Haff v. Yung Poy, 7222.
Decision Date | 11 December 1933 |
Docket Number | No. 7222.,7222. |
Citation | 68 F.2d 203 |
Parties | HAFF, Acting Commissioner of Immigration, v. YUNG POY. |
Court | U.S. Court of Appeals — Ninth Circuit |
H. H. McPike, U. S. Atty., and Robert L. McWilliams, Asst. U. S. Atty., both of San Francisco, Cal. (Arthur J. Phelan, U. S. Immigration Service, of San Francisco, Cal., on the brief), for appellant.
John L. McNab and S. C. Wright, both of San Francisco, Cal., for appellee.
Before WILBUR and SAWTELLE, Circuit Judges, and NORCROSS, District Judge.
Appellee is a native-born Chinese, now about 17 years of age. On June 2, 1926, at the age of 9, he was lawfully admitted to the United States, under subdivision 6 of section 3 of the Immigration Act of 1924 (8 USCA § 203 (6), as the minor son of Yung Hong, a Chinese trader or merchant who, for many years prior thereto, had been lawfully domiciled in the United States and engaged in the mercantile business at San Jose, Cal. In 1927, Yung Hong, for reasons not material here, ceased to be a merchant and obtained employment as a janitor. In January, 1932, the mercantile establishment in which Yung Hong had an interest went out of business. On September 9, 1932, appellee was ordered deported to China on the ground "That he remained in the United States after failing to maintain the exempt status, under which he was admitted, of an alien entitled to enter the United States solely to carry on trade under and in pursuance of the provisions of the present existing treaty of commerce and labor."
From an order of the District Court granting appellee's petition for a writ of habeas corpus, the government has prosecuted this appeal, and contends (1) that appellee's rights are measured by the Immigration Act of 1924 and not by the treaty of commerce and navigation with China, dated November 17, 1880 (22 Stat. 826), under which appellee's father was admitted as a merchant; and (2) that one admitted to the United States under the Immigration Act of 1924 as the minor son of a trader becomes subject to deportation if his father ceases to carry on trade.
We cannot concur in the view that appellee's rights are measured by the Immigration Act of 1924 rather than by the treaty. The act of 1924 abrogated the treaty only as to provisions thereof inconsistent with provisions of the act. Concordant with the right granted by the treaty to Chinese merchants to freely come and go, the act recognizes the right of an alien "entitled to enter the United States solely to carry on trade under and in pursuance of the provision of a present existing treaty of commerce and navigation." Section 3 (6), Act of 1924, 8 USCA § 203 (6).
In Weedin v. Wong Tat Hing, 6 F.(2d) 201, 202, and Dang Foo v. Weedin, 8 F.(2d) 221, this court held that the Immigration Act of 1924 does not exclude Chinese merchants and their families, for the reason that no provision of the act is in direct conflict with the treaty rights of such merchants. In the Wong Tat Hing Case, Judge Rudkin said:
In Cheung Sum Shee v. Nagle, 268 U. S. 336, 45 S. Ct. 539, 69 L. Ed. 985, the Supreme Court answered in the negative the following question certified to it by this court: "Are...
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