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    References for a case even of this age are likely to have online versions I archives. Ideally, please seek and add the online versions 🇵🇸‍🇺🇦 FiddleTimtrent FaddleTalk to me 🇺🇦‍🇵🇸 15:15, 17 April 2025 (UTC)

‘’United States ex rel. Bilokumsky v. Tod’’, 263 U.S. 149 (1923), is a United States Supreme Court case that reinforced the trend of restricting immigrant rights in the early 20th century. Bilokumsky was a European immigrant who had been arrested for possessing literature advocating for the overthrow of the U.S. government.[1] He subsequently had a deportation hearing in which his refusal to testify was interpreted as evidence of alienage.[2] He challenged his detention, alleging violations of his Fourth and Fifth Amendment rights.[3] The Court ruled against him unanimously on November 12, 1923, asserting that the civil nature of deportation proceedings limited criminal protections, and he thus lacked the applicable constitutional claims.[4] The decision drew a sharp distinction between criminal and civil legal processes, establishing impactful precedents that continue to shape immigration proceedings in the United States. [5]

Background

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Bilokumsky entered the U.S. in 1912.[6] At the time of his entry, there was a presumed “open border” for European immigrants, and any exclusion was typically based on individual shortcomings, such as criminal records or medical conditions [7]. However, a shifting political and social landscape was rapidly changing immigration policy. European exclusions at the border mounted. Following the assassination of President McKinley in 1901, immigrants were denied if they were found to possess anarchist political beliefs.[8] (Notably, if Bilokumsky had been an advocate for overthrowing the U.S. government at his time of entry, it appears that he did not make it known). World War I spread Nativist sentiment throughout the U.S. as people increasingly feared divided loyalties among immigrant populations.[9] In 1921, the introduction of numerical quotas would radically change the face of European immigration to the U.S. [10]

As numerical quotas marked a radical change for incoming immigrants, the evolving use of deportation marked a radical change for resident immigrants. Deportation had previously been used predominantly as a corrective measure for erroneous permission of entry, but the federal government, leveraging their plenary power and the lack of constitutional restrictions over immigration cases, began to use it as a method of enforcing social policy.[11] Laws originally intended for exclusion began to be used for deportation, including laws aimed at anarchists. [12] Expulsion based on ideological grounds originally raised concerns about the free speech rights of resident immigrants, but the Bolshevik Revolution and bombing of Attorney General Mitchell Palmer spurred the U.S. into a frenzied deportation of approximately 1,100 anarchist immigrants between 1919-1920. [13]

In 1921, this volatile political climate came to bear on Bilokumsky. When he was found to possess literature advocating for the overthrow of the U.S. government, he was arrested under a Pennsylvania state law criminalizing sedition,[14] which closely mirrored the federal Espionage Act of 1917.[15].He was held in Moyamensing Prison in Philadelphia, where he was interrogated without legal counsel or being informed of his rights.[16] During this interrogation, he admitted to being an alien.[17] Given the federal government’s plenary power over immigration [18], and the fact that sedition was a deportable offense for non-citizens,[19] jurisdiction over his case was transferred to Immigration Commissioner Tod at the port of New York, who initiated formal deportation proceedings.[20]

Decision

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Bilokumsky’s removal depended upon the government establishing both sedition and alienage. The facts supporting his sedition charge were not contested during the hearing.[21] However, the key issue of alienage proved more complex. During the deportation hearing, Bilokumsky declined to testify. In light of this refusal, his earlier admission during the prison interrogation[22] and a corroborating landing certificate[23] were deemed sufficient evidence to prove his alienage. A deportation order was issued, and he was held in the custody of the immigration commissioner until it could be carried out.[24] His deportation was delayed when he filed a writ of habeas corpus, prompting further judicial review of the case.[25]

Bilokumsky’s writ of habeas corpus made three key claims. First, he claimed that there was insufficient evidence to prove him an alien. In this regard, the Court ruled that his silence itself was evidence. They asserted that the civil nature of deportation proceedings allowed them to draw adverse conclusions from a respondent’s silence, unlike in criminal trials.[26] Moreover, given that strong evidence of citizenship would have canceled the entire deportation proceeding, Justice Brandeis wrote, “There was strong reason why he should have asserted citizenship, if there was any basis in fact for such a contention. Under these circumstances, his failure to claim that he was a citizen and his refusal to testify on this subject had a tendency to prove that he was an alien.”[27]

Bilokumsky’s second claim was that his confession, obtained during interrogation without counsel or advisement of rights, was inadmissible. While the Court acknowledged “that evidence obtained by the Department through an illegal search and seizure cannot be made the basis of a finding in deportation proceedings,”[28] it also held that Bilokumsky’s confession did not constitute illegal search and seizure.[29] It considered several potential coercive aspects of his confession, but ultimately concluded that none of them amounted to compulsion. These included: “the fact that he was at the time in custody, that city and federal authorities were then cooperating ‘with a view to ridding this country of undesirables,’ that the prosecution under the state law was dropped soon after the institution of the deportation proceedings, that he was not then represented by counsel, and that he was not apprised by the inspector either that he was entitled to be so represented or that he was not obliged to answer.”[30]

