Motion and Amicus Curiae Brief — Chang Chan v. Nagle

MAR 23 1995

WM. R. SiatS

POVUVOYIMY YOYUTINIPOYOY TTY

IN THE

Supreme Court of the United States

October Term, 1924. No. 770.

CHANG CHAN et al.,

Vv.

JOHN D. NAGLE, as Commissioner of Immigration

for the Port of San Francisco

ON CERTIFICATE FROM THE UNITED STATES CIRCUIT

COURT OF APPEALS FOR THE NINTH CIRCUIT

Motion for Leave to file Brief as

Amicus Curiae,

and Proposed Brief of Amicus Curiae

HENRY W. TAFT,

Amicus Curiae,

40 Wall Street,

New York, N. Y.

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Wah tateg aPRah Woh taPagtag aPRgPas Pastas tas tal tel te tehts

PRINTED IN U. 8. A, BY INGLE, INc., 206 FuLTON STazet, New York Crry.

ERRATA.

P. 11, lines 28-29: For ‘‘ (Section 4 fa} ’? read ‘‘ (Section 4 [b])’’.

P. 12, line 3: For ‘‘ (Section 4 (a))’’ read ‘‘ (Section 4 a hee

P. 12, line 13: For ‘‘Section 4 (b)’’ read ‘‘Section 4 (d)’’.

P. 15, lines 20-24: Rewrite to read thus:

The application is made to the Commissioner General.

Under Section 9 (e), if he finds the facts stated in the peti-

tion to be true,

‘fhe shall, with the approval of the Secretary of

Labor, inform the Secretary of State of his decision,

and the Secretary of State shall then authorize’’

the proper consular officer to issue an immigration visa to

such immigrants as non-quota immigrants under subdivision

(a) of Section 4. This is the only machinery provided for

Argument:

Outline of Argument.

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I. The petitioning wives had the right, under the

provisions of sub-division (a) of Section 4 of

the Act of 1924, to enter the United States by

virtue of the fact that their respective hus-

bands were citizens of this country ........

ie

Rights of Chinese wives and children of

American citizens prior to the passage of

the Act of 1924........ Perey rer re

. An analysis of the provisions of the Act

does not show any intention to limit the

plain meaning of sub-division (a) of Sec-

tion 4, under which the Chinese wives and

children of the petitioners would be admis-

OURO GW CD CUES avon cc ce cc sccencses

II. The failure of the petitioners to procure im-

migration visas under Section 9, subdivisions

(b), (c) and (d), is not a sufficient ground for

denying the relief prayed for ..............

III. The questions certified should be answered in

Se I 4 ros in una ds sak een eaaes

17

Table of Cases Cited.

BR Tei, TOO, DOE TO abcn kc ac cdccvev cause

Chinese Exclusion Case, 130 U. S. 581 .......... 11

Chiu Shee, Ex parte, 1 Fed. (2d) 798 ............ 14

Chung Toy Ho, In re, 42 Fed. 398 .............. 5, 6

Commissioner of Immigration v. Gottlieb, 265 U.S.

| FESR OPO TE PP ee Teer Pree Uy he eee Tee eC Te 7

Holy Trinity Church v. United States, 143 U. 8.

OE hens Skins Gk ghd ee OAR EA OE ARERR OSS 5, 14

Lau Ow Bew v. United States, 144 U. S. 47 ...... 14

Ozawa v. United States, 260 U.S. 178 ............ 10

Tsoi Sim v. United States, 116 Fed. 920 ...... 5, 8, 12

United States v. Mrs. Gue Lim, 176 U.S. 459. 5, 6, 7, 13

Yee Won v. White, 256 U. S. 399 ..............

Other Authorities.

