Looe Shee v. North

• Decision Date: 03 May 1909
• Docket Number: 1,686.
• Citation: 170 F. 566
• Parties: LOOE SHEE v. NORTH, Immigration Com'r, et al.
• Court: U.S. Court of Appeals — Ninth Circuit

170 F. 566

LOOE SHEE v. NORTH, Immigration Com'r, et al.

No. 1,686.

United States Court of Appeals, Ninth Circuit.

May 3, 1909

McGowan & Worley, for appellant.

Robert T. Devlin, U.S. Atty., and George Clark, Asst. U.S. Atty for appellees.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW Circuit Judge.

This is an appeal from an order of the District Court for the Northern District of California dismissing proceedings upon order to show cause why a writ of habeas corpus should not issue as prayed for in an application made on behalf of one Looe Shee.

It is alleged in the petition for a writ of habeas corpus that Looe Shee came to the United States of America from the republic of Mexico as the lawful wife of Lew Chow, a citizen of the United States, in April, 1906, and since her arrival in the United States she has continued to be, and then was, the wife of said Lew Chow; that she was being imprisoned, restrained confined, and detained of her liberty by Hart H. North Commissioner of Immigration at the port of San Francisco, without authority of law; that she was in custody under a warrant of deportation issued September, 1907, by the Secretary of the Department of Commerce and Labor under the provisions of Immigration Act Feb. 20, 1907, c. 1134, 34 Stat. 898 (U.S. Comp. St. Supp. 1907, p. 389); that said warrant of deportation provided that she, the said Looe Shee, be deported from the United States to the Empire of China. It was alleged that said Looe Shee last resided in the republic of Mexico, and left her home therein to enter the United States as the lawful wife of Lew Chow, a citizen thereof. Upon the petition the court ordered the Commissioner of Immigration to show cause why a writ of habeas corpus should not issue as prayed for.

In the answer to the order to show cause the Commissioner of Immigration set forth his application to the Secretary of Commerce and Labor for a warrant for the arrest of Looe Shee, the issuance of the warrant, the arrest, and the taking of Looe Shee before a board of special inquiry; her appearance before the board by attorneys, who were fully advised as to their right to introduce evidence in her behalf; the refusal of her attorneys to offer any testimony in her behalf; the findings of the board:

'That Looe Shee was admitted at the port of San Francisco, where she arrived in transit from Mexico, via El Paso, Tex., on April 28, 1906. That she is a native of China, married to Lew Chow, a Chinese native of the United States, who has since deserted her and is supposed to be dead. That on the 22d instant said woman was arrested in a house of prostitution located on Ross alley, near Jackson street, this city, where she was practicing prostitution. That she has been a prostitute for a year or more last past. Upon her arrest she was given every opportunity, in accordance with the foregoing telegraphic warrant and the statute, to show cause why she should not be deported to the country whence she came, and at a regular meeting of the board of special inquiry, in accordance with the aforesaid warrant, on the advice of her attorney, she stood mute and refused to answer any question. And the above facts were ascertained from her preliminary statement taken at the time of her arrest, on the 22d instant, and from the madam of the brothel in which she was found.'

The answer alleges:

'That a full and correct report in writing of the hearing before the board of special inquiry was made to the Secretary of Commerce and Labor, and thereupon the said Secretary issued the warrant for the detention and deportation of the said Looe Shee, under which she was held in custody.' The warrant is dated October 10, 1908, and is set forth in the answer. It is signed by the acting Secretary of Commerce and Labor and recites:

'That the said Looe Shee is an alien within the meaning of the said statute, is a prostitute, was a prostitute at the time of her admission into the United States, and has been found an inmate of a house of prostitution practicing prostitution,' and that 'the period of three years after landing had not elapsed.'

