United States v. Fong Sen

205 F. 398 | E.D.N.Y | 1913

CHATFIELD, District Judge.

[1] Although under the provisions of section 6 of the act of May 6, 1882 (22 Stat. 60, c. 126 [U. S. Comp. St. 1901, p. 1307]), the United States may controvert the evidence of a merchant certificate, and hence may offer proof collaterally to contradict the determination by the immigration authorities that the Chinaman was entitled to land when admitted into the country,, the evidence in the present case does not show that the action of the immigration authorities in admitting Fong Sen was not correct, nor is there any reason to suppose that he was not so admitted.

[2] The burden was on Fong Sen to prove his proper admission and his status as a merchant. This has been done. He has been in the United States 16 years, appears to have been qualified as a merchant at the time of his arrival, and should not be deported. The record before the commissioner made a prima facie case upon which the order of deportation was properly entered; but, upon appeal, the failure of the defendant to present testimony has been explained, and satisfactory evidence, including that of two white witnesses, has been given.

The only evidence against the defendant is his statement, made at the time of his arrest, to the effect that he came from Hawana (which was understood to be Havana, Cuba, but now appears to be a section of Hong Kong), and his admission that he was a farmer up to the time he went to Hong Kong to obtain his merchant certificate. Since his arrival in the United States he has been working as a laundryman, but was also qualified as a merchant for several years.

It cannot be held that there is doubt of his actual intent to engage in mercantile life, and of his coming to the United States in that capacity. The order of deportation will be vacated, and the defendant discharged