Lo Hop v. United States

• Decision Date: 04 February 1919
• Docket Number: 3124
• Citation: 257 F. 489
• Parties: LO HOP v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

257 F. 489

LO HOP v. UNITED STATES.

No. 3124

United States Court of Appeals, Sixth Circuit.

February 4, 1919

Mulholland & Hartman and Sholto M. Douglas, all of Toledo, Ohio, for plaintiff in error.

E. S Wertz, U.S. Atty., of Cleveland, Ohio, and Edward J. Lynch Asst. U.S. Atty., of Toledo, Ohio.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

WARRINGTON Circuit Judge.

Apparently it was the purpose to have the decree in this case considered on both appeal and writ or error, and although the record is somewhat confused we shall, in view of section 4 of the act of September 6, 1916, c. 448, 39 Stat. 727 (Comp. St. Sec 1649a), treat the case as properly here on appeal. Orders to deport respondent to China were made below (1) by a United States commissioner, and on the ground (stated alike in the affidavit for arrest and the order to deport) that he is 'a Chinese person found unlawfully * * * and not lawfully entitled to be or remain in the United States'; (2) by the District Court, upon appeal, for the reason that respondent 'at all times since the time of his admission to the United States has been a manual laborer, and has not at any time since his said admission been a Chinese merchant and member of the exempt classes of Chinese persons within the meaning of the Chinese Exclusion Acts.'

At the opening of the trial in the District Court respondent admitted that he was of Chinese descent, and, presumably relying upon the settled rule imposing the burden of proof upon respondent to show a lawful right to remain in this country (Bak Kun v. United States, 195 F. 53, 55, 115 C.C.A. 55 (C.C.A. 6)), the government rested. Respondent then introduced evidence tending to show that before leaving for this country he had been engaged in the grocery business in China, and for three years in a drug business as a partner to the extent of $10,000 in Hong Kong, and that he had been regularly admitted to the United States, at the port of San Francisco, Cal., July 19, 1911, as a merchant. He remained in San Francisco more than a month looking for business, and then came to Toledo, Ohio; and he was in that city almost continuously until his arrest, November 21, 1914, and indeed until January, 1915, before he claims to have acquired an interest in any business concern. However, it appears by some of the testimony that meanwhile he tried a number of times, in Toledo, Cleveland, and Detroit, to purchase and engage in a mercantile business, though without success until January, 1915, when he bought a half interest in a Chinese general merchandise business in Toledo, the purchase price being subsequently paid in Hong Kong upon his order.

An authenticated copy of a partnership certificate was placed in evidence, dated January 29, 1915, purporting to have been executed in pursuance of section 8099 of the Ohio General Code, and reciting that respondent and another were 'interested as partners in the partnership transacting business under the firm name and style of the Sam Wah Company, with its principal office and place of business' at a named location in Toledo. Despite this, it is to be observed of respondent's claimed purchase that his vendor is shown to have applied in Toledo, February 12, 1915, for a Chinese laborer's return certificate, and stated, among other things, that he then owned a half interest in the Sam Wah Company. This must have been the partnership interest said to have been purchased by respondent in the preceding month of January, and the testimony does not satisfactorily explain the discrepancy. It is conceivable, if indeed the sale transaction itself does not naturally import, that the sale was not to be completed until the purchase price was paid in Hong Kong, and admittedly this did not occur until after the vendor had secured his return certificate and gone to that place.

Difficulty arises, also, from the course pursued by respondent from the time of his arrival in Toledo, say about September 1, 1911, until August, 1916. In that period he was more or less engaged in cooking in the kitchens of restaurants and a grocery in Toledo. According to his own testimony and that of several Chinese witnesses, this work was done gratuitously; yet it is clear enough that he resorted to cooking to diminish, if not entirely to meet, his living expenses while seeking favorable opportunity to engage in some kind of mercantile business; but it is not shown why he continued this practice, although not so regularly, after his interest in the partnership was actually paid for as claimed. True, such a course might have been consistent alike with the business he claims to have entered upon as a merchant and the observance of reasonable economy; in a word, it would seem that, at a time as late as the trial, convincing evidence should have been available to show that the partnership and the certificate in that behalf were a sham, if in truth they were. Above all, the course pursued by respondent after his admission is not decisive of his right to remain in this country. There are other features of the record that must be regarded as controlling.

Respondent introduced an original certificate of identity, dated July 19, 1911, and bearing the official seal and signature of the immigration official in charge at San Francisco, also setting out respondent's name, age, height, etc., and stating his occupation to be that of a merchant. This instrument purports to have been issued in conformity with a departmental regulation of March 19, 1909, and to have been 'granted solely for the identification and protection of said Chinese person so long as his status remains unchanged. ' The inspector, who examined respondent at the time of his arrival at San Francisco, was not satisfied with certain claims he made, or with his appearance, and recommended that his application for admission be denied. The application was afterwards taken to the law division, San Francisco, where the inspector in charge and another inspector on June 23, 1911, jointly determined, 'after carefully considering the case,' that the recommendation for denial 'be reversed and the applicant be admitted.'

Furthermore it appears that, acting in compliance with the provisions of an act of Congress there alluded to, the viceroy at Canton, who had been designated for such purposes by the government of China, issued a certificate on April 24, 1911, showing that Lo Hop was a member of one of the exempt...