Immigration Act-Custody of Immigrants Pending Appeal. DEPARTMENT OF JUSTICE, SIR: The act of Congress of March 3, 1891 (26 Stat. 1084) prohibiting the introduction into this country of certain objectionable classes of aliens, provides (section 8) that on the arrival of immigrant ships the inspection officers shall enter them and make inspection of the aliens on board, or they "may order a temporary removal of such aliens for examination at a designated time and place, and then and there detain them until a thorough inspection is made. But such removal shall not be considered a landing during the pendency of such examination." It is the practice of the port of New York to make inspections of immigrants at Ellis Island, to which point they are taken in barges controlled by the steamship companies engaged in transporting immigrants. The immigrants that appear after examination to belong to the prohibited classes are immediately returned to the vessel in which they came, or a vessel of the same line, for deportation under section 10 of the act. At the time immigrants are returned as stated the steamship companies are notified in writing of the decision of the Commissioner of Immigration, and if an appeal is taken from his decision to the Superintendent of Immigration or Secretary of the Treasury, under section 8, or the writ of habeas corpus is applied for, it is done after the party taking such action has been returned to the custody of the steamship company that brought him here, the Government looking to the company for his safe-keeping under the penalty prescribed by section 8. Upon this state of facts the following questions are submitted for opinion: I. "Whether the Commissioner of Immigration or the steamship companies are responsible for the custody of these people pending proceedings on appeal or habeas corpus, and in whom the authority of detention rests?" II. "If these proceedings should be determined adversely to the emigrants, at what time prior to the sailing of the vessel they should be returned thereto?" III. "If it is the duty of the steamship companies to Immigration Act-Custody of Immigrants Pending Appeal. receive the emigrants, as claimed by the Commissioner of Immigration, whether they will be authorized in detaining them at some suitable place off the ship until the time of sailing?" It is not easy to see on what provision of the statute the contention rests that aliens held unfit to land, after inspection at Ellis Island, must remain in Government custody until they can be taken out of the country. It may be inconvenient to shipowners to have the responsibility of the safekeeping of these people, but it is an inconvenience which they have brought on themselves by omitting precautions necessary for their protection and that of the public, and I think it a wise instance of preventive justice that violations of the statute, in this important particular, should entail serious inconvenience. The statute authorizes (sec. 8) the required examination or inspection of immigrants to be made on board ship, as well as elsewhere, but I do not understand the shipowners to claim exemption from responsibility for the safe-keeping of aliens rejected after inspection on board ship while awaiting deportation, and yet, if the argument of hardship and inconvenience is valid as to aliens rejected after inspection on land, it would seem to be equally so as to those rejected after inspection on shipboard. It is quite inadmissible to infer that the control of immigrants assumed by the inspecting officers after removal from the ship for inspection was intended to continue as to immigrants rejected on such inspection while awaiting deportation. I do not think the language of the act can be made to accord with any such understanding of it, for what does it mean when it speaks of the removal of immigrants to the place of inspection as "temporary," and declares that they shall be detained there "until a thorough inspection is made," if not that after the inspection is accomplished the detention of immigrants so removed shall cease by admission into the country of such as are fit or rejection of such as are not? But if the Government is to detain these people while appealing from the decision of the Commissioner of Immi. gration or applying for the writ of habeas corpus, and up to the hour of deportation, as the shipowners contend, what 5687-VOL 20--27 Immigration Act-Custody of Immigrants Pending Appeal. value has the word "temporary" as the attributive of "removal," and how can the right to detain immigrants at "a designated time and place" and "until a thorough inspection is made" have reference to appeals or habeas corpus proceedings, which are conducted at places predetermined by law and not by regulation, and which involve no inspection or examination of immigrants? In complete accord with this meaning is section 10 of the act, which makes it an offense "if any master, agent, con. signee, or owner of such vessel shall refuse to receive back on board the vessel such aliens, or shall neglect to detain them thereon, or shall refuse or neglect to return them to the port from which they came," etc., and suggests inquiry as to the value to be given the significant words "or shall neglect to detain them thereon," if what is contended for by the shipowners is correct? It is difficult to believe that