Christy v. Leong Don

• Decision Date: 15 April 1925
• Docket Number: No. 4448.,4448.
• Citation: 5 F.2d 135
• Parties: CHRISTY, Commissioner of Immigration, et al. v. LEONG DON.
• Court: U.S. Court of Appeals — Fifth Circuit

5 F.2d 135 (1925)

CHRISTY, Commissioner of Immigration, et al. v. LEONG DON.

No. 4448.

Circuit Court of Appeals, Fifth Circuit.

March 24, 1925.

Rehearing Denied April 15, 1925.

Louis H. Burns, U. S. Atty., and Wayne G. Borah, Asst. U. S. Atty., both of New Orleans, La., for appellants.

W. J. Waguespack and Herbert W. Waguespack, both of New Orleans, La., for appellee.

Before WALKER and BRYAN, Circuit Judges, and HUTCHESON, District Judge.

BRYAN, Circuit Judge.

Leong Don, a Chinese person, applied at the port of New Orleans for entry to the United States. His application was denied by the Commissioner of Immigration, whose action was affirmed on appeal by the Secretary of Labor. Leong Don then filed a petition in the District Court for a writ of habeas corpus to secure his release from the custody of the Commissioner of Immigration, by whom he was held for deportation, alleging that he is the son of Leong Goon, a citizen of the United States, and in the most general terms that he was not given a fair hearing upon his application for admission. The answer of the Commissioner admits that Leong Goon was born in California and is a citizen of the United States, but denies that Leong Don is his son, and also denies that the hearing complained of was unfair.

It appears from the proceedings before a board of special inquiry that Leong Don was examined on two occasions. On the first he testified that he was born in China, was 26 years old, and that he had no recollection of his paternal grandfather, grandmother, or of that grandfather's brother. The hearing was continued for the purpose of examining the alleged father, Leong Goon, who testified, in Detroit, among other things, that his father had been dead 12 years, and his mother about 8 years, and that his father's brother was living as late as 1912 in the same village in which his father, mother, and Leong Don lived. This witness testified also that Leong Don was his son and was 26 years old. Leong Don's alleged brother was also examined in Detroit, and contradicted him in several matters relating to family history. Shortly after this testimony was taken, Leong Don was again examined, and then testified that he remembered his grandfather and grandmother, but did not remember his great-uncle. The only explanation he offered of his previous testimony was that it was a mistake. He admitted that he had communicated with Leong Goon after his first hearing. Leong Don and Leong Goon both testified before the District Judge in the habeas corpus proceeding, but nothing was added to the testimony already given, and no explanation was given of the inconsistencies in their previous testimony. The District Judge expressed the opinion that Leong Don was Leong Goon's son, and was therefore entitled to admission to this country as a citizen. Accordingly an order was entered discharging Leong Don from custody. The Commissioner of Immigration appeals.

The Act of August 18, 1894 (28 Stat. 390 Comp. St. § 4325), provides that the decision of appropriate immigration officials adverse to the admission of an alien into the United States shall be final, unless reversed on appeal to the Secretary of the Treasury. This provision was amended in 1903, transferring jurisdiction to the Secretary of Commerce and Labor. 32 Stat. 828 (Comp. St. § 858). Section 17 of the Act of February 5, 1917 (39 Stat. 887 Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289¼ii), provides for the appointment of boards of special inquiry, and for an appeal through the Commissioner of Immigration at the port of arrival to the Secretary of Labor, and that the decision of a board of special inquiry adverse to the admission of an alien shall be final unless reversed on appeal. It thus appears that it has been the policy of the Congress since 1894 to make final a decision of the appropriate department. Under the law as amended from time to time, it is settled by the decisions that one applying for admission to the United States is in legal contemplation without its borders, but is entitled to a fair hearing before the executive officers of the government. If the hearing be fair, though summary, it is conclusive, and is not to be set aside by the courts, even though it be considered that the decision arrived at by the appropriate department was wrong. It is only where the court finds that the hearing conducted by the department was unfair that it is authorized to hear the case on its merits. United States v. Ju Toy, 198 U. S. 253, 25 S. Ct. 644, 49 L. Ed. 1040; Chin Yow v. United States, 208 U. S. 8, 28 S. Ct. 201, 52 L. Ed. 369; Tang Tun v. Edsell, 223 U. S. 673, 32 S. Ct. 359, 56 L. Ed. 606; Ng Fung Ho v. White, 259 U. S. 276, 42 S. Ct. 492, 66 L. Ed. 938; United States v. Ruiz, 203 F. 441, 121 C. C. A. 551.

The petition for writ of habeas corpus signally fails to allege wherein the hearings held by the board of special inquiry were unfair. Notwithstanding this, we have examined the entire record, and are unable to find that there was any unfairness in the hearings conducted by the immigration officials. Of course, if there were no evidence to sustain the order of deportation, the conclusion that the hearing was unfair because arbitrary would be justifiable. The burden was upon appellee to show that he was the son of an...