THE DECISIONS

OF THE

Supreme Court of the United States

AT

OCTOBER TERM, 1915.

MANUEL CERECEDO, Andrés Grillasca, and Carlos Valle, Plffs. in Err.,

V.

UNITED STATES.

(See S. C. Reporter's ed. 1-3.)

Error to Porto Rico district court jurisdiction dismissal.

1. A writ of error to the district court of the United States for the district of Porto Rico must be dismissed where there is no bill of exceptions in the record and nothing which enables the court lawfully to questions relied upon to confer jurisdiction. [For other cases, see Appeal and Error, VII. 1, 4, in Digest Sup. Ct. 1908.] Appeal decision. 2. The postponing of the consideration of a motion to dismiss a writ of error from the Federal Supreme Court until the hearing on the merits is not a decision in the affirmative of the question of the power to

ascertain the existence of the constitutional

review.

motion to dismiss

[On motions to dismiss appeal, generally, see Appeal and Error, VII. a, in Digest Sup.

Ct. 1908.]

[No. 285.]

Assistant Attorney General Warren argued the cause and filed a brief for defendant in error.

Solicitor General Davis also filed a brief for defendant in error.

Memorandum opinion by Mr. Chief Justice White, by direction of the court:

The plaintiffs in error prosecute this writ under the assumption that the court below denied rights asserted [3] by them under the Constitution, by refusing, as prayed, to return papers taken from them under a search warrant, and in permitting the papers over objection to be offered in evidence. There is no bill of exceptions in the record, and nothing which enables us to lawfully ascertain the existence of the constitutional questions relied upon. Clune v. United States, 159 U. S. 590, 40 L. ed. 269, 16 Sup. Ct. Rep. 125; Metropolitan R. Co. v. District of Columbia (Metropolitan R. Co. v. Macfarland) 195 U. S. 322, 49 L. ed. 219, 25 Sup. Ct. Rep. 28; Porto Rico v. Emmanuel, 235 U. S. 251, 255, 59 L. ed. 215, 217, 35 Sup. Ct. Rep. 33.

There is nothing, therefore, before us unArgued and submitted .October 13, 1915. less there be merit in contentions to the

Decided October 25, 1915.

N ERROR to the District Court of the United States for Porto Rico to review convictions of conspiracy. Dismissed for want of jurisdiction.

See same case below, 6 Porto Rico Fed. Rep. 626.

Messrs. Paul Fuller and Howard Thayer Kingsbury submitted the cause for plaintiffs in error.

NOTE. On appellate jurisdiction of Federal Supreme Court over Porto Rican courts-see note to Garrozi v. Dastas, 51 L. ed. U. S. 369.

contrary which are pressed and which we briefly dispose of. First: On the face of things i tern ovi the consideration of a moit is obvious that the postponing at tion to dismiss was not a decision of the question of power to review. Second: Even

indulging, for the sake of the argument only, in the assumption of the correctness of the proposition urged that an extraordinary discretion might exist in some extreme case to supply the entire absence of a bill of exceptions, we see no ground whatever for the premise that this is a case of that character.

Dismissed for want of jurisdiction.

ALI GEGIOW and Sabas Zarikoew, Peti-, Abram I. Elkus and Ralph Barnett, filed

tioners,

V.

BYRON H. UHL, as Acting Commissioner
of Immigration at the Port of New York.
(See S. C. Reporter's ed. 3-10.)

Habeas corpus · immigration cases.

1. An alien, whom the commissioner of immigration has detained for deportation for a reason not recognized as sufficient by the immigration act of February 20, 1907 (34 Stat. at L. 898, chap. 1134), § 2, as amended by the act of March 26, 1910 (36 Stat. at L. 263, chap. 128, Comp. Stat. 1913, § 4244), § 1, enumerating the conditions upon which the allowance to land may be denied, is entitled to demand his release upon habeas corpus.

[For other cases, see Habeas Corpus, 13-18, 188-191, in Digest Sup. Ct. 1908.j Courts conclusiveness of decisions of immigration officer.

