Sibray v. United States ex rel Yee Yok Yee

• Decision Date: 03 November 1915
• Docket Number: 1999.
• Citation: 227 F. 1
• Parties: SIBRAY, Immigrant Inspector, et al. v. UNITED STATES ex rel. YEE YOK YEE.
• Court: U.S. Court of Appeals — Third Circuit

227 F. 1

SIBRAY, Immigrant Inspector, et al. v. UNITED STATES ex rel. YEE YOK YEE.

No. 1999.

United States Court of Appeals, Third Circuit.

November 3, 1915

The following is the opinion of the District Judge:

This is a writ of habeas corpus, issued on the petition of Yee Yok Yee, next friend and on behalf of Yee Kong, who is confined in the Allegheny county jail. The facts of the case, as they appear in this record and as disclosed by the testimony, are as follows:

Yee Kong was born in China, and at the age of 20 years arrived in the United States at the port of San Francisco, Cal., on the steamship Siberia landing on October 31, 1913.

On his entry a certificate was issued to him by the immigration officer in charge in the following form:

'Description.

'Name Yee Kong.

'Admitted as son of official, 13013/6-8 S.S. Siberia, October 31st, 1913.

'(This is followed with some marks of identification.)

'Issued at the port of San Francisco, Cal., this 28th day of November, 1913.

'(Seal)

Samuel W. Backus,

'Immigration Official in Charge.'

On the face of the certificate is a photograph of the alien. On the reverse side it is certified that the person named and described on the reverse side has been regularly admitted to the United States as of the status indicated, whereof satisfactory proof has been submitted.

About 14 months later, to wit, in January, 1915, the defendant was arrested and brought before the United States commissioner, charged with being a Chinese laborer unlawfully within the United States. On February 2, 1915, said case being called before the commissioner, the same was withdrawn by the representatives of the government. In the meantime, on January 21, 1915, a warrant was issued for the arrest of Yee Kong on the ground that he has been found in the United States in violation of section 6 of the Chinese Exclusion 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 (Comp. St. 1913, Sec. 4320), being a Chinese laborer not in possession of a certificate of residence. A hearing was had before L. B. Spaun, examining inspector, and on submitting the proofs taken the Acting Commissioner General found that the alien is in the United States in violation of law, and a warrant for his deportation was issued on April 16, 1915. In the meantime the alien, unable to give the bond required, has been incarcerated in the Allegheny county jail.

It seems to me, from the records and proofs before me, that the rights and liberties of this young Oriental have been flagrantly disregarded and violated. His deportation is ordered on the ground that he is a Chinese laborer within the United States without a certificate of residence. This is the sole ground for which he was arrested, for which he was tried, and for which he is ordered deported. Now upon what, if any, legal proof is this order based? Assuming, for the present, that the government has shown that the alien is a Chinaman doing labor within the United States, and that this showing shifts the burden of proof upon him to show that he is lawfully within the country, the production of his certificate of identity, which was offered and is a part of this record, certainly shifts the burden of proof back again upon the government to show that, notwithstanding this fact, he is still unlawfully within the country. The certificate sets forth that the alien has been regularly admitted to the United States as of the status indicated therein and that satisfactory proof thereof has been admitted. The status indicated in the certificate is that of a student, son of an official, and the testimony in the record on the part of the alien shows that he is the son of Yee Yok Yan, who was president of one of the Six Companies in San Francisco. This makes for him a prima facie case. Such a certificate is not to be treated as a mere delusion, a false passport subject to be dishonored at any time at the caprice of any official of the government. It was said in United States v. Quan Wah (D.C.) 214 F. 462:

'Nor can the fact that the burden of proof to show right to be in the United States is thrown upon the Chinaman necessitate his further showing that the action of the authorities who decided he had the right to enter was correct, unless the evidence shows that his entry was fraudulently obtained. Liu Hop Fong v. United States, 209 U.S. 453 (28 Sup.Ct. 576, 52 L.Ed. 888). The decision of his right to enter was presumptively correct, and, unless the United States shows persuasively to the contrary, the mere certificate of admission is sufficient. United States v. Ju Toy, 198 U.S. 253 (25 Sup.Ct. 644, 49 L.Ed. 1040); Fok Young Yo v. United States, 185 U.S. 296 (22 Sup.Ct. 686, 46 L.Ed. 917); Lem Moon Sing v. United States, 158 U.S. 538 (15 Sup.Ct. 967, 39 L.Ed. 1082).'

