, that the petitioners were not given a fair hearing and that there is no evidence to sustain the findings of the immigration official. The contention mainly urged is that any violation of the Chinese Exclusion Laws1 of which petitioners

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may be guilty occurred prior to the effective date of the General Immigration Act of February 5, 1917; that consequently, petitioners were not subject to its provision authorizing deportation on executive orders, and that, under the provisions of the Chinese Exclusion Acts, they could be deported only upon judicial proceedings. In certain respects, the situation of two of the petitioners differs from that of the other two, and, to that extent, their rights require separate consideration.

First. As to Ng Fung Ho and Ng Yuen Shew, his minor son, the question presented is solely one of statutory construction. Deportation under provisions of the Chinese Exclusion Acts can be had only upon judicial proceedings -- that is, upon a warrant issued by a justice, judge, or commissioner of a United States court upon a complaint and returnable before such court, or a justice, judge, or commissioner thereof. From an order of deportation entered by a commissioner, an appeal is provided to the district court, and from there to the circuit court of appeals. United States, Petitioner, 194 U.S. 194. We held in United States v. Woo Jan, 245 U.S. 552, that § 21 of the General Immigration Act of February 20, 1907, c. 1134, 34 Stat. 898, which authorized deportation of aliens on executive orders, did not apply to violators of the Chinese Exclusion Acts, and that they continued to enjoy the right to a judicial hearing. The 1907 Act remained in force until May 1, 1917, when the General Immigration Act of February 5, 1917, became operative. Section 19 of the latter act also provides for deportation of aliens on executive orders. The question is: did the Act of 1917 also preserve to Chinese the exceptional right to a judicial hearing, as distinguished from an executive hearing?

Petitioners practically concede that Chinese who first entered the United States after April 30, 1917, are subject to deportation under the provisions of § 19, but they insist that the rights and liabilities of those who entered before

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May 1, 1917, are governed wholly by the Chinese Exclusion Acts, and that these remain entitled to a judicial hearing. The mere fact that, at the time petitioners last entered the United States, they could not have been deported except by judicial proceedings presents no constitutional obstacle to their expulsion by executive order now. Neither Ng Fung Ho nor Ng Yuen Shew claims to be a citizen of the United States. Congress has power to order at any time the deportation of aliens whose presence in the country it deems hurtful, and may do so by appropriate executive proceedings. Bugajewitz v. Adams, 228 U.S. 585; Lapina v. Williams, 232 U.S. 78; Lewis v. Frick, 233 U.S. 291. Our task, therefore, so far as concerns these two petitioners, is merely to ascertain the intention of Congress.

Petitioners argue that to hold § 19 of the 1917 Act applicable to them would give it retroactive operation, contrary to the expressed intention of Congress. They rely particularly on the clauses in § 38 which declare that, "as to all . . . acts, things, or matters . . . done or existing at the time of the taking effect of this [1917] act" the "laws . . . amended . . . are hereby continued in force."2 The government, on the other hand, [42 S.Ct. 494] insists that

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section 19 was intended to operate retroactively, and to cover acts done prior to its going into effect, provided deportation proceedings were begun within five years after entry. But its main...

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