Sire v. Berkshire

• Decision Date: 06 March 1911
• Parties: SIRE v. BERKSHIRE et al.
• Court: U.S. District Court — Western District of Texas

185 F. 967

SIRE v. BERKSHIRE et al.

United States District Court, W.D. Texas, Austin Division.

March 6, 1911

[Copyrighted Material Omitted]

Lewis Maury Kemp and Robert T. Neill, for petitioner.

Charles A. Boynton, U.S. Atty., for respondents.

MAXEY District Judge (after stating the facts as above).

The order of deportation issued by the Secretary of Commerce and Labor was made pursuant to the provisions of section 3 of the Act of February 20, 1907, c. 1134, 34 Stat. 899 (U.S. Comp St. Supp. 1909, p. 450), as amended by section 2 of the Act of March 26, 1910, c. 128, 36 Stat. 264. The manner or method of deportation is shown by sections 20 and 21 of the former act.

Counsel for the petitioner, throughout the argument, proceeded upon the assumption that the proceeding to deport an alien is a criminal prosecution, and that the person resisting deportation is entitled to the constitutional guaranties and safeguards with which a citizen of the country, accused of crime, is invested. The Supreme Court, however, has decided in language too plain to be misunderstood, that such a proceeding is not a criminal prosecution, and the order of deportation is not a punishment for crime. Fong Yue Ting v. United States, 149 U.S. 730, 13 Sup.Ct. 1016, 37 L.Ed. 905; Wong Wing v. united States, 163 U.S. 236, 16 Sup.Ct. 977, 41 L.Ed. 140. Thus it was said by Mr. Justice Gray, speaking for the court, in the Fong Yue Ting Case:

'The order of deportation is not a punishment for crime. It is not a banishment, in the sense in which that word is often applied to the expulsion of a citizen from his country by way of punishment. It is but a method of enforcing the return to his own country of an alien who has not complied with the conditions upon the performance of which the government of the nation, acting within its constitutional authority and through the proper departments, has determined that his continuing to reside here shall depend. He has not, therefore, been deprived of life, liberty, or property, without due process of law; and the provisions of the Constitution, securing the right of trial by jury, and prohibiting unreasonable searches and seizures, and cruel and unusual punishments, have no application.'

But it is insisted by counsel that the petitioner was denied the right to consult an attorney on the hearing before the immigration officials until after she had been examined by them touching her right to remain in the country, and that the denial of the right claimed was inconsistent with the due process clause of the fifth amendment of the Constitution.

In this connection it is well to state that nowhere in the record does the petitioner deny her alienage, but, on the contrary, affirms it; nor does she deny that, at the time of her arrest, she was plying the business or calling of a prostitute. She seems to rely upon the law, by implication conceding the plain facts recited in the orders of deportation.

Adverting then to the clause of the fifth amendment invoked by her counsel, did the proceeding constitute, in her case, due process of law? The record discloses that there was a hearing-- although claimed by the petitioner to be a pretended one-- before the officials at El Paso. It is further shown that the record was transmitted to the Secretary of Commerce and Labor, and after its examination by that officer the order of deportation was duly issued. That the petitioner was represented by counsel at the hearing before the Secretary was conceded on the argument. She therefore had a hearing before executive officers authorized to entertain it, and the order issued by them, under such circumstances, constituted due process of law. The Japanese Immigrant Case, 189 U.S. 86, 23 Sup.Ct. 611, 47 L.Ed. 721; United States v. Ju Toy, 198 U.S. 253, 25 Sup.Ct. 644, 49 L.Ed. 1040; Nishimura Ekiu v. United States, 142 U.S. 651, 12 Sup.Ct. 336, 35 L.Ed. 1146; Fong Yue Ting v. United States, supra; Lem Moon Sing v. United States, 158 U.S. 538, 15 Sup.Ct. 967, 39 L.Ed. 1082; Turner v. Williams, 194 U.S. 279, 24 Sup.Ct. 719, 48 L.Ed. 979.

Not only so; such order of the secretary is final, and the courts are without power to review it. In the Japanese Immigrant Case, already referred to, it was said by the court:

'That Congress may exclude aliens of a particular race from the United States; prescribe the terms and conditions upon which certain classes of aliens may come to this country; establish regulations for sending out of the country such aliens as come here in violation of law; and commit the enforcement of such provisions, conditions, and regulations exclusively to executive

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