MOY KONG CHIU v. UNITED STATES, 246 F. 94

KOHLSAAT, Circuit Judge (after stating the-facts as above). [1] Appellant was admitted to the United States upon a certificate issued to him in accordance with

section 6 of the act of May 6, 1882 (22 Stat. 60), as amended by Act July 5, 1884 (23 Stat. 117), and by virtue of the provision of

article 2 of the treaty between the United States and China concerning immigration, dated November 17,1880 (22 Stat. 827), and

article 3 of the convention of December 8, 1894 (28 Stat. 1211). Said

section 6 as amended provides that the certificates issued thereunder shall be prima facie evidence of the right of the persons to whom issued to enter this country, and also provides that such certificates may be controverted and the facts therein stated disproved by the United States authorities. The prima facie character of such a certificate may be overcome by competent evidence that it was fraudulently obtained. Liu Hop Fong v. United States, 209 U. S. 453, 28 Sup. Ct. 576, 52 L. Ed. 888.

Appellant’s certificate, being in conformity with the statute, was presumptively valid, and constituted prima facie evidence of his right to be here. Whether, therefore, it should be annulled, and he be deported, depends upon whether the evidence warrants the finding that he obtained his certificate by fraud or deception, intending to evade the exclusion laws and become a laborer. Evidence that a person, admitted upon a certificate issued under said

section 6, immediately after his arrival engages in and continues in employment as a laborer, justifies the conclusion that the certificate, though correct in form and substance, was obtained by fraudulent representations. United States v. Yong Yew (D. C.) 83 Fed. 832; United States v. Ng Park Tan (D. C.) 86 Fed. 605; United States v. Foo Duck, 172 Fed. 856, 97 C. C. A. 204; Chain Chio Fong v. United States, 133 Fed. 154, 66 C. C. A. 220; Cheung Him Nin v. United States, 133 Fed. 391, 66 C. C. A. 453; Ong Seen v. Burnett, 232 Fed. 850, 147 C. C. A. 44; Lo Pong v. Dunn, 235 Fed. 510, 149 C. C.

A. 56; Lui Hip Chin v. Plummer, 238 Fed. 763, 151 C. C. A. 613. On the other hand, it is well settled that a Chinese person, who lawfully enters this country as a student, may not be deported because he temporarily engages in manual labor while attending school. See In re Tam Chung (D. C.) 223 Fed. 801, and cases cited at page 803. The evidence produced by the government shows that appellant worked during a period of about 5 weeks.

At the time of his arrest he stated that he had been employed in the laundry about a week, and a government witness testified that he had seen him working in the same laundry on several occasions during the month following his arrest. The record shows that he was out of school during his first year’s residence, at San Francisco, about 20 days, but not that he engaged in manual labor there. Upon his coming to Chicago he immediately took up his studies at a private school, where he continued to the date of his arrest. There is no evidence that he ever ceased going to school after he came to Chicago.

At the time of his trial he had been in the United States nearly 4 years. There was no proof that he worked in the laundry until some .6 months after his arrival in Chicago, or that he worked more than 4 or 5 weeks in all. His employment was not inconsistent with the claim that he came to attend school.

Under the circumstances, the statements contained in the vague and unintelligible letters of Nie Pang to the effect that he was not to come to Chicago to attend school, or, as one sentence is translated, “I did not [have you] come here to attend school but come to make money,” cannot be held to establish that appellant came to the United States with the unlawful intent of becoming a laborer. The evidence does not show that he ins fact abandoned the avowed purpose for which he came.

The inference drawn from these letters, in ihe government’s brief, that Nie Pang fraudulently procured the issuance of appellant’s certificate, is based on conjecture, rather than on any clear evidence. Fraud in procuring the same cannot, on the facts stated, be imputed to appellant. It was incumbent upon the government to overcome the legal, effect of appellant’s certificate by evidence and not by presumption. It ought not to be annulled on suspicion and conjecture. See Lui Hip Chin v. Plummer, 238 Fed. 763, 151 C. C. A. 613; Wong Yee Toon v. Stump, 233 Fed. 194, 147 C. C. A. 200.

In the latter case it is said: “After the certificate is issued, it is our view that the burden is cast upon the government, in case a proceeding is instituted to attach it, to show by testimony which the law recognizes as evidence that it should be annulled before an order for deportation is warranted. * * * It is the privilege of the immigration authorities to prove, if they can, 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.” Notwithstanding appellant’s false and inconsistent testimony, we fail to find evidence justifying the government’s contention that he obtained his admission through fraud.

The judgment of the District Court is reversed.