United States v. Hom Lim

• Decision Date: 13 April 1915
• Docket Number: 213.
• Citation: 223 F. 520
• Parties: UNITED STATES v. HOM LIM.
• Court: U.S. Court of Appeals — Second Circuit

223 F. 520

UNITED STATES v. HOM LIM.

No. 213.

United States Court of Appeals, Second Circuit.

April 13, 1915

Appeal from the District Court of the United States for the Eastern District of New York.

L. R Bick, Asst. U.S. Atty., of Brooklyn, N.Y., for the United states.

M. J Kohler, of New York City, for appellee.

Before LACOMBE, COXE, and ROGERS, Circuit Judges.

LACOMBE Circuit Judge.

The United States Chinese and immigrant inspector went to a Chinese laundry at 610 Fulton street, Brooklyn, having with him the government interpreter and stenographer, in search of a Chinese person named Ing So, whom he did not find. He did find this defendant, Hom Lim, concededly of Chinese descent who was working in the laundry. He questioned him through the interpreter, and the stenographer recorded the conversation. Defendant stated that he was born in the United States, but that he did not know where; that some cousins could prove where he was born. Asked where they were, he said he had heard some one mention it, but he did not know who. Asked if he had ever been arrested and discharged by a United States commissioner, he answered he didn't remember; he would have to ask 'some cousins.' Having testified that his father died about 20 years ago, he was asked where he died, and answered in the United States. Asked whereabouts in the United States, he answered he did not remember. Asked with whom he lived after his father and mother died, he did not remember. Asked who was the first person he remembered living with, he answered he stayed in the Yee Hing store most of the time. Afterwards, when his testimony was read over to him for correction, he said he wished to change his statement that he lived in Yee Hing Company, and that he meant he just made calls there. Asked if he remembered ever having lived with a Chinese or American family since his birth, he said he stayed with his cousins. Asked where he stayed with them, he said in the Yee Hing Company. Asked where he stayed with them in the store, he said he went to work with his cousins in different places. Asked if he could give the address of any one of those places, he said 'No.' Thereupon the inspector arrested him and took him before a United States commissioner. Examination was had before the commissioner, defendant being represented by counsel, and several witnesses were examined. The commissioner held that he was not born in the United States and should be deported to China.

Appeal was taken to the District Court, where apparently none of the witnesses who had appeared before the commissioner were produced or examined. The record before the commissioner was submitted, and one additional witness was examined. This was a lady who had taught Hom Lim in Sunday school in the summer of 1904 or 1905 and had seen him at intervals since that time. Her testimony in no way related to the question of his birthplace. Judge Chatfield held that Hom Lim was born in the United States and entitled to remain therein. He reversed the order of the commissioner. It is quite apparent from the record and from his opinion that this disposition of the cause was made on the theory that the government had the burden of proof.

Counsel for defendant contends that since Hom Lim asserted, when questioned under oath, that he was born in the United States, the inspector acted without legal authority in taking him before the commissioner, without first having obtained a warrant upon affirmative testimony produced by the government showing that he was not born in the United States; also that in the case of a Chinese person who asserts that he has never been out of the United States the burden is on the government to prove that he was not born here. Authorities in support of this contention are cited on the brief. Moy Suey v. U.S., 147 F. 697, 78 C.C.A. 85; Gee Cue Bing v. U.S., 184 F. 383, 106 C.C.A. 493. But we cannot assent to these propositions.

Congress has provided a procedure whereby a person of Chinese descent apparently a laborer, who, upon being interrogated by the inspector, produces no certificate such as the statutes call for, shall be brought before a United States commissioner for examination as to his status. Upon such examination the burden of proof is on the Chinese person to satisfy the commissioner or the reviewing court that he is entitled to...