Low Foon Yin v. United States Immigration Com'r

• Citation: 145 F. 791
• Decision Date: 14 May 1906
• Docket Number: 1,256.
• Parties: LOW FOON YIN v. UNITED STATES IMMIGRATION COM'R et al.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

145 F. 791

LOW FOON YIN v. UNITED STATES IMMIGRATION COM'R et al.

No. 1,256.

United States Court of Appeals, Ninth Circuit.

May 14, 1906

Marshall B. Woodworth, for appellant.

Robert T. Devlin, U.S. Atty., for appellees.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

ROSS Circuit Judge.

The record shows that on the 21st day of April, 1905, one J. B McChesney, one of the government's Chinese inspectors filed a verified complaint before E. H. Heacock, a United States commissioner for the Northern District of California at San Francisco, charging 'that one Low Foon Yin is a Chinese manual laborer, and is now within the limits of the Northern District of California, aforesaid, without the certificate of registration required by the act of Congress entitled 'an act to prohibit the coming of Chinese persons into the United States,' approved May 5, 1892, c 60, 27 Stat. 25 (U.S. Comp. St. 1901, p. 1319), and the act amendatory thereof, approved November 3, 1893, c. 14, 28 Stat. 7 (U.S. Comp. St. 1901, p. 1322), and the act of Congress approved April 29, 1902, c. 641, 32 Stat. 176 (U.S. Comp. St. Supp. 1905, p. 295),' and praying that a warrant for the arrest of said Low Foon Yin be issued and that he be arrested and brought before the said commissioner, and upon a hearing being had that he be duly adjudged to be illegally within the United States, and that the proper order for his deportation be made and entered. Upon that complaint a warrant of arrest was issued by the commissioner and executed by the marshal by the arrest and production of Low Foon Yin before the commissioner, when the following proceedings were had:

Mr. Woodworth (attorney for the defendant to the proceeding): I object to the commissioner proceeding with this hearing on the ground that the government has presented no proofs or evidence to show that the defendant is unlawfully in the United States, and I object to the defendant being examined at this time by the commissioner and compelled to testify against himself, and to any questions being propounded to him with reference to the charge herein.

The Commissioner: The objection respecting jurisdiction is overruled pro forma. I also overrule the further objections; the appearance of the defendant; his dress; his physiognomy; his queue, and everything about him--denotes that he is a Chinese. In regard to testifying against himself, I overrule the objection of counsel upon the ground that the courts have held it is not a criminal case, and therefore the rule invoked does not apply.

Mr. Woodworth: Note an exception.

Low Foon Yin, the defendant, sworn:

The Commissioner: Q. Where were you born?

Mr. Woodworth: I repeat the objection already urged, to wit: I object to the commissioner proceeding with this hearing on the ground that he had not jurisdiction of this matter; and further on the ground that the government has presented no proofs or evidence to show that the defendant is unlawfully within the United States; and I object to the defendant being examined at this time by the commissioner and compelled to testify against himself, and to any questions being propounded to him with reference to the charge herein contained.

The Commissioner: I make the same ruling.

Mr. Woodworth: Note an exception.

A. In China.

The Commissioner: Q. When did you first come to the United States? A. Last year.

The Commissioner: Q. Where from, China? A. From China.

The Commissioner: Q. What has been your avocation or business, laborer? A. Laborer.

The Commissioner: I have no further questions.

Mr. Woodworth: I move to strike out all the testimony of the witness on the ground previously stated.

The Commissioner: I deny the motion.

Mr. Woodworth: Note an exception.

Mr. McKinley: That is the case for the government.

Mr. Woodworth: I desire at this time again to raise the question of the jurisdiction of the commissioner in this case.

The Commissioner: I overrule the objection pro forma.

Mr. Woodworth: We take an exception.

The Commissioner: Do you submit the case?

Mr. Woodworth: Yes, upon the objections already made.

The Commissioner: I order the defendant deported.

Mr. Woodworth: Note an exception. I propose to take an appeal for the purpose of raising the question of jurisdiction, and ask for a stay of 10 days within which to prepare an appeal.

The Commissioner: Granted.

