Lam Fung Yen v. Frick

• Decision Date: 16 June 1916
• Docket Number: 2777.
• Citation: 233 F. 393
• Parties: LAM FUNG YEN v. FRICK, Immigration Inspector.
• Court: U.S. Court of Appeals — Sixth Circuit

233 F. 393

LAM FUNG YEN v. FRICK, Immigration Inspector.

No. 2777.

United States Court of Appeals, Sixth Circuit.

June 16, 1916

[Copyrighted Material Omitted]

F. H Watson, of Detroit, Mich., for appellant.

J. E Bland, Asst. U.S. Atty. of Detroit, Mich., for appellee.

Before KNAPPEN and DENISON, Circuit Judges, and EVANS, District Judge.

KNAPPEN Circuit Judge.

Appeal from an order discharging a writ of habeas corpus. Petitioner is an alien, born in China. In August, 1911, when nearly 19 years of age, he entered the United States as the minor son of a Chinese merchant domiciled in this country. He was arrested on warrant issued by the Secretary of Labor February 26, 1914 (within three years after entry), and after hearing before an immigration inspector was, by order of the Secretary of Labor, ordered returned to China, upon the grounds, first, that at the time of his entry into the United States he was a person likely to become a public charge within the meaning of sections 2, 20, and 21 of the Immigration Act of February 20, 1907, c. 1134, 34 Stat. 898, as amended by Act March 26, 1910, c. 128, 36 Stat. 263 (Comp. St. 1913, Secs. 4244, 4269, 4270), and Act March 4, 1913, c. 141, Sec. 3, 37 Stat. 737; and, second, that he was a laborer, and thus unlawfully within the United States under Chinese Exclusion Act April 27, 1904, c. 1630, 33 Stat. 394, 428, and so liable to be deported under section 21 of the Immigration Act.

The second ground of deportation relied upon may be passed by in a few words: As the minor son of a Chinese merchant domiciled in this country petitioner was entitled to enter, unless excluded by the provisions of either the Chinese Exclusion Act or the Immigration Act. United States v. Mrs. Gue Lim, 176 U.S. 459, 20 Sup.Ct. 415, 44 L.Ed. 544; Lew Ling Chong v. United States (C.C.A. 6) 222 F. 195, 199, 137 C.C.A. 635. Petitioner was not a laborer when he entered the United States; if he is now liable to deportation as a laborer it is only because he has become such since his entry. Assuming that the small amount of work done by petitioner in a laundry has established his present status as a laborer (which is, to say the least, not very clear), we think the case falls within the decision of this court in Lew Ling Chong v. United States, supra, 222 Fed.at page 200, 137 C.C.A. 635, where it is held, in accordance with numerous authorities, that such labor, following a lawful entry in the capacity stated, did not destroy petitioner's right to remain.

The situation as affecting the charge that petitioner is a person liable to become a public charge is in narrow compass and the evidence undisputed. It appears by petitioner's testimony that during the 2 1/2 years he had been in this country his profitable industry was practically negligible; that he first went to his father in Philadelphia, remaining there four or five weeks, then going to Chicago, largely with money provided by friends in his father's store, staying in the latter city more than a year, doing nothing; that he went to Detroit for a short time, and then returned to Chicago, where he remained until about a week before his arrest, when he went to Pontiac, Mich., where also he was 'doing nothing,' except that when he was arrested he was helping 'wrap up clothes in the laundry'; that he made his living by gambling, borrowing when out of money, and repaying when he had won.

As he expressed it, 'When I won, I paid back; but when I lost, I borrowed again. ' He says that he did not gamble in any one place; that 'I gambled all over Chinatown.' When arrested he had about $20, which he says was 'money I had saved up from gambling in Chicago. ' He says 'I never done any work,' assigning as the reason that 'no one wants to hire me to work,' and that he had not learned for that reason. His father testified that when petitioner first came from China he gave him $35, that petitioner has never been to school in this country, that he refused to obey his father, and when scolded ran away. The father apparently feels little interest in petitioner. The latter testified that he sometimes gambled in China; that he 'used to run a drug store, and it was burned, and I started to gamble a little'; that he did not make a living at it, for his father 'sent money home to take care of the whole family.'

We cannot say that the Secretary of Labor might not competently conclude from the evidence that petitioner was, when in China, addicted to gambling; that he came here without the intention of engaging in profitable industry, and intending to make his living, so far as necessary, by gambling. Taking into account the charge, the evidence, the findings, and the order of deportation, the Secretary of Labor may well have so concluded; and, as there was competent evidence supporting such conclusion, it is binding upon the courts. Lewis v. Frick, supra, 233 U.S.at page 300, 34 Sup.Ct. 488, 58 L.Ed. 967; Id., 195 F. 693, 696, 115 C.C.A. 493.

The Immigration Act applies to aliens born in China, and notwithstanding petitioner's entry as the son of a Chinese merchant, if he was at the time a person likely to become a public charge he could not lawfully enter. Low Wah Suey v. Backus, 225 U.S. 460, 32 Sup.Ct. 734, 56 L.Ed. 1165; United States v. Wong You, 223 U.S. 67, 32 Sup.Ct. 195, 56 L.Ed. 354. And see Japanese Immigrant Case, 189 U.S. 86, 23 Sup.Ct. 611, 47 L.Ed. 721.

The more important question is whether the fact that petitioner entered the United States as a gambler, and as one having no other permanent means of support, actual or contemplated, makes him a person 'likely to become a public charge' within the meaning of the Immigration Act.

It seems clear that the term 'persons likely to become a public charge' is not limited to paupers or those liable to become such; 'paupers' are mentioned as in a separate class. In United States v. Williams (D.C.) 175 F. 274, 275, the term 'persons likely to become a public charge' is construed as including, 'not only those persons who through misfortune cannot be self-supporting, but also those who will not undertake honest pursuits, and who are likely to become periodically the inmates of prisons. ' We think this a reasonable construction. 'A statute excluding paupers or persons likely to become a public charge is manifestly one of police and public security. ' The Japanese Immigrant Case supra, 189 U.S.at page 97, 23 Sup.Ct.at page 613 (47 L.Ed. 721). Inmates of jails and prisons are for the time being public charges, and we think it open to conclusion by reasonable minds that those who will not work for a living,...