Choy Gum v. Backus

• Decision Date: 10 May 1915
• Docket Number: 2475.
• Parties: CHOY GUM v. BACKUS, Commissioner of Immigration.
• Court: U.S. Court of Appeals — Ninth Circuit

223 F. 487

CHOY GUM v. BACKUS, Commissioner of Immigration.

No. 2475.

United States Court of Appeals, Ninth Circuit.

May 10, 1915

[Copyrighted Material Omitted]

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

John W Preston, U.S. Atty., and Walter E. Hettman, Asst. U.S. Atty., both of San Francisco, Cal., for appellee.

Before GILBERT and ROSS, Circuit Judges, and WOLVERTON, District judge.

WOLVERTON District Judge.

This cause is here on appeal from a judgment dismissing a petition for a writ of habeas corpus; a demurrer having been sustained to such petition. The petitioner is a Chinese woman, who is charged with being unlawfully in this country because engaged in practicing prostitution, and is held for deportation upon warrant of the Secretary of Commerce and Labor. The purpose of suing out the writ was to effect her release from such custody.

The alleged illegality of her restraint consists in abuse of discretion by the immigration officers in the examination of the petitioner for deportation, and in failing to render her a fair and impartial hearing, in the following particulars:

(1) Incorporating into the record against the petitioner the testimony of Leong Toe, Ton Yook Lan, and Wong Go, and refusing to set a time and place for the examination of said witnesses on behalf of petitioner.

(2) Taking the testimony of Arthur D. Layne and Dennis Bohle on affidavit against petitioner, without notice to her, and withholding the fact that such testimony had been taken until the final hearing, and embodying the same in the record without affording opportunity to her of answering the same.

(3) Submitting evidence detrimental to the petitioner's case, previously withheld and clandestinely forwarded to the department, after the close of the hearing, and not affording her an opportunity of answering such evidence, and so abridging and limiting the right of her counsel as to prevent him from ascertaining all the evidence against her.

(4) Submitting evidence against petitioner in the form of oral examination of witnesses had prior to according her the right of an attorney, and thereafter presenting evidence in behalf of the government in the form of affidavits without affording petitioner the opportunity of confronting any of the witnesses appearing against her.

A copy of the proceedings before the immigration officers is appended to the petition, so that what was actually done is made to appear from the record.

The testimony of Leong Toe, Ton Yook Lan, and Wong Go was taken by question and answer before Inspector F. H. Ainsworth September 20, 1912, and on the same day Samuel W. Backus, Immigration Commissioner at San Francisco, recommended to the Department of Commerce and Labor that a warrant issue for the arrest of petitioner and Leong Toe, because found in a well-known house of prostitution; the said petitioner Choy Gum claiming to have been in this country for 19 years, although only 21 years of age.

On September 21st the department declined to issue the warrant. On September 25th the commissioner again wired that:

'It now appears that Choy Gum's true name is Lo King, landed October 23, 1908, from steamship China as wife of native.'

Whereupon, on the next day, the acting Secretary of Commerce and Labor directed that petitioner be taken into custody and granted a hearing to enable her to show cause why she should not be deported.

On October 10th a hearing was had before Inspector Ainsworth, at which were present petitioner and her counsel, and petitioner was examined through an interpreter. Her counsel was advised that he could ask her any questions he thought pertinent, or make any statement he wished, but he only asked that the matter be continued. Counsel was thereupon provided with the previous record in the case, being a record of the whole proceeding, with the exception of what occurred on that day in his presence, and the hearing was continued until October 24, 1912, to give petitioner opportunity to show cause why she should not be deported.

The next recorded proceeding bears date November 7, 1912, and shows the hearing to have been continued to that time. At this hearing counsel for petitioner advised the inspector that the evidence in her behalf would be submitted in the form of affidavits, and the government offered in evidence the affidavits of two policemen, namely, Arthur D. Layne and Dennis Bohle, copies of which had been furnished counsel. Counsel for petitioner at the same hearing entered protest, first, against any further action being taken in the cause, on the ground that petitioner had resided continuously in the United States for more than three years prior to the date of the arrest; second, against the incorporation into the record of the testimony of Wong Go and Ton Yook Lan, on the ground that petitioner had not been accorded the opportunity of cross-examining, and against closing the hearing without affording such opportunity; third, against the introduction of the affidavits of Layne and Bohle, on the ground that the evidence was presented after the petitioner was permitted the right of counsel, and counsel was not afforded the opportunity to cross-examine the affiants; and, fourth, that the proceeding is in violation of the rights of an alien domiciled in the United States, and contrary to the letter and spirit of the Constitution. When it was announced by the inspector that the hearing would be closed and counsel's protests would be forwarded along with the record and evidence to Washington, counsel further protested against the limitation of the petitioner in properly presenting a full and adequate defense.

The affidavits which counsel announced would be submitted in behalf of petitioner were accordingly submitted, and were incorporated in the record, which was subsequently transmitted to the Secretary of Commerce and Labor for his consideration. Based upon the proofs thus submitted, the Acting Secretary of Commerce and Labor, on November 15th, commanded petitioner's deportation.

The petition for the writ being tested by demurrer, the statements of fact made in the petition must be taken as true, but this does not apply to statements of mere conclusions.

In Zakonaite v. Wolf, 226 U.S. 272, 275, 33 Sup.Ct. 31, 32 (57 L.Ed. 218), it is said:

'It is entirely settled that the authority of Congress to prohibit aliens from coming within the United States and to regulate their coming includes authority to impose conditions upon the performance of which the continued liberty of the alien to reside within the bounds of this country may be made to depend; that a proceeding to enforce such regulations is not a criminal prosecution, within the meaning of the fifth and sixth amendments; that such an inquiry may be properly devolved upon an executive department or subordinate officials

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