United States ex rel. Johanson v. Phelps , 14 F.2d 679 ( 1926 )

HOUGH, Circuit Judge

(after stating the facts as above). The foundation stone of argument for relators is that they are not immigrants. This must be emphasized, both to do justice to the legal propositions advanced by relators’ counsel, and to dissipate a certain illogicality arising from the departmental decision in Ee Leskova. That young woman, like all the rest, stoutly denies that she wishes to remain permanently in the United States; she is a tourist or visitor whose one purpose is to visit her mother, yet she has been excluded (inter alia) because she is likely to become a public charge. Such ground of exclusion presupposes that the applicant is an immigrant; there is no provision of law for keeping out visitors or tourists because they may beeome public charges while visiting. The possibility is so remote that it has not been covered by legislation.

So I disregard this finding as irrelevant to the argument, and for the further reason that, if the girl or any of the other relators is such an immigrant, he or she must be excluded under section 13 of the act of 1924 (Comp. St. § 4289%ff), because none of them has or pretends to have an “unexpired immigration visa.” Indeed, these cases arise under the “immigration laws” only because, by section 28 (g) of the act of 1924 (Comp. St. § 4289%m), all laws relating to the exclusion of aliens are included under that term; for what prevented the entry of these people as visitors was and is the passport laws and regulations of this country. [1] What is commonly known as the War or War-Time Passport Act became law May 22, 1918 (Comp. St. §§ 7628e-7628h), and beside penal provisions, now repealed, it conferred on the President power to provide how and when the movements of aliens were to be watched, permitted, or restricted. The statute does not use the word “visa,” an omission in my opinion unimportant, for the function of a visa on a passport is too old and well known to need statutory definition. It is a recognition by the country ad quern of the validity of a passport issued by the country a quo, and the country of the visa may attach to it any other significance or importance deemed desirable.

The Act of March 2, 1921 (Comp. St. § 7628hh), in most general terms continued in force the provisions of the act of 1918, so far as they relate “to requiring passports and visas from aliens seeking to come to the United States.” This undoubtedly continued, while specifically recognizing visas, the power of the President to apply and enforce the act as he deemed best. Then the President, by executive order dated January 12, 1925, required all aliens, being nonimmigrants, to present as a condition of entry into the country passports “duly visaed by consular officers of the United States,” and further authorized the Secretary of State and the Secretary of Labor to make “additional rules and regulations not inconsistent with this order for the purpose of carrying out” the provisions of the statute and the executive order.

Subsequently, and on September 30,1925, the Secretary of State, by rule 42, instructed consuls, before issuing visitors visas, to “satisfy” themselves of the temporary nature of the proposed visit. The subject is covered from the standpoint of the Department of Labor by supdivision H of the Immigration Eules of July 1, 1925.

While antedating these particular regulations or orders, the Chryssikos Case (C. C. A.) 3 F.(2d) 372, shows that, when a consul had issued a visitor’s visa, exclusion by the Department of Labor, on the ground that the alien was not a bona fide visitor, was still possible, though difficult. That the act of 1921 continued (semble) all but the penal provisions of the act of 1918 is, I think, held by Flora v. Rustad (C. C. A.) 8 F.(2d) 335, and Koyama v. Burnett (C. C. A.) 8 F.(2d) 940, and to the same effect is the opinion of the Attorney General dated March 30, 1921.

Prom this statement it is, I think, evident that the inspector at St. Albans did the only thing he could do under the regulation, and the return, in stating that none of the relators had a passport visaed by an American consul, forecloses all discussion, except of the possible invalidity of the rules under which the inspector was bound to act. On this point it is urged, first, that there is no law requiring visas on visitors’ passports. This is equivalent to saying that the President had no lawful right to make the order of January 12,1925. To this I cannot agree, believing that the power was specifically continued in him by the act of 1921.

Second, it is further said that, even if visas are required, it is merely a “ministerial” act to affix them; the consul Is bound (semble) to visa any passport presented by one who says he is a visitor only; and, if he refuses, “equity should consider as done that which ought to be done” and treat as visaed the passports presented by these relators. This argument, of course, involves the nullification of rule 42 of the Secretary of -State.

The core of this argument is that the consul in Montreal has no right to satisfy himself that these relators are real visitors, and the Secretary of State had no right to instruct him so to do. Having regard to the nature of consular action as to passports, and general knowledge of history, I should not agree; but, when the immigration laws are considered, many reasons appear for upholding the power of consuls in the premises.

Visas have become, in the latest laws about immigration, words of art. In the act of 1924, section 2 (f), being Comp. St. § 4289%a, requires an “immigration visa,” and section 7 (Comp. St. § 4289%ee) elaborates’the requirement, while section 13 excludes an immigrant without one, and section 2 (f) distinctly imposes on the issuing consul the duty of investigation and decision. There can be no reason for one rule as to an immigrant’s visa, and another as to a tourist’s visa. If in the first ease the consul must refuse action'if he “has reason to believe” the would-be imigrant inadmissible, there is every reason why he should act similarly if he has reason to believe that the pretended visitor is not within the true meaning of section 3 (2) of the act.

Result is that I hold: (1) The President’s order of 1925 is a lawful exercise of authority; and (2) so is the Secretary of State’s instruction to consuls; (3) historically, the affixing of a visa to a passport is not a ministerial act, but one in which the visa-giving officer represents his country, and is authorized to safeguard that country’s interests to the best of his discretion and ability; and (4) the action of the consul at Montreal in cases such as these was strictly warranted by law, irrespective of history or tradition.

Finally, it is held that, though I agree that the consul at Montreal might well have inferred from the facts testified to that none of these relators was a bona fide tourist or visitor, this court has no jurisdiction to disregard his action, even if it did not agree on the question of facts; but under the Chryssikos Case, supra, the board of special inquiry might have discovered facts unknown to the consul and excluded the aliens, even if they had visas. As nothing of the sort happened, however, the action of the board is sustained for the reason stated in the returns.

In each ease, writ discharged, and relator remanded.