LAVIN, Immigrant Inspector, et al. v. LE FEVRE et al., 125 F. 693

MORROW, Circuit Judge (after stating the facts as above). The errors relied upon by the appellants are, first, that the question of the deportation of the appellees was within the judgment and the jurisdiction of the Secretary of the Treasury, and not within the jurisdiction of the Circuit Court; second, that after assuming jurisdiction the court erred in determining, contrary to the determination of the Secretary of the Treasury, that the appellees should be returned to British Columbia, and not to France.

The court below found the cause of the detention of the appellees to be as set forth in the return of the appellants to the writ of habeas corpus.

This return showed that the executive officers of the government had, upon investigation, determined that the appellees were alien immigrants, and belonged to a class of persons excluded by law from coming to the United States; that upon such investigation it was found and determined that'said immigrants had within one year prior thereto been imported into the United States at the port of New York from France for the purposes of prostitution; that each of them was liable to become a public charge; that immediately prior to being taken from the vessel that brought them to Seattle they had left the United States and gone to Victoria, from which place they were returning to the United States.

The deportation of alien immigrants of the class to which appellees belong is provided for in sections io and n of the act of March 3, 1891 (26 Stat. 1086, c. 551 [U. S. Comp. St. 1901, p. 1299]), as follows: “That all aliens who may unlawfully come to the United States shall, If practicable, be immediately sent bach on the vessel by which they were brought in.

The cost of their maintenance while on land, as well as the expense of the return of such aliens, shall be borne by the owner or owners of the vessel on which such aliens came.” “That any alien who shall come into the United States in violation of law may be returned as by law provided, at any time within one year thereafter, at the expense of the person or persons, vessel, transportation company, or corporation bringing such alien into the United States, and if that cannot be done, then at the expense of the United States.” The supplemental return of the immigrant inspector shows that the Secretary of the Treasury had issued his warrant directing the immigrant inspector to arrest the appellees and remove them to the port of New York for deportation to France.

It has been repeatedly held that the executive officers of the government have exclusive jurisdiction to determine the right of an alien immigrant to land and come into the United States. Nishimura Ekiu v. United States, 142 U. S. 651, 660, 12 Sup. Ct. 336, 35 L. Ed. 1146; Lem Moon Sing v. United States, 158 U. S. 538, 15 Sup. Ct. 967, 39 L. Ed. 1082; Fok Yung Yo v. United States, 185 U. S. 296, 305, 22 Sup. Ct. 686, 46 L. Ed. 917; The Japanese Immigrant Case, 189 U. S. 86, 23 Sup. Ct. 611, 47 L. Ed. 721.

It is equally clear that these officers have jurisdiction to carry their judgment into execution in the manner provided by law. United States v. Yamasaka, 100 Fed. 404, 40 C. C. A. 454. But whether, in deporting an alien immigrant, they are proceeding according to law, is a judicial question, and may be inquired into by the court upon writ of habeas corpus.

The court below had jurisdiction, therefore, upon the supplemental return of the immigrant inspector, to inquire into the legality of the warrant of deportation; but we think the finding of the court, that the facts and causes of detention of the appellees were as set forth in the return, disposed of the question.

If the appellees were alien immigrants who had been imported into the port of New York from France within one year, and their absence from the United States just prior to their arrival at Seattle was only temporary, as the finding of facts indicates, then their deportation to France would appear to be, under the circumstances, according to law. The judgment of the Circuit Court is modified, with instructions to vacate its order of deportation, discharge the writ of habeas corpus, and remand the appellees to the custody of the immigrant inspector.