Mahler v. Eby, 264 U.S. 32 (1924)
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Mahler v. Eby
No. 184
Argued January 24, 25, 1924
Decided February 18, 1924
264 U.S. 32
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES
FOR THE NORTHERN DISTRICT OF ILLINOIS
Syllabus
1. The inhibition of ex post facto laws (Const. Art. I, § 9) applies only to criminal laws, and not to a law for deporting aliens who by conviction of crime are shown to be undesirable as residents of this country. P. 39.
2. The deportation thus provided is not punishment. Id.
3. Repeal of the law under which an alien was convicted does not do away with the conviction as a basis of subsequent deportation. Id.
4. The Alien Act of May 10, 1920, establishes classes of persons who in the judgment of Congress are eligible for deportation, and directs the Secretary of Labor to deport those of these classes who he finds to be undesirable residents. Held not invalid as a delegation of legislative power, since the discretion delegated is sufficiently defined by the policy of Congress and the common understanding as to what "undesirable residents" are. P. 40.
5. Greater precision is required of statutes defining and punishing crimes (Cohen Grocery Co. case, 255 U.S. 81) than of those delegating legislative power to executive boards and officers. P. 41.
6. In deportation proceedings pursuant to the Alien Act of May 10, 1920, against aliens found to have been convicted under the Espionage and Selective Draft Acts, the convictions are sufficient evidence per se that the respondents are "undesirable residents." P. 42.
7. Failure of aliens to answer questions, under advice of counsel, held also to warrant inferences by the Secretary of Labor against their desirability. Id.
8. Under the above Act of 1920, a finding by the Secretary of Labor that an alien is an undesirable resident is a jurisdictional prerequisite to deportation. P. 43.
9. The finding must appear in the warrant of deportation itself, or the warrant is void, and the finding cannot be inferred from recitals of the warrant that the alien "has been found" in the United States in violation of the Deportation Act, and has been finally convicted of the offenses named in that act. P. 43.
10. It is a general principle that, where a finding of fact is a condition precedent to an act of an executive officer exercising delegated legislative power, the record of his act must show that the finding was made. P. 44. Wichita R. Co. & Light Co. v. Public Utilities Comm’n, 260 U.S. 48.
11. This Court, on an appeal, can notice and rectify a plain and serious error in a habeas corpus proceeding, though unassigned. P. 45.
12. Where a warrant for deportation, issued under the Act of May 10, 1920, is jurisdictionally defective in not reciting that the alien had been found an undesirable resident, his discharge in habeas corpus may be delayed, under Rev.Stats. § 761, for a reasonable time to give opportunity for the Secretary of Labor to make the finding, if justified, from evidence in the original or in a new deportation proceeding, and to issue a new warrant accordingly. P. 46.
Reversed.
This is an appeal from a judgment of the District Court of the United States for Northern Illinois dismissing five writs of habeas corpus and remanding the appellants, who are aliens, to the custody of the Immigration Inspector at Chicago for deportation in pursuance to warrants issued by the Secretary of Labor. The cases were consolidated in the court below.
In 1918, all the appellants were tried and found guilty of violation of § 5 of the Selective Service Act of May 18, 1917, c. 15, 40 Stat. 76, 80, and of § 4 of the Espionage Act of June 15, 1917, c. 30, 40 Stat. 217, 222. All but Petro Nigra were sentenced to the United States penitentiary at Leavenworth, Kansas, for a period of 5 years, and Nigra was sentenced to the same place for 18 months. Upon error to the court of appeals, these sentences were affirmed, and became final.
Pending the imprisonment of appellants, the Secretary of Labor issued warrants for arrest of the appellants under the Act of May 10, 1920, c. 174, 41 Stat. 593.
They were all in the same form. That as to Mabler was as follows:
WARRENT OF ARREST
No. 54616/151
United States of America
U.S. Department of Labor
Washington
To Harry R. Landis, Inspector in Charge, Chicago, Illinois:
Whereas, from evidence submitted to me, it appears that the alien Herbert Mabler, who landed unknown at the port of Seattle, Washington, on or about the 1st day of April, 1913, has been found in the United States in violation of the Act of May 10, 1920, for the following among other reasons:
That he is an alien who, since August 1, 1914, has been convicted of a violation of or a conspiracy to violate an act entitled "An act to punish acts of interference with the foreign relations, the neutrality, and the foreign commerce of the United States, to punish espionage, and better to enforce the criminal laws of the United States, and for other purposes," approved June 15, 1917, or the amendment thereof, approved May 16, 1918, the judgment on such conviction having become final, and that he is an alien who, since August 1, 1914, has been convicted of a violation of or a conspiracy to violate an act entitled "An act to authorize the President to increase temporarily the military establishment of the United States," approved May 18, 1917, or any amendment thereof or supplement thereto, the judgment on such conviction having become final:
I, Theodore G. Risley, Acting Secretary of Labor, by virtue of the power and authority vested in me by the laws of the United States, do hereby command you to take into custody the said alien and grant him a hearing to enable him to show cause why he should not be deported in conformity with law,
etc.
