United States ex rel. Shue Quey v. Pierce

285 F. 663 | S.D.N.Y. | 1922

LEARNED HAND, District Judge.

[1] It is conceded that, if the relator was the blood son of a Chinese merchant, not a citizen, he would be admitted. United States v. Gue Lim, 176 U. S. 459, 20 Sup. Ct. 415, 44 L. Ed. 544. Moreover, it has been decided in this circuit (United States v. Lee Chee, 224 Fed. 447, 140 C. C. A. 649, Ex parte Fong Yim [D. C.] 134 Fed. 938) that the same doctrine applies to adopted children. There would on this account be no question that, if the foster father were a Chinese merchant, as he is, but not horn in the United States, the relator might enter. Tl\e result, if the writ fails, will be that because of his American citizenship the foster father is prevented from bringing in his adopted children, and by a parity of reasoning it must follow that he cannot bring in his blood children, and, so far as I can se.e, his lawful wife. Concededly in the case of none of these does their citizenship follow his.

[2] While this is an obviously unjust result, the reasoning by which it is reached is not without formal cogency. The right of a merchant to bring in his wife and blood children was in United States v. Gue Lim, supra, held to depend upon rights arising under the treaties of 1880 and 1894 (22 Stat. 826 ; 28 Stat. 1210), which it was thought Congress could not have intended to take away by the broad language of the Exclusion Acts, though that was literally quite in point. Citizens of the United States do not, of course, enjoy such rights, and the argument is that their dependents cannot, therefore, avail themselves of the treaty rights, without which the Exclusion Acts would prevent their entry. It must be conceded that, taken literally, this argument is unanswerable. But, taken literally, the argument for exclusion was unanswerable, when applied to the wives of Chinese merchants, not citizens, and the Supreme Court acknowledged as much in United States v. Gue Lim, supra. The result in that case followed from an intention imputed to Congress which the words of the statute alone would hardly have justified.

I think that the same reasoning ought equally to make this case an exception from the statute. It is, of course, inconceivable that, had Congress been faced with the result, it would have wished to leave American merchants of Chinese descent under a disability which Chinese merchants did not suffer. It may be argued, if one will, that the Exclusion Act should never have been read with any exceptions, but with that I have nothing to do. It being determined that it does not speak literally, an exception founded upon an assumed purpose not to discriminate against American citizens is, if anything, more persuasive than an exception based upon a purpose not to violate treaty rights. The interpretation of the courts may be right or wrong, but it should at least attribute a purpose to Congress which is not in conflict with itself, as this clearly would be if the respondent’s position were upheld.

It does not follow, of course, that the adopted, or blood, child of a Chinese laborer born in the United States would fall within the same rule. That case may await its occurrence; all I have to do here is to hold that a foster father of American birth does not by that fact lose any of the rights which he would have if he had chanced to be born in China, and that his citizenship puts him at least on an equality with Chinamen.

Relator discharged.

<Sxs>For other cases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes