United States v. Woo Jan

• Decision Date: 06 July 1917
• Docket Number: 3025.
• Citation: 250 F. 595
• Parties: UNITED STATES et al. v. WOO JAN.
• Court: U.S. Court of Appeals — Sixth Circuit

250 F. 595

UNITED STATES et al. v. WOO JAN.

No. 3025.

United States Court of Appeals, Sixth Circuit.

July 6, 1917

Thomas D. Slattery, U.S. Atty., of Covington, Ky., for appellants.

Elwood G. Godman, of Chicago, Ill., for appellee.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

PER CURIAM.

In the case of Woo Shing v. Fluckey (No. 2882) 250 F. 598 . . . C.C.A. . . ., Judge Clarke (now Mr. Justice Clarke) decided, in the court below, that the Secretary of Labor had jurisdiction to deport a Chinaman on the ground alleged against Woo Shing. (D.C.) 226 F. 141. Shortly thereafter Judge Cochran, in a District Court of Kentucky, held, in an elaborate opinion (Woo Jan v. United States (D.C.) 228 F. 927), that such jurisdiction was vested exclusively in the courts. When the Woo Shing Case came on for argument, it was learned that the Woo Jan Case was in the course of appeal to this court, and, accordingly, we withheld decision in the former until the latter case should be argued. This argument has now been presented.

The question has been involved and decided, in the same way as it was by Judge Clarke, by the Circuit Courts of Appeals for the Eighth Circuit (Lo Pong v. Dunn, 235 F. 510, 149 C.C.A. 56), and for the Third Circuit (Sibray v. United States, 227 F. 1, 141 C.C.A. 555). In both cases certiorari was refused (242 U.S. 644, 37 Sup.Ct. 214, 61 L.Ed. 543; 241 U.S. 657, 36 Sup.Ct. 286, 60 L.Ed. 1225); but the briefs filed in the Supreme Court show that in neither case was this question presented to that court. On the other hand, Judge Cochran's opinion has been approved and followed by the Circuit Courts of Appeals for the Seventh Circuit (United States v. Lem Him, 239 F. 1023, 152 C.C.A. 661), and for the Fifth Circuit (Lee Wong Hin v Mayo, 240 F. 368, 153 C.C.A. 294). The matter seems to us proper for certification.

In the Woo Shing Case, the petition for habeas corpus was not filed until the order of deportation had been made, while in the Woo Jan Case the petition therefor was filed as soon as Woo Jan was taken upon the warrant of arrest; but we do not see that this makes any difference. In order that the expense of taking up two cases may be avoided, we have decided to certify the Woo Jan Case and to hold the Woo Shing Case upon our calendar. Counsel in the Woo Shing Case will be notified and we assume that they will be allowed to participate in the hearing in the Supreme Court as if their case also had been certified. Accordingly, we make the following findings of fact and request for instructions:

Woo Jan filed, in the District Court for the Eastern District of Kentucky, his petition for habeas corpus. He set up therein that he was in the custody of the immigrant inspector by virtue of a warrant issued by the Secretary of Labor, which warrant was as follows:

'To J. A. Fluckey, Inspector in Charge, Cleveland, Ohio, or to Any Immigrant

Inspector in the Service of the United States:

'Whereas, from evidence submitted to me, it appears that the alien, Woo Mon, alias Woo Jan, who landed at the port of San Francisco, Cal., ex SS Nippon-Maru, on the 2d day of May, 1913, has been found in the United States in violation of the act of Congress approved February 20, 1907, amended by the act approved March 26, 1910, for the following, among other reasons:

'That the said alien is unlawfully within the United States, in that he has been found therein in violation of the Chinese exclusion laws, and is, therefore, subject to deportation under the provision of section 21 of the above-mentioned act.

'I, J. B. Densmore, Acting Secretary of Labor, by virtue of the power and authority vested in me by the laws of the United States, do hereby command you to take into custody the said alien and grant him a hearing to enable him to show cause why he should not be deported in conformity with the law. * * *

'Witness my hand and seal this first day of April, 1914.

'(Signed) J. B. Densmore, Secretary of Labor.'

Woo Jan's petition further alleged that he was 57 years old was born in China, and since 1877 had been a resident of, and a domiciled merchant in, the United States; that during this time he had done no manual labor, excepting what was incidental to his business as a merchant; that in 1894, he was registered as a...