UNITED STATES v. FONG SEN

UNITED STATES v. FONG SEN. (District Court, E. D. New York. June 5, 1913.) 1. Aliens (§ 27) — Deportation—Merchant Certificate — Conolusiveness.. Though Act Cong. May 6, 1882, e. 126, § 6, 22 Stat. 60 (U. S. Comp. St. 1901,' p. 1307), authorizes the United States to controvert a merchant certificate under which a Chinese person claimed a right to enter the United States, and hence may offer proof collaterally to contradict the determination of the immigration authorities that the alien was entitled to land when admitted into the country, proof that he had been in the United States 16 years, 'was qualified as a merchant when he arrived, and that since that time he had been working as a laundryman, was sufficient to show the correctness of the action of the immigration authorities in admitting him. [Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 85-87; Dec. Dig. § 27.*] 2. Aliens (§ 32*) — Chinese Persons — Merchants—Right to Enter — Bur- den of Proof. Where a Chinese person claims the right to remain ■ in the United States pursuant to a merchant certificate, the burden is on him to prove his proper admission and his status as a merchant. [Ed. Note. — For other eases, see Aliens, Cent. Dig. §§ 84, 92, 93-95;-Dec. Dig. § 32.*] Deportation proceedings by the United States against Fong Sen. Order vacated, and alien discharged. William J. Youngs, U. S. Atty., of Brooklyn, N. Y. (Reuben Wilson, Asst. U. S. Atty., of Brooklyn, N. Y.,. of counsel), for the United States. Robert M. Moore, of New York City, for defendant. For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes [MAJORITY — CHATFIELD, District Judge.] CHATFIELD, District Judge. Although under the provisions of section 6 of the act of May 6, 1882 (22 Stat. 60, c. 126 [U. S. Comp. St. 1901, p. 1307]), the United States may controvert the evidence of a merchant certificate, and hence may offer proof collaterally to contradict the determination by the immigration authorities that the Chinaman was entitled to land when admitted into the country,, the evidence in the present case does not show that the action of the immigration authorities in admitting Fong Sen was not correct, nor is there any reason to suppose that he was not so admitted. The burden was on Fong Sen to prove his proper admission and his status as a merchant. This has been done. He has been in the United States 16 years, appears to have been qualified as a merchant at the time of his arrival, and should not be deported. The record before the commissioner made a prima facie case upon which the order of deportation was properly entered; but, upon appeal, the failure of the defendant to present testimony has been explained, and satisfactory evidence, including that of two white witnesses, has been given. The only evidence against the defendant is his statement, made at the time of his arrest, to the effect that he came from Hawana (which was understood to be Havana, Cuba, but now appears to be a section of Hong Kong), and his admission that he was a farmer up to the time he went to Hong Kong to obtain his merchant certificate. Since his arrival in the United States he has been working as a laundryman, but was also qualified as a merchant for several years. It cannot be held that there is doubt of his actual intent to engage in mercantile life, and of his coming to the United States in that capacity. The order of deportation will be vacated, and the defendant discharged