126 F. 386 (N.D.N.Y. 1903), In re Sing Tuck

Citation:126 F. 386
Party Name:In re SING TUCK.
Case Date:November 30, 1903
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 386

126 F. 386 (N.D.N.Y. 1903)

In re SING TUCK.

United States Circuit Court, N.D. New York.

November 30, 1903

R. M. Moore, for petitioners.

George B. Curtiss, U.S. Atty., for respondent.

RAY, District Judge.

The petitioners, Chinese persons, 32 in number, apply for discharge from custody in the detention house at Malone, N.Y., on habeas corpus, alleging that they are citizens of the United States, illegally restrained of their liberty and illegally detained by Thomas Darcy, Chinese inspector of the United States of America, at Malone, N.Y., in what is known as 'The Detention House.' The petition for the writ is made by the attorney for the petitioners on information and belief.

It is admitted that the petitioners are Chinese persons; that they came from China, and applied for admission into the United States at the port of Malone, N.Y., and were denied admission by the

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executive officers of the government of the United States duly authorized to act and acting under and by virtue of the Chinese exclusion laws, on the ground that they are citizens of China and not of the United States, and not shown to be within the classes entitled to admission. The petitioners were duly notified of their right to appeal, from the decision refusing them admission, to the Secretary of Commerce and Labor of the United States. The petitioners have taken no appeal, but swear out a writ of habeas corpus in this court, alleging that they were born in the United States under circumstances making them citizens of the United States, and that, as such, they have the right to have the fact tried and determined in the courts of the United States and by the judicial department of the government, and that this question of citizenship cannot be determined by the executive officers of the government, at least so as to bind them and deprive them of their right to appeal to the courts for a due trial and determination of that question of fact; that 'due process of law' guaranties them this right. When they applied for admission, 26 of the petitioners stated that they were Chinese persons, and made application for entry, but refused to answer any other questions touching their right to enter. The other petitioners, 6 in number, stated that they were Chinese persons, applied for entry into the United States, and also stated that they were born within the United States, and refused to answer any other questions. No one of the petitioners offered to show citizenship, or to comply with the law relating to the entrance of Chinese persons into the United States. The return to the writ shows the above facts, but denies that the petitioners are citizens of the United States or were born therein, and alleges, in effect, that the determination of the immigration officers and Chinese inspectors, not appealed from, is final and conclusive on the question of citizenship, as well as all others involved, and that that question of citizenship, as well as all others involved, and that that question was necessarily involved and adjudicated in the determination made. On the return of the proceedings under the writ, the United States District Attorney for the Northern District of New York, intervening in behalf of the United States, and appearing in behalf of said Chinese inspector, to whom the writ was directed, moved that the writ be dismissed, and the petitioners remanded, on the following grounds:

'First. This court has no jurisdiction to review the determination of the immigration officers of the United States in denying to the petitioners herein the right to enter the United States.

'Second. That the determination of the immigration officers on the question of the right of the petitioners to enter the United States is final and conclusive, no appeal having been taken therefrom to the Secretary of Commerce and Labor.

'Third. That it is not established by the petition and return that the petitioners, or any of them, have a lawful right to enter the United States.

'Fourth. That the facts set forth in the petition and return show that the petitioners have no legal right to enter the United States.

'Fifth. That the petitioners are not unlawfully detained or deprived of their liberty.'

This court will take testimony and determine the question of citizenship unless the decision of the inspector, acting under the Commissioner General of Immigration and the Secretary of Commerce and Labor, not appealed from, is final and conclusive, res adjudicata,

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on the question of the citizenship of the petitioners, provided that question has been properly raised and presented by the record.

The one question is, has Congress the constitutional power to confer upon the executive department, the executive officers of the government, jurisdiction to try and finally determine adversely the question whether a person seeking to enter the United States is a citizen thereof, and as such entitled to enter? Is this a political question? The other question is, have the petitioners, or either of them, placed themselves in a position to raise this question of citizenship in this court?

