
    UNITED STATES ex rel. WONG SAI CHAAM v. COMMISSIONER OF IMMIGRATION.
    District Court, S. D. New York.
    June 24, 1930.
    
      James C. Thomas, of New York City, for , r° a °r'
    Charles H. Tuttle, U. S. Atty., of New (Ernest Lappano, of New York City, of counsel), for respondent.
   WOOLSEY, District Judge.

The writ herein is dismissed.

This is a case of much hardship. After having given it most careful consideration, I have concluded that the decision above indieated is inescapable under the limitations placed on a court in matters of this kind.

It is a condition precedent for the admission of the alleged minor child of a Chinese alien resident of the United States (1) that the relationship he established and (2) that it be shown that the father is living here and belongs to one of the exempt classes whose minor children are admissible.

When the minor child of a Chinese resident alien applies for admission at one of our ports, he may not enter it his lather be not here, or if he he dead, Ex parte Chan Fooi (D. C.) 217 F. 308, 310, or if his status as a member of an exempt class — e. g., as a merchant — has not been maintained, Chin Hong v. Nagle (C. C. A.) 7 F.(2d) 609, 610. The relationship of tho minor to his alleged father and the maintenance of the father’s exempt status are questions of fact to be determined by the Department of Labor on a fair hearing.

The finding of the Board of Review, dated May 10, 1930, whichAs¡ the subject of ob^etlon hore’ f c+°Snlzef ? f this case. and to this extent modified the tind- • OjTA -3-0 *1* * -i . mg or the board or special inquiry, but it affirmed the finding of the board of special f18* the relator has not sustained the barden lald “ establishing that his statlls 18 now that o£ a merchant.

It is common ground between the parties that the father, Wong Sai Chaam, in this case was a merchant up to December, 1929, when the Sun Ligh Jewelry Company, with which he was connected and in which he had an interest, went bankrupt.

It is also common ground that on an investigation, under rule 9, subd. 3, of Rules of October 1, 1926, governing admission of Chineso, preliminary to bringing his son here, the status of the relator as a merchant was recognized by the government.

But such recognition is not conclusive, and does not speak beyond its date. It is a mere convenience to the immigrant; and'the ^ ™der iwhich+it is given expressly states that it is not an estoppel on the United states. Cf. Rules of October 1, 1926, rule 9, subd. 3, par 3.

The relator’s claim here is that, after the bankruptcy of the jewelry company, he became manager of a restaurant, and as such continued his mercantile státus. Cf. Weedin v. Wong Jun, 7 F.(2d) 311, 312 (C. C. A. 9); U. S. v. Lee Chee, 224 F. 447, 448 (C. C. A. 2).

On conflicting evidence, after several hearings at which a number of witnesses were ex-aminod, it was held by the board of special “9W ^at the mercantile status of the re-lat” at tbe hla/on aPPlled at tbe ^ o£ New York for admissi011 was not establs e •

I hold that rule 9, of Rules of October 1, 1926, governing the admission of Chinese, is a valid regulation entirely consonant with the Chinese exclusion laws, and that its promulgation was within the power and authority of the Secretary of Labor. Cf. 8 U. S. Code, §§ 288, 296 (8 USCA §§ 288, 296).

This is an exclusion case. The applicant for admission in such eases has not the right to appear by counsel and examine and cross-examine witnesses. U. S. ex rel. Buccino v. Williams (C. C.) 190 F. 897, 899; U. S. ex rel. Falco v. Williams (C. C.) 191 F. 1001, 1002; Brownlow v. Miers, 28 F.(2d) 653, 657, 658 (C. C. A. 5). Consequently, the applieant’s rights were not infringed by the nature of the hearing given to him in the board of special inquiry. On his appeal to thb board of review he was allowed counsel, and was there represented by counsel.

I am entirely satisfied that there was a fair hearing in this case. With the correctness of the decision of the board of special mquiry based, as it was, on eonflictmg eviden’ce as to Wong Sai Cnaanrs present sta tus, and involving, as it did, the determination of the credibility of witnesses seen by the board, I am not concerned. It is enough for me that “a board of impartial men” might reach the conclusion that was reached here.. U. S. ex rel. Fong Lung Sing v. Day, 37 F.(2d) 36, 38 (C. C. A. 2).  