PROCEDURE.

Under the exclusion acts of 1882 and 1884, when it is impracticable to deport a Chinese person by the vessel on which he came, such vessel having sailed, the court may direct the marshal, to whose custody such Chinese person has been remanded, to cause him to be removed to the country whence he came.—(In re Chin Ah Sooey, 21 F. R., 393, Dist. Ct., Aug. 21, 1884.)

The President may, by general or special order, provide for the removal of Chinese found by the courts to be unlawfully here, to the country whence they came.-(In re Chow Goo Pooi, 25 F. R., 77, Cir. Ct., Jan. 26, 1884.)

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The Chinese-exclusion acts of 1882 and 1884 provided no procedure, 3 and it rested with the President to direct the course to be pursued in removing a Chinese person found to be unlawfully in this country.— (U. S. v. Long Hop, 55 F. R., 58, Dist. Ct., Feb. 8, 1892.)

Detention or temporary confinement, as part of the means necessary to give effect to the expulsion of Chinese aliens, is valid; but when Congress sees fit to further promote the exclusion policy by subjecting the persons of such aliens to infamous punishment at hard labor, or by confiscating their property, such legislation, to be valid, must provide for a judicial trial to establish the guilt of the accused. (Wong Wing v. U. S., 163 U. S., 228, Sup. Ct., May 18, 1896.) Chinese persons may not be imprisoned indefinitely pending execution of deportation, and in such cases court will order release until provision is made for deportation. (In re Ny Look,, 56 F. R., 81; Cir. Ct., May 26, 1893.)

So much of the act of May 5, 1892, section 4, as provides for the imprisonment at hard labor of all Chinese persons adjudged by a commissioner to be unlawfully in the United States, is void, under the Constitution of the United States, Article III, section 2, paragraph 3, and amendments 5 and 6, securing the right of trial by jury and other rights to persons criminally prosecuted by the United States. (United States v. Wong Dep Ken., 57 F. R., 206, Dist. Ct., July 31, 1893.)

Congress having appropriated funds for the enforcement of the act of May 5, 1892, a district judge should take judicial cognizance that there are funds for the enforcement of any or all of the sections of such act, and should order the deportation of a Chinaman who has not procured a certificate of residence, as required by section 6 of the said act, although the Attorney-General has informed such judge that there are no funds available with which to provide for the deportation of such persons.-(U. S. v. Chum Shang Yuen, 57 F. R., 588, Dist. Ct., Sept. 5, 1893.)

It is enough if the order of deportation shows that the person to be deported has been adjudged to be unlawfully within the United States, without a finding as to where he came from, as the specification

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of the country to which he is to be deported concludes any inquiry on that point. (In re Tsu Tse Mee, 81 F. R., 562, Dist. Ct., May 10, 1897.)

The order of deportation need not explicitly refer to the specific act of Congress under which the person to be deported is adjudged to be unlawfully in the United States.-(Ibid.)

[U. S. C. C. A., Ind., 1899.]

Act of February 26, 1885 (23 Stat., ch. 164), which makes it unlawful to assist the importation or migration of any alien or foreigner under any contract or agreement "to perform labor or service of any kind," was intended to prohibit the importation of foreigners under contract to perform unskilled manual labor, and, being highly penal in its provisions, is to be confined in its construction and application to the effecting of such purpose. An individual agreement to employ a foreigner, resident in another country, as a draper, window dresser, and dry-goods clerk in a store in the United States and as a part of his compensation to refund him the cost of his passage to this country is not within the spirit of the statute and does not subject the employer to the penalty thereby imposed.-(United States v. Gay 95 F., 226; 37 C. C. A., 46.)

[U. S. D. C., Tex., 1903.]

3 An appeal by the United States does not lie by an order of a commissioner discharging a Chinese person arrested for being unlawfully in this country. Section 13, act of September 13, 1888, 25 Stat., 479, ch. 1015 (U. S. Comp. St., 1901, p. 1317), which expressly gives the right of appeal to the defendant in case of conviction, by implication limits such right to him.-(United States v. Mar Ying Yuen, 123 F., 159.)

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[U. S. D. C., Tex., 1899.]

Under act of July 5, 1884, sections 6, 12 (23 Stat., 116, 117), which require Chinese persons other than laborers desiring to enter the United States and not domiciled therein to procure a certificate from the Chinese authorities, viséed by the consular representative of the United States, and makes such certificate the only evidence receivable to establish the right of such persons to enter, a Chinese person erroneously permitted to enter without such certificate is unlawfully within the United States, and may be arrested and deported without regard to his occupation since his entry; and in such case the action of the customs official in permitting his entry is not even prima facie evidence of his right to remain.--(Mar Bing Guey v. United States, 97 F., 576.)

