United States v. Tod

• Citation: 285 F. 523
• Decision Date: 14 November 1922
• Docket Number: 45.
• Parties: UNITED STATES ex rel. SEJNENSKY v. TOD, Commissioner, etc.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

285 F. 523

UNITED STATES ex rel. SEJNENSKY v. TOD, Commissioner, etc.

No. 45.

United States Court of Appeals, Second Circuit.

November 14, 1922

William Hayward, U.S. Atty., and James C. Thomas, Jr., Asst. U.S Atty., both of New York City, for appellant.

Jacob H. Corn, of New York City, for appellee.

Before ROGERS, MANTON, and MAYER, Circuit Judges.

ROGERS Circuit Judge.

This appeal is from an order sustaining a writ of habeas corpus discharging from the custody of the Commissioner of Immigration at the port of New York Dora Sejnensky, an alien who was excluded from the United States on the ground that she was feeble-minded. She thereupon appealed to the Commissioner General of Immigration at Washington, and the exclusion order was modified to the extent of allowing her to land temporarily for six months to visit her relatives, under a bond of $1,000. At the time of her arrival in the United States she was unmarried, but prior to the expiration of the six months period above mentioned, and on October 28, 1921 she was married to a citizen of the United States, one Samuel J. Rose, of the borough of Brooklyn, in the city of New York the marriage being celebrated at Bayonne, N.J. It is claimed that by virtue of her marriage the relator herself became a citizen of the United States and as such is entitled to remain in this country.

The facts of the marriage were brought to the knowledge of the Commissioner of Immigration by the relator's brother, in a letter to the Commissioner informing him of the facts, and that he claimed that she was now, by virtue of her marriage a citizen of the United States, and therefore was entitled to remain in this country. He requested the Commissioner to inform the authorities at Ellis Island as to her status. Like information was also communicated to the Commissioner in a letter addressed to him by the husband of the relator, who requested the Commissioner to cancel the bond for $1,000 which had been given to permit her to land temporarily, and asking that she be granted admission to the United States.

The relator was, however, on November 7, 1921, again duly examined by a medical board, which found, six months after the first examination, that there was no change in her mental condition as previously found. Thereupon, on December 29, 1921, the Secretary of Labor directed that the relator's deportation be proceeded with, and that demand be made upon the bondsman for the specific performance of the bond, and that the alien should be delivered to the Commissioner of Immigration at the port of New York on or before January 15, 1922. The relator was so delivered, and on February 1, 1922, a writ of habeas corpus was sued out in the United States District Court for the Southern District of New York. The Commissioner filed his return to the writ, the matter was argued, and the District Judge entered an order on February 3, 1922, sustaining the writ and discharging the relator from the custody of the Commissioner, and this appeal was taken from that order.

The question presented is whether the relator is still subject to deportation. Stated in another form, it is whether an alien woman, who on her arrival in this country is adjudged to be feeble-minded and ordered deported, and who thereafter in good faith contracts a valid marriage with an American citizen, thereby herself acquires the rights of an American citizen, so as to entitle her to remain in the United States, notwithstanding the order for her deportation by the immigration authorities.

All the relatives of the relator are in this country, including her father, her six brothers, and her two sisters. The brothers are each of them citizens of the United States. One of the brothers has been here for 24 years, and another for 21 years. One of the brothers was a member of the Naval Reserve, and another was an honorably discharged veteran, who had been overseas. She and her father came here to be with the rest of the family; her mother being no longer alive. All the family appear to have been leading respectable lives. Their affairs are represented 'as getting along nicely,' and they are said to be 'all very happy here.' The man she has married, in his petition for the writ of habeas corpus, states upon his oath as follows concerning her:

'Although it is said that she is below normal, I have always found her to be well able to take care of herself. She can cook, sew, do general housework, and is very industrious. There is no danger that she will ever become a public charge, by reason of my own ability and that of her numerous relatives here to take care of her. * * * To send her back would be to separate her from me, her husband, and from all her other relatives, although she is an American citizen, as petitioner is informed and verily believes. Annexed is my mother's affidavit showing my birth in this country.'

