
    MOY JIK v. UNITED STATES OF AMERICA.
    Chinese; Deportation; Claim of Witness; Presumption; Prima Facie Case; Evidence; Peview on Appeal.
    3. A pei'son of Chinese descent claiming to be. a native-born citizen of Jhe United States, who is required by see. 3 of the Act of Congress of May ó, 1892 (27 Stnt. at E. 25, chap. 00, Comp. «tat. 1910, sec. ■ 4317) to establish, by affirmative proof, his lawful right to remain in the United States, is not required to make the same degree of proof as an alien who has come into the country and is attempting to avoid deportation, but is entitled to the lawful presumption of the right to remain while the other is subject io the lawful presumption in favor of deportation. The affirmative proof required is merely proof to establish a prima facie case sufficient to call for rebuttal. (Chin Wall, v. United ¡States, 43 App. 1). G. 38.) (Mr. Chief .Justice «myth dissenting.)
    
      Noth. — On validity of statute creating prima facie rule of evidence in deportation eases, seo note in L.I1.A.1935C, 730.
    
      2. The rule that questions of fact are not subject to review on appeal does not preclude the right of the appellate court to look into the evidence to test its sufficiency to support a judgment.
    3. The rule that in a deportation case the appellate court will not review the evidence where the commissioner and the trial judge are in agreement does not prevent the appellate court from determining the sufficiency of the evidence to prove ihe claim of the person, who is alleged to be unlawfully within the United Slates, that he was horn in this country, where there is no eonllict in the evidence on that point. (Mr. Chief Justice «myth dissenting.)
    
      4. Testimony of a person that his parents told him ho was horn in a certain place is competent on an issue as to that question.
    5. There is sufficient proof thai a person of Chinese descent was horn in the United States, in the absence of any proof to the contrary, to overcome the statutory presumption against him and to create a prima facie, ease in his favor, where there is the most, convincing-proof of his residence in this country since he was four years old; and he testified that his parents told him he was born in «an Erancisco, which was the place associated with his earliest recollections and where his parents resided and conducted a business until they returned, to China, which was after he was lifteen years old and had gone with his uncle to Washington, where he lias since maintained a permanent residence, with a steady business or occupation, and has conducted himself in such an honorable and upright manner as to have the confidence and respect of the community. (Mr. Chief Justice Smyth dissenting.)
    6. After sufficient evidence has boon given in a deportation case to make a prima facie case establishing the citizenship of a person of Chinese descent, the burden. shifts to the government. (Mr. Chief .Justice «myth dissenting.)
    7. The government, in the absence of any showing to the contrary, will be presumed to bo in possession of the records required to be made by the Chinese inspector before permission will be given for Chinese laborers to land.
    8. The responsibility for failure to interrogate a Chinese witness as to any knowledge he may have bad of the residence of the parents at the time of the birth of a son who claims to be a native-born citizen cannot be cast' upon liim where there were present the counsel for the government and the presiding justice, who could interrogate the witness.
    9. Formal rules by civil and criminal procedure, the orderly reception of evidence, and the penalizing of a defendant for the possible oversight of his counsel, have little application to an inquiry as to a claim of citizenship in a deportation case in which the government has as deep an interest as the person under investigation.
    No. 3079.
    Submitted February 6, 1918.
    Decided April 1, 1918.
    Hearing on an appeal by the defendant from an order of tbe Supreme Court of the District of Columbia in a Chinese deportation case.
    
      Reversed.
    
