Mayo v. United States

• Decision Date: 12 April 1918
• Docket Number: 3198.
• Citation: 251 F. 275
• Parties: MAYO, IMMIGRATION COM'R, et al. v. UNITED STATES ex rel. LEE WONG HIN.
• Court: U.S. Court of Appeals — Fifth Circuit

251 F. 275

MAYO, IMMIGRATION COM'R, et al. v. UNITED STATES ex rel. LEE WONG HIN.

No. 3198.

United States Court of Appeals, Fifth Circuit.

April 12, 1918

Walker Circuit Judge, dissenting.

Appeal from the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge.

Habeas corpus by Lee Wong Hin against John P. Mayo, Commissioner of Immigration, Port of New Orleans, and another. Judgment for relator, and defendants appeal. Affirmed.

See also, 240 F. 368, 153 C.C.A. 294.

ALIENS 21-- EXCLUSION OF CHINESE-- CONSTRUCTION OF STATUTE.

Immigration Act Feb. 5, 1917, construing the third proviso of section 19 and the second proviso of section 38 together, does not apply to a Chinese person against whom deportation proceedings were pending at the time of its taking effect, unless some offense was thereafter committed which changed his status.

Joseph W. Montgomery, U.S. Atty., of New Orleans, La., for appellants.

Nicolas G. Carbajal, W. J. Waguespack, and Herbert W. Waguespack, all of New Orleans, La., for appellee.

Before PARDEE, WALKER, and BATTS, Circuit Judges.

BATTS Circuit Judge.

Prior to the passage of the Immigration Act of February 5, 1917 (39 Stat. 874, c. 29), section 21 of the former Immigration Law (Act Feb. 20, 1907, c. 1134, 34 Stat. 905 (Comp. St. 1916 Sec. 4270)) having been invoked against Lee Wong Hin, he sued out a writ of habeas corpus, which was dismissed by the District Judge. This decision on appeal was reversed (240 F. 368, 153 C.C.A. 294), upon the ground that that Immigration Act had no application to Chinese persons.

Section 38 of the act of 1917 contains a provision to the effect that:

'This act shall not be construed to repeal, alter, or amend existing laws relating to the immigration or exclusion of Chinese persons * * * except as provided in section 19 hereof.'

Section 19 provides for the taking into custody, upon the warrant of the Secretary of Labor, and deportation, of 'any alien who shall have entered or who shall be found in the United States in violation of this act, or in violation of any other law of the United States. ' Section 38 also had a proviso to this effect:

'That nothing contained in this act shall be construed to affect any prosecution, suit, action, or proceedings brought, or any act, thing, or matter, civil or criminal, done or existing at the time of the taking effect of this act, except as mentioned in the third proviso of section 19 hereof; but as to all such prosecutions, suits, actions, proceedings, acts, things, or matters, the laws or parts of laws repealed or amended by this act are hereby continued in force and effect.'

The habeas corpus proceeding heretofore referred to was pending at the time of the passage of the act, and the status of relator as an alien within the United States in violation of the Chinese Exclusion Act existed at that time. Under the terms of the proviso last quoted, no part of the act could apply to the relator, except the third proviso to section 19. This proviso is to this effect:

'That the provisions of this section, with the exceptions hereinbefore noted, shall be applicable to the classes of

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