This case involves the immigration and the naturalization laws of the United States. The immigration laws prescribe the classes of aliens who may enter the United States. They exclude certain classes from admission among which are all idiots, imbeciles, feeble-minded persons, epileptics, insane persons, persons who have had one or more attacks of insanity at any time previously, persons of constitutional psychopathic inferiority, persons with chronic alcoholism, paupers, professional beggars, vagrants, persons afflicted with tuberculosis in any form, or with a loathsome or dangerous or contagious disease, persons found to be mentally or physically defective, such physical defect being of a nature which may affect the ability of such alien to earn a living, persons who have been convicted or admit having committed a felony or other crime or misdemeanor involving moral turpitude, polygamists or persons who practice polygamy, or believe in or advocate the practice of polygamy, anarchists, or persons who believe in or advocate the overthrow by force or violence of the government of the United States, or of all forms of law, or who disbelieve in or are opposed to organized government, or who advocate the assassination of public officials, or who advocate or teach the unlawful destruction of property. The foregoing are some, but by no means all, of the classes of aliens who cannot be admitted into the United States under the existing laws. See Act Feb. 5, 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Secs. 4289 1/4a-4289 1/4u).

The naturalization laws prescribe the classes of aliens who may become citizens of the United States; and to entitle one to become a citizen by naturalization it is necessary that the alien should be: (1) A free white person, or one of African nativity or descent. (2) A resident of the United States for the continued term of five years next preceding admission to citizenship (subject to certain exceptions not necessary to be now considered) and within the jurisdiction of the court admitting the alien for a period of one year. (3) Possessed of a good moral character. (4) Attached to the principles of the Constitution of the United States and well disposed to the good order and happiness of the United States. U.S. Compiled Statutes (1916) vol. 5, tit. 30, pp. 5215, 5255. And under the act of June 29, 1906 (34 Stat. 596) no person can be made a citizen who is opposed to organized government, or who is a polygamist, or who cannot speak the English language.

It is thus apparent that the conditions under which aliens are entitled to enter the United States, and the conditions under which aliens are entitled to become citizens are quite different. The immigration laws add nothing to the naturalization laws by excluding persons who are feeble-minded, or who are afflicted with tuberculosis, or with a loathsome or dangerous disease, or who are of constitutional psychopathic inferiority; for there is nothing in the statutes which provides that a court must refuse to naturalize a person afflicted with a dangerous or loathsome disease, or because they are mentally defective, or of constitutional psychopathic inferiority, or because they have entered the country as 'contract laborers,' although, of course, the court may in its discretion after inquiry refuse to admit among others those it finds to be lacking in knowledge of the Constitution or our system of government.

The immigration laws of the United States, in terms and by judicial construction, relate to persons owing allegiance to a foreign government. They do not apply to citizens owing permanent allegiance to this country. Gonzales v. Williams, 192 U.S. 1, 24 Sup.Ct. 171, 48 L.Ed. 317. So that, if the relator has become by her marriage a citizen of the United States, the immigration authorities have lost all power over her, and are without authority to deport her. That Congress may pass laws forbidding aliens or classes of aliens from coming within the United States and may provide for their expulsion is certain. Low Wah Suey v. Backus, 225 U.S. 460, 32 Sup.Ct. 734, 56 L.Ed. 1165; Wong Wing v. United States, 163 U.S. 228, 16 Sup.Ct.

977, 41 L.Ed. 140. The principle is not questioned by any one in this proceeding. But it is equally plain, we take it, that Congress cannot exclude from the United States any citizen of the United States, unless convicted of a criminal offense, or unless he is a fugitive from the justice of some foreign state which demands his extradition.

Immigration Act Feb. 5, 1917, c. 29, 39 Stat. 874, Sec. 3, provides as follows:

'That the following classes of aliens shall be excluded from admission into the United States: All idiots, imbeciles, feeble-minded persons. * * * '

Section 1994 of the Revised Statutes (Comp. St. Sec. 3948) provides as follows:

'Any woman who is now or may hereafter be married to a citizen of the

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