Shizuko Kumanomido v. Nagle

Decision Date07 April 1930
Docket NumberNo. 5945.,5945.
PartiesSHIZUKO KUMANOMIDO v. NAGLE, Immigration Com'r.
CourtU.S. Court of Appeals — Ninth Circuit

Albert H. Elliot, Guy C. Calden, and Russell W. Cantrell, all of San Francisco, Cal. (Raymond L. Frick, of San Francisco, Cal., of counsel), for appellant.

George J. Hatfield, U. S. Atty., and William A. O'Brien, Asst. U. S. Atty., both of San Francisco, Cal., for appellee.

Before DIETRICH and WILBUR, Circuit Judges, and KERRIGAN, District Judge.

WILBUR, Circuit Judge.

This is an appeal from the order and judgment of the District Court denying a petition for writ of habeas corpus filed herein by petitioner, now appellant. Appellant's husband, Yoshiko Kumanomido, a subject of the Empire of Japan, is engaged as the editor of a Japanese daily newspaper published in San Francisco and now resides in San Francisco. After having resided in the United States for more than five years, Yoshiko Kumanomido departed for Japan on April 2, 1928. While in Japan, and on October 11, 1928, he married the appellant herein, who is also a subject of Japan. On December 7, 1928, petitioner arrived in the port of San Francisco with a passport duly visaed and applied for admission into the United States as the wife of a Japanese merchant. At a hearing by the Board of Special Inquiry petitioner was denied admission into the United States. Petitioner claims the right to enter under and by authority of article 1 of the treaty of Commerce and Navigation of February 21, 1911, between the United States and Japan (37 Stat. 1504) as a nonimmigrant under section 3(6) of the Immigration Law of 1924 (8 USCA § 203). Article 1 of that treaty is as follows: "The citizens or subjects of each of the High Contracting Parties shall have liberty to enter, travel and reside in the territories of the other to carry on trade, wholesale and retail, to own or lease and occupy houses, manufactories, warehouses and shops, to employ agents of their choice, to lease land for residential and commercial purposes, and generally to do anything incident to or necessary for trade upon the same terms as native citizens or subjects, submitting themselves to the laws and regulations there established."

The Immigration Law of 1924 classes as nonimmigrants aliens seeking admission to the United States and "entitled to enter the United States solely to carry on trade under and in pursuance of the provisions of a present existing treaty of commerce and navigation." Section 3, subd. 6 (8 USCA § 203(6).

The right of the wife of a treaty merchant to admission is not seriously questioned. See Cheung Sum Shee et al. v. Nagle, 268 U. S. 336, 45 S. Ct. 539, 69 L. Ed. 985.

The principal point involved in this case is the question of whether or not an alien who is the editor of a Japanese newspaper published in San Francisco and distributed locally, but who is not the proprietor or publisher of such paper, is an "alien entitled to enter the United States solely to carry on trade under and in pursuance of the provision of a present existing treaty of commerce and navigation."

In pursuance of the authority given in section 24 of the Immigration Act of 1924 (8 USCA § 222) to prescribe rules and regulations for the enforcement of that act, the Commissioner General of Immigration, with the approval of the Secretary of Labor, and the Secretary of State, on the recommendation of the Secretary of Labor, has adopted the following regulations:

"58. In order to obtain a visa under the statutory and treaty provisions referred to the applicant must show that he is going to the United States in the course of a business which involves, substantially, trade or commerce between United States and the territory stipulated in the treaty. For example, one going to the United States as a member or agent of a commercial concern in his own country, in transactions involving commerce between the two countries, or one going to the United States with a stock of goods produced in his own country, to be sold in the United States and to be replenished from other goods produced in his own country, would be entitled to the benefits of the statutory and treaty provisions in question.

"59. The distinction to be observed is between the case of one engaged in trade or commerce between the two countries and the case of an immigrant or settler who seeks to come without such a relation to commerce, but who may thereafter engage in purely local transactions which lie outside the purposes of the commercial treaties."

