Weedin v. Chin Bow, 237

• Decision Date: 06 June 1927
• Docket Number: No. 237,237
• Citation: 274 U.S. 657,47 S.Ct. 772,71 L.Ed. 1284
• Parties: WEEDIN, Commissioner of Immigration, v. CHIN BOW
• Court: U.S. Supreme Court

274 U.S. 657

47 S.Ct. 772

71 L.Ed. 1284

WEEDIN, Commissioner of Immigration,

v CHIN BOW.

No. 237.

Argued March 16, 1927.

Decided June 6, 1927.

Messrs. William D. Mitchell, Sol. Gen., of Washington, D. C., Alfred A. Wheat, Sp. Asst. Atty. Gen., and Frank M. Parrish, of Washington, D. C., for petitioner.

Messrs. Charles E. Hughes, of New York City, and Clement L. Bouve, of Washington, D. C., for respondent.

Mr. Chief Justice TAFT delivered the opinion of the Court.

This is a writ of certiorari to review a judgment of the United States Circuit Court of Appeals for the Ninth Circuit, affirming an order of the District Court for the Western District of Washington allowing a writ of habeas corpus for Chin Bow, a chinese boy 10 years of age, and granting him a discharge. The petition for certiorari was filed October 29, 1925, and granted December 7, 1925 (269 U. S. 550, 46 S. Ct. 120, 70 L. Ed. 406), under section 240(a) of the Judicial Code as amended by the Act of February 13, 1925, c. 229, 43 Stat. (Comp. St. § 1217).

Chin Bow applied for admission to the United States at Seattle. The board of special inquiry of the Immigration Bureau at that place denied him admission on the ground that, though his father is a citizen, he is not a citizen, because at the time of his birth in China his father had never resided in the United States. Chin Bow was born March 29, 1914, in China. His father, Chin Dun was also born in China on March 8, 1894, and had never been in this country until July 18, 1922. Chin Dun was the son of Chin Tong, the respondent's grandfather. Chin Tong is 49 years old, and was born in the United States.

The Secretary of Labor affirmed the decision of the board of inquiry, and the deportation of the respondent was ordered. He secured a writ of habeas corpus from the District Court. Upon a hearing, an order discharging him was entered without an opinion. On appeal by the United States, the Circuit Court of Appeals affirmed the judgment of the District Court (7 F.(2) 369), holding him to be a citizen under the provisions of section 1993 of the Revised Statutes (Comp. St. § 3947), which is as follows:

'All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States.'

The rights of Chin Bow are determined by the construction of this section. The Secretary of Labor, April 27, 1916, asked the opinion of Attorney General Gregory whether a rule of the Chinese regulations of his Department, which denied citizenship to foreign-born children of American Chinese, was a valid one. He advised that it was not, because section 1993 applied to all children and therefore included Chinese children as well. The second question was whether foreign-born children of American-born Chinese fathers were entitled to enter the United States as citizens thereof, when they had continued to reside for some time in China after reaching their majorities, without any affirmative action on their part indicating an intention to remain citizens of the United States, and the Attorney General advised that they were, in spite of these circumstances, entitled to enter the United States as citizens thereof, 30 Op. Attys. Gen. 529.

The United States contends that the proviso of section 1993, 'but the rights of citizenship shall not descend to children whose fathers never resided in the United States,' must be construed to mean that only the children whose fathers have resided in the United States before their birth become citizens under the section. It is claimed for the respondent that the residence of the father at any time in the United States before his death entitles his son whenever born to citizenship. These conflicting claims make the issue to be decided.

