[1] In deciding this case, as the court does, adversely to the petitioner, little more might be said than to remind counsel of the fact that when an alien of the Chinese race seeks to enter the country, or, as here, is lawfully arrested (see United States v. Hom Lim, 214 Fed. 456, par. 1, 460, also 461-462) under the provisions of the Chinese immigration laws, the burden is upon him of showing that his status is such or his qualifications are such, as to entitle him either, as the case may be, to land or to remain in the country. And although in this case of deportation of a person already in the country, the record shows some evidence of a purely hearsay character, evidence not competent, still that fact did not relieve the petitioner of the burden, above stated, which was upon her to show; (1) that she had not been found within the country in violation of section 6 of the Chinese exclusion
“That any Chinese person or person of Chinese descent arrested under the provisions of this act or the acts hereby extended shall be adjudged to be unlawfully in the United States unless such person shall establish, by affirmative proof to the satisfaction of such justice, judge or commissioner, his lawful right to remain in the United States.”
See Chin Bak Kan v. United States, 186 U. S. 193, 200; United States v. Hom Lim, ubi sup.; Yee Ging v. United States, 190 Fed. 270, 271-273, the decision in the latter case making, at page 272, this pertinent criticism of a contra decision of Judge Grosscup in Moy Suey v. United States, 147 Fed. 697:
“He appears to proceed upon the assumption that a different rule of evidence should be applied to a Chinese person 'physically and politically' in the country from that applicable to such a person who is stopped at the border line and refused admission. . . . The statute makes no such distinction, nor is it to be found, so far as the CourtPage 655is advised, in any ease decided by the Supreme Court.”
Also the suggestive language of Judge Chatfield in United States v. Hom Lim, supra, may be referred to:
“It must be observed that no Chinese person or person of Chinese descent may be arrested, even upon a warrant, unless based upon circumstances showing him to be unlawfully within the United States. Section 13, Acts of' 1888. [For such showing before the above warrant of arrest, which was the second warrant, see Transcript, pages 1-58, and for such showing before the first warrant of arrest, of March 30, 1915, see Id., pages 1-18.] A person who has been lawfully 'arrested' shall be adjudged to be unlawfully within the United States unless he furnishes affirmative proof of his right to remain. It would render the law unconstitutional if it should be held to allow the arrest and deportation of a person, even where a warrant had been issued, unless the record showed some proof, at least in the way of allegations of fact, that the person arrested was a Chinese person or person of Chinese descent, and that this person was 'unlawfully’ in the country and had been arrested because of some state of facts prohibited by and within the language of the law.” (At page 460.)
“Unless the record shows that an order of arrest could lawfully be made, [and it does so show] then the entire case must fall for lack of right to deport. A person cannot be physically 'arrested’ without some basis of fact showing unlawful presence, and then be forced into the position of proving his right to remain, when the 'arrest’ is not based upon any facts making the arrest presumptively lawful.” [But it is so based here.] (At pages 461-462.)
The cases embraced within the Horn Liui decision, supra, are distinguished from the case here by the fact of their want of anything making the warrant of arrest “presumptively lawful”. 214 Fed. 461-462.
The language of Mr. Justice Holmes as quoted in Looe Shee v. North, 170 Fed. 571 (and see Id., 566, syllabus, par. 2) may suggest that, apart from statute, the burden of showing an alien’s status <?f qualifications to be such as to
The fact that the Assistant Secretary of Labor was justified, as I am convinced that he was, in finding a failure of the evidence to establish what was claimed for the alien here, is sufficient, then, to determine the case against her.
And so it would not be necessary to regard the additional grounds of the second warrant of arrest, as founded on the general, as distinguished from the Chinese, immigration laws. They are (4) that the petitioner has been found in the United States in violation of 34 Stat. 898, act of Feb. 20, 1907, as amended, in that she has been convicted of or admits having committed a felony or other crime or misdemeanor involving moral turpitude prior to her entry into the United States, and (5) that shei has been found in the United States in violation of that statute in that she entered without the inspection by it contemplated and required, having secured admission by means of false and misleading statements (sections 20 and all sections requiring aliens to be inspected). But even the burden of proof as to these last two grounds, which is upon the government (see Bouve, Exclusion of Aliens, 533, 560), has in my opinion been sustained. At all events, under the evidence direct and circumstantial, taken in hearings which were fair, it would not be within the province of this court to
“That in case the Secretary of Labor shall be satisfied that an alien has been found in the United States in violation of this Act, or that an alien is subject to deportation under the provisions of this Act or of any law of the United States, he shall cause such alien within the period of three years after landing or entry therein to be taken into cus-today and returned to the country whence he came.”
