238 F. 763 | 9th Cir. | 1917
(after stating the facts as above).
“While this certificate may be overcome by proper evidence and may not have the effect of a judicial determination, yet being made in conformity to the treaty, and upon it the Chinaman having been duly admitted to a residence in this country, he cannot be deported, as in this case, because of wrongfully entering the United States upon a fraudulent certificate, unless there is some competent evidence to overcome the legal effect of the certificate.”
In United States v. Hom Lim (D. C.) 214 Fed. 456, 463, the court, following the decision in the Uiu Hop Fong Case, said:
“The decision of his right to enter was presumptively correct, and, unless the United States shows persuasively to the contrary, the mere certificate of admission is sufficient.”
In Ex parte Wong Yee Toon (D. C.) 227 Fed. 247, 251, the court said:
“Such a certificate imports at least prima facie verity. It cannot be treated as if it had never existed. Some evidence must be produced to justify the immigrant officials denying to it its usual arid appropriate effect.”
In Wong Yee Toon v. Stump, 233 Fed. 194, 196, 147 C. C. A. 200, the court said:
“After the certificate is issued, it is our view that the burden is cast upon the government, in case a proceeding is instituted to attack it, to show by testimony which the law recognizes as evidence that it should be annulled before an order for deportation is warranted. ■* * * It is the privilege of the immigration authorities to prove, if they can, that the certificate is invalid, and that its issue was procured by fraud; but they are not permitted to treat it as a nullity upon mere suspicion and conjecture.”
In McDonald v. Siu Tak Sam, 225 Fed. 710, 140 C. C. A. 584, the court said:
*766 “The appellee was regularly admitted on certificate as a Chinese merchant. He had $1,000 on his arrival, and received from China some time later a remittance of an additional $1,000, and at the time of his arrest still had about $1,300 to $1,400. He had continued to seek, and was seeking at the time of his arrest, a place to locate as a merchant. He admitted that he was engaged in ironing some of his own clothing in the laundry of his cousin at Hibbing at the time of his arrest. Accepting the ex parte affidavits of Williams, Mitchell, and Johnson for all that can be claimed for them, they add nothing to his admissions, except that Williams says there was a pile of freshly ironed shirts on the table, where appellee was standing with iron in hand, when he entered the laundry, and that he was dressed as if he were engaged in that sort of work. This evidence falls far short of establishing that appellee was at that time engaged as a laborer, especially so when taken in connection with the other testimony in the case.”
In United States v. Yee Quong Yuen, 191 Fed. 28, 111 C. C. A. 500, the court said:
“The worst of his offending was that he worked for his board at a laundry for a few months prior to his arrest, and while he and his father were attempting to find a new business for him. This state of facts, in our opinion, discloses no abandonment of the father’s status, or no voluntary adoption of any new status by the son.’’
A careful consideration of the record, not for the purpose of weighing the evidence, but for the purpose of ascertaining whether the Secretary of Labor had jurisdiction to order the deportation, leads to the conclusion that there is no evidence upon which, as a matter of law, deportation can be based, and that the conclusion that the appellant obtained a merchant’s certificate fraudulently rests only upon suspicion and conjecture.
The judgment is reversed, and the cause is remanded, with instructions to discharge the appellant.
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