Backus v. Owe Sam Goon

• Decision Date: 09 October 1916
• Docket Number: 2702.
• Citation: 235 F. 847
• Parties: BACKUS, Commissioner of Immigration, v. OWE SAM GOON. Ex parte OWE SAM GOON.
• Court: U.S. Court of Appeals — Ninth Circuit

235 F. 847

BACKUS, Commissioner of Immigration, v. OWE SAM GOON.

Ex parte OWE SAM GOON.

No. 2702.

United States Court of Appeals, Ninth Circuit.

October 9, 1916

John W Preston, U.S. Atty., and Caspar A. Ornbaun, Asst. U.S. Atty both of San Francisco, Cal., for appellant.

Joseph P. Fallon, of San Francisco, Cal., for appellee.

Owe Sam Goon, a native of China, came here in 1873 or 1874. In March 1894, he was duly registered under Act May 5, 1892, c. 60, 27 Stat. 25 (Comp. St. 1913, Secs. 4315-4323), and received his certificate as a Chinese laborer residing in Sacramento, Cal. He was arrested in Tucson, Ariz., on February 19, 1915, having been found in a refrigerator car of the Southern Pacific Company arriving from the East. The case was heard by the immigrant inspector, and he was held for deportation to China on the theory that he had recently entered the United States from Juarez, Mexico, in violation of section 7 of the Chinese Exclusion Act of September 13, 1888 (Comp. St. 1913, Sec. 4308), being a Chinese laborer who failed to produce to the proper officer the return certificate required by said section, and that he entered in violation of section 36 of the Immigration Act of February 20, 1907 (Comp. St. 1913, Sec. 4285).

Section 13 of the Act of September 13, 1888 (25 Stat. 476, 479 (Comp. St. 1913, Sec. 4313)), provides, in part, as follows: 'That any Chinese person, or

person of Chinese descent, found unlawfully in the United States, or its territories, may be arrested upon a warrant issued upon a complaint, under oath, filed by any party on behalf of the United States, by any justice, judge, or commissioner of any United States court, returnable before any justice, judge, or commissioner of a United States court, or before any United States court, and when convicted, upon a hearing, and found and adjudged to be one not lawfully entitled to be or remain in the United States, such person shall be removed from the United States to the country whence he came. But any such Chinese person convicted before a commissioner of a United States court may, within ten days from such conviction, appeal to the judge of the district court for the district.'

Section 20 of the Immigration Act of Feb. 20, 1907 (34 Stat. 898), as amended by the Acts of March 26, 1910 (36 Stat. 263, c. 128), and March 4, 1913 (37 Stat. 736, c. 141; Comp. St. 1913, Sec. 4269), provides: 'That any alien who shall enter the United States in violation of law * * * 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 (section 4270) provides, in part, as follows: '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.'

Section 36 (section 4285) provides, in part, as follows: 'That all aliens who shall enter the United States except at the seaports thereof, or at such place or places as the Secretary of Labor may from time to time designate, shall be adjudged to have entered the country unlawfully and shall be deported as provided by sections twenty and twenty-one of this act.'

The hearing of the case was had before the immigrant inspector in Tucson, Ariz. The only evidence that the government produced tending to prove that Owe Sam Goon had entered the United States within three years from Juarez, Mexico, was the statement of one Pascual Carrion, of Juarez, Mexico. The statement was made to an immigrant inspector at El Paso, Tex., and purports to have been made under oath; but by whom the oath was administered does not appear. It will be assumed that what purports to be an oath was administered by the immigrant inspector who conducted the examination. This statement of Carrion was to the effect that he had seen Owe Sam Goon a number of times in a laundry at Juarez, the last time being in August or September of 1914. The identification was made by means of a photograph of the accused taken in Tucson, Ariz. It was not made in the presence of the accused, nor was Carrion's statement made in his presence, nor upon notice that it would be made, and no opportunity given the accused to cross-examine Carrion concerning the statement. Subsequent to this statement, the accused was delivered into the custody of the Commissioner of Immigration at San Francisco, and on March 9, 1915, a warrant of deportation was issued by the Assistant Secretary of Labor by which it was ordered that the accused be deported to China in accordance with section 21 of the Immigration Act.

