Moy Jik v. United States

47 App. D.C. 498, 1918 U.S. App. LEXIS 2450

• Court: Court of Appeals for the D.C. Circuit
• Decided: April 1, 1918
• Docket: No. 3079
• Status: Published

Opinions

Mr. Justice A"an Oksdee

delivered the opinion of the Court:

Appellant was apprehended under the Act of Congress of May 5, 1892 (27 Stat. at L, 25, chap. 60, Comp. Stat. 3.916, sec. 48 i 7), entitled “An Act to Prohibit the Coming of Chinese Persons into tlic United States.” Section 3 of the act. provides “that any Chinese person or person of Chinese descent arrested under the provisions of this act or the acts hereby extended shall be adjudged to be unlawfully within the United States unless such person shall establish, by affirmative proof, to the satisfaction of such justice, judge, or commissioner, his lawful-right to remain in the United States.”

If appellant was born in the United States, he. is a citizen of the United States by virtue of the first clause of the 14th Amendment to the Constitution, which provides that “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 wherein they reside.” United States v. Wong Kim Ark, 160 U. S. 649, 42 L. ed. 890, 18 Sup. Ct. Rep. 456.

3n the present case, where the defendant sets up the claim that he is a native-born citizen, much depends upon the character and extent of the “affirmative proof” essential, under the statute, to sustain the burden of establishing to the satisfaction of the court “his lawful right to remain in the United States.” It was contended in the case of Chin Bak Kan v. United States, 186 U. S. 193, 46 L. ed. 1121, 22 Sup. Ct. Rep. 891, that the mere claim of citizenship by a Chinaman on the ground that he was born in this country deprived the commissioner of jurisdiction to inquire further into the ease, but disposing of this contention the court said: “But it is argued that the commissioner had no jurisdiction to act because the claim of citizenship was made. * * * It is impossible for us to hold that it is not competent for Congress to empower a United States commissioner to determine the various facts on which citizenship depends under that decision. [United States v. Wong Kim Ark, supra.] By 'the law the Chinese person must 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.’ As applied to aliens there is no question of the validity of that provision, and the treaty, the .legislation, and the circumstances considered, compliance with its requirements cannot be avoided by the mere assertion of citizenship. The facts on which such a claim is rested must be made to appear. And the inestimable heritage of citizenship is not to be conceded to those who seek to avail themselves of it under pressure of a particular exigency, without being able to show that it was ever possessed.”

it will be observed that the court was there considering primarily the question of jurisdiction of the commissioner to make till' investigation, and not the question of the burden of proof. True., it is said that compliance with the provisions of the statute “cannot lie avoided by the mere assertion of citizenship;’’ but this is far from holding that the same degree of proof shall be required of one establishing his right to remain because he is a native-born citizen, and an alien who has come into the country and is attempting to avoid deportation. In the one instance, there is the lawful presumption of the right to remain; and, in the other, the lawful presumption in favor of deportation. This is not inconsistent with the provisions of the statute which requires the person to establish by “affirmative proof” to the satisfaction of the court his right to remain. This merely means proof to establish a prima facie case sufficient to call for rebuttal. The circumstances of each case measures the weight of the burden to bo home.

This interpretation of the statute is not inconsistent with the opinion in the Chin Bale Kan Case, and it is fully in accord with the opinion of this court in the ease of Chin Wah v. United States, 43 App. D. C. 38, where, Chief Justice Shepard, speaking for the court, said: “The witnesses were unimpeached, and their testimony made a prima facie ease of Chin Wall’s birth in the United States and consequent citizenship. Ft is true that sec. 8 of the Act of May, 1892, provides that a Chinese person, or person of Chinese descent, arrested under the provisions of this act or the acts hereby extended, shall ho adjudged to be unlawfully in tlie United Slates unless such person shall establish, by affirmative proof to the satisfaction of such justice, judge, or commissioner his lawful right to remain in the United States. It has been held by the circuit court of appeals for tho seventh circuit that this provision does not apply in the case where the defendant asserts citizenship of tho United States, and tliat the burden of proof is upon the. government in such,a case. Moy Suey v. United States, 78 C. C. A. 85, 147 Fed. 697, 699. It is not necessary to decide this question; for it seems that the testimony was sufficient to establish" the fact as required by the section. It does seem, however, that, where a Chinese person has lived in the United States for a long period of time, and when arrested claims that he was a citizen of the United States by virtue of his birth in one of the. States of the Union, the government should have the burden of overthrowing the case made by the defendant.”