Acts of Congress: PAGE

oe et eS Serre errr rT Terr rrr re 10, 11

ND hls on bk dbadnabedens kb22 cdne evan 11

ES een erent ree Pee Perr err ee 5

NE ca ahi 4d Cena deneddacun ceeds 7

NN oo ithe edd nee adehenennesndanawes 8, 9

Dg ks ec hadedeeeaskalicadaaws Xe 8

43 Stat. 153:

EE Tee eer re rere yr rE ore rr 10, 16

ie, PEOPEE PORTE ETRE ERT CTT Pere reer Tr 10

Rie Rep eee 4, 8, 10, 11, 12, 14, 15, 16, 17

i SEPP re rrr rr rre trier Hane Meret 10

get SEPEPOCE POPC TT UT CoC TOR Cre ee & 10

iD ee pehkvan keds kthnawsbeaanekeeenaa 10

relat, Te CETL Ee Pore TT TET eT TT mee © 10

ets, SORCRACR e s ara e 2, 3, 8, 12, 15, 16

ge er re erred ent 10

Th. MQ (ihe dankean dec heheahees saan nse ans 10

sit Setar ene 3, 9, 10, 11, 12, 14, 15, 17, 18

hk POOR Rr ny EVOL EP ey Teer Tree 10

MAR ake Kae cibkeoness kancinsatauees 10

WN CA A hahan cakes wha da nee ae wean 10

gh FEE P OPI ST Teer CS TET ree 10

a el al era a Sah 10

Treaty: |

22 Stat. 826 (China, 1880) ................. 6, 7, 13

House Reports, 68th Cong., Ist Session:

Ais ch ccc cuth heedhededsancaceadiekan 16

16

Apyeer non AOU MITE ET

PRET OE ee a er

IN THE

Supreme Court of the United States

October Term, 1924.

Cuanc Cuan, Wona Juno Kay, YEE

Six June, Jinc Hine Wau, Cuan

Suez, Kon Suez, Wone Suee and

Ne Yvert Seune,

Joun D. Nace, as CoMMISSIONER OF

IMMIGRATION FOR THE Port or San

FRANCISCO.

MOTION FOR LEAVE TO FILE BRIEF AS

AMICUS CURIAE;

also

BRIEF SHOWING THAT THE QUESTIONS CERTIFIED

BY THE UNITED STATES CIRCUIT COURT OF

APPEALS FOR THE NINTH CIRCUIT, SHOULD BE

ANSWERED IN THE NEGATIVE.

Now comes Henry W. Tart, an Attorney and Coun-

sellor of this Court and represents that there are involved

in the above entitled case questions arising under the

Immigration Act of 1924, approved May 26, 1924 (43

Stat. 153, c. 190), an answer to which may vitally affect

the interests and status of a number of his clients who

would be seriously prejudiced by a decision affirming the

position taken below by the Commissioner of Immigration

and by the Government.

Therefore, he prays leave to file a brief and argument

as amicus curiae to the end that the questions certified by

the Circuit Court of Appeals be answered in the negative.

He is permitted by counsel for the petitioner and by

counsel for the United States herein to say that they

have no objection to the granting of such leave.

The brief and argument proposed to be submitted

is as follows:

Statement.

The decision of the District Court for the Northern

District of California, Southern Division thereof, Second

Division, upheld the right of the petitioners to admission

into this country under the Immigration Law of 1924

because they were Chinese wives of American citizens,

but the Court refused to order admission because the

petitioners had not procured, under Section 9 of the Act,

an immigration visa. The first four appellants are the

husbands (the petitioners) and the last four appellants

are the petitioning wives (the detained). A petition was

filed for a writ of habeas corpus for the release of the

detained wives, and for a determination that the de-

tained were entitled to the right of permanent admis-

sion into the United States on the ground that their

husbands were respectively citizens of this country

and permanently domiciled therein (Ree., p. 1). A hear-

ing was not accorded to the petitioners by the Com-

missioner of Immigration, but a Board of Special In-

quiry made an examination after which it denied them

admission under the provisions of the Immigration Act of

1924, which became effective July 1, 1924, after the date

of the respective marriages of the appellants (Ree., p. 2).

An appeal from the decision of the Board to the Secretary

of Labor was dismissed. The decisions in all the cases

were substantially the same, and to the following effect:

‘Neither the citizenship of the alleged hus-

band, nor the relationship of the applicant to him,

has been investigated for the reason that even if it

were conceded that both elements exist she would

still be inadmissible, as Section 13 of the Act of

1924 mandatorily exeludes the wives of United

States citizens of the Chinese race if such wives

are of a race or persons ineligible to citizenship,

and the Department has no alternative than to

recommend exclusion.’’ Decision of the Secretary

of Labor, quoted by the District Court (2 Fed.