The very learned and useful opinion of Mr. Justice Gray, speaking for the court in United States v. Wong Kim Ark, 169 U. S. 649, 18 S. Ct. 456, 42 L. Ed. 890, establishes that at common law in England and the United States the rule with respect to nationality was that of the jus soli, that birth within the limits of the jurisdiction of the Crown, and of the United States, as the successor of the Crown, fixed nationality, and that there could be no change in this rule of law except by statute; that by the statute of 7 Anne (1708) c. 5, § 3, extended by the statute of 4 George II (1731) c. 21, all children born out of the ligeance of the Crown of England whose fathers were or should be natural-born subjects of the Crown of England, or of Great Britain, at the time of the birth of such children, respectively, were deemed natural-born subjects of that kingdom to all intents and purposes whatsoever. That statute was extended by the statute of 13 George III (1773) c. 21, to foreign-born grandchildren of natural-born subjects but not to the issue of such grandchildren. 169 U. S. 671, 18 S. Ct. 456, 42 L. Ed. 890. De Geer v. Stone, 22 Ch. D. 243, 252; Dicey, Conflict of Laws, 178, 781. The latter author says (page 782) that British nationality did not pass by descent or inheritance beyond the second generation. These statutes applied to the colonies before the War of Independence.

The Act of March 26, 1790, entitled 'An act to establish an uniform rule of naturalization' (1 Stat. 103, c. 3), came under discussion in February, 1790, in the House, but the discussion was chiefly directed to naturalization and not to the status of children of American citizens born abroad. Annals of First Congress, 1109, 1110, et seq. The only reference is made by Mr. Burke (page 1121) in which he says:

'The case of the children of American parents born abroad ought to be provided for, as was done in the case of English parents in the 12th year of William III. There are several other cases that ought to be likewise attended to.'

Mr. Hartley said (page 1125) that he had another clause ready to present providing for the children of American citizens born out of the United States. A select committee of ten was then appointed to which the bill was recommitted and from which it was reported. But no subsequent reference to the provision of the bill which we are now considering appears. The bill as passed was as follows:

'An Act to establish an uniform Rule of Naturalization.

'Section 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that any alien, being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof, on application to any common law court of record, in any one of the states wherein he shall have resided for the term of one year at least, and making proof to the satisfaction of such court, that he is a person of good character, and taking the oath or affirmation prescribed by law, to support the Constitution of the United States, which oath or affirmation such court shall administer and the clerk of such court shall record such application, and the proceedings thereon; and thereupon such person shall be considered as a citizen of the United States. And the children of such persons so naturalized, dwelling within the United States, being under the age of twenty-one years at the time of such naturalization, shall also be considered as citizens of the United States. And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural-born citizens: Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States: Provided also, that no person heretofore proscribed by any state, shall be admitted a citizen as aforesaid, except by an act of the Legislature of the state in which such person was proscribed.'

This act was repealed by the Act of January 29, 1795, 1 Stat. 415, § 4, but the third section of that act re-enacted the provisions of the Act of 1790 as to children of citizens born beyond the sea, in equivalent terms. The clauses were not repealed by the next Naturalization Act of June 18, 1798, 1 Stat. 566, but continued in force until the 14th of April, 1802, when an Act of Congress of that date, 2 Stat. 153, repealed all preceding acts respecting naturalization. After its provision as to naturalization, it contained in its fourth section the following:

'That the children of persons duly naturalized under any of the laws of the United States, or who, provious to the passing to any law on that subject, by the government of the United States, may have become citizens of any one of the said states, under the laws thereof, being under the age of twenty-one years, at the time of their parents being so naturalized or admitted to the rights of citizenship, shall, if dwelling in the United States, be considered as citizens of the United States, and the children of persons who now are, or have been citizens of the United States, shall, though born out of the limits and jurisdiction of the United States, be considered as citizens of the United States: Provided, that the right of citizenship shall not descend to persons whose fathers have never resided within the United States.'

No change was made in the law until 1855. Mr. Horace Binney had written an article, which he published December 1, 1853, for the satisfaction of fellow citizens and friends, whose children were born abroad during occasional visits by their parents to Europe. 169 U. S. 665, 18 S. Ct. 456, 42 L. Ed. 890, 2 Amer. Law Reg. 193. He began the article as follows:

'It does not, probably, occur to the American families who are visiting Europe in great numbers, and remaining there, frequently for a year or more, that all their...