Mar Bing Guey v. U.S.

• Decision Date: 01 November 1899
• Citation: 97 F. 576
• Parties: March BING GUEY v. UNITED STATES.
• Court: U.S. District Court — Western District of Texas

97 F. 576

March BING GUEY v. UNITED STATES.

United States District Court, W.D. Texas.

November 1, 1899

Richard F. Burges, for appellant.

Henry Terrell, Dist. Atty., and A. G. Foster, Asst. Dist. Atty for the United States.

This case is on appeal from the decision of the United States commissioner at El Paso ordering the deportation of the appellant, Mar Bing Guey, to China, for being unlawfully in the United States.

On the 10th day of June, 1899, Mar Wing Joh, the father of the appellant, made application to the collector of customs at El Paso, Tex., for the admission of his son into the United States. The application was predicated upon the affidavit of two citizens, Parker and McPhetridge, and the affidavits of Mr Wing Joh and Mar Bon. The affidavit of Parker and McPhetridge is as follows: 'Whereas, Mar Wing Joh, a Chinese resident of the city of El Paso and state of Texas, a correct photographic likeness of whom appears upon this page is desirous of establishing his status as Chinese merchant to the end that his son, Mar Bing Guey, may be permitted to enter the United States of America for the purpose of joining his father: Now, therefore, we, the undersigned residents of the city of El Paso, and citizens of the United States, do solemnly swear that we are personally well acquainted with the said Mar Wing Joh, and that we have been so acquainted with him for more than five years last past; that he was for several years a member of the firm of Woey Gee & Co., Chinese merchants doing business at the corner of Oregon and Second streets in El Paso, and that he is now a Chinese merchant and a member of the firm of Hong Chun & Co., recently organized, and doing business at 117 Second street, in El Paso, Texas; and we do further swear that we have reason to believe and do believe that the interest of the said Mar Wing Joh in said mercantile business is of the value of one thousand dollars. ' Mar Wing Joh made affidavit to the following statement: 'I, Mar Wing Joh, do solemnly swear that Mar bing Guey, a correct photographic likeness of whom appears on this sheet, is my lawful son, and that he was born in the village of Nan Yong, in the province of Kwang Tung, in the empire of China; that he was born on the 15th day of May, eighteen hundred and eighty-eight; that his mother is now dead; that I have been a resident of the city of El Paso and state of Texas for about eleven years last past. I do further solemnly swear that I am a Chinese merchant, and a member of the firm of Hong Chun & Co., recently organized, and doing business at No. 117 Second street, in the city of El Paso, Texas, and that my interest in the said mercantile business is of the reasonable value of more than one thousand dollars; that for several years previous to the formation of the firm of Hong Chun & Co. I was a member of the firm of Woey Gee & Co., a firm carrying on a general Chinese merchandise business at the corner of Oregon and Second Sts., in El Paso, Texas, which said firm is since dissolved. I further solemnly swear that the said Mar Bing Guey is without any other lawful guardian and custodian than myself. ' The affidavit of Mar Bon will be pretermitted, as it is not regarded as material. On the date of the presentation of the application the collector permitted the appellant to enter the United States pursuant to the following indorsement made by him on the papers: 'Admitted on within evidence this 10th day of June, A.D. 1899. ' Upon further investigation into the facts of the case, the collector concluded to revoke his action granting the appellant permission to enter, and on July 29, 1899,-- the date of the appellant's arrest for being unlawfully in the United States,-- he made the following indorsement on the affidavits: 'On reinvestigation of within case, it is found the within evidence is not true, and permission to enter is hereby revoked. ' Accompanying the record is a certificate of residence in the usual form issued to Mar Wing Poh-- intended for Mar Wing Joh-- as a laborer by the collector of internal revenue of the Third district of Texas on the 29th day of January, 1894. The remaining material facts which have been agreed to by counsel are substantially: (1) That the appellant is a native of China, the son of Mar Wing Joh, and was born May 15, 1888; (2) that Mar Wing Joh has resided in El Paso since the year 1888, and that the certificate issued to him is a genuine laborer's certificate; (3) that Mar Wing Joh was formerly a member of the firm of Woey Gee & Co., general Chinese merchants doing business in El Paso, Tex., and remained a member of said firm until its dissolution in 1896; that in 1898 he became a member of the firm of Hong Chun & Co., general Chinese merchants doing business in El Paso, and is a member of said firm at the present time; (4) that since 1892 Mar Wing Joh has not actively engaged in conducting such business of merchandising, and has not been about said stores engaged in buying and selling merchandise; that he owns a one-third interest in the restaurant known as the 'Union Kitchen,' and is the head cook in it, and that he has been cooking since the date of the issuance to him of his certificate of residence; (5) that shortly after the entrance of the appellant into the United States his father placed him in a night school, where he is being taught reading and writing in English, and he has been in regular attendance upon said school up to the date of his arrest; (6) the appellant has not been engaged in any manual labor; his mother died about one year ago, and after her death he left China, and came to Juarez, Mexico. He has never been in the United States before.

MAXEY, District Judge, after stating the facts as above, delivered the following opinion:

It appears from the foregoing statement that it was the purpose of Mar Wing Joh, in submitting affidavits to the collector of customs, to establish his status as a merchant, with the view of securing the admission of the appellant into the United States. The appellant had never before been in this country, and the father doubtless entertained the view that, with his own status as a merchant established to the satisfaction of the collector, such status would be imputed to his minor child, and that he could enter without obtaining the certificate required by the sixth section of the act of July 5, 1884 (23 Stat. 116, 117). And it is contended by counsel for the appellant that, the collector having permitted the appellant to enter upon the evidence submitted to him, he was thereafter lawfully in the country, and it was beyond the power of the collector to revoke the permission to enter previously granted. In view of the conclusion reached by the court other questions presented by the record, it is not deemed important to determine whether the collector had authority to recall his previous action; and, leaving that question for future consideration, the court will assume that when the appellant was arrested for being unlawfully in the country he was here by permission of the collector. But the action of the collector was not final. The court may still inquire whether the appellant was lawfully in the country, and, if unlawfully here, it is the duty of the court to deport him. The principle is clearly stated by Judge De Haven in the case of U.S. v. Lau Sun Ho (D.C.) 85 F. 423, 424, in the following language:

'But the action of a collector of

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