Sing Tuck v. United States
128 F. 592
2d Cir.
1904
Check Treatment
LACOMBE, Circuit Judge.

The statutes relating to Chinese immigration provide a method whereby all Chinese persons seeking to enter the United States shall be examined by executive officers touching their right so to enter. It is also provided'in the act of August 18, 1894 (chapter 301, § 1, 28 Stat. 390 [U. S. Comp. St. 1901, p. 1303]), that “in every case where an alien is excluded from admission into the United States * * * the decision of the appropriate immigration or customs officers, if adverse to the admission of such alien, shall be final, unless reversed on appeal to the Secretary of the Treasury.” It is settléd by the decision in U. S. v. Wong Kim Ark, 169 U. S. 649, 18 Sup. Ct. 456, 42 L. Ed. 890, that a child born in the United States of parents of Chinese descent, who at the time of his birth were subjects of the Emperor of China, but had a permanent domicile and residence in the United States, and were not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States.

In Gee Fook Sing v. U. S., 49 Fed. 146, 1 C. C. A. 211, the Circuit Court of Appeals in the Ninth Circuit held that “the laws excluding immigrants who are Chinese laborers are inapplicable to a person born in this country * * *; that any person alleging himself to be a citizen of the United States, and desiring to return to his country from a foreign land, and that he is prevented from doing so without due process of law, and who on that ground applies to any United States court for a writ of habeas corpus, is entitled to have a hearing and a judicial determination of the facts so alleged; and that no act of Congress can be understood or construed as a bar to such hearing and judicial determination.” In this opinion we fully concur. We need not enter into the discussion of any constitutional questions presented on the briefs (and which do not come before this court for review). We are satisfied that, however broad the language of the exclusion acts may be, it was not within the intent of Congress to submit the right of a nativerborn citizen of the United States to return to the land of his birth, to the final determination of executive officers. When, therefore, a Chinese citizen of the United States is deprived of his liberty by an executive officer who is about to deport him, we are of the opinion that he is entitled to apply to the federal court for a habeas corpus to inquire into the cause of his detention. To entitle himself to such writ he must, of course, satisfy the court that he can at least make out a prima facie case in support of the proposition that he is a citizen. But when he has done that, and the writ has issued, he is not precluded from insisting upon a judicial investigation of the issue on any theory that the decision of the immigration officers is final, or that he has failed to conform to some of the regulations required in the case of Chinese persons who are aliens.

The order of the Circuit Court is reversed, and cause remanded for inquiry into the status of the individual relators. This disposition of the cause is not to be taken as an expression of opinion as to whether in any of the cases a prima facie case even was made out by petitioner.

*594It has been suggested that this decision will affect a large number of pending causes, and will seriously interfere with the execution of the Chinese exclusion laws in the district. If the district attorney wishes to apply to thh Supreme Court for a certiorari, the mandate will be held until he shall have had a reasonable opportunity so to do.