Ong Chew Lung v. Burnett

232 F. 853 | 9th Cir. | 1916

GIRBERT, Circuit Judge

(after stating the facts as above). [1] With the exception of the time occupied in a visit to China, the appellant had been 11 years domiciled as a merchant and as the minor son of Ong Hung, a merchant, in the United States, when proceedings for his deportation were commenced. If Ong Hung in 1903 was engaged solely in conducting a factory for the manufacture of materials furnished by others, he was not a merchant; but if, in addition to the work of a factory, he bought and sold goods, he was a merchant. The statement made by the appellant that his father (was engaged in conducting a factory for the manufacture of garments is not inconsistent with his testimony under oath that his father was also engaged in buying and selling garments. The status of Ong Hung seems to have been thoroughly investigated shortly prior to the time when the appellant first came to the United States, and Ong Hung’s affidavit, together with that of three white persons, was taken to the effect that Ong Hung was a merchant doing business at 210 Jackson street, under the firm name of Wing & Co., and the inspector in charge certified that Ong Hung’s mercantile status “has been established.” Again, at the time when the appellant returned to China in 1910, the local inspector examined the store of Kim Run Chong & Co., in which the appellant had an interest,, and certified that the mercantile status-of the ap'pellant was established as required by the rules of the Department.

[2, 3] The appellant was admitted in the first instance as the minor son of a merchant, and upon the established status of his father, who-was in possession of the certificate required by law. Before the appellant can be lawfully deported, it must be shown by competent evidence that he obtained admission by fraudulent representations. There is no evidence before the immigration officials, except the casual statement of the appellant above adverted to, which even tended to show that Ong Hung fraudulently acquired a status as a merchant in the United States. Ong Hung still remains in the United States under the protection of his merchant’s certificate, hi Liu Hop Pong v. United States, 209 U. S. 453, 28 Sup. Ct. 576, 52 L. Ed. 888, the Supreme Court said that the certificate ''certainly ought to be entitled to some weight,” and held that a Chinaman, having been duly admitted tO' residence thereunder, could not be deported “unless there is some competent evidence to overcome the legal effect of the certificate.”

It is not our function to weigh the evidence in this class of cases; but we may consider the question of law whether there was evidence to sustain the conclusion that the appellant, when he first came, fraudulently entered the United States. We find that that conclusion rests upon conjecture and suspicion, and not upon evidence. In the absence of substantial evidence to sustain the same, the order of deportation is arbitrary and unfair, and subject to judicial review. Whitfield v. Hanges, 222 Fed. 745, 751, 138 C. C. A. 199; McDonald v. Siu Tak Sam, 225 Fed. 710, 140 C. C. A. 584; Ex parte Lam Pui (D. C.) 217 Fed. 456.

The judgment is reversed, and the cause is remanded, with instructions to discharge the appellant from custody.