[U. S. D. C., N. Y., 1908.]

Where the United States seeks to deport a Chinese person found therein the burden is on it to show that he is not a citizen and not of the exempt class; but the burden is met by showing that he is a Chinese person and not of the exempt class, and the rebuttable presumption then arises that he was not born in the United States and is not entitled to remain.-(Ex parte Loung June, 160 F., 251.)

Where a Chinese person in applying to an inspector for admission 1 to the United States relied on a commissioner's judgment discharging him on a former charge of having been unlawfully in the United States as conclusively showing his right to be therein, if evidence of annotations on the evidence taken by the commissioner tending to show that such person was discharged because of sickness was competent at all, it should have been given in his presence and that of his counsel before the inspector, since he had the right to controvert it.(Ex parte Loung June, 160 F., 251.)

[U. S. D. C., Wash., 1908.]

Laws which confer judicial discretion upon administrative officers must be construed with a degree of strictness requisite to make them consonant with the spirit of the fundamental doctrines of the Constitution, and the power conferred on the Secretary of Commerce and Labor by the Chinese-exclusion act to finally determine on appeal the right to enter the United States by a person who claims to be a native-born citizen can not be exercised by an acting secretary, in accordance with a recommendation made by himself as a solicitor of the department adverse to the appellant.-(In re Tang Tun, 161 F., 618; In re Gang Gong, id.; In re Can Pon, id.)

[U. S. C. C. A., Pa., 1907.]

Congress has plenary power to exclude aliens from entry into the United States, or to provide for their admission subject to such restrictions as it may prescribe; and, where it has given discretionary power to executive officers or agencies to determine the right of entry under such restrictions, the ground of such determination can not be inquired into by the courts in habeas corpus proceedings instituted by an alien who is restrained of his liberty for the purpose of deportation by such officers. The question, however, whether the law does vest such officers with power of final decision is necessarily one for judicial inquiry, and an alien given by the law a right of appeal may invoke the powers of a court for the enforcement of such right. (Rodgers v. United States, 157 F., 381.)

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The policy of the legislation in respect to exclusion and expulsion 4 of Chinese is opposed to numerous appeals; and where a Chinese laborer has evaded the executive jurisdiction on the frontier and gained access to the country he should not be considered entitled to demand repeated rehearings on the facts.-(Chin Bak Kan v. United States, Chin Ying v. United States, 186 U. S., 193; Sup. Ct., June 2, 1902.)

The words "court" and "judge " have frequently been used interchangeably in Federal statutes, and the Supreme Court adheres to the construction it has heretofore recognized as correct, and which has been adopted generally in practice and in congressional legislation, that the appeal from a United States commissioner provided for in section 13 of the Chinese-exclusion act of September 13, 1888, is an appeal to the district court, and should so be regarded.—(The United States, petitioner, 194 U. S., 194, Sup. Ct., May 2, 1904; reversing Chow Low v. U. S., 112 F. R., 354; C. C. A., Nov. 23,

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The phrase "district judge of the district," as employed in section 13 of the act of September 13, 1888, is equivalent to "district court of the district," and a writ of error will lie from a circuit court of appeals to the judgment thereof.-(In re U. S. v. Gee Lee, 50 F. R., 271, C. C. A., Apr. 18, 1892; followed, but doubted, In re Chow Low, 110 F. R., 952, Cirt. Ct., Sept. 2, 1901.)

The right of appeal to a district court given by act of September 13, 1888, section 13, to a Chinese person adjudged by a United States commissioner to be unlawfully within the United States, is not taken away by the act of May 5, 1892, section 3.—(U. S. v. Wong Dep Ken, 57 F. R., 203; Dist. Ct., June 30, 1893.)

A judgment of conviction and deportation of a Chinese person by a United States commissioner who has obtained jurisdiction, is conclusive on the question of the right of such person to remain in the United States, subject to appeal to the district judge of the district, as provided by section 13 of the act of September 13, 1888.-(In re Tsu Tse Mee, 81 F. R., 702, Dist. Ct., July 9, 1897; In re Gut Lun, 83 F. R., 141; Dist. Ct., Nov. 1, 1897.)

A district judge, while sitting in his own district, can not allow an appeal from a court of another district.-(United States v. Moy Yee Tai et al., 109 F. R., 1; C. C. A., May 9, 1901.)

A circuit court of appeal can not set aside or modify an order of a district court, except upon appeal or writ of error there from.(Ibid.)