    The Court in the opinion stated the facts as follows:
    This appeal is from an order of the Supreme Court of the District of Columbia adjudging that appellant, Alloy Jilc, “is a Chinese person found unlawfully within the United States, and not entitled to remain within the same;” and directing that he “be deported according to law from the United States to China, whence he came,” and committing him to the custody of the United States marshal for that purpose.
    As is usual in deportation matters, the case turns upon the sufficiency of the evidence to support the order. Appellant ■testified that he was born in 1886; that his father’s name was Alov Hen and liis mother’s name was Kong She; that he lived with his parents in San Francisco until he was fifteen years old, when he came to Washington with his uncle, Alov dice, who died here in 1908; that lie has been in Washington since 1901; that his parents lived at 71-0 Commission street, San Francisco, where his father conducted a store; that, after he left San Francisco, his parents returned to China, where tliey\ both died; that ho has no brothers or sisters; that, when he was six or seven years old, Ids parents told him that he was born in San Francisco, and that he is now unable to name anyone by whom his birth in San Francisco could be proved.
    Lai Quong testified that he was fifty-four years old, and was born in China; that he is a distant relative of .Moy Hen; that lie came to the United States in 1890, landing- in San Francisco, where he visited with Moy Hen at Ids store at 740 Commission street, the Quong Yick AYah Company; that, while there, he saw appellant, who was about four years old; that he left San Francisco after about two mouths’ stay, and did not return until 3898, when he found Moy Hen and his wife still there and appellant Moy Jik, “who had grown to be a big boy;” that he also found Moy Chee, the brother of Moy Hen, who ~was working with Moy lien in the store; that he came to AArashiugtou about a year before appellant came in 3901, and that appellant (amid speak very little Fhrglish when he came to AVasliington. The witness also testified that “the name of the firm was Quong Yick AYah Company; Moy Hen, Moy Nai Jik, Moy N ai Shu were the members of the firm. Across the street there was a big firm, AVali Yuh, a wholesale place. There was only one firm in-the building at 740 Commission street.”
    Other witnesses were produced, who testified to appellant’s continuous residence in AYashington for about fifteen years prior to his arrest, and to his good habits, honesty, and good character.
    
      Mr. James M. Proctor and Mr. Edward C. McOalmonb for the appellant.
    
      Mr. John E. Laskey, United States Attorney, and Mr. Chas. W. j 1 rth, Assistant, for the appellee.
   Mr. Justice A"an Oksdee

delivered the opinion of the Court:

Appellant was apprehended under the Act of Congress of May 5, 1892 (27 Stat. at L, 25, chap. 60, Comp. Stat. 3.916, sec. 48 i 7), entitled “An Act to Prohibit the Coming of Chinese Persons into tlic United States.” Section 3 of the act. provides “that any Chinese person or person of Chinese descent arrested under the provisions of this act or the acts hereby extended shall be adjudged to be unlawfully within the United States unless such person shall establish, by affirmative proof, to the satisfaction of such justice, judge, or commissioner, his lawful-right to remain in the United States.”

If appellant was born in the United States, he. is a citizen of the United States by virtue of the first clause of the 14th Amendment to the Constitution, which provides that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” United States v. Wong Kim Ark, 160 U. S. 649, 42 L. ed. 890, 18 Sup. Ct. Rep. 456.

3n the present case, where the defendant sets up the claim that he is a native-born citizen, much depends upon the character and extent of the “affirmative proof” essential, under the statute, to sustain the burden of establishing to the satisfaction of the court “his lawful right to remain in the United States.” It was contended in the case of Chin Bak Kan v. United States, 186 U. S. 193, 46 L. ed. 1121, 22 Sup. Ct. Rep. 891, that the mere claim of citizenship by a Chinaman on the ground that he was born in this country deprived the commissioner of jurisdiction to inquire further into the ease, but disposing of this contention the court said: “But it is argued that the commissioner had no jurisdiction to act because the claim of citizenship was made. * * * It is impossible for us to hold that it is not competent for Congress to empower a United States commissioner to determine the various facts on which citizenship depends under that decision. [United States v. Wong Kim Ark, supra.] By 'the law the Chinese person must be adjudged unlawfully within the United States unless he ‘shall establish by affirmative proof, to the satisfaction of such justice, judge, or commissioner, his lawful right to remain in the United States.’ As applied to aliens there is no question of the validity of that provision, and the treaty, the .legislation, and the circumstances considered, compliance with its requirements cannot be avoided by the mere assertion of citizenship. The facts on which such a claim is rested must be made to appear. And the inestimable heritage of citizenship is not to be conceded to those who seek to avail themselves of it under pressure of a particular exigency, without being able to show that it was ever possessed.”

