United States v. Prentis

• Decision Date: 20 March 1916
• Docket Number: 32349.
• Citation: 230 F. 935
• Parties: UNITED STATES ex rel. LEM HIM v. PRENTIS et al.
• Court: U.S. District Court — Northern District of Illinois

230 F. 935

UNITED STATES ex rel. LEM HIM v. PRENTIS et al.

No. 32349.

United States District Court, N.D. Illinois, Eastern Division.

March 20, 1916

Habeas corpus by the United States, on the relation of Lem Him against P. L. Prentis and another. Order directed discharging petitioner from custody.

Frank T. Milchrist, of Chicago, Ill., for petitioner.

Charles F. Clyne, Dist. Atty., Benjamin R. Epstein and Allan J Carter, Asst. Dist. Attys., all of Chicago, Ill., for the United States.

CARPENTER District Judge.

The petition shows that on the 30th day of August, 1915, Lem Him was taken into custody by the immigration authorities of the United States at Chicago, Ill. It also appears that the petitioner was taken before a commissioner, and after a hearing ordered deported by the Secretary of Labor. The warrant of deportation recites:

'That he has been found within the United States in violation of section 6, Chinese Exclusion Act of May 5, 1892, as amended by the act of November 3, 1893, being a Chinese laborer not in possession of a certificate of residence and that he has been found within the United States in violation of section 2, Chinese Exclusion Act of November 3, 1893, having secured admission by fraud, not having been at time of entry a lawfully domiciled exempt returning to resume a lawfully acquired domicile and to follow an exempt pursuit in this country.'

The petitioner claims that the Immigration Department had no authority to take him into custody on the charge that he was in this country in violation of the Chinese Exclusion Act; that the Judicial Department alone has authority to order his deportation. The question raised by this petition is not new. It has been passed upon adversely to the petitioner in Ex parte Lam Pui (D.C.) 217 F. 456; Ex parte Wong Lee Toon (D.C.) 227 F. 247; Ex parte Woo Shing (D.C.) 226 F. 141; and by the Court of Appeals for the Third Circuit in Sibray v. United States ex rel. Yee Yok Yee, 227 F. 15, . . . C.C.A. . . . . On the other hand, Ex parte Woo Jan (D.C.) 228 F. 927, holds a contrary view.

It is admitted that the Chinese Exclusion Act requires a formal proceeding in court before an order of deportation can be entered. The act of February 20, 1907, contains the following:

'Section 21. That in case the Secretary of Commerce and Labor shall be satisfied that an alien has been found in the United States in violation of this act, or that an alien is subject to deportation under the provisions of this act or of any law of the United States, he shall cause such alien within the period of three years after landing or entry therein to be taken into custody and returned to the country whence he came, as provided by Section 20 of this act. ' Comp. St. 1913, Sec. 4270.

Section 43 (section 4289) provides that:

'This act shall not be construed to repeal, alter, or amend existing laws relating to the immigration or exclusion of Chinese person or persons of Chinese descent.'

It is urged by the government that the case of United States v Wong You, 223 U.S. 67, 32 Sup.Ct. 195, 56 L.Ed. 354, is conclusive against the petitioner. In that case the Chinaman entered the United States surreptitiously in a manner prohibited by the act of February 20, 1907. Any alien entering in the same way would have been...