Lee Wong Hin v. Mayo

• Decision Date: 10 March 1917
• Docket Number: 3017.
• Citation: 240 F. 368
• Parties: LEE WONG HIN v. MAYO, Immigration Com'r.
• Court: U.S. Court of Appeals — Fifth Circuit

240 F. 368

LEE WONG HIN v. MAYO, Immigration Com'r.

No. 3017.

United States Court of Appeals, Fifth Circuit.

March 10, 1917

Appeal from the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge.

Application by Lee Wong Hin against John P. Mayo, Commissioner of Immigration, Port of New Orleans, for a writ of habeas corpus. From an order of the District Court dismissing the petition, petitioner appeals. Reversed and remanded, with directions.

ALIENS 32(1)-- DEPORTATION OF CHINESE-- PROCEEDINGS-- STATUTES.

Chinese Exclusion Act Sept. 13, 1888, c. 1015, Sec. 13, 25 Stat. 479 (Comp. St. 1913, Sec. 4313), provides that any Chinese person found unlawfully in the United States may be arrested on warrant issued on complaint by any justice, judge, or commissioner of any United States court, returnable before any justice, judge, or commissioner of the United States court, or before any such court, and when convicted upon a hearing, and found not entitled to remain in the United States, he shall be removed, but, if convicted before a commissioner, he may appeal to a judge of the District Court. Immigration Act Feb. 20, 1907, c. 1134, Secs. 20, 21, 34 Stat. 904 (Comp. St. 1913, Secs. 4269, 4270), provide for the deportation of aliens, who have violated any of the provisions of the Immigration Act, upon warrant issued by the Secretary of Labor, without a right to a judicial determination of his status, unless the Secretary acted beyond his legal authority or without evidence, and provide that the procedure shall be applicable to any alien subject to deportation under the provisions of that act, or of any law of the United States. Section 43 of the same act (Comp St. 1913, Sec. 4289) provides that nothing therein shall be construed to repeal, alter, or amend existing laws relating to the immigration or exclusion of Chinese persons. Held that, even though the Chinese Exclusion Act is the only 'other law of the United States' to which the Immigration Act could refer, a construction of that act as permitting the deportation of a Chinese person after an administrative hearing only would be a repeal and alteration of the provisions of the Chinese Exclusion Act for a judicial hearing contrary to section 43 of the Immigration Act, and therefore a Chinese person unlawfully within the United States under the Exclusion Act, but who has committed no offense under the Immigration Act, cannot be deported on the warrant issued by the Secretary of Labor.

W. J Waguespack and Herbert W. Waguespack, both of New Orleans La., and C. A. Miranne, for appellant.

Jos. W. Montgomery, Asst. U.S. Atty., of New Orleans, La., for appellee.

Before PARDEE and WALKER, Circuit Judges, and GRUBB, District Judge.

GRUBB District Judge.

This is an appeal from an order of the District Court of the United States for the Eastern District of Louisiana, dismissing the petition of the appellant, as relator, for a writ of habeas corpus. The appeal presents a single question of law. The appellant was arrested under a warrant issued by the Secretary of Labor, and was ordered by the Assistant Secretary of Labor, after a hearing, to be returned to the country from whence he came to this country at the expense of the steamship company importing him. The warrant of arrest and that of deportation charged the appellant with having been 'found within the United States in violation of section 2, Chinese Exclusion Act of November 3, 1893 (28 Stat. 8, c. 14 (Comp. St. 1913, Sec. 4324)), having secured admission by fraud, not having been at time of entry a lawfully domiciled exempt, returning to resume a lawfully acquired domicile and to follow an exempt pursuit in this country. ' He was not charged with any offense under the Immigration Act of February 20, 1907. The appellant insists that, the only offense for which he is being detained being one under the Chinese Exclusion Act, by the terms of which he was entitled to a judicial hearing to determine whether or not he was found unlawfully in the United States, he cannot be held under the warrant of deportation issued by the Secretary of Labor under the Immigration Act of February 20, 1907, and by that means denied a judicial hearing.

It is settled that the Immigration Act of February 20, 1907, makes no exception from the classes of undesirable aliens covered by it of Chinese persons, and that persons of whatever race, who enter this country in violation of its provisions, subject themselves to deportation by the method provided for in sections 20 and 21 of the act, after an administrative hearing only. United States v. Wong You, 223 U.S. 67, 32 Sup.Ct. 195, 56 L.Ed. 354. The question presented in this case is a different one. The appellant is charged with no violation of the Immigration Act, as was Wong You in the case cited. He is charged with a violation of the Chinese Exclusion Act only, and the government's contention is that the plain language of section 21 of the Immigration Act makes the procedure provided for in that act applicable to any alien 'subject to deportation under the provisions of this act or of any law of the United States,' and that the appellant, being subject to deportation under the Chinese Exclusion Act, which is a law of the United States, may therefore be deported under the procedure provided in the Immigration Act. Section 43 of the Immigration Act is as follows:

'That the act of March third, nineteen hundred and three, being an act to regulate the immigration of aliens into the United States, except section thirty-four thereof, and the act of March twenty-second, nineteen hundred and four, being an act to extend the exemption from head tax to citizens of Newfoundland entering the United States, and all acts and parts of acts inconsistent with this act are hereby repealed: Provided, that this act shall not be construed to repeal, alter, or amend existing laws relating to the immigration or exclusion of Chinese persons or persons of Chinese descent, nor to repeal, alter, or amend section six, chapter four hundred and fifty three, third session Fifty-Eighth Congress, approved February sixth, nineteen hundred and five, or, prior to January first, nineteen hundred and nine, section one of the act approved August second, eighteen hundred and eighty two, entitled 'An act to regulate the carriage of passengers by sea.'

This section prohibits a construction of the Immigration Act that would have the effect of repealing, altering, or amending existing laws relating to the immigration or exclusion of Chinese persons or persons of Chinese descent. Section 21 of the act ought, therefore, not to be given a construction that would operate to repeal, alter, or amend any part of the Chinese...