# Nishimura Ekiu v. United States/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
United States Supreme Court
142 U.S. 651
Nishimura Ekiu v. United States
As this case involves the constitutionality of a law of the United States, it is within the appellate jurisdiction of this court, notwithstanding the appeal was taken since the act establishing circuit courts of appeals took effect. Act March 3, 1891, c. 517, § 5, (26 St. 827, 828, 1115.)
It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe. Vat. Law Nat. lib. 2, §§ 94, 100; 1 Phillim. Int. Law, (3d Ed.) c. 10, § 220. In the United States this power is vested in the national government, to which the constitution has committed the entire control of international relations, in peace as well as in war. It belongs to the political department of the government, and may be exercised either through treaties made by the president and senate, or through statutes enacted by congress, upon whom the constitution has conferred power to regulate commerce with foreign nations, including the entrance of ships, the importation of goods, and the bringing of persons into the ports of the United States; to establish a uniform rule of naturalization; to declare war, and to provide and maintain armies and navies; and to make all laws which may be necessary and proper for carrying into effect these powers and all other powers vested by the constitution in the government of the United States, or in any department or officer thereof. Const. art. 1, § 8; Head-Money Cases, 112 U.S. 580, 5 Sup. Ct. Rep. 247; Chae Chan Ping v. U.S., 130 U.S. 581, 604-609, 9 Sup. Ct. Rep. 623.
The supervision of the admission of aliens into the United States may be intrusted by congress either to the department of state, having the general management of foreign relations, or to the department of the treasury, charged with the enforcement of the laws regulating foreign commerce; and congress has often passed acts forbidding the immigration of particular classes of foreigners, and has committed the execution of these acts to the secretary of the treasury, to collectors of customs, and to inspectors acting under their authority. See, for instance, acts of March 3, 1875, c. 141, (18 St. 477;) August 3, 1882, c. 376, (22 St. 214;) February 23, 1887, c. 220, (24 St. 414;) October 19, 1888, c. 1210, (25 St. 566;) as well as the various acts for the exclusion of the Chinese.
An alien immigrant, prevented from landing by any such officer claiming authority to do so under an act of congress, and thereby restrained of his liberty, is doubtless entitled to a writ of habeas corpus to ascertain whether the restraint is lawful. Chew Heong v. U.S., 112 U.S. 536, 5 Sup. Ct. Rep. 255; U.S. v. Jung Ah Lung, 124 U.S. 621, 8 Sup. Ct. Rep. 663; Wan Shing v. U.S., 140 U.S. 424, 11 Sup. Ct. Rep. 729; Lau Ow Bew, Petitioner, 141 U.S. 583, 12 Sup. Ct. Rep. 43. And congress may, if it sees fit, as in the statutes in question in U.S. v. Jung Ah Lung, just cited, authorize the courts to investigate and ascertain the facts on which the right to land depends. But, on the other hand, the final determination of those facts may be in trusted by congress to executive officers; and in such a case, as in all others, in which a statute gives a discretionary power to an officer, to be exercised by him upon his own opinion of certain facts, he is made the sole and exclusive judge of the existence of those facts, and no other tribunal, unless expressly authorized by law to do so, is at liberty to re-examine or controvert the sufficiency of the evidence on which he acted. Martin v. Mott, 12 Wheat. 19, 31; Railroad Co. v. Stimpson, 14 Pet. 448, 458; Benson v. McMahon, 127 U.S. 457, 8 Sup. Ct. Rep. 1240; In re Luis Oteiza y Cortes, 136 U.S. 330, 10 Sup. Ct. Rep. 1031. It is not within the province of the judiciary to order that foreigners who have never been naturalized, nor acquired any domicile or residence within the United States, nor even been admitted into the country pursuant to law, shall be permitted to enter, in opposition to the constitutional and lawful measures of the legislative and executive branches of the national government. As to such persons, the decisions of executive or administrative officers, acting within powers expressly conferred by congress, are due process of law. Murray v. Hoboken Co., 18 How. 272; Hilton v. Merritt, 110 U.S. 97, 3 Sup. Ct. Rep. 548.
The immigration act of August 3, 1882, c. 376, which was held to be constitutional in the Head-Money Cases, above cited, imposed a duty of 50 cents for each alien passenger coming by vessel into any port of the United States, to be paid to the collector of customs, and by him into the treasury, to constitute an immigrant fund; by section 2, the secretary of the treasury was charged with the duty of execution the provisions of the act, and with the supervision of the business of immigration to the United States, and, for these purposes, was empowered to make contracts with any state commission, board, or officers, and it was made their duty to go on board vessels and examine the condition of immigrants, 'and if on such examination there shall be found among such passengers any convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge, they shall report the same in writing to the collector of such port, and such persons shall not be permitted to land;' and by section 3, the secretary of the treasury was authorized to establish rules and regulations, and to issue instructions, to carry out this and other immigration laws of the United States. 22 St. 214.
The doings of Thornley, the state commissioner of immigration, in examining and detaining the petitioner, and in reporting to the collector, appear to have been under that act, and would be justified by the second section thereof, unless that section should be taken to have been impliedly repealed by the last paragraph of section 8 of the act of March 3, 1891, c. 551, by which all duties imposed and powers confered by that section upon state commissions, boards, or officers, acting under contract with the secretary of the treasury, 'shall be performed and exercised, as occasion may arise, by the inspection officers of the United States.' 26 St. 1085.
