Soo Hoo Yee v. United States

• Decision Date: 03 November 1924
• Docket Number: No. 39.,39.
• Citation: 3 F.2d 592
• Parties: SOO HOO YEE v. UNITED STATES et al.
• Court: U.S. Court of Appeals — Second Circuit

3 F.2d 592 (1924)

SOO HOO YEE v. UNITED STATES et al.

No. 39.

Circuit Court of Appeals, Second Circuit.

November 3, 1924.

Everett Flint Damon, of Boston, Mass. (Walter Bates Farr, of Boston, Mass., of counsel), for appellant.

Harry B. Amey, U. S. Atty., of Island Pond, Vt., for appellees.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

ROGERS, Circuit Judge.

This is a deportation proceeding. The appellant is a Chinese person and a laborer, and it is alleged that he is unlawfully within the United States. The proceeding for his deportation was instituted by the Chinese Inspector at Newport in the state of Vermont, who filed a complaint against him, alleging therein that Soo Hoo Yee was in the United States in violation of the Chinese Exclusion Law (Comp. St. § 4320 et seq.). A warrant for his arrest was issued on June 14, 1923, and was executed and returned on the same day. Bail was fixed at $2,500, and was furnished with the National Surety Company as surety. The case finally was set for hearing on June 27, 1923. On that day the alien was present with his witnesses, and asked for a further continuance to enable him to prepare his case. This was refused, and the alien thereupon declined to introduce testimony, and no evidence was presented, either documentary or otherwise, to prove his right to remain in the United States. It was thereupon adjudged and decreed that Soo Hoo Yee be removed from the United States to the country from whence he came, the republic of China. From this order of the United States commissioner an appeal was taken to the United States District Court for the District of Vermont, and the alien was released on bail in the same amount as originally fixed.

The matter was heard before the district judge on November 20, 1923. At this hearing considerable testimony was introduced, and on November 21, 1923, a decree was entered which adjudged that Soo Hoo Yee was not entitled to be or remain in the United States, and ordered his removal to China. It directed the marshal of the district, or either of his deputies, to take the alien into custody and remove him to the country from whence he came, to the republic of China.

From that order an appeal was taken to this court, and the appellant was again admitted to bail in the sum of $2,500.

A proceeding for the deportation of a Chinese person found in the United States and thought to be here unlawfully is commenced before a United States commissioner. But an appeal lies from his decision to the District Court, and in that court the trial is de novo. Liu Hop Fong v. United States, 209 U. S. 453, 28 S. Ct. 576, 52 L. Ed. 888; Ng Fung Ho v. White, 259 U. S. 276, 283, 42 S. Ct. 492, 66 L. Ed. 938. The fact that the appellant submitted no testimony before the commissioner but directly appealed his case to the District Court, which heard it de novo, involves no error. It was within his rights if he preferred such procedure.

The Constitution provides that all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States (the Fourteenth Amendment). While under the naturalization laws of the United States no provision is made for the naturalization of persons of the Mongolian race, it is clear that a person of that race is a citizen of the United States if he is born within this country of parents who are subject to the jurisdiction thereof. In United States v. Wong Kim Ark, 169 U. S. 649, 18 S. Ct. 456, 42 L. Ed. 890, it was held that a child born in the United States of parents of Chinese descent who at the time of his birth are subjects of the Emperor of the China, but have a permanent domicile in the United States, and are there carrying on business and are not employed in any diplomatic or official capacity by the government of China, becomes at the time of his birth a citizen of the United States.

It has been held in many cases that, where a Chinese person's right to be in the United States is challenged, the burden of proof is upon him to show his right to remain in this country.¹ But there are other cases in which it has been held that, where a Chinaman claims to have been born in the United States, and is a citizen thereof, and is found in the United States, and the government seeks to deport him, it must establish its right to do so, and the burden is upon it to establish its case in the usual and ordinary way. "No rule of evidence may fritter it away."²

But in Chin Bak Kan v. United States, 186 U. S. 193, 198, 22 S. Ct. 891, 894 (46 L. Ed. 1121), the Supreme Court, referring to the statute, declared that "by the law the Chinese person must be adjudged unlawfully within the United States unless he `shall establish by affirmative proof, to the satisfaction of such justice, judge, or commissioner, his lawful right to remain in the United States.' As applied to aliens there is no question of the validity of that provision, and the treaty, the legislation, and the circumstances considered, compliance with its requirements cannot be avoided by the mere assertion of citizenship. The facts on which such a claim is rested must be made to appear."

