Jung See v. Nash
| Decision Date | 16 March 1925 |
| Docket Number | No. 6656.,6656. |
| Citation | 4 F.2d 639 |
| Parties | JUNG SEE v. NASH, Inspector, etc., et al. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Charles A. Lich, of St. Louis, Mo. (Lich & Miller, of St. Louis, Mo., on the brief), for appellant.
Allen Curry, U. S. Atty., and Carroll W. Harlan, Asst. U. S. Atty., both of St. Louis, Mo., for appellees.
Before KENYON, Circuit Judge, and TRIEBER and PHILLIPS, District Judges.
This is an appeal from an order discharging a writ of habeas corpus.
Jung See, hereinafter called appellant, filed in the District Court of the United States for the Eastern Division of the Eastern District of Missouri his petition for a writ of habeas corpus, wherein he alleged: That he was unlawfully deprived of his liberty in the city of St. Louis, Mo., by James T. H. Nash, inspector in charge of the United States Immigration Service, and B. E. Barnes, immigrant inspector, under warrants of arrest and deportation. He further alleged therein that such warrants were void for the following reasons: That the appellant was a citizen of the United States; that the evidence at the hearing before the immigration authorities showed that appellant was the son of a native born citizen of the United States; that there was no substantial evidence at such hearing that appellant was a Chinese subject or an alien; that the charges upon which it was sought to deport appellant were not supported by any evidence; that the hearing before the immigration authorities was unfair and illegal; that the appellant was entitled to a judicial hearing on the question of his citizenship; that the Department of Labor was without jurisdiction to hear that question; and that the order of deportation to China was illegal for the reason that appellant, after having become a resident of Canada, came from Canada into the United States. A writ of habeas corpus was issued as prayed for in the petition.
To this writ Nash, the inspector in charge, filed his return in which he set up and alleged: That he was the inspector in charge of the St. Louis office of the United States Immigration Service; that appellant was an alien and a citizen and subject of China; that on or about November 1, 1922, appellant surreptitiously entered the United States near the port of Detroit, Mich., and deliberately evaded the inspection required by law; that appellant was apprehended and arrested in pursuance of a warrant issued by the Assistant Secretary of Labor December 4, 1922; that a hearing on the matter was held before Nash, inspector, on February 7, 1923; that at said hearing appellant was present in person and was also represented by counsel and was given a full, fair, and complete hearing as required by law; that at the close of the hearing the record, including the evidence on which the warrant was issued, the testimony produced at the hearing and the brief of attorney for appellant, were submitted to the Secretary of Labor; and that after due consideration thereof the Secretary of Labor decided that appellant should be deported, and issued a warrant of deportation dated June 1, 1923. The return further specifically denied the allegations of the petition and prayed that the writ be discharged. The warrant of deportation and an authenticated copy of the entire proceedings had before the Department of Labor were attached to the return.
The appellant filed a reply, in which he generally denied the allegations of the return.
The court ordered the matter set down for hearing on the merits, at St. Louis, Mo., on September 17, 1923.
Whereupon counsel for the parties entered into and filed in the cause the following stipulation:
"It is hereby stipulated and agreed by the parties to this cause that the same may be taken as submitted by the court on the pleadings and the file of the Immigration Bureau which is attached to respondent's return as an exhibit, and upon briefs to be submitted to the petitioner and respondent."
From the authenticated transcript of the proceedings before the Department of Labor, the following facts appear:
Appellant was arrested and brought before Nash, inspector in charge, at St. Louis, on December 2, 1922; Nash informed appellant that he was an immigration inspector, that he wished to take a statement from appellant, that such statement must be voluntary, and that it might be used either for or against him, and asked him if he was willing to make a sworn statement. Appellant replied in the affirmative. Whereupon appellant made a statement substantially as follows: That his name was Jung See; that he was 35 years of age; that he was born at Duck Jow village, Southwest district, China; that he entered Canada about 1917 at Vancouver, and paid $500 head tax at the time he entered; that he entered the United States at Detroit, Mich., three or four weeks prior to December 2, 1922; that he traveled by railroad train from Toronto to Windsor, Canada; that he was taken across the river from Windsor to Detroit by a white man in a rowboat about 7 o'clock at night; that he paid the white man $130; that he was not inspected when he entered the United States; that he traveled by railroad train from Detroit to St. Louis; and that he was a laundryman by occupation.
