Liu Hop Fong v. United States

• Decision Date: 20 April 1908
• Docket Number: No. 181,181
• Citation: 28 S.Ct. 576,209 U.S. 453,52 L.Ed. 888
• Parties: LIU HOP FONG, Plff. in Err., v. UNITED STATES
• Court: U.S. Supreme Court

209 U.S. 453

28 S.Ct. 576

52 L.Ed. 888

LIU HOP FONG, Plff. in Err.,

v UNITED STATES.

No. 181.

Argued March 18, 1908.

Decided April 20, 1908.

Messrs. Frank L. McCoy, John L. Webster, and Robert H. Olmsted for plaintiff in error.

[Argument of Counsel from page 454 intentionally omitted] Assistant Attorney General Cooley for defendant in error.

[Argument of Counsel from page 455 intentionally omitted] Mr. Justice Day delivered the opinion of the court:

The plaintiff in error, Liu Hop Fong, on November 23, 1904, was arrested upon the sworn complaint of the United States district attorney, and brought before a United States commissioner at Omaha, Nebraska, charged with being unlawfully within the United States of America, living and residing at Omaha, Nebraska, and there pursuing the occupation of a common laborer, contrary to the laws of the United States. The complaint prayed that he might be arrested and dealt with according to law. Upon a plea of not guilty, on December 29, 1904, a hearing was had before the commissioner. The bill of exceptions shows that the commissioner on December 29, 1904, made an order finding the defendant guilty, and ordered his deportation from the United States to the Empire of China; that an appeal was taken to the district court of the United States for the district of Nebraska; that the case was heard upon the 13th day of April, 1905, being one of the days of the November term of the district court; that the case was tried and submitted to the judge without any new evidence upon the complaint, upon the transcript of the proceedings made by the United States commissioner from whose order the case was appealed, and the additional separate findings made by the commissioner and the original student's certificate of the defendant and the translation thereof, with all indorsements and certificates thereon under which the defendant was a admitted into and entered the United States. The commissioner's transcript shows:

On November 23, 1904, the defendant was brought before the commissioner, entered a plea of not guilty, and the hearing was continued to December 29, 1904, when witnesses were examined for the United States and for the defendant. Their names are given, but their testimony is not set out. On the same day (December 29, 1904) defendant was adjudged guilty and ordered to be deported, and on that day defendant appealed to the district court and gave bond for his appearance in that court. This transcript was duly certified and indorsed, filed January 9, 1905, by 'R. C. Hoyt, Clerk,' and the commissioner filed additional and separte findings, bearing date December 30, 1904, as follows:

'That the said Liu Hop is a Chinese manual laborer, and was born in and is a subject to the (Emperor) of China; that he was found within the limits of the United States, to wit, in the city of Omaha, Douglas county, state of Nebraska, in the district of Nebraska, on the 23d day of November, A. D., 1904, and that when he was so found as aforesaid, the said Liu Hop was in possession of a certain certificate, proper in form, No. 179, registered in book 3, folio 164, issued by the colonial secretary of Macau province, by authority of H. E. Governor of said province, and dated the 17th day of May, 1899, which said certificate, among other things, recites as follows:

'By order of H. E. the Governor, I grant this passport to a Chinaman, Liu Hop, bachelor, natural, and residing in Macau, student of Chinese literature for over four years, being his professor Liu-ioc-po, living in Rua dos Mercadores, No. 180, to go to the United States of America, in order to study there the English language and European sciences, and to live in the company of his brother Liu-eng-Fun, manager of the firm 'Lun-Sing-Chong,'—Rockspring, Wyo.,—San Francisco, California.'

'That I find from the evidence adduced upon the hearing herein that the said Liu Hop landed in the city of San Francisco on or about July 3, 1899, and shortly thereafter and during said year of 1899 came to the city of Omaha, state and district of Nebraska, where he has ever since resided and still resides.

'I further find that during the time of his residence in said city he has at all times been a common laborer, and has at no time pursued the study of the English language beyond the merest rudiments taught by his Sunday school teacher, and has at no time pursued the study of European sciences or any other study except as to the rudiments of the English language; and that the said Liu Hop has at no time been a student within the meaning of the act of Congress approved May 5, 1892 [27 Stat. at L. 25, chap. 60, U. S. Comp. Stat. 1901, p. 1319], and acts of Congress amendatory thereof, and that he is now unlawfully within the United States of America.

'To all of which foregoing order and findings of the United States commissioner, the said Lui Hop excepts and prays an appeal, and bail is fixed in the sum $500; his certificate pending an appeal to remain in the custody of the said United States commissioner.'

These findings are indorsed as follows: 'Filed Jan. 9, 1905. R. C. Hoyt, Clerk.'

The certificate upon which the plaintiff in error was admitted to this country is as follows:

(Endorsements—Translation.)

Government of Macau Province.

Colonial Secretary of Macau Province.

No. 179.

Registered in Book 3, folio 164.

Mario Pires Nonteiro Bandeira de Lima, Colonial Secretary of Macau Province, His Majesty the King, etc., etc.

By order of H. E. the Governor, I grant this passport to a Chinaman, Liu-Hop, bachelor (natural and resident in Marcau, student of Chinese literature for over four years, being his professor Liu-ioc-po, living in Rua dos Mercadores, No. 180, to go to the United States of America, in order to study there the English language and European sciences, and to live in the company of his brother Liu-eng-Fun, manager of the firm 'Lun-Sing-Chong,'—

                       Signals
                 
                     Age........ 20 years
                     Height..... 1 m. 590 ms
                     Face....... Long
                     Hair....... Black.
                     Eyebrows... do.
                     Eyes....... Dark chestnut.
                     Nose....... Flat.
                     Mouth...... Big.
                     Color of the Asiatic race.
                     Cost of passport. $3.50.
                 

Rockspring, Wyo.—San Francisco, Cal.

Guaranteed

Fulfilling the obligation to have this passport vis ed by the respective diplomatic or consular agent residing in this city, I beg to request the administrative authorities, and all those to whom it may concern, not to put any objection to the bearer.

Valuable for 30 days to leave this city.

Given at Macao on the 17th day of May 1899.

By authority of H. E. the Governor.

The Colonial Secretary,

(Signed) Mario B. De Lima.

Bearer's signature

(S'd) Liu Hop.

Translated by A. M. Roza Peruia, Jr.

Vise U. S. Consulate General, Hongkong, May 31, 1899.

R. Wildman, Consul Gen.

The bill of exceptions further shows that the evidence taken before the commissioner was not reduced to writing or preserved, or in any manner taken to the district court, and no further or other evidence was submitted by either of the parties. After argument of counsel the judge filed an opinion and ordered the defendant to be deported, to which the defendant excepted.

The opinion of the learned district judge, a copy of which is given in the record, shows that the order of deportation was made because, in his opinion, the facts as found by the commissioner indicate that Liu Hop Fong did not come to the United States to study the English language and the English sciences as a student, and that such contention was a mere device to gain entrance into this country, and not in good faith to...