Ex parte Wong Nung

• Citation: 30 F.2d 766
• Decision Date: 18 February 1929
• Docket Number: No. 5590.,5590.
• Parties: Ex parte WONG NUNG. WONG NUNG v. CARR, District Director, United States Immigration Service.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

30 F.2d 766 (1929)

Ex parte WONG NUNG WONG NUNG v. CARR, District Director, United States Immigration Service.

No. 5590.

Circuit Court of Appeals, Ninth Circuit.

February 18, 1929.

J. Edward Keating and Theodore E. Bowen, both of Los Angeles, Cal., for appellant.

Samuel W. McNabb, U. S. Atty., and Gwyn S. Redwine, Asst. U. S. Atty., both of Los Angeles, Cal., for appellee.

Before RUDKIN and DIETRICH, Circuit Judges, and BEAN, District Judge.

DIETRICH, Circuit Judge.

At all the times herein mentioned Wong Hin was a Chinese merchant lawfully domiciled in the United States. In the court below he instituted this proceeding by a petition for a writ of habeas corpus to test the validity of an order made by the immigration officers, directing the deportation of Wong Nung, his minor son. Relief was denied, and he brings this appeal.

On October 25, 1921, Wong Nung, then five years of age, came with his mother from China, where he was born, and was admitted to the United States as the minor child of a domiciled Chinese merchant. Between two and three years later, while he was attending the public schools in Los Angeles, it was discovered by the public health officers that he was suffering from nodular leprosy, and on April 8, 1924, he was admitted for treatment to the Los Angeles General Hospital, where he was cared for at public expense. He remained there as a public charge until September 23, 1926, when he was released as a "noninfective," to return to his home, but in less than two months, on November 16th, he was readmitted to the hospital, where he again became a public charge.

In the meantime, on March 17, 1925, the assistant superintendent of the hospital reported the case to the appellee, who thereupon instituted deportation proceedings, and on April 9, 1925, the Secretary of Labor issued a warrant directing that the boy be taken into custody and be required to show cause why he should not be returned to China, upon the ground (1) that he was a person likely to become a public charge at the time of his entry; and (2) that he had become a public charge within five years after his entry "from causes not affirmatively shown to have arisen subsequent thereto." By the administrative officers both grounds were sustained, but it is necessary here to consider only the second. In point of law it is predicated upon section 19 of the Immigration Law of February 5, 1917 (39 Stat. 874; 8 USCA § 155) which authorizes the deportation of "any alien who within five years after entry becomes a public charge from causes not affirmatively shown to have arisen subsequent to landing."

That within the prescribed period Wong Nung became a public charge the record leaves no room for doubt, and further that in the spring of 1924 he had leprosy, and still has it, in a developed form, cannot be denied. The only question, therefore, is whether he has successfully carried the burden of showing that he was not afflicted with the malady in an incipient stage at the time of his landing. The father testified that he had no disease prior to his entry, and a friend, one Quock Fou, testified that he had never heard of any member of Wong Hin's family being so afflicted. One qualified doctor also gave it as his opinion that the disease was contracted subsequently to the landing. Two qualified physicians were of the contrary opinion. The view of Dr. Carter, the assistant superintendent of the Los Angeles hospital, that it was impossible to state whether or not in its origin the disease antedates the landing, in no wise aids the alien, for upon him rests the burden of proof. The case is readily distinguishable from United States ex rel. Brugnoli v. Tod (D. C.) 300 F. 913, and upon the whole we are of the opinion that the issue rests upon conflicting competent testimony, with the result that we are not at liberty to review the administrative finding, unless in some other particular the conduct of the officers was such as to render the hearing unfair.

Upon an analysis of the record we find little basis for the charges of unfairness. At the original hearing, which opened April 23, 1925, and, after certain continuances, closed May 14, 1925, the evidence upon this issue consisted of the statement we have referred to as having been made by Dr. Carter, in the form of a certificate, and the testimony given by the father and Quock Fou, and that of the doctor produced as a witness by the appellant. The record in that condition the local officers forwarded to Washington, with a recommendation for an order of deportation. Apparently doubting its sufficiency to justify a warrant of deportation, the Assistant Commissioner returned it to Los Angeles on August 21, 1925, with instructions "to reopen the case and have incorporated therein such opinion as may be advanced by the Public Health Service doctors as the result of any examination they may care to make."

Responding to a request for their opinion, two doctors in the Health Service, by letter dated October 1, 1925, advised that in their judgment the alien "was infected with leprosy prior to October 25, 1921." Owing to...