Wong Tee Toon v. Stump, Immigration Com'r

BOYD, District Judge (after stating the facts as above). In order to dispose of the case, it will be necessary in our opinion to consider only the first assignment of error, which is as follows: “It was an error to dismiss the writ of habeas corpus, as the petitioner is entitled to his liberty.” This brings us at once to the consideration of the proposition as to whether or not there was any evidence to sustain the action of the executive department in ordering the deportation of Toon. Referring to the facts in addition to those found upon the admission of Toon, the learned judge who heard the writ of habeas corpus made this statement : “All that was really new in the case made at Baltimore is that, very shortly after the boy arrived in California, the alleged father sent him clear across the continent to a laundryman here. The latter’s relationship, if any, to either the father or son, is, by petitioner’s witnesses, variously and vaguely stated. The statements of the man in question are of such a character as to lead the immigration officials to a conclusion that he is unworthy of belief. No letters have passed between the alleged father and the petitioner, and the former does not claim to have sent for the latter’s support during an entire year more than $60. At the conclusion of the hearing, the local immigration authorities decided that he should be deported.” In the investigation upon the arrival of Toon in this country, Wong, the father, and Gooey, the brother, together with Toon himself, testified that he was the son of Wong, the Oakland merchant. The inspector reported against admission on the ground that there were some inconsistencies in the statements of these three witnesses, not as to the paternity of Toon, but as to other matters, pertaining more particularly to the dwellings and locations of houses in the town in China in which these witnesses claimed to have lived; but upon a review of the case, the Department of Babor held that Toon’s claim had been established, that he was the minor son of Wong, and was entitled to admission, and a certificate of identity as heretofore stated was issued. The executive authorities now claim that the admission was procured by fraud, in that Toon is not the minor son of a member of one of the exempt classes. [1] The certificate which Toon holds must be treated, we think, as primary evidence of his right to be here, and in our opinion the executive authorities would not be justified in arbitrarily disregarding its effect. After the certificate is issued, it is our view that the burden is cast upon the government, in case a proceeding is instituted to attack it, to show by testimony which the law recognizes as evidence that it should be annulled before an order for deportation is warranted. Upon the arrival of Toon his claim to admission was investigated, and the Department solemnly adjudged that he was entitled to enter and remain. This, as we have said, cannot be arbitrarily disregarded. It is the privilege of the immigration authorities to prove, if they can, [197] that the certificate is invalid, and that its issue was procured by fraud; but they are not permitted to treat it as a nullity upon mere suspicion and conjecture. United States v. Chin Len, 187 Fed. 544, 109 C. C. A. 310. j 2-5] It will be observed that in the investigation in Baltimore Toon strengthened the direct testimony as to his paternity, for lie not only had the sworn statements of Wong, the alleged father, his brother Gooey, and himself, the three witnesses examined upon that question on his arrival in this country, but in addition he had the sworn statements of his brother Boo, who came to this country since 1913, and also that of Lee, the laundryman. Every one of these witnesses testified under oath that Toon was the son of Wong, the merchant. Yet the circumstances, which the judge below stated were all that was new in the case, are held by the Executive Department to be sufficient to authorize a reversal of the previous adjudication in Toon’s favor. Take ail of the new elements brought into the case at Baltimore as slated by the court; what do they show? Simply that Toon, after remaining with the Oakland merchant for about two months, was sent to Baltimore, and took up'his abode with Eee, the laundryman, and had remained there for about a year, when the investigation took place; that there was no correspondence between the alleged father and Toon during the time; and that so far as appeared the Oakland merchant had sent only $60 to Toon during the time. These are all, save the alleged inconsistencies and contradictions in the statements of Eee, the laundryman, which the court below says were of such a character as to lead the immigration officials to a conclusion that he was unworthy of belief. It is true that the inspector states that the laundryman, Lee, told him, when lie went into the laundry, that Toon was his son; but when Lee