
    CHIN WAH v. UNITED STATES.
    Aliens; Exclusion; Chinese; Constitutional Law; Citizenship; Evi- .. dence; Burden of Broof.
    1. One born of Chinese parents domiciled in one of the states of tliu Union, and not employed in any diplomatic or official capacity, be' comes at his birth a citizen of the United States by the terms oi the 14th Amendment of the Constitution of the United States.
    2. A certificate of a United States commissioner, showing that a China-man had, under a certain name, been adjudged by him to be lawfully in the United States, and a certified copy of the fee bill in that case, are admissible, in a subsequent proceeding of the same kind, to corroborate testimony that the defendant, who bore a different name, was the person tried in the proceeding to which the certificate relates, where, although the certificate is not a certified copy of a court record, it appears that the Commissioner kept no judgment records.
    3. A report to the Department of Justice of an investigator of charges against" a United. States commissioner, reciting that the latter had tried a Chinaman upon the charge of being unlawfully in this country, is inadmissible in a subsequent proceeding of the same kind, in which the defendant claims to have been the person tried and discharged by the Commissioner, though bearing a different name than the one in the former proceeding.
    4. Unimpeaehed testimony of birth in this country and consequent citizen- - ship is sufficient to establish, as required by see. ¿5 of the act of Congress of May, 1892, his lawful right to remain here, upon the arrest of a Chinaman under the provisions of such act.
    5. It would seem that the burden of overthrowing defendant’s prima facie case of birth in this country and consequent citizenship rests upon the government, where a Chinaman has lived here for a long time, and when arrested for remaining here claims, by reason of birth here, to be a citizen.
    No. 2699.
    Submitted December 7, 1914.
    Decided January 4, 1915
    Hearing on an appeal by tbe defendant from a judgment of the Supreme ■ Court of the District of Columbia affirming an order of deportation of a United States Commissioner.
    
      Reversed.
    
    The Court in the opinion stated the facts as follows:
    This is an appeal from a judgment of the supreme court of the District of Columbia. Chin AYah, appellant, ivas arrested as a Chinese person in the United States without authority, and ordered to be deported to China by order of the United States commissioner March 26, 1914. He appealed therefrom to the supreme court of the District. That court upon hearing affirmed the order of the commissioner, and Chin AYah has again appealed.
    On the trial the defendant offered in evidence a certificate issued by Felix McGettrick, United States commissioner for the district of Vermont, dated May 14, 1897, showing that Chin Leong Say had been adjudged to be lawfully in the United States by him. This was excluded, and exception reserved. He then offered a report of Examiner Plato Mount joy, dated January 25, 1896, to the Department of Justice, referring to the case of Chin Leong Say, and [stating] that, in his opinion, Commissioner McGettrick had tried the case of the said Chin Leong Say.
    .This was accompanied by evidence tending to show that the appellant, Chin AYah, had been tried under the name of Chin Leong Say by Commissioner McGettrick, and discharged.
    It appears by the bill of exceptions that Chin AYah had been arrested by a United States inspector on March 5, 1914, at a laundry in AYashington, I). C.; that the inspector, through an interpreter, interrogated said Chin AYah, and took down his statements in shorthand, Avhich he later wrote out in longhand. The same was produced and read. From this statement it appears that the defendant gave his name as Chin AVah, and his married name as Chin Suey AYah, age forty-seven; that he did not know where he was born. His parents’ names and residence wure given as Chin Along Dung, his father, and Ung Shee, his mother, residence Hung How village, Chipa. It tvas also stated that his father had lived in the United St&tes, and that his father and mother had told him he was born in the United States, and carried back to China by them when he was very young; that he had come to Canada in 1891, and from there to the United States; that he had been arrested and tried and given the certificate heretofore mentioned. He had come to New York, and from thence to Washington, where he had since lived.
    It was proved by the government interpreter that the only rule pronouncing Chinese names in English was by sound.
    Appellant testified of his arrest on the train from Montreal at St. Albans, Vermont; that he was carried in a few days to a town nearby and tried before Commissioner McGettrick, who gave him the certificate.
    On behalf of appellant, one Lee Woy testified that he came to the United States in 18 GG, and lived for five years in San Francisco; that he knew Chin Mong Dung, who kept a grocery store in San Francisco, and also his wife, Ung Shee; knew that Chin AVah was born in San Francisco; sawr him there as a baby, and afterwards saw him in China, to which his parents had returned; was then about thirteen years old; that he had seen Chin Wah at Richford or St. Albans, Vermont, afterwards in New York, and since in Washington. Was present at Chin A¥ah’s trial in Richford or St. Albans before a United States commissioner; that two Chinamen testified in that case, and also a white'boy, but does not know what they testified to; was himself sent for as a witness by Chin Wah, but attorney did not call him.
    Lee Kim, another witness for Chin Wak, testified to having lived in San Francisco, where he knew Chin AVah’s parents; that they had a baby bom there whom he knew to be the defendant. Name was Chin Suey Wah or Chin Leong Say. Defendant was about from one to two years old when witness left San Francisco. That he saw defendant afterwards in China, with his parents, when he was about thirteen years old.
    