Petition for a writ of habeas corpus was thereafter presented to the District Court by one Ow Seong, praying the discharge of the prisoner from the custody of the Commissioner of Immigration, the appellant herein. On June 8, 1915, an order was entered by the District Court discharging the prisoner from the custody of the appellant. The Commissioner of Immigration appeals.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW Circuit Judge (after stating the facts as above).

1. It is clear that whatever authority is possessed by the Secretary of Labor to deport aliens found in this country is derived from the Immigration Act of February 20, 1907, c. 1134 (34 Stat. 898, 908), and not from the Chinese Exclusion Act of September 13, 1888, c. 1015 (25 Stat. 476), which vests such authority only in United States courts, and justices, judges, and commissioners thereof. This authority is possessed by the Secretary of Labor only when he shall have been satisfied that an alien is subject to deportation under the provisions of the Immigration Act or some other law of the United States, and in such case '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 jurisdiction of the Secretary of Labor is therefore made to depend upon the fact that the alien has entered the United States within the period of three years preceding his arrest by the immigration authorities. United States v. Wong You, 223 U.S. 67, 69, 70, 32 Sup.Ct. 195, 56 L.Ed. 354; Low Wah Suey v. Backus, 225 U.S. 460, 466, 468, 32 Sup.Ct. 734, 56 L.Ed. 1165; Matsumura v. Higgins, 187 F. 601, 602, 109 C.C.A. 431.

In overruling the demurrer to the petition, the lower court said:

'This testimony was not taken in the presence of petitioner, but the witness Carrion identified a photograph of petitioner as that of the man seen by him in the laundry at Juarez.

'Under the Chinese Exclusion Act, a Chinese alien unlawfully in the country is entitled to a hearing before a commissioner or judge, before he may be deported. At such hearing the ordinary rules of evidence are generally applied. Under the Immigration Act, however, any alien may be deported after a hearing before the immigration officers at any time within three years after the date of his entry into the United States, if such entry shall have been in violation of law. The claim here is that, as petitioner was identified as having been in Juarez as late as August or September of last year, he must have entered from there in violation of law, as he did not enter through any of the immigration channels. He was not found on the Mexican border, and the only evidence that he had been out of the United States within the three years was the evidence of Carrion, who did not see the petitioner himself for the purposes of identification, but only a photograph.

'The court does not undertake to prescribe rules of evidence for the Immigration Department; but in a case like the present, where the very jurisdiction of the department depends upon the establishment of a certain fact, which fact, when established, takes the alien's case out of the jurisdiction of the courts of the United States where it is placed by the Chinese Exclusion Law, the court is entitled to regard, not perhaps the weight of the evidence, but certainly the character of the evidence by which such a transfer of jurisdiction is effected. In the case at bar we have a Chinaman, resident of this country for 40 years, having a laborer's certificate entitling him to remain, who is not found near the Mexican border line, and who is ordered deported, without being confronted by the witness upon whose testimony the jurisdiction of the Immigration Department to make the order depends.

'In my judgment, while affidavits and ex parte statements, and statements not under oath, have been held admissible in proceedings by the Immigration Department looking to the exclusion or deportation of aliens, the right to remain here of a Chinese person so long a resident of the United States, and who is fortified by the possession of that evidence of his proper presence here which the law requires, should not be made to depend upon the fact that some resident of another country not produced at the hearing has identified a photograph, when such identification is the only thing which could deprive the alien of his right to be heard before a commissioner or judge, where such identification would not be admissible as evidence at all.' 2. It is contended by appellant that, from the opinion above mentioned, it is apparent that the lower court considered only the legality of the assistant secretary's finding in the warrant of deportation that the alien was in the United States in violation of section 7 of the Chinese Exclusion Act, and

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