came to testify on oath he stated that the youth was the son of Wong, the Oakland merchant, and he also denied that he had told the inspector that Toon was his son. But, take it to be true that Lee made this statement to the inspector, so far as it appears here, it was only hearsay, for there is no suggestion that Toon, or rmy one who would feel called upon to contradict such statement, heard it. Chief Justice Marshall, in the case of Queen v. Hepburn, 11 U. S. (7 Cranch) 290, 3 L. Ed. 348, laid down the rule with regard to hearsay evidence which is generally accepted in this country, to the effect that hearsay evidence is incompetent to establish any specific fact which is susceptible of proof by witnesses who speak from their own knowledge. In commenting upon this character of testimony the Chief Justice said: “One of these rules is that ‘hearsay’ evidence is in its own nature inadmissible. That this species of testimony supposes some better testimony which might be adduced in the particular case is not the sole ground of its exclusion. Its intrinsic weakness, its incompetency to satisfy the mind of the existence of the fact, and the frauds which might be practiced under its cover combine to support the rule that hearsay evidence is totally inadmissible.” There was some testimony to the effect that Toon had been at work in a laundry. Toon himself denied this, as did also Lee and the colored washerwoman who worked for Lee; but, if it be a fact that [198] he did some work there, it would not affect his right to remain in this country, if he was entitled to admission when he came by reason of the fact that he was a son of a merchant. Ex parte Lam Pui (D. C.) 217 Fed. 456; United States v. Yee Quong Yuen, 191 Fed. 28, 111 C. C. A. 500; United States v. Foo Duck, 172 Fed. 856, 97 C. C. A. 204. There was some testimony in the investigation relative to the allegation that Toon had been sent to Baltimore to go to school, and that he had not attended any save the Sunday school. Wong testified that the reason that he had sent him to Baltimore to go to school was that the prejudice in California against the Chinese was such that it was not pleasant for a Chinese youth to go to school there, and it was further testified that the reaTson he had not attended school whilst in Baltimore was that he was not in good health. The learned judge who heard the case seems to have treated this circumstance as of no. importance, because he did not mention it as constituting any part of the new matter. To this view of it we readily agree. Brushing away, therefore, the irrelevant and inadmissible circumstances which were admitted in the case, and taking the only facts which remain, being those stated by his honor who tried the case, save the reference to Lee, the laundryman, we have as the sole basis of the Department’s action three facts, to wit: That a short time after Toon’s arrival in California, the alleged father sent him clear across the continent to the laundryman here (at Baltimore); that no letters have passed between the alleged father and Toon; and that the alleged father does not claim to have sent for Toon’s support during the entire year more than $60. We are not intending to hold that the weight of the evidence should govern in a case like this, for we fully recognize the law to be that the administrative officers aré authorized to deport an alien whenever there is evidence to warrant such action, and the courts have not jurisdiction to interfere in such case; but it is settled by numerous decisions that the courts may supervise the action of the executive authorities in these matters and reverse their rulings when there is no evidence to sustain them. I [6] Evidence is that which furnishes or tends to furnish proof, or, as is said by Mr. Edward Livingstone, it is “that which brings to the mind a just conviction of the truth or falsehood of any substantive proposition which is asserted or denied.” We take this quotation from Ex parte Lam Pui (D. C.) 217 Fed. 456. We do not think that the testimony in this case, as affecting the right of Toon to remain after a solemn adjudication that he was entitled to admission as one of an exempt class, possesses the probative value sufficient to dignify It as evidence that he perpetrated a fraud. When a Chinaman of an exempt class enters this country, intending to remain, he is not indulging a mere privilege accorded him by us, but he is exercising a right which is guaranteed to him by international treaty and the laws of the United States. He cannot be divested of this right upon a charge of fraud unsustained by competent and relevant evidence. We reiterate that we do not find evidence of that character in this record. [199] It is our conclusion, therefore, that Wong Yee Toon, the appellant in this case, should have been discharged from custody, and that it was error to dismiss the writ of habeas corpus. Reversed. 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