it will be observed that the court was there considering primarily the question of jurisdiction of the commissioner to make till' investigation, and not the question of the burden of proof. True., it is said that compliance with the provisions of the statute “cannot lie avoided by the mere assertion of citizenship;’’ but this is far from holding that the same degree of proof shall be required of one establishing his right to remain because he is a native-born citizen, and an alien who has come into the country and is attempting to avoid deportation. In the one instance, there is the lawful presumption of the right to remain; and, in the other, the lawful presumption in favor of deportation. This is not inconsistent with the provisions of the statute which requires the person to establish by “affirmative proof” to the satisfaction of the court his right to remain. This merely means proof to establish a prima facie case sufficient to call for rebuttal. The circumstances of each case measures the weight of the burden to bo home.

This interpretation of the statute is not inconsistent with the opinion in the Chin Bale Kan Case, and it is fully in accord with the opinion of this court in the ease of Chin Wah v. United States, 43 App. D. C. 38, where, Chief Justice Shepard, speaking for the court, said: “The witnesses were unimpeached, and their testimony made a prima facie ease of Chin Wall’s birth in the United States and consequent citizenship. Ft is true that sec. 8 of the Act of May, 1892, provides that a Chinese person, or person of Chinese descent, arrested under the provisions of this act or the acts hereby extended, shall ho adjudged to be unlawfully in tlie United Slates unless such person shall establish, by affirmative proof to the satisfaction of such justice, judge, or commissioner his lawful right to remain in the United States. It has been held by the circuit court of appeals for tho seventh circuit that this provision does not apply in the case where the defendant asserts citizenship of tho United States, and tliat the burden of proof is upon the. government in such,a case. Moy Suey v. United States, 78 C. C. A. 85, 147 Fed. 697, 699. It is not necessary to decide this question; for it seems that the testimony was sufficient to establish" the fact as required by the section. It does seem, however, that, where a Chinese person has lived in the United States for a long period of time, and when arrested claims that he was a citizen of the United States by virtue of his birth in one of the. States of the Union, the government should have the burden of overthrowing the case made by the defendant.”

In the present case it is urged that the conclusions of the, commissioner and the court on questions of fact are not subject to review- on appeal. We are aware of a line of Federal cases in which the rule has been announced that, where the commissioner and the trial judge are in agreement in deportation cases, the appellate court will not review the evidence. Those were cases, however, where there was conflict in the testimony. The right to look into the evidence to test its sufficiency to support a judgment is always within the discretion of an appellate, court. Fortunately, in this case, we have before us the finding o.f the court below,-and there is no issue of fact as to the point upon which the learned trial justice turned the, case. In his opinion ho says: “Applying the same standards of weighing evidence to the testimony given in this case that a court would apply in determining the evidence of the place of actual birth of a person, unaffected by the question of whether he is an alien or a citizen, the court is not satisfied upon this testimony, with the burden of proof resting upon the petitioner, Moy <Tik, that he has submitted any evidence legally sufficient to make a prima facie case that he was actually born in San Francisco. .He is only able to testify about what he has heard. That has some weight, it is true, if taken with other evidence of probative value, but it has no weight standing alono; and if of no weight standing alone, what other evidence is there in the case which in reality adds weight to his own statement ? The witness Lai Quong testifies to his actual presence in San Francisco when Moy Jik was a lad about four years of age. He testifies that he was a- distant relative of the boy’s father, and he there saw him ill the place where Moy lien, his father, was then living, but he does not state that he has any knowledge of when Moy lien came to America. He does not state that he has any knowledge of the length of time previously that he and his wife, the reputed parents of Moy Jik, left China. So. we find Moy Jik standing here to-day, with the burden of proof resting upon him, and with absolutely no testimony to account for him as being in the1 United States until he was four years of age, and no explanation of the previous movements of his parents that, ■would preclude the probability of their presence in China at a time which would have enabled them .to bring him to the country at any time after his birth, and between that time and when he was actually four years of age. Therefore, the-court is constrained in this case to hold, unfortunately as it feels that it is. with the impression that the man himself has made upon it, that Moy Jik has not established his citizenship in the United States.”

