United States v. Lim Jew

• Decision Date: 15 December 1910
• Citation: 192 F. 644
• Court: U.S. District Court — Northern District of California
• Parties: UNITED STATES v. LIM JEW.

192 F. 644

UNITED STATES v. LIM JEW.

United States District Court, N.D. California.

December 15, 1910

Samuel M. Shortridge and Geo. A. McGowan, for appellant.

Robt. T. Devlin, U.S. Atty.

FARRINGTON District Judge.

Lim Jew went to China in 1905. On his return in 1908, he presented a certificate in which he was described as a native-born citizen of the United States. After investigation, which included an examination of witnesses, the Commissioner of Immigration ordered defendant admitted into the United States as a native-born citizen. In the following year a United States immigration inspector filed a complaint before E. H Heacock, United States commissioner for the Northern District of California at San Francisco, charging Lim Jew with a violation of the federal statute, which forbids the coming of Chinese persons into the United States. After a full hearing the commissioner found defendant to be a Chinese person, and a native of China; that he is, and ever since his birth has been, an alien; that he departed from the United States in 1905, returned in September, 1908, and at the time of his arrest was in this district; that he did not at the time of his departure procure a return certificate under the exclusion laws, nor did he at any time procure from any person or any officer a certificate of any kind, showing that he was entitled to return to the United States. From an order of deportation based on these findings, Lim Jew has appealed to this court, and has been heard upon an agreed statement of facts.

Defendant claims that he was born in San Francisco, and consequently that he was and is rightfully within the state of California. The agreed statement, however, amply supports the finding of the commissioner that Lim Jew is not a native-born citizen. But defendant urges that his nativity is no longer open to question. It was set at rest by a decision rendered in the United States Circuit Court for this district August 23 1888; and also by the decision of the Department of Immigration, rendered in 1908, referred to in the first paragraph of this opinion.

The agreed statement shows that a petition for a writ of habeas corpus was filed in the Circuit Court for this district in the Matter of Lim Jew August 18, 1888. The judgment rendered five days later recited that Lim Jew 'had been a resident of the United States prior to November 18, 1880, and hence was entitled to re-enter the United States. No declaration of the defendant appears of record in that matter as to the place of his nativity. ' The applicant was then discharged, and allowed to remain in the United States. There is nothing in the stipulated facts from which it appears that any issue as to Lim Jew's nativity was raised. Apparently the judgment of August 23, 1888, was based on the fact that Lim Jew resided in the United States prior to November 18, 1880; and it went no further than to declare that he was entitled at that time to re-enter the United States.

Is the government estopped by this judgment? No question is here raised as to its correctness. The act of July 5, 1884 (23 Stats. at L.p. 115), provided that Chinese laborers who were in the United States November 17, 1880, or who might have come into the United States before the expiration of a certain date, could on proper identification be permitted to land. If Lim Jew was duly identified as such a laborer, it was unnecessary to prove that he was born in the United States in order to secure his admission in 1888. The issue in that proceeding was defendant's right to remain in the United States at that time. As to that issue, the judgment is conclusive, and forecloses all further controversy.

After another visit to China defendant's present right to remain in the United States is at issue. This is not the same right which was determined by the court in 1888. A Chinese alien who was in the United States at that time lawfully may now find it impossible, under the law, to re-enter our territory, because he has failed to procure the proper certificate of identification, or because he has in some other way forfeited his right. The rule applicable to cases like this is thus stated in Russell v. Place, 94 U.S. 606, 24 L.Ed. 214:

'It is undoubtedly settled law that a judgment of a court of competent jurisdiction upon a question directly involved in one suit is conclusive as to that question in another suit between the same parties. But to this operation of the judgment it must appear, either upon the face of the record or be shown by extrinsic evidence, that the precise question was raised and determined in the former suit. If there be any uncertainty on this head in the record, as for example if it appear that several distinct matters may have been litigated, upon one or more of which judgments may have passed, without indicating which of them was thus litigated, and upon which the judgment was rendered, the whole subject-matter of the action will be at large, and open to a new contention, unless this uncertainty be removed by extrinsic evidence showing the principal point involved and determined.'

See, also, Delaware, etc., Co. v. Kutter, 147 F. 51, 59, 77 C.C.A. 315; De Sollar v. Hanscome, 158 U.S. 216, 15 Sup.Ct. 816, 39 L.Ed. 956.

Inasmuch as it does not appear that defendant's nativity was at issue in the 1888 case, or that it was involved in that judgment, the government is not now estopped thereby from denying that Lim Jew is a native of the United States.

I am also of the opinion that the decision of the Department of Immigration cannot be regarded as a final adjudication of defendant's nativity. The act of August 18, 1894 (28 Stats. at L. pp. 372, 390), provided that in every case where an alien is excluded from admission under any law or treaty now existing, or hereafter made, the decision of the appropriate immigration or customs officers,...