Speech #630043657

OF COMMERCE AND LABOR. Sin: I have the honor to acknowledge the receipt of your letter of the 30th ultimo. in reference to the release. by the Secretary of Commerce and Labor. on bond. of certain alien women who are now held in custody by the immigration officers at San Francisco. together with certain inclosures and two opinions of the solicitor of your department. one dated January 21. 1909. and the other dated September 25. 1912. It appears from the papers that these women were taken into custody and warrants of arrest issued pursuant to sections 20 and 21 of the immigration act of February 20. 1907 (34 Stat.. 904. 905). After hearing. and upon due consideration of all the facts. warrants for the deportation of the aliens were Issued by the Secretary of Commerce and Labor. Before these warrants could be executed. petitions were filed for writs of habeas corpus on their behalf. and orders were Issued to show cause why the writs should not issue. On the hearing the United States circuit court refused to issue the writs and dismissed the petitions. and remanded the aliens to the custody of the immigration officers. From this order denying the writ an appeal has been taken on behalf of the aliens to the Supreme Court of the United States. The aliens now desire to be released from custody on bond under the provisions of section 20 of the act of February 20. 1907. but the United States attorney at San Francisco is opposed to such a course. on the ground that the aliens are still in a sense in thecustody of the court. and that to allow them to go at large on bail would be contrary to rule 34. subdivision 1. of the rules of the Supreme Court. which provides: " Pending an appeal from the final decision of any court or judge declining to grant the writ of habeas corpus. the custody of the prisoner shall not he disturbed." After having given due consideration to the two briefs of the Solicitor for the Department of Commerce and Labor. and to the arguments of the United States attorney at San Francisco. I have reached the conclusions: First. that the power of the Secretary of Commerce and Labor to release aliens under a bond as authorized by section 20 of the immi ration act Is effective up to the time of the actual deportation of the aliens and Is not limited to the time when the order of deportation Is made. On that point it does not seem necessary to add anything to the opinion of the solicitor of your department of January 21. 1909 . second. that the rule of the Supreme Court referred to above clearly indicates that the custody of the Department of Commerce and Labor shall be undisputed in cases where the petition Is denied and shall be left with all the legal incidents it had prior to the application for the writ. of which one Is the possibility of a release on bail by the Secretary of Commerce and Labor. under section 20. aforesaid. This is necessarily so. because the writ is denied for the reason that the petitioners own showing make out no case to justify an interference by the court with his present custody. and the only action the court would take in any event would be to remand him to the same custody. (Ex parte Milligan. 4 Wall.. 2. 110. 111.) I therefore agree with the opinion of the Solicitor of Commerce and Labor dated September 30. 1912. and I am satisfied that the Secretary of Commerce and Labor has the power to release these aliens on bail. notwithstanding their petitions for habeas corpus and their appeals from the orders denying these petitions. It is to be observed that the release of the aliens on bail. pending these appeals. will not conflict with any possible action by the Supreme Court. In your letter. however. you state that you intend to act in these cases on the view that the executive authority to arrest and hold an alien in confinement for means of making deportation effective. that aliens held for deportation are entitled to their liberty so far as may be consistent with that end. and that it Is no part of the duty of the department to exercise its authority in such a way as to constitute its treatment of aliens a punishment for having been found in the United States in violation of the immigration law. If you mean by this that these aliens are entitled as of right to release upon bail in every case where an appeal has been taken from an order denying a writ of habeas corpus. I am unable to concur. The denial of the writ means that the petitioner has made out no probable case for release from the custody in which he is held and that custody should not be disturbed. To hold the alien in custody after such an order. and pending an appeal therefrom. is not a punishment of them but is merely making the law effective. and differs not at all in principle from the custody which takes place between the original hearing and the order of deportation. Upon the hearing of the petition for a writ of habeas corpus the correctness of the finding of the Immigration officials can not be questioned. Upon that point they are the final judges. The only questions which can be raised on such an application are: First. the Jurisdiction of the commissioners . second. whether the hearing was such as to constitute due process of law. and. third. whether the law is constitutional.