Ex parte Lam Pui

• Citation: 217 F. 456
• Parties: Ex parte LAM PUI.
• Decision Date: 26 October 1914
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

217 F. 456

Ex parte LAM PUI.

United States District Court, E.D. North Carolina.

October 26, 1914

[Copyrighted Material Omitted]

J. H Ralston, of Washington, D.C., and Thos. W. Davis, of Wilmington, N.C., for petitioners.

Francis D. Winston, U.S. Dist. Atty., of Windsor, N.C., for respondent.

CONNOR District Judge.

The record discloses that on December 27, 1913, upon the application of W. R. Morton, inspector of immigration for North Carolina. Hon. W. B. Wilson, Secretary of Labor, issued his warrant directing said inspector to take petitioner into his custody, charging that he was 'unlawfully within the United States, in that he entered in violation of a law thereof, to wit, the Chinese exclusion laws (section 21 of the act of February 20, 1907.) ' The inspector was directed to grant petitioner a hearing, to enable him to show cause why he should not be deported in conformity with law and that, pending further proceedings, he be admitted to bail in the sum of $1,000.

W. R. Morton, inspector, took petitioner into his custody and examined him, the original stenographic notes of which he transmitted to the Secretary of Labor. The Secretary, on April 1, 1914, issued his warrant reciting that, from proofs submitted to him, after due hearing before Inspector W. R. Morton, he had become satisfied that petitioner had been found in the United States in violation of the act of Congress approved February 20, 1907, amended by the act approved March 26, 1910, to wit: 'That the said alien is unlawfully within the United States, in that he has been found therein in violation of the Chinese exclusion laws, and is, therefore, subject to deportation under the provisions of section 21 of the abovementioned act.'

The inspector is directed 'to return the said alien to the country whence he came. ' Pursuant to this warrant W. R. Morton, inspector, took petitioner into his custody for the purpose of deporting him.

On April 13, 1914, a writ of habeas corpus was issued by the judge of the District Court of the United States, directed to the said W. R. Morton, commanding him to produce the body of petitioner before him, to the end that the cause of his detention be inquired into, etc. The respondent made return to the writ, setting forth the proceedings herein recited, and averring that, in obedience to said warrant, it was his purpose to deport petitioner. He moved the judge to dismiss the writ and remand the petitioner to his custody. Petitioner resisted said motion and moved that he be discharged. He assigned, as grounds to sustain his motion:

(1) That he had not had a fair and impartial trial before the inspector in charge of immigration, or the Department of Labor and Commerce, for that the said petitioner, when arrested by W. R. Morton, inspector in charge of immigration, was by him taken to the grand jury room in the United States courthouse, the door to which was part of the time locked, and was there examined and catechised by the said W. R. Morton, and refused to be permitted to consult with counsel until after examination by the said W. R. Morton was completed to his satisfaction, after which he was permitted to consult counsel.

(2) That the Secretary of Labor was without authority or jurisdiction to issue said warrant, or direct the deportation of petitioner, for that no evidence or proof to sustain the charge made in the original warrant, or the finding in the order of deportation, had been submitted to the said Secretary, and without such proof the said proceeding and warrant were void and of no legal effect.

Before proceeding to the consideration of the merits of petitioner's motion for his discharge, it is proper to note the fact that there was in the mind of the draughtsman of the warrant for deportation some confusion of thought. The allegation made against the petitioner, and found by the Secretary of Labor to be true, as the basis for his order, is that:

'He is unlawfully within the United States in violation of a law thereof, to wit, the Chinese exclusion laws (section 21 of the act of February 20, 1907), ' and 'that the said alien is unlawfully within the United States, in that he has been found therein in violation of the Chinese exclusion laws, and is, therefore, subject to deportation, under the provisions of section 21 of the above-mentioned act.'

The examination taken by the inspector, being the 'proofs' upon which the 'findings' of the Secretary are based, fails to disclose a violation of any of the provisions or prohibitions of the act of February 20, 1907, being the Immigration Act. Section 21 of that act contains no prohibition of entry or right to remain in the United States, but confers upon the Secretary of Labor authority--

'upon being satisfied that an alien has been found in the United States, in violation of this act, or that an alien is subject to deportation under the provisions of this act, or any other law of the United States, to cause such alien to be taken into custody and returned to the country whence he came.'

