United States ex rel. Dong Yick Yuen v. Dunton

MAYER, Circuit Judge. We deem it necessary to refer only to the contention of appellant that an affirmative duty rested on the board of special inquiry to inform appellant of the privilege to have a friend or relative present at the hearing before the board of special inquiiy. , ' . Upon the agreed statement of facts, it appears that relator’s alleged father and oldest brother were present and testified as witnesses on his behalf, but it does not affirmatively appear that these witnesses were present during the examination of the relator, nor that relator was informed that he might have one friend or relative present during such examination. Section 17 of the Act of February 5, 1917, provides in connection with board of special inquiry that— “All hearings before such boards shall be separate and apart from the public, but the immigrant may have one friend or relative present under such regulations as may be prescribed by the Secretary of Labor.” The inspection of Chinese by immigration officials is regulated by rule 3 of the rules governing the admission of Chinese, subdivision 3 of which provides as follows: [449] ‘‘Bearings. — Boards of special inquiry shall determine all cases as promptly as in the estimation of the immigration officer in charge the circumstances permit, due regard being had to the necessity of giving the alien a fair hearing. Hearings before the boards ‘shall be separate and apart from the public’; but the alien may have one friend or relative present after the preliminary part of the hearing has been completed: Provided, first, that such friend or relative is not and will not be employed by him as counsel or attorney; second, that if a witness, he has already completed the giving of his testimony; third, that he is not the agent or representative at an immigration station of an immigrant aid or other society or organization; and fourth, that he is actually related to or an acquaintance of the alien.” From the foregoing, it will be noted that neither the statute nor the' duly adopted rule provides that the alien shall be informed that he may have one friend or relative present. Whenever the board of special inquiry or any other officials charged with the administration and enforcement of the Chinese Exclusion Act or of the immigration laws are required to give notice or information to the applicant for admission, the statute or rule so states. U. S. ex rel. Waldman v. Tod (C. C. A.) 289 Fed. 761, 764, 765; U. S. ex rel. Ghersin v. Commissioner of Immigration at Port of New York (C. C. A.) 288 Fed. 756. Thus, in section 16 of the Act of February 5, 1917, it is provided: ‘‘In the event of rejection by the Board of Special Inquiry, in all cases where an appeal to the Secretary of Labor is permitted by this act, the alien shall be so informed and shall have the right to be represented by counsel or other adviser on such appeal.” It must always be remembered that the admission of aliens to the United States is a privilege and not a right and that the procedure is regulated by statute. If the statute fails to require notice, the courts have no power to write into the statute what was not put there by the Congress. Order affirmed.