2. The conclusiveness of the decisions of immigration officers under the immigration act of February 20, 1907 (34 Stat. at L. 898, chap. 1134), § 25, is conclusiveness upon matters of fact, not upon questions of

law.

[For other cases, see Courts, I. e, 4, in Digest
Sup. Ct. 1908.]
Aliens

deportation public charges: 3. Alien immigrants cannot be deported under the immigration act of February 20, 1907 (34 Stat. at L. 898, chap. 1134), § 2, as amended by the act of March 26, 1910 (36 Stat. at L. 263, chap. 128), § 1, as "persons likely to become a public charge," merely because the labor market in the city of their immediate destination is over

stocked.

For other cases, see Aliens, VI. a, in Digest
Sup. Ct. 1908.]

[No. 340.]

Argued October 13 and 14, 1915.

October 25, 1915.

a brief for petitioners:

The right to due process of law under the 5th Amendment in immigration cases is, of course, well established, and this forbids unlawfully assuming facts not cognizable on the theory of judicial notice; and also deciding a case on such undisclosed facts without giving the immigrant notice of such intention or an opportunity to meet such matter by proof.

V.

Chin Yow v. United States, 208 U. S. 8, 52 L. ed. 369, 28 Sup. Ct. Rep. 201; JapImmigrant Case (Yamataya anese Fisher) 189 U. S. 86, 100, 47 L. ed. 721, 725, 23 Sup. Ct. Rep. 611; Re Can Pon, 93 C. C. A. 635, 168 Fed. 479; Davies v. Manolis, 103 C. C. A. 310, 179 Fed. 818; United States ex rel. Huber v. Sibray, 178 Fed. 144; Hanges v. Whitfield, 209 Fed. 675, affirmed in 138 C. C. A. 199, 222 Fed. 745; Rodgers v. United States, 81 C. C. A. 454, 152 Fed. 346; 'Re Monaco, 86 Fed. 117; Re Gottfried, 89 Fed. 9; Roux v. San Fran cisco, 121 C. C. A. 523, 203 Fed. 413; Ex parte Petkos, 212 Fed. 275, reversed in 131 C. C. A. 274, 214 Fed. 978; Re Kornmehl, 87 Fed. 314; Ex parte Ung King Jeng. 213 Fed. 119; Ex parte Wong Tuey Hing, 213 Fed. 112; Re Gin Fung, 89 Fed. 153; United States ex rel. Bosny v. Williams, 185 Fed. 598; United States v. Wong Chung, 92 Fed. 141; Re Chinese Relators, 58 Fed. 554. See also Interstate Commerce Commission v. Louisville & N. R. Co. 227 U. S. 88, 91, 93, 57 L. ed. 431, 433, 434, 33 Sup. Ct. Rep. 185; United States v. 1500 Bales of Cotton, Fed. Cas. No. 15,958; Thayer, Ev. pp. 309,

310.

All the cases relied upon by the government below herein, and cited in the opinion of the circuit court of appeals (other than Decided the Nishimura Ekiu v. United States, 142 U. S. 651, 35 L. ed. 1146, 12 Sup. Ct. Rep. 336, which arose under a materially dif ferent law), arose under the Chinese exclusion laws, and not under the general immigration laws. The courts have strongly emphasized the fact that differences in the statutes render these two classes of cases inapplicable to each other, for an entirely different procedure is established by the Chinese exclusion laws than is prescribed by the immigration law.

Rodgers v. United States, 81 C. C. A. 454, 152 Fed. 352; United States v. Sing Tuck,

194 U. S. 161, 170, 48 L. ed. 917, 921, 24 Sup. Ct. Rep. 621; Gonzales v. Williams, 192 U. S. 1, 16, 48 L. ed. 317, 322, 24 Sup. Ct. Rep. 177.

Even under the looser procedure applicable to Chinese exclusion cases, such departure from due process of law as is here 239 U. S.

involved has been held to authorize judicial review.

Lewis v. Frick, 233 U. S. 291, 297-300, 58 L. ed. 967, 971-973, 84 Sup. Ct. Rep.

