Chin Shee v. White

• Decision Date: 06 June 1921
• Docket Number: 3619.
• Citation: 273 F. 801
• Parties: CHIN SHEE v. WHITE, Commissioner of Immigration.
• Court: U.S. Court of Appeals — Ninth Circuit

273 F. 801

CHIN SHEE v. WHITE, Commissioner of Immigration.

No. 3619.

United States Court of Appeals, Ninth Circuit.

June 6, 1921

Rehearing Denied August 1, 1921.

Appeal from the District Court of the United States for the Northern Division of the Western District of Washington; Jeremiah Neterer, Judge.

Habeas corpus proceedings by Chin Shee, alias Ah Sue, against Henry M. White, as Commissioner of Immigration at the Port of Seattle, Wash. From a judgment discharging the writ (270 F 356), petitioner appeals. Affirmed.

Adam Beeler and John J. Sullivan, both of Seattle, Wash., for appellant.

Robert C. Saunders, U.S. Atty., and R. E. Capers, Asst. U.S. Atty both of Seattle, Wash., for appellee.

Before GILBERT and HUNT, Circuit Judges, and WOLVERTON, District judge.

WOLVERTON District Judge.

This appeal brings in review the judgment of the District Court discharging a writ of habeas corpus sued out by the appellant, Chin Shee, alias Ah Sue, to secure her release she being held by United States Commissioner of Immigration Henry M. White for deportation as a person unlawfully within the United States. The petition for the writ sets out that the petitioner is restrained of her liberty under the charge that she has no lawful right to be in the United States and should be deported, and further that such imprisonment, restraint, and order of deportation are illegal and not according to law.

The return of the commissioner to the order to show cause shows that the petitioner is lawfully detained by him, for the purpose of deportation, as an alien Chinese woman found practicing prostitution subsequent to her entry into the United States, under and by virtue of an order of the Secretary of Labor of the United States of June 5, 1920, issued and directed to respondent. By reference to the order or warrant, it will be found that the petitioner landed at the port of San Francisco on June 15, 1916, from the steamship Nippon Maru.

The petitioner's reply states that on January 30, 1919, she, having been then and there arrested, was given a hearing by the Commissioner of Immigration at Seattle, Wash., and that said examination was not before a special board of inquiry, but was before an individual inspector of the immigration service.

It is contended on the part of Chin Shee that she, being a Chinese and having entered the United States, is not subject to deportation through executive order, but is entitled to judicial inquiry and determination as to her right to remain in this country. A Chinese person, when charged under the Chinese exclusion statutes with being unlawfully in the United States, is entitled to a hearing before a justice, judge, or commissioner of a United States court, or before a United States court; and, if found and adjudged to be not lawfully entitled to be or remain in this country, it is then declared that such person shall be removed to the country whence he came. Section 13 of the Act of Congress of September 13, 1888, 25 Stat. 476 (Comp. St. Sec. 4313).

It has been determined that the statute is applicable in view of section 21 and the proviso of section 43 of the Act of Congress of February 20, 1907, 34 Stat. 898, entitled 'An act to regulate the immigration of aliens into the United States. ' Section 21 provides:

'That in case the Secretary of Commerce and 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.'

The proviso of section 43 is:

'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. ' United States et al. v. Woo Jan, 245 U.S. 552, 38 Sup.Ct. 207, 62 L.Ed. 466.

The question involved was one of construction, whether section 21, which contains the clause 'or any law of the United States,' in view of the proviso of section 43, was applicable in a case where it was charged that the alien, a Chinese person, was unlawfully within the United States, in that he was found therein in violation of the Chinese exclusion laws. The court held it was not, and therefore that Woo Jan was entitled to a hearing as provided by section 13 of the Act of September 13, 1888. The holding of the court was more recently concretely stated in the case of Edward White, Commissioner, v. Chin Fong, decided May 17, 1920, No. 506, 253 U.S. 90, 40 Sup.Ct. 449, 64 L.Ed. 797, where the court says:

'We had occasion to consider the difference between the situation of a Chinese person in the United States and one seeking to enter it, and held that the former was entitled to a judicial inquiry and determination of his rights, and that the latter was subject to executive action and decision.'

It was earlier determined by the Supreme Court, in a case where Chinamen had entered the United States surreptitiously and were arrested in transitu, that they were subject to deportation in pursuance of sections 20 and 21 of the Act of February 20, 1907. United States v. Wong You, 223 U.S. 67, 70, 32 Sup.Ct. 195 (56 L.Ed. 354). The court there said:

'To allow the Immigration Act its literal effect does not repeal, alter, or amend the laws relating to the Chinese, as it is provided that it shall not, in section 43.'

In the present case Chin Shee is charged with unlawful practices subsequent to her entry into the United States, which was June 15, 1916. It is sought to deport her in pursuance of section 19 of the Immigration Act of February 5, 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 4289 1/4jj). This section provides, among other things, that-- 'Any alien who shall be found an inmate of or connected with the management of a house of prostitution or practicing prostitution after such alien shall have entered the United States * * * shall, upon the warrant of the Secretary of Labor, be taken into custody and deported.'

Section 38 of the act (section 4289 1/4u) contains a proviso in all respects like the proviso above quoted as contained in section 43 of the act of 1907, with the added words, 'except as provided in section 19 hereof. ' It can scarcely be questioned that with this additional clause section 19 stands to repeal any provisions of the Chinese exclusion statutes not in harmony therewith. Such an intendment is obvious from the plainest reading of the proviso of section 38.

Nor can the appellant...