Opinion
Appeal from the District Court of the United States for the Northern District of California. George A. McGowan and Alfred L. Worley, for appellant.
Robert T. Devlin, U.S. Atty., and A. P. Black, Asst. U.S. Atty.
Before GILBERT and ROSS, Circuit Judges, and HANFORD, District Judge.
GILBERT, Circuit Judge (after stating the facts as above).
It is contended that Lew Fong, the father of the appellant, was not, at the time when the appellant was permitted to land in the United States, a laborer within the meaning of the exclusion acts (Act Nov. 3, 1893, c. 14, Sec. 2, 28 Stat. 8 (U.S. Comp. St. 1901, p. 1322)), for the reason that he was a merchant and was not engaged in manual labor for wages or for hire, but worked upon his own account, and nor as the employe of any one, in farming and raising and marketing fruit on land which he had rented. While some of the earlier decisions under the Chinese exclusion laws give color to the appellant's contention that the meaning of the word 'laborer' as used in those laws is one who works for another for wages (In re Ho King (D.C.) 14 F. 724), the later decisions are harmonious in holding that the term should not be so restricted. This is held in view of the language of the treaty to give force to which the legislation was enacted, and in view of the more recent enactments of Congress. In Lee Ah Yin v. United States, 116 F. 614, 54 C.C.A. 70, we held, upon a consideration of the memoranda submitted and discussed in the negotiations between the high contracting powers which culminated in the adoption of the treaty of 1880 (Treaty with China, Nov. 17, 1880, 22 Stat. 826), and the subsequent legislation of Congress to carry out the provisions thereof, that the words 'Chinese laborers' as used were intended to designate all immigration to the United States from China other than that of the privileged classes, who were, by the terms of the treaty, permitted to come for the purpose of teaching, trade, travel, study, and curiosity, and we held that the Geary act, approved May 5, 1892 (Act May 5, 1892, c. 60, 27 Stat. 25 (U.S. Comp. St. 1901, p. 1319)), adopted the words 'Chinese laborers' with the meaning attached thereto by the treaties.
That Chinese laborers who work for hire only are not the only laborers excluded within the meaning of the acts of Congress is shown by Act Nov. 3, 1893, c. 14, Sec. 2, 28 Stat. 8 (U.S. Comp. St. 1901, p. 1322), in which it was declared that the words 'laborer or laborers' 'shall be construed to mean both skilled and unskilled manual laborers, including Chinese employed in mining, fishing, huckstering, peddling, laundrymen, or those engaged in taking, drying or otherwise preserving shell or other fish for home consumption or exportation. ' By this statute, which was intended to make certain as included within the designation of laborers those whose occupation might, in some aspects, be regarded as belonging to the mercantile class, Congress enumerated as within the term 'laborers' those who were working upon their own account and not for hire in certain mentioned occupations, the product of which was sold to others. The act does not declare, and its meaning is not to say, that those only who are engaged in those occupations so specified shall be deemed laborers. It was perhaps impossible to enumerate all the classes of occupations of the general nature of those mentioned, but the act clearly intends to make a distinction between merchants who buy and sell goods at a fixed place of business, and all those who sell goods which are the product of their own labor, or who sell goods which they have purchased to vend at no fixed place of business. Now, the farmer or fruit grower, who leases land and tills the same and labors in the production of a crop which he sells to others, is engaged in an occupation similar to that of those who are engaged in mining, fishing, or drying fish for home consumption or exportation. Lew Fong, as the owner of an interest of $500 in a general merchandise store, would have been a merchant within the meaning of the acts, and his status as a merchant would not have been affected had he performed only manual labor such as might have been necessary in the conduct of his business as a merchant; but here the labor which he performed was aside and entirely distinct from his business as a merchant, and therefore, at the time when the appellant was landed in the United States, Lew Fong was not one of the privileged class of persons who are entitled to enter the United States, and therefore the appellant was not entitled to admission.
It has been held that a Chinese who kept a restaurant and a lodging house was a laborer (United States v. Chung Ki Foon (D.C.) 83 F. 143; In re Leung, 86 F. 303, 30 C.C.A. 69); that a Chinese holding an interest in a mercantile firm, but who was also a cook in a restaurant of which he was part owner, was a laborer (Mar Bing Guey v. United States (D.C.) 97 F. 576); that a Chinese merchant who worked in a laundry was a laborer (United States v. Yong Yew (D.C.) 83 F. 832); that a Chinese who during half his time was engaged in cutting and sewing garments for sale by a firm in which he was a member was a laborer (Lai Moy v. United States, 66 F. 955, 14 C.C.A. 283); that a Chinese alien who owned an interest in a mercantile firm, but was engaged in operating a laundry and was part owner of a restaurant, was a laborer (United States v. Yee Gee You, 152 F. 157, 81 C.C.A. 409).
It is urged that the order of the commissioner of immigration admitting the appellant into the United States estops the government to deny the legality of his entry, and constitutes a bar to this proceeding, and reference is made to the language of the opinion in Chin Yow v. United States, 208 U.S. 8, 28 Sup.Ct. 201, 52 L.Ed. 369, in which the court sustained the finality of the decision of the immigration officers upon a hearing concerning the right of a Chinese to land in the United States, and said that thereafter the merits of the case were not open. But that case, and other decisions of the Supreme Court, go no further than to hold that the right of a Chinese applying for admission into the United States is determinable by the proper immigration authorities, that their decision when adverse to the applicant, and the hearing has been properly had, and the applicant's remedy has been exhausted upon an appeal to the Secretary of Commerce and Labor, is final, and there is no right of recourse to the courts. The court in so holding gave effect to the statute of August 18, 1894 (Act Aug. 18, 1894, c. 301, 28 Stat. 390 (U.S. Comp. St. 1901, p. 1303)), which provides that the decision of the appropriate immigration or customs officers, if adverse to the admission of such alien, shall be final unless reversed on appeal to the Secretary of the Treasury. There is no statutory provision that the decision, if favorable to the applicant for admission, shall be final. The decisions have been to the contrary. United States v. Lau Sun Ho (D.C.) 85 F. 422, and cases there cited; Mar Bing Guey v. United States (D.C.) 97 F. 576. Nor is the certificate of identity which was issued to the appellant after the commissioner of immigration had passed upon his right to admission, an instrument of such effect as to stand in the way of his deportation. It is not like the certificate of residence provided for in the act of 1893, which defined the method by which Chinese in the United States might obtain evidence of their right to remain. Those certificates were registered as the solemn act of the government, and were intended to furnish evidence of the right of the holders thereof to remain in
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the United States, and to be conclusive evidence of that right, and they are not subject to collateral attack. In re See Ho How (D.C.) 101 F. 115; In re Tom Hon (D.C.) 149 F. 842. The object of the exclusion acts, as Mr. Justice Field said in Re Ah Sing (C.C.) 13 F. 286, was not to expel Chinese laborers already in the United States, but to prevent the further immigration of Chinese laborers.
It is contended that the appellant could not lawfully be deported upon a complaint which charges him with being a Chinese manual laborer in the United States without the certificate of residence required by the act of Congress, etc., for the reason that he did not come into the United States until after the expiration of the period within which Chinese laborers were permitted to register. But the complaint clearly defined the status of the appellant and truly stated that he was a Chinese manual laborer within the United States without a certificate of residence, and it was immaterial that he came to the United States at a time when it was impossible to obtain a certificate of residence. The evidence sustained the charge of the complaint, and there was no error in the judgment of the District Court that the appellant be deported.
The judgment is affirmed.