Ex parte Wong Yee Toon

• Citation: 227 F. 247
• Parties: Ex parte WONG YEE TOON.
• Decision Date: 06 November 1915
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

227 F. 247

Ex parte WONG YEE TOON.

United States District Court, D. Maryland.

November 6, 1915

Petition for habeas corpus by Wong Yee Toon. Writ denied.

Harold B. Scrimger and Irvin B. Scrimger, both of Baltimore, Md for petitioner.

Samuel K. Dennis, U.S. Atty., and James A. Latane, Asst. U.S. Atty both of Baltimore, Md., for respondent.

ROSE District Judge.

The petitioner is about to be deported under a warrant issued by the Secretary of Labor. He seeks his release by habeas corpus. He says he is about 19 years old. He looks younger. According to his story, he is the son of one Wong Que Teung alias Wong Kus, a merchant long domiciled in Oakland, Cal. As such son the petitioner, on the 7th of November, 1913, was admitted by the immigrant officials at the port of San Francisco. A little over a year later he was found living with a Chinese laundryman in Baltimore. The immigration office secured some evidence which led it to think that he was employed as a laborer.

On the 22d of January, 1915, the Assistant Secretary of Labor issued a warrant for his arrest on various grounds, which may be summarized as that he was a Chinese laborer, without certificate of residence; that he procured his admission to this country by fraud, not being at the time of entry a minor son of a member of the exempt classes; and that at such time he was under 16, and was not accompanied by at least one of his parents. The petitioner was given a full and even elaborate hearing, at which he was represented by counsel. The entire record of the proceedings which led to his admission at San Francisco was put in evidence. The government called witnesses, and so did he, all of whom were examined and cross-examined. It appeared that, on his arrival at San Francisco, the inspector who had immediate charge of the investigation reported that the petitioner was not the son of the Oakland merchant, but that on review by the superior officials he was admitted. On the question of his paternity there was in the deportation proceedings submitted very little evidence which had not been considered before he was allowed to land.

All that was really new in the case made in Baltimore is that, very shortly after the boy arrived in California, the alleged father sent him clear across the continent to a laundryman here. The latter's relationship, if any, to either the father or the son, is, by petitioner's witnesses, variously and vaguely stated. The statements of the man in question are of such a character as to lead the immigrant officials to conclude that he is unworthy of belief. No letters have passed between the alleged father and the petitioner, and the former does not claim to have sent for the latter's support during an entire year more than $60. At the conclusion of the hearing, the local immigration authorities decided that he should be deported. He took an appeal to the Secretary of Labor, with whom his counsel filed elaborate briefs. On the 3d of July of this year the Secretary issued his warrant of deportation, in which the grounds specified were substantially the same as those in the warrant of arrest, except that the Secretary held that the weight of evidence showed that the petitioner, at the time of his admission, was over 16 years of age.

At the hearing before me the government did not seriously contend that the order of deportation could be sustained on the ground that the petitioner was a Chinese laborer, not in possession of a certificate of residence. There is some evidence that he did some work in the laundry. It is for most purposes, at least, immaterial whether he did or did not. It is well settled that a minor son of a member of the exempt classes, admitted as such into the United States, does not forfeit his right to remain by subsequently doing a laborer's work. Ex parte Lew Lin Shew (D.C.) 217 F. 317; United States v. Louie June (D.C.) 128 F. 522; In re Yew Bing Hi (D.C.) 128 F. 319; United States v. Leo Won Tong (D.C.) 132 F. 190; United States v. Seid Bow (D.C.) 139 F. 56; In re Chin Ark Wing (D.C.) 115 F. 412; United States v. Lee Chee, 224 F. 447, . . . C.C.A. . . .; Lew Ling Chong v. United States, 222 F. 195, . . . C.C.A. . . .; United States v. Yee Quong Yuen, 191 F. 28, 111 C.C.A. 500; In re Tam Chung (D.C.) 223 F. 801; United States v. Foo Duck (D.C.) 163 F. 440; United States v. Foo Duck, 172 F. 856, 97 C.C.A. 204. It is true that the last above cited case intimated that, in determining whether a Chinaman who is admitted as an exempt ever was one, consideration may be given to the fact that very shortly after his admission he was found engaged in a nonexempt occupation.

