Jeung Bow v. United States

• Decision Date: 09 November 1915
• Docket Number: 9.
• Citation: 228 F. 868
• Parties: JEUNG BOW v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

228 F. 868

JEUNG BOW v. UNITED STATES.

No. 9.

United States Court of Appeals, Second Circuit.

November 9, 1915

Appeal from the District Court of the United States for the Western District of New York.

Habeas corpus by Jeung Bow against the United States. From an order dismissing the writ, petitioner appeals. Affirmed.

This cause comes here on an appeal from the District Court of the United States for the Western District of New York dismissing a writ of habeas corpus.

Dilworth M. Silver, of Buffalo, N.Y., for appellant.

John D Lynn, U.S. Atty., of Rochester, N.Y., and Donald Bain, Asst U.S. Atty., of Buffalo, N.Y.

Before LACOMBE, COXE, and ROGERS, Circuit Judges.

ROGERS Circuit Judge.

The appellant has been ordered by the Secretary of Labor to be deported to China on the ground that under the Chinese Exclusion Laws (Act May 6, 1882, c. 126, 22 Stat. 58) he belongs to the excluded classes, and on the farther ground that he is a person liable to become a public charge. He presented to the District Court of the United States for the Western District of New York his petition for a writ of habeas corpus upon the ground that he was in custody in violation of law for the following reasons:

1. That he is not an alien but a citizen of the United States by reason of having been born within this country.

2. That he had not had a fair hearing in that the government interpreter and prosecutor was one and the same person.

3. Because the interpreter was not sworn truthfully to interpret.

4. That the Secretary of Labor had no authority in law or jurisdiction to issue the warrant for his deportation as there is no proof to show that he embarked from an Asiatic port.

Return to the writ was duly made and upon the evidence submitted the writ was dismissed.

The testimony given by Jeung Bow at the hearing disposes of the objection that he is a citizen of the United States. He testified that he is a citizen of China; that his father and mother are both of Chinese parentage; that he himself was born in that country; that he had always been a laborer; that he left China in March or April, 1913, and went directly to San Francisco; that he had never been in the United States before; that he lived in San Francisco a few months over a year but did not know the name of any street in the city or of any person there; that he had no papers showing his right to enter or remain although he claimed to have had such a paper and to have lost it.

There is nothing in the record which shows that this man did not have a fair hearing. On the contrary, it appears affirmatively that he did have such a hearing. He testified that he had been fairly treated since his apprehension, and that he did not wish his hearing adjourned to enable him to communicate with friends. The nature of the proceedings were fully explained to him and he was informed as to his rights.

It is objected, however, that there is nothing in the case to show that the man had counsel, or that he could have had counsel at the hearing before the inspector, and it is claimed that this fact invalidated the whole proceeding.

The sixth amendment of the Constitution reads as follows:

'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.'

The proceeding under review is not a criminal prosecution, but an administrative hearing before the immigration authorities, and it need not be conducted in accordance with the procedure and rules of evidence which are observed in the courts of law.

Whether a Chinaman arrested and brought before an administrative board or immigration officials conducting an investigation into his right to be in this country has or has not a constitutional right to have the assistance of counsel for his defense is a matter we need not now consider. If in the case at bar Jeung Bow had asked for counsel and been refused it would at least be strong evidence to show that he had been denied the fair hearing to which he is entitled under the statute, even though it should be held that it involved no violation of any constitutional right. But even that question does not arise in this case. For the record shows that the appellant was expressly informed that he had a right to be represented by counsel, and was asked whether he wished to be so represented, and stated that he did not. He was then asked whether he waived all rights of attorney and was ready to proceed...