White, 259 U. S. 276, 281. But he made no such claim at that time; nor does he now contend, by allegation in his petition for habeas corpus, or otherwise, that he is a citizen of the United States. He rests his claim to relief on an entirely different ground. He asserts that, because of the manner in which the evidence of alienage was procured, the warrant of deportation is a nullity. He argues that alienage is essential to jurisdiction; that the Government has the burden of establishing the fact; that it can be established only by legal evidence; that his examination while in prison is the only evidence introduced for that purpose; that its procurement involved both an unlawful search and seizure and a violation of the rules of the Department; that since it was illegally procured it was not legal evidence; and, hence, that the order is void. Its nullity is urged on three grounds. Because the order is unsupported by legal evidence; because the hearing was unfair; and because the original warrant issued without probable cause.

It is true that alienage is a jurisdictional fact; and that an order of deportation must be predicated upon a finding of that fact. United States v. Sing Tuck, 194 U. S. 161, 167. It is true that the burden of proving alienage rests. upon the Government. For the statutory provision which puts upon the person arrested in deportation proceedings the burden of establishing his right to remain in this country applies only to persons of the Chinese race. See Ng Fung Ho v. White, supra, p. 283. (Compare Immigration Rules of May 1, 1917, Rule 8.) It is also true that if the Department makes a finding of an essential fact which is unsupported by evidence, the court may intervene by the writ of habeas corpus. Zakonaite v. Wolf, 226 U. S. 272, 274-5. But it is not true that, if the report of Bilokumsky's examination be eliminated, there was no evidence of alienage at the hearing. Conduct which forms a basis for inference is evidence. Silence

Opinion of the Court.

263 U.S.

is often evidence of the most persuasive character. Runkle v. Burnham, 153 U. S. 216, 225; Kirby v. Tallmadge, 160 U. S 379, 383. Compare Quock Ting v. United States, 140 U. S. 417, 420. Bilokumsky was present at the hearing, personally and by counsel. The ground for deportation involved a charge of acts which might have been made the basis of a serious criminal prosecution. Criminal Code, § 6. If Bilokumsky was a citizen, inquiry into the facts was immaterial; and the whole proceeding must have fallen. He, presumably, knew whether or not he was a citizen. Since alienage is not an element of the crime of sedition, testifying concerning his status could not have had a tendency to incriminate him. 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.

Conduct is often capable of several interpretations; and caution should be exercised in drawing inferences from it. But there is no rule of law which prohibits officers charged with the administration of the immigration law from drawing an inference from the silence of one who is called upon to speak. Deportation proceedings are civil in their nature. Fong Yue Ting v. United States, 149 U. S. 698, 730; Bugajewitz v. Adams, 228 U. S. 585, 591. Neither statute nor rule requires that matter alleged in the warrant of arrest shall, in the absence of an express admission, be taken to be denied. A person arrested on the preliminary warrant is not protected by a presumption of citizenship comparable to the presumption of innocence in a criminal case. There is no provision which forbids. drawing an adverse inference from the fact of standing mute. It is not unreasonable to assume that one who may wish to challenge the executive's jurisdiction in the

courts will not refrain from asserting in the proceedings before the executive the facts on which he relies. To defeat deportation it is not always enough for the person arrested to stand mute at the hearing and put the Government upon its proof. Compare United States v. Sing Tuck, 194 U. S. 161, 169. Since the proceeding was not a criminal one, Bilokumsky might have been compelled by legal process to testify whether or not he was an alien." The Government was not obliged to adopt that course.

The introduction of Bilokumsky's examination as evidence did not render the hearing unfair. The specific grounds urged for holding it so are that the evidence was obtained by an illegal search and seizure and in violation of the rules of the Department. Both contentions are unfounded. It may be assumed that evidence obtained by the Department through an illegal search and seizure cannot be made the basis of a finding in deportation proceedings. Compare Silverthorne Lumber Co. v. United States, 251 U. S. 385; Gouled v. United States, 255 U. S. 298. But mere interrogation under oath by a Government official of one lawfully in confinement is not a search and seizure. It may be assumed that one under investigation with a view to deportation is legally entitled to insist upon the observance of rules promulgated by the Secretary pursuant to law. But no rule is shown which prohibits interrogation without apprising the person under investigation that he is entitled to refuse to answer

'See United States v. Hung Chang, 134 Fed. 19; Low Foon Yin v. United States, 145 Fed. 791; Law Chin Woon v. United States, 147 Fed. 227; Tom Wah v. United States, 163 Fed. 1008; In re Chan Foo Lin, 243 Fed. 137, 140; United States v. Brooks, 284 Fed. 908, 910. Act of Feb. 5, 1917, c. 29, § 16, 39 Stat. 874.

3

Compare Whitfield v. Hanges, 222 Fed. 745, 749; Jouras v. Allen, 222 Fed. 756, 758; Mah Shee v. White, 242 Fed. 868, 871; Lum Hoy Kee v. Johnson, 281 Fed. 872; Sibray v. United States, 282 Fed. 795, 797; Ex parte Low Joe, 287 Fed. 545; United States v. Dunton, 288 Fed. 959.

and to have counsel. The examination here complained of was conducted before there was an application for the warrant of arrest. There is neither in Rule 22, subdivision 3, which relates to the application for a warrant,* nor elsewhere in the rules, any provision which deals with interrogation prior to the hearing. Rule 22, subdivision 5(a) and (b), apply only to the proceedings after an arrest has been made. The careful provision which the rules make to ensure to the person arrested the benefit of counsel and access to the Government's evidence at the hearing leads to the conclusion that the omission of any similar provision governing earlier stages in the proceeding was intentional. In the absence of a rule forbidding interrogation, or requiring the presence of counsel, mere examination in his absence does not render the hearing unfair. Low Wah Suey v. Backus, 225 U. S. 460, 470.

It is urged that the admission of Bilokumsky's examination renders the hearing unfair because it is inconsistent with fundamental principles of justice embraced within the conception of due process of law. The argument is that if a judgment of deportation is to rest upon admissions attributable to the person to be deported, the admissions must have been made by him as a free agent and under circumstances which raise no doubt whether they were in fact made. Deportation is a process of such serious moment that on all controverted matters the executive officers should consider the evidence with close scrutiny. But here there was no denial of alienage; and a landing certificate was introduced by the Government which, when connected with the statement in Bilokum

Rule 22, Subd. 3. Application for warrant of arrest.—The application must state facts showing prima facie that the alien comes within one or more of the classes subject to deportation after entry, and, except in cases in which the burden of proof is upon the alien (Chinese) involved, should be accompanied by some substantial supporting evidence."

sky's examination, tended in some respects to corroborate it. Moreover, the statement that one is an alien is not the confession of a crime. Except in case of Chinese, or other Asiatics, alienage is a condition, not a cause, of deportation. So far as appears, there was nothing in the circumstances under which Bilokumsky was examined which would have rendered his answer inadmissible even in a criminal case. The mere fact that it was given while he was in confinement would not make it so. And since deportation proceedings are in their nature civil, the rule excluding involuntary confessions could have no application. Newhall v. Jenkins, 2 Gray, 562, 563. Moreover, a hearing granted does not cease to be fair, merely because rules of evidence and of procedure applicable in judicial proceedings have not been strictly followed by the executive; or because some evidence has been improperly rejected or received." Tang Tun v. Edsell, 223 U. S. 673, 681. To render a hearing unfair the defect, or the practice complained of, must have been such as might have led to a denial of justice, or there must have been absent one of the elements deemed essential to due process. Chin Yow v. United States, 208 U. S. 8; Kwock Jan Fat v. White, 253 U. S. 454, 459. Compare Interstate Commerce Commission v. Louisville & Nashville R. R. Co., 227 U. S. 88, 91.

'Hopt v. Utah, 110 U. S. 574, 585; Sparf and Hansen v. United States, 156 U. S. 51, 55; Pierce v. United States, 160 U. S. 355, 357; Wilson v. United States, 162 U. S. 613, 623; Hardy v. United States, 186 U. S. 224, 228-230. Compare Powers v. United States, 223 U. S. 303.

Compare United States v. Uhl, 215 Fed. 573, 574, 576; Choy Gum v. Backus, 223 Fed. 487, 492-3; Sibray v. United States, 227 Fed. 1, 7; United States v. Uhl, 266 Fed. 34, 39; United States v. Uhl, 266 Fed. 646; Morrell v. Baker, 270 Fed. 577; United States v. Uhl, 271 Fed. 676, 677; Chin Shee v. White, 273 Fed. 801, 805; United States v. Wallis, 279 Fed. 401, 403; Moy Yoke Shue v. Johnson, 290 Fed. 621.