[2d}, 995, 996), and by the Circuit Court of Ap-

peals (Ree., p. 2).

The petitions were based upon the claim that the

effect of this interpretation of the Immigration Act of

1924 was in violation of the ‘‘treaty, statutory and con-

stitutional rights of appellants, who are citizens of the

United States, and their wives who were and are persons

of the Chinese race.’"’ (Ree., p. 2). The petitions were

amended by filing the original immigration records, and

a general demurrer was interposed in each case which

was sustained by the lower court on October 25, 1924;

and the court thereupon refused to issue the writs of

habeas corpus as prayed for and denied the petitions.

(2 Fed. (2d) 995). The District Judge disapproved the

ground of rejection of the Secretary of Labor, and held

that Chinese women ineligible to naturalization who had,

before the passage of the Act, become the wives of citi-

zens of the United States, were entitled to admission

under the terms of the Immigration Act of 1924, but he

denied the petition upon the zround that the wives had

not procured immigration visas under Section 9, sub-

divisions (b), (c) and (d). (Rec., p. 2.)

On July 1, 1924, when the Immigration Act became

effective, the petitioning wivés were upon the high seas

destined for the United States.

4

One of the rules and regulations promulgated by the

Commissioner General of Immigration under the Act of

1924, provided as follows:

‘‘Under the new law no Chinese alien wife or

alien child of the Chinese race, of an American citi-

zen is admissible solely because of such relation-

ship to such person.”’

Under this provision it was impossible for the peti-

tioning husbands of the Chinese wives, to procure an

immigration visa, and it would have been ineffective if

presented under the regulation above referred to.

When, upon appeal, the foregoing facts were

presented to the Circuit Court of Appeals for the Ninth

Circuit, that Court did not decide the case but certified

the following question under Section 239 of the Judicial

Code (Rec., p. 4):

‘*1. Should the petitioners be refused admission to the

United States either,

(a) Because of the want of a visa; or

(b) Because of want of right of admission if

found to be Chinese wives of American citi-

zens.’’

POINT I.

The petitioning wives had the right, under the pro-

visions of Subdivision (a) of Section 4 of the Act of

1924, to enter the United States by virtue of the fact

that their respective husbands were citizens of this

country.

1. Rights of Chinese wives and children of Ameri-

can Citizens prior to the passage of the Act of 1924.

Chinese wives of American citizens before the pas-

sage of the Act of 1924, under the decisions of the courts,

5

had the right of entry into the United States. The lead-

ing case on the subject is Tsoi Sim v. United States, 116

Fed. 920 (C. C. A., 9th Cireuit, 1902). The case came

before the Court on appeal from a judgment of deporta-

tion entered after the plaintiff in error had been found

to be a ‘‘Chinese manual laborer * * * now within the

limits of the Northern District of California * * * with-

out the certificate of residence required by the act of

Congress’’ (28 Stat. 7, c. 14). The plaintiff in error was

the wife of an American citizen and the Circuit Court of

Appeals construed the statute as not applying to one in

her situation on the broad ground that no specific inten-

tion on the part of Congress to separate a wife from her

husband could be found in the statute and that the case

was a proper one for the application of the general rule

announced in Holy Trinity Church v. United States, 143

U. S. 457, 460 (1892) to the effect that statutes should be

so construed as to avoid an unreasonable and absurd re-

sult. Judge Hawley went on to say (p. 925):

‘*It being the law that the wife and children of

a Chinese merchant are permitted to remain in this

country because the domicile of the wife and chil-

dren is that of the husband and father, as was ex-

pressly held in Re Chung Toy Ho, (42 Fed. 398)

and approved by the Supreme Court in U. 8. v.

Mrs. es Lim, (176 U.S. 459) upon what method of

legal reasoning can it be held that the wife of an

American citizen is not entitled to the same ‘rights,

privileges, and immunities’ under the law? The

Chinese merchant does not stand upon a higher

plane than the Chinaman who is born of parents,

of Chinese descent, having a permanent domicile

and residence in the United States. On the con-

trary, the native born, by virtue of his birth, be-

comes a citizen of the United States, and is en-

titled to greater rights and privileges than the

alien merchant. The wife has the right to live

with her husband; enjoy his society; receive his

support and maintenance and all the comforts and

eagey of the marriage relations. These are

r, as well as his, natural rights. By virtue of

her marriage, her husband’s domicile became her

domicile, and thereafter she was entitled to live

with her husband, and remain in this country.”’