The appeal to the District Court resulted in an affirmance of the order of deportation. The jurisdictional question having been decided adversely to the contention on the part of the defendant by this court in the case of Fong Mey Yuk v. United States, 113 F. 898, 51 C.C.A. 528, the single question presented to us is whether or not, in a deportation proceeding, a defendant can be compelled against his will to testify against himself, and ordered deported upon no other evidence than his own statements thus obtained from him. If, as contended on behalf of the appellant, and as was held by Judge Wing in the case of United States v. Hung Chang (D.C.) 126 F. 400, the proceeding is a criminal one, the point would, of course, be good. But it has been decided by many of the federal courts, including the Supreme Court of the United States, that such a proceeding is not a criminal one. It is true that the act of Congress of May 5, 1892, known as the 'Geary Act' (St. 1891, p. 25), contained a criminal feature in that by its fourth section it was provided 'that any such Chinese person or person of Chinese descent convicted and adjudged to be not lawfully entitled to be or remain in the United States, shall be imprisoned at hard labor for a period of not exceeding one year, and thereafter removed from the United States as hereinbefore provided;' that is to say, as provided by the second section of that act. But the provision in respect to the imprisonment of such Chinese person at hard labor was declared unconstitutional and void by the Supreme Court in the case of Wong Wing v. United States, 163 U.S. 228, 16 Sup.Ct. 977, 41 L.Ed. 140, and by the United States District Court for the Southern District of California in the preceding case of United States v. Wong Dep Ken (D.C.) 57 F. 206. It is also true that in the Geary act Congress used the words 'convicted' and 'adjudged' in connection with the finding of the person proceeded against unlawfully in this country, and directing his deportation. But the mere use of such words, instead of others more appropriate, does not convert a proceeding of a political nature into one that is criminal. United States v. Hing Quong Chow (C.C.) 53 F. 233. 'deportation,' said the Supreme Court in the case of Fong Yue Ting v. United States, 149 U.S. 698-709, 13 Sup.Ct. 1016, 1020, 37 L.Ed. 905, 'is the removal of an alien out of the country, simply because his presence is deemed inconsistent with the public welfare, and without any punishment being imposed or contemplated, either under the laws of the country out of which he is sent, or under those of the country to which he is taken. ' Section 1 of the Act of May 5, 1892, continued in force for a period of 10 years from that date all laws then in force, prohibiting and regulating the coming into this country of Chinese persons, and persons of Chinese descent, and provided, among other things 'that any Chinese person or person of Chinese descent, when convicted and adjudged under any of said laws to be not lawfully entitled to be or remain in the United States, shall be removed from the United States to China, unless he or they shall make it appear to the justice, judge, or commissioner before whom he or they are tried, that he or they are subjects or citizens of some other country, of which such Chinese person shall claim to be a citizen or subject, shall demand any tax as a condition of the removal of such person to that country, he or she shall be removed to China,' and (section 3, 27 Stat. 25 (U.S. Comp. St. 1901, p. 1320)) 'that any Chinese person or person of Chinese descent arrested under the provisions of this act or the acts hereby extended, shall be adjudged to be unlawfully within the United States, unless such person shall establish by affirmative proof to the satisfaction of such justice, judge or commissioner his lawful right to remain in the United States.'

Section 6 of the act of May 5, 1892, c. 60, 27 Stat. 25, as amended by the act of November 3, 1893, c. 14, Sec. 1, 28 Stat. 7 (U.S. Comp. St. 1901, p. 1320), is as follows:

''Sec. 6. And it shall be the duty of all Chinese laborers within the limits of the United States who were entitled to remain in the United States before the passage of the act to which this is an amendment to apply to the collector of internal revenue of their respective districts within six months after the passage of this act for a certificate of residence; and any Chinese laborer within the limits of the United States, who shall neglect, fail, or refuse to comply with the provisions of this act and the act to which this is an amendment, or who, after the expiration of said six months, shall be found within the jurisdiction of the United States without such certificate of residence, shall be deemed and adjudged to be unlawfully within the United States, and may be arrested by any United States customs official, Collector of Internal Revenue, or his deputies, United States Marshall or his deputies, and taken before a United States judge, whose duty it shall be to order that he be deported from the United States, as provided in this act and in the act to which this is an amendment, unless he shall establish clearly to the satisfaction of said judge that by reason of accident, sickness, or other unavoidable cause he has been unable to procure his certificate, and to the

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