Cheung Sum Shee v. Nagle

¶1ON CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.

¶21. Alien Chinese wives and minor children, of Chinese merchants lawfully domiciled in the United States, are not mandatorily excluded from admission by the Immigration Act of 1924, which provides that “ no alien ineligible to citizenship shall be admitted to the United States unless such alien is . . . not an immigrant, as defined in Section 3 ”, and in that section classifies as a non-immigrant “ an alien entitled to enter the United States solely to carry on trade under and in pursuance of the provisions of a present existing treaty of commerce and navigation.” P. 344.

¶32. Such wives and children were guaranteed the right of entry by the Treaty of 1880. United States v. Mrs. Gue Lim, .176 U. S. •459. Id.

¶43. The Act of 1924 should be construed with a view to preserving' this treabyjight; and the legislative history and general terms of the act permit this. P.>,345.

¶54. Such aliens, being' in effect specified by the act itself as “non-immigrants’”, are not barred by § 5, which declares that an alien not particularly specified in the act as a non-quota immigrant or non-immigrant shall not be admitted as such'“by reason of rela*337tionship to any individual who is so specified or by reason of being excepted from the operation of any other law regulating or forbidding immigration.” P. 346.

¶6Question certified by the Circuit Court of Appeals,. arising on the review of a decision of the District Court, (2 Fed. (2d) 995,) which refused relief by habeas corpus to Chinese aliens held for deportation by the immigration authorities.

¶7Mr. Frederick D. McKenney and Mr. George A. MeGoiuan, with whom Messrs. John L. McNab, Jackson H. Ralston, Roger O’Donnell, George W. Hott, W. J. Peters, M. Walton Henry, J. P. Fallon, 0. P. Stidger, W. G. Becktell, and Gaston. Straus were on- the brief, for appellants.

¶8Mr. Assistant Attorney General Donovan, with whom the Solicitor General was on the brief, for appellee.

¶9There is a difference of opinion between the two departments of the Government which are directly concerned with the administration of the Act. The Department of Labor is of opinion that the Act requires the exclusion of these, appellants. The Department of State is of opinion that the Act and the Treaty together require their admission. In view of tbe importance, of this case, counsel for the Government feel it their duty to submit reasons, in support of both opinions. Accordingly, in their brief is set forth the reasoning in support of the exclusion' theory maintained by the Department of Labor; in an appendix, the opposing arguments of the State Department, ás. embodied in a memorandum prepared by. the Solicitor for that Department. The appellants are clearly “ aliens ineligible to' citizenship.” They are therefore excluded by § 13(c) qf .the Act, unless they can establish their right to enter' as “treaty merchants” under § 3(6). Section 3(6) grants *338admission to “ an alien entitled to enter the United States, solely to carry on trade under and in pursuance of the provisions of a present existing treaty of commerce and navigation.” Can it be said that the wife or the minor child of a merchant.comes here “ solely to carry on trade ” ?

¶10The agent of a merchant is not himself entitled to enter as a merchant. Tulsidas v. Insular Collector, 262 U. S. 258; And this Court in the Gue Lim Case did not hold that the wife of a merchant was entitled to enter “ solely to carry on trade,” but merely decided that she was entitled to enter solely to reside with her husband, as she then had the right to do. The purpose of § 3(6) was to take away that right by granting the right of entry only to actual merchants, and not, as formerly, to merchants and their families. Any other construction would deprive the section of its meaning. At the time when the Gue Lim decision was rendered, no statutory definition existed of the term “ merchant ”; and the Court accordingly construed the language of the treaty as including both merchants and their families. The Court might have decided the Gue Lim Case differently had § 3(6) then been in existence. It was inserted at the request of the Secretary of State, for the purpose of safeguarding treaty rights, but in its- final form is very different from the provision which the Secretary originally suggested; and it is possible that the effect of the alteration is to.exclude the wives and children of merchants. Whatever might have been the result had Congress enacted, totidem verbis, either of the Secretary’s suggestions, it is submitted that the case must be judged upon the law as. it is written. The Committee Report indicates that Congress intended to “ tie the exemptions to those persons properly exempted and entitled to enter the United States solely to carry on trade under and in pursuance of all existing treaties of commerce and navigation.” The effect of § 3(6), as actually passed by Congress, may be to deny the right of *339entry to all who do not come here “ solely to carry on trade.” In opposition to this view counsel cite the case of Anderson v. Watt, 138 U. S. 694, 706, and other cases holding that the. domicil of the husband is the domicil of the wife, and that the identity of the wife is, in a sense, merged in that of the husband. But has not this theory lost much of its force since the enactment of the Act of September 22, 1922, c. 411, 42 Stat. 1021, under which the citizenship of the wife no longer follows that of the husband? And the Immigration Acts often operate to prevent husband and wife from residing together in this country. Yet this Court, when appealed to on the ground of hardship, has declined to interfere. Commisisoner of Immigration v. Gottlieb, 265 U. S. 310; Chung Fook v. White, 264 U. S. 443; Yee Won v. White, 256 U. S. 399.