It will be observed that the case was turned, as it must be, upon the sufficiency of the evidence to account for appellant’s presence in this country up to the time he was four years old. Appellant conclusively accounts for his residence here after that date. Indeed, the evidence is uncontradicted. There is some' testimony to the eifect that he tried to conceal himself from the inspector, and that he could not speak English when he came to Washington. But that was properly ignored by the courl below. It has no relation to the sole question in this case. Was Moy Jik unlawfully brought into the United States by liis parents during liis infancy and before be was four years old? The veracity of the witnesses is not questioned hy the trial justice. Indeed, appellant is specially commended for the impression of honesty, integrity, and sincerity which he made' while on the witness stand. The court accorded full credit to appellant’s testimony that his parents told him lie was born in San Francisco, -but held this evidence insufficient to establish the fact that he was born there. There being, therefore, no conflict in the evidence on the single point upon which the case turns, we are at liberty to examine into its sufficiency to sustain the judgment.

We think appellant, by the most convincing proof, has accounted for his residence in the United States since lie was four years old. Ido testified that his parents told him he was born in San Francisco, the place associated with his earliest recollections. This was competent evidence, — in many instances, as in this, the only available proof. All the circumstances are consistent with his having been born in San Francisco, and inconsistent with his having been brought into the United States by his parents. The parents were not itinerant Chinamen, without a fixed abode or a permanent business. They resided and conducted a business at one place through the entire period covered by the testimony in this case until the date of their return to China. When a Chinaman, thus confronted with deportation proceedings, establishes by competent proof that he has been in the United States from his infancy; that he has maintained a permanent residence with a steady business or occupation; that he has conducted himself in such an honorable and upright manner as to have the confidence and respect of the community, and submits the only proof available as to his birth — his own testimony that his parents told him he was born in this country, — he sufficiently overcomes the presumptions raised by the statute, and establishes, in the absence of proof to the contrary, that he is a native-born. citizen of the United States.

The authorities, we think, sustain this interpretation. In flic case of United States v. Leu Jin, 192 Fed. 580, the defendant left San Francisco when he was eight years old, and carne to New York, where he had resided twenty-four years at the time of his arrest. He did not even testify to having been told by his parents that he was born in this country, but was able only to give an indefinite account of where he resided with his parents in San Francisco. The court summed up the case as follows: “Nor does it seem strange to mo that a boy leaving San Francisco twenty-four years ago, when he .was eight years old, should not remember accurately the details of his early life there. The weighty fact in this case, in my opinion, is the fact that ho has-been in and about New York ever since he was about six years old. Ilis own story and the evidence of the various witnesses called as to the fact that he came to New York at that time are perfectly consistent. * * The government’s claim is that he was born in China, lint he could not have come from China alone at any time before he was eight years old, and people in that station in life coming from China very rarely bring any children of that age with them. It is impossible in this class of cases to be sure what the truth is; but in my opinion the evidence in this case preponderates that the defendant, was born in this country and is an American citizen.”

In United States v. Lem You, 224 Fed. 519, the facts were strikingly similar to those in the present case. As here, the first four years of defendant’s life were unaccounted for, except upon his own testimony as to what his parents had told him. On this point the court said: “The result of all the evidence is that it is true that this young man has known no other home than Newr York city for twenty-one of the twenty-five years of his life, and that fact is weighty matter in his favor, as was held in United States v. Leu Jin, supra. For the rest he testifies, and testifies alone, that according to his father’s statements to him he was born in San Francisco; and his evidence, though hearsay, is admissible and competent, because the matter is one of pedigree or descent. It is undoubtedly true that the only direct testimony as to this appellant’s place of birth is his statement, based upon his father’s assertions. But it has often been pointed out in cases of this nature that the truth is singularly difficult to ascertain, and I think that little can ever be arrived at with absolute accuracy. If the appellant’s story is not true, he is indeed a man without a country, for it is overwhelmingly proved that he has spent all his life, except infancy, in the United States.”

