United States v. Tod

• Decision Date: 07 May 1923
• Docket Number: 173.
• Citation: 290 F. 689
• Parties: UNITED STATES ex rel. SOO HOO HONG v. TOD, Com'r of Immigration.
• Court: U.S. Court of Appeals — Second Circuit

290 F. 689

UNITED STATES ex rel. SOO HOO HONG v. TOD, Com'r of Immigration.

No. 173.

United States Court of Appeals, Second Circuit.

May 7, 1923

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

Hervey Barber & McKee, of New York City (Everett Flint Damon, of Boston, Mass., of counsel), for appellant.

William Hayward, U.S. Atty., of New York City (James C. Thomas, Asst U.S. Atty., of New York City, of counsel), for appellee.

Before ROGERS, HOUGH, and MAYER, Circuit Judges.

ROGERS Circuit Judge.

The question presented involves the right of one born in China and of the Chinese race to enter the United States. At the time he applied for admission he asserts that he was a minor not having attained the age of 21 years, and that he was the adopted son of one Soo Hoo Dung Shew, who is conceded to be a Chinese merchant lawfully domiciled in Boston, Mass. The relator applied for admission at the port of New York, and was denied admission on the ground that he was not the minor son of Soo Hoo Dung Shew.

The relator was accorded a hearing before a board of special inquiry on April 3, 1922. A further hearing occurred on April 6, 1922. At its close he was advised that a conditional denial of his application for admission had been entered in his case, as the board was not satisfied that he was under 21 years of age, and that he would be allowed 10 days in which to present any further evidence, and that in the event of his deportation he would be returned to the country from which he came, and would be sent back in the manner in which he arrived, by the steamship company which brought him to this country.

An appeal was taken from this action of the board of special inquiry on April 17, 1922, to the Department of Labor at Washington, and the board of review, having considered the appeal and heard the appellant's counsel, recommended on April 24, 1922, that the excluding decision be affirmed. Thereupon the Assistant Secretary of Labor entered an order in accordance with that recommendation, and the Commissioner of Immigration was instructed to deport Soo Hoo Hong on May 11, 1922.

On May 10, 1922, a writ of habeas corpus was issued to the Commissioner of Immigration, and which required him to produce Soo Hoo Hong in the United States District Court for the Southern District of New York at a time stated therein. And on July 7, 1922, an order was entered dismissing the writ and remanding the relator to the custody of the Commissioner of Immigration at the port of New York. The case is in this court on an appeal from that order.

The treaty concluded between the United States and China in November, 1880 (22 Stat. 826), provided in article 2 that:

'Chinese subjects whether proceeding to the United States as teachers, students, merchants or from curiosity, together with their body and household servants, * * * shall be allowed to go and come of their own free will and accord, and shall be accorded all the rights, privileges, immunities and exemptions which are accorded to the citizens and subjects of the most favored nation.'

And the treaty of 1894, concluded between these two nations in March, 1894 (28 Stat. 1210), provided in article 3 that:

'The provisions of this convention shall not affect the right at present enjoyed of Chinese subjects, being officials, teachers, students, merchants or travellers for curiosity or pleasure, but not laborers, of coming to the United States and residing therein.'

But to entitle such Chinese subjects as are above described to admission to this country it required them to produce a certificate from their government. And section 6 of the Act of Congress of 1884 (23 Stat. 115, c. 220) provided that every Chinese person entitled by treaty or the act to come within the United States should obtain the permission and be identified by the Chinese government, in each case to be evidenced by a certificate issued by such government and setting forth certain specified details, with which we are not concerned in the case now before us.

These various provisions gave rise to a difference of opinion at one time upon the question whether the wife and minor children of a Chinese merchant, who is in or entitled to come into the country, can come in with him or after him without the certificate mentioned. The following cases permitted entry without the certificate: In re Chung Toy Ho, 42 F. 398, 9 L.R.A. 204; In re Lee Yee Sing (D.C.) 85 F. 635; United States v. Gue Lim (D.C.) 83 F. 136. But the following cases held that such wife and minor children could not enter without the certificate: In re Ah Quan (C.C.) 21 F. 182, 186; In re Ah Moy (C.C.) 21 F. 785; In re Wo Tai Li (D.C.) 48 F. 668; In re Lum Lin Ying (D.C.) 59 F. 682; In re Li Foom (C.C.) 80 F. 881.