¶11In the next place § 5 of the Act provides “An alien who is not particularly specified in this Act as a non-quota immigrant or a non-immigrant shall not be admitted as a non-quota immigrant or a non-immigrant by reason of relationship to any individual who is so specified or by reason of being excepted from the operation of any other law regulating or forbidding immigration.” It may well be that the appellants have no right of entry in and of themselves; their right of entry is dependent, not upon their own status, but upon that of their husbands or fathers. And. if that is so, then they are excluded by the operation of § 5. Congress has been careful to grant admission to the families of Chinese government officials § 3(1), and to the families of Chinese clergymen or professors §§ 4(d), 13(c) (2); and from this fact it may be inferred that Congress did not intend to grant admission to the families of Chinese merchants, according to the maxim expressio unius. Lapina v. Williams, 232 U. S. 78, 92; United States v. Goldenberg, 168 U. S. 95, 103. It is conceded that a strong presumption exists in favor of maintaining treaty rights. The right of these appellants *340to enter this country is a right conferred, if not by the letter of the treaty, at least by the treaty as interpreted by this Court. But it is submitted that even treaty rights can not prevail against the language of the Immigration Act of 1924. And under §§ 5 and 13(c) of that Act, it is doubtful whether these appellants can enter.

¶12Such is the contention of the ’Department of Labor; but this Court should also consider the careful and well-reasoned opinion of the Solicitor for the Department of State, before answering the question.

¶13The following is excerpted from a memorandum by Hon. Charles Cheney Hyde, Solicitor for the State Department, which was appended to the brief of appellee:

¶14Wives and minor children of alien merchants entering the United States for purposes of trade and commerce under a present existing treaty of the United States are themselves clothed with a treaty right to enter. The courts of the United States, when interpreting the treaties of their country, act on the assumption that it was the design of the contracting parties not to contravene principles of morality and fairness, Ubeda v. Zialcita, 226 U. S. 462, 454; that their agreement should be interpreted “ in a spirit of uberrima fides, and in a manner to carry out its manifest purpose,” Tucker v. Alexandroff, 183 U. S. 424, 437; and that its terms should be liberally construed, Asakura v. Seattle, 265 U. S. 332, 342; Haunstein v. Lynham, 100 U. S. 483; Geofroy v. Riggs, 133 U. S. 258; Tucker v. Alexandroff, supra.

¶15The commercial treaties of the United States providing for the entrance and residence of nationals of one contracting party into the territories of the other for the purposes of trade, have not made mention of the wives and minor children of such individuals. It seems to have been taken for granted that there is such unity of interest in the- individual family that the head thereof, if given *341the right to enter a country for purposes of trade, is the representative of an entity embracing his wife and children who are not to be dissociated from him. This conclusion is fortified by the fact that treaties with Japan, China, and other countries contemplate prolonged and undetermined residence for the purposes of trade, the occupation of dwellings, and by necessary inference the establishment of homes. [Citing treaties-.]

