125 F. 627 | W.D.N.Y. | 1903
The Chinese persons above named "are awaiting removal from the United States to China pursuant to an order of removal dated June 3, 1903, made by Commissioner Heb-bard, before whom the appellants were adjudged Chinese laborers unlawfully in the United States. From the decree of deportation they have appealed to the District Court within the period of 10 days allowed by law. For Sing Lee it is contended that he is a British subject, and that, having been found to be unlawfully in this country, his removal therefrom should be to the Dominion of Canada, his place of domicile, and the country of which he is a citizen. Upon the hearing the appellant, in corroboration of his testimony as to citizenship, produced a passport issued and dated as long ago as January 17, 1901, by the Under Secretary of State of the Dominion of Canada, certifying that a Chinese person by the name of Sing Lee is a British subject by naturalization. It is provided by section 2 of the Chinese
For Hay Foon, it is asserted that he is a citizen of the United States by birth, and his permanent domicile and residence is in the city of Baltimore. The appellant’s testimony tended to establish his asserted citizenship and his right to remain in this country. Chew Wing, a witness for the appellant, gave testimony in support of this claim. As has been stated, the exclusion act expressly puts the burden upon Chinese persons to establish their right to remain in the United States. The burden does not shift because of the asserted claim of citizenship.
“By the law the Chinese person must be adjudged unlawfully within the United States unless he ‘shall establish by affirmative proof, to the satisfaction of such justice, judge or commissioner, his lawful right to remain in the United States.’ As applied to aliens there is no question of the validity of that provision, and the treaty, the legislation, and the circumstances considered, compliance with its requirements cannot be avoided by the mere assertion of citizenship. The facts on which such a claim is rested must be made to appear. And the inestimable heritage of citizenship is not to be conceded to those who seek to avail themselves of it under pressure of a particular exigency, without being able to show that it was ever possessed.”
I am unable to say from the evidence that the commissioner erred in not giving credence to appellant’s professions of citizenship. Having had the witnesses before him, he was enabled to carefully observe their manner and conduct in giving testimony; hence his judgment and decision upon the disputed facts must be given great weight. Some slight contradictions appear in the appellant’s showing; but the government does not rest upon any assumption that might arise therefrom. Evidence was given tending to show that, on the day preceding his unlawful entry into the United States, Hay Foon was seen by a government inspector on a passenger train proceeding from Hamilton, Canada, to the frontier at Buffalo, N. Y. He was accompanied by the appellant Sing Lee, and by another Chinese person named Chong Due, who was also found by the commissioner to be unlawfully in this country, but who has not appealed from the decree of deportation. The evidence on this point is positive and direct. Hay Foon testified, by way of explanation, that he went to Buffalo from Baltimore to meet his cousin Sing Lee, and awaited his arrival from Toronto at the depot in Buffalo, from whence he (Sing Lee) and Chong Due proceeded ta the city of Rochester, where all three were arrested and tried. Evidently the commissioner discredited the showing of the appellant and gave credence to that of the government. Sufficient reason does not appear for disturbing the finding of the commissioner.
The order of removal in each case is affirmed.