We think the evidence is sufficient to make a prima facie case establishing appellant’s citizenship. With this, the burden shifts to the government. It should ho remembered that, so far as the record discloses, appellant is without relatives, far removed from the place of his birth, and, it may be assumed, without the means to ferret out corroborating witnesses. On the other hand, the government has a long arm. Facts are disclosed opening avenues by which the government, through its agents in San Francisco, should have been able to secure valuable evidence. The name of the firm with which Hoy lien was connected and the names of his business associates, the location of their place of business, and the name of a large, established business firm across the street, were given by the witness Lai Quong. It would seem, therefore, that someone might have been found who lmotv Hoy Hen and his wife and could have furnished proof of the extent of their residence in San Francisco.

Lf appellant’s parents w’ere classed as laborers, and v’ere, here at the date of the passage of the Ten-Year Chinese Exclusion Act of July 5, 1881 (23 Stat. at L. 115, chap. 220), they were required to register. If they were not here, then they co.uld not lawfully have entered the United States after that date. If Moy Hen came here as a merchant, bringing his family with him, during the four-year period in question, ho could have entered lawfully only when a certificate issued by the Chinese government, and approved by the United States consul at the port from which he sailed, a further record of wdiich was required to be made by the Cbinese inspector before permission would be given to laud. The government, in the absence of any showing to the contrary, will be presumed to be in possession of these records; but it is'silent, preferring, apparently, to rest upon what it regarded as the weakness of appellant’s case, rather than upon the strength of its own. ' The government cannot rely entirely upon the presumption which the statute raises against the lawful residence of Chinamen in this country. There is a time when the burden shifts.

Appellant is assailed for failure to interrogate the witness Lai Quong as to any knowledge he might have had of the residence of appellant’s parents at and prior to the time of his birth. But why cast the responsibility for this oversight, if such it was, upon appellant? There were present counsel for the government and the presiding justice, with the witness subject to be interrogated by any one or all of them. This was not a criminal prosecution. No one was seeking a victim. It was an investigation by the officers of the government to ascertain the truth as to the status of appellant’s citizenship. The formal rules of civil and criminal procedure, the orderly reception of evidence, and ihe penalizing of a defendant for the possible oversight of his counsel, have little application to an inquiry of this sort, involving the most ’sacred right of the citizen, 'a matter in which the government has as deep an interest as the person under investigation. No one connected with this investigation is in position to take advantage of or criticize this alleged oversight. Perhaps the presumption may be indulged that, since the witness was not interrogated on this point, it was known by counsel that he could not testify of his own knowledge concerning it. Put if that he so, it neither weakens nor strengthens appellant’s case, as made by the record.

The order of deportation is reversed. Reversed.

Mr. Chief Justice Smytii

dissenting:

