United States v. Foo Duck

• Decision Date: 11 July 1908
• Docket Number: 1,242.
• Citation: 163 F. 440
• Parties: UNITED STATES v. FOO DUCK.
• Court: U.S. Court of Appeals — Ninth Circuit

163 F. 440

UNITED STATES v. FOO DUCK.

No. 1,242.

United States District Court, D. Montana.

July 11, 1908

James W. Freeman, U.S. Atty., and J. Miller Smith, Asst. U.S. Atty.

Thomas C. Marshall, for defendant.

HUNT District Judge.

Appeal from an order of deportation made by the United States Commissioner at Missoula, Mont.

The facts, as agreed upon by the United States attorney and counsel representing the defendant, a Chinaman, are substantially as follows: The father of the defendant is a Chinaman, a merchant, in Missoula, Mont., and has been engaged in the mercantile business in that city for over 15 years. The defendant is now over 23 years old. He arrived in the United States in May, 1901, when he was over 16 years old. He has a certificate issued under the treaty between the United States and China, and in apparent conformity with section 6 of the act of Congress approved July 5, 1884 (23 Stat. 116, c. 220 (U.S. Comp. St. 1901, p. 1307)). In this certificate he gave his former and present occupation as student. After the defendant arrived in Missoula, he worked as a cook and waiter at different times for several years. Part of the time he was helping the matron at the University of Montana, which is situated in Missoula, and while in this position, with the aid of the matron, he studied the English language, and learned to speak and read and write the same. He speaks English quite well, wears short hair, dresses as an American, and has evidently studied considerably.

As no question of fraud is in the case, the point for decision is this: Where a minor comes to the United States from China for the purpose of joining his father, who is a merchant lawfully domiciled in the United States, and thereafter, during his minority, such minor labors and studies in the United States is he entitled to remain in the United States after attaining his majority, or is he liable to deportation? In my opinion such a person is lawfully entitled to remain within the United States. The boy, while a minor, acquired a right of domicile by virtue of his father having such a right; that is, the father's domicile being in this country, as the parent, he had a right to have his minor child enter. Ex parte Fong Yim (D.C.) 134 F. 938. This right was independent of any provision for certificate or compliance with other provisions of the law.

U.S v. Mrs. Gue Lim, 176 U.S. 459, 20 Sup.Ct. 415, 44 L.Ed 544. The minor really had no occupation when he entered hence was not within the purview of section 6, relating to those who must obtain certificates. The reasoning which led to the construction of the statute whereby it was decided that the wife of one who is himself entitled to enter may enter without any certificate is applicable also to the case of a minor child of one so entitled to enter. Both are natural and lawful dependents upon the one who may lawfully have established...