Section 13 of the act of September 13, 1888, which expressly gives the right of appeal to a Chinese person from a decision rendered by a United States commissioner, by implication denies such right to the Government.-(U. S. v. Mar Ying Yuen, 123 F. R., 159; Dist. Ct., May 16, 1903.)

An application for a new trial, after an order of deportation has been entered against a Chinese person for being unlawfully in the United States, must be made to the commissioner by whom judgment was rendered; and where a motion for a new trial in Chinese deportation proceedings is denied by the commissioner before whom the proceedings were had, appeal from such denial lies to the United States district court.-(U. S. v. Ng. Young, 126 F. R., 425; Dist. Ct., Dec. 18, 1903.)

Under section 6 of the act approved March 3, 1891, creating circuit courts of appeal, an appeal lies to such court from the judgment of a district court on an appeal from a decision rendered by a United States commissioner ordering deportation of a Chinese person under section 13 of the act of September 13, 1888.-(Tsoi Yii v. U. S., 129 F. R., 585; C. C. A., Apr. 4, 1904.)

An appeal is the proper proceeding for the review by a circuit court of appeals of a judgment of a district court rendered on appeal from an order of a commissioner for the deportation of a Chinese person arrested under section 13 of the act of September 13, 1888.(U. S. v. Hung Chang, 134 F. R., 19; C. C. A., Dec. 1, 1904.)

A Chinese person ordered deported by a commissioner may appeal to the district judge as a matter of right, and, in the absence of a rule of court requiring it, an order of the judge allowing the appeal is unnecessary; the service of notice of appeal on the commissioner and the district attorney and the filing of such notice with the clerk

being sufficient. An order of the judge, however, is necessary to stay the execution of the commissioner's order of deportation pending the appeal.-(U. S. v. Loy Too, 147 F. R., 750; Dist. Ct., Sept. 28, 1906.)

Under the act of Congress of September 13, 1888, section 13, a notice of appeal served thirteen days after the rendition of a decision by the commissioner, is without force and gives the appellate court no jurisdiction of the case.-(U. S. v. See Ho How, 100 F. R., 730; Dist. Ct., Apr. 6, 1900.)

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The mere appearance of an attorney and giving notice of appeal 2 do not constitute an appeal under section 13 of the act of September 13, 1888. (In re Chow Low, 110 F. R., 952; Dist. Ct., Sept. 2, 1901.)

Under section 13 of the act of September 13, 1888, oral notice of appeal given to the commissioner within ten days after the handing down of his decision, and entered of record, is sufficient without presentation of the matter to the judge of the appellate court within the ten days prescribed.-(Chow Low v. U. S., 112 F. R., 354; C. C. A., Nov. 23, 1901.)

It is within the discretion of a district judge to whom appeal is taken under section 13 of the act of September 13, 1888, to determine when delay in bringing such appeal before him for hearing amounts to an abandonment thereof.-(Ibid.)

Where a Chinese laborer appealed from the decision of a commissioner, upon testimony taken without objection, taking no exception to the facts, held that the court had jurisdiction upon an implied agreement of facts. (In re Chin Ark Wing, 115 F. R, 412; Dist. Ct., May 12, 1902.)

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An application for a new trial, after an order of deportation has 6 been entered against a Chinese person for being unlawfully in the United States, must be made to the commissioner by whom judgment was rendered; and where a motion for a new trial in Chinese deportation proceedings is denied by the commissioner before whom the proceedings were had, appeal from such denial lies to the United States district court.-(U. S. v. Ng. Young, 126 F. R., 425; Dist. Ct., Dec. 18, 1903.)

The circuit courts of appeal have no jurisdiction under the act of March 3, 1891, providing for such courts, to review an order of a district judge in Chinese deportation proceedings where said judge has erroneously treated the case as being on trial before him and not as before the district court, for which reason there was no transcript of proceedings, exceptions, etc., certified by the clerk of the district court.-(U. S. v. Hung Chang, 130 F. R., 439, C. C. A., May 21, 1904.)

Where, in deportation proceedings, an appellant fails to enter his appeal and file the transcript on or before the return day of the citation, as required by rule 16 of the circuit court of appeals, the appellee is entitled on petition to have the case docketed and dismissed. (Wong Sang v. United States, Wong Den v. Same, 144 F. R., 968; C. C. A., Jan. 12, 1906.)

A Chinese person ordered deported by a commissioner may appeal to the district judge as a matter of right, and, in the absence of a rule of court requiring it, an order of the judge allowing the appeal is unnecessary, the service of notice of appeal on the commissioner and the district attorney and the filing of such notice with the clerk 79521°-vol 39-11-15

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