Johnson v. Kock Shing , 3 F.2d 889 ( 1924 )

BINGHAM, Circuit Judge.

A majority of the court are of the opinion that the District Judge erred in discharging Shing and Tung from the custody of the immigration authorities and allowing them to enter the country. The decision of the Immigration Department was final, if made “after a hearing in good faith, however summary in form.” The merits of the respective eases were not open to the District Judge to pass upon until it was proved that a hearing in good faith was denied by the Department; and such denial could not be established by proof that the Department’s decision “was wrong.” Chin Yow v. United States, 208 U. S. 8, 12, 13, 28 S. Ct. 201, 52 L. Ed. 369; Tisi v. Tod, 264 U. S. 131, 44 S. Ct. 260, 68 L. Ed. 590.

The record fails to show that they were denied any right essential to a fair hearing. They were heard and reheard. The officials before whom the hearings were had were not restricted in the reception of evidence to only such as would meet the requirements of legal proof, but could receive and determine the questions before them upon any evidence that seemed to them worthy of credit. Munsey v. Clough, 196 U. S. 364, 372, 25 S. Ct. 282, 49 L. Ed. 515; State v. Clough, 72 N. H. 178, 179, 55 A. 554, 67 L. R. A. 946, and cases cited; Tang Tun v. Edsell, 223 U. S. 673, 677-682, 32 S. Ct. 359, 56 L. Ed. 606; Bilokumsky v. Tod, 263 U. S. 149, 157, 44 S. Ct. 54, 68 L. Ed. 221.

Shing and Tung, at the time they sought admission to the country, were 24 and 25 years of age, and Hing, the alleged father, and a citizen of this country, at that time, had not been in China for over 20 years. The statement given by On, the brother of the alleged father, in connection with his application for a return certificate in 1913, was properly received in evidence, and before tbe final deportation order was made the applicants were given full opportunity- to answer it. Tbe statement was that bis brother Hing was unmarried, and, as a witness for tbe applicants at one of tbe bearings before tbe officials, On testified that bis 1913 statement was true. Tbe testimony of tbe applicants as to this matter was, in substance, that bis statement was untrue, and that On bad quarreled with Hing shortly after their arrival in this country some 20 years before. Because tbe immigration officials gave weight to this statement, and some other inconsistencies in tbe testimony given by tbe applicants, and concluded that Sbing and Tung, who were seeking admission as sons of Hing, were not bis sons, tbe District Judge was of tbe opinion that tbe “conclusion -could not be reached by a fair-minded tribunal,” and was “arbitrary and unfair.” In other words, be concluded that tbe 1913 state-ment and tbe testimony of On were untrue, and, this being so, tbe decision of tbe immigration officers ran counter to all credible evidence before them, and was arbitrary and unfair. It amounted, however, to nothing more than saying that their decision was wrong. This, as above pointed out, was' beyond tbe province of tbe court. It is evident that, without weighing tbe evidence given before tbe immigration officials, and concluding that tbe statement and testimony of On were untrue, this conclusion of tbe court could not have been reached.

In Nos. 1740 and 1741 tbe orders of tbe District Court discharging Koek Sbing and Koek Tung from custody are set aside, tbe petitions are dismissed, and they are remanded to tbe custody of tbe Commissioner.