Prior to the passage of the Act of 1924, the question

arose as to whether wives and children of Chinese mer-

chants were entitled to the privilege of entry into this

country conferred by the Treaty of 1880 (22 Stat. 826)

upon the merchants themselves. This question was an-

swered in the affirmative by most of the lower federal

courts that considered it, and eventually by this Court;

and the views expressed in the opinions indicate a liber-

ality of interpretation of treaty rights of wives and chil-

dren of admissible aliens, based upon considerations

which are not without weight in considering the rights of

wives under the Act of 1924 who claim admission by vir-

tue of the citizenship of their husbands.

In United States v. Mrs. Gue Lim, 176 U. S. 459,

(1900), this Court took the view that ‘‘it is not possible

to presume that the treaty, in omitting to name the wives

of those who by the second article were entitled to ad-

mission, meant that they should be excluded’’ (p. 466).

The Court expressly approved the reasoning of Deady,

D. J., in the case of In re Chung Toy Ho, 42 Fed. 398

(C. C. Ore., 1890). In that case, Judge Deady, calling

attention to the provision of the treaty by which a Chi-

nese merchant might bring his ‘‘body and household

servants with him into the United States’’, proceeded

(pp. 399, 400) :

*‘It is impossible to believe that parties to

this treaty, which permits the servants of a mer-

chant to enter the country with him, ever contem-

plated the exelusion of his wife and children. And

the reason why they are not expressly mentioned,

as entitled to such admission, is found in the

fact that the domicile of the wife and children

is that of the husband and father, and that the

7

concession to the merchant of the right to enter

the United States, and dwell therein at pleasure,

fairly construed, does include his wife and minor

children; particularly when it is remembered that

such concession is accompanied with a declaration

to the effect that, in such entry and sojourn in

the country, he shall be entitled to all the rights

and privileges of a subject of Great Britain or a

citizen of France.

*

‘‘My conclusion is that under the treaty and

statute, taken together, a Chinese merchant who

is entitled to come into and dwell in the United

States is thereby entitled to bring with him, and

have with him, his wife and children. The com-

pany of the one, and the care and custody of the

other, are his by natural right; and he ought not

to be deprived of cither, unless the intention of

Congress to do so is clear and unmistakable.’’

(Italics ours.)

In Yee Won v. White, 256 U. S. 399, 400 (1921), this

Court approved the decision in the Gue Lim case as

having established the proposition that the wife of a

Chinese merchant could not be excluded under the treaty

‘since this would obstruct the plain purpose of the

treaty of 1880 to permit merchants freely to come and

go’’ (p. 401).

These decisions indicate the liberality with which the

courts have viewed the rights of alien wives and children

of husbands who in any capacity are themselves entitled

to live in this country. Nothing in Commissioner of

Immigration v. Gottlieb, 265 U. S. 310 (1924), affects the

principle on which these cases were decided, as that case

did not involve treaty rights. An express provision in

the 1917 Act (39 Stat. 874, c. 29) exempted from the

excluding provisions ‘‘ministers * * ° their legal

wives or their children’’ only when such ministers were

immigrating from the barred Asiatic zone. But Gott-

lieb came not from the Asiatic zone but from Palestine.

8

Furthermore, he could not successfully invoke the 1921

Acts (42 Stat. 5, c. 8; 42 Stat. 540, c. 187), since the perti-

nent exemption of these acts applied to ‘‘ministers of any

religious denomination’’ without mentioning their wives

and children; and neither the other provisions of the Act

of 1917, nor its legislative history, justified a construc-

tion of the statute more broad than its plain language

required.

If the provisions of the Act of 1924 are construed

in the spirit of liberality which led to the decision in the

Tsoi Sim case, there is no difficulty in arriving at the con-

clusion that the wives and children of the petitioners are

admissible under the provisions of subdivision (a) of

Section 4 of the Act; and this interpretation is in con-

sonance with expressions of Congressional intent con-

tained in reports of the House Committee on Immigra-

tion and Naturalization referred to below.

