56065/640
Decided by the Board March 26, 1942.
Treaty Merchant — Continuance of exempt status.
The continuance of the exempt status of an alien admitted as a treaty merchant under section 3 (6) of the Immigration Act of 1924 is determined by the treaty and not by the act.
CHARGE:
Warrant: Act of 1924 — Remained after failing to maintain exempt status of merchant.
Mr. A.J. Johnson, of Star City, Arkansas, for the respondent.
Mr. Edward J. Ward, Board attorney-examiner.
STATEMENT OF THE CASE: The respondent testified that he is a native and citizen of China, of Chinese race, 27 years of age. He identified as pertaining to himself the record of admission of a Chinese boy of his name at Seattle on May 27, 1926, as a minor son of Jeu Gong Lee, a domiciled Chinese merchant, under section 3 (6) of the Immigration Act of 1924. He testified further that his father died in 1932, and that during most of the time since his own becoming of age in 1934 he has been employed as a grocery store clerk, although he claimed at the time of the hearing to have obtained a partnership interest in a local grocery concern.
The presiding inspector bases his recommendation of deportation on the finding that the respondent has not continued to be a minor child of a lawfully domiciled Chinese merchant, since his father died in 1932 and he attained majority in 1934. Upon such finding the presiding inspector concludes that respondent is subject to deportation on the charge above-specified.
DISCUSSION: Counsel bases his exceptions on the proposition that "respondent's rights and liability are not measured or determined by the Immigration Act of 1924," and for this he relies upon the decision of the Circuit Court of Appeals of the 9th Circuit in Haff v. Yung Poy, 68 F. 2d 203.
Like the respondent here, Yung Poy had been admitted in 1926; that is, subsequent to the passage of the 1924 act, as a minor son of a merchant who had lawfully been domiciled in the United States prior to the passage of that act. Yung Poy's father had ceased to be a merchant and to have any mercantile interest in 1932, the same year in which this respondent's father died. And, on September 9, 1932, Yung Poy was ordered deported to China on the same charge as that which has been brought against this respondent; namely, "that he remained in the United States after failing to maintain the exempt status under which he was admitted, of an alien entitled to enter the United States solely to carry on trade under and in the pursuance of the provisions of the present existing treaty of commerce and navigation."
The one distinction that might have been made between the facts of the Yung Poy case and those in the case here at issue is that, whereas Yung Poy was still a minor at the time deportation proceedings were instituted against him, this respondent became of age 7 years before his arrest in these proceedings. However, the broad statement in the Yung Poy opinion that "appellant's right to remain in the United States is covered by the treaty and not by the act (the Immigration Act of 1924), and no limitation or restriction upon the alien's stay in the United States is contained in the treaty," would seem clearly to give firm support to the basic proposition contended for by the respondent's attorney that his "rights and liability are not measured or determined by the Immigration Act of 1924."
This interpretation of the ruling in the Yung Poy decision has been accepted as controlling the administrative policy and practice in respect of the institution and prosecution of deportation proceedings against Chinese persons who have been admitted subsequent to 1924 as minor children of merchants who had lawfully been domiciled in the United States prior to 1924, and who have ceased to be minor children of such merchants through becoming of age or through the death or change of occupation of the merchant fathers as whose minor children they had been admitted.
FINDINGS OF FACT: Upon the basis of all the evidence adduced at the hearing and upon the entire record in this case, it is found:
(1) That the respondent is an alien, native and citizen of China;
(2) That the respondent last entered the United States at the port of Seattle, Wash., on May 27, 1926, ex-S.S. President Madison, and was admitted under section 3(6) of the Immigration Act of 1924;
(3) That the respondent was admitted as a minor child of a merchant who had lawfully been domiciled in the United States prior to the passage of the Immigration Act of 1924.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under sections 14 and 15 of the Immigration Act of 1924 the respondent is not subject to deportation on the ground that he has remained in the United States for a longer time than permitted by this act or regulations made thereunder;
(2) That under section 20 of the Immigration Act of 1917 the respondent is not subject to deportation.
OTHER FACTORS: On October 20, 1938, the respondent pleaded guilty to a charge of criminal abuse and was sentenced by a Circuit Court of the State of Arkansas to 7 years' imprisonment in the State Penitentiary. This crime, however, was committed more than 5 years after the respondent had last entered the United States and, therefore, did not cause the respondent to be subject to deportation.
ORDER: It is ordered that the warrant of arrest and the bond on which the alien has been released be canceled.