I must dissent from both the conclusions of fact and law reached by the majority. The act of Congress governing this proceeding has been construed in many eases by the Federal courts, including the Supreme Court of the, United States; and in each case, save one in the seventh circuit which has since been disregarded in that circuit (Moy Guey Lum v. United States, 127 C. C. A. 515, 211. Fed. 91), it was held that the burden was on the defendant to prove his citizenship. Chin Bak Kan v. United States, 186 U. S. 193, 200, 46 L. ed. 1121, 1125, 22 Sup. Ct. Rep. 891; Moy Guey Lum v. United States, supra; Lee Yuen Sue v. United States, 77 C. C. A. 96, 146 Fed. 670; United States v. Hom Lim, 139 C. C. A. 68, 223 Fed. 520; United States v. Quong Wah, 140 C. C. A. 114, 224 Fed. 420. The Supreme Court of the United States in the Chin Bak .Kan Case ruled that a “Chinese person must be adjudged unlawfully within the United State's unless he ‘shall establish hy affirmative proof to the satisfaction of such justice, judge, or commissioner his lawful right, to remain in the United States.’ ” This requires him to establish his right hy more than a mere preponderance of the evidence. It lias been held in a number of the States, and I hare found nothing to the contrary, that where a party is required to produce evidence that will establish a given proposition to the satisfaction of the triers of facts, the burden is on him to adduce such evidence as will convince them beyond a reasonable doubt. Carter v. Fulgham, 134 Ala. 238, 32 So. 684; Arkansas Midland R. Co. v. Canman, 52 Ark. 517, 13 S. W. 280; Stratton v. Central City Horse R. Co. 95 Ill. 25; Ball v. Marquis, - Iowa, —, 92 N. W. 691; McMillan v. Baxley, 112 N. C. 578, 16 S. E. 845; Yelch v. State, 55 Ohio St. 146, 39 L.R.A. 737, 60 Am. St. Rep. 680, 45 N. E. 6; Willis v. Chowninq. 90 Tex. 617, 59 Am. St. Rep. 842, 40 S. W. 395; Gage v. Louisville, N. O. & T. R. Co. 88 Ten. 724, 14 S. W. 73. Greenleaf lays down the same rule (1 Greenl. Ev. see. 2) and so does the circuit court of appeals in the Moy Guay Lum Case. Regardless of whether this doctrine, is adopted or not, it is clear to my mind that Congress by using the word “satisfaction” in the statute meant to require very strong proof of a defendant’s right to remain in this country when that right was challenged by the government. Against these decisions, the holding by this court in Chin Wah v. United States, 43 App. D. C. 38, 43, is cited; but I do not think the point was there decided. In fact the court said “it was not necessary” to do so.

The majority opinion says that there is a distinction between the case of one who claims to be a native-born citizen and an alien who has come into the country and is attempting to avoid deportation. “In the one instance” it says: “There is the lawful presumption of the right to remain, and in the other the lawful presumption in'favor of deportation.” The statute does not say so, and we are bound by the statute. There is no presumption in favor of the defendant. He must, according to the plain letter of the act, establish his right by affirmative proof. Now there is a distinction between affirmative and negative proof. The Virginian, 217 Fed. 604; Northern P. R. Co. v. Heaton, 111 C. C. A. 548, 191 Fed. 24; Ætna L. Ins. Co. v. Ward, 140 U. S. 76, 35 L. ed. 371, 11 Sup. Ct. Rep. 720. The former calls for action by the person required to produce, it. Presumptions do not constitute such proof because they are supplied by the law, not adduced by the party. They are in their nature negative, and it cannot, therefore, bo correctly said that one who relies upon them thereby establishes his case bv affirmative proof. But, as I have just said, the law raises no presumption in favor of the defendant.

Nor can I assent to the proposition that the burden of proof shifted in this case. When the law places upon a person the obligation to establish a certain proposition, that obligation remains with him throughout the trial. It does not shift. Supreme Tent, K. M. v. Stensland, 206 Ill. 124, 99 Am. St. Rep. 137, 68 N. E. 1098; McAdams v. Bailey, 169 Ind. 518, 13 L.R.A.(N.S.) 1003, 124 Am. St. Rep. 240, 82 N. E. 1057; Boardman v. Lorentzen, 155 Wis. 566, 52 L.R.A.(N.S.) 478, 145 N. W. 750. It was no part of the government’s duty to search for proof which would negative defendant's right. lie cannot prove his case by pointing to the government’s failure1. He must stand or fall by his own affirmative proof. He is like the plaintiff in an ejectment suit, who must succeed, if at all, on the strength of his own title, not by the weakness of his adversary’s.

Has the defendant sustained the burden cast upon him by the law? lie failed to produce any official record of his birth or to account for its absence. We may take judicial notice of the San Francisco earthquake and fire, but we cannot assume that in that catastrophe the building containing the vital statistics of the city was destroyed. Ills father, if we may believe his story, was a merchant in San Francisco at the time of defendant’s birth. If this bo true, we may assume that he was well known. “It -would seem, therefore,” to borrow tlie language of the ma jority, “that someone might have been found who knew Hoy Hen and his wife [parents of-the defendant], and could have furnished proof to the extent of their residence in San Francisco.” The finding of a person possessing this knowledge was important to the defendant. He was represented by counsel who must have1 appreciated its significance, but he calk'd no one to testify upon the point, nor did he offer any explanation of his omission.