On June 14 and 15, 1921, each appellant had a hearing before Immigrant Inspector Paul at Leavenworth at which appellants were examined orally, and the indictment, the judgments, and the opinion and judgment of the circuit court of appeals were introduced in evidence. The Secretary of Labor, on the records thus made and presented to him, issued a warrant of deportation of each appellant in all respects, mutatis mutandis, like that in the case of Herbert Mabler, as follows:
To Commissioner of Immigration, Montreal, Canada, or to Any Officer or Employee of the U.S. Immigration Service:
Whereas, from proofs submitted to me, after due hearing before Immigrant Inspector C. H. Paul, held at Leavenworth, Kansas, I have become satisfied that the alien, Herbert Mabler, who landed at the port of Seattle, Washington, on or about the 1st day of September, 1913, has been found in the United States in violation of the Act of May 10, 1920; that he is an alien who since August 1, 1914, has been convicted of a violation of or a conspiracy to violate an act entitled
An act to punish acts of interference with the foreign relations, the neutrality, and the foreign commerce of the United States, to punish espionage, and better to enforce the criminal laws of the United States, and for other purposes,
approved June 15, 1917, or the amendment thereof approved May 16, 1918, the judgment on such conviction having become final; that he is an alien who since August 1, 1914, has been convicted of a violation of or a conspiracy to violate an act entitled "An act to authorize the President to increase temporarily the military establishment of the United States," approved May 18, 1917, or any amendment thereof or supplement thereto, the judgment on such conviction having become final:
I, E. J. Henning, Assistant Secretary of Labor, by virtue of the power and authority vested in me by the laws of the United States, do hereby command you to return said alien to Canada, the country whence he came, at the expense of the appropriation, "Expenses of Regulating Immigration, 1922."
For so doing this shall be your sufficient warrant.
Witness my hand and seal this 10th day of November, 1921.
(Signed) E. J. Henning,
Assistant Secretary of Labor
The Act of Congress enacted May 10, 1920, c.174, 41 Stat. 593, provides that aliens of certain classes described in the act, in addition to those for whose expulsion authority already exists, shall, upon the warrant of the Secretary of Labor, be taken into his custody and deported in the manner provided in §§ 19 and 20 of the Immigration Act of February 5, 1917, 39 Stat. p. 889, "if the Secretary of Labor, after hearing, finds that such aliens are undesirable residents of the United States." The classes include all aliens interned as enemies by the President’s proclamation under R.S. § 4067 and alien convicts under the Espionage Act, the Explosives Act, the act restricting foreign travel, the Sabotage Act, the Selective Draft Act, the act punishing threats against the President, the Trading with the Enemy Act, and certain sections of the Penal Code. Section 2 makes the decision of the Secretary of Labor in ordering expulsion of an alien under the act final.
The petitions for writs of habeas corpus charged that the warrant of deportation under which the petitioners were held were void because, at the time of the issue of the warrants, the Espionage Act and the Selective Draft Act, for convictions under which they were about to be deported, had been repealed, that the Act of May 10, 1920, under which the warrant was issued, was an ex post facto law, because the convictions for which they were to be deported were for acts committed before its passage, that there was no legal evidence to establish that petitioners were aliens amenable to deportation under the act, that the hearing and proceedings were without due process of law, and that, for these and other reasons, the commitment was void.
Counsel for the appellants, in their brief and in their argument, attacked the constitutionality of the Act of 1920 not only because it was an ex post facto law, but because it delegated legislative power to an executive officer, and because the criterion for his finding -- i.e., that the persons to be deported should be "undesirable residents of the United States" -- was so vague and uncertain that it left the liberty of the alien to the whim and caprice of an executive officer, in violation of due process required by the Fifth Amendment. They further attacked the validity of the warrants on the ground that they did not show a finding by the Secretary that the appellants were undesirable residents of the United States, a condition precedent to a legal deportation. They further alleged that, as to all the petitioners, there was no evidence to sustain such a finding, if it had been made, and that ,as to Petro Nigra, there was also a fatal lack of evidence at his hearing to show that he had been convicted of the violations of the statutes charged in the warrant.