Ex parte Fong Yim

• Decision Date: 11 January 1905
• Citation: 134 F. 938
• Parties: Ex parte FONG YIM et al.
• Court: U.S. District Court — Southern District of New York

134 F. 938

Ex parte FONG YIM et al.

United States District Court, S.D. New York.

January 11, 1905

Max J Kohler, for petitioner.

William Michael Byrne, Asst. U.S. Atty.

HOLT District Judge.

These are writs of habeas corpus and certiorari to test the legality of the detention of two Chinese children who have been refused admission to this country. The substantial facts in the case are that Fong Fook Chung has been for many years a Chinese merchant, carrying on business and having a commercial domicile at Philadelphia, Pa. He has been married twice. His first wife resided in China, and he from time to time went home to China, and afterwards returned to this country. Two children, Fong Yim, a boy 10 years old, and Fong Dung, a girl 16 years old, were adopted when they were babies by Fong Fook Chung and his wife as their children. They lived with the first wife in China, and were frequently visited there by Fook Chung until about a year ago, when his first wife died. Subsequently Fong Fook Chung went to China married again there, and returned to this country with his second wife and the two adopted children. He and his wife were permitted to enter this country, but the children were detained at Malone, N.Y., and after a hearing before F. W Berkshire, chief officer of the Chinese exclusion laws for the state of New York, were denied admission to the United States. An appeal from his decision was duly taken to the Secretary of Commerce and Labor, and the decision was affirmed. Thereupon these writs were obtained.

The district attorney contends that this court has no jurisdiction upon the grounds that a writ of habeas corpus cannot be issued by this court to review the alleged illegal detention of persons in the Northern District, and that the decision of the Secretary of Commerce and Labor in this case is final. I think that this court would have no jurisdiction to inquire by habeas corpus into the cause of the detention of these children in the Northern District if the respondent had not admitted in this case that he had them in his custody, and a stipulation had not been entered into between counsel waiving their production in court. Mr. Berkshire is the chief Chinese exclusion officer having jurisdiction throughout the state of New York. His principal office is in the city of New York. The children are detained by his orders, but I presume that he is not the person actually detaining them, any more than the Secretary of Commerce and Labor is such person. The person who actually deprives them of their liberty is presumably the person who keeps them confined in the building where they are staying at Malone. But as Mr. Berkshire in his return admits that the children are detained by him, and he and his counsel have entered into and taken the benefit of a stipulation that the children need not be produced in open court, thus having admitted his power and obligation under the writ to produce them, I think the case is to be decided as though he had in fact produced them and they were present in court. If that had been done, there can be no doubt, in my opinion, that the court would have had jurisdiction to determine whether their detention was legal.

The district attorney also contends that the decision of the Secretary of Commerce and Labor in this case is final. He relies particularly upon the case of Lem Moon Sing v United States, 158 U.S. 538, 15 Sup.Ct. 967, 39 L.Ed. 1082. In that case a man who asserted that he was a Chinese merchant having a commercial domicile in this country, and that he had temporarily left the country, was refused permission to enter the United States by the decision of the collector of customs at San Francisco. He did not take an appeal to the Secretary of the Treasury. A writ of habeas corpus was obtained, but dismissed for want of jurisdiction, and this decision was affirmed on appeal by the United States Supreme Court. The court in the opinion held that the remedy of the appellant was by appeal to the Secretary of the Treasury. It was also stated in the opinion that by the act of 1894 the authority of the courts to review the decision of the executive officers was taken away. But I think that strictly that part of the opinion was obiter. The actual decision was that the appellant could not appeal to the courts because he still had a right of appeal to the Secretary of the Treasury. The question whether, after the Secretary of the Treasury had decided the appeal, the appellant could apply to the courts for redress was not strictly before the court for decision. But in the very recent case of United States v. Sing Tuck, 194 U.S. 161, 24 Sup.Ct. 621, 48 L.Ed. 917, certain Chinese persons who claimed that they were born in this country, and were, therefore, citizens of the United States, under the decision of the United States Supreme Court in United States v. Wong Kim Ark, 169 U.S. 653, 18 Sup.Ct. 456, 42 L.Ed. 890, were excluded from entering the country by an inspector. No appeal from his decision was taken to the Secretary of Commerce and Labor, who is now the officer to whom such appeals can be taken instead of the Secretary of the Treasury, but an application was made to a United States Circuit Court for a writ of habeas corpus. The writ was dismissed for want of jurisdiction. The order dismissing the writ was reversed by the Circuit Court of Appeals on the ground that the parties concerned were entitled to a judicial investigation of their status. This order of the Circuit Court of Appeals was reversed by the United States Supreme Court on the ground that no appeal had been taken from the decision of the inspector to the Secretary of Commerce and Labor. The court held that the remedy provided by ...