Ng Fung Ho v. White 17 20, 1922, 176

CourtUnited States Supreme Court
Citation66 L.Ed. 938,42 S.Ct. 492,259 U.S. 276
Docket NumberNo. 176,176
PartiesNG FUNG HO et al. v. WHITE, Commissioner of Immigration, etc. Argued March 17-20, 1922
Decision Date29 May 1922

259 U.S. 276
42 S.Ct. 492
66 L.Ed. 938
NG FUNG HO et al.


WHITE, Commissioner of Immigration, etc.

No. 176.
Argued March 17-20, 1922.
Decided May 29, 1922.

Page 277

Mr. Jackson H. Ralston, of Washington, D. C., for petitioners.

Mr. Wm. C. Herron, of Washington, D. C., for respondent.

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

Page 278

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 section 19 of the General Immigration Act of February 5, 1917, c. 29, 39 Stat. 874, 889 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289 1/4jj). 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 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 section 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 (Comp. St. § 4320), 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 Fed. 765. The case is here on writ of certiorari. 254 U. S. 628, 41 Sup. Ct. 148, 65 L. Ed. 446.

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

Page 279

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, 24 Sup. Ct. 629, 48 L. Ed. 931. We held in United States v. Woo Jan, 245 U. S. 552, 38 Sup. Ct. 207, 62 L. Ed. 466, that section 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 section 19; but they insist that the rights and liabilities of those who entered before

Page 280

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, 33 Sup. Ct. 607, 57 L. Ed. 978; Lapina v. Williams, 232 U. S. 78, 34 Sup. Ct. 196, 58 L. Ed. 515; Lewis v. Frick, 233 U. S. 291, 34 Sup. Ct. 488, 58 L. Ed. 967. Our task, therefore, so far as concerns these two petitioners, is merely to ascertain the intention of Congress.

Petitioners argue that to hold section 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 section 38 (section 4289 1/4u) 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, insists that

Page 281

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 contention rests upon the fact that here the arrest and deportation are based, not merely upon unlawful entry, but upon the unlawful remaining of the petitioners after May 1, 1917. For the charge as to each is:

'That he has been found within the United States in violation of section 6, Chinese Exclusion Act of May 5, 1892, as amended by the Act of November 3, 1893, being a Chinese laborer not in possession of a certificate of residence.'

Unlawful remaining of an alien in the United States is an offense distinct in its nature from unlawful entry into the United States. One who has entered lawfully may remain unlawfully. This is expressly recognized in section 6 of the Act of May 5, 1892, under which the deportations here in question were sought. See Fong Yue Ting v. United States, 149 U. S. 698, 13 Sup. Ct. 1016, 37 L. Ed. 905; Li Sing v. United States, 180 U. S. 486, 21 Sup. Ct. 449, 45 L. Ed. 634; Ah How v. United States, 193 U. S. 65, 24 Sup. Ct. 357, 48 L. Ed. 619. A different rule might apply if the statute had so connected the two offenses that there could not be an unlawful remaining unless there had been an unlawful entry. Compare section 1 of the Act of May 6, 1882, c. 126, 22 Stat. 58. As we agree with the government that the orders of deportation were valid, because these petitioners were then unlawfully within the United States, we have no occasion to consider its further contention that Congress intended section 19 to be broadly...

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