Lew Ling Chong v. United States

• Decision Date: 06 April 1915
• Docket Number: 2559.
• Citation: 222 F. 195
• Parties: LEW LING CHONG v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

222 F. 195

LEW LING CHONG v. UNITED STATES.

No. 2559.

United States Court of Appeals, Sixth Circuit.

April 6, 1915

P. M Smith, of Wellsville, Ohio, for appellant.

J. B Waterworth, Asst. U.S. Atty., of Cleveland, Ohio, for the United States.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

WARRINGTON Circuit Judge.

The government commenced a proceeding October 12, 1912, before a United States commissioner, for the purpose of deporting Lew Ling Chong, and, on January 24, 1913, the commissioner ordered respondent to be forthwith removed from the United States to China. The case was appealed to the court below where, April 17, 1913, the order of the commissioner was affirmed. It is said in the brief for the government that the case was brought here both on writ of error and appeal, and that a motion had been filed to dismiss. No such motion appears, and, according to the transcript, an appeal alone was perfected. Indeed, as we understood counsel in oral argument, the claim in respect of a writ of error was abandoned; moreover, the case is properly here upon appeal. United States v. Hung Chang, 134 F. 19, 20, 67 C.C.A. 93 (C.C.A. 6th Cir.).

The appellant, Lew Ling Chong, was arrested upon a warrant charging him with being 'a Chinese person and a person of Chinese descent,' 'unlawfully in the United States,' and 'not lawfully entitled to be and remain' therein. This seems to be the complaint, and the only one, upon which appellant was tried and ordered to be deported; no pleading of any kind was filed by appellant. It appears, from the memorandum opinion of the commissioner that at the hearing before him several witnesses were called by the government, and that only the father of appellant was called for the defense. The testimony there given is not embodied in the record. The cause was tried de novo in the court below, and the government rested its case upon an admission that appellant 'is a Chinaman.' Both appellant and his father appeared at that trial as witnesses, and their testimony, as translated by an interpreter, is set out in the record. A certificate, called a certificate of identification, was in terms formally offered and received in evidence at this trial, though the instrument was then in the custody of the government at Washington, and, by leave of court, was inserted in the record after the decree had been entered. Nothing further was offered by either the appellant or the government.

The question is whether the order of deportation should be sustained. Appellant entered the United States at the port of Seattle, July 21, 1910. He was admitted as a 'minor son of Lew Wah solely because of his status as a merchant. ' The relation of father and son is not disputed. It is stated in the certificate that appellant was then 21 years of age. It is, however, claimed and practically admitted that this was a mistake which grew out of a Chinese custom to treat a child as two years of age upon the first birthday of the Emperor next succeeding the birth of the child, even though this results in treating a child born within a single month prior to such birthday as two years of age; and so it is in effect conceded that appellant was 19 years old at the time of his entry at the port of Seattle. The father, Lew Wah, entered the United States at the port of San Francisco in 1878, and has practically made this country his home ever since. He testifies in substance that some four years prior to the trial below-- that is, in 1909-- he purchased an interest, investing $500, in a Chinese store situated in Cleveland, Ohio; that in this store he was buying and selling Chinese drugs and general merchandise; and that the store and his interest therein are still maintained. True, he said in his examination in chief that 'during the last four years' he had been in a 'laundry and that store'; but in effect it appears in his cross-examination that he was in the laundry for only a few months within that period, and that this was within the 10 months next preceding the trial; and he adds that for a period of more than 10 years prior to that time he had not been engaged in a laundry at all.

The son, Lew Ling Chong, testifies that in August or September following his arrival at Seattle he began work in this store, giving its location by street and number, and stating that he was helping his father and 'learning Chinese trade-- business, that is-- and selling goods'; that he was selling 'Chinese drugs and general merchandise'; that 'there are quite a few partners in the concern'; that his father was 'buying and selling' in the store; that his 'father's name appeared on the book of that company'; that he knew of his father being in the store for three years after the son's arrival; that he, the son, was in the store 'a little over a year'; that on account of trouble (in the Chinese quarter) his father sent him to Youngstown, where he stayed about a year, taking private lessons from a woman who had married 'a Chinese person.' On cross-examination, he denied having worked in a laundry in Youngstown.

The testimony of these witnesses must be considered in connection with the facts that it was given through a Chinese interpreter, that the translations are more or less confused, and that no attempt was made either to impeach the witnesses or to contradict their testimony. It is worthy of consideration, moreover, that the testimony accords with, if, indeed, it is not corroborated by, the certificate of identification. The certificate was attested and issued by the immigration official in charge of the port of Seattle, pursuant to a regulation governing the admission of Chinese, adopted March 19, 1909, by the Department of Commerce and Labor. ^[1] One provision of the rule enjoined upon the immigration official the duty carefully to observe its instructions 'in issuing such certificates.' The instructions were plain respecting the facts that should be embodied in such a certificate. It is stated in the certificate, as we have seen, that appellant was admitted as a 'minor son of Lew Wah solely because of his status as a merchant'-- i.e., the father's status; and it cannot be assumed that the official failed in the discharge of his duty. No inquiry appears to have been made touching the issue of the certificate, although appellant gave the certificate to a government official at the time of the arrest in Youngstown; and another provision of the rule clearly implies that the government keeps a record of such certificates, for it permits the issue of duplicates of 'those unavoidably lost or destroyed.' Still it is argued that at the time the certificate was issued the father was not a merchant, and that the certificate was obtained through fraudulent representation in that respect. Under the evidence, the argument cannot be sustained. It has no basis save some statements of the witnesses which on first view might seem inconsistent and excite suspicion, but on examination are reconcilable; and simply to suspect, is not to show, the existence of such a fraud. Pang Sho Yin v. United States, 154 F. 660, 662, 83 C.C.A. 484 (C.C.A. 6th Cir.); United States v. Foo Duck, 172 F. 856, 858, 97 C.C.A. 204 (C.C.A. 9th Cir.)

True counsel refer to statements found in the memorandum opinion of the commissioner; as we have seen, no part of the testimony of the witnesses there alluded to appears in the record; and the statements of the commissioner are not admissible and cannot rightfully be imposed upon the appellant. Liu Hop Fong v. United States, 209 U.S. 453, 462, 28 Sup.Ct. 576, 52 L.Ed. 888. Upon the whole, we are satisfied that, at the time of appellant's entry, his father was a merchant, within the meaning of the act of Congress. Tom Hong v. United States, 193 U.S. 517,...