Mon Dot v. United States , 16 F.2d 711 ( 1926 )

JOHNSON, Circuit Judge.

This is an appeal from the United States District Court for the District of Massachusetts affirming the order of the United States commissioner for deportation in the ease of the appellant because unlawfully in the United States in violation of the Chinese Exclusion Act (Comp. St. § 4290 et seq.).

On August 5, 1918, the appellant arrived at the port of New York on a steamship upon which he was employed’ in the capacity of an oiler. He obtained from the United States immigration inspector at this port a seaman’s certificate or identification card issued under rule 10 of the Immigration Rules and Regulations.

Upon this identification card there are printed three notations: “Division 1, Division 2, Division 3.” Under rule 7, subdivision 6 (b), of the Rules Governing the Admission of Chinese, it is provided:

“If the inspector is satisfied of the seaman’s admissibility, he shall draw a line through the latter two, leaving the former as a notation expressing his opinion; if satisfied of the seaman’s inadmissibility, the first two shall be stricken out and the last left as the inspector’s notation.”

In accordance with this rule the first two notations were stricken out upon this identification card, leaving the third only, indicating that the inspector was satisfied of the seaman’s inadmissibility.

Subdivision 8 of the same rule fixes in terms the value of the identification card as follows:

“The seaman’s identification card herein-before prescribed shall not constitute evidence of a right to enter or to be or to remain in the United States. It simply evidences the sta~ tus of the holder as a seaman, identifies him, and indicates the point to which his inspection. or examination under the law has proceeded and what remains to be done in his case if he ceases to be a seaman and becomes an alien applicant for admission. It shall have the same value at every other port as at the port where issued.”

This court therefore held in Domenici v. Johnson, 10 F.(2d) 433, that such an identification card was not intended to authorize his admission as an afien into tlie United States 'for tlxé purpose of permanent residence; that it only gave Mm “permission to land in pursuit of liis calling.”

In Ms examination before the commissioner the appellant testified that, after Ms receipt of the identification card, be bad made several attempts to ship as a seaman. But these statements were contradictory. In one be stated that be last made the attempt to reship about June, 1923, and in another part of bis statement be testified that be bad attempted to ship as a seaman about two months before the bearing before the commissioner. His attention was called upon cross-examination to statements made by him at the time of bis arrest to the effect that bis last attempt to resbip, foreign, was in 1921. He testified that be went from New York to PhiladelpMa in 1919 and looked for an opportunity to sMp there, where be remained about three months and worked in a restaurant for a couple of months; that be then went to Baltimore and later to Berlin, N. H., where be was employed as a restaurant cook. At the time of bis arrest be stated that bis occupation was that of a cook, and that, while employed in Berlin, be bad been continually coming back to Boston trying to find opportunity to sMp as a seaman.

It is contended that be was admitted to the United States as a seaman and did not lose this status because be bad changed Ms vocation to that of a laborer, and in support of tMs contention Wong Sun Fay v. United States (C. C. A.) 13 F.(2d) 67, is cited, where the law is stated as follows:

“ ‘The rule is that, where a Chinese person has been regularly admitted, for instance, as a merchant, the fact that be subsequently becomes a laborer does not of itself destroy his right to remain; such a fact is important only as it may tend to show that in reality be entered as a laborer, or for the purpose of immediately becoming a laborer, and so procured bis admission through fraud and in violation of the Exclusion Acts.’ Lo Hop v. United States [C. C. A.] 257 F. 489.” .

TMs contention cannot be sustained, because Mon Dot, the appellant here, was never regularly admitted into the United States, as shown by the identification card issued to Mm, and which bears upon its face the notation authorized by the immigration rules to show that be belonged to the nonadmissible or excluded class. He was allowed to land in pursuit of bis calling only, and the only question presented to the commissioner was whether, from bis own testimony, wMeh was all that was offered, bis stay in this country was for' the purpose indicated by the certificate wMeh had been issued to him.

There was abundant evidence from bis own testimony to support the finding of the Commissioner that Ms protracted stay in the United States from 1918 to 1925 was not in pursrnt of bis calling as a seaman, and that be was unlawfully within the United States and subject to deportation under the Chinese Exclusion Act.

The order of the District Court is affirmed.