United States v. Hom Lim

• Decision Date: 22 May 1914
• Citation: 214 F. 456
• Parties: UNITED STATES v. HOM LIM et al.
• Court: U.S. District Court — Eastern District of New York

214 F. 456

UNITED STATES v. HOM LIM et al.

United States District Court, E.D. New York.

May 22, 1914

[Copyrighted Material Omitted]

William J. Youngs, U.S. Atty., of Brooklyn, N.Y. (Reuben Wilson, of Brooklyn, N.Y., of counsel), for the United States.

Max J Kohler, of New York City, for defendant Hom Lim.

James A. Donegan, of New York City, for defendants Quan Wah and Lou Chu.

William Austin Moore, of Brooklyn, N.Y., for defendant Lee Chee.

Amy Wren, of Brooklyn, N.Y., for defendant Wong Bit Hing.

CHATFIELD District Judge.

The law of Congress of May 6, 1882 (22 Stat. 58, c. 126), amended and added to by the act of July 5, 1884 (23 Stat. 115, c. 220 (U.S. Comp. St. 1901, p. 1305)), provides that for ten years thereafter 'the coming of Chinese laborers to the United States be suspended,' and provides that 'it shall not be lawful for any Chinese laborer to come from any foreign port or place, or having so come to remain within the United States.'

By section 3 of this act, Chinese laborers in the United States upon November 17, 1880, or coming within 90 days after May 6 1882, and, by section 6, every Chinese person, other than a laborer, coming to the United States, shall obtain the permission and be identified by the Chinese or other foreign government of which the Chinese person shall be a subject.

Certain provisions regulate the landing of Chinese passengers and the reporting of such passengers by the masters of vessels, and the bringing in of a person not lawfully entitled to enter is made a misdemeanor.

By section 12, the coming of a Chinese person by land is prohibited, except upon the production of such certificate as would be required if landing from a vessel. Any Chinese person found unlawfully within the United States shall be caused to be removed therefrom to the country from whence he came, after having been brought before some justice, judge, or commissioner of a court of the United States and found to be one not lawfully entitled, etc. All peace officers of the several states and territories of the United States are hereby invested with the same authority as a marshal or United States marshal in reference to carrying out the provisions of this act.

By section 15, the provisions of the act are made to apply to all subjects of China and Chinese, whether subjects of China or 'any other foreign power'; and the words 'Chinese laborers' shall be construed to mean both skilled and unskilled laborers.

This law was passed under authority of a treaty made November 17, 1880 (22 Stat. 826), by which the coming of Chinese laborers to the United States, or their residence therein, may be regulated, limited, or suspended, but not absolutely prohibited. The suspension of immigration is to apply only to Chinese who 'may go to the United States as laborers.'

By article 2, Chinese subjects, such as teachers, students, merchants, or travelers, and Chinese laborers who were already in the United States, are to be allowed to go and come, with the same rights and privileges which are accorded to the citizens and subjects of the most favored nation.

By the act of September 13, 1888 (25 Stat. 476, c. 1015 (U.S. Comp. St. 1901, p. 1312)), re-enacted by the act of April 27, 1904 (33 Stat. 428, c. 1630 (U.S. Comp. St. Supp. 1911, p. 524)), a Chinese laborer who left the United States could not return except under certain conditions, and after presenting a certificate which he had to obtain upon leaving.

By section 13 of this law, 'any Chinese person or person of Chinese descent, found unlawfully in the United States, or its territories, may be arrested ' upon a complaint, under oath, of any party, upon a warrant issued by a justice, judge, or commissioner of the United States court, and returnable before such officer or court, and, upon conviction, deportation is to be had to the country from whence the Chinese person came; i.e., 'China.' But see, as to a case under the Immigration Law, United States ex rel. Moore v. Sisson, 206 F. 450, 124 C.C.A. 356.

By the act of May 5, 1892 (27 Stat. 25, c. 60 (U.S. Comp. St. 1901, p. 1319)), the laws previously in force were continued for ten years, and it was expressly provided that deportation should be to China, unless the person deported was a citizen or subject of some other country, in which case he should be removed to that country.