2. An analysis of the provisions of the Act does not

show any intention to limit the plain meaning of subdivi-

sion (a) Section 4, under which the Chinese wives and chil-

dren of the petitioners would be admissible to this country.

Section 4 provides as follows:

‘*Non-Quota Immigrants.

“*Sec. 4. When used in this Act the term

‘non-quota immigrant’ means:

‘*(a) An immigrant who is the unmarried child

under 18 years of age, or the wife, of a citizen

of the United States who resides therein at the

time of the filing of a petition under section 9;”

Under familiar principles of law it will be pre-

sumed that Congress was aware of the judicial interpre-

tation to which we have called attention above, by which

in effect the Chinese wives and children of American

citizens were themselves held to be vested with the same

9

right to dwell in this country as that enjoyed by the

husbands and fathers. But the Government claims that

the right previously existing was expressly taken away

by subdivision (c) of Section 13, which provides as fol-

lows:

‘*(c) No alien ineligible to citizenship shall

be admitted to the United States unless such alien

(1) is admissible as a non-quota immigrant under

the provisions of subdivision (b), (d), or (e) of

section 4, or (2) is the wife, or the unmarried

child under 18 years of age, of an immigrant ad-

missible under such subdivision (d), and is accom-

panying or following to join him, or (3) is not an

immigrant as defined in section 3.’’

An answer to this claim of the Government involves

a consideration of the general purpose of the Act of

1924.

In a brief to be submitted in Cheung Sum Shee et al.

v. John D. Nagle, No. 769, we deal with the general policy

underlying the provisions of the Immigration Act of 1924

with reference to the exclusion of aliens. We take the

liberty of referring the Court to the analysis of the stat-

ute contained in that brief, at pp. 6 et seq.

The exclusion of aliens is provided for in the Act

of 1924 upon two principles which are not interdepen-

dent. The policy dictating the one is different from that

upon which the other is based. The quota plan of limit-

ing immigration was in force under the Immigration

Law of 1921, and was more fully developed under the

Act of 1924. It establishes a limitation of the number

of admissible aliens by fixing quotas with reference to

percentages of persons already lawfully within this

country, and who are of the same nationality or of

the same national origin as those seeking admission.

The class excluded on the other principle, that is, be-

cause they were ‘‘ineligible to citizenship’? are prin-

cipally members of Oriental races who have been de-

prived of the right of becoming American citizens be-

10

cause they are not ‘‘free white persons’’ or ‘‘aliens

of African nativity’’ or ‘‘persons of African decent.”

(Section 2169 R. S., and other laws enumerated in Section

28 (c) of the Act of 1924, as construed in Ozawa v. United

States, 260 U. S. 178 [1922]).

Sections 2, 4, 5, 6, 7, 8, 9, 11, 12, 16 and 18, all re-

late to the quota system. The only sections which

could in any view relate to exclusion on account

of ineligibility to citizenship are Sections 3, 5, 13,

15, 25 and 28, and of these the only ones of much

importance in relation to that subject are Sections 3 and

13. General provisions relating to burden of proof,

rules and regulations and penalty provisions are not

relevant in the present discussion. The attempted

merger in one Act of provisions relating to the two

systems of exclusion has led to some confusion in phrase-

ology.

Bearing in mind the general nature of the two prin-

ciples referred to, we propose to examine the rights of

the petitioners under subdivision (a) of Section 4 of

the Act.

Section 4 is the first of the sections specifically relat-

ing to quota immigrants. Its purpose is to exclude from

the quota count certain specified immigrants. But the

exclusion is not in any of the cases provided for based

upon ineligibility to citizenship. Section 13, on the other

hand, is entitled ‘‘Exelusion from United States,’’ and

obviously is intended to cover exclusion in all cases

whether under the quota system or as a result of in-

eligibility to citizenship.

Subdivisions (b), (d) and (e) of Section 13 relate te

temporary and special cases, which need not be especially

dealt with, excepting that subdivision (d) of Section 13

will be referred to in connection with Point IT.