In the present case it is urged that the conclusions of the, commissioner and the court on questions of fact are not subject to review- on appeal. We are aware of a line of Federal cases in which the rule has been announced that, where the commissioner and the trial judge are in agreement in deportation cases, the appellate court will not review the evidence. Those were cases, however, where there was conflict in the testimony. The right to look into the evidence to test its sufficiency to support a judgment is always within the discretion of an appellate, court. Fortunately, in this case, we have before us the finding o.f the court below,-and there is no issue of fact as to the point upon which the learned trial justice turned the, case. In his opinion ho says: “Applying the same standards of weighing evidence to the testimony given in this case that a court would apply in determining the evidence of the place of actual birth of a person, unaffected by the question of whether he is an alien or a citizen, the court is not satisfied upon this testimony, with the burden of proof resting upon the petitioner, Moy <Tik, that he has submitted any evidence legally sufficient to make a prima facie case that he was actually born in San Francisco. .He is only able to testify about what he has heard. That has some weight, it is true, if taken with other evidence of probative value, but it has no weight standing alono; and if of no weight standing alone, what other evidence is there in the case which in reality adds weight to his own statement ? The witness Lai Quong testifies to his actual presence in San Francisco when Moy Jik was a lad about four years of age. He testifies that he was a- distant relative of the boy’s father, and he there saw him ill the place where Moy lien, his father, was then living, but he does not state that he has any knowledge of when Moy lien came to America. He does not state that he has any knowledge of the length of time previously that he and his wife, the reputed parents of Moy Jik, left China. So. we find Moy Jik standing here to-day, with the burden of proof resting upon him, and with absolutely no testimony to account for him as being in the1 United States until he was four years of age, and no explanation of the previous movements of his parents that, ■would preclude the probability of their presence in China at a time which would have enabled them .to bring him to the country at any time after his birth, and between that time and when he was actually four years of age. Therefore, the-court is constrained in this case to hold, unfortunately as it feels that it is. with the impression that the man himself has made upon it, that Moy Jik has not established his citizenship in the United States.”

It will be observed that the case was turned, as it must be, upon the sufficiency of the evidence to account for appellant’s presence in this country up to the time he was four years old. Appellant conclusively accounts for his residence here after that date. Indeed, the evidence is uncontradicted. There is some' testimony to the eifect that he tried to conceal himself from the inspector, and that he could not speak English when he came to Washington. But that was properly ignored by the courl below. It has no relation to the sole question in this case. Was Moy Jik unlawfully brought into the United States by liis parents during liis infancy and before be was four years old? The veracity of the witnesses is not questioned hy the trial justice. Indeed, appellant is specially commended for the impression of honesty, integrity, and sincerity which he made' while on the witness stand. The court accorded full credit to appellant’s testimony that his parents told him lie was born in San Francisco, -but held this evidence insufficient to establish the fact that he was born there. There being, therefore, no conflict in the evidence on the single point upon which the case turns, we are at liberty to examine into its sufficiency to sustain the judgment.

We think appellant, by the most convincing proof, has accounted for his residence in the United States since lie was four years old. Ido testified that his parents told him he was born in San Francisco, the place associated with his earliest recollections. This was competent evidence, — in many instances, as in this, the only available proof. All the circumstances are consistent with his having been born in San Francisco, and inconsistent with his having been brought into the United States by his parents. The parents were not itinerant Chinamen, without a fixed abode or a permanent business. They resided and conducted a business at one place through the entire period covered by the testimony in this case until the date of their return to China. When a Chinaman, thus confronted with deportation proceedings, establishes by competent proof that he has been in the United States from his infancy; that he has maintained a permanent residence with a steady business or occupation; that he has conducted himself in such an honorable and upright manner as to have the confidence and respect of the community, and submits the only proof available as to his birth — his own testimony that his parents told him he was born in this country, — he sufficiently overcomes the presumptions raised by the statute, and establishes, in the absence of proof to the contrary, that he is a native-born. citizen of the United States.