      The following stipulation was entered into by the government:
    “Commissioner McGettrick kept no docket or record of his (‘ases, and turned none such over to the clerk of the United States district court in Vermont. He depended upon memoranda or simply note-books, containing simply the name of the defendant, and frequently only stating the disposition of the case. These fragmentary or sporadic documents, with the complaint, orders for processes, warrants, and marshals’ returns, were turned over to the clerk of the court at .Burlington, Vermont, by McGettrick.”
    After this stipulation, defendant offered in evidence the certificate which he stated had been given him by Commissioner McGettrick after his trial. This certificate, signed by McGettrick, show's that May 14, 1897, at Richford, Vermont, a complaint had been presented charging Chin Leong Say with violation of the statutes of the United States, and that upon full hearing, defendant had been discharged, and it was adjudged that said Chin Leong Say had the lawful right to be in the United States. This certificate, dated May 2(5, 1897, was excluded.
    There wras also offered a certified copy of a fee bill among the papers turned over by McGettrick to the clerk of the district court for the district of Vermont, which shows the names of witnesses in the case of Chin Leong Say as Moy Loy, J. A. Kelly, and Chin Goon. This was excluded, and exception reserved.
    There was next offered a certified copy of the report of Plato Mount joy, an examiner for the Department of Commerce and Labor, made to the Department of Justice. It seems that this examiner had been instructed to investigate charges of misfeasance made against McGettrick as commissioner.
    The part of the report is as follows:
    “May 14, 1897. Chin Leong Say Pees $9.23” (This wras one oí a number of Chinese cases embraced in said report). “The Commissioner (meaning McGettrick) is positive that he fried these persons, for his notes show it. He is a bold man who would venture to make any definite statements where any Chinese names occur, for they are so queer and peculiar, but I do not think that these names are to-be found in the marshal’s accounts for that quarter. The commissioner claims 88 cases, the marshal’s force apparently arrested only 76 Chinese persons. Unfortunately Air. Senter was sick and did not attend a single Chinese hearing that quarter, so that he can throw no light on the subject. The commissioner thinks that he may have mislaid the warrants and he is sure that he,tried the Chinamen; I think that it is very possible that he did try them, though the marshal’s accounts seem to be against him. But I am clearly of the opinion that, unless I have made some clerical error, he should not be allowed a single, solitary nickel out of the $788.20 which I recommend to be disallowed.”
    This was excluded, and exception reserved.
    Error has been assigned on the exclusion of these certificates and reports, as well as to the finding of the court that Chin Wah was not a citizen of the United States.
    
      Mr. Creed M. Fulton and Mr. Jesse E. Potbury for the appellant.
    
      Mr. Clarence R. Wilson United States District Attorney, Mr. Walter Bruce Howe, and Mr. J. E. Laskey for the appellee.
   Air. Chief Justice Shepard

delivered the opinion of the Court:

If it be true that Chin Wah was born of Chinese parents domiciled in California, and not employed in any diplomatic or official capacity, he became at his birth a citizen of the United .States by the terms of the 14th Amendment. United States v. Wong Kim Ark, 169 U. S. 649, 42 L. ed. 890, 18 Sup. Ct. Rep. 456.

The certificate of AIcGettrick, not being a certified copy of any record of his court, is not admissible as such, but it was admissible in corroboration of the witnesses who testified to the trial, especially in company with the stipulation as to McGettrick’s failure to keep judgment records. It tended to show, at least in corroboration of the witnesses, that such a trial, had been had at the time, and that Chin Wall was arrested and tried under the name of Chin Leong Say. The certified copy of the fee bill in that case was also admissible for the same purpose. The report of Mount joy was properly excluded.

The witnesses wTere unimpeached, and their testimony made a prima facie case of Chin Walds birth in the United States and consequent citizenship. • It is true that sec. 3 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 be adjudged to be unlawfully in 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.

It has been held by the circuit court of appeals for the seventh circuit that this provision does not apply in the case where the defendant asserts citizenship of the United States, and that the burden of proof is upon the government in such a case. Moy Suey v. United Stales, 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.

The judgment is therefore reversed, and the cause remanded, with direction to discharge the defendant unless there may be further evidence offered by the government in disproof of his caso. Reversed.  