[209 U.S. 453, 454] Messrs. Frank L. McCoy, John L. Webster, and Robert H. Olmsted for plaintiff in error.
[209 U.S. 453, 455] Assistant Attorney General Cooley for defendant in error.
Mr. Justice Day delivered the opinion of the court:
The plaintiff in error, Liu Hop Fong, on November 23, 1904, was arrested upon the sworn complaint of the United States district attorney, and brought before a United States commissioner at Omaha, Nebraska, charged with being unlawfully within the United States of America, living and residing at Omaha, Nebraska, and there pursuing the occupation of a common laborer, contrary to the laws of the United States. The complaint prayed that he might be arrested and dealt with according to law. Upon a plea of not guilty, on December 29, 1904, a hearing was had before the commissioner. The bill of exceptions shows that the commissioner on December 29, 1904, made an order finding the defendant guilty, and ordered his deportation from the United States to the Empire of China; that an appeal was taken to the district court of the United States for the district of Nebraska; that the case was heard upon the 13th day of April, 1905, being one of the days of the November term of the district court; that the case was tried and submitted to the judge without any new evidence upon the complaint, upon the transcript of the proceedings made by the United States commissioner from whose order the case was appealed, and the additional separate [209 U.S. 453, 457] findings made by the commissioner and the original student's certificate of the defendant and the translation thereof, with all indorsements and certificates thereon under which the defendant was a admitted into and entered the United States. The commissioner's transcript shows:
On November 23, 1904, the defendant was brought before the commissioner, entered a plea of not guilty, and the hearing was continued to December 29, 1904, when witnesses were examined for the United States and for the defendant. Their names are given, but their testimony is not set out. On the same day (December 29, 1904) defendant was adjudged guilty and ordered to be deported, and on that day defendant appealed to the district court and gave bond for his appearance in that court. This transcript was duly certified and indorsed, filed January 9, 1905, by 'R. C. Hoyt, Clerk,' and the commissioner filed additional and separte findings, bearing date December 30, 1904, as follows:
These findings are indorsed as follows: 'Filed Jan. 9, 1905. R. C. Hoyt, Clerk.'
The certificate upon which the plaintiff in error was admitted to this country is as follows:
Government of Macau Province.
Colonial Secretary of Macau Province.
Registered in Book 3, folio 164.
Mario Pires Nonteiro Bandeira de Lima, Colonial Secretary of Macau Province, His Majesty the King, etc., etc. [209 U.S. 453, 459] By order of H. E. the Governor, I grant this passport to a Chinaman, Liu-Hop, bachelor (natural and resident in Marcau, student of Chinese literature for over four years, being his professor Liu-ioc-po, living in Rua dos Mercadores, No. 180, to go to the United States of America, in order to study there the English language and European sciences, and to live in the company of his brother Liu-eng-Fun, manager of the firm 'Lun- Sing-Chong,'-
Signals: Age 20 years. Height 1 m. 590 ms. Face Long. Hair Black. Eyebrows do. Eyes Dark chestnut. Nose Flat. Mouth Big. Color of the Asiatic race. Cost of passport. $3.50.
Rockspring, Wyo.-San Francisco, Cal.
Fulfilling the obligation to have this passport vis ed by the respective diplomatic or consular agent residing in this city, I beg to request the administrative authorities, and all those to whom it may concern, not to put any objection to the bearer.
Valuable for 30 days to leave this city.
Given at Macao on the 17th day of May 1899
By authority of H. E. the Governor.
The Colonial Secretary,
(Signed) Mario B. De Lima.
(S'd) Liu Hop.
Translated by A. M. Roza Peruia, Jr.
Vise U. S. Consulate General, Hongkong, May 31, 1899.
R. Wildman, Consul Gen.
The bill of exceptions further shows that the evidence taken before the commissioner was not reduced to writing or preserved, or in any manner taken to the district court, and no further or other evidence was submitted by either of the parties. After argument of counsel the judge filed an opinion and [209 U.S. 453, 460] ordered the defendant to be deported, to which the defendant excepted.
The opinion of the learned district judge, a copy of which is given in the record, shows that the order of deportation was made because, in his opinion, the facts as found by the commissioner indicate that Liu Hop Fong did not come to the United States to study the English language and the English sciences as a student, and that such contention was a mere device to gain entrance into this country, and not in good faith to pursue studies as a student, and his real intent was to labor only; 'and I am of the opinion,' says the learned judge, 'that his entry under the certificate mentioned was a fraud upon the United States, and such certificate does not afford him protection.' He thereupon affirmed the finding and judgment of the commissioner. Subsequently, and after the adjournment of the term at which this order was made, a petition was filed for a new trial upon the record and affidavits submitted on behalf of Liu Hop Fong, and, while the judge recognized that he had no further power over the proceedings after the adjournment of the court for the term, upon investigation adhered to his former opinion as to the order of deportation.
