United States ex rel. Moore v. Sisson

COXE, Circuit Judge. We think that three propositions are clearly deducible from the testimony as it appears upon the present record. First. The relators are Chinese persons not permitted by law to remain in this country. Second. “The country from whence they came” is Canada. Third. There is no evidence that they came from China; the contention that they did do so is based solely upon conjecture and presumption. [ 1 ] The officers of the government saw fit to bring the proceedings against these relators under the Immigration Act instead of the Chi^ nese Exclusion Acts and must follow strictly the provisions of the former act; they cannot invoke the provisions of both. Section 20 of the Immigration Act is explicit that 'the alien must be deported “to the country from whence he came.” That country is Canada. There is nothing deserving the name of evidence to show that these aliens came from China or any other foreign country. The briefs presented by the government refer to these persons as having been born in China and speak of that country as the land of their “natiyity and citizenship.” We are unable to find anything in the record to support this statement. Most of them testify that they were born in this country, either in New York or San Francisco. Assuming that this testimony is entitled to little weight, it does not aid the government’s contention. A finding that a Chinese person was not born in San Francisco does not prove that he was born in China. We can take judicial knowledge of the fact that there are Chinese persons in Canada and Mexico and, indeed, in almost all the countries of the world and that Chinese children are constantly being born in these countries. The mere fact that an alien is found to be a Chinese person does not prove that he came from China, or that he is a citizen of China or that he was ever within the bounds of the Chinese empire or republic. There are many Frenchmen here who were not born in France, many Englishmen who were not born in England, and many Germans who were not born in Germany. The deduction that a stranger of evident French nativity who is found in New York is a citizen of France and came here direct from that country would probably be thought absurd, but it is not easy to differentiate it from the assumption which we are asked to make in this ca'se. In other words, evidence that a person in the United States is born of Chinese parents falls far short of proving that he is a citizen of China or came here from China. [452] [2] We think that we are n'ot justified in discharging these re-lators, as they "have" no right to be here under our laws. The warrant of deportation should be amended bjr providing that the aliens shall be returned to Canada instead of China. Authority for such an amendment is found in Wong Wing v. United States, 163 U. S. 228, 238, 16 Sup. Ct. 977, 41 L. Ed. 140. It is said that the Canadian authorities will not accept these aliens, but with this suggestion we have nothing to do. So long as the proceedings are under the Immigration Act, its provisions must be strictly followed. The country whence these aliens came is unquestionably Canada arid there is no provision of that act which permits their-deportation to China. The orders of deportation should be amended as indicated.