Re Can Pon, 93 C. C. A. 635, 168 Fed. 488; Zakonaite v. Wolf, 226 U. S. 272, 274, 479.

The decision of the court in Nishimura Ekiu v. United States, supra, relied upon so much below, is not now applicable in view (a) of the marked changes in the statute since that case was decided, creating a quasi judicial board required to take testimony, and in the direction of conferring on the physicians, and not the lay inspectors, sole jurisdiction to note and certify physical, as well as mental, defects in immigrants (United States v. Petkos, 131 C. C. A. 274, 214 Fed. 978); (b) the later decisions of this court limiting it, especially the Japanese Immigrant Case (Yamataya v. Fisher) 189 U. S. 86, 47 L. ed. 721, 23 Sup. Ct. Rep. 611, where it was distinguished on constitutional grounds; (c) the fact that here unlawful procedure, and no mere ques- | tion of existence of facts, is involved; (d) because, despite our statute, the record here fails to show that relators were excluded on account of anything observed by the inspectors in their appearance; and (e) because the right since established of determining finally even rights to citizenship and other difficult questions of law and fact under the later acts in these administrative proceedings requires closer conformity to judicial procedure as necessary due process of law. It should also be noted that, (f) in general immigration cases the statute imposes the burden of proof on the government, while in Chinese cases it is on the alien, except in the single instance of "assisted immigrants," under the general immigration laws, in which case § 2 expressly throws it on the alien. 26 Ops. Atty. Gen. 414; United States ex rel. Castro v. Williams, 203 Fed. 156; Rodgers v. United States, 81 C. C. A. 454, 152 Fed. 352; Chin Bak Kan v. United States, 186 U. S. 193, 200, 46 L. ed. 1121, 1125, 22 Sup. Ct. Rep. 891; United States ex rel. De Rienzo v. Rodgers, 182 Fed. 274, affirmed in 107 C. C. A. 452, 185 Fed. 334; Ex parte Petkos, 212 Fed. 275; Ex parte Gregory, 210 Fed. 680; Ark Foo v. United States, 63 C. C. A. 249, 128 Fed. 698; United States v. Lee Chung, 206 Fed. 367.

There being no competent proof whatever in the record of the alleged employment conditions in Portland, nor of the alleged inability of petitioners to speak any dialect except their own unfamiliar one, or of other disability likely to affect ability to earn a living, their exclusion on the ground of likelihood to become a public charge is without any evidence, and is reviewable in the courts on habeas corpus, even independently of the errors of procedure involved.

57 L. ed. 218, 220, 33 Sup. Ct. Rep. 31; Bryant v. United States, 167 U. S. 104, 42 L. ed. 94, 17 Sup. Ct. Rep. 744; People ex rel. Kasschau v. Police Comrs. 155 N. Y. 40, 49 N. E. 257; Interstate Commerce Commission v. Louisville & N. R. Co. 227 U. S. 88, 57 L. ed. 431, 33 Sup. Ct. Rep. 185; Williams v. United States, 124 C. C. A. 366, 206 Fed. 460, approving 189 Fed. 915; United States ex rel. Rosen v. Williams, 118 C. C. A. 632, 200 Fed. 541; United States ex rel. Bauder v. Uhl, 128 C. C. A. 560, 211 Fed. 628; United States ex rel. Goldberg v. Williams, 204 Fed. 828; Ex parte Petkos, 212 Fed. 275, reversed in 131 C. C. A. 274, 214 Fed. 978; Re Feinknopf, 47 Fed. 447; Re Cummings, 32 Fed. 75; Ex parte Saraceno, 182 Fed. 955; Frick v. Lewis, 115 C. C. A. 493, 195 Fed. 693; Davies v. Manolis, 103 C. C. A. 310, 179 Fed. 821; United States v. Passavant, 169 U. S. 16, 20, 21, 42 L. ed. 644, 645, 646, 18 Sup. Ct. Rep. 219; United States v. Haviland, 167 Fed. 414, affirmed in 100 C. C. A. 637, 177 Fed. 175; certiorari denied in 216 U. S. 618, 54 L. ed. 640, 30 Sup. Ct. Rep. 573; American School v. McAnnulty, 187 U. S. 94, 108, 47 L. ed. 90, 96, 23 Sup. Ct. Rep. 33; Public Clearing House v. Coyne, 194 U. S. 497, 515, 48 L. ed. 1092, 1101, 24 Sup. Ct. Rep. 789; Howe v. Parker, 111 C. C. A. 466, 190 Fed. 746; Williams v. United States, 206 Fed. 460; Whitfield v. Hanges, 138 C. C. A. 199, 222 Fed. 745; Japanese Immigrant Case (Yamataya v. Fisher) 189 U. S. 86, 47 L. ed. 721, 23 Sup. Ct. Rep. 611; Chin Yow v. United States, 208 U. S. 8, 52 L. ed. 36, 28 Sup. Ct. Rep. 201; Low Wah Suey v. Backus, 225 U. S. 460, 56 L. ed. 1185, 32 Sup. Ct. Rep. 734; Tang Tun v. Edsell, 223 U. S. 673, 56 L. ed. 606, 32 Sup. Ct. Rep. 359; Macy v. Browne, 140 C. C. A. 45, 224 Fed. 359.