As the majority opinion points out, if his parents were, in tlie United States when lie was horn, the father's name should be registered. There is no evidence that it was, nor any attempt to show why this evidence was not produced. R is said tbo government should have shown that he was not registered if such was the fact; but this, according to my view of the law, was not incumbent upon the government. The burden, as I have said, was on the defendant to establish his right, and he cannot supply defects in his evidence by saying that the government should have produced the missing links. Lai Quong, a relative, who came to the house of defendant's father when he first landed in this country, must have known where the father was during the first four years of defendant’s life; yet he did not question him about it although he had an opportunity to do so. In four years several trips between China and the United States might have hcen made. Again, it is said that the government cannot rely upon this because it could have questioned Quong; but I answer, It was not required to do so. The statute authorized it to stand upon the weakness of defendant’s testimony. Anyhow the inference to he drawn from the government’s failure is negative, not affirmative, and negative proof can avail defendant nothing. The record then is a blank about defendant’s whereabouts during the first four years of his life. This is significant.

Next: When we find him in Washington at the age of twenty-two he could hardly speak a word of English. According to his testimony he lived over his father’s store in San Francisco until he was fifteen years of age. We may assume that the store was visited from day to day by people who spoke the English language and that the boy mingled with them and heard them converse; also that he traveled upon the street-cars, played in the streets, roamed in the parks, places where the English tongue was spoken, during those years, the most impressionable years of his life, — years in the life of an individual ■when languages are easily acquired; yet, with all those opportunities, and with such others as he may have had after leaving San Francisco at the age of fifteen and until he reached the age of twenty-two, when he first met Mr. and Mrs. Gregory in Washington, he knew “practically no English to amount to anything.” So Mrs. Gregory said. Mr. Gregory, one of liis Sunday-school teachers, found that “he did not grasp English,” and that it was very hard “to get him to understand” it. These are facts, in my judgment, which are inconsistent with his assertion of birth in this country. .Had he claimed that he was born on a farm and spent twenty-two years of his life there where little or no English was spoken, his defective knowledge of the language might not be inconsistent with his claim of native birth; hut where, as here, he asserts that he lived from birth until he was twenty-two in large English speaking cities,— ¡San Francisco and Washington, fifteen years-in the former and seven in the latter, — his meager knowledge of the English tongue is not in harmony with his claim.

In addition to this, we hare tin; fact, in effect admitted by him, that when he was interviewed by the government inspector as to the names of the places in which he had worked, he said he could not give them. Two years later when confronted on ¡.he witness stand with this statement, he admitted it, but attempted an explanation by saying that what he meant was that he “could not remember how long I [he] worked in each place.” This is not convincing. Again: At the time the inspector called at the laundry in Washington where defendant was engaged, for the purpose of investigating as to whether or not any Chinese were there in violation of the act of Congress, the defendant, while the inspector was talking to one of the other inmates of the place about his papers of identification and before he had spoken to the defendant, withdrew from tin; i’ooin and ran through a hack passage way towards the street. The inspector pursued, overtook him, and brought him back. All these things were admitted. Why, I ask, did he seek to escapo the inspector! He must have known the purpose of the latter’s visit, for the mere fact of the inspector entering and talking to one of the other Chinamen would furnish no sufficient reason for liis attempted escape. There is only one reasonable explanation, and that must lie in the belief on his part that he had violated the law, and because of this au officer was seeking his apprehension.

The majority opinion says that when a defendant “submits the only proof available, as to his birth, — his own testimony that his own parents told him he -was horn in this country, — he sufficiently overcomes the presumptions raised the and establishes, in the absence of proof to the contrary, that he is a native-born citizen of the United States.” If this he correct, the burden he has to bear is very light indeed. I-Cvery defendant would be able to say that his parents told him that he was born in this country, and thus by the weakest kind of proof establish his right to remain unless the government assumed the burden of proving that he did not have that right. Hut the statute, as I have observed before, docs not require, the government to do this.