The answer admitted that, prior to the time the said Looe Shee entered the United States, she went through the form of a contract of marriage and marriage ceremony with a native Chinese person named Lew Chow, which said native Chinese is mentioned in the petition in this case. In the eighth paragraph of the answer it was alleged that:

'Respondent (the Commissioner of Immigration) was advised and believed that the said contract of marriage and marriage ceremony were performed in the City of Mexico, in the United States of Mexico; that the said marriage contract and marriage ceremony were a mere sham, and a means for evading the laws of the United States prohibiting the landing of Chinese persons within the United States; that the said marriage contract and marriage ceremony were entered into and performed solely for the purpose of enabling the said Looe Shee to land in and enter the United States as the wife of a native Chinese person, when in fact the said Looe Shee was not otherwise entitled to land in or to enter the United States; and the said marriage contract was not entered into and the said marriage ceremony was not performed for the purpose of creating the relation of husband and wife, other than as therein stated.'

In the court below evidence was introduced upon the issues presented by the application for the writ of habeas corpus, the order to show cause, and the answer, and the court found all of the allegations contained in the answer to be true, except paragraph 8 of the answer, to the effect that the marriage ceremony therein referred to was a sham, and was entered into for the purpose of evading the laws of the United States prohibiting the landing of Chinese persons. As a conclusion of law the court found that the petitioner was not entitled to a writ of habeas corpus as prayed for, and the proceedings were thereupon dismissed.

The proceedings for the deportation of Looe Shee were in pursuance of the following provisions of the act of February 20, 1907, entitled 'An act to regulate the immigration of aliens into the United States' (34 Stat. 898):

'Sec. 2. The following classes of aliens shall be excluded from admission into the United States: * * * Prostitutes, or women or girls coming into the United States for the purpose of prostitution, or for any other immoral purpose. * * *

'Sec. 3. * * * And any alien woman or girl who shall be found an inmate of a house of prostitution or practicing prostitution, at any time within three years after she shall have entered the United States, shall be deemed to be unlawfully within the United States and shall be deported as provided by sections 20 and 21 of this act.'

'Sec. 20. That any alien who shall enter the United States in violation of law, and such as become public charges from causes existing prior to landing, shall upon the warrant of the Secretary of Commerce and Labor, be taken into custody and deported to the country whence he came at any time within three years after the date of his entry into the United States. * * *

'Sec. 21. That in case the Secretary of Commerce and Labor shall be satisfied that an alien has been found in the United States in violation of this act, or that an alien is subject to deportation under the provisions of this act or of any law of the United States, he shall cause such alien within the period of three years after landing or entry therein to be taken into custody and returned to the country whence he came, as provided by section 20 of this act. * * *'

It appears from the answer that Looe Shee had full opportunity to be heard before the executive officers of the government upon all questions involving her right to be and remain in the United States under this statute. This brings the case within the law as declared in the Japanese Immigrant Case, 189 U.S. 86, 23 Sup.Ct. 611, 47 L.Ed. 721. In that case a Japanese woman was landed at the port of Seattle, in the state of Washington, on the 11th day of July, 1901. On or about July 15, 1901, the immigrant inspector, having instituted an investigation into the circumstances of her entry into the United States, decided that she came into the United States in violation of the law, that she was a pauper, and a person likely to become a public charge; aliens of that class being excluded by Act March 3, 1891, c. 551, 26 Stat. 1084 (U.S. Comp. St. 1901, p. 1294). It was contended that the provisions of the latter act, giving to inspection officers plenary power over the classes of aliens therein referred to, should be construed to extend only to aliens who had not effected an entrance into the United States, and not to those who had lawfully entered the United States and had been incorporated into the population of the country. The proceedings in the case were in conformity with the provisions of that act and other acts of Congress then in force, and were substantially the proceedings followed in the present case under Act Feb. 20, 1907, 34 Stat. 898. This act was a re-enactment and extension of the legislation upon the subject of immigration, and made in the light of the construction placed upon the previous acts by the courts. The decision of the Supreme Court in the Japanese Immigrant Case is therefore applicable to the present case. In that case the court said:

'That Congress may exclude aliens of a particular race from the United States, prescribe the terms and conditions upon which certain classes of aliens may come to this country, establish regulations for sending out of the country such aliens as come here in violation of law, and commit the enforcement of such provisions, conditions, and

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