United States v. Fong Hong

• Decision Date: 15 May 1916
• Citation: 233 F. 168
• Parties: UNITED STATES v. FONG HONG.
• Court: U.S. District Court — District of New Jersey

233 F. 168

UNITED STATES v. FONG HONG.

United States District Court, D. New Jersey.

May 15, 1916

Proceeding by the United States for the deportation of Fong Hong, a Chinese person. On appeal from the commissioner's order of deportation. Reversed.

Wm. A Gray, of Philadelphia, Pa., for Fong Hong.

Joseph L. Bodine, of Trenton, N.J., for the United States.

RELLSTAB District Judge.

Fong Hong, a Chinese subject, was admitted to this country as a Chinese merchant. He had a certificate to that effect issued and viseed according to the United States laws. In compliance with the 'Regulations Governing the Admission of Chinese' made by the Secretary of Commerce and Labor this certificate was taken by the officer in charge of the port of entry (Boston, Mass.), through which he was admitted. In place thereof a certificate of identity was issued to him by said officer on March 22, 1911, which was in Fong Hong's possession at the time of his arrest.

The government concedes that the certificate taken from Fong Hong, at the time of his entry into this country, was regular in form. Under section 6 of the Act of May 6, 1882 (22 Stat 58, c. 126), as amended by Act July 5, 1884 (23 Stat. 116, c. 220), and continued by Act May 5, 1892 (27 Stat. 25, c. 60), this certificate is made 'prima facie evidence of the facts set forth therein, * * * but said certificate may be controverted and the facts there stated disproved by the United States authorities.'

The government, while contending that the defendant's certificate was procured by fraud, offered no evidence to establish that fact. The defendant's admission to this country, under a merchant's certificate admittedly in due form, placed him in the exempt class, and 'he cannot be deported for having fraudulently entered (the United States), unless there is some competent evidence to overcome the legal effect of the certificate. ' Liu Hop Fong v. U.S., 209 U.S. 453, 28 Sup.Ct. 576, 52 L.Ed. 888. The uncontradicted evidence shows that the defendant was a merchant in China, that he brought with him about $1,500 in money, $500 of which he subsequently invested in the Hop Wah Company, Chinese grocers of Philadelphia, Pa. This investment he still maintained at the time of his arrest. He was not personally employed in conducting that or any other merchandising. For more than two years he performed no manual labor. Then he began to work in a laundry. These facts, however, are not sufficient evidence of fraud to overcome the prima facie effect of said merchant's certificate, and there is no evidence that would justify the conclusion that the defendant's entry into this country as a merchant was a pretense, or that he then belonged to the excluded class.

The government further contends that, even if the defendant was a merchant at the time of his admission into this country, he subsequently became a laundryman, and therefore a laborer, within section 2 of the Act of November 3, 1893 (28 Stat. 7, c. 14), and that thereupon he became subject to deportation. The defendant's contention is that such laundry work as he performed was infrequent, and merely to help out some Chinese friends conducting such laundry, and who at that time were too ill to carry on such work. On this question I am constrained to hold that said laundry work was done by the defendant on his own account.

Is he for that reason subject to deportation? By the treaty between China and the United States, dated November 17, 1880 (22 Stat. 826), it is agreed that:

'Whenever in the opinion of the government of the United States, the coming of Chinese laborers to the United States, or their residence therein, affects or threatens to affect the interests of that country, or to endanger the good order of the said country, or of any locality within the territory thereof, the government of China agrees that the government of the United States may regulate, limit, or suspend such coming or residence, but may not absolutely prohibit it. The

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