Louie Wah You v. Nagle

• Decision Date: 16 July 1928
• Docket Number: No. 5375.,5375.
• Citation: 27 F.2d 573
• Parties: LOUIE WAH YOU v. NAGLE, Com'r of Immigration.
• Court: U.S. Court of Appeals — Ninth Circuit

27 F.2d 573 (1928)

LOUIE WAH YOU v. NAGLE, Com'r of Immigration.

No. 5375.

Circuit Court of Appeals, Ninth Circuit.

July 16, 1928.

Thomas J. Riordan, of San Francisco, Cal., for appellant.

Geo. J. Hatfield, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal., for appellee.

Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.

RUDKIN, Circuit Judge.

This is an appeal from an order quashing a writ of habeas corpus and remanding the appellant to the custody of the immigration authorities. The appellant made application for admission to the United States, claiming citizenship through his father, under section 1993 of the Revised Statutes (8 USCA § 6). At birth, the appellant was the illegitimate offspring of a citizen of the United States of the Chinese race, who was born in California and maintained his domicile in that state. Counsel concedes that, unless the status of the appellant has been changed since birth, he is not a citizen, and is not entitled to admission. Ng Suey Hi v. Weedin (C. C. A.) 21 F.(2d) 801. But he earnestly insists that the appellant has been legitimated under the laws of California and is therefore a citizen.

The circumstances attending the birth of appellant are as follows: His father married a woman of the Chinese race in San Francisco in 1903, and lived with her as his wife for about two months. In the following year the father visited China, returning to the United States in 1905. During this visit he married a second woman of the Chinese race, whom he has since recognized and maintained as his wife in China. At the time of the second marriage his former wife was still living and undivorced. The father made a second visit to China in 1913, returning in 1914, and a third visit in 1924, returning in 1926. As a result of each of these visits a child was born to the second wife in China; the appellant being the second son, born in 1915.

Section 230 of the Civil Code of California provides: "The father of an illegitimate child, by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as such; and such child is thereupon deemed for all purposes legitimate from the time of its birth."

The construction of this statute is for the California courts, and the construction there adopted is controlling on this court. The rule established by the later decisions of the Supreme Court of that state, while apparently out of harmony with some earlier decisions, is this:

"The court below seems to have acted upon the theory that where the father of an illegitimate child has no family the provision of the code in question in that respect may be dispensed with. This cannot be done. The Legislature adopting section 230 evidently went as far as public policy would justify in this respect, and the language is too plain to be misunderstood. The father of an illegitimate child in order to adopt him as legitimate must not only publicly acknowledge him as his own, but must receive him into his family, and if he have...