22 F.2d 554 | W.D. Wash. | 1927
Ex parte HING.
District Court, W. D. Washington, N. D.
*555 Fred H. Lysons, of Seattle, Wash., for petitioner.
*556 Thos. P. Revelle, U. S. Dist. Atty., and C. T. McKinney, Asst. U. S. Dist. Atty., both of Seattle, Wash.
NETERER, District Judge (after stating the facts as above).
The Board of Special Inquiry was composed of James P. Sanderson, chairman, G. H. Mangels, and Alice H. Shaver. By supplemental record it is shown that Sanderson was designated by the Commissioner General of Immigration as a member of the Board of Special Inquiry on May 1, 1917, and duly qualified by taking the oath prescribed by the Immigration Act, pursuant to section 17 of the Act of Congress approved February 5, 1917 (8 USCA § 153); that Mangels was designated by Assistant Secretary of Labor as a member of the Board of Special Inquiry, pursuant to the Act of Congress, supra, on May 2, 1917, and on the same day took the oath prescribed by such section; that Alice H. Shaver was designated as a member of the Board of Special Inquiry under the above provisions, November 14, 1922, and on the 25th of November, 1922, took the oath as a member of such board, as required by the laws of the United States. There was therefore a legal Board of Special Inquiry, aside from the presumption of such organization.
Under the Fourteenth Amendment, all persons born in the United States are citizens thereof. The Congress is without power to restrict the effect of birth. United States v. Wong Kim Ark, 169 U.S. 649, 18 S. Ct. 456, 42 L. Ed. 890. A person, however, may expatriate himself. 15 Stat. 223, Act July 27, 1868 (8 USCA §§ 13-15). The Congress may provide that marriage to an alien shall effect expatriation. McKenzie v. Hare, 239 U.S. 299, 36 S. Ct. 106, 60 L. Ed. 297, Ann. Cas. 1916E, 645; Act Cong. Sept. 22, 1922, § 3 (8 USCA § 9).
Section 13(c) of the Immigration Act of 1924 provides that no alien ineligible to citizenship shall be admitted to the United States, and those eligible to citizenship are "white persons, aliens of African nativity, and persons of African descent." The applicant is of a race ineligible to United States citizenship. Ex parte (Ng) Fung Sing (D. C.) 6 F.(2d) 670; United States v. Bhagat Singh Thind, 261 U.S. 204, 43 S. Ct. 338, 67 L. Ed. 616; Ozawa v. United States, 260 U.S. 178, 43 S. Ct. 65, 67 L. Ed. 199. See, also, United States v. Pandit (C. C. A.) 15 F.(2d) 285.
The marriage ceremony of China, as well as the Mohammedan ceremony, may be very primitive. This court may not take judicial notice of foreign laws or customs; the court must apply local laws and customs to any controverted fact, in the absence of proof. United States citizenship is a very substantial right. It is the highest political privilege which an individual may enjoy. United States citizenship means more than citizenship in any other country, and a native-born citizen should not be deprived of this high privilege without substantial testimony to sustain the fact.
If the applicant is legally married to an alien ineligible to citizenship, she has expatriated herself, and may not be admitted. Ex parte (Ng) Fung Sing, supra. The fact that some ceremony was performed does not show legal marriage, and the belief of the applicant and her alleged husband of the marriage status would not of itself establish the relation. Ex parte Morel (D. C.) 292 F. 423. Nor would the fact that the applicant sought a divorce and obtained an interlocutory decree establish marriage, if, in fact, such relation had not been consummated. A marriage in China, consummated by a Mohammedan ceremony, not in harmony with the Chinese law or custom of marriage, would have no more operative effect than a marriage, consummated in California, pursuant to a ceremony of French custom in the republic of France. See Ex parte Morel, supra. There is no competent evidence before the court to show that the applicant has been legally married, or that there has been consummated a relation which binds the applicant to her alleged husband, upon which she could predicate a claim for support, or inheritable right of a surviving spouse in the event of death.
The writ will therefore be granted, returnable on the 21st day of March, 1927, with the provision that, pending return, the Immigration Department grant a rehearing for the production of further testimony with relation to the marriage, and that such testimony, together with the findings of the Board of Special Inquiry, be transmitted to the Secretary of Labor as on appeal, and the final additional record be incorporated in the return of the Commissioner of Immigration to this writ. On failure to comply with the provision herein, on or before the return day herein, or such further time to which the return may be extended by the court, the writ will be granted and the petitioner discharged. The petitioner will be released on filing a bond, or recognizance, with the usual conditions, in the sum of $500, pending this hearing.
*557 On Further Hearing.
Further hearing was had and return made showing that the exclusion order was affirmed by the board and by the Secretary of Labor. The supplemental record returned shows that the marriage of the petitioner to Rumjahn was not arranged by the parents (see Hubinch, 24 Judicial Review, 378-382), but by the parties. There was no investigation of the respective family histories and records in duplicate for three generations made, known as "Sahm Doi Teep," nor was such record exchanged between the parties or the families, nor ancestral and family worship and pledge observed; no matrimonial letters or cards were exchanged (Sy Joe Lieng et al. v. Petronila Encarnacion et al., 16 Phil. Islands, 137; see, also, 6 Enc. Brittannica [11th Ed.] 172, 173), nor any requirements of Chinese custom observed. In effect, the bride and groom eloped, and some ceremony was performed by a Mahommedan priest.
There is no competent evidence in the record that the bride had accepted the Mohammedan faith, but that is immaterial. There is, no doubt, a Christian marriage ceremony recognized in China, as well as the Chinese ceremony; there is no common-law marriage recognized by the Chinese laws or customs.
Writ will issue.