These regulations purport to restrict the right to enter the United States to those engaged in trade between Japan and the United States, wholesale or retail. If these regulations conflict with an act of Congress or with a treaty, which is the law of the land (U. S. Const. art. 6, cl. 2), they would to that extent be void. Johnson v. Keating ex rel. Tarantino (C. C. A.) 17 F.(2d) 50, citing Field v. Clark, 143 U. S. 649, 12 S. Ct. 495, 36 L. Ed. 294. See, also, U. S. v. 11150 lbs. of Butter (C. C. A.) 195 F. 657; St. Louis Independent Packing Co. v. Houston (C. C. A.) 215 F. 553. Otherwise they have the force of law. U. S. v. Ormsbee (D. C.) 74 F. 207. In any event, these rules are entitled to serious consideration as an interpretation of the treaty by the executive department of the government. In this regard the decision of the Board of Special Inquiry which passed on the petitioner's right to enter the United States, recites that the question of the treaty rights of the applicant have been submitted to the Department of State and that the reply had been adverse to that right as follows:

"The record indicated that the husband was employed as an editor for Japanese newspapers published in Los Angeles. This Department did not understand on what basis a 3 (6) visa was granted to the wife, and therefore, referred the case to the State Department with the request that this Department be advised whether that Department regards the husband as entitled to a status as a treaty merchant within the meaning of Section 3, Subdivision 6 of the Immigration Act of 1924.

"Under date January 9th, 1929, the State Department replied that as the male alien is engaged in a purely local enterprise which has little if anything to do with international trade and commerce he is not entitled to a treaty status with Japan. This Department concurs in that finding. Consequently the request for change of status on behalf of the male alien must be denied. The woman is not entitled to admission under Subdivision 6 of Section 3."

The provisions of article 1 of the treaty with Japan have been considered by our Supreme Court. In the case of Asakura v. City of Seattle, 265 U. S. 342, 44 S. Ct. 515, 68 L. Ed. 1041, in an opinion delivered by Justice Butler, it was held that the phrase "to carry on trade" was broad enough to cover a local pawnbroker's business established in Seattle, and there is no suggestion that the treaty right is confined to international trade. An ordinance of the city of Seattle which denied the right of an alien to carry on the business of pawnbroker was therefore held to be void because in conflict with this treaty so far as it undertook to prohibit a Japanese subject from engaging in such business. In that case the court expressly reserved the question of the right of a Japanese subject to enter the United States under the treaty as not involved in the decision. Id., page 343 of 265 U. S., 44 S. Ct. 515. In the case of Jordan, Secretary of State of California, v. Tashiro, 278 U. S. 123, 49 S. Ct. 47, 48, 73 L. Ed. 214, the Supreme Court had occasion to again interpret the provisions of this article of the treaty with Japan, Justice Stone delivering the opinion of the court. It was there contended that the treaty did not extend to such an enterprise, and that the right to "trade" and carry on "commerce" was limited to the sale and exchange of goods and commodities. In answer to that contention the court stated its conclusion as follows:

"While in a narrow and restricted sense the terms `commerce,' or `commercial,' and `trade' may be limited to the purchase and sale or exchange of goods and commodities, they may connote, as well, other occupations and other recognized forms of business enterprise which do not necessarily involve trading in merchandise. Asakura v. Seattle, supra. And although commerce includes traffic in this narrower sense, for more than a century it has been judicially recognized that in a broad sense it embraces every phase of commercial and business activity and intercourse. See Gibbons v. Ogden, 9 Wheat. 1, 189, 6 L. Ed. 23.

"Considerations which led this court to conclude that the terms `trade' and `commerce' as used in this treaty do not include agriculture, and the circumstances attending the making of the treaty which were deemed to exclude from the operation of its...

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3 cases
  • Tokyo Sansei v. Esperdy
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    • U.S. District Court — Southern District of New York
    • April 9, 1969
    ...in international trade but included an alien engaged in a purely local business within the United States. In one case Kumonomido v. Nagel, 40 F.2d 42 (9th Cir. 1930), the alien was a national of Japan serving as editor of a Japanese-American paper in San Francisco. In another case Asakura v......
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    ...authorities relators have not failed to maintain their status as "treaty traders" and are not subject to deportation. Shizuko Kumanomido v. Nagle, 9 Cir., 40 F.2d 42, 43, and authorities therein cited; Ex Parte Haruye Suzuki, D.C., 36 F.2d 424; Ex Parte Naoe Minamiji, 9 Cir., 46 F.2d 627;1 ......

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