92 F. 141 | N.D.N.Y. | 1899
(after stating the facts). The court cannot resist the conclusion that the defendant has not, as yet, had a fair-hearing. Upon the faith of a passport, issued under the treaties and laws of the United States, signed by -the registrar general and viséd by the United States consul general at Hong Kong, the "defendant has-journeyed many thousand miles to secure advantages to which he is entitled if the statements of his certificate be true. He was turned back without even the pretense of a legal investigation. He was arrested, imprisoned and ordered back to China without a single fact to warrant such a course appearing on the record. The action of the collector was based upon an irrelevant rumor. It would be a misnomer to call it hearsay evidence; it was not evidence at all. In an ordinary conversation Mr. Clemenshire told the collector not what he knew, but what he had been told by some unnamed person. It was conjecture only. It was the merest shadow, not the shadow- of
When he left Malone the collector was, apparently, satisfied that the defendant was entitled to enter the United States. He knew nothing against the defendant. His papers were regular; his identification complete. Mr. Clemenshire knew nothing of the defendant, but he had heard something; where he heard it, when he heard it and from whom, does not appear. He had heard that "where the defendant was going was in Hartford, Conn., was in laundry.” This is the sole basis for the collector’s telegram ordering the defendant back to Montreal. No witness was sworn, no statement was reduced to writing, no written decision was made and no reason for his action was ever given by the collector to the defendant, -who had no opportunity to answer or explain the rumor regarding his destination. With the aid of electricity and steam the defendant was sent forthwith out of the country. No opportunity to appeal was given.
In Gin Fung’s Case, 89 Fed. 153, the court says:
“The time for appealing does not expire until two days after the decision; yet the petitioner was being hurried away to China on the very day of the pretended hearing. A decision which denies the right of appeal is not the decision which the statute intends shall he final.”
See, also, In re Monaco, 86 Fed. 117.
No doubt the courts have gone far in sustaining the autocratic power vested in the officers of the customs under the acts in question. The widest: latitude is given, and no doubt such authority is necessary and proper, hut in every reported case where the decision has been upheld some semblance of legal procedure has been observed. The courts should not, unless the language of the law is too plain to admit of doubt, throw down every barrier which the rules of the common law have erected against the encroachment of arbitrary power. Not only was the information obtained from Mr. Clemenshire of a character too unreliable to sustain the action of the collector, hut if true and proved to he true it was a wholly immaterial circumstance, in no way affecting the defendant’s right to enter the United States. A student may go to a laundry or he may live at a laundry without changing his status as a student. In U. S. v. Chu Chee, 87 Fed. 312, not only did the defendants, who were minors, reside in a laundry but their father was the laundryman. They were shown to he students and were permitted to remain.
When the collector’s action is founded upon a total misconception of the law the invalidity of his proceedings is recognized by the courts. In Re Leong Youk Tong, 90 Fed. 648, the court says:
“If, in this case, the collector had in fact decided * * * that the petitioner was a merchant, and as such, entitled to admission into the United States, but that he was denied admission for some other reason not connected with his status as a merchant, and not by statute or treaty made a ground of exclusion the order of deportation would undoubtedly be void.”
Again, it is doubtful, at least, whether the collector ever made such á decision as is contemplated by The statute. It is difficult to perceive hów his actiofi is entitled to any probative force whatever. When he concluded to reject the defendant he was in New York. His direction to Mr. Shufelt was by telegram. The telegram was not produced. No reason for his action was given. No fact was found by him. No conclusion was stated. While’ the collector was still in New York the defendant was returned to Montreal. The collector’s report of his proceedings made a month afterwards cannot, of course, be regarded as a “decision” on which the rejection of October 15th was based. It will be noted as indicating the unreliable character of the proceedings before the collector, when offered as proof of the defendant’s status, that in the report of November 10th he bases the rejection upon a ground which there appears for the first time, namely, “We rejected and returned to Canada Ma Thui and Wong Chung as their stories were conflicting and contradictory.” This statement seems to be unsupported so far as the record is concerned, but if true it states no fact which warrants the deportation of the defendant.
The question presented by this appeal is whether the commissioner was concluded from considering the defendant’s right to remain in the United States upon the merits because of the so-called decision of the collector. In other words, was this decision a bar to further investigation and conclusive evidence against the defendant? This question the court is constrained to answer in the negative, for the following reasons:
First. There was no decision such as the law contemplates. The decision, if there was one, was too informal, uncertain and contradictory to be accepted as an estoppel, or as conclusive evidence of any fact. ■ In re Grin Fung, 89 Fed. 153.
Second. There was nothing before the collector authorizing the rejection of the defendant. The unsupported rumor on which he acted offered no statutory ground for rejection even if true. It is thought, moreover, that a decision by the collector, even if valid and based upon legal proof, would not operate as a bár in a subsequent proceeding before a commissioner. The cases holding such decisions to be final were, in a great majority of instances, rendered in habeas corpus proceedings to review the action of executive officers of the government vested by congress with the exclusive authority to admit or exclude aliens seeking admission to this country. Lem Moon Sing v. U. S., 158 U. S. 538, 15 Sup. Ct. 967, and cases cited; In re Moses, 83 Fed. 995.
The attention of the court has not been called to an authority for the proposition that the decision of an executive officer is final in an entirely distinct judicial proceeding. A United States commissioner is an officer charged by law with the duty of investigating these cases. He cannot order a Chinese person deported until such person is brought before him and “found to be one not lawfully entitled to re
A portion of the argument of the district attorney is based upon alleged facts not appearing in the record. The court, on appeal, is not permitted to consider such facts.
The conclusions reached are as follows:
First. The decision of the collector cannot be regarded “as a plea, a bar and as evidence conclusive” in a subsequent judicial proceeding under a different law and to determine a different question.
Second. Even though the foregoing proposition were doubtful, tbe record in the present case fails to show a decision which justifies the conclusion that the defendant was unlawfully in the United States.
Third. As the United States relied in good faith upon the conclusive character of the collector’s action as evidence, it should have an opportunity to ofi'pr such proof as it may be advised to rebut the prima facie case made by the defendant.
The judgment is reversed and the case is remanded to the commissioner to hear and determine the same upon such proof, in accordance with this opinion, as the parties may offer.
A similar order should be made in the case of Ma Suey.