A person cannot be excluded as likely to become a public charge unless there be some evidence of substantial affirmative disabilities, and all the agencies at the disposal of the immigrant to aid him in his new home, including the assistance of relatives not legally obligated to support him, and of friends, must be taken into account in deciding the "likely to become a public charge" issue.

Re Feinknopf, 47 Fed. 447; Re O'Sullivan, 31 Fed. 447; Re Bracmadfar, 37 Fed. 774; Re Day, 27 Fed. 678; United States v. Lipkis, 56 Fed. 427; Ex parte Saraceno, 182 Fed. 955; Ex parte Petkos, 212 Fed. 275; Williams v. United States, 124 C. C. A. 366, 206 Fed. 460; United States ex rel. Goldberg v. Williams, 204 Fed. 828.

Even as regards matters judicially notice- | 27 Hun, 465; Smid v. Bernard, 31 Misc. 35, able, the authority relied upon should be 63 N. Y. Supp. 278. produced in court, and the fact of judicial notice being taken spread upon the record before the close of the case, so that proof can be adduced by the other side to meet the same.

Pearson v. Williams, 202 U. S. 281, 50 L. ed. 1029, 26 Sup. Ct. Rep. 608.

2. The statute imports that want of any sustaining evidence shall not of itself constitute a ground for judicial impeachment of the adverse administrative decision.

N. Y. Supp. 1049; Whelan v. Lynch, 60
N. Y. 469, 19 Am. Rep. 202; Downs v.
New York C. R. Co. 47 N. Y. 83, 5 Am.
Neg. Cas. 142; Langley v. Smith, 3 N. Y.
S. R. 276; Harris v. Panama R. Co. 3
Bosw. 7; McKinnon v. Bliss, 21 N. Y. 215;
Caldwell v. National Mohawk Valley Bank,
64 Barb. 333; Greenl. Ev. § 440, note;
Morris v. Harmer, 7 Pet. 554, 8 L. ed. 781; | roneously.
Whitfield v. Hanges, 138 C. C. A. 199, 222
Fed. 745.

Where the courts on habeas corpus assume jurisdiction to review an order of exclusion, they are themselves to determine the question of admissibility, and not merely to remand relator for a new hearing to the immigration authorities.

Chin Yow v. United States, 208 U. S. 8, 13, 52 L. ed. 369, 370, 28 Sup. Ct. Rep. 201; United States v. Petkos, 131 C. C. A. 274, 214 Fed. 978; Whitfield v. Hanges, 138 C. C. A. 199, 222 Fed. 745; United States ex rel. D'Amato v. Williams, 193 Fed. 228.

Solicitor General Davis argued the cause and filed a brief for respondent: Congress has complete power to exclude all aliens and to determine the conditions of their entry.

