Wong Back Sue v. Connell

233 F. 659 | 9th Cir. | 1916

HUNT, Circuit Judge

(after stating the facts as above). [1] Rule 22, promulgated by the Bureau of Immigration of the Department of Labor, provides in part (subdivision 4, paragraph “b”) as follows:

“During ttie course of the hearing the alien shall he allowed to inspect the warrant of arrest and all the evidence on which it was issued; and at such stage thereof as the officer before whom the hearing is held shall deem proper, he shall be apprised that he may thereafter be represented by counsel and shall be required then and there to state whether he desires counsel or waives the same, and his reply shall be entered on the record. If counsel be selected, he shall be permitted to be present during the further conduct of the hearing, to inspect and make a copy of the minutes of the hearing, so far as it has proceeded, and to offer evidence to meet any evidence theretofore or thereafter presented by the government. Objections and exceptions of counsel shall not be entered on the record, but may be dealt with in an accompanying brief. If during the hearing new facts are proved which constitute a reason additional to those stated in the warrant of arrest why the alien is in the country in violation of law, the alien’s attention shall be directed to such facts and reason, and he shall be given an opportunity to show cause why he should not be deported therefor.”

While this rule may be so arbitrarily applied by immigration officials as to deprive an alien of a full and fair hearing and violate his fundamental rights, as shown in Ong Chew Lung v. Burnett, 232 Fed. 853, - C. C. A. -, in our opinion the rights of the petitioner herein have not been transgressed. His examination appears to have been simply and fairly conducted. The questions asked were confined to material matters, and were expressed in very direct language, apparently used with no desire on the part of the inspector to entrap or oppress or “catch” the alien.

The question, therefore, is whether the fundamental rights of the alien were infringed by the action of the immigration officer in not telling the alien that he could inspect the warrant of arrest and that he had a right to counsel, and inquiring if he wished to avail himself of the right, until after direct preliminary examination of the alien by the inspector had been practically ended. If there were nothing in the record to counteract the injustice of such a course of procedure, we would be very strongly disposed to hold that the alien was not given a fair hearing, as required by law. But -it expressly appears that, before any testimony was heard by the inspector, the warrant was read and explained to the alien, and that he was advised of the nature of the proceedings, and that he could be released on bail during their pendency. And while it would seem to be just that prior to a hearing before the immigration officials an alien should also be told of his right to have counsel at the hearing, yet, considering tire information given to this petitioner, we cannot say that omission to tell him of his right until after material questions were put and answered invalidated the whole proceeding.

The case of Low Wah Suey v. Backus, 225 U. S. 460, 32 Sup. Ct. 734, 56 L. Ed. 1165, is determinative of the point under consideration. The court there states the settled rule of decision that hearings before executive departments or subordinate officials with respect to aliens found to be in the United States unlawfully may be made conclusive when fairly conducted, and that no successful attack by judicial proceedings upon the conclusions and orders made upon such hearings can be made, unless it be shown that the proceedings were manifestly unfair, that the actions of the executive officers were such as to prevent a fair investigation, or that there was a manifest abuse of the discretion committed to them by the statute. The court was there considering a case where an order of deportation had been made, and the contention of the petitioner was that the Chinese person ordered deported was refused the right to be represented by counsel during all stages of the preliminary proceedings, and was examined without the presence of her counsel and against her will by the immigration officer and before she had been advised of her right to counsel, and before she was given an opportunity of securing bail, and that afterwards she was examined by the immigration officer against her will and without the presence of her counsel, who was refused permission to be present, and that at certain stages of the proceedings she was refused the right to consult with counsel. The court said:

“This objection, in substance, is that under examination before the inspection officer at first she had no counsel. Such an examination is within the authority of the statute, and it is not denied that at subsequent stages of the proceedings and before the hearing was closed or the orders were made she had the assistance and advice of counsel.’'

