Ex parte Chin Own

• Decision Date: 02 February 1917
• Docket Number: 3513.
• Citation: 239 F. 391
• Parties: Ex parte CHIN OWN et al.
• Court: U.S. District Court — Western District of Washington

239 F. 391

Ex parte CHIN OWN et al.

No. 3513.

United States District Court, W.D. Washington, Northern Division.

February 2, 1917

Beeler & Sullivan, of Seattle, Wash., for petitioners.

Clay Allen, U.S. Atty., of Seattle, Wash., and George P Fishburne, Asst. U.S. atty., of Tacoma, Wash., opposed.

NETERER District Judge.

The petitioners, Chin Own and Chin Gow, are held by the Commissioner of Immigration under an order of deportation issued by the Secretary of Labor, and present a petition for a writ of habeas corpus-- Chin Own alleging that he is a native-born citizen of the United States, returning after a temporary absence in China, and that Chin Gow is his son born in China, and is coming to this country with the father, and that they are denied permission to enter; that they are deprived of their liberty without due process of law, and were denied a fair hearing by the Commissioner of Immigration; that he was born in San Francisco, Cal., in 1876; that he removed to Seattle with his parents when five years of age, where he resided until 1891 when they removed to Boston, Mass.; that in 1896 his parents went to China, and the petitioner returned to Seattle, where he resided until 1900, in which year he went to China on a visit, and, returning, entered the United States at Port Townsend, Wash., on the 29th of November, 1902, going to Boston after a short stay in Seattle, where he resided until 1907, when he went to China, and is now returning, claiming his right to enter with his minor son.

It is contended by the petitioner Chin Own, first, that, being a citizen of the United States, he is being deprived of his liberty without due process of law, and that Congress may not intrust the decision of his right to enter to an executive officer, but that he is accorded the right to have his status adjudicated by a court of competent jurisdiction; second, that he was not accorded a fair and impartial hearing; and, third, that the finding of the collector of customs in admitting him as a native-born citizen in 1902 is res adjudicata. The status of Chin Gow, the son, is determined by the status of the father.

The first contention of the petitioners is disposed of by the Supreme Court in U.S. v. Ju Toy, 198 U.S. 253, 25 Sup.Ct. 644, 49 L.Ed. 1040, in which the court held that due process of law does not necessarily require a judicial trial, and that Congress may intrust the decision of an immigrant's right to enter to an executive officer, even though denial of admission may deprive him of his liberty. In this case the broad question was presented whether or not the decision of the Secretary of Commerce and Labor is conclusive, and the court held that Congress may exclude immigrants of a particular race, prescribe the terms and conditions upon which they may enter the country, establish regulations for sending them out, and commit the enforcement of such provisions, conditions, and regulations exclusively to executive officers, without judicial intervention, and that the decision of the department was final as to whether the immigrant belonged to the privileged class or not. On page 262, of 198 U.S., page 646 of 25 S.Ct. (49 L.Ed. 1040), Justice Holmes, speaking for a majority of the court, said:

'It is established, as we have said, that the act purports to make the decision of the department final, whatever the ground on which the right to enter the country is claimed-- as well when it is citizenship as when it is domicile and the belonging to a class exempted from the exclusion act.'

This court, in Ex parte Moola Singh, 207 F. 780, at page 782, said:

'The authority of the immigration officers and the jurisdiction of the courts depend upon power conferred by Congress. It is a matter of legislation. No discretion is vested in the courts. Congress has a right to legislate upon the subject, prescribe rules, fix limits, and confer authority where it deems wise, in legislating upon the subject at hand. The supreme authority is conferred upon the immigration officers. The jurisdiction of the court is limited to ascertaining whether the petitioners were denied a hearing.' Section 25 of the act of February 20, 1907 (34 Stat.pt. 1, p. 906), provides:

' * * * In every case where an alien is excluded from admission into the United States, under any law or treaty now existing or hereafter made, the decision of the appropriate immigration officers, if adverse to the admission of such alien, shall be final, unless reversed on appeal to the Secretary of * * * Labor. * * * '

The issue presented here has been before many other courts and has been passed upon in this circuit.

Judge Wellborn, in U.S. v. Loo Way (D.C.) 68 F. 475, in disposing of the petitioner's right to enter, based upon residence in the United States from 1878 to 1892, returning to the United States in the latter year after a brief visit to China, and being then permitted to enter by the customs officials at San Francisco, and in 1893, being taken into custody, charged with being unlawfully within the United States, he contending that his entry was lawful, the right having been adjudicated by the collector of customs, at page 477, said:

'The books are full of cases in which the rights of Chinese persons to enter this country have been re-examined on habeas corpus, after denial of such rights by customs officials, and I have not been able to find an opinion by any court in which the authority for such re-examination is questioned.'

The Circuit Court, Southern District of New York, in Re Li Foon, 80 F. 881, held that under Act Aug. 18, 1894, c. 301, 28 Stat. 390, the decision of the collector of customs in favor of the right of a Chinese alien to enter the country is not final, but is subject to re-examination by the court. At page 882 Judge Lacombe said:

'It is next contended that the decision of the deputy collector at Malone, N.Y. (acting as collector), permitting petitioner to enter the United States, * * * is a final adjudication upon petitioner's right to enter, and that, in view of such decision, the commissioner should have held that he was lawfully entitled to be and remain in the United States. * * * In Act Aug. 18, 1894, c. 301, 28 Stat. 390, Congress provided that 'in every case where an alien is excluded from admission into the United States under any law or treaty now existing or hereafter made, the decision of the appropriate immigration or customs officers, if adverse to the admission of such alien, shall be final, unless reversed. * * * ' This makes the decision a final adjudication only when adverse to admission. If the immigration or customs officer decides to allow the immigrant to enter, such decision has no more force as a controlling adjudication, when the question of right to be or remain in the United States comes before the court or commissioner, than it had under section 9 of the act of 1882, as amended in 1884, which was before the Supreme Court in U.S. v. Ah Lung (124 U.S. 621, 8 Sup.Ct. 663, 31 L.Ed. 591), supra.'

Judge De Haven, in U.S. v. Lau Sun Ho (D.C.) 85 F. 422, held that the action of the immigration officers in permitting a Chinese alien to land in this country was not judicial, and the permission to enter has not the effect of a judgment entitling such person to remain in the United States, and at page 423 said:

'The order of the collector of customs, under which such person was permitted to land, is not even prima facie evidence of his right to remain in the United States, and the court, in such a proceeding, inquires into the truth of the matter, unembarrassed by such order of the collector.' Judge Maxey, in Mar Ging Guey v. U.S., 97 F. 576, at page 578, said:

' * * * The court will assume that, when the appellant was arrested for being unlawfully in the country, he was here by permission of the collector. But the action of the collector was not final. The court may still inquire

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