
    BACKUS, Commissioner of Immigration, v. YEP KIM YUEN.
    (Circuit Court of Appeals, Ninth Circuit.
    October 11, 1915.)
    No. 2562.
    Habeas Corpus &wkey;>113 — Appeal—Appealable Order.
    Appeal will not lie from the order overruling a demurrer to the petition for habeas corpus, but only from the order discharging from custody.
    [Bd. Note. — Bor other cases, see Habeas Corpus, Cent. Dig. §§ 102-115;. Dee. Dig. &wkey;>113; Appeal and Error, Cent. Dig. §§ 150, 364, 461.]
    Appeal from the District Court of the United States for the First Division of the Northern District of California; Maurice T. Dooling, Judge.
    Flabeas corpus by' Yep Dung Gon, on behalf of Yep Kim Yuen, against Samuel W. Backus, as Commissioner of Immigration at the Port of San Francisco. From an adverse order, respondent appeals.
    Appeal dismissed.
    The petitioner, Yep Lung Gon, alleges that he was born in the United States and is a citizen thereof; that such citizenship has been judicially determined by a judgment of the District Court of the United States for the District of California, in the matter of Yep Lung Gon (No. 90,071), made and entered on the 9th day of January, 1890; that Yep Kim Yuen, in whose behalf the petition is made, is the minor son of petitioner, and is a citizen of the United States; that he is unlawfully imprisoned and restrained of his liberty by the Commissioner of Immigration at the port of San Francisco, and is about to be deported from the United States to China; that he arrived at the port of San Francisco by steamer from China in the month of September, 1913, and made application to the Commissioner of Immigration to be admitted into the United States as a citizen thereof, and as the minor son of the petitioner; that he was given a hearing by the immigration authorities touching his right to enter the United States as a citizen thereof, and as the minor son of petitioner; that upon said hearing testimony was submitted bearing on the question of his parentage, and testimony and documentary evidence were submitted bearing upon the question of his citizenship; that thereupon the Commissioner found that the appellee was not the son of petitioner, and was not a citizen of the United States by reason of such alleged paternity of petitioner. Upon such finding the Commissioner of Immigration denied Yep Kim Yuen the right of admission into the United States; that thereupon an appeal on behalf of Yep Kim Yuen was taken to the Secretary of Commerce and Labor; the petition alleges, on information and belief, that the Secretary of Commerce and Labor reversed the decision of the Commissioner of Immigration in the finding that Yep Kim Yuen was not the son of petitioner, and instructed the Commissioner to investigate the identity of the petitioner, Yep Lung Gon, and find out and determine whether he was the same person who was judicially determined by the judgment of the District Court to be a citizen of the United States; that thereupon the Commissioner of Immigration did investigate the identity of the petitioner, and did find and determine that he was the same person who had been judicially determined to be a citizen of the United States, and said Commissioner reduced such investigation to writing and forwarded the record of the same to the Secretary of Labor (who had become, under the law, the successor of the Secretary of Commerce and Labor); that said record clearly established the right of Yep Kim Yuen to enter the United States and to reside therein; that the petitioner is informed and believes,''and therefore alleges the fact to be, that the Secretary of Labor refused, failed, and neglected to consider the testimony and the evidence contained in such record and the findings and determination of said Commissioner of Immigration, but did without reason consider other matters which wore never incorporated in any record made or produced at the port of San Francisco, the exact nature of which matters is unknown to the petitioner and to said Yep Kim Yuen, and that neither of them had or were given an opportunity to rebut, deny, explain, or overcome such matters; that thereafter the Secretary of Labor denied the said Yep Kim Yuen the right to enter the United States, and ordered the said Commissioner to deport tile said Yep Kim Yuen to China; that, the said petitioner and Yep Kim Yuen having exhausted their said remedies before the Secretary of the Department of .Labor, the petitioner, on behalf of the said Yep Kim Yuen, applied to the District Court of the United States for the writ of habeas corpus involved in this opinion. To the petition for the writ the go\ eminent interposed a demurrer, on the ground that the petition did not state facts sufficient to entitle the petitioner to the writ. There was a hearing before the court on the demurrer on April 1, 1914, and on that date the demurrer was overruled, and the writ of habeas corpus was issued as prayed for. Thereafter, on April 14, 1915, Yep Kim Yuen was produced in court, but no return was made to the writ by the officer having him in custody, and no answer by way of traverse, denial, or otherwise was made with respect to the allegations of the petition. Thereupon the court discharged Yep Kim Yuen from the custody, and the government took the present appeal.
    John W. Preston, U. .S. Atty., and Casper A. Ornbaum, Asst. U. S. Atty., both of San Francisco, Cal., for appellant.
    Catlin, Catlin & Friedman and Lucius L. Solomons, all of San Francisco, Cal., for appellee.
    Before GILBERT, ROSS, and MORROW, Circuit Judges.
   MORROW, Circuit Judge

(after stating the facts as above). It appears from a statement contained in the briefs that upon the submission of the demurrer to the court below the attorney for the government handed to the court certain documents and memoranda of the Bureau of Immigration relating to this case. These documents and memoranda are not in the present record, and what relevancy they had to the question raised by the demurrer does not appear; but the appellant seeks to have this appeal determined, not upon the sufficiency of the petition, hut upon recitals contained in these documents and memoranda. The petition for appeal to this court is from the order of the District Court of April 1, 1914, overruling the demurrer to the petition for writ of habeas corpus and granting the petition for the writ. The order of the court allowing the appeal recites that it is an appeal as “prayed for,” and the notice of appeal served upon the appellee is an appeal “from the order and judgment rendered, made and entered herein on the 1st day of April, 1914, overruling the d,emurrer to the petition for writ of habeas corpus filed herein.” There is no appeal from the order of the court discharging Yep Kim Yuen from custody, which is the only order and judgment from which an appeal would lie in this case.

The appeal is accordingly dismissed. 
      <&wkey;>For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
     