Chin Fong v. White

• Decision Date: 02 June 1919
• Docket Number: 3180.
• Citation: 258 F. 849
• Parties: CHIN FONG v. WHITE, Immigration Com'r. [1]
• Court: U.S. Court of Appeals — Ninth Circuit

258 F. 849

CHIN FONG v. WHITE, Immigration Com'r. ^[1]

No. 3180.

United States Court of Appeals, Ninth Circuit.

June 2, 1919

Appeal from the District Court of the United States for the First Division of the Northern District of California; Maurice T Dooling, Judge.

Habeas corpus proceeding by Chin Fong against Edward White Commissioner of Immigration at the Port of San Francisco, to secure the discharge of petitioner, held by the Commission of Immigration for deportation as a Chinese person not entitled to re-enter the United States under the provisions of the Exclusion Act. From the order discharging the writ, and remanding petitioner for deportation, petitioner appeals. Reversed, with direction.

See also, Chin Fong v. Backus, 241 U.S. 1, 36 Sup.Ct 490, 60 L.Ed. 859; Ex parte Chin Fong, 213 F. 288.

ALIENS 27-- CHINESE-- EXCLUSION-- RE-ENTRY AS MERCHANTS.

A Chinese person, claiming right to re-enter the United States under Act Nov. 3, 1893, Sec. 2 (Comp. St. Sec. 4324), as having been a merchant in the United States for a year before his departure therefrom, may not thereunder, and under rule 15, subd. 11, of the Department of Labor, as to admission of Chinese claiming such right of re-entry, be denied admission by the Commissioner of Immigration on the ground that his original entry was unlawful; but this is a matter for determination in a deportation proceeding before a different tribunal.

George A. McGowan, of San Francisco, Cal., for appellant.

Annette Abbott Adams, U.S. Atty., and Ben F. Geis, Asst. U.S. Atty., both of San Francisco, Cal., for appellee.

Before GILBERT, MORROW, and HUNT, Circuit Judges.

MORROW Circuit Judge.

The appellant, Chin Fong, is a Chinese person who arrived at the port of San Francisco on December 23, 1913, from China on the steamship Persia. He had previously departed from the port of San Francisco for China on November 12, 1912, on the steamship Nile. He claimed the right to re-enter the United States as a returning Chinese merchant. The provisions of the treaty between the United States and China, concluded November 17, 1880 (22 Stat. 826), excluded laborers, but provided that certain subjects of China, including merchants, might 'go and come of their own free will and accord. ' Chin Fong claimed the right of re-entry under the provisions of Act Nov. 3, 1893, c. 14, Sec. 2, 28 Stat. 7, 8 (Comp. St. Sec. 4324), which provides:

'Sec. 2. * * * The term 'merchant' as employed herein and in the acts of which this is amendatory, shall have the following meaning and none other: A merchant is a person engaged in buying and selling merchandise, at a fixed place of business, which business is conducted in his name, and who during the time he claims to be engaged as a merchant, does not engage in the performance of any manual labor, except such as is necessary in the conduct of his business as such merchant.

'Where an application is made by a Chinaman for entrance into the United States on the ground that he was formerly engaged in this country as a merchant, he shall establish by testimony of two credible witnesses other than Chinese the fact that he conducted such business as hereinbefore defined for at least one year before his departure from the United States, and that during such year he was not engaged in the performance of any manual labor, except such as was necessary in the conduct of his business as such merchant, and in default of such proof shall be refused landing.'

Pursuant to law the Department of Labor has prescribed certain rules governing the admission of Chinese; among others a rule of procedure for those claiming the right to re-enter the United States as merchants previously domiciled in the United States as such. Subdivision 11 of rule 15 of such rules provides as follows:

'(11) Proof of Mercantile Status.-- Chinese applying for preinvestigation under the terms of this rule, or for admission without having taken advantage of the rule, on the ground of having been domiciled in the United States as merchants, shall be required to establish to a reasonable certainty that they are actually owners of the business claimed or members of the firm owning such business, with proofs of the amounts actually paid for their respective interests and the times at which such payments were made. In no case should the claim of mercantile status be allowed unless inspection of the alleged mercantile establishment shows a bona fide capital and stock, the latter commensurate with the former and with the number of partners claimed.'