The argument for the exclusion of the wives and chil-

dren in this case is based by the Government upon the

11

provisions of subdivision (c) of Section 13 which provides

as follows:

‘‘(¢) No alien ineligible to citizenship shall

be admitted to the United States unless such alien

(1) is admissible as a non-quota immigrant under

the provisions of subdivision (b), (d), or (e) of

section 4, or (2) is the wife, or the unmarried

child under 18 years of age, of an immigrant

admissible under such subdivision (d), and is ac-

companying or following to join him, or (3) is

not an immigrant as defined in section 3.’’

The first noticeable feature of this provision is that

among the exceptions to exclusion on account of ineligi-

bility to citizenship, it omits to include the case of the

‘‘gnmarried child under 18 years of age, or the wife of a

citizen’’ who were provided for in subdivision (a) of Sec-

tion 4. The question thus arises: Why was it necessary

to make an exception in the case of non-quota immigrants

referred to in subdivisions (b), (d) and (e) of Section 4,

and not in the case of the wife and child of a citizen pro-

vided for in subdivision (a) of that Section? This re-

quires a consideration of the scope and purpose of Sec-

tions 4 and 13.

Section 4 provides for non-quota immigrants, with-

out reference to their ‘‘eligibility to citizenship.’’ Under

former immigration laws and under the provisions of

existing treaties, there had occurred instances of aliens

‘lawfully admitted to the United States’’ (Section 4

[a]) who were ineligible to citizenship under the provi-

sions of Section 2169 R. S., confining the privilege of

citizenship to ‘‘free white persons’’, ‘‘aliens of African

nativity’’, or ‘‘persons of African descent’’.* It was not

*It is well known that prior to the passage of the Chinese Exclusion

Act (23 Stat. 115 ce. 220), there were thousands of aliens in this country

who were eoepeite of being naturalized. This appears from the observa-

tions of this Court in the Chinese Exclusion case, 130 U. 8. 581, 594-596

(1889), read in the light of decisions under U. S. R. 8., Sec. 2169, such as

In re Ah Yup, 5 Sawyer 155 (C. C. Cal., 1878).

12

the purpose of the Act of 1924 to compel a deportation

of such aliens or prevent them from ‘‘returning from a

temporary visit abroad’’ (Section 4 (a)). It therefore

became necessary to exempt them from that provision

of subdivision (c) of Section 13, which declared that

‘‘no alien ineligible to citizenship shall be admitted to

the United States.’’ Ministers, professors, ete., and

their wives and unmarried children under 18 years of

age, and students entering the United States for the

purpose of study, ete., were not to be counted in the

quota, and as a matter of long established policy were

to be admitted although ineligible to citizenship and

exceptions were necessary in their cases (Section 4 (b)

and (e) and Section 13 (c)). But a similar exception was

not necessary in the case of the wife and child of a citizen

of the United States because under the law as it had then

been interpreted (particularly in Tsoi Sim v. United

States, ante, p. 5), the alien wife and child of a citizen

of the United States even though ‘‘ineligible to citi-

zenship’’ had a derivative right of entry into this country

because the citizen himself had such right. Furthermore,

if we regard Section 4 (a), Section 9 and Section 13 (a)

(3) as provisions under the quota system especially de-

signed to cover the case of a wife of a United States citi-

zen, we shall find a sensible reason for omitting, because

it would be unnecessary, an exception in her case in sub-

division (¢), Section 13.

It would be a violent assumption in the absence of

‘clear and unmistakable’’ language and a consistent pur-

pose, shown by apt provisions, to say that the well estab-

lished right, recognized in Section 4 (a) by specific ex-

emption from quota limitation, should be taken away

from a citizen and his family by the omission to exempt

it in Section 13. It would be more reasonable to say that

Congress meant to allow American citizens and their

families to retain the status which the courts had held

that they had before.

13

Further reasons may be adduced in answer to the

claim of the Government.

