United States v. Karnuth

• Decision Date: 05 March 1928
• Docket Number: No. 274.,274.
• Citation: 24 F.2d 649
• Parties: UNITED STATES, on Petition of ALBRO, ex rel. COOK et al. v. KARNUTH, United States Director of Immigration, et al.
• Court: U.S. Court of Appeals — Second Circuit

24 F.2d 649 (1928)

UNITED STATES, on Petition of ALBRO, ex rel. COOK et al.

v.

KARNUTH, United States Director of Immigration, et al.

No. 274.

Circuit Court of Appeals, Second Circuit.

March 5, 1928.

Botsford, Mitchell, Albro & Weber, of Buffalo, N. Y. (Preston M. Albro, of Buffalo, N. Y., of counsel), for appellants.

Robert A. Reid, of Toronto, Canada, D. C. L. Barrister, amicus curiæ.

Richard H. Templeton, U. S. Atty., of Buffalo, N. Y. (Richard A. Grimm, Asst. U. S. Atty., of Buffalo, N. Y., of counsel), for appellees.

H. Ely Goldsmith, of New York City, Consultant in Immigration Matters, amicus curiæ.

Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

MANTON, Circuit Judge.

Mary Cook, a British subject, and Antonio Danelon, a naturalized citizen of Canada and a British subject, sued out a writ of habeas corpus to review proceedings of the Board of Special Inquiry of the Immigration Service, which held that they should be refused admission to the United States because they had no unexpired Consular immigration visas, as required by the Immigration Act of 1924 (8 USCA §§ 166, 167, 179, 201-226), and pursuant to rule 86 promulgated by the Department of Labor.

Danelon worked at Niagara Falls, but lived in the Dominion of Canada. Mary Cook, residing in the Dominion of Canada and intending to remain there, crossed the border, seeking employment in the United States. They were arrested on December 1, 1927. The court below dismissed the writ of habeas corpus, sued out by them, because (a) they were persons entering the United States, one looking for employment, and the other solely to work, and each to return in the evening to an adjoining foreign country, and were not temporary visitors, but were immigrants; (b) they were not protected as British subjects by the Jay Treaty of 1794 (8 Stat. 116); and (c) in any event the Jay Treaty does not apply to British nationals of other than Canadian birth and classified by Order 86 as immigrants.

Immigration Act 1924 (§ 203, title 8, c. 6, USCA), provides that:

"When used in this subchapter the term `immigrant' means any alien departing from any place outside of the United States destined for the United States, except * * * an alien visiting the United States temporarily as a tourist or temporarily for business or pleasure."

Section 102 of USCA, c. 6, tit. 8, provides that the commissioner having charge of the administration of the laws regulating the immigration of aliens into the United States shall make rules and regulations and prescribe such forms of bond, reports, entries, and other papers, and shall issue from time to time such instructions, not inconsistent with the law, as he shall deem best calculated for carrying out the provisions of this section and sections. Pursuant to that authority, the commission issued General Order No. 86 on April 1, 1927, effective July 1, 1927, reading:

"(1) Hereafter aliens residing in foreign contiguous countries and entering the United States to engage in existing employment or to secure employment in this country, will not be considered as visiting the United States temporarily as tourists or temporarily for business or pleasure under any provision of the immigration law which exempts visitors from complying with certain requirements thereof; that is they will be considered as aliens of the `immigrant' class.

"(2) However, the following aliens of the said `immigrant' class, residing in foreign contiguous countries and who are now enjoying the border crossing privilege, may continue so to enjoy upon the payment of head tax provided such head tax was assessable on aliens entering permanently at the time of original admission, and provided further, that they are not coming to seek employment."

The commissioner may not make regulations to enforce the Immigration Act which are beyond the powers delegated by Congress to him by section 102. The Parthian (C. C. A.) 276 F. 903. If the commissioner had lawful authority to issue Order No. 86, it would prevent the relators crossing daily and classify them as immigrants. A question is presented as to whether these relators, domiciled in Canada, crossing, one for employment, and the other seeking employment, are immigrants within the meaning of the Immigration Act. Were they temporarily in the United States for business, and what privileges are accorded to them by reason of the Jay Treaty of 1794?

In Moffit v. United States (C. C. A.) 128 F. 375, in considering the Immigration Act of March 3, 1891 (26 Stat. 1084), the court had under consideration the importation of aliens under contracts or agreements to perform labor, and, holding that it clearly related to immigration, said that immigrants meant persons removing into the country for the purpose of permanent residence. The court held that, in considering the penalty imposed by section 10 of the act (26 Stat. 1086) on the master of a vessel for neglecting to detain on his vessel any alien who may unlawfully come to the United States on such vessel, or to return him to the port from which he came, must be construed in the light of such purposes and limited in its application to cases of alien immigrants. The court said, referring to the Standard Dictionary, that the meaning of the word "immigrant," as there defined, applied to the word used in the statute in order to describe the intent of Congress, and approved the definition that "immigrant" meant a person who removes into a country for the purpose of permanent residence, or a person passing or removing into a country for the purpose of permanent residence. See, also, Ex parte Hoffman (C. C. A.) 179 F. 839; Taylor v. United States (C. C. A.) 152 F. 1.

Section 203, title 8, chapter 6, defines the term "immigrant" as meaning any alien departing from any place outside of the United States destined for the United States. In view of the common acceptation, or the definition, by standard dictionaries, of the term "immigrant," an alien destined for the United States must be deemed to have intended a change of his domicile and removal from the country of his domicile for the purpose of permanent residence. See Webster's Dictionary; Century Dictionary. And Congress excepted aliens visiting the United States temporarily for business or pleasure.

The appellee contends that business does not include ordinary occupation, but refers rather to trading and merchandising. Business has been defined as a very comprehensive term, and embodies everything by which a person can be employed, and again, "that which occupies the time, attention, and labor of men for the purpose of livelihood or profit; but it is not necessary that it should be the sole occupation or employment. It embraces everything by which a man can be employed." Flint v. Stone-Tracy Co., 220 U. S. 107, 31 S. Ct. 342, 55 L. Ed. 389, Ann. Cas. 1912B, 1312; 9 Corpus Juris, 1101; Goddard v. Chaffee, 2 Allen (84 Mass.) 395, 79 Am. Dec. 796.

In United States v. Michigan Central R. R. Co. (C. C.) 48 F. 365, the railroad company employed in its office in New York, near the Canadian border, a resident of Canada, who came daily to his work in the United States. It was sued, under the Contract Labor Law, for assisting and encouraging importation or migration of an alien, within the meaning of that law. Wallace, J., directing a judgment for the defendant, said:

"The several provisions of the act are directed against assisted immigrants, as well as those who prepay their transportation or encourage their migration or importation by previous contract. Blount was not an immigrant, because he did not come here intending to acquire a permanent or a temporary home. As he did not migrate here, the defendant did not encourage his `migration.' He was not imported, nor did the defendant assist in his `importation,' any more than he was exported, and assisted in his exportation, when he went home at night. It may be that such a case as this is within the mischief which the promoters of the law intended to remedy, but it is not within the ordinary import of the words of the statute. If every person who comes into this country migrates, or is imported, within the meaning of the statute, because he remains temporarily, and works here, the statute will reach many cases in which its application would be a manifest absurdity."

The Jay Treaty of 1794 between the United States and Great Britain provides the right of free temporary passage across the Canadian border in article 3 (Treaty of Amity, Commerce, and Navigation, 1794). Article 3 provides:

"It is agreed that it shall at all times be free to His Majesty's subjects, and to the citizens of the...