In re Chan Foo Lin

• Decision Date: 05 June 1917
• Docket Number: 2917.
• Parties: In re CHAN FOO LIN.
• Court: U.S. Court of Appeals — Sixth Circuit

243 F. 137

In re CHAN FOO LIN.

No. 2917.

United States Court of Appeals, Sixth Circuit.

June 5, 1917

John A Cline, of Cleveland, Ohio, for appellant.

Joseph C. Breitenstein, Asst. U.S. Atty., of Cleveland, Ohio, for appellee.

Before WARRINGTON and DENISON, Circuit Judges, and SATER, District judge.

WARRINGTON Circuit Judge.

This is an appeal from an order dismissing a proceeding in habeas corpus. Petitioner, Chan Foo Lin, alias Frank Chan, claimed he was unlawfully deprived of his liberty by an inspector in charge of the immigration department of the Cleveland district of Ohio. The usual writ having been issued, the inspector answered that he was holding petitioner in virtue of a warrant for his arrest which had been issued by the Acting Secretary of Labor; that upon the matters involved in the warrant of arrest petitioner had been granted a fair and full hearing in accordance with law and with the regulations of the Secretary of Labor; that upon due consideration the Acting Secretary of Labor had by wire instructed respondent to convey petitioner to New York for deportation. Petitioner filed a reply, consisting of denials and a series of allegations of fact, among which it was stated that he was born in the United States, and that he had not been granted a fair trial. Discharge of petitioner was denied, and hence the appeal.

The question here must turn upon the issue whether petitioner was granted a fair trial prior to the suing out of the writ of habeas corpus. The warrant of arrest, bearing date June 19 1914, is addressed to Inspector Fluckey and signed by the Acting Secretary of Labor. The warrant states:

'Whereas, from evidence submitted to me, it appears that the alien,' petitioner, 'who landed at an unknown port on or subsequent to the 1st day of July, 1911, has been found in the United States in violation of the act of Congress approved February 20, 1907, amended by the act approved March 26, 1910, for the following among other reasons: That the said alien is unlawfully within the United States, in that he has been found therein in violation of the Chinese exclusion laws, and is therefore subject to deportation under the provisions of section 21 of the above-mentioned Act, and that he entered in violation of section 36 of the said act, thereby entering without inspection.'

The command is that the inspector 'take into custody the said alien and grant him a hearing to enable him to show cause why he should not be deported in conformity with law. ' It is to be observed of the warrant that petitioner is charged with the violation of both the Immigration Act and the Chinese exclusion laws. The section (36) of the former act so charged to be violated forbids an alien to enter the United States, except at 'seaports' or at such 'place or places as the Secretary of Commerce and Labor may from time to time designate.' 34 Stat. 908, c. 1134, Sec. 36, passed February 20, 1907 (Comp. St. 1916, Sec. 4285). The amendment of March 26, 1910, mentioned in the warrant, does not affect section 36 (36 Stat. 263-265, c. 128 (Comp. St. 1916, Sec. 4244)). The telegram (the 'wire') mentioned in the inspector's answer shows that the portion of the warrant charging violation of the Chinese exclusion laws was intended to apply to section 6 of the act of May 5, 1892, as amended November 3, 1893 (27 Stat. 25, c. 60; 28 Stat. 7, c. 14 (Comp. St. 1916, Sec. 4320)), and to section 7 of the act of September 13, 1888 (25 Stat. 447, c. 1015 (Comp. St. 1916, Sec. 4308)), and 'rule 1, Chinese Rules.' Section 6, so referred to, in terms required Chinese laborers, at the date of the act or within one year thereafter, to apply to a collector of internal revenue for a 'certificate of residence'; but in view of the date of the act (1892) and of petitioner's age, seemingly 22 years, the object of the charge made under this provision is not perceived. Section 7 exacts production of certificates of re-entry by Chinese laborers who, having previously entered this country and returned to China, seek to re-enter here; and rule 1, Chinese Rules, forbids a Chinese person to enter the country, except at designated ports and under prescribed conditions.

The warrant of arrest appears to have been issued upon a statement made by the petitioner, June 1, 1914, to Inspector Francis at a laundry in Cleveland, and a further statement of the inspector in charge at Detroit, who from a photograph of petitioner concluded that he had seen him in Windsor, Ontario. The statement of petitioner was made in the form of answers to questions put by Inspector Francis through a Chinese interpreter and taken and transcribed by a stenographer. At the beginning of the examination the petitioner answered the questions with apparent frankness, giving his name as Frank Chan, and also as Chan Foo Lin, his age at 22 years, and the names of his parents, stating that he was born in San Francisco, that his mother had died there and his father in China, also that he had a birth certificate, but the so-called certificate is described in the record as a 'red slip of Chinese paper, unsigned, stating that this boy was born on February 23, 1893; it does not state where he was born. ' Later, however, he seems to have thought the examiner was disinclined to believe him, and he refused to answer questions. The inspector sought in several ways to induce him to state in detail such facts and circumstances as might tend either to corroborate or discredit the claim that he was born in San Francisco, saying that if he would frankly answer the questions the inspector would give him 'a square deal,' but this elicited no answer except 'I have nothing to say.' Whatever else may be said of the examination, some answers were secured which apparently were not reconcilable with some of the petitioner's later statements. On June 25, 1914, and after issue of the warrant petitioner was arrested and ordered 'to show cause why he should not be deported in conformity with law. ' A hearing was begun July 29th, before Inspector Francis, as examining officer; several delays having occurred upon request of petitioner's counsel. Inspector Francis and J. A. Fluckey, inspector in charge, with an interpreter and stenographer, also petitioner, with his counsel and a Chinese interpreter furnished by them, were present at each session of the hearing that ensued.

Counsel for petitioner objected to Inspector Francis as the examining officer, for the reason that he had conducted the investigation upon which the warrant of arrest was issued and would be expected later 'to render final decision' in the case; also to any examination of petitioner, because the government had introduced no proof that he was unlawfully within the United States, or that he is an alien. We shall have something to say later of the first of these objections; but the last objection is untenable. If we assume that the purpose of the government was to proceed under the Immigration Act upon the hypothesis that petitioner had entered the United States surreptitiously and in violation of section 36 of that act (34 Stat. 908), and also that he was within the United States in violation of the Chinese exclusion laws, still the proceeding was of a civil and not of a criminal character (Low Foon Yin v. United States Immigration Comr., 145 F. 791, 793, 76 C.C.A. 355 (C.C.A. 9); United States v. Tom Wah, 160 F. 207, 210, 211, and citations (D.C.), affirmed 163 F. 1008, 1009, 90 C.C.A. 178 (C.C.A. 2); Siniscalchi v. Thomas, 195 F. 701, 703, 115 C.C.A. 501 (C.C.A. 6)), and hence we see no reason why the government could not rightfully call petitioner to state the place of his birth and explain his presence in the United States, since his right to remain here might depend upon such facts as he...