Ex parte Chiu Shee

• Decision Date: 17 October 1924
• Docket Number: No. 2759.,2759.
• Citation: 1 F.2d 798
• Parties: Ex parte CHIU SHEE.
• Court: U.S. District Court — District of Massachusetts

1 F.2d 798 (1924)

Ex parte CHIU SHEE.

No. 2759.

District Court, D. Massachusetts.

October 17, 1924.

John G. Sullivan, of Boston, Mass., and A. Warner Parker, of Washington, D. C., for plaintiff.

The United States Attorney, for defendant.

LOWELL, District Judge.

Return on a writ of habeas corpus to obtain the release of a person held for deportation by the immigration authorities, who decided that the Immigration Act of May 26, 1924 (43 Stat. 153), prohibited her from landing. The case is properly before the court, as it involves the interpretation of a law on which the decision of the immigration officials is not final. Gegiow v. Uhl, 239 U. S. 3, 36 S. Ct. 2, 60 L. Ed. 114.

These proceedings raise the question whether a Chinese woman, born of foreign parents, who is the wife of an American citizen, is prevented by the recent Immigration Act from entering this country, thus changing the settled law which allows such persons to join their husbands here (Tsoi Sim v. U. S., 116 F. 920, 54 C. C. A. 154), though not to be naturalized (Fong Yue Ting v. U. S., 149 U. S. 698, 13 S. Ct. 1016, 37 L. Ed. 905). A casual reading of the statute would seem to show that it has this result, but if we adopt the attitude toward such legislation of the Supreme Court of the United States in the leading case of Holy Trinity Church v. U. S., 143 U. S. 457, 12 S. Ct. 511, 36 L. Ed. 226, and consider the circumstances attending the passage of the act and the evils it was intended to prevent, we shall come to a contrary conclusion.

It is well known that the evil aimed at by this act was the presence in the United States of a large number of aliens, who were not desirous of adopting our customs, but preferred to follow their old ways, and were thus not likely to be assimilated with the rest of the population and become desirable citizens. The periodicals and newspapers have pointed out the dangers of such a situation, and have often figuratively expressed their fears by the prophecy that an ignorant mass of foreigners could not be refined into good material in the "melting pot" of American civilization. We have also been treated to learned dissertations on the impossibility of combining brachycephalic and dolichocephalic races. This subject is interesting to those who understand it, if such there be, but not relevant to the present discussion, except as showing how deeply the danger of unlimited immigration has impressed the public mind.

The result desired by the passage of the act would not be furthered by prohibiting a wife from joining her husband, who is a citizen of the United States by virtue of his birth. U. S. v. Wong Kim Ark, 169 U. S. 649, 18 S. Ct. 456, 42 L. Ed. 890. It would make him discontented with his American citizenship, as it would deprive him of the society of his wife, to which he is entitled by law. Tsoi Sim v. U. S., 116 F. 920, 54 C. C. A. 154, and cases cited.

A careful scrutiny of the provisions of the act will show that they are inconsistent with one another. Section 4, relating to nonquota immigrants, provides:

"When used in this act the term `nonquota immigrant' means (a) an immigrant who is the unmarried child under eighteen years of age, or the wife of a citizen of the United States who resides therein at the time of the filing of a petition under section 9" (which provides for the admission of such persons, who are not reckoned in the quota); "(b) an immigrant returning from a temporary visit abroad; (c) an immigrant with his wife and children, if he were born in Central or South America or certain of the West Indies; (d) an immigrant, with his wife and children, who is a minister or a professor; or (e) a student."

Section 13, on which the immigration officials base their decision, provides:

"(c) No alien ineligible to citizenship shall be admitted to the United States unless such alien (1) is admissible as a nonquota immigrant under the provisions of subdivision (b), (d) or (e) of section 4; or (2) is the wife, or the unmarried child under eighteen years of age, of an immigrant admissible under such subdivision (d) and is accompanying or following to join him; or (3) is not an immigrant as defined in section 3."

It will be noticed that subdivision (a) of section 4, which relates to the wives of American citizens, was not included among the exemptions. On this omission the assumption is based that Congress expressly forbade the entry of the wife of an American citizen, if she could not be naturalized. The assumption rests on an insecure foundation and arises from a literal construction of the act, without seeking to ascertain its intention. The result of such a construction would be that Congress showed itself more solicitous for the welfare of an alien minister or professor, whose wife is allowed to enter (section 13 c) than for that of American citizens. Such a result would be absurd, and we are told by the highest authorities that an act of Congress should not be so construed as to lead to absurdities. Lau Ow Bew v. U. S., 144 U. S. 47, 12 S. Ct. 517, 36 L. Ed. 340; Holy Trinity Church v. U. S., 143 U. S. 457, 12 S. Ct. 511, 36 L. Ed. 226, and cases cited. Nor is such a construction necessary. Section 4 (a), standing alone, would allow a Chinese wife of an American citizen, not only to be admitted, but to be admitted in excess of...