¶16It would scarcely be suggested that each, of these treaties should be interpreted differently in accordance with the exact words used. Such literal construction could not give effect to the intent' of the contracting parties, nor could it avail tovcarry out the general purposes for which such treaties are concluded. It is believed that the varying terms of all these treaties may be properly paraphrased thus: “ The contracting .parties agree that their citizens and subjects, respectively, shall have a right to come into the territories of the other for the purpose of carrying on international trade, and they are accorded the privilege of remaining indefinitely in the country, of establishing their homes and of bringing with them for this purpose the members, of their families so long as they are here for that purpose.”

¶17An examination of the original signed copy of the treaty of 1880 with. China, in the archives of the Department of State, reveals that there is nothing therein which can be regarded as a title, although in Malloy’s compilation (Vol. 1, p. 237) it is given the caption, “ Immigration Treaty.” In so far as the Chinese treaty refers to merchants, and provides for their entry into the United States, it seems entirely reasonable and proper to consider it as a “treaty of commerce and navigation.” It would be unreasonable to assume in the absence of convincing evidence that the United States and Japan, for example, sought, on the one hand, to give traders the right to enter, remain, and reside for an indefinite period for the purposes *342of trade, and, on the other, to isolate them while exercising that privilege from their wives and minor children.

¶18An important social policy well recognized in the Anglo-American system lies at the foundation' of this principle. Our courts have recognized the identity. of interest which exists between husband and wife. The wife is an integral part of the husband’s sphere of activity. Anderson v. Watt, 138 U. S. 694. The Supreme Court of the United States in deciding United States v. Mrs. Gue Lim, 176 U. S. 459, interpreted the treaty between the United States and China of November. 17, 1880 (22 Stat. 826), in a manner that sustains this conclusion. See In re Chung Toy Ho, 42 Fed. 398; Ex Parte Goon Dip, 1 Fed. (2d) 811; Ex Parte So Hakp Yon, 1 Fed. (2d) 814; Yee Won v. White, 256 U. S. 399; Woo Hoo v. White, 243 Fed. 541; see also In re Chin Hern Shu, D. C. Mass., Dec. 11, 1924 (unreported).

¶19It is never to be supposed that an Act of Congress overrides the provisions of a treaty unless its -words are so clear that there is no escape from that conclusion. Chew Heong v. United States, 112 U. S. 536. Section 3(6) of the Immigration Act of 1924 classifies as a non-immigrant “ an alien entitled to enter the United States solely to carry on trade under and in pursuance of the provisions of a present existing treaty of Commerce and Navigation.” Section 13(c) provides that “no alien ineligible to citizenship shall be admitted to' the United States unless such alien ... is not an immigrant as defined in Section 3.” If we assume that aside from the Act wives and minor children of merchants are given by the treaty a right V.o enter the United States, it is obvious that no argument for their exclusion under the Act could arise except for the words. “ solely to carry on trade,” which appear in" § 3(6). It is argued that this phrase was directed against the wives and children of merchants, on the ground that any other construction, deprives this phrase of all meaning. However, such is not the case.

¶20*343In view, of its legislative history, it is believed; that this phraseology was adopted with á desire to grant full rights to persons entitled to enter under treaties of commerce and navigation — to show that the treaty provisions referred to were only those provisions respecting privileges of commerce and navigatioñ, and that the; class of persons referred to was the merchant class within the scope of those provisions.

¶21There is another apparent reason for the use of the phrase “solely to carry on trade” as used in § 3(6). The various treaties of commerce and navigation do. not refer exclusively to merchants. A right of entry is also accorded to ships (and-necessarily-to their crews) and to temporary visitors. Congress had already provided for., alien seamen in .§ 19 of the Act and for visitors or travelers in § 3(2). The phrasing of § 3(6) seems-to have been adopted partly to avoid a conflict with or repetition of §§ 3(2) and 19, and was designedly supplemental thereto. The evidence is abundant and convincing that Congress itself not only had no desire to curtail the treaty right, but also deliberately undertook to respect the treaty right to enter of all who were clothed therewith.

¶22Mr. Henry W. Taft Sled a brief as amicus curiae by special leave of Court.