A Chinese person who is found in the United States and claims a right to remain because he is a citizen is entitled to have his right determined not in an administrative but in a judicial proceeding. United States v. Woo Jan, 245 U. S. 552, 556, 38 S. Ct. 207, 62 L. Ed. 466. And this is the right of a Chinese person who claims to have been born in the United States and to have left it with the intention of returning. White v. Chin Fong, 253 U. S. 90, 93, 40 S. Ct. 449, 64 L. Ed. 797. And see Ng Fung Ho v. White, 259 U. S. 276, 284, 42 S. Ct. 492, 66 L. Ed. 938.

But in this case it seems to us immaterial whether the burden of proving his citizenship rested on Soo Hoo Yee or did not inasmuch as it appears to us that the facts on which his claim of citizenship rests have been established by the proof. The fact of his birth in this country of Chinese parents who resided and carried on business here at that time, and for some years thereafter, has been satisfactorily shown. There is no evidence in the record to contradict the testimony which he gave on that subject and which is substantiated by other witnesses.

In the District Court Soo Hoo Yee was examined at some length. He stated that he was born in San Jose in the state of California and was 45 years old; that he lived in San Jose about 9 years, when he went to China, embarking from San Francisco, accompanying his father, mother, uncle, and brother; that he remained in China until he was 22 years of age, and then returned to the United States in 1900 with his brother; that his uncle returned to this country, having preceded him, but his father remained in China; that on returning he arrived at Vancouver, going from there to Montreal, and then to Malone in the state of New York. At that place he was arrested, and had a hearing at which he was discharged from custody. He then went to Boston, where he remained for 5 years, when in 1906 he returned to China, and while there married. He came back to the United States in 1923, having arrived at Vancouver, going from there to Montreal, and from that place crossed the Vermont line into the United States in an automobile which he left about 6 o'clock in the evening. He slept in the woods that night, and in the morning walked to Cambridge Junction, where he took a train for St. Johnsbury, Vt., and upon his arrival there was arrested and taken before the United States commissioner.

Slu Hoo Fook, a Chinese person living at Melrose, in Massachusetts, where he had resided for 13 years, testified. He had known Soo Hoo Yee ever since he was 4 years of age, and Soo Hoo Yee's brother, father, and mother. He became acquainted with them in China on their return from this country, and declared that the father of Yoo Hee told him that the latter was born in California. This witness testified that when he himself came to the United States he landed at Vancouver, went on from there to Montreal, and from there to Malone, New York, where he was arrested and detained as being unlawfully in the United States, and that he there saw also in the detention house at Malone Soo Hoo Yee, who was held there under a like charge, and that this was in January, 1901. This testimony, if it be true, and it is not contradicted, identifies the appellant as being the Soo Hoo Yee in a deportation proceeding against one of that name in the Northern District of New York in January, 1901, and which resulted in his discharge.

The proceedings above referred to will now be considered. The appellant introduced in the court below a certificate made by the clerk of the United States District Court for the Northern District of New York and under the seal of the court certifying to the docket entries in Re United States v. Soo Hoo Yee, taken from the docket of the United States commissioner in that district on file in the clerk's office, and that the transcript certified was a correct copy of the original entries. He also certified to a transcript of testimony given in that proceeding, to which we shall subsequently refer, and to the final disposition made of that proceeding.

In You Fook Hing v. United States, 214 F. 77, 130 C. C. A. 517, this court had before it the certificate of a United States commissioner that a Chinese person had a full hearing before him and was adjudged to be lawfully in the United States by reason of being a citizen thereof. We held that this certificate was not competent proof either of the alleged hearing or of the decision, and should not have been received in evidence. This decision was in accordance with the decision of the Supreme Court in Ah How v. United States, 193 U. S. 65, 24 S. Ct. 357, 48 L. Ed. 619, where it was held that a written statement by a United States commissioner that a person having the same name as the Chinese person in the case then...