Lui Hip Chin v. Plummer

• Decision Date: 08 January 1917
• Docket Number: 2841.
• Citation: 238 F. 763
• Parties: LUI HIP CHIN v. PLUMMER, Chinese Immigrant Inspector. Ex parte LUI HIP CHIN.
• Court: U.S. Court of Appeals — Ninth Circuit

238 F. 763

LUI HIP CHIN v. PLUMMER, Chinese Immigrant Inspector.

Ex parte LUI HIP CHIN.

No. 2841.

United States Court of Appeals, Ninth Circuit.

January 8, 1917

Appeal from the District Court of the United States for the Southern Division of the District of Idaho; Frank S. Dietrich, Judge.

In the matter of the application of Lui Hip Chin, an alien, for a writ of habeas corpus against Lorenzo T. Plummer, Chinese Immigrant Inspector in Charge at Helena, Montana. From a judgment denying the writ, applicant appeals. Reversed, and applicant ordered discharged.

The appellant, a Chinese merchant of Canton, China, entered the United States on September 30, 1915, at the port of San Francisco. He exhibited to the immigration authorities certain credentials and a draft drawn by a Canton bank on a bank in San Francisco for the sum of $1,000. He was permitted to land as a merchant, and received the usual certificate of identity. He remained at San Francisco about two months, and then went to Mountain Home, Idaho. He had been there about two months, when he was arrested upon proceedings which resulted in an order for his deportation. He thereupon filed in the court below a petition for a writ of habeas corpus alleging that he had been duly admitted to the United States as a merchant, that the summary hearing which was had before the Chinese immigration inspector was not conducted according to law and the rules and regulations of the Department of Labor of the United States, that the same was unfair and unjust, and that the petitioner had been summarily and arbitrarily deprived of his liberty, that the immigration inspector had grossly abused the discretion vested in him by law and the rules and regulations of the department, and that the evidence at said hearing was incompetent to prove that the petitioner had become a laborer since his arrival in the United States. From the order of the court below denying a writ, the petitioner brings this appeal.

The warrant on which the appellant was arrested charged him with being a Chinese laborer not in the possession of a certificate of residence, and charged that he was found in the United States in violation of section 6 of the Chinese Exclusion Act of July 5, 1884, 'having secured admission under said section, but having become a laborer since admission. ' The warrant for deportation found the appellant to be in the United States in violation of law following precisely the language of the charge in the warrant for arrest.

P. E Cavaney, of Boise, Idaho, for appellant.

J. L. McClear, U.S. Atty., and John R. Smead, Asst. U.S. Atty., both of Boise, Idaho, for appellee.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

GILBERT Circuit Judge (after stating the facts as above).

The evidence that the appellant had performed labor in the United States consisted in testimony that he had, while staying in Mountain Home, worked in the restaurant of his brother, whom he was visiting at that place. He denied that he had received pay for his work, and there was no evidence to the contrary. He admitted that his brother had sent him money to pay his fare to Mountain Home, but he also testified that he had a $500 interest in Fah Wah Company, Dupont street, San Francisco, and that he was in Idaho 'investigating business locations.' The fact that one who has been admitted into the United States as a merchant subsequently becomes a laborer is not in itself ground for his deportation. In re Yew Bing Hi (D.C.) 128 F. 319; United States v. Leo Won Tong (D.C.) 132 F. 190; United States v. Foo Duck, 172 F. 856, 97 C.C.A. 204; United States v. Hom Lin (D.C.) 214 F. 456; Lew Ling Chong v. United States, 222 F. 195, 137 C.C.A. 635; United States v. Fong Hong (D.C.) 233 F. 168; United States v. Lee You Wing, 211 F. 939, 128 C.C.A. 437. But if one who has been admitted on certificate as a merchant immediately on his arrival proceeds to engage in and continues in employment as a laborer, that fact has a strong retroactive bearing as evidence of the intent with which he came. Ong Seen v.

Burnett, 232 F. 850, 147 C.C.A. 44; United States v. Yong Yew (D.C.) 83 F. 832; Chain Chio Fong v. United States, 133 F. 154, 66 C.C.A. 220; Cheung Him Nin v. United States, 133 F. 391, 66 C.C.A. 453.

There was no charge that the appellant entered the United States with the intention of becoming a laborer, or that he procured his certificate as a merchant by means of fraud or misrepresentation. If such fraud or misrepresentation was intended to be relied upon as the ground of his deportation he was entitled to be advised of it. Nor is there anything in the record, aside from the service which he rendered to his brother in Idaho, to suggest that he secured admission to the United States fraudulently, or that he was not a bona fide merchant when he entered, except the casual statement, found in the memorandum decision of the court below, that certain evidence in the case 'creates a suspicion, to say the least, that the claim that he intended to engage in the mercantile business was...