Wallis v. United States

• Citation: 230 F. 71
• Decision Date: 11 February 1916
• Docket Number: 2693.
• Parties: WALLIS, Asst. Com'r of Immigration, v. UNITED STATES ex rel. NG SAM et al.
• Court: U.S. Court of Appeals — Fifth Circuit

230 F. 71

WALLIS, Asst. Com'r of Immigration, v. UNITED STATES ex rel. NG SAM et al.

No. 2693.

United States Court of Appeals, Fifth Circuit.

February 11, 1916

Rehearing Denied March 27, 1916.

Appeal from the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge.

Habeas corpus by the United States, on the relation of Ng Sam, Yee Ngau, Ng Tin, and Ng Sing, against Joseph H. Wallis Assistant Commissioner of Immigration at the port of New Orleans, to obtain the release of the named Chinese persons from deportation warrants in proceedings under the Immigration Act of 1907, as amended. From the orders of the District Court for the Eastern District of Louisiana, making the writs of habeas corpus absolute and discharging the relators, defendant appeals. Reversed and remanded, with directions.

Jos. W Montgomery, Asst. U.S. Atty., of New Orleans, La., for appellant.

B. B. Howard, of New Orleans, La., and Robert M. Moore, of New York City, for appellees.

Before PARDEE and WALKER, Circuit Judges, and GRUBB, District Judge.

GRUBB District Judge.

The right of the appellant to detain the relators, under deportation warrants issued by the Secretary of Labor, is questioned by the writs. It was conceded by counsel for the relators, in this court but not in the court below, that there was evidence submitted to the Secretary of Labor, in the case of each of the relators, which tended to support his finding that the relators were aliens, who had entered this country from Canada without inspection and in violation of the thirty-sixth section of the Immigration Act of February 20, 1907, as amended by Act March 26, 1910, c. 128, 36 Stat. 264, and of the Chinese Exclusion Laws, which, in view of the conclusive effect to be given such findings, where a fair hearing has been accorded the alien, and where there has been no manifest abuse of discretion upon the part of the Secretary of Labor, would support the findings of the Secretary in the instant case, when assailed collaterally upon habeas corpus.

The insistence of counsel for the relators is that the relators, though subject to deportation under proper warrants to Canada, were not legally detained under warrants for their deportation to China. Section 35 of the act of 1907 (Comp. St. 1913, Sec. 4284), is relied upon by the appellant to sustain the deportation of relators to China. It is as follows:

'That the deportation of aliens arrested within the United States after entry and found to be illegally therein, provided for in this act, shall be to the trans-Atlantic or trans-Pacific ports from which said aliens embarked for the United States; or, if such embarkation was for foreign contiguous territory, to the foreign port at which said aliens embarked for such territory.'

The contention of the appellant is that the evidence submitted to the Secretary justified the inference found by him that the relators embarked from some port in China for Canada or for the United States by way of Canada. The contention of the relators is that no evidence was submitted to the Secretary, which would support a finding that the relators had embarked from China for Canada or for the United States by way of Canada, and that the warrants directing the deportation of relators to China were without the support of evidence that China was the country from whence they came, and for that reason reviewable upon habeas corpus.

Assuming, without deciding, as was done by the Supreme Court, that that part of the deportation order which determines the destination of the alien is open to inquiry upon habeas corpus (Lewis v. Frick, 233 U.S. 291-304, 34 Sup.Ct. 488, 58 L.Ed. 967), we proceed to consider the respective contentions of the parties.

The evidence submitted to the Secretary of Labor was the testimony of each of the relators upon the hearing, the documents and articles found in their possession when arrested, and the hearsay result of certain inquiries of the immigration inspector addressed to the railroad employes of the railroad upon which the relators were traveling when arrested. We will discard the hearsay statements, and confine our consideration to the admissions of the relators and to the documents and articles found on them when arrested. The latter consisted of certain Chinese and Canadian marked clothing and money; certain Canadian addresses, with directions to call at the named address; a letter in Chinese, reciting their attempted entry from Canada and their arrest, and asking help; and $5 in paper money, pinned to the railroad ticket of each of the relators, with the note attached containing the words 'Please keep the change.' The four relators, while denying acquaintance, boarded the same train at Port Kent, a small village in New York, less than 100 miles from the Canadian border, and without a reasonable explanation to account for their joint presence there, or how or from what place they arrived there, either singly or in company. Though three claimed to have been born in the United States, and all claimed to have lived in this country all or the greater part of their lives, no one of them had any acquaintance with any part of the United States, and but one could speak English at all, and he but slightly and imperfectly. That they came to Port Kent and took the train there separately and without concert, and from places in the United States strange to them, but where they had resided for many years, and without the intervention of persons, more familiar with the surroundings and manner of travel, overtaxes the credulity of the least suspicious. The inference that they came to Port Kent and boarded the train, upon which they were subsequently arrested, in company and with the assistance of more competent persons, and in an endeavor to enter the United States by evading inspection, is irresistible. The inference is just as conclusive, from their attempted evasion of the provisions of the Immigration Act, that they could not have successfully encountered the inspectors at the border, and were not entitled to enter the United States. Counsel for the relators contend that, if so much is to be conceded, it shows only that the relators were seeking to make an unlawful entry into this country from Canada, and that no fair inference can be indulged therefrom that the relators had originally embarked from China, and that the latter inference was essential to the detention of relators under the deportation warrant.

The contention of relators is that the only legal evidence presented to the Secretary was their own statements, and possibly what was taken from their persons when they were arrested; that if their statements were credited, they were entitled to entry, and if discredited as to the place of their nativity and residence, because of the suspicious circumstances of their presence...