3 F.2d 44 | W.D. Wash. | 1924
(after stating the facts as above). This court, in Ex parte Goon Dip, 1 F.(2d) 811, and Ex parte So Hakp Yon, 1 E.(2d) 814, interpreted the immigration laws with relation to some phases of the Chinese Treaty and Exclusion Act, and to the status of Japanese under the immigration law and treaty stipulation. The respondent contends that the rights of the petitioner must be determined by racial and not political status; that, being the son of a Chinese father, he is within the provisions of the acts excluding Chinese. See footnote, Goon Dip, supra.
Section 1, Act April 29, 1902, amended April 27, 1904 (section 4337, C. S.), provides: “All laws in force on the twenty-ninth day of April, 1902, * * * prohibiting the coming of Chinese persons or persons of Chinese descent into the United States * * * are * * * extended * * * and * * * shall * * * apply to 'the island territory under the jurisdiction of the United States, and prohibit the immigration of Chinese laborers, not citizens of the United States, from such island territory * * * whether in such island territory at the time of session or not, and from one portion of the island territory of the United States to another portion of said island territory. * * * »
By the Act of May 6, 1882 (Comp. St. §§ 4290-4302, 4359), amended July 5, 1884 (Comp. St. §§ 4290-4293, 4295, 429-7-4302), the coming of Chinese laborers to the United States is suspended, and shall apply to Chinese whether subjects of China or any other foreign power. By the Act of September 13, 1888 (Comp. St. §§ 4306-4314), deportation of Chinese or persons of Chinese descent to the country whence they came, is authorized. The Act of May 5, 1892 (Comp. St. §§ 4315-4323), continues the provisions with respect to exclusion of Chinese or persons of Chinese descent, for the period of 10 years.
Section 9 of the Treaty says: “Spanish subjects, natives, * * * residing in the territory, * * * may remain. * * * In ease they remain * * * they may preserve their allegiance to the crown of Spain * * * by making a declaration of their decision. * * * In default * * * they shall be held to have remained. * * * The civil rights and political status of the native inhabitants * * * shall be determined by the Congress.”
Section 1, Act Feb. 5, 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289j4a), provides that “alien” shall “include any person not a native-born or naturalized citizen of the United States, but not be held to include Indians of the United States not taxed or citizens of the islands under the jurisdiction of the United States. * * * ”
Section 38, Act supra (section 42891/4u) provides: “That this act shall not be construed to repeal, alter, or amend existing laws relating to the immigration or exclusion of Chinese persons or persons of Chinese descent, except as provided in Section 19 here- * * * J?
Section 19, 39 Stats, p. 890 (section 4289%jj): “That the provisions of this section shall also .apply to the cases of aliens who come to the mainland of the United States from the insular possessions thereof.”
Section 1, Act Feb. 5, 1917 (section 4289%a): “The term ‘United States,’ as used in the title as well as in the various sections of this act shall be construed to mean the United States, and any waters, territory, or other place subject to the jurisdiction thereof, except the Isthmian Canal Zone.”
Subdivision (b), § 28, Act 1924 (43 Stat. 168): “The term ‘alien’ includes any individual not a native-born or naturalized citizen of the United States, but this definition shall not be held to include Indians of the United States not taxed, nor citizens of the islands under the jurisdiction of the United States.”
Subdivision (a), § 12 (43 Stat. 160): “For the purposes of this Act nationality shall be determined by country of birth •iff * * ))
Section 25, Immigration Law 1924 (43 Stat. 166), provides: “The provisions of this act are in addition to and not in substitution for the provisions of the immigration laws, and shall be enforced as a part of such laws. * * * An alien, although admissible under the provisions of this act, shall not be admitted * * * if he is excluded by any provision oi the immigration laws other than this act, and an alien, although admissible under the provisions of the immigration laws other than this act, , shall not be admitted to the United States if he is excluded by any provision of this act.”
“Immigration laws” means all laws, conventions, and treaties relating to the immigration, exclusion, or expulsion of aliens. Act 1924, supra; Ex parte Goon Dip, supra. In Department Eules of February 1, 1924, on pages 92 and 93, is inserted a map introduced by the following title: “Map showing Asiatic zone prescribed in section 3 of the Immigration Act, the natives of which are excluded from the United States, and certain exceptions (sections indicated by diagonal lines covered by treaty and laws relating to Chinese). The Philippine Islands are United States possessions and therefore not included in the barred zone.”
On page 105 of such rules, referring to section 1 of the act of 1917, it says: “For the purposes of the act citizens of the islands under the jurisdiction of the United States are regarded as though citizens of the United States.” The immigration laws, taken together, obviously show that the word “alien” does not apply to the petitioner, a native-born of the Philippine Islands. By the rules of the Department of 1924, the act of 1917, supra, applies to every part of the United States except the Isthmian Canal Zone, and is enforced by the Immigration Service, except in the Philippine Islands, where it is enforced by' the “officers of the general government thereof.”
At common law, a native is a person bom within the jurisdiction and allegiance of a country, irrespective of the.allegiance of his parents, except the child of an ambassador. U. S. v. Wong Kim Ark, 169 U. S. 649, 18 S. Ct. 456, 42 L. Ed. 890; In re Look Tin Sing
A person bom in the Philippine Islands of a Chinese father and a Filipino mother,' domiciled and residing in the Philippines, was admitted to bail in a deportation proceeding notwithstanding seetion 5, Act May 5, 1892 (Comp. St. § 4319) providing'that a Chinese seeking to land and denied shall be denied bail (In re Go Siaco,12 Phil. Rep. 490), and a person of similar status was held to be a citizen in Munoz v. Collector of Customs, 20 Phil. Rep. 494. The Supreme Court, in Gonzales v. Williams, 192 U. S. 1, 24 S. Ct. 177, 48 L. Ed. 317, held that “alien” has reference to persons owing allegiance to a foreign government; that citizens of - Porto Rico are not “aliens.”
Racially the petitioner may be a person of Chinese descent. Politically he is a native of the Philippine Islands. He is - under the immigration -laws neither an “alien” nor an “immigrant.” He is in a class by himself, as is a Chinese bom on the mainland of the United States, and is not within -the intent and meaning 'of the exclusion laws.
The writ is granted.
Supplemental Decision.
Almost immediately after filing the memorandum opinion on December 31, 1924, under press of other pending business, I found I had erred in not differentiating between a Chinese born on the mainland of the United States and the petitioner, by saying that a person bom on the mainland of the United States is, by reason of seetion. 1, art. 14, Const., a citizen and entitled to admission. (In re Look Tin Sing, supra), while the petitioner, a person - of, Chinese descent, by reason of birth on an insular possession and the provisions of the Chinese exclusion laws and the Act of April 29, 1902, which applies the exclusion provisions to Chinese laborers, whether in the Philippine Islands or not at the time of session, and this exclusion being carried into the Act of February 5, 1917, which expressly states in section 38 that the laws excluding persons of Chinese descent is not changed, and this intent being carried into the act of 1924, section 25 of which provides that no one shall be admitted if excluded by any former act, is of a different political status, as well as racial exclusion. The conclusion that the petitioner is not within the meaning of the exclusion laws is therefore erroneous, and should be is within the Exclusion Act, and the writ should be denied.
It is so ordered.