United States Bilokumsky v. Tod, 92

• Court: United States Supreme Court
• Writing for the Court: BRANDEIS
• Citation: 263 U.S. 149,68 L.Ed. 221,44 S.Ct. 54
• Parties: UNITED STATES ex rel. BILOKUMSKY v. TOD, Commissioner of Immigration at the Port of New York, et al
• Docket Number: No. 92,92
• Decision Date: 12 November 1923

263 U.S. 149 44 S.Ct. 54 68 L.Ed. 221 UNITED STATES ex rel. BILOKUMSKY

v.

TOD, Commissioner of Immigration at the Port of New York, et al.

No. 92. Argued Oct. 19, 1923. Decided Nov. 12, 1923.

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Mr. Walter Nelles, of New York City, for appellant.

Mr. George Ross Hull, of Washington, D. C., for appellees.

Mr. Justice BRANDEIS delivered the opinion of the Court.

Bilokumsky is said to have entered the United States in 1912. In May, 1921, he was arrested in deportation proceedings upon a warrant of the Secretary of Labor as being an alien within the United States in violation of law. The specific ground was having in his possession for the purpose of distribution printed matter which advocated the overthrow of the government of the United States by force or violence. Act Oct. 16, 1918, c. 186, §§ 1, 2, 40 Stat. 1012, as amended by Act June 5, 1920, c. 251, 41 Stat. 1008. After a hearing, granted to enable him to show cause why he should not be deported, a warrant of deportation issued. While in the custody of the

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Commissioner of Immigration at the Port of New York, he filed in the federal court his petition for a writ of habeas corpus. That court heard the case upon the return and a traverse thereto, dismissed the writ, remanded the relator to the custody of the Commissioner, allowed an appeal, and stayed deportation until further order. The case is here under section 238 of the Judicial Code (Comp. St. § 1215), the claim being that the relator was denied rights guaranteed by the Fourth and Fifth Amendments to the federal Constitution.

Prior to the application for the warrant of arrest in the deportation proceedings, Bilokumsky was confined to Moyamensing Prison, Philadelphia, on charges made by city authorities that he had violated the state sedition law. While there he was sworn and interrogated by an immigration inspector, who took a stenographic report of the examination. In answer to questions so put, he admitted that he was an alien, but denied that he had done anything which rendered him liable to deportation. There is nothing in the examination which suggests that Bilokumsky made his statement because of threats or promises of favor, and there was no evidence that the statement was an involuntary one, unless compulsion is to be inferred from the fact that he was at the time in custody, that city and federal authorities were then co-operating 'with a view to ridding this country of undesirables,' that the prosecution under the state law was dropped soon after the institution of the deportation proceedings, that he was not then represented by counsel, and that he was not apprised by the inspector, either that he was entitled to be so represented or that he was not obliged to answer.

At the hearing under the warrant of the Secretary of Labor all facts necessary to establish that Bilokumsky had in his possession for purpose of distribution printed matter which advocated the overthrow of the govern ment

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were proved by evidence to which there was no objection. To prove alienage the inspector called Bilokumsky as a witness. He was sworn, but, when questioned by the immigration inspector, under advice of counsel, stood mute, refusing even to state his name. After his refusal to answer, the report of his examination in Moyamensing Prison was introduced, although duly objected to by counsel. He did not testify on his own behalf; nor did he, or his counsel, make the claim, at the hearing, that he is a citizen of the United States. The rules then in force dealing with the conduct of such hearings are copied in the margin.¹ So far as appears these were fully complied with. It is conceded that, if the fact of alienage was legally established, there was both probable cause for issuing the original warrant of arrest and ample evidence at the hearing to justify a finding that relator was within the United States in violation of law. The contention is that there was no legal evidence of alienage.

If, in the deportation proceedings, Bilokumsky had claimed that he was a citizen and had supported the claim by substantial evidence, he would have been entitled to have his status finally determined by a judicial, as distinguished from an executive, tribunal. Ng Fung Ho v.

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White, 259 U. S. 276, 281, 42 Sup. Ct. 492, 66 L. Ed. 938. But he made no such claim at that time; nor does he now contend, by allegation in his petition for habeas corpus, or otherwise, that he is a citizen of the United States. He rests his claim to relief on an entirely different ground. He asserts that, because of the manner in which the evidence of alienage was procured, the warrant of deportation is a nullity. He argues that alienage is essential to jurisdiction; that the government has the burden of establishing the fact; that it can be established only by legal evidence; that his examination while in prison is the only evidence introduced for that purpose; that its procurement involved both an unlawful search and seizure and a violation of the rules of the Department; that since it was illegally procured it was not legal evidence; and, hence, that the order is void. Its nullity is urged on three grounds. Because the order is unsupported by legal evidence; because the hearing was unfair; and because the original warrant issued without probable cause.

It is true that alienage is a jurisdictional fact; and that an order of deportation must be predicated upon a finding of that fact. United States v. Sing Tuck, 194 U. S. 161, 167, 24 Sup. Ct. 621, 48 L. Ed. 917. It is true that the burden of proving alienage rests upon the government. For the statutory provision which puts upon the person arrested in deportation proceedings the burden of establishing his right to remain in this country applies only to persons of the Chinese race and in other cases. See Ng Fung Ho v. White, supra, 259 U. S. 283, 42 Sup. Ct. 492, 66 L. Ed. 938. Compare Immigration Rules of May 1, 1917, rule 8. It is also true that, if the Department makes a finding of an essential fact which is unsupported by evidence, the court may intervene by the writ of habeas corpus. Zakonaite v. Wolf, 226 U. S. 272, 274, 275, 33 Sup. Ct. 31, 57 L. Ed. 218. But it is not true that, if the report of Bilokumsky's examination be eliminated there was no evidence of alienage at the hearing. Conduct which forms a basis for inference is evidence. Silence

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is often evidence of the most persuasive character. Runkle v. Burnham, 153 U. S. 216, 225, 14 Sup. Ct. 837, 38 L. Ed. 694; Kirby v. Tallmadge, 160 U. S. 379, 383, 16 Sup. Ct. 349, 40 L. Ed. 463. Compare Quock Ting v. United States, 140 U. S. 417, 420, 11 Sup. Ct. 733, 851, 35 L. Ed. 501. Bilokumsky was present at the hearing, personally and by counsel. The ground for deportation involved a charge of acts which might have been made the basis of a serious criminal prosecution. Criminal Code, § 6 (Comp. St. § 10, 170). If Bilokumsky was a citizen, inquiry into the facts was immaterial; and the whole proceeding must have fallen. He, presumably, knew whether or not he was a citizen. Since alienage is not an element of the crime of sedition, testifying concerning his status could not have had a tendency to incriminate him. There was strong reason why he should have asserted citizenship, if there was any basis in fact for such a contention. Under these circumstances his failure to claim that he was a citizen and his refusal to testify on this subject had a tendency to prove...