By section 3, any Chinese person or person of Chinese descent, arrested under the provisions of these laws, is to be adjudged to be unlawfully within the United States, unless such person shall establish by affirmative proof, to the satisfaction of such justice, judge, or commissioner, his lawful right to remain in the United States.

By section 6, all Chinese laborers then within the United States were required to register within the period of one year, and any Chinese person other than a laborer, having the right to such certificate, could obtain one under this law.

By the act of November 3, 1893 (28 Stat. 7, c. 14 (U.S. Comp. St. 1901, p. 1321)), the time for obtaining certificate was extended six months thereafter, or if unavoidably prevented from so doing, and if having been a resident of the United States on May 5, 1892, a certificate might subsequently be granted.

By section 7 of the act of 1892, the Secretary of the Treasury is given authority to make such rules and regulations as may be necessary for the efficient execution of the particular law.

By the act of November 3, 1893 (28 Stat. 7), the terms 'laborer' and 'merchant' were defined, and it was provided that a Chinaman applying to re-enter the United States, on the ground that he had previously been in this country, as a merchant, must establish that fact by the testimony of two credible witnesses other than Chinese.

By the act of March 3, 1901 (31 Stat. 1093, c. 845 (U.S. Comp. St. 1901, p. 1327)), the United States commissioner, before whom the case should be heard, is to be designated by the United States attorney, and it is provided that no warrant of arrest for violation of the Chinese exclusion laws shall be issued by United States commissioners, excepting upon the sworn complaint of the district attorney, collector, deputy collector, immigration inspector, United States marshal, or Chinese inspector, etc., unless the issuing of such warrant shall first be approved or requested in writing by the United States attorney.

By the act of April 29, 1902 (32 Stat. 176, c. 641 (U.S. Comp. St. Supp. 1911, p. 524)), as amended by section 5 of the act of April 27, 1904 (33 Stat. 428), the preceding laws and, among others, certain sections of the act of 1892 were re-enacted, extended, and continued, without modification, limitation, or condition. The Secretary of Labor was directed to make such rules and regulations as were necessary to carry out the act, and the laws were extended to apply to the island territory under the jurisdiction of the United States. But this law, in sections 1 and 4, added the words, after 'Chinese laborers,' which had not been included in any of the previous statutes, 'not citizens of the United States.'

The Immigration Law of February 20, 1887 (34 Stat. 898, c. 1134), and the subsequent amendments thereto have been held applicable to the exclusion of Chinese.

With the foregoing statement, we will take up in order the several cases now pending in which analogous questions are involved. In each case a United States commissioner has issued a warrant, upon a complaint of a Chinese inspector, to the effect that the person whose arrest was sought was 'a Chinese person and not entitled to be and remain in the United States without certificate of residence as required by law. ' In each case it appears that, before the issuance of the warrant, the Chinese person had been taken into custody by an inspector, without a warrant, upon questions and answers taken down by a stenographer, and obtained while the inspector was inquiring as to the possession of certificates.

It must be observed that no Chinese person or person of Chinese descent may be arrested, even upon a warrant, unless based upon circumstances showing him to be unlawfully within the United States. Section 13, Acts of 1888. A person who has been lawfully 'arrested' shall be adjudged to be unlawfully within the United States unless he furnishes affirmative proof of his right to remain. It would render the law unconstitutional if it should be held to allow the arrest and deportation of a person, even where a warrant had been issued, unless the record showed some proof, at least in the way of allegations of fact, that the person arrested was a Chinese person or person of Chinese descent, and that this person was 'unlawfully' in the country and had been arrested because of some state of facts prohibited by and within the language of the law.

A Chinese person, then too young to register, or born since May 5, 1892, or in the United States before May 3, 1894 (but not a laborer), who might be found in the United States after the last date, without a certificate, could have come here lawfully in three ways, even though he be a laborer at the time his status was investigated: First, he might have been born in the United States; second, he might have entered the United States under such circumstances as to be exempt from the provisions of the deportation statute; or, third, he could have been in the United States, and not required to register, up to May 3, 1894. Any other Chinese person found in the United States without the certificate must have come here either before the time of registration or contrary to law, if he arrived after that day.

Upon being questioned by a Chinese inspector or any other person as to his status, before having been arrested or subjected to duress, the proof...