The government rests its right to deport the petitioner on the ground that he is not the son of the Oakland merchant. The petitioner says that neither the warrant of arrest nor that of deportation specified that charge with sufficient particularity. The petitioner and his counsel had seasonable notice that the government claimed that his paternity had been falsely stated. Technical objections to the form of the warrants in these cases are not sustainable, when it appears that the alien had notice of the actual charge against him in time to meet it and had a fair hearing thereon. Nishimura Ekiu v. United States, 142 U.S. 651, 12 Sup.Ct. 336, 35 L.Ed. 1146; Chin Bak Kan.v. United States, 186 U.S. 193, 22 Sup.Ct. 891, 46 L.Ed. 1121; United States v. Hom Lim, 223 F. 520, . . . C.C.A. . . .; United States ex rel. Bauder v. Uhl, 211 F. 628, 128 C.C.A. 560; United States ex rel. Rosen v. Williams, 200 F. 538, 118 C.C.A. 632; Toy Tong v. United States, 146 F. 343, 76 C.C.A. 621; In re NG Wah Chung, 220 F. 639, 136 C.C.A. 247; Ex parte Young (D.C.) 211 F. 370.

The petitioner denies that he had such a hearing, because, and only because, when first arrested he was examined by the inspector before he had counsel, or any opportunity to procure counsel. Probably there are few or no formal tests by which to determine whether the immigration authorities have given an alien a fair hearing. The real question is: Have they honestly, and by means which would seem fair to a reasonable man, not trained in law, sought to arrive at the truth, in order that they may do justice? If their actions, taken as a whole, show that their inquiry was not a fair and honest effort to obtain such result, their action is not binding on the courts, whether from a technical standpoint their procedure was or was not open to criticism. The way in which, before the petitioner had an opportunity to obtain counsel, or before counsel was admitted, they conducted his examination, and that of other witnesses, may be, in connection with other facts, a weighty circumstance to show that they were not honestly seeking the truth. Ex parte Chin Loy You (D.C.) 223 F. 833; Ex parte Lam Pui (D.C.) 217 F. 456; Pang Sho Yin v. United States, 154 F. 660, 83 C.C.A. 484; Hanges v. Whitfield (D.C.) 209 F. 675; Whitfield v. Hanges, 222 F. 745, . . . C.C.A. . . . .

But the mere fact that the alien, before, at, or after his arrest, was interrogated without counsel being present, does not show that his hearing was not fair. On this point the decision of the Supreme Court in Low Wah Suey v. Backus, 225 U.S. 460, 32 Sup.Ct. 734, 56 L.Ed. 1165, is conclusive. To the same effect are In re Madeiros (D.C.) 225 F. 90; United States v. Moy Toom (D.C.) 224 F. 520; United States v. Lem You (D.C.) 224 F. 519; United States ex rel. Buccino v. Williams (C.C.) 190 F. 897; United States ex rel. Ivanow v. Greenawalt (D.C.) 213 F. 901; Sire v. Berkshire (D.C.) 185 F. 967; Siniscalchi v. Thomas, 195 F. 701, 115 C.C.A. 501; United States v. Hung Chang, 134 F. 19, 67 C.C.A. 93; Prentis v. Seu Leung, 203 F. 25, 121 C.C.A. 389.

In this case the petitioner had a perfectly fair and even painstaking hearing. Upon the whole evidence a just man might come to the conclusion that the petitioner was not the son of the merchant whom he claimed as his father. I personally am very doubtful as to whether he is or is not. The Exclusion Acts do not seem just to a Chinaman, and it is not surprising that he feels himself at liberty to evade them by every means in his power. If moral sanctions do not stand in the way of his giving false testimony in order to escape from what seems to him their arbitrary injustice, he seldom has any reason to fear any legal penalties for false swearing. The government cannot disprove his statement, or that of witnesses whom he may produce, as to the circumstances of his birth, a score or more years before. Whether the Chinese exclusion policy can or cannot be enforced, therefore, depends upon where the burden of proof is. In...