The court, mindful of the summary character of the hearing provided by statute, did not regard the actions of the immigration officials as having deprived the alien of a fair hearing. The immediate case can rest upon a much surer basis than that did, because, as already said, the nature of the proceedings was first explained to the alien, who was told of his right to have bail pending investigation, and who, before the hearing was closed, was not only told of his right to have counsel, but at his request was granted two adjournments that he might consult with his friends and obtain professional aid and advice; and it was not until after he had stated that he could not get counsel and told all that he knew that findings were made which led to the order of deportation by the Assistant Secretary of Labor.

[2] Objection to the admissibility of the train inspection card because of lack of identification is not well taken. The card was attached to the application for warrant of arrest; it was shown and read to the alien at his hearing before the immigration inspector. On its face it appeared to have been made out by an immigration inspector and appeared to be a part of the files of the Bureau of Immigration.

[3] The photograph which was also introduced at the hearing was shown to the alien and identified as a picture of himself.

[4] It is urged that the petitioner, if he was out of the United States, holding a certificate of residence as he did in the United States, had a right to re-enter the United States at Calexico, that being a designated port of entry under Rule 13, Immigration Rules of November 15, 1911. But the record shows that this petitioner was, and is, a subject of China, of the Chinese race, and a native of China, and by occupation a laborer. Exercising the authority conferred upon him by law, on January 24, 1914, the Secretary of Labor issued rules governing the admission of Chinese, and these rules superseded all previously issued rules and regulations and circulars of instruction regarding the enforcement of the Chinese Exclusion Laws inconsistent therewith. Rule 1 of the rules provides that:

“No Chinese person, other than a Chinese diplomatic or consular officer and attendants, shall be permitted to enter the United States elsewhere than at the ports of San Francisco, Cal.; * * * San Diego, Cal.”

—except where the Chinese are seeking admission or readmission to the United States from the Orient through Canada, when special provision is made to apply. Further, by rule 13 of the rules approved January 24, 1914, it is provided that any Chinese laborer claiming the right to leave and return to the United States in accordance with sections 5 to 7 of the act of September 13, 1888, shall make written application to the immigration officer located nearest to his place of residence for preinvestigation of his claim as is specifically provided for in subdivision “a” of the rule. He is also required by the rule (subdivision “h”), to give a full -description of himself, and to name “the port at which he expects tá depart from the United States, which shall be one of those designated in rule 1.” Thereafter investigation of the allegations made by the applicant is had, and' the applicant is required to present duplicate of the application to the officers at the port of his departure. On the return of the applicant, it is provided by subdivision “i” of the rules, the original application is compared with the duplicate on file, and, after proof of identity, readmission is granted.

The only conclusion to be reached from an examination of 'these several rules is that the petitioner, béing an alien laborer, had no right to leave the United States through any California port other than San Diego or San Francisco, and had no right to return to the United States except through the port from which he departed. United States v. Tuck Lee (D. C.) 120 Fed. 989.

[5] Petitioner argues that there is no proof of his entering into the United States. But the sworn statements of witnesses attached to the record filed by the petitioner clearly show that the alien was seen in Mexico shortly before he was found in the United States. The certificate of residence held by the alien became of no avail to him after he left the United States without procuring a return certificate. This would seem to be so because of the prohibition against leaving without first procuring a return certificate .and without a proper re-entry through the port of the alien’s departure. When, therefore, the question of his right to remain in the United States became involved, and the evidence showed that he had been in Mexico, it devolved upon the alien to show that his departure was lawful. Bun Chew v. Connell, 233 Fed. 220, - C. C. A. -. And inasmuch as the alien in this case took the ground that he never had been out of the United States, he ought not to be heard to say that his entry into the United States from Mexico was lawful.

[6] The last point made by the appellant is that even if the government’s position is sound, and that the petitioner came into the United States from Mexico, then he should be deported to Mexico. This question was presented in Bun Chew v. Connell, as Inspector, supra, where we held that, under circumstances analogous to those herein, China was the country whence the alien came, and -cited -to sustain our ruling Lewis v. Frick, 233 U. S. 291, 34 Sup. Ct. 488, 58 L. Ed. 967, Lee Sim v. United States, 218 Fed. 432, 134 C. C. A. 232, and Ex parte Chin Him (D. C.) 227 Fed. 131.

Affirmed.

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