We need not be concerned with these proceedings after the term, for clearly the judge's authority over the case had ended. The question is here upon the record made in the original proceeding before him. Was the judge warranted in making the order of deportation? By the 3d article of the treaty with China of December 8, 1894 (28 Stat. at L. 1210), it is provided:
By 13 of the act of 1888 (25 Stat. at L. 476, chap. 1015, U. S. Comp. Stat. 1901, p. 1312), it is provided:
By 3 of the act of May 5, 1892 (27 Stat. at L. 25, chap. 60, U. S. Comp. Stat. 1901, p. 1319), it is provided:
Section 13 of the act of 1888 (25 Stat. at L. 476, chap. 1015, U. S. Comp. Stat. 1901, p. 1312) also provides that any Chinese person convicted before the commissioner of the United States court may, within ten days of such conviction, appeal to the judge of the district court for the district.
In this case the Chinaman did prosecute his appeal from the commissioner to the district judge. The statute is curiously silent as to how the appeal is to be heard; it says nothing as to what papers are to be filed or as to what testimony shall be given. In our view, giving the Chinaman an appeal, the law contemplates that he shall be given the right of a hearing de novo before the district judge before he is ordered to be deported. It is a serious thing to arrest a Chinaman who, as in this case, has been in this country a number of years, hawfully admitted upon a certificate complying with the treaty, and order his deportation without giving him a full opportunity [209 U.S. 453, 462] to assert his rights before a competent court. There being no provision of the statute that the hearing shall be upon a transcript of the proceedings before the commissioner, we think, when a party demands it, Congress intends he shall have the right to a hearing and judicial determination before the district judge.
In the case of Ah How v. United States, 193 U.S. 65 , 48 L. ed. 619, 24 Sup. Ct. Rep. 357, it was assumed that the judge who tried the case upon appeal did so soley upon the commissioner's report, and heard no witnesses. In Tom Hong v. United States, 193 U.S. 517 , 48 L. ed. 772, 24 Sup. Ct. Rep. 517, the commissioner made a finding, which was made part of the record by order of the district court. In the present case the record shows that there was before the district court the transcript of the proceedings hereinbefore set out as having taken place before the commissioner on December 29, 1904; and then, without the order of the court, an additional and separate finding of the commissioner appears to have been filed. We are not aware of any statute that gives the commissioner a right to make up and file such additional finding; he had made and filed a certified transcript in the case, and there ended his authority in the matter. There was no order, as in the Tom Hong Case, making the commissioner's findings part of the record. There was no consent to a hearing of the case upon such additional findings, and the case presented to the district judge embraced the student's certificate hereinbefore referred to, and a statement that witnesses were examined, without any findings of facts or the giving of any testimony. On this state of the record we are of the opinion that the court had no authority to order the deportation of the Chinaman.
The treaty with China provides that officials, teachers, students, etc., shall have the privilege of coming to and residing in the United States (article 3, treaty of December, 1894, above referred to), and further provides:
When this young man entered a port of the United States in July, 1899, he presented such a certificate, duly issued and vis ed by the consular representative of the United States. Upon application for admission this certificate is prima facie evidence of the facts set forth therein. 22 Stat. at L. 58, 6, chap. 126, U. S. Comp. Stat. 1901, p. 1307; 33 Stat. at L. 428, chap. 1630. This certificate is the method which the two countries contracted in the treaty should establish a right of admission of students and others of the excepted class into the United States, and certainly it ought to be entitled to some weight in determining the rights of the one thus admitted. While this certificate may be overcome by proper evidence, and may not have the effect of a judicial determination, yet, being made in conformity to the treaty, and upon it the Chinaman havign been duly admitted to a residence in this country, he cannot be deported, as in this case, because of wrongfully entering the United States upon a fraudulent certificate, unless there is some competent evidence to overcome the legal effect of the certificate. In this record we can find no competent testimony which would overcome such legal effect of the certificate, and the plaintiff in error was therefore wrongfully ordered to be deported.
The judgment of the District Court is reversed, and the cause remanded to that court with directions to discharge the plaintiff in error from custody without prejudice to further proceedings.