United States v. Too Toy

HAND, District Judge (after stating the facts as above). I shall assume that under Liu Hop Fong v. U. S., 209 U. S. 453, 28 Sup. Ct. 576, 52 L. Ed. 888, the new trial granted upon appeal in these cases requires a complete examination de novo without regard to the commissioner’s findings, and I shall treat the case in that way, without deciding whether the defendant has a right to that or not. On the other hand, I shall likewise assume that section 3 of the act of 1892, 27 Stat. 25, applies, and that the burden rests upon the defendant in spite of the fact that the issue'is citizenship, and that he has been arrested in the country. It is quite true that in Moy Suey, 147 Fed. 697, 78 C. C. A. 85, a distinction is taken between a Chinese person entering the United States and so covered by United States v. Ju Toy, 198 U. S. 253, 25 Sup. Ct. 644, 49 L. Ed. 1040, and a Chinese person who has got in and is arrested here, but, that decision not being binding upon me, I cannot follow it. The doctrine of Ju Toy v. U. S., supra, which that case held had been implicitly affirmed in several previous cases, was this: The United States has the power to determine through the executive department the very issue of fact upon which its power of exclusion depends, and it is not enough to give jurisdiction to a court that that issue involves citizenship — a fact, which, if proved, would remove the applicant from the operation of the power. ' Now, if the issue on which the power depends may itself be determined by executive officers, as an incident to the exercise of the power itself, it can be of no consequence whether the alleged alien be at the borders of the country or within it. A citizen is as much 841 protected in his right to enter the country as in his right not to be deported, while he is here. Indeed, that was expressly assumed in U. S. v. Ju Toy, 198 U. S. at page 263, 25 Sup. Ct. 644, 49 L. Ed. 1040. The point in that case was whether one who might be a citizen could have that right taken from him by executive hearing, and the decision admitted and accepted that possibility. Even if it be conceded that there is greater likelihood of that possibility’s occurring in the case of persons arrested within the country, the power does not depend upon the unlikelihood of its depriving a citizen of his constitutional rights. It exists, because it is a necessary incident to an unquestioned constitutional power, to the exercise of which it is a reasonable adjective regulation. In Moy Suey v. U. S., supra, the court says that a citizen who has never gone out of the country may not be banished without judicial decision. This, it seems to me, involves two difficulties: First, it begs the question by assuming that the applicant had in fact always been within the country which alter U. S. v. Wong Kim Ark, 169 U. S. 649, 18 Sup. Ct. 456, 42 L. Ed. 890, would involve his citizenship; and, second, it assumes that a citizen’s rights are different after he leaves the country from what they are while in it, which, as I have already said, is not the law. A citizen, like any one else, must submit to that determination, if it he a reasonable adjunct to an admitted national power. Therefore I affirm the holding of the commissioner that the defendant must affirmatively show that he was born within the United States. I am certainly not satisfied by the evidence. All the witnesses are nearly connected with the defendant, and have a natural bias in his favor. This in itself might not be enough to justify me in disregarding it, were it not for the contradictory statements made by the defendant himself and his brother. Unless these are to be discredited, they are conclusive. I do not think I ought to disregard the testimony of the inspector, who was present at the time and whose contemporaneous notes are an undoubted record of what the defendant and his brother said, provided the inspector himself and his interpreter be not perjured. Allowing that his position may have’given him some interest in securing convictions, it would attribute to him a singular baseness to assume that he had put down at the time what he knew to be false. Of course, the interpreter might similarly have misstated the answers, but the motive is nothing like so powerful as that of all the defendant’s witnesses. I do not think that such an admission should be discredited. It is taken at once without preparation, and is the most likely expression of the truth. If the government were called on to make a case, the result would be doubtful, but I am distinctly proceeding upon the theory that it is not, and that the defendant has the burden. I agree with the finding of the commissioner that the proof is not satisfactory of the defendant’s birth in this country, and the order of deportation is therefore affirmed.