Yamataya: The Woman Who Won the Right to Be Heard and Still Lost

If immigration officers are trying to remove you, the Constitution generally requires some chance to be heard before it happens, at least once you have entered the country and become part of the community here. People stopped at the border, or caught soon after crossing it, have far less protection. The right to be heard is more than a century old. It came from a case in which the woman who was being deported lost because the Court concluded that she had been given a chance to be heard, because she did not appeal, and because it treated her inability to understand English as her own problem. Courts today take language far more seriously. The lesson about raising problems at the agency has held up.

The decision is Yamataya v. Fisher, 189 U.S. 86 (1903), known as the Japanese Immigrant Case, No. 171, decided April 6, 1903. Kaoru Yamataya asked the Supreme Court to overturn the dismissal of her habeas case and to hold that her deportation order violated due process. The Court rejected her claim in an opinion by Justice Harlan and affirmed. Justices Brewer and Peckham dissented without opinion.

Four days after landing in Seattle

Yamataya, a subject of Japan, landed at Seattle on July 11, 1901. About four days later, an immigrant inspector investigated and decided she had come here unlawfully as a pauper and a person likely to become a public charge. The 1891 immigration act excluded people in those categories and allowed deportation within a year of arrival. On July 23 the Secretary of the Treasury issued a warrant for her return to Japan.

As the inspector was about to carry it out, a habeas petition was filed on her behalf. It said she was not here in violation of law. The inspector answered that he had investigated and relied on testimony, other evidence and her own admissions. Her reply called the investigation “pretended” and inadequate. It said she did not understand English, did not know the investigation was aimed at deporting her, and had no counsel, friends or opportunity to show that she was not a pauper. The district court sustained a demurrer to her reply, dismissed the writ and returned her to the inspector’s custody.

Congress had broad power, but not arbitrary power

Some points came first. The treaty with Japan did not help her, because it excepted regulations relating to police and public security. And Congress’s power was not in doubt. It could exclude people of a particular race, set conditions on entry, provide for sending people out, and give enforcement to executive officers without any judicial role. The statute also meant that a person’s mere arrival did not put her beyond reach. She could be removed within the year.

Yamataya’s argument was that deporting someone already in the country without notice and a chance to respond could not be due process. The Court began by reserving a question. It left aside whether someone who “entered the country clandestinely” and who had been here too briefly to be part of the population could invoke the Due Process Clause at all.

Then came the passage that made the case famous. The Court had never held, it said, that administrative officers enforcing such a statute “may disregard the fundamental principles that inhere in ‘due process of law’ as understood at the time of the adoption of the Constitution.” One of those principles is “that no person shall be deprived of his liberty without opportunity, at some time, to be heard, before such officers, in respect of the matters upon which that liberty depends . . . .” It need not be “a regular, set occasion” or follow the forms of a court. But the Treasury Secretary or any executive officer could not arbitrarily take into custody and deport a person “who has entered the country, and has become subject in all respects to its jurisdiction, and a part of its population, although alleged to be illegally here,” without an opportunity to be heard.

The Court reached that result by reading the statute, not by striking it down. The acts did not rule out a hearing, so they should be read to allow one and to stay within the Constitution.

Why she lost anyway

Having announced the principle, the Court found it satisfied. Her own filing showed that she had appeared before the inspector and answered questions, so she “had notice, although not a formal one.” Her complaints about language and the nature of the questions could have gone to the inspector, or on appeal to the Secretary, who could have ordered a further investigation. She did not appeal, and the decision was therefore “final and conclusive.”

The hardest sentence comes next. If not knowing English “put her at some disadvantage in the investigation conducted by that officer, that was her misfortune,” the Court wrote, and no reason for a court to step in.

What the case became

The principle outlasted the result. The Supreme Court has since cited the case for the basic rule. In Reno v. Flores, 507 U.S. 292 (1993), it said “[i]t is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings,” citing this decision. Without citing Yamataya, Zadvydas v. Davis, 533 U.S. 678 (2001), said that once a noncitizen enters the country, the Due Process Clause applies to all persons within the United States, whether their presence is lawful, unlawful, temporary or permanent.

The question Yamataya left open has since been narrowed but not fully closed. People stopped at the threshold have much less protection. In Department of Homeland Security v. Thuraissigiam, 591 U.S. 103 (2020), the Court treated a man caught just inside the border as still at the threshold. Justice Sotomayor’s dissent noted that the early cases had speculated about people who entered without permission or had been here only briefly, and said presence had since become the touchstone for at least some level of due process protection. Where the line now falls is contested, and the procedures available depend on how and where you were stopped.

On language, the law has moved a long way from “her misfortune.” In Perez-Lastor v. INS, 208 F.3d 773 (9th Cir. 2000), the Ninth Circuit treated a competent translation as fundamental to a fair hearing and set out the kinds of evidence that show a translation was incompetent. Our article on interpreter errors explains how to make that record.

The part of Yamataya that still bites is the failure to appeal. Under 8 U.S.C. § 1252(d)(1), a court may review a final removal order only if the person exhausted all administrative remedies available as of right.

What this means if you are facing removal

These steps are our practical advice, based on these decisions and the current statute.

• Find out what process you are in. A hearing before an immigration judge, expedited removal and reinstatement of an old order carry very different rights.
• Say so if you do not understand. Ask for an interpreter in your best language, and object on the record if the interpretation is wrong.
• Appeal on time. Because Yamataya did not appeal, the inspector’s decision became final. Raise every problem with the agency, including the unfairness of the process.
• Be careful what you say to officers. The inspector said he relied in part on Yamataya’s own admissions. Ask for a lawyer before answering if you can.
• Do not assume a short stay leaves you with no rights. The answer depends on whether and how you entered, so have a lawyer check.
• Consider federal court if the agency will not hear you. A petition for review is the usual route for a removal order, and it is due within 30 days. Habeas is limited, but it may be available in some situations. Get advice quickly.