United States v. Goon Bon June
| Decision Date | 17 May 1927 |
| Docket Number | No. 2076.,2076. |
| Citation | 19 F.2d 333 |
| Parties | UNITED STATES v. GOON BON JUNE. |
| Court | U.S. Court of Appeals — First Circuit |
John W. Schenck, Asst. U. S. Atty., of Boston, Mass. (Frederick H. Tarr, U. S. Atty., of Gloucester, Mass., on the brief), for the United States.
Everett Flint Damon, of Boston, Mass. (Walter Bates Farr, of Boston, Mass., on the brief), for appellee.
Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.
This is an appeal by the United States from a decree of the District Court for the District of Massachusetts vacating an order of a United States commissioner for the deportation of a Chinese person who claimed to be an American citizen by birth.
The question presented is whether there was competent evidence upon which the District Court could find that he was born in the United States.
The burden of proof was on the Chinese person to prove that he was born in the United States of parents domiciled and having a permanent residence here. Chin Bak Kan v. United States, 186 U. S. 193, 22 S. Ct. 891, 46 L. Ed. 1121; Jung See v. Nash (C. C. A.) 4 F.(2d) 639; Christy v. Leong Don (C. C. A.) 5 F.(2d) 135; Chin Lund v. United States (C. C. A.) 9 F.(2d) 283, and cases there cited.
He testified that he was told by his parents that he was born in San Francisco; that at the age of 2 years he removed with his parents to China and remained there until 1896, when, at the age of 17 years, he came to Vancouver, British Columbia, and thence to Montreal, and after spending a few days in Montreal, in company with eight or nine other Chinese, attempted to enter the United States. He was arrested and taken before United States Commissioner McGettrick at St. Albans, Vt., by whom, he testified, he was discharged.
Only one witness, a Chinese, testified in corroboration of his claim that he was born in this country; his testimony being that he was told by some one, after Goon Bon June had come to Boston, where he first knew him, that he was born in this country; but the witness could not give the name of the person who had given him this information.
It has been repeatedly held that the mere assertion of citizenship is not sufficient, but that the facts on which such claim is rested must be made to appear. See Soo Hoo Yee v. United States (C. C. A.) 3 F.(2d) 592; Chin Bak Kan v. United States, supra.
To support the claim of citizenship, however, counsel for Goon Bon June relied mainly upon what he claimed to be a copy of a record in the District Court of the District of Vermont of a fee bill of United States Commissioner McGettrick. This, under objection, was admitted in evidence. The copy of the fee bill contains the statement of the commissioner that, after a full hearing, a Chinese by the name of Goon Bon June was discharged; but the ground of discharge is not stated.
A copy of the complaint and warrant, in which one Goon Bon June was the defendant, and which was filed in the District Court of Vermont after the death of the commissioner, was also received in evidence; but no transcript of the testimony before the commissioner was filed with it, nor copy of the judgment rendered by him. Commissioner McGettrick having died before the hearing in this case in the court below, his testimony at a hearing in another case was introduced in evidence under the Massachusetts law, which permits the receipt in evidence of statements made by a deceased person. This statement made by the commissioner was, in substance, that in any case where he issued a certificate of discharge it was on the ground that the Chinese person was born in this country.
In Ah How v. United States, 193 U. S. 65, 24 S. Ct. 357, 48 L. Ed. 619, the Supreme Court has held that a written statement by a commissioner that a Chinese person was brought before him on the usual charge, and adjudged to have the right to remain in the United States by reason of being a citizen, is not the certificate of evidence required by the act of 1892 (Comp. St. §§ 4315-4323), and is not evidence of a judgment.
In United States v. Lew Poy Dew, 119 F. 786, Judge Ray, in the District Court, in a very comprehensive and illuminating opinion, which is cited by the Supreme Court in the Ah How case, held that written statements of a United States commissioner are not competent evidence of the facts cited therein and do not constitute a judgment.
In You Fook Hing v. United States, 214 F. 77 (C. C. A. Second Circuit), the court held that a certificate of a United States commissioner, stating that Hing had had a full hearing before him as United States commissioner and was adjudged to be lawfully in the United States by reason of being a citizen thereof, was not competent proof, either of the alleged hearing, or of the decision, citing United States v. Lew Poy Dew, supra, and Ah How v. United States, supra.
While counsel recognizes the binding force of these decisions as applied to a certificate of a United States commissioner, he contends that the certified copies received from the clerk of the United States District Court for the District of Vermont, under the seal of the court, were copies of records of that court, or of the records of the United States commissioner.
By act of February 22, 1875, c. 95, § 1 (Comp. Stat. 1916, § 1417), it is provided:
"United States commissioners shall forward their accounts, duly verified by oath, to the district attorneys of their respective districts, by whom they shall be submitted for approval in open court, and the court shall pass upon the same in the manner aforesaid."
The account, or the bill, submitted by the United States commissioner, as above pointed out contained a statement of services which he had performed in the case of Goon Bon June.
The recital of a discharge in the fee bill was in no sense a judgment, and under the decision in the Ah How case was not competent evidence of citizenship. If not competent when made by the commissioner in a written certificate of discharge, the fact that it was made by him in the account which he presented as a voucher in support of his...
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