The doubt which existed on this subject was ended by the Supreme Court in United States v. Mrs. Gue Lim, 176 U.S. 459, 468, 20 Sup.Ct. 415, 419 (44 L.Ed. 544). After holding that the wife of a Chinese merchant entitled to be in the United States could enter without the certificate, Mr. Justice Peckham, speaking for the court, said:

'In the case of the minor children, the same result must follow as in that of the wife. All the reasons which favor the construction of the statute as exempting the wife from the necessity of procuring a certificate apply with equal force to the case of minor children of a member or members of the admitted classes. They come in by reason of their relationship to the father, and whether they accompany or follow him, a certificate is not necessary in either case. When the fact is established to the satisfaction of the authorities that the person claiming to enter, either as wife or minor child, is in fact the wife or minor child of one of the members of a class mentioned in the treaty as entitled to enter, then that person is entitled to admission without the certificate.' The Case of Gue Lim turned upon the true meaning of section 6 of the Act of July 5, 1884, and the conclusion was that the section should not be construed to exclude wives and minor children, since this would obstruct the plain purpose of the treaty of 1880 to permit merchants freely to come and go. See Yee Won v. White, 256 U.S. 399, 400, 41 Sup.Ct. 504, 65 L.Ed. 1012.

1. The treaty of 1894 expired in 1904. Hong Wing v. United States, 142 F. 128, 73 C.C.A. 346; Yee Won v. White, supra. But the treaty of 1880, which was proclaimed on October 5, 1881, is still in force, including article 2 heretofore quoted. Act April 29, 1902, c. 641 (32 Stat. 176), as amended by Act April 27, 1904, c. 1630, Sec. 5 (33 Stat. 428 (Comp. St. Sec. 4337)), provides that all laws in force on April 29, 1902, regulating, suspending, or prohibiting the coming of Chinese persons into the United States on their residence therein, 'are hereby re-enacted, extended and continued without modification, limitation or condition. ' The Rules Governing the Admission of Chinese, promulgated by the Commissioner General of Immigration, and which are now in force, provide in rule 9 concerning the admission of wives and children of exempts. That provision may be found in the margin. ^[1] That the adopted minor son of a Chinese merchant has the status of the person who adopted him was held by this court in United States v. Lee Chee, 224 F. 447, 140 C.C.A. 649. In Ex parte Fong Yim (D.C.) 134 F. 938, 941, the court declared that, if the adopting father has a right to enter the country, the right of the minor adopted child to enter is incident to the father's right to enter. And it was said that the question is perhaps not so much concerning the minor's right to enter as it is concerning the father's right to have him enter. United States ex rel. Shue Quey v. Pierce (D.C.) 285 F. 663, also supports the proposition that the adopted son of a Chinese merchant lawfully residing in the United States can bring into this country the members of his family, including an adopted son. And in the case now before the court it is not denied by the counsel representing the United States that an adopted minor son of a Chinese merchant lawfully resident in this country is entitled to admission. His right of entry is denied on the ground that the applicant has not satisfactorily made it to appear that he was under 21 years of age when the application to enter was made.

It may be remarked in passing that in Moore's Digest of International Law, vol. 3, pp. 484, 485, it is stated that there are three methods of obtaining the rights of an American citizen. Those entitled to such rights are: (1) Children born in the United States and subject to the jurisdiction thereof. (2) Children born of American parents, whose fathers have resided within the United States. (3) Those embraced by the Naturalization Law, which would include those naturalized and their children minors at the time of naturalization, if within the jurisdiction of this country.

But in this case the alleged adopting parent does not claim to have been born in the United States or to have been naturalized under our laws; and the son alleged to have been adopted is admitted to have been born in China and has never been within the United States. He is clearly an alien Chinaman. His sole right to enter the country is based upon the claim that he is under 21 years of age and that he was adopted in China by one who is now a Chinese merchant resident within the United States.

In United States v. Woo Jan, 245 U.S. 552, 38 Sup.Ct 207, 62 L.Ed. 466, the court had occasion to consider the difference between the situation of a Chinese person in the United States and one seeking to enter it, and held that the former was entitled to a judicial inquiry and determination of his rights, and that the latter was subject to...