(a) There can be no sound reason based upon policy

for excluding the alien family of an American citizen

while admitting (1) the wife and child of a Chinese

merchant not eligible to citizenship (as we show in our

brief in No. 769 that the Act does), or (2) the family of an

immigrant provided for in subdivision (d) of Section 4,

equally ineligible, perhaps, because a member of an Ori-

ental race. There is certainly as much reason for re-

garding the family of a citizen of the United States as a

part of the citizen class, as there is for classifying the

family of a Chinese merchant as one of the merchant class

or the wife of a professor as of the academic class. Before

the passage of the Act of 1924, in construing the existing

treaties providing for the admission of the families of

Chinese merchants, the courts were influenced by the

humane consideration that the company of a wife and the

care and custody of a child, are the possession of

the husband and father ‘‘by natural right; and he ought

not to be deprived of either, unless the intention of Con-

gress to do so is clear and unmistakable.’’ United States

v. Mrs. Gue Lim, ante, pp. 6-7. To exclude the families,

this Court said in Yee Won v. White, 256 U. 8. 399, 401,

(1921), ‘‘would obstruct the plain purpose of the

Treaty of 1880 [22 Stat. 826] to permit merchants freely

to come and go.’’ When the question came up as it did in

the 7'soi Sim case, supra, the same considerations led the

courts to admit the wife of an American citizen, although

she was of the Chinese race. The court contrasted the

status of a Chinese merchant and an American citizen if

the family of the one is to be admitted and of the other to

be excluded, adding (116 Fed., at p. 925) :

‘““The wife has the right to live with her hus-

band; enjoy his society; receive his support and

maintenance and all the comforts and privileges of

14

the marriage relations. These are her, as well as

his, natural rights. By virtue of her marriage the

husband’s domicile became her domicile, and there-

after she was entitled to live with her husband, and

remain in this country.’’

These considerations are just as weighty now as they

were before the passage of the Act of 1924, and the result

of discriminating against the wife and child of an Ameri-

ean citizen in the manner indicated above would be just

as absurd now as it was before, and the courts have re-

peatedly refused to construe statutes of this character so

as to have that result. Lau Ow Bew v. U. S., 144 U.S. 47

(1892); Holy Trinity Church v. U. S., 143 U. S. 457

(1892).

(b) If we attribute to Congress the intention to cover

in subdivision (c) of Section 13 cases where admission is

not sought because of the citizenship of a husband and

father because that case is sufficiently taken care of in

subdivision (a) of Section 13, we shall avoid a conflict

with the plain words of subdivision (a) of Section 4, by

which the family of a citizen of the United States may be

admitted as a non-quota immigrant. In Ex Parte Chiu

Shee, 1 Fed. (2d), 798 (D. Mass., 1924), Judge Lowell

took the view that the provisions of the Act could be ree-

onciled in that way. He said:

‘The omission of subdivision (a) of section 4

from the provisions of section 13 arose, not from

a settled purpose of Congress to exclude such a

wife, but from the fact that in considering section

13 Congress had only aliens in mind, and did not

realize that the section as passed diminished the

rights of American citizens, already carefully safe-

guarded by section 4 (a). * * * The discrepancy

between section 4 (a) and section 13 (c) is thus

reconciled by construing the latter provision as

applying only to aliens who are not related to

American citizens.’’

15

Judge Lowell’s decision is cited with approval by the

District Judge in the case at bar. 2 Fed. (2d) 995, 999.

(c) The quota provisions of the Act show that there

was no intention to exclude the wife and child of an

American citizen on account of their ineligibility to cit-

izenship.

Subdivision (a) of Section 4 contemplates the ‘‘filing

of a petition under Section 9.’’ The latter section is en-

titled ‘‘Issuance of Immigration Visas to Relatives,’’ and

is the only provision of the Act for the issuance of an im-

migration visa on account of relationship. It requires the

filing of a petition, not by the relative seeking admission

but by the citizen claiming that an immigrant is his rela-

tive. It requires the petitioner to state the facts on which

his citizenship is based, certain particulars in relation to

his business, the degree of relationship to the immigrant,

and that the petitioner will support the immigrant. There

is no statement required as to the nationality of the wife

or child whose admission is sought.

