134 F. 938 | N.D.N.Y. | 1905
These are writs of habeas corpus and certiorari to test the legality of the detention of two Chinese children who have been refused admission to this country. The substantial facts in the case are that Fong Fook Chung has been for many years a Chinese merchant, carrying on business and having a commercial domicile at Philadelphia, Pa. He has been married twice. His first wife resided in China, and he from time to time went home to China, and afterwards returned to this country. Two children, Fong Yim, a boy 10 years old, and Fong Dung, a girl 16 years old, were adopted when they were babies by Fong Fook Chung and his wife as their children. They lived with the first wife in China, and were frequently visited there by Fonk Fook Chung until about a year ago, when his first wife died. Subsequently Fong Fook Chung went to China, married again there, and returned to this country with his second wife and the two adopted children. He and his wife were permitted to enter this country, but the children were detained at Malone, N. Y., and after a hearing before F. W. Berkshire, chief officer of the Chinese exclusion laws for the state of New York, were denied admission to the United States. An appeal from his decision was duly taken to the Secretary of Commerce and Labor, and the decision was affirmed. Thereupon these writs were obtained.
The district attorney also contends that the decision of the Secretary of Commerce and Labor in this case is final. He relies particularly upon the case of Lem Moon Sing v. United States, 158 U. S. 538, 15 Sup. Ct. 967, 39 L. Ed. 1082. In that case a man who asserted that he was a Chinese merchant having a commercial do'micile in this country, and that he had temporarily left the country, was refused permission to enter the United States by the decision of the collector of customs at San Francisco. He did not take an appeal to the Secretary of the Treasury. A writ of habeas corpus was obtained, but dismissed for want of jurisdiction, and this decision was affirmed on appeal by the United States Supreme Court. The court in the opinion held that the remedy of the appellant was by appeal to the Secretary of the Treasury. It was also stated in the opinion that by the act of 1894 the authority of the courts to review the decision of the executive officers was taken away. But I think that strictly that part of the opinion was obiter. The actual decision was that the appellant could not appeal to the courts because he still had a right of appeal to the Secretary of the Treasury. The question whether, after the Secretary of the Treasury had decided the appeal, the appellant could apply to the courts for redress was not strictly before the court for decision. But in the very recent case of United States v. Sing Tuck, 194 U. S. 161, 24 Sup. Ct. 621, 48 L. Ed. 917, certain Chinese persons who claimed that they were born in this country, and were, therefore, citizens of the United States, under the decision of the United States Supreme
The language of the Supreme Court in the Lem Moon Sing Case, and the general assertions in various cases since the act of 1894, that the decisions of the exclusion officers are final (Ekiu v. U. S., 142 U. S. 652, 12 Sup. Ct. 336, 35 L. Ed. 1146; Japanese Immigrant Case, 189 U. S. 86, 23 Sup. Ct. 611, 47 L. Ed. 721, and cases there cited; Turner v. Williams, 194 U. S. 295, 24 Sup. Ct. 719, 48 L. Ed. 979), have made me hesitate to differ from them, even in a special case to which it did not seem to me that the general doctrine applied. But I have found no case where it has been expressly held that a Chinese merchant, domiciled in this country, has no right to appeal to the courts after he has exhausted his appeal to the Secretary of ■Commerce and Labor; and as the Supreme Court in the Sing Tuck Case, which I consider an analogous case, expressly holds that the ■question is still open to discussion, I have with much hesitation concluded that there is no controlling authority establishing that this court has no jurisdiction, and that it is therefore the duty of the •court to exercise its jurisdiction and decide this case on the merits.
The authority of any country to exclude aliens from it is, of course, unquestionable. But when this country has entered into a treaty with a foreign nation, by which certain subjects of such foreign nation have become entitled to rights to reside and do business in this country, such rights, in my opinion, are legal rights, and I cannot see how the persons entitled to them can be deprived of a resort to the judicial tribunals of this country to protect and enforce them. The treaties made by this country with foreign nations
“I do not believe it witbin the power of Congress to give to ministerial officers a final adjudication of the right to liberty, or to oust the courts from-the duty of inquiry respecting both law and facts. ‘The privilege of the writ of habeas corpus shall not be suspended unless when, in eases of rebellion or invasion, the public safety may require it.’ Const, art. 1, § 9, cl. 2.”
It is claimed that .these children, having never before entered this country, stand on the same footing as ordinary Chinese persons who have acquired no right of domicile; but the answer is that their adopted father has such right, and that their right to enter is incident to his right to enter. The question is perhaps not so much concerning their right to enter as it is concerning his right to have them enter. Of course, whether adopted children have the same-rights as natural children is a different question, but, assuming that they-have, the fact that they have never been in this country does not put them, in my opinion, in the same position as an ordinary Chinese alien who has never been in this country, and who has no relations with any one in it. The decision of the United States Supreme Court that a Chinese merchant domiciled in- this country has an inherent right to bring his wife and minor children here, and that they are entitled to enter because occupying that relation, without certificates or compliance with other provisions of the law (United States v. Mrs. Gue Eim, 176 U. S. 459, 20 Sup. Ct. 415, 44 L. Ed. 544), is, it seems to me, decisive upon that subject.
The real question, therefore, in this case, on the merits, is whether a domiciled merchant in this country has the same right to bring in his adopted children as he has to bring in his natural children. The inspector, in his decision, states that it does not seem to him
My conclusion is that these children should be released from detention, and permitted to join their adopted father in this country.