Lum v. United States

• Decision Date: 09 January 1909
• Docket Number: 60-1908.
• Citation: 166 F. 106
• Parties: LUI LUM et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Third Circuit

166 F. 106

LUI LUM et al. v. UNITED STATES.

No. 60-1908.

United States Court of Appeals, Third Circuit.

January 9, 1909

Appeal from the District Court of the United States for the District of New Jersey.

Jackson H. Ralston and Robert M. Moore, for appellants.

H. P Lindabury, Asst. U.S. Atty.

Before GRAY and BUFFINGTON, Circuit Judges, and ARCHBALD, District judge.

ARCHBALD District Judge.

The eight Chinamen, who are held in custody by the respondent, as Chinese inspector, were arrested while unlawfully entering the United States from Canada, on March 20, 1908, in the vicinity of Rouse's Point, N.Y., practically at the Canadian line. Being taken to Malone, N.Y., the designated port of entry for Chinese immigrants in that section of the country, and there examined, it was found that they had no right to enter, as they had sought to do, and they were accordingly denied admission and detained by the inspector preparatory, as it is alleged, to returning them to the country from which they came. Before this had been carried out, however, a writ of habeas corpus was sued out in the Circuit Court of the United States for the Northern District of New York on their behalf, on the ground that they were not attempting to enter, but were in fact already in, the United States when arrested, and that they could only be treated or proceeded against in consequence as being unlawfully in the country, requiring a hearing, after due complaint, before a United States commissioner, with a corresponding right of appeal from his decision to the courts, if adverse to their right to remain. This view was not sustained by Judge Ray, by whom the case was heard, and the parties were thereupon remanded to the custody of the inspector, to be dealt with according to law. Ex parte Chow Chok (C.C.) 161 F. 627. And this was affirmed on appeal. Id. (C.C.A.) 163 F 1021.

Instead, however, of returning them to Canada, the country from whence they had come when they were apprehended, the inspector, upon the coming down of the decision, took them to Hoboken, N.J., for the purpose, as is now stated, of deporting them direct to China, the country of their supposed nativity. Being thus brought into a new jurisdiction, another writ of habeas corpus was sued out in the court below, and the point again made that the parties were to be treated as though actually in the United States, when they were arrested, and not simply as attempting to cross the border. This was rightly held by Judge Cross, by whom the case was disposed of, to be res judicata, and not open to further controversy, and so far as that is concerned the appellants have no just cause for complaint. But in remanding the parties to the custody of the inspector the fact was lost sight of that, in addition to the time that they had been detained pending the habeas corpus in the Second circuit, some 21 days had elapsed since the coming down of the mandate of the Circuit Court of Appeals, at the time of applying for the habeas corpus here, and that the inspector, instead of taking them to Canada, as he was bound and had ample time to do, had removed them out of that jurisdiction into this one, for which there was no apparent justification or excuse.

Whether the purpose of this removal was disclosed at the hearing before Judge Cross does not appear; but it is now admitted as already stated, that it was a step in the intended deportation of these parties to China, the right to which, without more, is freely asserted and maintained. To this purpose of the representatives of the government we cannot close our eyes, and whatever disposition we make of the case must be made with that in view. An unqualified affirmance of the order of the court below, remanding them to the custody of the respondent, 'to be dealt with,' in the terms of that order, 'according to law,' would naturally, if not necessarily, under the circumstances, be construed as sustaining the deportation of them; that being the conception entertained by the inspector of his authority and power. But to this we cannot agree. The subject of the deportation of Chinese persons unlawfully within the United States is regulated by numerous acts of Congress, to which it would serve no useful purpose to refer, except to say that, to justify it in any given case, it must be ordered by a United States judge or commissioner, after due complaint and hearing upon the merits, ^[1] with...