In the appellant's statement made to the officers of Immigration upon his arrival at the port of San Francisco in December, 1913, he claimed to be a member of the business house of Kwong Mow Lan & Co., at No. 8 Pell street, in New York City. The papers were accordingly forwarded to the Commissioner of Immigration in New York City for an investigation of that claim. Inspector Sisson, in charge of the Immigration service in the New York office, reported the appellant's status as a merchant in New York City as follows:

'Referring to your letter of the 2d instant, No. 13137 1/2, I return herewith papers in the case of Chin Fong ex S. S. Persia, December 23, 1913, applying for admission at your port as a merchant and member of the firm of Kwong Mow Lan & Co., No. 8 Pell St., New York City:

'In connection with this case would state that our records show that this applicant filed an application for a return certificate as a merchant and member of the above firm in this office on December 9, 1911, and that the said application was given unfavorable consideration by the Commissioner of Immigration at Seattle, Washington, under date of January 18, 1912, and I have requested the Seattle office to forward to you the original record. In view of the fact, however, that while this application was denied in January, 1912, he did not depart from the United States until November 23, 1912, a further investigation has been made covering this period, and attached to the record will be found in triplicate the sworn statement of Chin Fong, the manager of the firm, together with those of the statutory witnesses, Messrs. Israel Brand and John L. Delmonte, both of whom are business men, and so far as this office knows reputable.

'From the examination of this applicant conducted at your port it is noted that he claims to have been first admitted to the United States in K.S. 32 (1906) at Niagara Falls as a section 6 Canton merchant, and further that his certificate was lost at the time the firm of Yung Wah Tong was moving in the fifth or sixth month of S.T. 1 (1909) from No. 32 Mott St. to 33 Pell St. Niagara Falls was not a port of entry for Chinese in K.S. 32 (1906) and consequently he could not have been admitted through that port. Further the firm of Quong Yuen Shing & Co. has occupied the premises at No. 32 Mott St. for many years last past, as is also the case with the firm of Chong Lung & Co. at 33 Pell St.

'By reference to the statement of this applicant made before this office on January 3, 1912, which will form a part of the record to be forwarded to you by the Seattle office, it will be noted that Chin Fong testified he was first admitted to the United States in K.S. 22, 11th month (Dec., 1896-- January, 1897), at Niagara Falls, upon a merchant paper which had been forwarded to him by the firm of Young Wah Hong & Co., No. 33 Mott St., and that he continued in business with said firm for a period of about six years, which would be until 1902 or 1903, when the firm went out of existence.

'Kwong Mow Lan & Co. are engaged in manufacturing cigars at No. 8 Pell St., where they also dispose of them at retail as well as wholesale, and it is believed to be a bona fide establishment.'

Upon this report, and other testimony taken by the Immigration officers in San Francisco, the Commissioner of Immigration at that port made the following finding and decree:

'Finding and Decree.-- The applicant applied for preinvestigation of his alleged status as a merchant (form 431) in December, 1911, but his application was denied by the Seattle office, and an appeal from that decision dismissed by the Bureau for the reason that it was satisfactorily shown at that time that the applicant had fraudulently secured his original admission to the United States; it having been claimed by him that he entered this country at or near Niagara Falls, New York, in 1897, on 'merchant's papers' sent to him in China by the Young Wah Hong Company at New York. It was first claimed by the applicant in the present case that he was admitted at Niagara Falls in 1906, but when confronted with his previous testimony he denied the last-mentioned statement, and reiterated the year first mentioned as the date of his original entry, and stated that he was then admitted as a section 6 Canton merchant on papers secured by him in that city.

'Niagara Falls was not a port of entry for Chinese in 1906, and the applicant has not satisfactorily accounted for the present whereabouts of the papers on which he claims to have been admitted, so that it must be concluded that his domicile in this country was...