Ah Lin v. United States, 2096.
| Decision Date | 04 June 1927 |
| Docket Number | No. 2096.,2096. |
| Citation | 20 F.2d 107 |
| Parties | AH LIN v. UNITED STATES. |
| Court | U.S. Court of Appeals — First Circuit |
H. W. Sullivan, of Boston, Mass., for appellant.
John W. Schenck, Asst. U. S. Atty., of Boston, Mass.
Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.
The appellant is a Chinese person, who has been ordered to be deported by a United States commissioner under the Chinese Exclusion Act (Comp. St. § 4315 et seq.), on the ground that he is unlawfully in the United States, and upon appeal to the District Court the order of deportation has been affirmed.
On the evening of Saturday, September 19, 1925, two Chinese inspectors, charged with the duty of enforcing the Chinese Exclusion Act, went with two police officers in plain clothes to the appellant's laundry at 46 Astor street, Boston. The inspectors asked the appellant in substance if he had any certificate of identity, or any papers to show that he had a lawful right to remain in this country. It does not appear from the record that the examination at his laundry extended further than this. Under the direction, evidently of the inspectors, the appellant was arrested by the police officers and taken to the police station, where he was examined by one of the inspectors with the aid of a Chinese interpreter who spoke the same dialect as the appellant, and a stenographer took down the questions and answers. As a result of this examination he was detained at the police station until the following Monday, when a warrant was issued by the United States commissioner for his arrest on the charge that he was unlawfully within the United States.
At the examination before the commissioner, the appellant claimed that he was born in Oroville, in the state of California, and lived there until he was 10 years old; that his father died when he was about 3 years old, and his mother 6 months later; that after the death of his father and mother a Chinese person by the name of Lim Ni and his wife took care of him, and when he was about 10 years old put him on a train at Oroville with a tag on him stating that his destination was Boston, and told him to go to Sam Wah Kee's store there on his arrival; that he was met at the station in Boston by another Chinese person, who has since died; that Lim Ni told him that he was born in Oroville; that no other person ever told him about the place of his birth, but that one Moy Pok, another Chinese person, knew about his birth and attended his shaving feast in Oroville; that he met Moy Pok about a week after he came to Boston at Sam Wah Kee's store, and that Moy Pok then told him he was present at his shaving feast; that when he first came to Boston he lived with Moy Jung at 36 Harrison avenue; that when he was 15 years old he first went to work at Haverhill, where he stayed 3 years, and after that went to New York, where he remained 3 years; then he came back to Boston and went to work in a restaurant on Essex street, where he was employed for 12 years; after that he went to Providence, R. I.; that he was in Boston when the draft was made in the late war, and produced his draft card, but said he did not fill out any questionnaire, and a search of the records at Washington disclosed none.
Act of May 5, 1892, c. 60, § 3, Compiled Stat. 1916, § 4317, is as follows:
"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."
When a Chinese person claims to have been born in the United States, the Supreme Court, in Chin Bak Kan v. United States, 186 U. S. 193, 22 S. Ct. 891, 46 L. Ed. 1121, and in Ah How v. United States, 193 U. S. 65, 24 S. Ct. 357, 48 L. Ed. 619, has held that the burden rests upon the Chinese to satisfy the court by affirmative proof of this fact. In Chin Bak Kan v. United States, supra, the court, by Chief Justice Fuller, said in speaking of the claim of citizenship by birth:
See, also, Jung See v. Nash (C. C. A.) 4 F.(2d) 639; Christy v. Leong Don (C. C. A.) 5 F.(2d) 135; Fong Ping Ngar v. United States (C. C. A.) 223 F. 523; United States v. Hom Lim, 223 F. 520. In the last case the Circuit Court of Appeals in the Second Circuit, in an opinion by Lacombe, Circuit Judge, stated:
In Fong Yue Ting v. United States, 149 U. S. 698, 13 S. Ct. 1016, 37 L. Ed. 905, it was held that Congress did not exceed its powers by prescribing in the Exclusion Act of 1892 that any Chinese person arrested under the act shall be required to establish his right to remain by affirmative proof.
What has been said disposes of the appellant's third and fourth assignments of error. In the fifth assignment of error it is alleged that the District Court "erred in ruling impliedly that no presumption of right to be in this country arises from the fact of long-continued and unmolested residence of the appellant in the United States." The record does not disclose that the District Court made this ruling, but the court did find that there was evidence that the appellant had been in Boston between 10 and 15 years, but almost no evidence to corroborate his statement that he had been in Boston 30 years.
By the sixth assignment of error appellant alleges that the court "erred in refusing to allow a plea of the statute of limitations"; but no lapse of time will bar an action for deportation under the Chinese Exclusion Act. Moy Wing Sun v. Prentis (C. C. A.) 234 F. 24; Wong Chung v. United States (C. C. A.) 244 F. 410.
The District Court has found that the evidence offered, if believed, "would have been sufficient to sustain the defendant's burden of showing that he was lawfully in the United States," but that "doubts as to the credibility of the testimony might well have been entertained by the commissioner," and that "the testimony of the appellant is not altogether consistent with that which he gave before the commissioner when first arrested." Counsel for the appellant, in his oral argument and in his brief, has argued that the statements made by the appellant at the police station should not have been received in evidence, but this is not assigned as error. When this statement was offered before the commissioner, appellant's counsel objected to its introduction because the appellant did not understand the interpreter, and also because it was obtained by duress. The Chinese interpreter, the stenographer, and the immigration inspector who conducted this examination were examined at length before the commissioner, and all the circumstances attending this examination were...
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