
    CHOY YUEN CHAN v. UNITED STATES.
    Circuit Court of Appeals, Ninth Circuit.
    January 14, 1929.
    No. 5548.
    Leslie P. Scott, of Honolulu, Hawaii, and Wilmer H. Eberly, of San Francisco, Cal., for appellant.
    George J. Hatfield, U. S. Atty., and George M. Naus, Asst. U. S. Atty., both of San Francisco, -Cal., and Sanford B. D. Wood, U. S. Atty., and Charles H. Hogg, Asst. U. S. Atty., both of Honolulu, Hawaii.
    Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.
   GILBERT, Circuit Judge.

On June 4, 1923, tbe appellant, a person of Chinese descent, coming from China, arrived at tbe Hawaiian Islands, and, upon a bearing before a Board of Special Inquiry, be was allowed to land, on Ms proof by himself and his witnesses that be was Hawaiian bom. In June, 1927, be was brought before tbe court below for deportation, and, on tbe ground that be was a Chinese alien and a laborer and was unlawfully within tbe United States, be was ordered deported. On tbe appeal it is contended that tbe order of deportation was contrary to law, that tbe government failed to establish a prima facie case against the appellant and failed to show that on June 4, 1923, be unlawfully obtained admission into the United States at tbe port of Honolulu by false and fraudulent representation of bis status as a citizen of tbe United States. Tbe evidence upon which the order of the court below was based consisted of tbe record of tbe bearing before tbe Board of Special Inquiry of 1923, tbe testimony of Dong Bark, who had been a witness for tbe appellant at that bearing, and tbe testimony of an immigration inspector.

A preliminary inquiry, which we think is determinative of tbe sufficiency of tbe evidence adduced in tbe court below to support tbe order of deportation, concerns tbe effect and force to be given to tbe finding and conclusion of tbe Board of Special Inquiry, and whether upon tbe bearing in tbe court below the' decision of tbe Board was prima lacio evidence of the right of the appellant to bo and remain in the United States. As to the powers of the Board, the statute, 8 USCA § 153, provides, “Such boards shall have authority to determine whether an alien who has been duly held shall be allowed to land or shall he deported,” and further provides that the decision of a Board of Special Inquiry adverse to the admission of such alien shall be final unless reversed on appeal to the Secretary of Labor. Tho statute, 8 USCA § 221, provides that in any deportation proceeding against any alien the burden of proof shall be upon him to show that he entered the United States lawfully. But this does not -mean, we think, that the alien shall bo denied the benefit of the prima fació presumption created by a favorable decision of a Boa r’d of Special Inquiry. In Ex parte Chin Loy You (D. C.) 223 F. 833, it was held that a, Chinese person, duly admitted into the countiy, is prima facie a legal resident. In Ching Hong Yuk v. United States (C. C. A.) 23 F.(2d) 174, the appellant, who had been ordered deported, claimed to have been bom in Hawaii, and, upon a hearing before a. Board of Special Inquiry, ho was permitted to land as Hawaiian horn. On the appeal the question was discussed whether the order of admission constituted- a judicial estoppel. This court, while inclining to tho view that tho decision should bo taken as prima facie evidence; of tho appellant’s citizenship in the United States, proceeded to say: “And even if it be held ihat the hiero order of admission does not make a prima facie ease for defendant, wo think that in considering the weight and eredibilily of the testimony upon which it was based, and upon which the lower court acted, some probative significance1 may properly bo given (.he fact that it was credited by the three public officers who had the advantage, not en,joyed by tho court, of hearing- the witnesses testify.” in Pearson v. Williams, 202 U. S. 281, 26 S. Ct. 608, 50 L. Ed. 1029, the court said: “The Board is an instrument of the executive power, not a eouit. *'

Decisions of a similar type long have been recognized as decisions of the executive department, and cannot constitute res judicata in a technical sense.” And the court adverted to considerations which were said .to be .against the likelihood that Congress meant such decisions to be binding upon the Secretary of Commerce and Labor, the superior officer of the hoards of the port. Among the cases there cited by the Supreme Court as illustrative of the effect of the decision of officers to whom was delegated power to decide such questions in the first instance, was The Japanese Immigrant Case, 189 U. S. 86, 98, 23 S. Ct. 611, 613 (47 L. Ed. 721), where the court said: “And in such a case, as in all others, in which a statute gives a discretionary power to an officer, to be exorcised by him upon his own opinion of -certain fa,cfe, ho is made the sole and exclusive judge of tho existence of those facte, and no other tribunal, unless expressly authorized by law to do so, is at liberty to re-examine or controvert the sufficiency of the evidence on which ho acted” — citing Martin v. Mott, 12 Wheat. 19, 31 (6 L. Ed. 537), where Mr. Justice Story had said: “Whenever a statute gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction that the statute constitutes him the sole and exclusive judge of the existence of those facts.” In the case a,t hand, it is not claimed, of course, that the Board of Special Inquiry is the exclusive judge of the right of one who claims to be an American citizen to land or remain in the United States, for that right may be brought in question on proceedings for deportation. What we are inclined to hold is that a decision of the Board of Special Inquiry in such a case- is prima facie correct, and that it was not the intention of tho law that one who has oneo been admitted upon proof which satisfied tho Board of his right to admission should be called upon again and again to prove his right to bo and remain in the United State», in the absence of a charge that he ha.s committed some act which justifies his-deportation, or some affmnative proof upon the part of tho government that he obtained admission fraudulently.

Tho proof which was offered in the court below did not constitute even a prima facie showing of fraud. All that the testimony of the inspection officer amounted to was that tho appellant admitted to him that he was of Chinese descent and was a laborer. Dong Bark’s testimony added nothing of importance. Ho had been one of the witnesses for tho appellant on the hearing before tho Board, and ho had just been ordered deported as an illiterate. He was called as a witness for the government, and examined and cross-examined upon the testimony which ho had given before the board four years before. Thereby some discrepancies were developed between his present and his former statements as to when and where he first met tho appellant. But such discrepancies in the testimony of a witness produced by the government to prove its own case were insuffieient to prove that the appellant obtained admission to the United States by fraudulent misrepresentation, or that he was not bom in Hawaii, and were insufficient to overcome the prima facie presumption created by the finding of the Board of Special Inquiry.

The judgment is reversed.  