United States v. Lou King

• Decision Date: 14 December 1940
• Citation: 35 F. Supp. 956
• Parties: UNITED STATES v. LOU KING.
• Court: U.S. District Court — District of New Jersey

35 F. Supp. 956

UNITED STATES v. LOU KING.

District Court, D. New Jersey.

December 14, 1940.

Griffinger & Griffinger and Simon J. Griffinger, all of Newark, N. J., for appellant.

William F. Smith, U. S. Atty., and Charles A. Stanziale, Asst. U. S. Atty., both of Trenton, N. J., for the government.

WALKER, District Judge.

Facts.

1. Lou King, alias Ah Dee, alias King Yok Lou (hereinafter referred to as "King Lou"), was born in the City of Foochow, in the Province of Fukien, China, on June 14, 1902. He is a full-blooded Chinese.

2. His father was in the tea and nut business in Foochow and King Lou assisted therein until he left for the United States in 1922, arriving here on or about November 11, 1922.

3. The nature of the work performed for a short time subsequent to arrival was that of a laborer.

4. King Lou at the present time is part owner of a restaurant, and for some years he has been an owner in whole or in part of one or more restaurants.

5. On or about February 20, 1940, he filed an Application for a Certificate of Arrival and Preliminary Form for a Declaration of Intention with the Immigration and Naturalization Service, New York. Therein he reported his arrival in the United States aboard a freighter as "a member of the crew", and this, on application to the court and by order of August 5, 1940, was amended to read "as passenger merchant".

6. On October 6, 1940, a United States Commissioner for the District of New Jersey, adjudged and decreed that King Lou had failed to establish by affirmative proof his right to remain in the United States, he being a Chinese alien laborer without a certificate of residence. Deportation to the Republic of China was ordered.

7. The matter came before the court on appeal. Evidence was introduced and the matter heard de novo. Liu Hop Fong v. United States, 209 U.S. 453, 28 S.Ct. 576, 52 L.Ed. 888.

Discussion.

"Every Chinese person, other than a laborer, who may be entitled to come within the United States, and who shall be about to come to the United States, shall obtain the permission of and be identified as so entitled by the Chinese Government, or of such other foreign government of which at the time such Chinese person shall be a subject, in each case to be evidenced by a certificate issued by such government, which certificate shall be in the English language, and shall show such permission, with the name of the permitted person in his or her proper signature, and which certificate shall state the individual, family, and tribal name in full, title or official rank, if any, the age, height, and all physical peculiarities, former and present occupation or profession, when and where and how long pursued, and place of residence of the person to whom the certificate is issued, and that such person is entitled by this section to come within the United States. If the person so applying for a certificate shall be a merchant, said certificate shall, in addition to above requirements, state the nature, character, and estimated value of the business carried on by him prior to and at the time of his application as aforesaid. Nothing in this section shall be construed as embracing within the meaning of the word `merchant,' hucksters, peddlers, or those engaged in taking, drying, or otherwise preserving shell or other fish for home consumption or exportation. * * *

The certificate provided for in this section, and the identity of the person named therein shall, before such person goes on board any vessel to proceed to the United States, be visaed by the indorsement of the diplomatic representatives of the United States in the foreign country from which said certificate issues, or of the consular representative of the United States at the port or place from which the person named in the certificate is about to depart; and such diplomatic representative or consular representative whose indorsement is so required is empowered, and it shall be his duty, before indorsing such certificate as aforesaid, to examine into the truth of the statements set forth in said certificate, and if he shall find upon examination that said or any of the statements therein contained are untrue it shall be his duty to refuse to indorse the same. Such certificate visaed as aforesaid shall be prima facie evidence of the facts set forth therein, and shall be produced to such officer under the control of the Commissioner General of Immigration as the Secretary of Labor may designate therefor, and afterward produced to the proper authorities of the United States whenever lawfully demanded, and shall be the sole evidence permissible on the part of the person so producing the same to establish a right of entry into the United States; but said certificate may be controverted and the facts therein stated disproved by the United States authorities." 8 U.S.C.A. § 265.

King Lou testified, he sailed from Shanghai and prior thereto, he paid $15 and obtained a small sheet of paper written in English, he signed it in Chinese and the man who let him walk off the boat in the United States took said paper from him.

The right of an alien Chinese to enter or remain in the United States as a member of the exempt class depends upon his possession of a valid Section 6 Certificate. (8 U.S.C.A. § 265.) Mar Yen Wing v. United States, 9 Cir., 72 F.2d 158. The required certificate and visa are necessary for entry, and entry without them is illegal, and is not legalized by the length of time thereafter spent in the United States. Yuen Fong v. United States, 3 Cir., 78 F.2d 193.

The appellant having been arrested under the Chinese Exclusion Act (popular name), must establish by affirmative proof his lawful right to remain in the United States (8 U.S.C.A. § 284), and this rule must be complied with even though he claims to be a merchant; (United States v. Chin Sing Quong, D.C., 224 F. 752, affirmed, 2 Cir., 231...