Thereupon application was made for a warrant of arrest under section 19 of the Act of February 5, 1917, 39 Stat. 889 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, ß 4289ºjj). This application charged that appellant entered the United States in violation of section 7 of the Chinese Exclusion Act of September 13, 1888, 25 Stat. 477 (Comp. St. ß 4308), and rule 1, Chinese Rules; that he was found in the United States in violation of section 6 of the Chinese Exclusion Act of May 5, 1892, as amended by the Act of November 3, 1893 (27 Stat. 25; 28 Stat. 7 Comp. St. ß 4320); that he was a Chinese laborer not in possession of a certificate of residence, and was a person likely to become a public charge at the time of his entry; and that he entered without inspection. To this was attached the above-mentioned statement of appellant, taken on December 2, 1922, and the report of the inspector who arrested him.
The matter was called for hearing before Nash, inspector, December 7, 1922. It was continued to February 7, 1923, to afford appellant time to secure counsel to represent him. On February 7, 1923, the matter came on for hearing. Appellant was present in person, and was represented by Charles A. Lich, an attorney at law. Appellant testified to substantially the same facts as above set out in his statement of December 2, 1922, and in addition thereto that his father, Jung Hing Fun, was born in the United States, and therefore appellant was an American citizen, and that his father left China when appellant was a small baby, came to the United States, and there continuously remained until his death in St. Louis about two years prior to the date of the hearing.
Appellant presented also as witnesses Jung Dok Hung and Jung Chung Gan. Hung testified that he was a Chinaman 72 years old; that he came to the United States in 1868; that he entered at San Francisco, Cal.; that he went back to China, first in 1890, and again in 1912; that he was pre-investigated at Cleveland, Ohio; that he sailed from Seattle, and returned through Seattle; that he knew appellant and his father and mother; that appellant's father's name was Jung Hing Fun; that the latter was born at 714 Commercial street, San Francisco, Cal.; and that he saw appellant in China when he was there in 1890. Jung Chung Gan testified he was 51 years of age; that he had lived in St. Louis 15 or 16 years; that he came to the United States when he was 17 years old; that he was about 2 years younger than appellant's father; that he had made a trip to China about 23 or 24 years prior to the date of the hearing; that he knew appellant and appellant's father; that he was present at a head-shaving feast at the time of appellant's birth; and that appellant's father was born in America.
Whereupon the appellant rested his case.
The record of the testimony of Jung Dok Hung in connection with his application for a return certificate on November 29, and December 9, 1911, at Cleveland, Ohio, was secured by Inspector Nash from the official files of the Seattle office. This record shows that Hung testified at Cleveland that he was then 56 years of age; that he was born in 1855; that he had been in the United States 38 years, and had never returned to China during the 38 years he had been in the United States.
Inspector Nash made his findings and report to the Commissioner General of Immigration at Washington, D. C. To the same was attached the record of the testimony of Jung Dok Hung taken at Cleveland in 1911. It does not appear whether appellant and his witnesses were confronted with this transcript or not. We may assume that they were not. Inspector Nash recommended an order of deportation. The matter came before the Board of Review on May 10, 1923. Appellant, through his counsel, filed a written brief. The Board of Review recommended deportation to China. The Secretary of Labor entered an order accordingly, and a warrant of deportation was issued on June 1, 1923.
The learned trial judge treated the matter as submitted on the merits under the stipulation above set out, proceeded to examine the pleadings and file of the Immigration Bureau, found that the appellant was not a citizen of the United States, that he was unlawfully within the United States, and subject to deportation under the Act of February 5, 1917, 39 Stat. 889 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, ß 4289ºjj), and entered the order discharging the writ from which this appeal is prosecuted.
Appellant makes four principal contentions:
First, that there was no substantial evidence to sustain the order and warrant of deportation; second, that the appellant made a bona fide claim to citizenship, which entitled him to a judicial hearing, and deprived the ...
To continue reading
Request your trial