The application is made to the Commissioner Gen-

eral. If he finds ‘‘the facts stated in the petition to be

true he may issue an immigration visa to each of the

immigrants’’ as a non-quota immigrant under subdivision

(a) of Section 4. This is the only machinery provided for

in the Act for the admission of ‘‘the unmarried child un-

der 18 years of age or the wife of a citizen of the United

States who resides therein at the time of the filing of a

petition under Section 9.’’ There is no method by which

the Commissioner can ascertain whether or not the immi-

grant ‘‘is ineligible to citizenship’’ under the provisions

of subdivision (c) of Section 13. He may find on the al-

legations of the petition that the relative of the American

citizen is ‘‘a non-quota immigrant’’ and thereupon

authorize the issuance of an immigration visa to the immi-

grant as a relative of the petitioner without inquiring

as to whether the immigrant is eligible to citizenship. It

16

is true that under subdivision (e), Section 9, he must

authorize the consular officer to issue the immigration

visa and that that document must (Section 2 [a]) specify

the nationality of the immigrant. But if ineligibility to

citizenship had been intended to bar the applicant, the

Commissioner would have been authorized to deal with

that subject and machinery would have been provided by

which he would have found ineligibility and would thus

have avoided the useless process of sending the matter

back to the consular officer. If we assume that eligibility

to citizenship has nothing to do with the admission of

wives and children of citizens, no such incongruity exists.

(d) The foregoing interpretation of the Act receives

strong confirmation from its legislative history. When

the bill was first introduced (H. R. 6540), and committed

to the Committee of the Whole on February 9, 1924, the

Committee stated that it ‘‘exempts wives, children under

18, and parents over 55, of American citizens.’’ (House

Report No. 176, 68th Congress, First Session, p. 2). In

reporting the bill in its later form the Chairman of the

Committee on Immigration on March 24, 1924, repeated

the above statement. (House Report No. 350, 68th Con-

gress, First Session, p. 1). In the bill as ultimately passed

(H. R. 7995), the exemption was extended to ‘‘the un-

married child under 18 years of age, or the wife, of a

citizen of the United States’’ (Sec. 4 [a]). In their state-

ment, after the bill had been agreed upon in conference

with the Senate Committee, the Managers on the part of

the House declared that the bill had been changed ‘‘by

limiting the ‘relative’ clause to wives and children of

American citizens.’? (House Report No. 716, 68th Con-

gress, First Session, p. 19).

There is nothing in the legislative history to indicate

an intention that the exemption should apply only to

wives and children who are eligible to citizenship.

17

POINT II.

The failure of the petitioners to procure immigration

visas under Section 9, subdivisions (b), (c) and (d),

is not a sufficient ground for denying the relief prayed

for.

The petitioning wives were non-quota immigrants

(Section 4 (a)). Without an immigration visa which in

the visa specified that fact, they were excluded under Sec-

tion 13 (a) (3), wiless they could bring themselves within

the exception provided for in Section 13 (d), which pro-

vided as follows, viz. :

‘*(d) The Secretary of Labor may admit to

the United States any otherwise admissible im-

migrant not admissible under clause (2) or (3)

of subdivision (a) of this section, if satisfied that

such inadmissibility was not known to, and could

not have been ascertained by the exercise of rea-

sonable diligence by, such immigrant prior to the

departure of the vessel from the last port outside

the United States and outside foreign contiguous

territory * * °’’.

The petitioning wives were, before the passage of the

Act of 1924, under the decisions referred to above,

‘‘otherwise admissible’’ within the meaning of subdivi-

sion (d). They had been married prior to the effective

date of the Act, and at that date were on the high seas

(Rec., p. 2). Presumably they came from a Chinese

port. The Act of 1924 was approved May 26, 1924. The

petitioners may have sailed from China before that date,

or if they sailed afterward it may well be that they could

not with ‘‘reasonable diligence’’ have ‘‘ascertained’’

whether under the recently passed and somewhat elab-

orate Act they had been deprived of the right of admis-

sion. The Secretary of Labor took a view of the case

18

which made an investigation of these facts immaterial

and the petitioners have not had the opportunity to

present them for a ruling under Section 13 (d). That

opportunity should have been accorded to them by send-

ing the ease back to the Secretary of Labor for further

hearing instead of denying the petiticn, so that if the

facts justifying such action appeared he could have ad-

mitted the petitioners under Section 13 subdivision (d).

POINT Ill.

The questions certified should be answered in the

negative in accordance with the foregoing views.

March 20, 1925.

Respectfully submitted,

HENRY W. TAFT,

Amicus Curiae.