Mok Nuey Tau v. White

• Decision Date: 20 August 1917
• Docket Number: 2944.
• Citation: 244 F. 742
• Parties: MOK NUEY TAU v. WHITE, Immigration Commissioner.
• Court: U.S. Court of Appeals — Ninth Circuit

244 F. 742

MOK NUEY TAU v. WHITE, Immigration Commissioner.

No. 2944.

United States Court of Appeals, Ninth Circuit.

August 20, 1917

Rehearing Denied October 8, 1917.

Appeal from the District Court of the United States for the First Division of the Northern District of California; Maurice T Dooling, Judge.

Habeas corpus proceedings by Mok Nuey Tau against Edward White Commissioner of Immigration for the Port of San Francisco. From an order denying his petition, petitioner appeals. Affirmed.

Proceedings for deportation of a Chinese person held not unfair, and an order of deportation held sustained by the evidence.

Geo. A McGowan, of San Francisco, Cal., for appellant.

John W Preston, U.S. Atty., and Casper A. Ornbaun, Asst. U.S. Atty., both of San Francisco, Cal., for appellee.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

GILBERT Circuit Judge.

On November 9, 1915, the appellant, then nine years of age was admitted to the United States as the foreign-born son of Mock Juck, who was a native-born citizen of the United States residing at Oakland, Cal. A month after his arrival he went from San Francisco to the state of Alabama, where seven months later he was arrested on the executive warrant of the Secretary of Labor and was ordered deported on the ground that he was an alien found in the United States in violation of the act of February 20, 1907, as amended by the act of March 26, 1910 (36 Stat. 263, c. 128 (Comp. St. 1916, Secs. 4244, 4247)). He appeals from the order of the court below sustaining a demurrer to his petition for a writ of habeas corpus.

It is contended on behalf of the appellant that if he is illegally in the United States he is entitled to have that fact determined by the judicial branch of the government, and that the Secretary of Labor is without jurisdiction. The contention cannot be sustained. In United States v. Wong You, 223 U.S. 67, 32 Sup.Ct. 195, 56 L.Ed. 354, it was held that Chinamen who had entered the United States surreptitiously, in a manner prohibited by section 36 of the Immigration Act of February 20, 1907 (Comp. St. 1916, Sec. 4285), were subject to be deported by the Secretary of Commerce and Labor under the provisions of that act. Section 20 of the act provides that any alien who shall enter the United States in violation of law shall, upon the warrant of the Secretary of Commerce and Labor, be taken into custody and deported to the country whence he came, at any time within three years after the date of his entry into the United States. The appellant, if the charge is true that he 'secured admission by fraud, not having been, at the time of entry, the minor son of a member of the exempt classes,' came in violation of that section of the Immigration Act of 1907, and is subject to deportation as provided in that act. Backus v. Owe Sam Goon, 235 F. 847, 149 C.C.A. 159.

It is contended that the hearing was unfair, in that no opportunity was given the appellant to be represented by counsel until after he had been subjected to an examination. It appears that at the close of his examination the appellant was informed that the warrant of arrest provided that he might be released on a bond in the sum of $1,000, and he was asked if he had friends who would give the bond. He answered 'Yes, Loo Yut is looking after that for me. ' And when he was informed that he had the right to be represented by an attorney, and asked if he wished to avail himself of that...