Ex parte Chow Chok

• Decision Date: 11 May 1908
• Citation: 161 F. 627
• Parties: Ex parte CHOW CHOK et al.
• Court: U.S. District Court — Northern District of New York

161 F. 627

Ex parte CHOW CHOK et al.

United States Circuit Court, N.D. New York.

May 11, 1908

R. M Moore, for petitioners.

Geo. B Curtiss, U.S. Atty., H. E. Owen, Asst. U.S. Atty., and Alford W. Cooley, Special U.S. Atty.

RAY District Judge.

These eight Chinese persons, now detained at the Malone, N.Y detention house, by the Chinese inspector in charge, for the purpose of returning them to China, they having been refused permission to enter the United States after full opportunity to be heard and show their right, if any, on the ground they are alien Chinese persons, not belonging to any class having the right to enter, claim that they are illegally held and detained.

The circumstances are somewhat peculiar, and R. M. Moore, an attorney at law, swears out these writs in behalf of these persons, alleging that their detention is unlawful, in that when apprehended they had already entered the United States, and were found therein, and were not seeking admission, and that, conceding that they were then unlawfully in the United States and had no right to remain therein, the Chinese inspector in charge, H. R. Sisson, had no jurisdiction or power to hold them in custody and deport them or return them to China or pass on their cases; that they were found in the United States and in no sense have applied for admission into the United States; that they are not seeking to enter, but to remain unmolested; that for these reasons they are entitled to a hearing on the question of their right to be and remain in the United States before a United States commissioner or judge in the regular way with the usual right of appeal in such cases.

On the return of the writs, the said persons by their attorney applied for the taking of more testimony so as to fully present the facts. The cases were therefore sent back to the inspector by order of the court, and ample opportunity given to present the cases fully. The matters are now submitted on the returns and such additional testimony.

The facts are not intricate. The government officers, having such matters in charge, learned that these eight persons were on a train approaching the United States, and it was supposed or assumed that their purpose was to illegally enter the United States. Inspectors West and Landis, March 20, 1908, were in the train running from Montreal to Locolle, a small town in Canada near the border, and which train carried these persons. At Locolle the eight Chinese persons got off the train, as did West and Landis. Soon thereafter two teams with carriages and drivers came and took these Chinese persons and went off in the direction of the border between Canada and the United States in the vicinity of Rouse's Point, which is a village in New York about one mile from the line. Inspectors Dunton and Yale had proceeded to the border from Rouse's Point in anticipation of the arrival of these Chinese persons and of their attempt or purpose to enter the United States in an irregular way and, as was believed, unlawfully.

When near the line, the teams referred to halted, and the Chinese alighted and moved towards the border. The inspectors, or some of them, kept them in sight, and, as the Chinese crossed the border, passing from the highway to the railroad track, and thence along it as they crossed, they were closely followed by Inspectors West and Landis, who had been joined by Inspectors Yale and Dunton, who had been waiting at a farm house on the Canada side. All these officers were there for the purpose of preventing the illegal entrance of these persons into the United States, for the purpose of apprehending them if they did enter, and sending them back to China if on due examination found not entitled to enter. The purpose was to prevent their 'entrance' into the United States, within the intent and meaning of the Chinese exclusion acts. Nothing was said to them as they crossed the border into the United States, nor until they had proceeded something like a fourth of a mile along the track after crossing the border. Then Inspector Dunton gave them to understand they would have to go along with the inspectors. From that point into Rouse's Point, the nearest railroad station for taking the train to Malone, the nearest port of entry, these petitioners were accompanied by Inspectors West, Dunton, and Landis, who took possession of and carried most of their baggage.

These inspectors were acting under the orders of their superior. I sustain the objection to the statements that the inspectors 'took charge of them' as a conclusion. Their purpose in being there, and what was said and done, are acts which speak for themselves. It is evident the officers took them actually into their custody and under their control for the purpose of preventing their actual and completed entry into the United States as 'entry' or 'entrance' should be construed; that is, to prevent their going at large or becoming domiciled in the United States. It is evident the purpose was to take them from the place where they crossed the border by all necessary force, to Malone, the designated point for the admission of Chinese persons into the United States, for due investigation of the facts bearing on their right to enter into the United States. I sustain the objection to the testimony of the officer as to what he would have done if these persons had attempted to get away.

From Rouse's Point these eight persons were taken direct and immediately to the Malone Detention House, and before the inspector in charge, where each was given full opportunity to make such voluntary statements as he might desire to make relative to his right to enter the United States and duly informed that he might produce any evidence that he had, or might be able to produce, touching his right to enter the United States, each having indicated his desire to enter, and as to his right to counsel and to be heard. In short, the authority and powers of the inspector, the purpose of the proceedings, and the rights of these persons were fully explained to them, severally, and each remained mute. Each refused to answer all questions touching his right to enter the United States, or to furnish the name of any witness or witnesses by whom he might be able to prove such right. Neither of them produced any paper or writing or evidence of any kind showing, or tending to show, a right on his part or on the part of either of said persons to enter or to be in the United States or claimed to have any such document. Landis, Dunton, and West were sworn on the hearing before Inspector Sisson as to the identity, etc., of said persons with those who came across the border and were apprehended as aforesaid, and as to the transaction and the circumstances of their apprehension. Inspector Sisson then closed the cases, each being a separate proceeding and had as such, and decided that each of said persons was an alien Chinese person not entitled to enter the United States, and gave to each a notice, form 429, 'Notice to rejected Chinese applicant,' and each of such persons was informed of its nature and effect, and was also informed of his right to appeal from such decision to the Secretary of the Department of Commerce and Labor. Instead of taking appeals, these persons, by their attorney, swore out these several writs.

It is perfectly evident that each of these eight persons sought to enter the United States. It is evident that their purpose to enter was discovered by the United States, and that it was on the ground, by its proper officers, to prevent their illegal entry.

Their purpose was not fully developed until they had actually crossed the border, as they sent no messenger or notice in advance announcing their desire to enter; but that they did...