Lapina v. Williams, 232 U. S. 78, 88, 58 L. ed. 515, 518, 34 Sup. Ct. Rep. 196; United States v. Ju Toy, 198 U. S. 253, 49 L. ed. 1040, 25 Sup. Ct. Rep. 644.

The administrative determination made the condition of entry need not be based upon a hearing at which the alien has an opportunity to present evidence. Buttfield v. Stranahan, 192 U. S. 470, 48 L. ed. 525, 24 Sup. Ct. Rep. 349; Oceanic Nav. Co. v. Stranahan, 214 U. S. 320, 53 L. ed. 1013, 29 Sup. Ct. Rep. 671; Origet v. Hedden, 155 U. S. 228, 39 L. ed. 130, 15 Sup. Ct. Rep. 92.

When Congress has made a favorable administrative decision the sole and indispensable condition precedent to entry, and has declared an adverse decision to be final, the courts have no power to review the evidence upon which the latter is based.

Nishimura Ekiu v. United States, 142 U. S. 651, 660, 35 L. ed. 1146, 1149, 12 Sup. Ct. Rep. 336.

In the immigration act Congress has made the fact of the decision by immigration officials the sole condition of entry. The fact of the decision being established, any inquiry into the evidence is improper.

1. The act (§ 25) in unmistakable terms declares that the adverse administrative decision "shall be final."

(a) The officers do not lose exclusive jurisdiction by judging all the evidence er

Chin Yow v. United States, 208 U. S. 8, 13, 52 L. ed. 369, 370, 28 Sup. Ct. Rep. 201; Harlan v. McGourin, 218 U. S. 442, 54 L. ed. 1101, 31.Sup. Ct. Rep. 44, 21 Ann. Cas. 849.

(b) Want of any sustaining evidence in the record does not per se establish fraud or lack of good faith.

Fed. 768; Nishimura Ekiu v. United States, White v. Gregory, 130 C. C. A. 282, 213 142 U. S. 651, 660, 35 L. ed. 1146, 1149, 12 Sup. Ct. Rep. 336.

3. Under this act the courts have no

jurisdiction to review the evidence.

Fok Yung Yo v. United States, 185 U. S. 296, 46 L. ed. 917, 22 Sup. Ct. Rep. 686; Fong Yue Ting v. United States, 149 U. S. 698, 37 L. ed. 905, 13 Sup. Ct. Rep. 1016; White v. Gregory, 130 C. C. A. 282, 213 Fed. 768; Lee Gon Yung v. United States, 185 U. S. 306, 46 L. ed. 921, 22 Sup. Ct. Rep. 690; Lee Yung v. Patterson, 186 U. S. 175, 46 L. ed. 1110, 22 Sup. Ct. Rep. 795; Lem Moon Sing v. United States, 158 U. S. 538, 39 L. ed. 1082, 15 Sup. Ct. Rep. 967; Nichimura Ekiu v. United States, supra.

4. Cases under statutes providing for administrative proceedings of a different kind are not applicable.

Interstate Commerce Commission v. Louis

ville & N. R. Co. 227 U. S. 88, 57 L. ed. 431, 33 Sup. Ct. Rep. 185; Lewis v. Frick, 233 U. S. 291, 58 L. ed. 967, 34 Sup. Ct. Rep. 488; American School v. McAnnulty, 187 U. S. 94, 47 L. ed. 90, 23 Sup. Ct. Rep. 33; Zakonaite v. Wolf, 226 U. S. 272, 57 L. ed. 218, 33 Sup. Ct. Rep. 31.

Mr. Justice Holmes delivered the opinion of the court:

The petitioners are Russians seeking to enter the United States. They have been detained for deportation by the Acting Commissioner of Immigration, and have sued out a writ of habeas corpus. The writ was dismissed by the district court and the circuit court of appeals. 211 Fed. 236; 131 C. C. A. 641, 215 Fed. 573. By the return it appears that they are part of a group of. illiterate laborers, only one of whom, it seems, Gegiow, speaks even the ordinary