211 F. 939 | 2d Cir. | 1914
The United States Commissioner, for the Southern District of New York, after a hearing, issued an order on January 30, 1913, directing that the defendant be deported from the United States to China on the ground that he is unlawfully in the United States, being a Chinese person of Chinese descent and a laborer, and without a certificate of residence, as required for Chinese laborers under the act of Congress of May, 1892, as amended November 3, 1893. The defense is that he was a merchant and as such not required to have a laborer’s certificate.
The act of Congress made it the duty of certain Chinese laborers within the limits of the United States to apply to the Collector of their respective districts within six months after the passage of the act for a certificate of registration, and, in default .of compliance with the terms of the act, they were to be subject to arrest and deportation, unless, for certain reasons given in the statute excusing them, they were unable to procure the certificate required by law.
Section 2 of the act provided as follows:
“The words ‘laborer’ or ‘laborers,’ wherever used in this act, or in the acts to which this is an amendment, shall be construed to mean both skilled and unskilled manual laborers, including Chinese employed in mining, fishing, huckstering, peddling laundrymen or those engaged in taking, drying, or otherwise preserving shell or other fish for home consumption or exportation.
“The term ‘merchant,’ as employed herein and in the acts of which this is amendatory, shall have the following meaning and none other: A merchant is a person engaged in buying and selling merchandise, at a fixed place of business, which business is conducted in his name, and who during the time he claims to be engaged as a merchant, does not engage in the performance of any manual labor, except such as is necessary in the conduct of his business as such merchant.”
If the defendant was a merchant, he was not required to register under the terms of the act and could not be deported for failing- so to do, when found without a registration certificate. The period of registration was from and including May 5, 1892, to May 3, 1894. If the defendant was, in fact, a merchant during that period, he was not required by the act to register.
“We do not find it necessary to determine tbis question in the cases now before us.”
“The main purpose is to require the person to be a bona fide merchant, having in his own name and Tight an interest in a real mercantile business, in which he does only the manual labor necessary to the conduct thereof.”
It appears that in 1910 he contemplated a visit to China and applied for- a certificate that he was a merchant, which would entitle him to return to the United States, and that this was denied him on the ground that he was not a merchant but a laborer.
The court below attached, and we think properly, some significance to the fact that, although he was refused a certificate on April 8, 1910, no steps were taken to have him deported until October 22, 1912, two years and six months afterwards. If he was unlawfully within the country in 1910, it was the duty of the officials of the government to have taken steps at that time to have him arrested and deported. The fact that during this long period of inaction the government made no move against him implies a lack of confidence in its case. We are also inclined to attach some importance to the fact that the defendant voluntarily applied to the government officials in 1910 for a certificate to establish his status as a merchant. It is extremely doubtful whether he would have ventured to make such an application if he had entertained a doubt as to his ability to establish the facts necessary to sustain his application, with the danger of deportation threatening him if he brought the matter to the attention of the government and failed to secure the certificate.
We are confronted in this case, as in Chinese cases usually, with evidence more or less contradictory and inconsistent. The defendant’s testimony was considerably confused and we have noted that he contradicted his own testimony many times. But the fact is not to be overlooked that the only material, fact in the case is whether or not the de
The evidence upon the whole, unsatisfactory and incomplete though it may be, has led us to the conclusion that this man was in fact a merchant within the meaning of the statute during the registration period, and that he was therefore not required to have a laborer’s certificate.
The judgment of the court below is affirmed, and the defendant is discharged.