In re Can Pon

GIRBERT, Circuit Judge (after stating the facts as above). It is suggested that this court is without j urisdiction of the appeal, for the reason that the case presents questions of the application of the Constitution of the 'United States. We find no ground for so holding. If the case as brought to this court presented constitutional questions only, the appellate court jurisdiction of the Supreme Court would, of course, be exclusive. It is doubtful whether the appeal does involve the application of the Constitution. No such question is suggested in [482] the assignment of error or in the brief of either of the parties before this court. It is true that the petition alleges that certain rules promulgated by the Secretary of the Department of Commerce and Labor are unconstitutional, but those rules have been before the Supreme Court and have been sustained in United States v. Sing Tuck, 194 U. S. 161, 24 Sup. Ct. 621, 48 L. Ed. 917, and Chin Yow v. United States, 208 U. S. 8, 28 Sup. Ct. 201, 52 L. Ed. 369. But conceding that constitutional questions are presented in the record, it is clear that the appeal brings before us other questions not involving the application of the,Constitution, for the appellant complains of error in the court below, first, in holding that the appellee was denied a fair opportunity to prove his citizenship, and, second, in finding upon the evidence in the record that the appellee was born within the United States and is a citizen thereof. The presence of such other questions in the record gives this court appellate jurisdiction. The cases of Dimmick v. Tompkins, 194 U. S. 540, 24 Sup. Ct. 780, 48 L. Ed. 1110, and Chin Yow v. United States, 208 U. S. 8, 28 Sup. Ct. 201, 52 L. Ed. 369, which are referred to as denying our jurisdiction, go no farther on this point than to sustain the proposition that the appeal in such a case as this may, at the election of the appellant, be taken directly to the Supreme Court instead of to the Circuit Court of Appeals. In Spreckels Sugar Refining Co. v. McClain, 192 U. S. 397-407, 24 Sup. Ct. 376, 378, 48 L. Ed. 496, the court said: “Was the judgment of the Circuit Court subject to review only by this court, or was it permissible for the plaintiff to taire it to the Circuit Court of Appeals? If the case, as made by the plaintiff’s statement, had involved no other question than the constitutional validity of the act of 1898, or the construction or application of the Constitution of the United States, this court alone would have had jurisdiction to review the judgment of the Circuit Court. Huguley Mfg. Co. v. Galeton Cotton Mills, 184 U. S. 290-295, 22 Sup. Ct. 452, 46 L. Ed. 546. But the case distinctly presented other questions which involved simply the construction of the act, and those questions were disposed of by the Circuit Court at the same time it determined the question of the constitutionality of the act. If the case had depended entirely on the construction of the act of Congress — its constitutionality not being drawn in question— it would not have been one of those described in the fifth section of the act of 1891 (Act March 3, 1891, c. 517, 26 Stat. 827 [U. S. Comp. St. 1901, p. 549]), and, consequently; could not have come here directly from the Circuit Court, As, then, the case made by the plaintiff involved a question other than those relating to the constitutionality of the act and to the application and construction of the Constitution, the Circuit Court of Appeals had jurisdiction to review the judgment of the Circuit Court, although, if the plaintiff had elected to bring it here directly, this court would have had jurisdiction to determine all the questions arising upon the record.” See, also, Harris v. Rosenberger, 145 Fed. 449, 76 C. C. A. 225, 13 L. R. A. (N. S.) 762, and Hooper v. Remmel (C. C. A.) 165 Fed. 336. The case of United States v. Sing Tuck, 194 U. S. 161, 24 Sup. Ct. 621, 48 L. Ed. 917, was a case which involved constitutional as well as other questions. Appeal had been taken to the Circuit Court of Appeals. From the decision of that court the case was taken by certiorari to the Supreme Court. In that court the contention was made that the Circuit Court of Appeals had no jurisdiction of the appeal, but the Supreme Court sustained the jurisdiction. Such, also, is the effect of United States v. Ju Toy, 198 U. S. 253, 25 Sup. Ct. [483] 644, 49 L. Ed. 1040, a case which went to the Supreme Court on certificate from the Circuit Court of Appeals. In appi'oaching the question whether upon the record in this case the applicant for admission to the United States was denied such a hearing as the statute contemplates, we must find our guiding principles in the construction which the Supreme Court has placed upon the law in the Ju Toy Case and in the Chin Yow Case. In the Ju Toy Case it was ruled that in such a case as this due process of law does not require a judicial trial. In that connection the court expressly approved the doctrine of Nishimura Ekiu v. United States, 142 U. S. 651, 12 Sup. Ct. 336, 35 L. Ed. 1146, in which it was said that “the decisions of executive and administrative officers acting within the powers expressly conferred by Congress are due process of law.” In the Chin Yow Case the doctrine of the Ju Toy decision was modified, and it was held that habeas corpus might properly issue on behalf of a Chinese claiming to be a citizen of the United States, upon a petition showing that he was prevented by the officials of the Commissioner of Immigration from obtaining the testimony of certain designated witnesses, and allegations setting forth such facts