UNG BAK FOON v. PRENTIS, 227 F. 406

KOHLSAAT, Circuit Judge (after stating the facts as above).

It has been settled by numerous decisions of the Supreme Court, as well as the other federal courts, that for the purpose of determining whether an alien is lawfully in the United States, the hearings before the administrative officers charged with the execution of the act are conclusive when fairly conducted, and that the conclusions and orders made upon such hearings are not subject to judicial review, except it be shown that the proceedings were manifestly unfair, that the action of the officers was such as to prevent a fair investigation, or that there was a manifest abuse of the discretion committed to them by the statute.

Low Wah Suey v. Backus, 225 U. S. 460, 32 Sup. Ct. 734, 56 L. Ed. 1165, Prentis v. Di Giacomo, 192 Fed. 467, 112 C. C. A. 605, and cases cited. Appellant in his petition for a writ of habeas corpus averred that he was denied1 a fair hearing by the immigration authorities.

This charge was based solely upon the alleged incompetency of certain evidence included in the record which formed the basis of the order of deportation issued by the Acting Secretary of Labor; and it is contended that had this evidence been excluded the record would show that appellant was born in the United States and therefore is an American citizen and not deportable. The alleged incompetent evidence consisted of the statement made by appellant at the time of his apprehension, wherein he swore, as above stated, that he was born in China and was smuggled into this country.

These admissions were not made under duress nor procured through an abuse of power on the part of the immigration inspector. Preliminary investigation such as was here made is proper and necessary to the efficient administration of the statute, and, as said in United States v. Moy Toom (D. C.) 224 Fed. 520: “It tends greatly to elucidate the truth to hear what the Chinese person has to say about such simple facts as his age, parentage, relationships, occupation, and localities where he has lived, and the circumstances attending his latest entry into this country, before his lawyer appears.” We held in Prentis v.

Seu Leung, 203 Fed. 25, 121 C. C. A. 389, that such a proceeding constitutes a part of the hearing contemplated by the act. We are not concerned with the weight of the evidence. The Secretary of Labor no doubt regarded the testimony of the witnesses in corroboration of appellant's claim of American birth as not being of such a convincing character as to overcome appellant’s original sworn statements and to furnish that degree of proof required to establish the citizenship of a person of Chinese descent; and we are unable to say that he was not justified in doing so.

It is next urged that the deportation warrant is illegal, because it directs that appellant be taken to China, whereas Canada is “the country whence he came.” Sections 3, 20, 21 and 35 of the Act deal with the question of the place to which an alien found to be unlawfully in the United States, or to have forfeited his right to remain therein, shall be deported. .Section 3 applies to aliens who have been convicted of certain criminal offenses.

Section 20 provides: “That any alien who shall enter the United States in violation of law,” And

section 21: “That in ease the Secretary of Commerce and Labor shall be satisfied that an alien lias been found in the United States in violation of this act, or that: an alien is subject to deportation under the provisions of this act,” ho shall he deported upon the warrant of the Secretary of Commerce and Labor to “the country whence he came.” And

section 35 provides that: “The deportation of aliens arrested within the United States after entry and found to be illegally therein, provided for in this act, shall be to the trans-Atlantic or trans-Pacifie ports from which said aliens embarked for the United States; or, if such embarkation was for foreign contiguous territory, to the foreign port at which said aliens embarked for such territory.” Appellant embarked from Hong Kong, China, for Victoria, Canada, foreign territory contiguous to the United States, and was found to have entered this country in violation of the act.

No proof was offered to show that his unlawful entry was not in pursuance of an intent or design to do so at the time he left Hong Kong. If he did have such intent, then manifestly China would still be the country whence he came to the United States, notwithstanding his temporary stay in Canada. If he merely crossed Canada on his way here from Hong Kong, he should be returned to that port. Lewis v. Frick, 233 U. S. 291, 303, 34 Sup. Ct. 488, 58 L. Ed. 967.

Nor would the fact that several months intervened the time of his landing in Canada and his unlawful entry into the United States change the situation if he eventually carried out his purpose. Presumptively, he did intend to come to this country by way of Canada from China, because that is what he actually did. The evidence in the record in no way tends against this presumption, but supports it.

His long residence in the United States, covering a period of more than 16 years, that he came here from China on three different occasions, that he had relatives in this country, as he testified, and friends, with whom he had been engaged in business, and his brief stay in Canada, are circumstances which lend support to the presumption that his objective point when he left China was the United .States. All of his testimony evidences an intention on his part to leave Canada and come into this country as soon as opportunity offered. In Ex parte Wong You (D.

C.) 176 Fed. 933, it was found that the Chinese aliens whose cases were under consideration had' embarked from Hong Kong, China, for the Dominion of Canada intending to surreptitiously enter the United States, which they did, and it was held that under such circumstances they were p’roperly deported to Plong Kong, instead of. Canada. This case was cited with approval by the Supreme Court in Lewis v. Frick, supra. To like effect are Ex parte Li Dick (C. C.) 176 Fed. 998, and Ex parte Hamaguchi (C. C.) 161 Fed. 185, also cited in the Lewis v. Frick Case, supra.

The judgment of the District Court is affirmed. <&wkey; For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes <&wkey; For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes