Ong Seen v. Burnett

GILBERT, Circuit Judge (after stating the facts as above). The appellant contends that he was not allowed a fair hearing in the proceedings for deportation. We find nothing in the record to sustain the contention. Throughout the hearing and at every session the appellant was represented by his own counsel, and every opportunity was afforded him to produce evidence. [1] The appellant relies principally on the contention that there is no evidence in the case to overcome the presumption that, having been admitted to the United States as a merchant, he liad the right to be and remain in the United Slates, and he argues that one who has lawfully entered the United Stales is not forbidden thereafter to change his occupation, and that he may do so without incurring the penalty of deportation. It may be conceded that the mere fact that an alien who has been domiciled as a merchant thereafter becomes a laborer does not in itself justify his deportation. But there is in tiiis case more than the mere fact of a change of occupation. There is evidence which we think might justify the immigration officers in [852] believing, as no doubt they did believe, that the appellant never in fact belonged to the merchant class, and that he was admitted in the first instance upon fraudulent representations as to his status as a merchant, for it is shown that almost immediately upon his arrival he engaged in the occupation of a peddler, and that has been his occupation during nearly the whole period of his residence in the United States. In United States v. Yong Yew (D. C.) 83 Fed. 832, it was held that, if one who has been admitted on certificate as a merchant of China immediately upon his arrival proceeds to and continues in employment as a laborer, that fact has a strong retroactive bearing as evidence of the intent with which he came here. To the same effect are Chain Chio Fong v. United States, 133 Fed. 154, 66 C. C. A. 220; Cheung Him Nin v. U. S., 133 Fed. 391, 66 C. C. A. 453. It is argued that the appellant’s course in becoming a peddler was the result of the great earthquake and fire at San Francisco, which occurred a few days after his arrivál, but the argument is not convincing. He has suggested no reason why he might not have entered into . business in some other city or town of California or elsewhere. He makes no showing that in fact he brought money with him when he first came from China, or that at any time he could have commanded money with which to enter into business during the first two years ofu his residence in the United States, and in fact he wholly fails to show any causal connection between the disaster of 1906 and his own failure to enter into business as a merchant. [2] It is contended that the appellant should have been discharged for the reason that the warrant under which he was taken into custody was fatally defective, in that it did not advise him of the charge against him, and so was insufficient to confer jurisdiction upon the Secretary of Labor. The warrant alleged that the appellant was unlawfully within the United States and had been found therein in violation of the Chinese Exclusion Laws, and was therefore subject to deportation; under Act Feb. 20, 1907, c. 1134, § 21, 34 Stat. 905 (Comp. St. 1913, § 4270). The warrant may have been subject to a motion to vacate, or so indefinite that the appellant was entitled to demand a bill of particulars. But he made no objection to proceeding thereunder, and the record proves that he was fully advised of the ground on which his deportation was sought, and that he met the charge with such testimony as was available. It is well settled that a defect in the warrant is no ground for the discharge of the petitioner on a writ of habeas corpus. Nishimura Ekiu v. U. S., 142 U. S. 651, 12 Sup. Ct. 336, 35 L. Ed. 1146; Toy Tong v. United States, 146 Fed. 343, 76 C. C. A. 621; Ex parte Hamaguchi (C. C.) 161 Fed. 185; Siniscalchi v. Thomas, 195 Fed. 701, 115 C. C. A. 501; United States v. Uhl, 211 Fed. 628, 128 C. C. A. 560; United States v. Williams, 200 Fed. 538, 118 C. C. A. 632; Healy v. Backus, 221 Fed. 358, 137 C. C. A. 166. The rule in all such cases, made obligatory by section 761 of the Revised Statutes (Comp. St. 1913, § 1289), is that the judge granting the writ shall on the hearing “dispose of the party as law and justice'require.” This means not as law and justice required at the time of the arrest, but as law and justice require at the time of the hearing. Iasigi v. Van De Carr, 166 U. S. 391, 17 Sup. Ct. 595. [853] 41 L. Ed. 1045; Motherwell v. United States, 107 Fed. 437, 455, 48 C. C. A. 97. We find no ground for holding that the appellant did not have a fair hearing, and we are not convinced that there was no substantial evidence to overcome the presumption arising from his possession of a certificate, and to sustain the conclusion that when he first came to the United States he did not belong to the merchant class. The order of the court below is affirmed.