Moy Said Ching v. Tillinghast, 2130.

• Decision Date: 18 October 1927
• Docket Number: No. 2130.,2130.
• Citation: 21 F.2d 810
• Parties: MOY SAID CHING v. TILLINGHAST, Commissioner of Immigration.
• Court: U.S. Court of Appeals — First Circuit

21 F.2d 810 (1927)

MOY SAID CHING v. TILLINGHAST, Commissioner of Immigration.

No. 2130.

Circuit Court of Appeals, First Circuit.

October 18, 1927.

Walter Bates Farr, of Boston, Mass (Everett Flint Damon, of Boston, Mass. on the brief), for appellant.

John W. Schenck, Asst. U. S. Atty., of Boston, Mass. (Frederick H. Tarr, U. S. Atty., of Gloucester, Mass., on the brief), for appellee.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

BINGHAM, Circuit Judge.

This is a petition for a writ of habeas corpus seeking the discharge of Moy Said Ching from the custody of the Commissioner of Immigration at Boston, by whom he is held for deportation to China. In the District Court the petition was dismissed and the writ denied for want of jurisdiction. The case is here on appeal, and the error relied upon is the ruling of the court that the action of the immigration authorities in denying admission of the applicant was not arbitrary or unfair, and therefore it was without jurisdiction to determine the case on its merits. The position of the appellant under this assignment is that the excluding decision of the immigration authorities was opposed by conclusive evidence, was supported by no affirmative evidence, and, such being the case, disclosed a manifest abuse of discretion.

At the hearing before the Immigration Board, it was conceded that Moy Yee Kai, the alleged father, was a citizen of the United States. The only witnesses were the applicant, his alleged father, and one Luey Wing. The issue made by the evidence was whether the applicant was the natural son of Moy Yee Kai or his adopted son. The hearing was held in November, 1926. At that time the applicant testified that he was born March 11, 1895, and was 32 years old; that he was married December 13, 1918; that he had three children, a daughter born November 13, 1920, and twin sons born February 18, 1924; that he had a younger brother Moy Thet Ping, 13 years old, born September 29, 1914; that he had no sister and no other brother, natural or adopted; and no brothers or sisters that had died. He knew nothing about his alleged father having a natural son named Moy Kwok Ying, who died when a baby 6 or 7 months old, K. S. 22 (1896).

The alleged father testified that he was 56 years old and was born in California; that he had made two trips to China, the first one when he was 5 or 6 years old, at which time he remained in China until K. S. 22 (1896), when he returned to the United States; that on his second trip he left the United States in 1913 and returned in 1914, entering at the port of Vancouver; that he was examined at the immigration office in Boston, July 5, 1921, and again September 21, 1925; that he was married when he was 22 years old (1892); that the applicant, Moy Said (Thet) Ching, was his son, who was born in March, 1895; that he had one other son, Moy Thet Ping, 13 years old, born September 21, 1914; that he had no daughters; and that both sons were sons of his blood. Although he at first testified that he had no other children natural or adopted, later, on being asked whether he ever had a son by the name of Moy Kwok Ying, he said he had, but that he was dead; that he died when very small. It further appeared that on May 3, 1913, when he was about to make his second trip to China, he testified before the immigration authorities at Boston that he had one natural son, Moy Kwok Ying, who died when he was a baby 6 or 7 months old, K. S. 22 (1896); that his wife adopted a son, Moy Said Ging, about two years ago (1911); that he received a letter from home saying that the boy was...