Wong Mon Lun v. Nagle

• Decision Date: 24 March 1930
• Docket Number: No. 6005.,6005.
• Citation: 39 F.2d 844
• Parties: WONG MON LUN v. NAGLE, Immigration Com'r.
• Court: U.S. Court of Appeals — Ninth Circuit

39 F.2d 844 (1930)

WONG MON LUN v. NAGLE, Immigration Com'r.^*

No. 6005.

Circuit Court of Appeals, Ninth Circuit.

March 24, 1930.

J. H. Sapiro and O. P. Stidger, both of San Francisco, Cal., for appellant.

Geo. J. Hatfield, U. S. Atty., and Lucas E. Kilkenny, Asst. U. S. Atty., both of San Francisco, Cal., for appellee.

Before DIETRICH and WILBUR, Circuit Judges, and NETERER, District Judge.

DIETRICH, Circuit Judge.

Appellant, a citizen of China, was first admitted to the United States from Canada on September 11, 1923, as a merchant. Soon thereafter, he contends, he entered business as a merchant at San Francisco and has maintained such status down to the present time. On May 21, 1927, he went to China for a temporary visit, and on his return, in April, 1928, he was admitted under a re-entry permit, issued to him at the time of his departure pursuant to the provisions of the Immigration Act of 1924 (section 10, 43 Stat. 158, 8 USCA § 210). As the result of an investigation made shortly thereafter, he was, on June 4, 1928, arrested for deportation under a warrant issued by the Secretary of Labor, and after hearings before the immigration authorities held in due course, he was ordered deported on the ground that his re-entry in 1928 was unlawful, in that his original entry in 1923 had been effected by means of a merchant's or section 6 certificate fraudulently procured. The reasoning of the immigration officers was and is that a re-entry permit, such as was given appellant in 1927, may be legally issued only to one who has been lawfully admitted. See 8 USCA § 210(b). This section confers authority upon the Commissioner General to issue such a permit only if he "finds that the alien has been legally admitted to the United States," etc. Subdivision (c) of section 13 of the Act of 1924 (8 USCA § 213) provides that: "No alien ineligible to citizenship shall be admitted to the United States unless such alien (1) is admissible as a nonquota immigrant under the provisions of subdivision (b), (d), or (e) of section 204." 8 USCA § 204. The only one of these subdivisions of section 4 which has any possible relevancy is (b), wherein "an immigrant previously lawfully admitted to the United States, who is returning from a temporary visit abroad," is classified as a "nonquota immigrant."

Appellant's first contention is that the Department of Labor was without jurisdiction to order deportation, citing White v. Chin Fong, 253 U. S. 90, 40 S. Ct. 449, 64 L. Ed. 797; that is to say, if the legality of his presence in this country is to be challenged, the inquiry must be made in a judicial proceeding, and only a court and not an administrative officer has the power to order deportation. It is true the facts in the Chin Fong Case are not widely different from those exhibited by the record here, but the statutory law has undergone a material change. Chin Fong's last entry, after a temporary visit to China, was made in 1913 (C. C. A. 258 F. 849), and the question there was of his status and rights under the Chinese Exclusion Laws, particularly the Act of November 3, 1893 (see 8 USCA §§ 282, 289), the pertinent provisions of which were not affected by the Immigration Act of 1907. United States v. Woo Jan, 245 U. S. 552, 38 S. Ct. 207, 62 L. Ed. 466. But section 14 of the Immigration Act of 1924 (8 USCA § 214) provides that: "Any alien who at any time after entering the United States is found to have been at the time of entry not entitled under this subchapter to enter the United States, * * * shall be taken into custody and deported in the same manner as provided for in sections 155 and 156 of this title." And these sections of the Act of 1917 provided for deportation upon a warrant issued by the Secretary of Labor (8 US CA §§ 155, 156). And by section 38 of the Act of 1917 it was declared that the act should not be construed to repeal, alter, or amend the Chinese Exclusion Acts "except as provided in section 19 hereof." 8 USCA § 178.

It has been repeatedly held that under the Immigration Act of 1917 Chinese persons unlawfully in the United States could be deported under administrative proceedings. Ng Fung Ho et al. v. White (C. C. A.) 266 F. 765; Id., 259 U. S. 276, 42 S. Ct. 492, 66 L. Ed. 938; Hee Fuk Yuen v. White (C. C. A.) 273 F. 10; Chin Shee v. White (C. C. A.) 273 F. 801; White v. Chung Him (C. C. A.) 282 F. 612; Woo Shing v. United States (C. C. A.) 282 F. 498; Ng Leong v. White (C. C. A.) 260 F. 749; Lai To Hong v. Ebey (C. C. A.) 25 F.(2d) 714. True, in no one of these cases are the facts fully identical with the facts herein involved, but logically the principle recognized embraces the present case. And the Act of 1924 clarifies, if it does not enlarge, the former grant of such authority. See section 14 thereof (8 USCA § 214) as above set out, and sections 25 and 28 (8 USCA §§ 223, 224).

In discussing the question of jurisdiction, appellant rests his argument in part upon subdivision (6) of section 3 of the Act of 1924 (8 USCA § 203), excepting from the term "immigrant," as used in the act, an alien entitled to enter the United States solely to carry on trade under the provisions of an existing treaty of commerce and navigation. But that provision has to do with substantive rights, and not with the mode of enforcing them or with the tribunal in which such rights may be asserted or challenged. In the proceedings under consideration it was, of course, the duty of the Secretary of Labor to determine whether the appellant's status brings him within this clause. He has found that when appellant entered the United States in 1923 he was not a merchant and was permitted to enter under fraudulent representations that he had such a status. It may be true that since he so entered he has been engaged in merchandising, but the term "merchant," as used in the treaty with China, is the definition of a status acquired in China and not after coming to the United States. Chin Fong v. Backus, 241 U. S. 1, 36 S. Ct. 490, 60 L. Ed. 859. And we have held that one who enters the United States fraudulently and unlawfully acquires no right from the occupation in which he afterwards engages during a residence thus unlawfully initiated and maintained. Kaichiro Sugimoto v. Nagle (C. C. A. 9, decided Feb. 17, 1930) 38 F.(2d) 207; Hurst v. Nagle (C. C. A. 9) 30 F.(2d) 346; Wong Fat Shuen v. Nagle (C. C. A. 9) 7 F.(2d) 611. Appellant seeks to distinguish this last case on the ground that the plaintiff there had entered "surreptitiously," but in legal effect there is no difference between an entry procured fraudulently and one made surreptitiously.

The second contention urged involves an inquiry into the facts. We cannot accept the view that the evidence is insufficient to support the finding of the immigration officials. It being conceded by the government that the section 6 certificate, regular upon its face, makes a prima facie case of rightful entry, that point we need not discuss. Choy Yuen Chan v. United States (C. C. A.) 30 F.(2d) 516. One Wong Mon Po or...