these words have reference only to the detention of immigrants on arrival in port and before removal for inspection, or just before deportation. It seems to me that such restriction of their meaning would be quite as inadmissible as it would be to hold that immigrants rejected after inspection on shipboard and there awaiting deportation, are at the risk of the United States and not of the violators of the law, the shipowners. As already suggested, it is far from satisfactory to say that Congress, in leaving it optional to conduct inspections of immigrants on shipboard or elsewhere, intended that in the latter case the Government should be burdened with the custody of rejected immigrants any longer than necessary for thorough inspection. It is to be presumed that Congress intended that public considerations and not caprice should dictate whether inspections should be on board ship or on land, and I can not suppose that it was intended that inspections in the latter case should be more burdensome to the Government than in the former. Besides, the act expressly provides (sec. 10) that the cost of maintaining aliens "while onland" and the expense of their return shall be borne by the shipowners, and, if Congress had intended that the Government should have the custody of these people any longer than the purposes of inspection required, it is fair to presume the law would have contained a provision that the ship. Immigration Act-Custody of Immigrants Pending Appeal. owner should defray the cost of their detention while awaiting to be returned. This disposes of the first and second questions. The third and last question presents the inquiry whether shipowners, chargeable, as above held, with the safe custody of aliens, "will be authorized in detaining them at some suitable place off the ship until the time of sailing." It seems to me that it would be an inadmissible construction of the act to hold that the vessel is the only place recognized by it for the detention of aliens unlawfully brought here while awaiting return or the final decision of their claim to admission into the country. If it is impracticable to return them in the ship that brought them, as section 10 requires, "if practicable," or if for any other reason, as, for example, the presence of contagious diseases on the vessel, it becomes necessary or desirable to land them temporarily, I can not doubt that this may be lawfully effected under one of the provisions of section 8, with the permission of the inspection officers, and at the risk and cost of the shipowner. It is true the statute declares (sec. 8) that the removal for inspection "shall not be a landing during the pendency of such examination;" but it is not a fair deduction from this that removals for other reasons, satisfactory to the inspection officers and at the request of the shipowner, are not compatible with a continuing responsibility on his part under the act up to the time of deportation. If the provision for removals for inspection purposes by order of the Government had not been followed by the restrictive words above quoted, an implication unfavorable to the Government might have been the result. But there does not seem to be any room for holding that a temporary landing of aliens at the request of the shipowner and by permission of the inspection officers can affect his responsibility under the act. This view derives support from the recent case of Nishimura Ekiu v. United States (142 U. S., 651), where it was said by the court that placing a female alien in the mission house at San Francisco and keeping her there pending the decision of the question of her right to land, by agreement between her attorney and the attorney for the United States, "left her in Power to Sell Government Property-Attorney-General. the same position, so far as regarded her right to land in the United States, as if she never had been removed from the steamship." (P. 661.) This view of the act is consistent with both its language and intent, and I am therefore of opinion that the third question should be answered in the affirmative, with the qualification that the permission of the inspection officers must in every case be obtained. Very respectfully, W. H. H. MILLER. The SECRETARY OF THE TREASURY. POWER TO SELL GOVERNMENT PROPERTY. The opinion of December 22, 1891 (20 Opins. 284), covers the question asked in the letter of the Secretary of War of date June 25, 1892. DEPARTMENT OF JUSTICE, July 11, 1892. SIR: Your letter of June 25, 1892, and the inclosure therein referred to, with reference to the sale of the Government property at Fort Union, have received my consideration, and I beg to say in reply that I think it will be found. on examination that my opinion of December 22, 1891, covers the subject of your inquiry. I will direct an inquiry, with a view to bringing to justice the persons guilty of the depredations mentioned in the report of Capt. Patten. Very respectfully, The SECRETARY OF WAR. W. H. H. MILLER. ATTORNEY-GENERAL. The Attorney-General will express no opinion where the matter is not one requiring the action of the head of a Department as falling within his official duties. DEPARTMENT OF JUSTICE, SIR: Your letter of June 7, 1892, brings to my attention the action of the Second Auditor of the Treasury in directing that a suspension against Lieut. Col. Barr be made to |