dissenting:
I must dissent from both the conclusions of fact and law reached by the majority. The act of Congress governing this proceeding has been construed in many eases by the Federal courts, including the Supreme Court of the, United States; and in each case, save one in the seventh circuit which has since been disregarded in that circuit (Moy Guey Lum v. United States, 127 C. C. A. 515, 211. Fed. 91), it was held that the burden was on the defendant to prove his citizenship. Chin Bak Kan v. United States, 186 U. S. 193, 200, 46 L. ed. 1121, 1125, 22 Sup. Ct. Rep. 891; Moy Guey Lum v. United States, supra; Lee Yuen Sue v. United States, 77 C. C. A. 96, 146 Fed. 670; United States v. Hom Lim, 139 C. C. A. 68, 223 Fed. 520; United States v. Quong Wah, 140 C. C. A. 114, 224 Fed. 420. The Supreme Court of the United States in the Chin Bak .Kan Case ruled that a “Chinese person must be adjudged unlawfully within the United State's unless he ‘shall establish hy affirmative proof to the satisfaction of such justice, judge, or commissioner his lawful right, to remain in the United States.’ ” This requires him to establish his right hy more than a mere preponderance of the evidence. It lias been held in a number of the States, and I hare found nothing to the contrary, that where a party is required to produce evidence that will establish a given proposition to the satisfaction of the triers of facts, the burden *510is on him to adduce such evidence as will convince them beyond a reasonable doubt. Carter v. Fulgham, 134 Ala. 238, 32 So. 684; Arkansas Midland R. Co. v. Canman, 52 Ark. 517, 13 S. W. 280; Stratton v. Central City Horse R. Co. 95 Ill. 25; Ball v. Marquis, - Iowa, —, 92 N. W. 691; McMillan v. Baxley, 112 N. C. 578, 16 S. E. 845; Yelch v. State, 55 Ohio St. 146, 39 L.R.A. 737, 60 Am. St. Rep. 680, 45 N. E. 6; Willis v. Chowninq. 90 Tex. 617, 59 Am. St. Rep. 842, 40 S. W. 395; Gage v. Louisville, N. O. & T. R. Co. 88 Ten. 724, 14 S. W. 73. Greenleaf lays down the same rule (1 Greenl. Ev. see. 2) and so does the circuit court of appeals in the Moy Guay Lum Case. Regardless of whether this doctrine, is adopted or not, it is clear to my mind that Congress by using the word “satisfaction” in the statute meant to require very strong proof of a defendant’s right to remain in this country when that right was challenged by the government. Against these decisions, the holding by this court in Chin Wah v. United States, 43 App. D. C. 38, 43, is cited; but I do not think the point was there decided. In fact the court said “it was not necessary” to do so.
The majority opinion says that there is a distinction between the case of one who claims to be a native-born citizen and an alien who has come into the country and is attempting to avoid deportation. “In the one instance” it says: “There is the lawful presumption of the right to remain, and in the other the lawful presumption in'favor of deportation.” The statute does not say so, and we are bound by the statute. There is no presumption in favor of the defendant. He must, according to the plain letter of the act, establish his right by affirmative proof. Now there is a distinction between affirmative and negative proof. The Virginian, 217 Fed. 604; Northern P. R. Co. v. Heaton, 111 C. C. A. 548, 191 Fed. 24; Ætna L. Ins. Co. v. Ward, 140 U. S. 76, 35 L. ed. 371, 11 Sup. Ct. Rep. 720. The former calls for action by the person required to produce, it. Presumptions do not constitute such proof because they are supplied by the law, not adduced by the party. They are in their nature negative, and it cannot, therefore, bo correctly said that one who relies upon them thereby establishes his case bv *511affirmative proof. But, as I have just said, the law raises no presumption in favor of the defendant.
Nor can I assent to the proposition that the burden of proof shifted in this case. When the law places upon a person the obligation to establish a certain proposition, that obligation remains with him throughout the trial. It does not shift. Supreme Tent, K. M. v. Stensland, 206 Ill. 124, 99 Am. St. Rep. 137, 68 N. E. 1098; McAdams v. Bailey, 169 Ind. 518, 13 L.R.A.(N.S.) 1003, 124 Am. St. Rep. 240, 82 N. E. 1057; Boardman v. Lorentzen, 155 Wis. 566, 52 L.R.A.(N.S.) 478, 145 N. W. 750. It was no part of the government’s duty to search for proof which would negative defendant's right. lie cannot prove his case by pointing to the government’s failure1. He must stand or fall by his own affirmative proof. He is like the plaintiff in an ejectment suit, who must succeed, if at all, on the strength of his own title, not by the weakness of his adversary’s.
