Bugajewitz v. Adams/Opinion of the Court

This is an appeal from an order discharging a writ of habeas corpus and remanding the petitioner to custody. The ground of the appeal is that the act of March 26, 1910, chap. 128, § 2, 36 Stat. at L. 263, 265, U.S.C.omp. Stat. Supp. 1911, pp. 501, 502, relied on as authority for the arrest, impairs the petitioner's constitutional rights. It appears from the petition and the return to the writ that the petitioner is an alien; that she entered the United States not later than January 4, 1905, and that she was arrested on August 3, 1910, on an order of the Acting Secretary of Commerce and Labor, directing the Immigrant Inspector to take her into custody, and to grant her a hearing to show cause why she should not be deported. The order recited that she was then a prostitute and inmate of a house of prostitution, and that she was a prostitute at the time of entry, and entered the United States for the purpose of prostitution or for an immoral purpose. The answer to the return demurs to its sufficiency, and denies that she was a prostitute at the time of entry, or that she entered the United States for any of the purposes alleged; but we must take it, at least, that she is a prostitute now.

By the act of February 20, 1907, chap. 1134, § 3, 34 Stat. at L. 898, 899, any alien woman found practising prostitution within three years after she should have entered the United States was to be deported 'as provided by sections twenty and twenty-one of this act.' This section was amended by the act of March 26, 1910, chap. 128, § 2, 36 Stat. at L. 265, U.S.C.omp. Stat. Supp. 1911, p. 502, [591]

and the limitation of three years was stricken out, but the amendment still refers to §§ 20, 21, and orders deportation 'in the manner provided by' §§ 20, 21. The beginning of these two sections provides for the taking into custody of aliens subject to removal, within three years from entry, and so it has been argued in other cases that the three-year limitation still holds good. The construction of the amendment was not relied on here, but before we can deal with the constitutional question it becomes necessary to dispose of that point. We are of opinion that the effect of striking out the three-year clause from § 3 is not changed by the reference to §§ 20 and 21. The change in the phraseology of the reference indicates to narrowed purpose. The prostitute is to be deported, not 'as provided' but 'in the manner provided' in §§ 20, 21. Those sections provide the means for securing deportation, and it still was proper to point to them for that. United States ex rel. Mango v. Weis, 181 Fed. 860; Chomel v. United States, 112 C. C. A. 461, 192 Fed.

The attempt to reopen the constitutional question must fail. It is thoroughly established that Congress has power to order the deportation of aliens whose presence in the country it deems hurtful. The determination by facts that might constitute a crime under local law is not a conviction of crime, nor is the deportation a punishment; it is simply a refusal by the government to harbor persons whom it does not want. The coincidence of the local penal law with the policy of Congress is an accident. Fong Yue Ting v. United States, 149 U.S. 698, 707, 728, 730, 37 L. ed. 905, 911, 918, 919, 13 Sup. Ct. Rep. 1016; Wong Wing v. United States, 163 U.S. 228, 231, 41 L. ed. 140, 141, 16 Sup. Ct. Rep. 977; Zakonaite v. Wolf, 226 U.S. 272, 275, 57 L. ed. --, 33 Sup. Ct. Rep. 31; Tiaco v. Forbes, May 5, 1913. [228 U.S. 549, 57 L. ed. --, 33 Sup. Ct. Rep. 585.] The prohibition of ex post facto laws in article 1, § 9, has no application (Johnannessen v. United States, 225 U.S. 227, 242, 56 L. ed. 1066, 1072, 32 Sup. Ct. Rep. 613), and with regard to the petitioner, it is not necessary to construe the statute as having any retrospective effect.

Judgment affirmed.

In accordance with a stipulation of counsel, the same judgment will be entered in the cases of Schwartz v. Adams, No. 240, and Weiner v. Adams, as in Bugajewitz v. Adams, No. 241, ante p. 585.

Judgments affirmed.