All that I have said thus far, however, is upon the theory that we have a right to weigh the evidence. That was done first by the commissioner, and then by the trial court. Doth found against the defendant. In such circumstances -we are bound by that finding, unless we are satisfied that there is no substantial evidence to sustain it. In the Moy Guey Lum Case, 127 C. C. A. 515, 211 Fed. 91, it was said: “We have nothing to do with the weight of the evidence. Unless we can sec from the record that the commissioner and the court arbitrarily ignored the evidence adduced and entered judgment of deportation in defiance thereof, we are not at liberty to interfere.” Tn Quock Ting v. United States, 140 U. S. 417, 35 L. ed. 501, 11 Sup. Ct. Rep. 733, 851, Mr. Justice Field speaking for the. court said: “For the consideration mentioned, and the fact that the court below had the witnesses before it, and could thus better judge of the credibility to which they were entitled, we are not prepared to hold that its finding was not justified.” In Yee El (Ep.) v. United States, 137 C. C. A. 537, 222 Fed. 66, the court said: “The rule may be considered settled that in matters of this kind, where the commissioner sees and hears the witnesses, the accused is not entitled to repeated appeals on the facts, and a judgment of the District Court affirming the commissioner will not be disturbed, except in a perfectly clear case or for error of law.” Citing many cases. The Supreme Court of the United States in Chin Bak Kan v. United States, 186 U. S. 193, 201, 46 L. ed. 1121, 1126, 22 Sup. Ct. Rep. 891, said of the right of appeal under this act: “We are of the opinion that we cannot properly re-examine the facts already determined by two judgments below. That is the general rule, and there is nothing to take this case out of its operation.” It is said that this rule applies only whore there is a conflict in the evidence, and that there is no conflict here because, it is asserted, witnesses do not contradict one; another on any given point. In the first place, 1 think this slates the rule too narrowly. The, decision of a lower court in a la5v case may not be disturbed except where there is no substantial evidence to support it. Ling Su Fan v. United States, 218 U. S. 302, 308, 54 L. ed. 1049, 1050, 30 L.R.A.(N.S.) 1176, 31 Sup. Ct. Rep. 21; Sioux City & P. R. Co. v. Stout, 17 Wall. 657, 21 L. ed. 745; Randall v. Baltimore & O. R. Co. 109 U. S. 478, 27 L. ed. 1003, 3 Sup. Ct. Rep. 322; Gardner v. Michigan C. R. Co. 150 U. S. 349, 37 L. ed. 1107, 14 Sup. Ct. Rep. 140. And in the next place, there is in my judgment- a conflict of evidence, even where there is no direct contradiction of the testimony of witnesses, if, because of its nature or the circumstances developed, different inferences may be drawn therefrom. Thurston v. McLellan, 34 App. D. C. 294; L. J. Mueller Furnace Co. v. Cascade Foundry Co. 76 C. C. A. 286, 145 Fed. 596; Cascade Foundry Co. v. L. J. Mueller Furnace Co. 140 Fed. 791; Slentz v. Western Bank Note & Engraving Co. 103 C. C. A. 535, 180 Fed. 389. In Wong Woo v. United States, 153 C. C. A. 471, 240 Fed. 673, 675, a Chinese deporta! ion case where no evidence was introduced by the defendant before the commissioner and all the testimony before the trial court was by deposition, the circuit court of appeals for the sixth circuit held that these circumstances did not render “the rule limiting the right to be repeated trial of fact in eases under this statute inapplicable.” The decisions in United States v. Lem You, 224 Fed. 519, and United States v. Leu Jin, 192 Fed. 580, referred to by the majority, were by trial courts, and hence do not militate against the doctrine of the cases just cited.

Chief Justice Fuller in an opinion quoted by tbe majority truly said that American citizenship is an “inestimable heritage.” [186 II. S. 193.] During the past this nation has bestowed it with lavish hand, but all too carelessly, as wTe are now realizing to our bitter regret. Laws like the statute before ns, passed for the purpose of protecting that heritage, should lie construed, where possible, so that they will surely serve the end for which they were enacted.

The judgment of the lower court, in my opinion, should bo affirmed.  