But it is unnecessary to express a definite opinion on the authority of Thornley to inspect and detain the petitioner.
Putting her in the mission-house as a more suitable place than the steam-ship, pending the decision of the question of her right to land, and keeping her there, by agreement between her attorney and the attorney for the United States, until final judgment upon the writ of habeas corpus, left her in the same position, so far as regarded her right to land in the United States, as if she never had been removed from the steam-ship.
Before the hearing upon the writ of habeas corpus, Hatch was appointed by the secretary of the treasury inspector of immigration at the port of San Francisco, and, after making the inspection and examination required by the act of 1891, refused to allow the petitioner to land, and made a report to the collector of customs, stating facts which tended to show, and which the inspector decided did show, that she was a 'person likely to become a public charge,' and so within one of the classes of aliens 'excluded from admission into the United States' by the first section of that act. And Hatch intervened in the proceedings on the writ of habeas corpus, setting up his decision in bar of the writ.
A writ of habeas corpus is not like an action to recover damages for an unlawful arrest or commitment, but its object is to ascertain whether the prisoner can lawfully be detained in custody; and, if sufficient ground for his detention by the government is shown, he is not to be discharged for defects in the original arrest or commitment. Ex part Bollman, 4 Cranch, 75, 114, 125; Coleman v. Tennessee, 97 U.S. 509, 519; U.S. v. McBratney, 104 U.S. 621, 624; Kelley v. Thomas, 15 Gray, 192; King v. Marks, 3 East, 157; Shuttleworth's Case, 9 Q. B. 651.
The case must therefore turn on the validity and effect of the action of Hatch as inspector of immigration.
Section 7 of the act of 1891 establishes the office of superintendent of immigration, and enacts that he 'shall be an officer in the treasury department, under the control and supervision of the secretary of the treasury.' By section 8, 'the proper inspection officers' are required to go on board any vessel bringing alien immigrants, and to inspect and examine them, and may for this purpose remove and detain them on shore, without such removal being considered a landing; and 'shall have power to administer oaths, and to take and consider testimony touching the right of any such aliens to enter the United States, all of which shall be entered of record.' 'All decisions made by the inspection officers or their assistants touching the right of any alien to land, when adverse to such right, shall be final unless appeal be taken to the superintendent of immigration, whose action shall be subject to review by the secretary of the treasury;' and the secretary of the treasury may prescribe rules for inspection along the borders of Canada, British Columbia, and Mexico, 'provided that not exceeding one inspector shall be appointed for each customs district.'
It was argued that the appointment of Hatch was illegal, because it was made by the secretary of the treasury, and should have been made by the superintendent of immigration. But the constitution does not allow congress to vest the appointment of inferior officers elsewhere than 'in the president alone, in the courts of law, or in the heads of departments.' The act of 1891 manifestly contemplates and intends that the inspectors of immigration shall be appointed by the secretary of the treasury; and appointments of such officers by the superintendent of immigration could be upheld only by presuming them to be made with the concurrence or approval of the secretary of the treasury, his official head. Const. art. 2, § 2; U.S. v. Hartwell, 6 Wall. 385; Stanton v. Wilkeson, 8 Ben. 357; Price v. Abbott, 17 Fed. Rep. 506.
It was also argued that Hatch's proceedings did not conform to section 8 of the act of 1891, because it did not appear that he took testimony on oath, and because there was no record of any testimony or of his decision. But the statute does not require inspectors to take any testimony at all, and allows them to decide on their own inspection and examination the question of the right of any alien immigrant to land. The provision relied on merely empowers inspectors to administer oaths, and to take and consider testimony, and requires only testimony so taken to be entered of record.
The decision of the inspector of immigration being in conformity with the act of 1891, there can be no doubt that it was final and conclusive against the petitioner's right to land in the Unites States. The words of section 8 are clear to that effect, and were manifestly intended to prevent the question of an alien immigrant's right to land, when once decided adversely by an inspector, acting within the jurisdiction conferred upon him, from being impeached or reviewed, in the courts or otherwise, save only by appeal to the inspector's official superiors, and in accordance with the provisions of the act. Section 13, by which the circuit and district courts of the United States are 'invested with full and concurrent jurisdiction of all causes, civil and criminal, arising under any of the provisions of this act,' evidently refers to causes of judicial cognizance, already provided for, whether civil actions in the nature of debt for penalties under sections 3 and 4, or indictments for misdemeanors under section 6, 8, and 10. Its intention was to vest concurrent jurisdiction of such causes in the circuit and district courts, and it is impossible to construe it as giving the courts jurisdiction to determine matters which the act has expressly committed to the final determination of executive officers.
The result is that the act of 1891 is constitutional and valid; the inspector of immigration was duly appointed; his decision against the petitioner's right to land in the United States was within the authority conferred upon him by that act; no appeal having been taken to the superintendent of immigration, that decision was final and conclusive; the petitioner is not unlawfully restrained of her liberty; and the order of the circuit court is affirmed.
Mr. Justice BREWER dissented.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
Public domainPublic domainfalsefalse