Mr. Justice Brewer, with whom concurred Mr. Justice Peckham, dissenting:
I am unable to concur in either the foregoing opinion or judgment. I have heretofore dissented in several cases involving the exclusion or expulsion of the Chinese, but, although my views on the questions are unchanged, do not care to repeat anything then said. I pass rather to consider the present case and the declarations of the court. That is, as stated in the opinion, one of persons claiming to be citizens of the United States, denied by an inspector of immigration-a mere ministerial officer-the right to enter the country, and who are now informed by this court that their application to the courts for the enforcement of that right must be denied. They are told that their only remedy is by appeal from one ministerial officer to another.
The decision is based upon the act of August 18, 1894 (28 Stat. at L. 390, chap. 301, U.S.C.omp. Stat. 1901, p. 1303), which provides:
'In every case where an alien is excluded from admission into the United States under any law or treaty now existing or hereafter made, the decision of the appropriate immigration or customs officers, if adverse to the admission of such alien, shall be final, unless reversed on appeal to the Secretary of the Treasury.'
But by its very terms that act applies only to an alien, and these parties assert that they are not aliens. If not aliens, certainly that act is inapplicable. So affirms Rule 2, prescribed by the Secretary of Commerce and Labor, concerning the immigration of Chinese persons, which reads: 'If the Chinese person has been born in the United States, neither the immigration acts nor the Chinese exclusion acts prohibiting persons of the Chinese race, and especially Chinese laborers, from coming into the United States, apply to such person.' So this court has held at the present term. Gonzales v. Williams, 192 U.S. 1, ante, p. 177, 24 Sup. Ct. Rep. 177, decided January 4, 1904. In that case it appeared that Isabella Gonzales, an unmarried woman, coming from Porto Rico to New York, was prevented from landing, and detained by the immigration commissioner as an alien immigrant. A writ of habeas corpus was issued on her behalf by the circuit court of the United States for the southern district of New York. Upon a hearing the writ was dismissed and she remanded to the custody of the commissioner. On appeal to this court that decision was reversed, and it was said in the opinion (p. 7, ante, p. 177, 24 Sup. Ct. Rep. p. 177):
'If she was not an alien immigrant within the intent and meaning of the act of Congress entitled 'An Act in Amendment to the Various Acts Relative to Immigration and the Importation of Aliens Under Contract or Agreement to Perform Labor,' approved March 3, 1891 (26 Stat. at L. 1084, chap. 551, U.S.C.omp. Stat. 1901, p. 1294), the commissioner had no power to detain or deport her, and the final order of the circuit court must be reversed.'
There, as here, the applicant had not appealed from the decision of the immigration officer to the Secretary of the Treasury; that fact was pleaded in the return to the writ, and on the argument before us this act of August 18, 1894, was cited by the government, and the argument made that the remedy was by appeal to the Secretary of the Treasury. I quote the language of the Solicitor General as reported (p. 4):
'The act of August 18, 1894 (28 Stat. at L. 390, chap. 301, U.S.C.omp. Stat. 1901, p. 1303), makes the decision of the appropriate immigration or customs officer, if adverse to the admission of an alien, final unless reversed on appeal to the Secretary of the Treasury. Even if appellant herein was ultimately entitled to a writ of habeas corpus, she was not in a position justly to obtain the writ until she had prosecuted an unavailing appeal to the Secretary of the Treasury, and thus pursued her remedy in the executive course to the uttermost.'