File No. 8195/4–5.
A reply to your note has been withheld awaiting an opinion from the
Attorney-General on a pertinent case, pending at New Orleans, of an
emigrant applying for admission in pursuance of a contract of the
character described in the pamphlets which you inclosed.
I have now the honor to inclose herewith a copy of the opinion rendered
in the case by the Attorney-General, by which you will see that for
reasons stated therein the alien was held to be not entitled to
admission into the United States.
[Subinclosure.]
The Attorney-General
to the Secretary of Commerce and
Labor
.
Department of Justice,
Washington
,
September 30,
1907
.
Sir: I have the honor to acknowledge the
receipt of your letter of the 26th instant in reference to the
appeal of Geronimo Garcia, who has been excluded from the United
States by a decision of the board of special inquiry at the port of
New Orleans, in a test case brought by the Louisiana state board of
agriculture and immigration, in which you recite the facts brought
out by the testimony and request an expression of my opinion as to
whether the admission of an alien to the United States under the
circumstances thus recited would be in violation of the immigration
act of February 20, 1907.
The facts as stated by you are as follows:
Geronimo Garcia arrived at the port of New Orleans from Cuba-on
August 5, 1907. His passage was paid by Mr. Reginald Dykers, who at
the time was the regularly authorized agent of the Louisiana state
board of agriculture and immigration, out of funds appropriated in
regular manner by the state legislature. Mr. Dykers and a Mr. L. H.
Allen, the latter also being a representative of the said board,
approached the alien in Habana and solicited him to immigrate to the
State of Louisiana, assuring him that employment as a farm laborer
would be secured for him on his arrival in said State. In exchange
for the passage money the alien gave to the said officials a
receipt, in which he promised to return to the Louisiana state board
of agriculture and immigration with a year the sum so advanced. It
is the expectation of the state agent that in such cases, upon the
alien’s securing employment, his employer will loan him the amount
necessary to reimburse that State and deduct the same from his
wages; but no method has been provided whereby an employer can be
compelled to make such loan, it being the intention of the state
board to rely upon the moral obligation of the alien’s promise to
reimburse the State and not upon any legal measures against him or
his employer. The alien is left free to select such employer as he
pleases, although the expectation of the agent is that aliens
selected by him under this plan will be of such a reliable class
that they will usually seek employment from parties who can be
depended upon to advance to the alien the amount of the passage and
enable him to therewith reimburse the state fund. It also appears
that, while the alien Garcia had seen advertisements published
abroad by the Louisiana state board of agriculture and immigration,
reciting the inducements the State of Louisiana offers for
immigration thereto, he was not induced to come to the United States
solely by reason of such inducements; nor was the sole inducement
the fact that his [Page 73] passage
was paid by another, nor the fact, brought out in the testimony,
that his father had previously come to this country. These facts
operated to some extent, however, to lead him to endeavor to avail
himself of the assurances given by the above-named agents that
employment as a farm laborer would be secured for him on his landing
in Louisiana.
Although the desire of the state agent is that Garcia, if landed,
shall enter the employ of an individual planter who would be willing
to loan him the cost of his passage and gradually deduct it from his
wages, thus enabling said alien to immediately reimburse the state
fund, he is, as above stated, left free to accept other employment
if he so desires; and there is no evidence that shows positively
that the said Garcia (or any other alien imported in accordance with
the plan) might not, after landing, be employed by a corporation,
association, or society, as freely and in the same manner as by an
individual; suggesting a possibility that, under the indirect method
of attempting to eventually secure reimbursement to the state fund
of the amount of the alien’s passage, a condition could arise which
might, perhaps, be regarded as being, remotely but yet in effect, a
payment of such passage by a corporation, society, or
association.
Upon these facts I am of the opinion that Garcia is not entitled to
admission into the United States.
1. It appears from this statement that representatives of the
Louisiana state board approached Garcia in Habana and solicited him
to immigrate to Louisiana, assuring him that employment as a farm
laborer would be secured for him on his arrival, and that such
assurances operated as a material, if not the principal, inducement
to his immigration, since neither the advertisements published by
the State, nor the payment of his passage, nor his father’s previous
coming, was the sole inducement to his coming, but these matters
operated to some extent to lead him to endeavor to avail himself of
the assurances of employment given him by the representatives of the
state board.
Among the classes of aliens excluded by section 2 of the act of 1907
(34 Stat., 898) are “persons hereinafter called contract laborers,
who have been induced or solicited to migrate to this country by
offers or promises of employment, or in consequence of agreements,
oral, written, or printed, expressed or implied, to perform labor in
this country of any kind, skilled or unskilled.” This provision, as
stated in my opinion, rendered the President on March 20, 1907,
excludes “aliens solicited or induced to immigrate by reason of
offers or promises, even when there is no contract of employment.”
(26 Opin., 199, 207.)
The assurances given to Garcia by the state agents constitute, in my
opinion, promises of employment within the inhibition of the
statute. While it is provided that aliens coming to this conutry in
consequence of advertisements by a State of its inducements to
immigration shall not be treated as coming under a promise of
employment (sec. 6), there is no exception in favor of a State in
reference to specific promises of employment to individual
immigrants, such as were held out to Garcia by the representatives
of the state board. Neither is there any requirement in the act that
the promises of employment, in order to work exclusion, must be the
sole inducement to the immigration.
Therefore, since, as stated in my opinion rendered the President on
March 6, 1907, the unquestionable right of Congress to regulate the
admission of aliens into the United States clearly controls the
action of any state agent in this respect (26 Opin., 180, 193), it
follows that on account of the assurances of employment that were
given to Garcia as an inducement to his immigration, he should be
excluded from admission.
2. Furthermore, as his passage was paid out of state funds, unless it
was also clearly shown that he did not belong to any of the classes,
such as paupers, etc., specifically excluded by the act, he comes
within the provision of section 2 of the act (34 Stat., 898)
excluding any person whose ticket or passage is paid for with the
money of another or who is assisted by others to come, unless it is
affirmatively and satisfactorily shown that such person does not
belong to one of the foregoing excluded classes, and that said
ticket or passage was not paid for by any corporation, association,
society, municipality, or foreign government, either directly or
indirectly.” Under this provision, while the payment of an
immigrant’s passage out of state funds does not of itself require
his exclusion, yet such payment by a State, just as by an
individual, operates to throw upon the immigrant the burden of
clearly showing that he does not come within any of the otherwise
excluded classes, and, in case of his failure to so show, he is not
entitled to admission.
3. In reference to your suggestion that under the indirect method of
attempting to eventually secure reimbursement to the state fund of
the amount of the [Page 74] alien’s
passage a condition might arise which could perhaps be regarded as
in effect a payment of his passage by a corporation, society, or
association, as the statement of facts does not show that any such
condition actually exists, or that his passage money is, in fact, to
be repaid, I am of the opinion, without passing upon the question as
to what would be the effect of such a condition if it did arise,
that the mere hypothetical possibility of such a condition would not
be a ground of exclusion.
Respectfully,
