Ng Fung Ho v. White

• Decision Date: 06 July 1920
• Docket Number: 3462.
• Citation: 266 F. 765
• Parties: NG FUNG HO et al. v. WHITE, Immigration Com'r.
• Court: U.S. Court of Appeals — Ninth Circuit

266 F. 765

NG FUNG HO et al. v. WHITE, Immigration Com'r.

No. 3462.

United States Court of Appeals, Ninth Circuit.

July 6, 1920

Rehearing Denied September 7, 1920.

Appeal from the District Court of the United States for the First Division of the Northern District of California; Frank H Rudkin, Judge.

Habeas corpus by Ng Fung Ho, otherwise known as Ung Kip, and others against Edward White, Commissioner of Immigration for the Port of San Francisco. From an order quashing the writ petitioners appeal. Affirmed in part, and reversed in part.

Where Chinese were admitted as citizens on evidence that their father was a native of the United States, the burden of attack rests on the government; but, where the evidence is sufficient to show that the original certificates granted them were obtained by fraud, deportation may follow.

Geo. A McGowan, of San Francisco, Cal., for appellants.

Annette Abbott Adams, U.S. Atty., and Ben F. Geis, Asst. U.S. Atty., both of San Francisco, Cal., for appellee.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

HUNT Circuit Judge.

The appellants, Ng Fung Ho (alias Ung Kip), Ng Yuen Shew, Lui Yee Lau (alias Louie Pon), Gin Sang Get, and Gin Sang Mo, are five Chinese persons who have been ordered deported from the United States under executive deportation procedure for violations of the Chinese Exclusion Law (Act May 6, 1882, and amendments (Comp. St. Sec. 4290 et seq.)). All of the appellants arrived in the United States prior to May 1, 1917, on which date an amendatory statute, known as the General Immigration Law (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Secs. 959, 960, 4289 1/4a, et seq.), became effective.

The first question for decision is whether the Secretary of Labor, under sections 19 and 38 of the Immigration Act of 1917 (sections 4289 1/4jj, 4289 1/4u), and within the limitations stated therein, had authority to arrest and deport on departmental warrant, alien Chinese persons found within the United States in violation of the Chinese Exclusion Law, where entry was made prior to the date the above referred to act went into effect; i.e., May 1, 1917. Pertinent excerpts from the two statutes are as follows:

Act Feb. 20, 1907, c. 1134, Sec. 20, 34 Stat. 898, 904, 905: 'That any alien who shall enter the United States in violation of law, and such as become public charges from causes existing prior to landing. shall, upon the warrant of the Secretary of * * * Labor, be taken into custody and deported to the country whence he came at any time within three years after the date of his entry into the United States.'

Section 21: 'That in case the Secretary of * * * Labor shall be satisfied that an alien has been found in the United States in violation of this act, or that an alien is subject to deportation under the provisions of this act or of any law of the United States, he shall cause such alien within the period of three years after landing or entry therein to be taken into custody and returned to the country whence he came, as provided by section 20 of this act.'

Act Feb. 5, 1917, Sec. 19: 'That at any time within five years after entry, * * * any alien who shall have entered or who shall be found in the United States in violation of this act, or in violation of any other law of the United States, * * * shall, upon the warrant of the Secretary of Labor, be taken into custody and deported: * * * Provided further, that the provisions of this section, with the exceptions hereinbefore noted, shall be applicable to the classes of aliens therein mentioned irrespective of the time of their entry into the United States' (third proviso).

Section 38: 'This act, except as otherwise provided in section 3, shall take effect and be in force on and after May 1, 1917: * * * 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 except as provided in section 19 hereof: * * * Provided, further, that nothing contained in this act shall be construed to affect any prosecution, suit, action, or proceedings brought, or any act, thing, or matter, civil or criminal, done or existing at the time of the taking effect of this act, except as mentioned in the third proviso of section 19 hereof; but as to all such prosecutions, suits, actions, proceedings, acts, things, or matters, the laws or parts of laws repealed or amended by this act are hereby continued in force and effect.'

It will be seen that section 38 contains two exceptions:

First, 'except as provided in section 19 hereof;' and second, 'except as mentioned in the third proviso of section 19 hereof.'

Inasmuch as these exceptions were not included in sections 43 and 28 of the earlier act of Congress (1907), it is to be assumed they have relation to the sections of the act of 1917 wherein they appear. Their effect is to modify and restrict the provisions of which they are a part, and we think that they accomplish this by excluding from the other provisions of the provisos the classes of aliens enumerated in section 19, to which the exceptions have reference. Section 19 at great length enumerates the classes of aliens subject to arrest and deportation by warrant of the Secretary of Labor and fixes the time where a limit is specified within which aliens subject to arrest may be taken into custody and deported and by the third proviso hereinbefore quoted, with the 'exceptions hereinbefore' noted, the provisions of section 19 are applicable to the classes of aliens mentioned without regard to the time of the entry of such classes into the United States. The classes of aliens are not enumerated in the proviso to section 19, but they are clearly referred to. They are also included within the exception to the first proviso of section 38 by reference to the exception as provided in section 19, and also in the exception to the second proviso of section 38, where again reference is made to the exceptions mentioned in the third proviso of section 19.

We gain assistance as to the intent of Congress from the report of the Senate committee on immigration, which had under consideration the bill for the Immigration Act of 1917. The committee (64th Congress, Senate Report No. 352), referred to the provision of section 19 as being made retroactive, 'with certain exceptions.' It is true that the committee failed to express what 'certain exceptions' it had in mind, but the context shows that the exceptions referred to were those 'hereinbefore noted,' as referred to in the third proviso of section 19. Among the exceptions noted and referred to are these: An alien who shall have entered or who shall be found in the United States in violation of the act of February 5, 1917; an alien who is hereafter sentenced to imprisonment for one year or more because of conviction in the United States of a crime involving moral turpitude committed within five years after the entry of the alien into the United States; an alien who is hereafter sentenced more than once to a term of imprisonment because of conviction in this country of any crime involving moral turpitude committed at any time after entry. The statute is prospective as to those aliens who enter the United States in violation of the act, while as to the other classes the act is retroactive as to the time of the entry of the alien, but prospective in relation to conviction.

Notwithstanding the difficulty of construction, it is quite evident that the purpose of the proviso was to make section 19 applicable without regard to the time of entry into the United States. By changing the language used in the act of February 20, 1907, so as to make the act apply, not only to those 'who shall enter,' but to those 'who shall have entered,' there is evidence of intent to make the provisions of section 19 retroactive. Again, the report of the committee helps to clearer understanding by the statement that it was intended to continue the practice established under the act of 1907--

'of expelling aliens who enter or are found here in violation of the Chinese Exclusion Law, adapting the administrative process of the Immigration Act to that class of cases wherever the proceedings are instituted within the periods of limitation specified therein.'...