Mar Yen Wing v. United States

• Decision Date: 10 July 1934
• Docket Number: No. 7133.,7133.
• Parties: MAR YEN WING v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

72 F.2d 158 (1934)

MAR YEN WING v. UNITED STATES.

No. 7133.

Circuit Court of Appeals, Ninth Circuit.

July 10, 1934.

Stephen M. White, of San Francisco, Cal., for appellant.

H. H. McPike, U. S. Atty., and Robert L. McWilliams, Asst. U. S. Atty., both of San Francisco, Cal. (Arthur J. Phelan, of San Francisco, Cal., U. S. Immigration and Naturalization Service, on the brief), for the United States.

Before WILBUR, SAWTELLE, and GARRECHT, Circuit Judges.

SAWTELLE, Circuit Judge.

This is an appeal from an order of deportation. The prosecution was under the Chinese Exclusion Laws (section 13, Act of September 13, 1888, as amended, 8 USCA § 282). After hearing on a complaint filed with a United States commissioner, appellant, a native and citizen of China, was ordered deported on the ground, as charged in the complaint, that he is unlawfully in the United States "without a certificate of residence and without the certificate required by the Act of May 6, 1882, § 6, as amended (8 USCA § 265)." From the order of deportation entered by the United States commissioner, an appeal was taken to the District Court, which court, after a trial de novo, entered a judgment and order of deportation.

On the present appeal, a preliminary question of jurisdiction is presented, to wit: Alleged error on the part of the District Court in overruling appellant's motion entitled, "Plea to jurisdiction of court and motion for dismissal of proceedings." The motion was based on the ground that the jurisdiction to deport a Chinese alien who has entered or been found in the United States in violation of the Chinese Exclusion Laws is vested exclusively in the Secretary of Labor, and not in the courts; or, in other words, that the enactment of section 19 of the Immigration Act of 1917 (8 USCA § 155) — which empowered the Secretary of Labor to deport by administrative proceedings, within five years after entry, aliens who have entered or have been found in the United States in violation of law — divested the judiciary of the jurisdiction given to it by the Chinese Exclusion Laws.

In our opinion, the Immigration Act of 1917 does not warrant such a construction. Section 38 (8 USCA § 178) provides that the act "shall not be construed to repeal, alter, or amend existing laws relating to the immigration or exclusion of Chinese persons or persons of Chinese descent," except as provided in section 19. We think the manifest purpose of section 19 was to give to the Secretary of Labor the power to deport, within five years after entry, aliens found to be here in violation of law; and that, as to aliens who entered beyond the five-year period, the power to deport remains where and as it was vested prior to the passage of the act; namely, in the courts. Wong Chung v. United States (C. C. A. 9) 244 F. 410.

Appellant claims to have entered the United States about eight years prior to the commencement of the deportation proceedings. To adopt his interpretation of the act would prevent the government from deporting him, and many other aliens similarly situated, because of the five-year limitation on the Secretary's authority. "No lapse of time will bar an action for deportation under the Chinese Exclusion Act." Ah Lin v. United States (C. C. A. 1) 20 F.(2d) 107, 109.

The motion to dismiss was properly denied.

The complaint charged that appellant is unlawfully in the United States without a certificate of residence, as required of Chinese laborers by section 6 of the Act of May 5, 1892, 8 USCA § 287, and without a certificate of identity, or a "Section 6" certificate, as required by section 6 of the Act of May 6, 1882, 8 USCA § 265. The latter section applies to "Every Chinese person, other than a laborer, who may be entitled to come" here; in other words, to members of an exempt class, such as merchants, teachers, students, etc.

Appellant claims to have been admitted to the United States at the port of Seattle, Wash., on November 14, 1923, as a member of an exempt class, to wit, a teacher, and he produced a section 6 certificate identifying him as such. The certificate was viséed at the American consulate general on September 29, 1923, and bears the stamp of admission of the United States Immigration Service at Seattle, dated November 14, 1923.

The government contended, and the commissioner and the District Court found, that the certificate produced by appellant is spurious; that appellant is not the person to whom the certificate was in fact issued, but that he fraudulently altered the certificate by erasing the name of the person to whom it was actually issued (Mar In Jung) and substituting his own name (Mar Yen Wing) and picture thereon.

The government does not concede that appellant is the person who was duly admitted to the United States on the section 6 certificate in question, claiming that Mar In Jung was so admitted. However, there is testimony that the Chinese characters representing the name Mar Yen Wing also represent, in some dialects, the name Mar In Jung or Yung. There is also the testimony of a handwriting expert that appellant's signature corresponds with the signature on the immigration records at Seattle.

The right of an alien Chinese to enter or remain in the United States, as a member of an exempt class, depends upon his possession of a valid section 6 certificate; the possession of which is prima facie evidence of his right to be here. Wan Shing v. United States, 140 U. S. 424, 427, 428, 11 S. Ct. 729, 35 L. Ed. 503; Ex parte Wong Gar Wah (C. C. A. 9) 18 F.(2d) 250, 251; Moy Kong Chiu v. United States (C. C. A. 7), 246 F. 94, 96, 97. But "the prima facie character of such a certificate may be overcome by competent evidence that it was fraudulently obtained." Moy Kong Chiu v. United States, supra.

The controlling question in this case is the genuineness of the certificate in question; that is, was it in fact issued to appellant, as he claims, or was it, as found by the commissioner and by the District Court, on trial de novo, issued to a person other than appellant?

In reviewing the evidence, we must bear in mind "the established rule for this court * * * in a deportation proceeding under the Chinese Exclusion Laws that the judgment of the District Court should not be interfered with, unless the case shows clearly that an incorrect conclusion has been reached." Mar Sing v. United States (C. C. A. 9) 137 F. 875, 876. Or, as said by the Supreme...