were held to import that the petitioner arbitrarily was denied such a hearing and such an opportunity to prove his right to enter the country as the statute meant that he should have. In brief, it is the doctrine of these two decisions that an applicant for admission to the United States, detained upon the border thereof by the officials of the Department of Commerce and Labor, is not deprived of his liberty without due process of law if his rights are determined without a judicial trial, and that the decision of the officers is due process of law, with this limitation, that such officers must grant a hearing in good faith, something more than the semblance of a hearing, and must take the testimony pertinent to the questions involved of such witnesses as may be suggested by the applicant. This does not mean, and the decisions cannot be construed as holding, that the applicant is entitled of right to be present in person or by counsel at the taking of the testimony, or to be informed of the nature thereof, while it is being taken. In this respect we do not find that the investigation and proceedings before the officers at Sumas and at Seattle in the present case were conducted in such a manner as to deprive the applicant of due process of law. Nor, in the light of the record, are we able to assent to the conclusion reached by tiie trial court that the officers who conducted the examinations acted in a partial or arbitrary manner, or abused the discretion reposed in them, or acted upon improper testimony, or failed to conduct the investigation according to law and the rules i>£ the department, or that the applicant was denied a fair opportunity to produce his testimony. It is obvious that he, coming to the United Stales at the age of 15 years, after having lived in China since his early boyhood, could have no personal knowledge of the testimony that might or ought to be adduced in his favor. His father, Look Wing, represented him, produced witnesses in his behalf, and apparently presented all the testimony that was available. Look Wing, in testifying, had made such inconsistent and contradictory statements as to justify the severity [484] of the examination to which he was subjected. We do not find in the manner in which the examination was conducted any convincing evidence that the inspector was biased or that he was actuated by any purpose other than an honest desire to' sift the evidence and to ascertain whether it was free from the deception and imposition which it is well known is not infrequently attempted in this class of cases. But the applicant upon his appeal from the decision of the local officer was entitled to the benefit of all the material evidence which was before the inspector. To withhold any thereof, and to exclude it from the record on' the appeal, was to deny him the right of appeal which the statute gives him. The testimony of a witness which was on the whole favorable to the applicant’s contention was by inadvertence omitted from the record on the appeal, and was not considered on the hearing thereof. It makes no difference that such evidence was taken at the instance of the inspector, and that it never came to the attention of the applicant or his counsel; it was a portion of the evidence taken by the inspector as an officer of the government, whose duty it was to act impartially and to ascertain the truth as to the question at issue. A portion of the testimony so omitted was direct evidence to the effect that the applicant was born within the United States. The inspector discredited it, but the applicant was entitled to the benefit of it on the appeal. It is no answer to this to say that portions of the testimony of that witness tended to contradict certain statements of Took Wing. Having been denied the benefit of all the testimony taken upon the question of his right of admission to the United States, the applicant has been deprived of the right of appeal which the statute confers upon him, and he máy, therefore, upon habeas corpus, test the legality of his imprisonment. In re Monaco (C. C.) 86 Fed. 117; United States v. Wong Chung (D. C.) 92 Fed. 141; United States v. Chin Fee (D. C.) 94 Fed. 828; Rodgers v. United States, 152 Fed. 346, 81 C. C. A. 454; United States v. Nakashima, 160 Fed. 842, 87 C. C. A. 646. The 'court below, upon the new testimony adduced on the hearing upon the writ, found that the applicant was born in the United States and was a citizen thereof. Upon the appeal all questions of fact upon the evidence are open to consideration, and the findings of the court below are not conclusive upon us, as they would be in actions at law upon a waiver of a jury, or in cases in admiralty. Johnson v. Sayre, 158 U. S. 109, 15 Sup. Ct. 773, 39 L. Ed. 914. The finding, however, should not be set aside unless the evidence in the record is such as to convince an appellate court that it was erroneous. Quock Ting v. United States, 140 U. S. 417, 11 Sup. Ct. 733, 851, 35 L. Ed. 501. There are marked contradictions and inconsistencies in the testimony of Look Wing, and we are not impressed with the credibility of the excuse which is made that his memory had been impaired by recent illness. But the finding of the court below was based on the testimony of several witnesses who testified directly to the fact that the applicant was born in the United States, and the court was particularly influenced by the testimony of a white witness who had not testified on the original hearing. [485] Upon a consideration of the whole of the evidence, we are not convinced that there was error in the finding so made. The judgment, therefore, will be affirmed.