United States v. Commissioner of Immigration of Port of New York, 72.

• Decision Date: 17 November 1922
• Docket Number: 72.
• Citation: 285 F. 295
• Parties: UNITED STATES ex rel. GOTTLIEB et al. v. COMMISSIONER OF IMMIGRATION OF PORT OF NEW YORK. [1]
• Court: U.S. Court of Appeals — Second Circuit

285 F. 295

UNITED STATES ex rel. GOTTLIEB et al. v. COMMISSIONER OF IMMIGRATION OF PORT OF NEW YORK. ^[1]

No. 72.

United States Court of Appeals, Second Circuit.

November 17, 1922

This appeal is from an order sustaining a writ of habeas corpus and directing that the relators, who had been ordered deported from the United States, and were in the custody of the Commissioner of Immigration at the port of New York pending such deportation, be released and discharged from custody and that they be admitted into the country.

It appears that the relators are natives of Palestine Jerusalem. The relator Gittel Gottlieb is 28 years of age and the wife of Solomon Gottlieb, a rabbi of a synagogue in the city of New York who is receiving a salary of $2,000 a year. The relator Israel Gottlieb, whose age upon arrival was stated to be 4 years, is the child of Solomon and Gittel. The husband and father of these relators came to the United States from Palestine about 14 months before the arrival of his wife and child and was duly admitted. Prior to the arrival of the relators he had declared his intention to become a citizen. At the time he came to the United States his wife and child did not accompany him, because he did not then have money enough to bring them. Later he sent them money to pay their passage, and wrote them to join him here. In the meantime he was contributing money for their support.

Upon the arrival of the relators at the port of New York they were given a hearing before a Board of Special Inquiry, which excluded them on the ground that they came to the United States in violation of the Act of May 19, 1921 (42 Stat. 5) in that they are natives of a country whose quota has been filled. The case was then taken to the Department of Labor, and the Secretary of Labor affirmed the decision of the board, and directed the deportation of the aliens on January 18, 1922.

Thereupon the General Secretary of the United Charity Institutions of Jerusalem, which maintains an office in the city of New York, acting for Solomon Gottlieb, the husband of one and the father of the other of the relators, who was confined to his bed by illness, petitioned for a writ of habeas corpus against the Commissioner of Immigration at the port of New York, in whose custody the relators then were. The writ was granted and after the return and a hearing thereon the writ was sustained, and the relators were ordered discharged on March 3, 1922.

William Hayward, U.S. Atty., of New York City (James C. Thomas, Jr., Asst. U.S. Atty., of New York City, of counsel), for appellant.

Joseph G. M. Browne, of New York City (Joseph G. M. Browne and Barnett E. Kopelman, both of New York City, of counsel), for appellees.

Before ROGERS, MANTON, and MAYER, Circuit Judges.

ROGERS Circuit Judge (after stating the facts as above).

The question presented by this appeal involves a novel and important question under the Immigration Exclusion Act. If the immigration authorities are right in their understanding of the act, under which the relators have been denied a right to enter the country, a wife and child of a minister, resident in the United States, must be separated from him and returned to the country from whence they came, and the conditions said to prevail in that country as to persons of their particular faith seem to be such as to make their deportation one of unusual hardship. ^[2] In deciding the question presented, it is necessary to ascertain the intention of Congress as it is found in the Immigration Acts; for, if Congress has declared that aliens situated as these relators are cannot enter, they must be excluded, even if the courts think their exclusion in any particular case would work extreme hardship and even great injustice. It is for Congress, and not for the courts, to determine what classes of aliens shall enter the United States and in what numbers. The duty of the judges, as Lord Bacon said, is 'jus dicere,' not 'jus dare.'

The Immigration Act of February 5, 1917, which is the basic act on this subject, enumerates, in section 3 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 4289 1/4b), certain classes of aliens who cannot be permitted to enter the United States. The section then goes on to provide that the exclusion clause is not to apply to ministers, nor to their legal wives, nor their children under 16 years of age who accompany them, or who subsequently may apply for admission to the United States. The provision referred to is as follows:

'The provision next foregoing, however, shall not apply to persons of the following status or occupations: Government officers, ministers or religious teachers, missionaries, lawyers, physicians, chemists, civil engineers, teachers, students, authors, artists, merchants and travelers for curiosity or pleasure, nor to their legal wives or their children under sixteen years of age who shall accompany them or who subsequently may apply for admission to the United States, but such persons or their legal wives or foreign-born children who fail to maintain in the United States a status or occupation placing them within the excepted classes shall be deemed to be in the United States contrary to law, and shall be subject to deportation as provided in section 19 of this act.'

The act of 1917 has not been repealed. Whether the above provision has been impliedly repealed by the act now to be considered is an important question which must be determined. The Act of May 19, 1921, which is entitled 'An act to limit the immigration of aliens into the United States,' limits in section 2 the number of aliens of any nationality who may be admitted in any fiscal year to 3 per centum of the number of foreign-born persons of such nationality resident in the United States as determined by the United States census of 1910.

It is admitted that at the time the relators arrived in this country the number of aliens from Palestine entitled to enter had reached the 3 per centum to which that country was entitled under the above provision for the fiscal year. It was for that reason that these relators were excluded. But it is also to be had in mind that the act of 1921 provides in section 4:

'That the provisions of this act are in addition to and not in substitution for the provisions of the immigration laws.'

And it is claimed that because of section 4 in the act of 1921, there is no repeal of that part of section 3 of the act of 1917, above quoted which provides that the exclusion clauses do not apply to ministers, nor their wives, nor their children under 16 years of age who accompany them. But it becomes necessary to consider certain other provisions in the Act of May 19, 1921, which are equally involved herein. This act of 1921 in section 2a provides as follows:

'That the number of aliens of any nationality who may be admitted under the immigration laws to the United States in any fiscal year shall be limited to 3 per centum of the number of foreign-born persons of such nationality resident in the United States as determined by the United States census of 1910. * * *'

The section then goes on to state that in reckoning the percentage limits certain specified classes of persons shall not be counted. And section 2d of the act provides as follows:

'When the maximum number of aliens of any nationality who may be admitted in any fiscal year under this act shall have been admitted all other aliens of such nationality, except as otherwise provided in this act, who may apply for admission during the same fiscal year shall be excluded. * * * '

It then provides that certain specified classes of aliens and among them 'ministers of any religious denomination' may be admitted notwithstanding the maximum number of aliens of the same nationality admissible in the same fiscal year shall have entered the United States. It makes no mention, however, of the wives or children of such ministers. The failure to mention them in the act of 1921 while they are named in the act of 1917 led to the exclusion of the relators and causes whatever doubt exists as to their right of entry.

In construing these statutes it is of course the duty of the court to endeavor to ascertain the intention and policy of Congress in the enactment of the legislation in question, and then to make practical application of that intention to the facts of this case. The fundamental rule of interpretation is that a...