Mr. Wu to Mr. Hay.
Washington, June 14, 1902.
Sir: My attention has been called to a circular, No. 52, issued by the Department of the Treasury May 10 last, in which it is stated that under Article II of the treaty between China and the United States of 1894 Chinese laborers, seeking admission into the United States after a temporary absence, must at that time prove their right to return. It then proceeds to modify the character of the return certificate which has heretofore been given to the resident laborer on his temporary visit abroad, and requires him to forward from China or the place of his sojourn, ninety days in advance, a notice to the collector of customs of his intention to return and the grounds upon which he claims the right of admission to the United States.
The effect and evident purpose of this circular is to change the practice heretofore existing as to the time and method of determining the right of a Chinese laborer lawfully in the United States to go abroad and return, a privilege which is expressly guaranteed to him by the article of the treaty cited. I respectfully submit that the circular is in violation of the spirit of the treaty and in direct contravention of the law of Congress referred to in paragraph 2 of the circular.
It will be seen that Article II of the treaty requires that the laborer intending to go abroad shall—
before leaving the United States, deposit as a condition of his return * * * a full description in writing * * * (of the grounds upon which he claims the right to return), and shall be furnished by said collector with such certificate of his right to return under this treaty as the laws of the United States may prescribe; * * * and should the written description aforesaid be proved to be false the right to return * * * shall be forfeited.
It is thus clear that the treaty requires that the evidence of the right of the laborer to return shall be submitted to the collector, and the sufficiency of the same be passed upon before he goes abroad and before the return certificate is issued.
But if any doubt could exist as to the intent of the treaty the duty of the customs officials is made clear by the law of Congress of September 13, 1888. Section 7 of that act requires that a Chinese laborer desiring to go abroad and return—
shall apply to the collector of customs of the district from which he wishes to depart at least a month prior to the time of his departure, and shall make oath, etc., * * * and shall furnish to said collector such proof of the facts entitling him to return as shall be required by the rules, etc. * * * And if the collector, after hearing the proofs and investigating all the circumstances of the case, shall decide to issue a certificate, he shall * * * sign and give to the person applying a certificate * * * which shall be the sole evidence given to such person of his right to return.
This is a precise and positive provision that “the written description” contemplated in the treaty, setting forth the grounds upon which the laborer claims the right of readmission (see paragraph 3 of circular) is to be given to the collector and its sufficiency is to be passed upon before the certificate is issued, and before the laborer leaves the United States. This certificate is to be held as final. Other sections of the [Page 237] law provide for the identification of the person with the certificate, and punishment for its forgery; but no provision is contemplated for a reexamination of “the grounds upon which he (the laborer) claims the right of admission” after his departure or before his return.
The fact that the law requires the laborer to submit his evidence to the collector thirty days before his intended departure makes it plain that it was the intent of the law that the investigation should be such an investigation as would determine the right of the laborer to return. I do not mean to say that fraud discovered after the certificate was issued might not invalidate it, but the law does contemplate that this certificate shall be, not “prima facie evidence” (see paragraph 1 of the circular), but “the sole evidence” of the right of the laborer to return.
This view of the treaty and the law is not only technically correct, but it is in accordance with the reasonableness and justice of the situation. It is proper that the Chinese laborer lawfully in the United States, wishing to take advantage of the treaty privilege of a temporary visit to his native land or elsewhere, should know before he leaves the United States whether he has the right to return, and he is entitled to have this fact officially determined before he takes his departure on his long and expensive journey. It seems like cruel irony to be told (see paragraph 3 of the circular) that, for his own convenience and benefit, the laborer is to be allowed to go across the great ocean, and, after he has reached his destination, he is to send to the collector in the United States the evidence or ground upon which he claims the right to return, and have the investigation take place while he is 10,000 miles away, with no opportunity to refute false charges or the machinations of his enemies.
I especially call attention to the fact that the debate in Congress and its recent action on the exclusion laws was in open disapproval of the action of the Immigration Bureau in seeking to add conditions to the treaty and the laws of Congress which were not warranted by them.
In view, therefore, of the facts and views herein set forth, I have to request that circular No. 52, Bureau of Immigration, May 10, 1902, be submitted to the Attorney-General for an opinion as to whether it is warranted by the treaty and the laws of Congress.
Accept, etc.,