Bilokumsky’s third claim was that his original arrest warrant for sedition had been issued without probable cause. The Court declined to make a determination on this point, stating that even if the arrest had been unlawful, it “would not necessarily invalidate later proceedings.”[31] They based this decision upon the purpose of a writ of habeas corpus,[32] which “is not to determine the guilt or innocence of a prisoner, but only to test the legality of a prisoner’s current detention.”[33] The Court reasoned that the confirmation of Bilokumsky’s alienage retroactively validated his detention, thereby rendering inconsequential any defects in the original arrest.[34]

Ultimately, due to the restricted Fourth and Fifth Amendment rights afforded to civil cases, the Court upheld the initial decision to deport Bilokumsky.[35]

Impact

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More than a century of immigration law has resulted in the limited protections faced today by noncitizens in removal proceedings: “no right to a jury trial; no right to a public trial; the exclusionary rule is inapplicable; involuntary confessions are permitted; Miranda warnings are not required; a hearing may proceed in the alien’s absence; and hearsay testimony is allowed.”[36] Of these limitations, Bilokumsky was foundational in establishing the permissibility of involuntary confessions.[37]

Another enduring legacy lies in its influence on INS v. Lopez-Mendoza (1984), a landmark case that directly built upon its reasoning. In Bilokumsky, the Court ruled that the conditions of Bilokumsky’s confession did not constitute compulsion, but that even if it had, “the rule excluding involuntary confessions could have no application.”[38] Lopez-Mendoza extended this civil-criminal distinction, formally holding that the exclusionary rule does not apply in deportation cases,[39] and a noncitizen’s identity, even if discovered through unconstitutional means, remains admissible in removal proceedings.[40]

Together, these rulings reinforce the limitation of constitutional protections traditionally afforded in criminal contexts.

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Text of United States ex rel. Bilokumsky v. Tod, 263 U.S. 149 (1923) is available from Justia and Findlaw

Works Cited

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  1. ^ John Vile, “Bilokumsky v. Tod,” in Encyclopedia of the Fourth Amendment, ed. John Vile and David Hudson (Thousand Oaks, California: CQ Press, 2013), 746.
  2. ^ Ibid.
  3. ^ Ibid.
  4. ^ Ibid.
  5. ^ Ibid.
  6. ^ ’’United States v. Bilokumsky v. Tod’’, 263 U.S. 149 (1923), 150.
  7. ^ Kunal Parker, “Closing the Gates in the Early Twentieth Century,” in Making Foreigners: Immigration and Citizenship Law in America, 1600-2000. (New York, New York: Cambridge University Press, 2015), 153.
  8. ^ Ibid.
  9. ^ Ibid., 164
  10. ^ Ibid., 153
  11. ^ Ibid., 166
  12. ^ Ibid., 168
  13. ^ Ibid., 168
  14. ^ Pennsylvania, Laws of the General Assembly of the Commonwealth of Pennsylvania passed at the session. (Harrisburg, Pennsylvania: 1919), 639-640.
  15. ^ John Sung Woo Park, "Legislation Unworthy of a Brave and Manly People": Membership and Belonging in Liberal Political Theory and American Public Law. (ProQuest LLC, 2000), 269).
  16. ^ Vile,Bilokumsky v. Tod 746.
  17. ^ Ibid.
  18. ^ Parker, "Closing the Gates in the Early Twentieth Century," 153.
  19. ^ David Forte, “Righting a Wrong: Woodrow Wilson, Warren G. Harding, and the Espionage Act Prosecutions.” Case Western Reserve Law Review 68, no. 4 (2018): 1132-1133.
  20. ^ Vile, “Bilokumsky v. Tod,” 746.
  21. ^ United States v. Bilokumsky v. Tod, 263 U.S. 149 (1923), 150.
  22. ^ Ibid., 151-152
  23. ^ Ibid., 156
  24. ^ Ibid., 150-151
  25. ^ Ibid.
  26. ^ Park, “Legislation Unworthy of a Brave and Manly People,” 273.
  27. ^ United States v. Bilokumsky v. Tod, 263 U.S. 149 (1923), 154.
  28. ^ Ibid., 155
  29. ^ Park, “Legislation Unworthy of a Brave and Manly People,” 274.
  30. ^ United States v. Bilokumsky v. Tod, 263 U.S. 149 (1923), 151.
  31. ^ Ibid., 157
  32. ^ Ibid., 158
  33. ^ Wex Definitions Team, “Habeas Corpus,” Legal Information Institute, Cornell Law School, 2022.
  34. ^ Park, “Legislation Unworthy of a Brave and Manly People,” 274.
  35. ^ Ibid., 273.
  36. ^ Robert Wagstaff, Terror Detentions and the Rule of Law: US and UK Perspectives (New York: Oxford University Press, 2014), 61-62.
  37. ^ Ibid., 62.
  38. ^ United States v. Bilokumsky v. Tod, 263 U.S. 149 (1923), 157.
  39. ^ Vile, “Bilokumsky v. Tod,” 746.
  40. ^ Daniel Blank, “Suppressing Defendant’s Identity and Other Strategies for Defending against a Charge of Illegal Reentry after Deportation,” Stanford Law Review 50, no. 1 (1997): 141.

See also

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Miranda warning Burden of proof (law) Espionage Act of 1917 Sedition Act of 1918 Shenck v. United States Abrams v. United States Louis Brandeis Oliver Wendell Holmes Jr. Smith Act Presumption of innocence

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