The proceeding instituted by W. R. Morton, inspector, and upon which the order for deportation is based, began with the statement of the inspector to the Secretary of Labor, being his application for a warrant of arrest, bearing date December 26, 1913, in which he says:

'When this Chinaman arrived at San Francisco, Cal., he was in possession of a section 6 certificate, describing him as a student, destined to Oakland, California. Judging from the date of his arrival in this country and the length of time he has been at Wilmington, N.C., where he now resides, his departure for Wilmington must have been immediately after his admission, showing that the Oakland, California, destination was fictitious. He is engaged as a laundryman, and has been for the past two years, at the Sam Lee laundry, 126 Market street, Wilmington, N.C. He is in possession of certificate of identity No. 5619.'

Upon this statement, petitioner was rightfully in the United States, unless, as suggested by the inspector, he obtained his certificate, which, it is conceded, had been properly viseed, by making a fraudulent representation in respect to his status as a student. It is manifest, therefore, that in no aspect of the case was he in the United States in violation of the provisions of the act of February 20, 1907. It thus appears that the petitioner was not informed by the terms of the warrant wherein he had violated the Chinese Exclusion Act. It would seem that, in a proceeding the result of which is fraught with such serious results to the alien, it would be a reasonable requirement that petitioner should, by the terms of the warrant, be informed of the character of the charge against him.

The real purpose of the proceeding is to invalidate the certificate upon which he was admitted into the United States. It is conceded that the language of section 21 of the act of February 20, 1907, confers upon the Secretary of Commerce power upon being satisfied that petitioner was subject to deportation under 'any law of the United States,' and this, of course, includes the Chinese exclusion laws. United States v. Wong You, 223 U.S. 67, 32 Sup.Ct. 195, 56 L.Ed. 354. As is well said by Judge Foster, in United States v. Redfern (D.C.) 210 F. 548:

'While no doubt the immigration authorities may deport a Chinaman unlawfully in the country under the general immigration act, as well as under the provisions of the Chinese exclusion laws, if they elect to proceed in the arbitrary and summary manner authorized by the former, they at least ought to proceed strictly in conformity with its provisions.'

Without any disposition to take a technical or narrow view of the record, although the liberty and rights of a citizen of a friendly power, with whom our government has entered into treaty relations, the terms of which are clear, is involved, it is worthy of note that the language of the warrant of deportation is far from clear. It does not show under what law, or upon what facts, the Secretary bases his conclusion. He says that:

'From the proofs submitted to me, after due hearing before Inspector in Charge W.R. Morton, held at Wilmington, N.C., I have become satisfied that the alien, Lam Pui, who landed at San Francisco, Cal., ex S.S. Korea, on the 8th day of September, 1911, has been found in the United States in violation of the act of Congress approved February 20, 1907, amended by the act approved March 26, 1910, to wit: That the said alien is unlawfully within the United States in violation of the Chinese exclusion laws, and therefore subject to deportation under the provisions of section 21 of the above-mentioned act.'

There is not a scintilla of evidence that the petitioner has committed any of the acts prohibited by Act Feb. 20, 1907, Sec. 2. It is further conceded that he has 'a section 6 certificate duly viseed. ' The questions, therefore, are whether petitioner was given a fair hearing, and whether there is any evidence in this record that he obtained his certificate by falsely representing himself to be a student, whereas he was, in truth, a laborer and entered in violation of the Chinese exclusion laws. That this is respondent's contention appears from his return to the writ of habeas corpus. He says repeatedly in his return that said 'certificate was fraudulently obtained'-- 'that it was obtained upon a false and fraudulent statement and concealment of the real purpose of the alien in coming to the United States.'

It is conceded that, if it be proven that petitioner procured a certificate of admission by false and fraudulent representations, he may be deported. He is unlawfully within the United States in violation of the Chinese Exclusion Act. United States v. Foo Duck, 172 F....