222 F. 195 | 6th Cir. | 1915
The appellant, Lew Ling Chong, was arrested upon a warrant charging him with being “a Chinese person and a person of Chinese descent,” “unlawfully in the United States,” and “not lawfully entitled to be and remain” therein. This seems to be the complaint, and the only one, upon which appellant was tried and ordered to be deported; no pleading of any kind was filed by appellant. It appears, from the memorandum opinion of the commissioner, that at the hearing before him several witnesses were called by the government, and that only the father of appellant was called for the defense. The testimony there given is not embodied in the record. The cause was tried de novo in
The son, Lew Ling Chong, testifies that in August or September following his arrival at Seattle he be&an work in this store, giving its location by street and number, and stating that he was helping his father and “learning Chinese trade — business, that is — and selling goods”; that he was selling “Chinese drugs and general merchandise”; that “there are quite a few partners in the concern”; that his father was “buying and selling” in the store; that his “father’s name appeared on the book of that company”; that he knew of his father being in the store for three years after the son’s arrival; that he, the son, was in the store “a little over a year”; that on account of trouble (in the Chinese quarter) his father sent him to Youngstown, where he stayed about a year, taking private lessons from a woman who had married “a Chinese person." On cross-examination, he denied having worked in a laundry in Youngstown.
The testimony of these witnesses must be considered in connection with the facts that it was given through a Chinese interpreter, that the
“Except in cases under that section where the question of jurisdiction alone is certified, we have power to dispose of the entire case; but as the jurisdiction of the commissioner is sustained, we are of opinion that we cannot properly re-examine the facts already determined by two judgments below.”
In Tom Houg v. United States, 193 U. S. 517, 24 Sup. Ct. 517, 48 L. Ed. 772, the contention of the appellants was that they were entitled to remain in the United States, and no question of jurisdiction seems to have arisen. There had been two judgments below, one of the commissioner and the other of the District Court, and in the course of the opinion Mr. Justice Day said (193 U. S. 522, 24 Sup. Ct. 520, 48 L. Ed. 772):
“It is true that the findings of the commissioner and in the District Court in cases oí this character should ordinarily be followed in this court, and will*200 only be reconsidered when it is clear that an incorrect conclusion has been reached. Chin Bak Kan v. United States, 186 U. S. 193, 291 [22 Sup. Ct. 891, 46 L. Ed. 1121].”
Thus.it is plain that the Supreme Court does not in a case such as this regard itself as precluded from reconsidering the factg. It is to be added, as counsel say of the decision of this court in Bak Kun v. United States, 195 Fed. 53, 55, 115 C. C. A. 55, that, under the act of Congress, it is incumbent upon a Chinaman, charged with being unlawfully within the United States, to establish his right to remain by affirmative proof. For reasons already stated, we think it clear that the appellant has discharged the burden of proof resting upon him, either under the act of Congress or under the rule laid down by Mr. Justice Day and before quoted.
The decree must be reversed, and the cause remanded, with direction to discharge appellant.
Counsel for the government cite rule 19 of that department as the one under which the certificate was issued; but this was evidently an inadvertence, for rule 52a, adopted March 19, 1909, was in force at the time of appel-lánt’s entry. Yet this error is unimportant, since the two rules are substantially the same in the portions relevant here. And in our allusion to the rule we are not unmindful of the distinction urged between the effect of a departmental rule and that of an act of Congress, touching the evidential effect of a certificate. Liu Hop Fong v. United States, 209 U. S. 453, 463, 28 Sup. Ct. 576, 52 L. Ed. 888. This does not, however, prevent a certificate issued under the departmental rule from having some meaning, some probative significance, when it is considered in connection with a charge of fraud.