Lai To Hong v. Ebey

• Decision Date: 28 February 1928
• Docket Number: No. 3923.,3923.
• Citation: 25 F.2d 714
• Parties: LAI TO HONG v. EBEY, Immigration Inspector.
• Court: U.S. Court of Appeals — Seventh Circuit

25 F.2d 714 (1928)

LAI TO HONG v. EBEY, Immigration Inspector.

No. 3923.

Circuit Court of Appeals, Seventh Circuit.

February 28, 1928.

Frank T. Milchrist, of Chicago, Ill., for appellant.

James G. Cotter, of Chicago, Ill., for appellee.

Before ALSCHULER, EVAN A. EVANS, and PAGE, Circuit Judges.

EVAN A. EVANS, Circuit Judge.

Appellant, a native Chinese, entered the United States at San Francisco, May 6, 1916, as a merchant — a member of the exempt class of such aliens. His certificate was duly and properly issued, and on its face entitled him to admission. In March, 1917, he was found working in a Chinese laundry in Chicago, and, as the government contends, employed as a laborer.

The then Secretary of Labor caused his arrest — the preliminary step in a deportation proceeding. The Immigration Act of 1917 (Comp. St. §§ 959, 960, 4289¼a-4289¼u), enacted about the same time, enlarged the authority of the Secretary of Labor. The appellant was consequently discharged under the first proceedings and rearrested July 14, 1918, under this later act.

Appellant was given a hearing by the Secretary of Labor, and, on September 27, 1920, an order for his deportation was entered. Appellant thereupon sought and secured a writ of habeas corpus from the District Court, to which a return was duly made.

This writ was dismissed January 7, 1927, approximately ten years after the proceedings were instituted. This appeal is to review the decree dismissing the writ of habeas corpus.

Four attacks are made on the decree: (a) The Secretary of Labor lost jurisdiction of the proceeding by failing to decide the case within two years of the hearing. (b) The evidence shows conclusively that appellee's entry was not fraudulent. (c) The Immigration Act of 1917 does not apply to this case. (d) Appellant was not given a judicial hearing.

(a) While in no way approving the Secretary's seemingly inexcusable delay in deciding this case, we conclude that there is no merit in the contention that the Secretary lost jurisdiction of the case. The delay was beneficial to the appellant. His aim was to remain in the United States. His stay here was undisturbed so long as the proceedings were pending.

The constitutional privilege giving to an accused person the right to a speedy trial does not apply to deportation proceedings, for Chinese alienage is not disputed. Furthermore, appellant did not protest against the delay. His position was not unlike that of Worthington, considered in Worthington v. United States (C. C. A.) 1 F.(2d) 154. His embarrassment in this respect is emphasized by the fact that, after instituting his habeas corpus proceedings, he allowed this suit to go unpressed to a hearing for over six years.

(b) The Secretary of Labor and the District Judge, on the same evidence (the latter, however, not seeing the witnesses), found that appellant "secured his admission to the United States by fraud, pretending to be a member of an exempt class when he was a laborer coming for the purpose of laboring in the United States." Without discussing the evidence in detail, we will merely state our conclusion, to wit, that, while the evidence and the inferences were conflicting, they support this finding. Tulsidas v. Insular Collector, 262 U. S. 258, 43 S. Ct. 586, 67 L. Ed. 969.

(c) Appellant also contends that, because of section 38 of the 1917 act (8 USCA § 178), he was not amenable to the provisions of this act, but was subject to deportation, if at all, under the provisions of the previous act. This, he claims, entitled him to a judicial hearing. Both counsel cite and rely on Ng Fung Ho v. White, 259 U. S. 276, 42 S. Ct. 492, 66 L. Ed. 938. Each insists that this decision either directly or inferentially supports his position. Obviously, to what extent it decides and leaves undecided relevant questions must be determined by a construction of the language of the opinion.

Appellant contends (to be more specific) that the act of 1917 bars Chinese aliens who entered the United States before the act was passed only when such aliens unlawfully remain in the United States. It does not apply, so he urges, to aliens who unlawfully entered the United States prior to the passage of the act.

The government on the contrary, denies the existence of any basis for this distinction. It is, however, in reference to this asserted distinction that counsel point to the opinion in the above-cited case and...