Ex parte Wong You

• Decision Date: 16 March 1910
• Citation: 176 F. 933
• Parties: Ex parte WONG YOU et al.
• Court: U.S. District Court — Northern District of New York

176 F. 933

Ex parte WONG YOU et al.

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

March 16, 1910

H. E Owen, for the United States.

B. W Berry, for petitioners.

RAY District Judge.

As to Hone Chee, or Hom Chee, the writ has been dismissed, and the petitioner remanded, as his case has not been passed upon by the Commissioner of Commerce and Labor.

Wong You and Wong Cheen, or Wong Chun, were taken into custody on the 22d day of October, 1909, at Utica, N.Y., and Wong Mon Sue, or Wong Yip, and Ju Fong were taken into custody November 28, 1909, at Rouses Point, N.Y., on the allegation they and each of them were alien Chinese persons and had entered the United States surreptitiously from the Dominion of Canada at a point not designated as a port of entry and without having produced a certificate of admission or having been examined or inspected as required by the immigration laws and regulations of the United States, and had unlawfully entered and were unlawfully in the United States in violation of section 36 of the act entitled 'An act to regulate the immigration of aliens into the United States,' approved February 20, 1907 (Act Feb. 20, 1907, c. 1134, 34 Stat. 908 (U.S. Comp. St. Supp. 1909, p. 466)); such entry having been made a few days prior to the dates mentioned. When so taken into custody, these Chinese aliens had not settled down and become a part of the resident population of the United States, not having reached their respective place of destination in the United States. Soon thereafter warrants for the arrest of said persons were issued by the Secretary of Commerce and Labor under the provisions of the immigration laws of the United States and the rules and regulations of the said Department of Commerce and Labor, and they were arrested and held thereunder and given opportunity for a full and a fair hearing and opportunity to show cause why they should not be deported under the provisions of said immigration laws and to have counsel. A full and fair hearing was had, and all evidence offered was taken and duly considered, and thereupon it was held and decided that said Chinese persons were aliens and had very recently entered the United States surreptitiously and in violation and defiance of law, as aforesaid, and were therefore unlawfully in the United States in violation of law. All the proceedings and testimony were duly transmitted to the Secretary of Commerce and Labor. The law as to a hearing was in all respects complied with, and the Acting Secretary of Commerce and Labor held that such Chinese persons were aliens, and that each of them entered the United States in violation of section 36 of the immigration laws, viz., act of Congress approved February 20, 1907, and rule 24 of the immigration regulations, and were in the United States, when arrested, in violation of law and unlawfully and had entered unlawfully.

On the 17th day of November, 1909, the Secretary of Commerce and Labor made and issued a warrant of deportation under said act (sections 36, 20, and 21) as to Wong You, Wong Cheen, or Wong Chun, and on the 4th day of January, 1910, made and issued a like warrant as to Wong Mon Sue, or Wong Yip, and Ju Fong. At the time the writ of habeas corpus was issued herein said named persons, so ordered deported, were in the custody of S R. Horton, Chinese inspector and inspector of immigration, under such orders and judgments of deportation to whom they had been delivered for the execution of same.

The warrants for the deportation of Wong Cheen, or Wong Chun, and Wong You recite that such persons are aliens; that they entered the United States in violation of section 36 of the said act (immigration laws, approved February 20, 1907), and rule 24 of the immigration regulations, and without being inspected under any of the provisions of said act, and commands that they be deported and returned 'to China, the country whence he came. ' In the case of Wong Mon Sue, or Wong Yip, and Ju Fong, the recitations of the warrant are substantially the same; but it does not in terms command or direct that such persons be deported or returned to China, but 'to the country whence he came. ' However, the commissioner is directed to purchase transportation for them from Malone, N.Y., to China.

It will be noted that these proceedings have been had under the provisions of the immigration laws and immigration rules and regulations.