Has the defendant sustained the burden cast upon him by the law? lie failed to produce any official record of his birth or to account for its absence. We may take judicial notice of the San Francisco earthquake and fire, but we cannot assume that in that catastrophe the building containing the vital statistics of the city was destroyed. Ills father, if we may believe his story, was a merchant in San Francisco at the time of defendant’s birth. If this bo true, we may assume that he was well known. “It -would seem, therefore,” to borrow tlie language of the ma jority, “that someone might have been found who knew Hoy Hen and his wife [parents of-the defendant], and could have furnished proof to the extent of their residence in San Francisco.” The finding of a person possessing this knowledge was important to the defendant. He was represented by counsel who must have1 appreciated its significance, but he calk'd no one to testify upon the point, nor did he offer any explanation of his omission.
As the majority opinion points out, if his parents were, in tlie United States when lie was horn, the father's name should be registered. There is no evidence that it was, nor any attempt to show why this evidence was not produced. R is said *512tbo government should have shown that he was not registered if such was the fact; but this, according to my view of the law, was not incumbent upon the government. The burden, as I have said, was on the defendant to establish his right, and he cannot supply defects in his evidence by saying that the government should have produced the missing links. Lai Quong, a relative, who came to the house of defendant's father when he first landed in this country, must have known where the father was during the first four years of defendant’s life; yet he did not question him about it although he had an opportunity to do so. In four years several trips between China and the United States might have hcen made. Again, it is said that the government cannot rely upon this because it could have questioned Quong; but I answer, It was not required to do so. The statute authorized it to stand upon the weakness of defendant’s testimony. Anyhow the inference to he drawn from the government’s failure is negative, not affirmative, and negative proof can avail defendant nothing. The record then is a blank about defendant’s whereabouts during the first four years of his life. This is significant.
Next: When we find him in Washington at the age of twenty-two he could hardly speak a word of English. According to his testimony he lived over his father’s store in San Francisco until he was fifteen years of age. We may assume that the store was visited from day to day by people who spoke the English language and that the boy mingled with them and heard them converse; also that he traveled upon the street-cars, played in the streets, roamed in the parks, places where the English tongue was spoken, during those years, the most impressionable years of his life, — years in the life of an individual ■when languages are easily acquired; yet, with all those opportunities, and with such others as he may have had after leaving San Francisco at the age of fifteen and until he reached the age of twenty-two, when he first met Mr. and Mrs. Gregory in Washington, he knew “practically no English to amount to anything.” So Mrs. Gregory said. Mr. Gregory, one of liis Sunday-school teachers, found that “he did not grasp English,” and that it was very hard “to get him to understand” it. These *513are facts, in my judgment, which are inconsistent with his assertion of birth in this country. .Had he claimed that he was born on a farm and spent twenty-two years of his life there where little or no English was spoken, his defective knowledge of the language might not be inconsistent with his claim of native birth; hut where, as here, he asserts that he lived from birth until he was twenty-two in large English speaking cities,— ¡San Francisco and Washington, fifteen years-in the former and seven in the latter, — his meager knowledge of the English tongue is not in harmony with his claim.
In addition to this, we hare tin; fact, in effect admitted by him, that when he was interviewed by the government inspector as to the names of the places in which he had worked, he said he could not give them. Two years later when confronted on ¡.he witness stand with this statement, he admitted it, but attempted an explanation by saying that what he meant was that he “could not remember how long I [he] worked in each place.” This is not convincing. Again: At the time the inspector called at the laundry in Washington where defendant was engaged, for the purpose of investigating as to whether or not any Chinese were there in violation of the act of Congress, the defendant, while the inspector was talking to one of the other inmates of the place about his papers of identification and before he had spoken to the defendant, withdrew from tin; i’ooin and ran through a hack passage way towards the street. The inspector pursued, overtook him, and brought him back. All these things were admitted. Why, I ask, did he seek to escapo the inspector! He must have known the purpose of the latter’s visit, for the mere fact of the inspector entering and talking to one of the other Chinamen would furnish no sufficient reason for liis attempted escape. There is only one reasonable explanation, and that must lie in the belief on his part that he had violated the law, and because of this au officer was seeking his apprehension.