That Congress has full authority to confer upon the executive officers of the government plenary power to exclude and deport aliens of any nationality is settled. Fong Yue Ting v. United States, 149 U.S. 698, 13 Sup.Ct. 1016, 37 L.Ed. 905; Wong Wing v. United States, 163 U.S. 228, 16 Sup.Ct. 977, 41 L.Ed. 140; Chae Chan Ping v. United States, 130 U.S. 581, 9 Sup.Ct. 623, 32 L.Ed. 1068; Nishimura Ekiu v. United States, 142 U.S. 651-659, 12 Sup.Ct. 336, 35 L.Ed. 1146; Japanese Immigrant Case, 189 U.S. 86, 23 Sup.Ct. 611, 47 L.Ed. 721; Lem Moon Sing v. United States, 158 U.S. 538, 15 Sup.Ct. 967, 39 L.Ed. 1082.

It is claimed that the power to exclude and deport aliens necessarily includes the power to try and determine the question whether the person excluded or proceeded against is an alien. While Congress has the power to provide for the exclusion and deportation of aliens, and may fix the terms and conditions on which aliens may enter the United States, or remain, being here, and also has the power to confer the authority to determine whether those terms and conditions have been complied with on executive officers of the government, it does not necessarily follow that, for purposes of exclusion or deportation, the power to determine who are aliens and who are citizens may be conferred by Congress on the executive officers or executive department of the government.

The one question is whether persons conceded to be aliens shall be admitted at all, or on or under certain conditions, the existence of which conditions is matter of proof, or deported if certain conditions have not been complied with, etc., and in no sense determines or adjudges the question of citizenship, which is not in issue, while the other question is one that involves the status, liberty, and property rights of the person or persons refused admission or proceeded against. A citizen has the right to live in the country of which he is a citizen, to go and come as he pleases, even to go to and return from a foreign country if he conforms to the quarantine and other laws on the subject, and to own property and exercise many rights not belonging to an alien, unless banished as a punishment for crime. The right to refuse all aliens admission into the United States is conceded. A citizen of the United States cannot constitutionally be refused admission. Aliens found in the United States may be deported simply because they are aliens. A citizen of the United States cannot in any event lawfully be deported unless as a punishment for crime of which he has been duly convicted after a fair trial by the judicial department of the government. Nor can he be

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excluded from the country. As an attribute of sovereignty, a sovereign nation, as a means of self-preservation, both in times of war and times of peace, must have, and has, the right to determine who shall be citizens thereof, and what persons, not being citizens, shall be permitted to enter or reside within its territorial limits, and also fix the terms and conditions on which such persons may remain, and also change them at will. But, once admitted to citizenship in the United States, the person so admitted becomes a party to the Constitution, entitled to the benefits of its guaranties of protection according to and under the laws adopted in conformity thereto. At first blush it would seem clear that a person claiming to be a citizen of the United States has the right to have that alleged fact, if disputed under circumstances involving his liberty and property rights, determined in the courts and according to the established rules and forms of legal procedure. If not so, then any citizen may be deported-- in effect banished from the United States-- if it is charged that he is an alien, and laws excluding and deporting all aliens are enacted, on the judgment of any executive officer on whom Congress may see fit to devolve the determination of the question of expulsion, etc., and consequently that of citizenship. If no appeal is provided, such judgment would be final and conclusive, and the form or mode of trial (in the absence of legislative enactment) might depend on the mere whim or caprice of the executive officer clothed with power in the premises. Has any decision of the Supreme Court of the United States gone to the extent of holding any such doctrine? It may be well to cite some of the cases and quote the language of the court.

In the Nishimura Case, 142 U.S. 651, 12 Sup.Ct. 336, 35 L.Ed. 1146, the court said:

'It is not within the province of the judiciary to order that foreigners who have never been naturalized, nor acquired any domicile or residence within the United States, nor even been admitted into the country pursuant to law, shall be permitted to enter, in opposition to the constitutional and lawful...

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