257 F. 489 | 6th Cir. | 1919
An authenticated copy of a partnership certificate was placed in evD dence, dated January 29, 1915, purporting to have been executed in pursuance of section 8099 of the Ohio General Code, and reciting that respondent and another were “interested as partners in the partnership transacting business under the firm name and style of the Sam Wah Company, with its principal office and place of business” at a named location in Toledo. Despite this, it is to be observed of respondent’s claimed purchase that his vendor is shown to have applied in Toledo, February 12, 1915, for a Chinese laborer’s return certificate, and stated, among other things, that he then owned a half interest in the Sam Wah Company. This must have been the partnership interest said to have .been purchased by respondent in the preceding month of January, and the testimony does not satisfactorily explain the discrepancy. It is conceivable, if indeed the sale transaction itself does not naturally import, thát the sale was not to be completed
Difficulty arises, also, from the course pursued by respondent from, the time of his arrival in Toledo, say about September 1, 1911, until August, 1916. In that period he was more or less engaged in cooking in the kitchens of restaurants and a grocery in Toledo. According to his own testimony and that of several Chinese witnesses, this work was done gratuitously; yet it is clear enough that he resorted to cooking to diminish, if not entirely to meet, his living expenses while seeking favorable opportunity to engage in some kind of mercantile business; but it is not shown why he continued this practice, although not so regularly, alter his interest in the partnership was actually paid for as claimed. True, such a course might have been consistent alike with the business he claims to have entered upon as a merchant and the observance of reasonable economy; in a word, it would seem that, at a time as late as the trial, convincing evidence should have been available to show that the partnersiiip and the certificate in that behalf were a sham, if in truth they were. Above all, the course pursued by respondent after his admission is not decisive of his right to remain in this country. There are other features of the record that must he. regarded as controlling.
Respondent introduced an original certificate of identity, dated July 19, 1911, and bearing the official seal and signature oí the immigration official in charge at San Francisco, also setting out respondent’s name, age, height, etc., and stating his occupation to be that of a merchant. This instrument purports to have been issued in conformity with a departmental regulation of March 19, 1909, and to have been “granted solely for the identification and protection of said Chinese person so long as his status remains unchanged.” The inspector, who examined respondent at the time of his arrival at San Francisco, was not satisfied with certain claims he made, or with his appearance, and recommended that his application for admission be denied. The application was afterwards taken to the law division, San Francisco, where the inspector in charge and another inspector on June 23, 1911, jointly determined, “after carefully considering the case,” that the recommendation for denial “be reversed and the applicant be admitted.”
Furthermore, it appears that, acting in compliance with the provisions of an act of Congress there alluded to, the viceroy at Canton, who had been designated for such purposes by the government of China, issued a certificate on April 24, 1911, showing that Do Hop was a member of one of the exempt classes described in such act of Congress, and as such had the permission of the government of China to go to and reside within the United States, after “investigation and verification of the statements contained herein by the lawfully constituted agent of the United States in this country,” giving a description of Do Flop, his former occupation as a merchant from 1902 to 1907, and his connection from 1908 to 1911 with a named firm at a stated place in Hong Kong. This certificate was viséed the following May 25th by the American consul general at Flong Kong after making, as
“Speaking generally, the Chinese Exclusion Acts are directed to prevent the unlawful coming of Chinese hilo the United States, and to remove those who liave come in unlawfully. - * * Thus far no indication appears that a Chinaman who has lawfully entered the United States may not chango his occupation after entry without risk of deportation.”
Now, it is to be remembered that in the instant case the respondent was not advised of any claim on the part of the government that he had effected his entry through fraud or misrepresentation; this is true of the affidavit under which he was arrested, and, so far as appears, of the proceedings had before the commissioner; moreover the government rested its case, as we have said, simply upon an admission of respondent that he was of Chinese descent and the consequent requirement on his part affirmatively to show his right to remain here; and, further, the decree contains no finding of fraud as to respondent’s entry and so is not inconsistent with a change of status and intention after his admission. The case differs in this respect from Lew Loy v. United States, supra, 242 Fed. at page 408, 155 C. C. A. at page 184, since it had there been found in the court below that Lew Loy had “really entered the United States as a laborer, and that his coming was in violation of the statutes of this government,” and yet this court was constrained to grant a rehearing because of complaint that the government’s counsel at the trial had made a “disclaimer of charge of fraudulent entry.” 242 Fed. 410, 155 C. C. A. 186.
It follows that as respects a Chinese person who has been admitted in apparent compliance with the treaty and acts of Congress as a member of a privileged class, in any proceeding instituted for his deportation on the basis of fraudulent entry seasonable notice of a charge to that effect must be given to him so that he may have fair opportunity to meet it; anything less than this would ignore the prescribed evidential effect of certificates issued and viséed pursuant to the treaty. We therefore agree with Judge Gilbert, who in Lui Hip Chin v. Plummer, supra, when speaking of the absence of a charge that appellant had entered with the intention of becoming a laborer or had procured his certificate as a merchant through fraud or misrepresentation, said (238 Fed. 765, 151 C. C. A. 615):
“If such fraud or misrepresentation was intended to be relied upon as the ground of his deportation, he was entitled to be advised of it.” Lew Loy Case, supra, 212 Fed. 411, 155 C. C. A. 181.
The decree is reversed, and the record remanded for further proceedings consistent with this opinion.
This is not affected by the provision of the certificate issued by the immigration officer at San Francisco in terms to identify and protect respondent only “so long as his status remains unchanged”; for that certificate, unlike the certificates issued by the viceroy and viséed by the American consul general, is, as we have seen, a departmental regulation and designed as a measure of convenience (Sibray v. United States, 227 Fed. 1, 4, 141 C. C. A. 555 [C. C. A. 3]), and of course can be effective only so far as it is within the law (United States v. Lou Chu, 214 Fed. at 463, 464 [D. C]; In re. Tam Ohung, 223 Fed. 801, 803 [D. C.]).