The majority opinion says that when a defendant “submits the only proof available, as to his birth, — his own testimony that his own parents told him he -was horn in this country, — he sufficiently overcomes the presumptions raised the *514and establishes, in the absence of proof to the contrary, that he is a native-born citizen of the United States.” If this he correct, the burden he has to bear is very light indeed. I-Cvery defendant would be able to say that his parents told him that he was born in this country, and thus by the weakest kind of proof establish his right to remain unless the government assumed the burden of proving that he did not have that right. Hut the statute, as I have observed before, docs not require, the government to do this.
All that I have said thus far, however, is upon the theory that we have a right to weigh the evidence. That was done first by the commissioner, and then by the trial court. Doth found against the defendant. In such circumstances -we are bound by that finding, unless we are satisfied that there is no substantial evidence to sustain it. In the Moy Guey Lum Case, 127 C. C. A. 515, 211 Fed. 91, it was said: “We have nothing to do with the weight of the evidence. Unless we can sec from the record that the commissioner and the court arbitrarily ignored the evidence adduced and entered judgment of deportation in defiance thereof, we are not at liberty to interfere.” Tn Quock Ting v. United States, 140 U. S. 417, 35 L. ed. 501, 11 Sup. Ct. Rep. 733, 851, Mr. Justice Field speaking for the. court said: “For the consideration mentioned, and the fact that the court below had the witnesses before it, and could thus better judge of the credibility to which they were entitled, we are not prepared to hold that its finding was not justified.” In Yee El (Ep.) v. United States, 137 C. C. A. 537, 222 Fed. 66, the court said: “The rule may be considered settled that in matters of this kind, where the commissioner sees and hears the witnesses, the accused is not entitled to repeated appeals on the facts, and a judgment of the District Court affirming the commissioner will not be disturbed, except in a perfectly clear case or for error of law.” Citing many cases. The Supreme Court of the United States in Chin Bak Kan v. United States, 186 U. S. 193, 201, 46 L. ed. 1121, 1126, 22 Sup. Ct. Rep. 891, said of the right of appeal under this act: “We are of the opinion that we cannot properly re-examine the facts already determined by two judgments below. That is the general rule, *515and there is nothing to take this case out of its operation.” It is said that this rule applies only whore there is a conflict in the evidence, and that there is no conflict here because, it is asserted, witnesses do not contradict one; another on any given point. In the first place, 1 think this slates the rule too narrowly. The, decision of a lower court in a la5v case may not be disturbed except where there is no substantial evidence to support it. Ling Su Fan v. United States, 218 U. S. 302, 308, 54 L. ed. 1049, 1050, 30 L.R.A.(N.S.) 1176, 31 Sup. Ct. Rep. 21; Sioux City & P. R. Co. v. Stout, 17 Wall. 657, 21 L. ed. 745; Randall v. Baltimore & O. R. Co. 109 U. S. 478, 27 L. ed. 1003, 3 Sup. Ct. Rep. 322; Gardner v. Michigan C. R. Co. 150 U. S. 349, 37 L. ed. 1107, 14 Sup. Ct. Rep. 140. And in the next place, there is in my judgment- a conflict of evidence, even where there is no direct contradiction of the testimony of witnesses, if, because of its nature or the circumstances developed, different inferences may be drawn therefrom. Thurston v. McLellan, 34 App. D. C. 294; L. J. Mueller Furnace Co. v. Cascade Foundry Co. 76 C. C. A. 286, 145 Fed. 596; Cascade Foundry Co. v. L. J. Mueller Furnace Co. 140 Fed. 791; Slentz v. Western Bank Note & Engraving Co. 103 C. C. A. 535, 180 Fed. 389. In Wong Woo v. United States, 153 C. C. A. 471, 240 Fed. 673, 675, a Chinese deporta! ion case where no evidence was introduced by the defendant before the commissioner and all the testimony before the trial court was by deposition, the circuit court of appeals for the sixth circuit held that these circumstances did not render “the rule limiting the right to be repeated trial of fact in eases under this statute inapplicable.” The decisions in United States v. Lem You, 224 Fed. 519, and United States v. Leu Jin, 192 Fed. 580, referred to by the majority, were by trial courts, and hence do not militate against the doctrine of the cases just cited.
Chief Justice Fuller in an opinion quoted by tbe majority truly said that American citizenship is an “inestimable heritage.” [186 II. S. 193.] During the past this nation has bestowed it with lavish hand, but all too carelessly, as wTe are now realizing to our bitter regret. Laws like the statute before ns, passed for the purpose of protecting that heritage, should *516lie construed, where possible, so that they will surely serve the end for which they were enacted.
The judgment of the lower court, in my opinion, should bo affirmed.