The authorities, we think, sustain this interpretation. In flic case of United States v. Leu Jin, 192 Fed. 580, the defendant left San Francisco when he was eight years old, and carne to New York, where he had resided twenty-four years at the time of his arrest. He did not even testify to having been told by his parents that he was born in this country, but was able only to give an indefinite account of where he resided with his parents in San Francisco. The court summed up the case as follows: “Nor does it seem strange to mo that a boy leaving San Francisco twenty-four years ago, when he .was eight years old, should not remember accurately the details of his early life there. The weighty fact in this case, in my opinion, is the fact that ho has-been in and about New York ever since he was about six years old. Ilis own story and the evidence of the various witnesses called as to the fact that he came to New York at that time are perfectly consistent. * * The government’s claim is that he was born in China, lint he could not have come from China alone at any time before he was eight years old, and people in that station in life coming from China very rarely bring any children of that age with them. It is impossible in this class of cases to be sure what the truth is; but in my opinion the evidence in this case preponderates that the defendant, was born in this country and is an American citizen.”

In United States v. Lem You, 224 Fed. 519, the facts were strikingly similar to those in the present case. As here, the first four years of defendant’s life were unaccounted for, except upon his own testimony as to what his parents had told him. On this point the court said: “The result of all the evidence is that it is true that this young man has known no other home than Newr York city for twenty-one of the twenty-five years of his life, and that fact is weighty matter in his favor, as was held in United States v. Leu Jin, supra. For the rest he testifies, and testifies alone, that according to his father’s statements to him he was born in San Francisco; and his evidence, though hearsay, is admissible and competent, because the matter is one of pedigree or descent. It is undoubtedly true that the only direct testimony as to this appellant’s place of birth is his statement, based upon his father’s assertions. But it has often been pointed out in cases of this nature that the truth is singularly difficult to ascertain, and I think that little can ever be arrived at with absolute accuracy. If the appellant’s story is not true, he is indeed a man without a country, for it is overwhelmingly proved that he has spent all his life, except infancy, in the United States.”

We think the evidence is sufficient to make a prima facie case establishing appellant’s citizenship. With this, the burden shifts to the government. It should ho remembered that, so far as the record discloses, appellant is without relatives, far removed from the place of his birth, and, it may be assumed, without the means to ferret out corroborating witnesses. On the other hand, the government has a long arm. Facts are disclosed opening avenues by which the government, through its agents in San Francisco, should have been able to secure valuable evidence. The name of the firm with which Hoy lien was connected and the names of his business associates, the location of their place of business, and the name of a large, established business firm across the street, were given by the witness Lai Quong. It would seem, therefore, that someone might have been found who lmotv Hoy Hen and his wife and could have furnished proof of the extent of their residence in San Francisco.

Lf appellant’s parents w’ere classed as laborers, and v’ere, here at the date of the passage of the Ten-Year Chinese Exclusion Act of July 5, 1881 (23 Stat. at L. 115, chap. 220), they were required to register. If they were not here, then they co.uld not lawfully have entered the United States after that date. If Moy Hen came here as a merchant, bringing his family with him, during the four-year period in question, ho could have entered lawfully only when a certificate issued by the Chinese government, and approved by the United States consul at the port from which he sailed, a further record of wdiich was required to be made by the Cbinese inspector before permission would be given to laud. The government, in the absence of any showing to the contrary, will be presumed to be in possession of these records; but it is'silent, preferring, apparently, to rest upon what it regarded as the weakness of appellant’s case, rather than upon the strength of its own. ' The government cannot rely entirely upon the presumption which the statute raises against the lawful residence of Chinamen in this country. There is a time when the burden shifts.

Appellant is assailed for failure to interrogate the witness Lai Quong as to any knowledge he might have had of the residence of appellant’s parents at and prior to the time of his birth. But why cast the responsibility for this oversight, if such it was, upon appellant? There were present counsel for the government and the presiding justice, with the witness subject to be interrogated by any one or all of them. This was not a criminal prosecution. No one was seeking a victim. It was an investigation by the officers of the government to ascertain the truth as to the status of appellant’s citizenship. The formal rules of civil and criminal procedure, the orderly reception of evidence, and ihe penalizing of a defendant for the possible oversight of his counsel, have little application to an inquiry of this sort, involving the most ’sacred right of the citizen, 'a matter in which the government has as deep an interest as the person under investigation. No one connected with this investigation is in position to take advantage of or criticize this alleged oversight. Perhaps the presumption may be indulged that, since the witness was not interrogated on this point, it was known by counsel that he could not testify of his own knowledge concerning it. Put if that he so, it neither weakens nor strengthens appellant’s case, as made by the record.

The order of deportation is reversed. Reversed.