The presumption arising from the certificate that the alien was lawfully admitted to the United States must be overcome by some lawful proceeding sustained by competent testimony. What is the cause of his deportation? The warrant of arrest and the warrant of deportation sets forth as follows:

'Yee Kong, who landed at the port of San Francisco, California, ex S.S. Siberia, on the 31st of October, 1913, is subject to be taken into custody and returned to the country whence he came, under section 21 of the Immigration Act, approved February 20, 1907, being subject to deportation under the provisions of a law of the United States, to wit, the Chinese Exclusion Laws, for the following among other reasons: That he has been found within the United States in violation of section 6 of the Chinese Exclusion Act of May 5, 1892, as amended by the Act of November 3, 1893, being a Chinese laborer not in possession of a certificate of residence.'

Turning to section 6 of the act referred to, we find that it provides as follows:

'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 * * * 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.'

In other words, his deportation is based on the proposition that he is a Chinese laborer without a certificate of residence.

The importation of Chinese laborers is the thing forbidden by the act of Congress. At the time of the passage of the act referred to, Chinese laborers in the United States were allowed to remain simply by registering in accordance with the provisions of the act referred to, and only those who failed to so register were subject to deportation. It follows, also, as of course, that those who came afterwards as Chinese laborers, and were found within the country, were subject to deportation. They had shifted upon them by the act the burden of proof to show their right to remain and failing in this their deportation followed. In United States v. Quan Wah, supra, the court aptly said:

'This case raises two questions, one of which has previously been decided, viz., whether, upon credible testimony that the Chinaman entered the United States in the exempt class, he is liable to deportation if he becomes a laborer thereafter; and, second, whether doubt cast upon his real status when entering is a failure on his part to show that he has a right to remain. Both these questions must be answered in favor of the Chinese person. As has been decided in the case of United States v. Lee You Wing (D.C.) 208 F. 166, affirmed February 17, 1914, 211 F. 939 (128 C.C.A. 437), the importation or the entry of Chinese laborers into the United States is the thing forbidden by the statute. As to a Chinese then in the United States, only those who remained without proper registration at the time of the former registration law, and who were laborers at the time of the passage of that law, were subject to deportation for their subsequent status. Tom Hong v. United States, 193 U.S. 517 (24 Sup.Ct. 517, 48 L.Ed. 772).'

This act does not apply, and was never intended to apply, to Chinese in the United States under the exempted class. As to them, they are admitted, not as laborers, but as belonging to other vocations of life. Such aliens were at no time entitled to registration, and it would be an anomaly in procedure to admit an alien as a member of the exempted class and then deport him because at a later date it was alleged he had become a member of the excluded class.

We believe it to be the law that where, at the time of the passage of the act referred to, a Chinese person was in the United States lawfully, and not entitled to registration as a laborer, that he is not subject to deportation though he subsequently become a laborer. United States v. Louie June (D.C.) 128 F. 522; United States v. Leo Won Tong (D.C.) 132 F. 190; United States v. Seid Bow (D.C.) 139 F. 56.

In the case of United States v. Foo Duck (D.C.) 163 F. 440, affirmed by the Circuit Court of Appeals, 172 F. 856, 97 C.C.A. 204, it was held that a Chinese alien admitted into the United States as the minor son of a resident merchant may not be deported for the sole reason that after attaining his majority he has worked as a laborer.

If it was claimed by the government that the alien here was admitted to the United States through...