Halsey v. Ho Ah Keau

• Decision Date: 04 February 1924
• Docket Number: 4013.
• Citation: 295 F. 636
• Parties: HALSEY v. HO AH KEAU.
• Court: U.S. Court of Appeals — Ninth Circuit

295 F. 636

HALSEY v. HO AH KEAU.

No. 4013.

United States Court of Appeals, Ninth Circuit.

February 4, 1924

William T. Carden, U.S. Atty., of Honolulu, Hawaii, and John T Williams, U.S. atty., and T. J. Sheridan, Asst. U.S. Atty both of San Francisco, Cal., for appellant.

Harry Irwin, of Hilo, Hawaii, and S. H. Derby, of San Francisco Cal., for appellee.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

HUNT Circuit Judge.

This is an appeal from an order of the District Court, District of Hawaii, granting a writ of habeas corpus in favor of Ho Ah Keau, otherwise known as Ho Shee. The lower court sustained a demurrer to the return and amended return to the writ, and Halsey, as inspector in charge of immigration at Honolulu appealed.

The appellee, referred to as Ho Shee, arrived at Honolulu on December 7, 1921, seeking entry into the United States as the wife of Lau Ah Leong, a native of China and living at Honolulu, who became an American citizen by virtue of the fact that he was a citizen of the territory of Hawaii prior to its annexation to the United States. In due course there was a hearing before a board of special inquiry, whereat it appeared that Ho Shee, also called Ah Keau, first came to Honolulu in 1891, and a few days after her arrival, May 25, 1891, was married to Lau Ah Leong, the marriage certificate being regular in all respects as required by the laws of Hawaii, and of record in the office of the board of health at Honolulu. In 1883 a Chinese woman called Hung Shee arrived at Honolulu, and after her arrival lived with Ah Leong as his wife. Hung Shee asserts that she was married to Ah Leong. No record of a license for marriage between her and Ah Leong was shown, nor did the evidence disclose that any marriage ceremony was performed. There was testimony by Hung Shee that there was a 'Chinese marriage' with a Chinese certificate, and that there were guests present at the wedding. The two women, Hung Shee and Ho Shee, had children by Ah Leong. Several children by Ah Leong with Hung Shee were born before the marriage of Ah Leong to Ho Shee.

There was evidence that Ah Leong at different times claimed each of the women as his wife. At a hearing in 1910 he said Hung Shee was then his wife; in 1921 he said Ho Shee was then his wife. About January 13, 1910, Ho Shee went to China on the ship Corea, taking with her several of her children, including Lai Chang, then an infant. After an absence of about 11 years Ho Shee, with one of her children, returned to Honolulu. The child was admitted as one born in Hawaii, the son of Ah Leong and Ho Shee. It was in evidence before the board that in 1907 Ah Leong pleaded guilty to the crime of unlawful cohabitation with the two women, Ho Shee and Hung Shee. He paid a fine. Thereafter, on March 21, 1910, Ah Leong was indicted in Hawaii for bigamy; the charge being that in October, 1886, he married Hung Shee, and that afterward, while she was his wife, he married Ho Shee. To the charge of bigamy Ah Leong entered a plea of nolo contendere, was sentenced to jail and to pay a fine.

At the hearing before the board Ho Shee was identified as having been called Ah Keau, and she produced a certificate of identity or affidavit as to her identity, signed by the American consul at Hongkong. The board of special inquiry conducted a rigid examination of all the witnesses, and concluded that Ho Shee was entitled to admission as the lawful wife of a citizen of the United States; one member of the board dissenting upon the ground that Ho Shee was a person who believed in and had practiced polygamy, and therefore was not entitled to admission.

Upon appeal by the dissenting member to the Secretary of Labor the Secretary held that Ho Shee was not entitled to be admitted because she was not the lawful wife of Ah Leong, and incidentally expressed the opinion that the evidence failed to establish that applicant, Ah Keau, was the identical person who had entered into the marriage with Ah Leong in 1891. The expressions in the opinion of the Secretary of Labor casting doubt upon the identity of Ho Shee as being the same woman who married Ah Leong in 1891 are not controlling. The board of special inquiry was unanimous in believing she was the identical woman, and, while the decision of the Secretary of Labor reversed the board, it was not upon the question of identity, but because the evidence 'wholly failed' to establish that Ho Shee or Ah Keau was married to a citizen of the United States, and failed to show that...