Choy Yuen Chan v. United States

• Decision Date: 14 January 1929
• Docket Number: No. 5548.,5548.
• Citation: 30 F.2d 516
• Parties: CHOY YUEN CHAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

30 F.2d 516 (1929)

CHOY YUEN CHAN v. UNITED STATES.

No. 5548.

Circuit Court of Appeals, Ninth Circuit.

January 14, 1929.

Leslie P. Scott, of Honolulu, Hawaii, and Wilmer H. Eberly, of San Francisco, Cal., for appellant.

George J. Hatfield, U. S. Atty., and George M. Naus, Asst. U. S. Atty., both of San Francisco, Cal., and Sanford B. D. Wood, U. S. Atty., and Charles H. Hogg, Asst. U. S. Atty., both of Honolulu, Hawaii.

Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.

GILBERT, Circuit Judge.

On June 4, 1923, the appellant, a person of Chinese descent, coming from China, arrived at the Hawaiian Islands, and, upon a hearing before a Board of Special Inquiry, he was allowed to land, on his proof by himself and his witnesses that he was Hawaiian born. In June, 1927, he was brought before the court below for deportation, and, on the ground that he was a Chinese alien and a laborer and was unlawfully within the United States, he was ordered deported. On the appeal it is contended that the order of deportation was contrary to law, that the government failed to establish a prima facie case against the appellant and failed to show that on June 4, 1923, he unlawfully obtained admission into the United States at the port of Honolulu by false and fraudulent representation of his status as a citizen of the United States. The evidence upon which the order of the court below was based consisted of the record of the hearing before the Board of Special Inquiry of 1923, the testimony of Dong Bark, who had been a witness for the appellant at that hearing, and the testimony of an immigration inspector.

A preliminary inquiry, which we think is determinative of the sufficiency of the evidence adduced in the court below to support the order of deportation, concerns the effect and force to be given to the finding and conclusion of the Board of Special Inquiry, and whether upon the hearing in the court below the decision of the Board was prima facie evidence of the right of the appellant to be and remain in the United States. As to the powers of the Board, the statute, 8 USCA § 153, provides, "Such boards shall have authority to determine whether an alien who has been duly held shall be allowed to land or shall be deported," and further provides that the decision of a Board of Special Inquiry adverse to the admission of such alien shall be final unless reversed on appeal to the Secretary of Labor. The statute, 8 USCA § 221, provides that in any deportation proceeding against any alien the burden of proof shall be upon him to show that he entered the United States lawfully. But this does not mean, we think, that the alien shall be denied the benefit of the prima facie presumption created by a favorable decision of a Board of Special Inquiry. In Ex parte Chin Loy You (D. C.) 223 F. 833, it was held that a Chinese person, duly admitted into the country, is prima facie a legal resident. In Ching Hong Yuk v. United States (C. C. A.) 23 F.(2d) 174, the appellant, who had been ordered deported, claimed to have been born in Hawaii, and, upon a hearing before a Board of Special Inquiry, he was permitted to land as Hawaiian born. On the appeal the question was discussed whether the order of admission constituted a judicial estoppel. This court, while inclining to the view that the decision should be taken as prima facie evidence of the appellant's...