Moy Guey Lum v. United States

211 F. 91, 127 C.C.A. 515, 1914 U.S. App. LEXIS 1719

• Court: Court of Appeals for the Seventh Circuit
• Decided: January 6, 1914
• Docket: No. 2000
• Status: Published

Opinion

KOHL SAAT, Circuit

Judge (after stating the facts as above)'. In United States v. Wong Kim Ark, 169 U. S. 649, 18 Sup. Ct. 456, 42 L. Ed. 890, the court, after quoting the first clause of the fourteenth amendment to the Constitution reading as follows, viz., “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state in which they reside,” says, “and, this being true, the Chinese Exclusion Acts do not apply to .him.” The defendant in that case was the child of Chinese parents who, at the time of defendant’s birth, had a permanent residence in California and were engaged in commercial pursuits and not in any diplomatic or official capacity. The parents returned to China, but the son remained in California. When about 21 years of age he departed for China on a visit with the intention of returning. The court, on page 705 of 169 U. S., page 478 of 18 Sup. Ct. (42 L. Ed. 890), further says the question there presented was “whe'ther a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth, a citizen of the United States,” and thereupon decrees that under such circumstances he does become a citizen. This ruling was followed in Chin Bak Kan v. United States, 186 U. S. 200, 22 Sup. Ct. 891, 46 L. Ed. 1121; Re Giovanna (D. C.) 93 Fed. 660; Lee Sing Far v. United States, 94 Fed. 836, 35 C. C. A. 327.

[1] The question before us, therefore, is whether there was evidence before the commissioner and the District Court sufficient to establish to the satisfaction of the commissioner and District Court that respondent was lawfully entitled to remain in the United States.

Under the statute, a Chinese person be adjudged unlawfully within the United States unless he “shall establish by affirmative proof to the satisfaction of such justice, judge or commissioner, his lawful right to remain in the United States.” The decisions are numerous to the effect that in this class of cases, where the facts have been already determined by two judgments below, the appellate court cannot properly re-examine them. This language is used by the United States Supreme Court in Chin Bak Kan v. United States, supra. Where the question is one of fact as to whether the respondent is a native of this country, it has been held in some of the federal courts that the decision of the District Court will not be reversed on appeal. Yee Yet et al. v. United States, 175 Fed. 565, 99 C. C. A. 187; Chew Hing v. United States, 133 Fed. 227, 66 C. C. A. 281; Eng Choy v. United States, 175 Fed. 566, 99 C. C. A. 188.

In Lee Ah Yin v. United States, 116 Fed. 614, 54 C. C. A. 70, the court, on appeal, re-examined the facts, notwithstanding the judgment of the District Court affirming the order of deportation entered by the commissioner, and decided that such facts did not justify it in disturbing the judgments of the lower tribunals.

[2, 3] Undoubtedly, the language of the statute requiring that a Chinese person “shall establish by affirmative proof to the satisfaction” of the judicial officer before whom he is examined that he is entitled to remain in the United States should not be construed to invest that officer with arbitrary power. “By satisfactory evidence, which is sometimes called sufficient evidence,” says Greenleaf on Evidence, vol. 1, § 2, “is intended that amount of proof which ordinarily satisfies an unprejudiced mind beyond reasonable doubt.” The testimony had before the commissioner in the present case cannot be said to settle the question of citizenship of appellant beyond a reasonable doubt. The representations made by appellant to the inspector, introduced in evidence, discloses statements entirely at variance with his testimony before the commissioner. When asked what he did in Philadelphia, he replied, “Nothing, just loaf around.” When asked, “When did you come from China?” he answered, “When I was two or three years old.” When asked, “Where have you been living in the United States since you came back?” he replied, “Different places * * * long time in Philadelphia. * * * Left Philadelphia over ten years ago.” He further said he had been living in San Francisco since leaving Philadelphia; that he left there ten days ago; that he had lived there more than ten years, on Jackson street. He is made to say that he went to China when he was little and returned when he was two or three years old and had been in the United States ever since. If he told the truth before the commissioner, all of the above statements were false. As admissions, however, they serve to discredit the stqry he told the commissioner. Furthermore, his testimony as to the route he took in coming to this country was so remarkable as to justify the commissioner in scrutinizing his statement very closely. The further fact that he entered the United States surreptitiously was rightly taken into consideration by the commissioner. While the testimony of the alleged father seems on its face to be devoid of suspicious indicia, it must be remembered that the commissioner had the witness before him and was able to form an opinion as to his truthfulness from his conduct on the stand. The fact that the witness’ certificate of residence stated that he had lived two years in New York prior to the issuance thereof, whereas he states that he never had lived in New York, may have cast some discredit upon his testimony in the mind of the commissioner and the District Court. The father had not seen the son for about sixteen years according tq his own statement. Moy Wing, likewise, had not seen the appellant for the same period. He identified appellant only upon the father’s statement. Wong Kong had never met the father until the time of the trial. He saw the boy in China about a year before the trial and gave him funds sent by the father. He himself did not know the appellant prior to that time.

We have nothing to do with the weight of the evidence. Unless we can see from the record that the commissioner and the court arbitrarily ignored the evidence adduced and entered judgment of deportation in defiance thereof, we are not at liberty to. interfere. Under the facts of the present case, we,are unable to say that the appellant has proved beyond a reasonable doubt that he was entitled to remain in the United States.

Such being the case, the judgment of the District Court is affirmed.