Ex parte Chin Loy You

• Decision Date: 16 February 1915
• Docket Number: 1022.
• Citation: 223 F. 833
• Parties: Ex parte CHIN LOY YOU.
• Court: U.S. District Court — District of Massachusetts

223 F. 833

Ex parte CHIN LOY YOU.

No. 1022.

United States District Court, D. Massachusetts.

February 16, 1915

Habeas corpus proceeding by Chin Loy You to secure a discharge from custody on a warrant for deportation as an alien unlawfully within the United States. On hearing on the agreed statement of facts. Petitioner found not to have had a fair hearing before the immigration authorities, and final action in habeas corpus proceeding delayed for 30 days to afford opportunity to give the petitioner such hearing.

Phelan & Conway, of Boston, Mass., for petitioner.

William C. Matthews, Sp. Asst. U.S. Atty., of Boston, Mass., for respondent.

MORTON District Judge.

Habeas corpus to the immigration commissioner at Boston. The writ issued; the alien, Chin Loy You, who will be referred to as the petitioner, was delivered by the immigration commissioner to the United States marshal; the question is whether he is entitled to be discharged from custody. The case was heard before me upon an 'agreed statement of facts,' which incorporates by reference the record of the proceedings against the petitioner by the immigration officials upon which deportation was ordered by Acting Secretary Densmore by whom, it is agreed, the actual decision was made. Although the prisoner is a Chinese, born in China, the deportation proceedings were admittedly not based upon the Chinese Exclusion Acts, but upon the Immigration Act of 1907 (Act Feb. 20, 1907, c. 1134, Sec. 21, 34 Stat. 905 (Comp. St 1913, Sec. 4270)); the general charge being that the prisoner was an alien 'unlawfully within the United States.' (Secretary's warrant of January 15, 1914). The reference in that warrant to the act of February 20, 1907, as 'the Chinese Exclusion Laws' is evidently a mistake.

The case is somewhat unusual, in that the alien was duly admitted into this country on his arrival here. Under such circumstances, the matter goes directly to the Secretary of Labor. Sections 20 and 21 (Comp. St. 1913, Secs. 4269, 4270). The practice is that, upon a representation being made to the Immigration Bureau that a certain person is an alien unlawfully in this country, a warrant for his arrest is issued in the name of the Secretary of Labor. The warrant in this case contained directions that the immigration commissioner and inspectors to whom it was addressed should grant the alleged alien 'a hearing to enable him to show cause why he should not be deported. ' Those officers apparently considered that their duty under the warrant was only to examine the alien, to procure such other testimony statements, and evidence as in their opinion supported the complaint against the prisoner, to offer him an opportunity to introduce evidence in his own behalf, and to make up a record to be sent to the Secretary, with their recommendation, for his decision thereon. Nothing which would ordinarily be termed a 'hearing' was accorded the alien by them. The only hearing was before the Acting Secretary, and was upon the record forwarded by the inspectors to Washington. The decision was against the petitioner, and a second warrant issued, dated March 28 1914, directing deportation, under which he was held when these proceedings were instituted.

The principles of law applicable to the case are well settled. Broadly speaking, the question is whether the alien has been accorded a fair hearing by the immigration authorities. Such hearing may be, and usually is, summary and administrative, rather than judicial, in character, and need not be conducted in accordance with the procedure and rules of evidence followed in courts of law. The essential thing is that there shall have been an honest effort to arrive at the truth by methods sufficiently fair and reasonable to amount to due process of law. Chin Yow v. U.S., 208 U.S. 8, 28 Sup.Ct. 201, 52 L.Ed. 36.; Bouve on Aliens (1st Ed.) 513. Although the petitioner was, prima facie at least, a legal resident of this country at the time of his arrest, he is none the less, under the decision in Pearson v. Williams, 202 U.S. 281, 26 Sup.Ct. 608, 50 L.Ed. 1029, subject to deportation upon administrative process, without any judicial trial. There is, however, a tendency in the decisions of the Supreme Court on this subject to safeguard the individual against the tremendous and arbitrary power given to the Immigration Bureau by reserving to the courts the right to scrutinize with some freedom the fairness of the proceedings. In the Tang Tun Case, 223 U.S. 673, 32 Sup.Ct. 359, 56 L.Ed. 606, careful consideration was given to the evidence upon which the Immigration Department acted, and it was held to have been fairly taken and to be legally sufficient. See, too, Liu Hop Fong v. U.S., 209 U.S. 453, 28 Sup.Ct. 576, 52 L.Ed. 888.

It appears that Chin Loy You arrived in this country on October 14, 1912, at San Francisco. He there applied for admission as the minor son of one Chin Yit Bak, a legally domiciled Chinese merchant engaged in business in San Francisco, and, on November 7, 1912, after a hearing upon that question before the immigration authorities at San Francisco, was duly admitted upon that ground. A certificate of identity, with his photograph annexed, was issued to him. He stayed with his alleged father about two months, and then came east to Nanticoke, Pa. From there he went to Hop Lee's laundry in Gettysburg. He was found at that place on or about September 20, 1913, by one Mallett, a United States inspector, who took from him his certificate of identity. Shortly afterward the petitioner left Gettysburg and came to Boston, where he resided until taken into custody in the deportation proceedings.

Before proceedings were instituted against this petitioner, a question had arisen in Pennsylvania concerning the status of a Chinese person there, named Dan Horn. During that trial Hop Lee was called as a witness, and after a threat by the United States officers to accuse him of crime if he did not tell the truth, and a promise to him by them of immunity from prosecution if he did tell the truth (Mallet's statement), testified, among other things, that this alien, Chin Loy You, was not the son of Chin Yit Bak; that he had been employed as a laundryman by Hop Lee (a laundryman is not in the merchant class); that the firm in San Francisco of which Chin Yit Bak was a member was engaged in the illegal importation of Chinese boys; and that this alien had been so illegally imported and was the son of a Chinese laundryman in San Francisco (and not therefore entitled to admission). 'This alien was not a party to any of the proceedings at which said testimony was given, nor was he present when any of the said statements were made, and no counsel or other person was present representing him. ' Agreed Facts, p. 3. Hop Lee was not called as a witness in these proceedings. Nevertheless a transcript of Hop Lee's evidence as aforesaid was incorporated into the record against the petitioner, and 'was treated and considered as competent evidence in determining the issues against this alien. ' Agreed Facts, p. 3.

On the strength of this evidence in the Horn Case, a warrant issued for the apprehension of Chin Loy You; and he was arrested in Boston shortly afterwards. His counsel was with him at the time of the arrest and was shown the Hop Lee evidence. He then and there demanded of the immigration officers the right to confer with his client, and to be present at all examinations and hearings of the alien, and of any witnesses that might testify. His demands were refused. Immediately following the petitioner's arrest, neither his counsel nor, so far as appears, any of his friends were permitted by the immigration officers to communicate with him, until after the so-called 'hearing' before them had been concluded. The officers proceeded with the 'hearing,' excluding the petitioner's counsel therefrom, and examined the alien at length. A transcript of the testimony so obtained was incorporated into the record and was considered in making the decision.

After the testimony of the alien had been taken in the manner above described, the 'statements' of certain persons were taken in the state of Pennsylvania by Inspector Mallett for use in the proceedings against the petitioner. Neither the petitioner nor his counsel was notified of, or knew of, the taking of these 'statements'; neither was present when any of them were taken; no opportunity was afforded the petitioner or his counsel to cross-examine, or even to see, the witnesses. The 'statements' were added to the 'record' and were used against the prisoner.

Certain letters written in Chinese characters were discovered in the...