The petitioners claim that these proceedings had and warrants of deportation issued are null and void, and were made or granted without jurisdiction; that the immigration laws (the act referred to) have no application to Chinese aliens; that such aliens, when found in the United States, regardless of how or when they came, must be arrested and dealt with under the provisions of the Chinese exclusion acts and taken before a United States judge or commissioner, who alone may deport Chinese aliens; that, in any event, as these Chinese aliens, concededly, came from the Dominion of Canada into the United States, they must be returned to Canada; and that the warrants of deportation are void and made without jurisdiction, in that they command a deportation or return to China and not to Canada, which it is claimed is the country whence they came.

The hearings given, or trials had, were in all respects full and fair. There has been no unfair or arbitrary or unlawful action or conduct, provided the Department of Commerce and Labor had jurisdiction to deal with these persons at all under the immigration laws, and deport them to China or to any place. I do not doubt the right and power of the Department of Commerce and Labor to deal with these persons, Chinese aliens, under and in conformity with the provisions of the said immigration laws and the rules and regulations which are in aid thereof and supplementary thereto and authorized thereby.

(1) These persons are aliens.

(2) They entered the United States surreptitiously, not at a port of entry, and without inspection or examination. They entered in defiance and in violation of law. They came with the intention of remaining.

(3) They placed themselves in the United States by violating our laws, by their own unlawful acts, and cannot, therefore, be heard to say they are not here in violation of law, or unlawfully.

(4) They came into the United States in violation of the immigration act or laws and, being aliens, were and are subject to its provisions.

(5) Chinese aliens are not exempt from the provisions of the immigration laws, rules, and regulations.

(6) The two acts may be enforced together and are not inconsistent with each other. The immigration act does not repeal the Chinese exclusion laws or any part thereof.

In Ex parte Li Dick (D.C.) 174 F. 674, the court had occasion to pass upon and decide all the questions raised here, except that of the place or country to which such alien Chinese persons so unlawfully entering and found within the United States in violation of the immigration laws shall be deported. I adhere to what was there actually decided and will not repeat it here. I also discussed the other question, but left it undecided, as it was not necessarily involved. What was said on the subject was by way of suggestion that the immigration laws are fully applicable to such cases and fully operative in all cases, except that, if in such a case as this the Dominion of Canada is held to be 'the country whence he (the alien) came,' and Canada will not receive the person ordered deported, then the exclusion laws must be resorted to.

Chinese aliens may come to the United States and enter in violation of our immigration laws by several different routes; as, for instance, one may embark at Hong Kong for the United States direct and land surreptitiously and enter unlawfully at San Francisco. In such case there is no question that China is 'the country whence he came' and to which he must be deported. Another may embark at Hong Kong for the United States as his destination, but land at Vancouver, the destination of the vessel, and then come by rail to Montreal, remain a month, and then cross the border into the United States surreptitiously and in violation of law, as was done in the Li Dick Case, supra. If the United States was his intended destination when he left China, is there any substantial reason why China should not be held to be 'the country whence he came'? True, he did not come direct and land in the United States, but he came from China to the United States as he intended to do, passing through Canada on his way. Another embarks from China for Canada with no intention of coming to the United States. He lands in Canada, complies with its laws, and remains two or five years, when he makes up his mind to come to the United States, and does so, entering surreptitiously and in violation of our immigration laws. Is China or the Dominion of Canada 'the country whence he came'? Before considering these questions in their legal bearings and the statutes applicable, we will ascertain the exact status of these petitioners, as shown by the evidence.

Wong You embarked at Hong Kong for Canada intending to come to the United States, that being his destination; but he intended and expected to first land in the Dominion of Canada and then stop a little time at Montreal. He did remain at Montreal about two months without changing his purpose to come to the United States, and then continued his intended journey to the United States by automobile, entering surreptitiously at a point distant from a port of entry and without inspection and in violation of law and was taken into custody at Utica Northern District of New York, within a day or so, and before he had actually settled down so as to become a part of our resident population. He was...