[2] And, for another reason, it is not necessary to go into the question, whether there was or not, a showing of the admission of an offense involving moral turpitude, — or, whether, conceding the fact of the petitioner’s concubinage only, as distinguished from adultery, such concubinage would, as a matter of law, amount to an offense of moral turpitude; for this, though stated as a ground of the warrant of arrest, was not included in the warrant of deportation as a ground thereof. Nevertheless, as the Secretary might, on the evidence and the circumstances in evidence, have included this ground in the deportation order, and as counsel for the alien gave some attention to the question, I am disposed to make the observation, in line, as I believe, with my opinions in the cases of Tome Tanno, ante, p. 266, and of Look Wong, ante, p. 568, and of Ko Matsumoto, ante, p. 625, that “moral turpitude” if it means anything at all must mean moral turpitude according to our own standards and not according to those of alien races. This view would set at rest the argument here made, that it is not in China immoral, and does not involve moral turpitude, to be the concubine of a married man. But her admissions were not of mere concubinage, if there is any moral difference, but of bigamy and adultery; and these are offenses of moral turpitude. See In re Ko Matsumoto, supra.
But, apart from the question of the burden of proof above discussed, it is fair to the immigration officers and to the Assistant Secretary of Labor to point out in the record matter supporting rather strongly most, at least, of the charges in the warrant of arrest of August 19, 1915, and of the order of deportation of December 6, 1915 (Transcript, pages 60-61, 70).
For inconsistencies as to fact of death of alien’s father, see Id., pages 9, 12, 13, 20, 21, 30, 62, 64.
For inconsistencies, also the alien’s absolute admission (the page references to the latter being italicized) as to the fact, or otherwise, of her first husband’s death, see Id., pages 1, 7-9, 11, 12, 20-23, 24, 28, 30-32, 34-38, 40, 42, 43, 55-58 (alien’s own witness), 63-65.
For suggestion that alien came with other intent than that of living with the merchant Goo' Nam Kong, by reason of whose status as a merchant she claimed the right to enter, see Id., pages 62, 64 (she wanted to go and live with her alleged husband, but she waited first to stay with her father and “talk things over,” yet though her father, after she had been with him for a little [4 months, see page 63], advised her to go back to her alleged husband), 69, (she failed to do^ so, but went out to work for a considerable time) 63, (and her alleged husband resorted to habeas corpus proceedings in an endeavor to get her on her refusal to go back) 45, 64-65, 69.
As to alien’s suspicious change of name, see Id., pages 7, 35, 40, 67, 68; though the Chinese, especially those in business, are sometimes chameleons with regard to names. See Id., page 44.
The following complained of facts may all be disposed
[3] In view of the repeated rulings of this court, e. g., in In re Ko Matsumoto, supra, it is useless to discuss the contention that the immigration officers at the time of her arrest under warrant of March 30, 1915, failed to accord the alien a fair hearing in the matters of assistance of counsel and cross-examination of witnesses. And the fact is, that the immigration officers were unusually liberal in regard to counsel though she had no counsél (and sought none so far as the record shows) at her preliminary examination upon her arrest; but very early in the case, after her release on bond of only moderate penalty, she was informed that she “might have a lawyer to represent her during the further proceedings” (Id., page 26) and thereafter she had two most able counsel, who presented witnesses in her behalf and cross-examined witnesses of the government. Id., pages 27-69.
Counsel for the alien make some capital out of the fact that two warrants of arrest were issued, one of March 30, 1915, and the other of August 19, 1915; claiming that the first warrant was discharged, wherefore the evidence must have been insufficient to establish the grounds thereof, and
Let the petition for a writ of habeas corpus be dismissed.