[Inclosure.]
Mr. Hoyt to Mr.
Hay.
Department of Justice,
Washington, July 26,
1902.
Sir: Your letter of June 24, inclosing a
note from the Chinese minister dated June 14, presents for my
opinion the question whether Circular No. 52, Bureau of Immigration,
issued by the Treasury Department May 10, 1902, and relating to the
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enforcement of the
Chinese-exclusion law, is warranted by the treaty with China and the
laws of the United States.
The circular provides that registered Chinese laborers seeking
admission to the United States after temporary absence, under
Article II of the treaty of 1894 between the United States and
China, must prove that some one of the conditions mentioned in
Article II exists at the time of application for readmission. The
circular states that such proof “constitutes a condition precedent
to reentry of such persons additional to the return certificate
prescribed in section 7 of the act approved September 13, 1888.” The
following rules and conditions are prescribed: That return
certificates may be issued to duly registered Chinese laborers upon
prima facie evidence that they possess some one of the grounds
recited in the act of 1888 to sustain their claim of right to
return; that a return certificate does not relieve the holder of the
necessity of proving to the satisfaction of the appropriate officers
upon return to the port of departure that some one of the conditions
of Article II exists at the time of return; that every Chinese
laborer to whom a return certificate has been issued should be
informed that, in order to avoid the risk of being refused
readmission, he should, ninety days in advance of his return, notify
the collector of customs at the proper port of the intention to
return, giving the facts regarding his personal identity and the
grounds upon which he claims the right to reenter.
The remaining paragraphs of the circular provide that the collector
shall, upon receipt of such notice, investigate the claim, and if
its validity is not established, shall notify the person making it
that he will not be permitted to reenter this country; and that upon
the arrival of a returning laborer and the exhibition of his return
certificate the collector shall require the applicant to establish
satisfactorily that he has at the time of arrival a lawful wife,
child, or parent in the United States, or property therein of the
value of $1,000, or debts of like amount due him and pending
settlement. Provision is made for entry without delay if evidence of
the applicant’s eligibility has previously been secured and is not
controverted, but otherwise a landing shall be refused until the
applicant’s right is established.
The gist of the representations on behalf of Chinese persons is that
the existing law and practice contemplate the possession of a return
certificate as conclusive evidence of the right; that there is no
warrant for the position of the circular that the conditions of
allowance of reentry must exist at the time of return as well as at
the time of departure when the certificate is obtained. The
statement of this proposition is almost sufficient in itself to
condemn it. Accompanying it is some concession that fraud discovered
after the certificate was issued might invalidate it. But the claim
is made that the certificate is not prima facie evidence, but the
sole evidence of the right of the laborer to return. The argument
necessarily means that, provided a registered laborer possessed the
proper qualifications to entitle him to return at the time of
leaving this country, although as soon as he had left, by fortuitous
occurrence, or design, short of fraud, all of those qualifications
were withdrawn by the departure of his family from this country and
the collection and remittance of his property or debts to China, yet
the certificate of the necessary facts which previously existed
would be a sufficient charter for his right to reenter.
The act of 1888 in its sixth section states the same basis for the
right of return as the treaty of 1894, and there is nothing in the
seventh section of that act providing for return certificates which
makes the issue of the certificates the final determination of the
right, or which is inconsistent with the view that the facts
constituting the foundation of the right must exist when the
applicant actually returns to this country as well as when he
applies for the certificate.
Article I of the treaty of 1894 prohibits the coming of Chinese
laborers to the United States. The first sentence of Article II is
as follows:
“The preceding article shall not apply to the return to the United
States of any registered Chinese laborer who has a lawful wife,
child, or parent in the United States, or property therein of the
value of $1,000, or debts of like amount due him and pending
settlement.”
The remainder of Article II specifies the conditions upon which the
Chinaman must obtain a certificate and exercise the right of return.
The language quoted makes it very evident that the existence of the
crucial facts relates to the time of return. They must exist also at
the time of departure in order to enable the Chinaman to obtain a
certificate; but manifestly there is no meaning or purpose in the
allowance granted except as giving an actual and existing reason for
a Chinaman’s reentry into the country. The law does not provide that
the prohibition shall not apply to the return of a laborer who had, but who has, a
lawful wife, child, etc.
Consideration of the essential character of the exception granted and
of the reasons for it enables us to say that the requirement of
application for a return certificate a month prior to departure
(sec. 7, act of 1888, supra), to enable the collector to
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investigate, constitutes
no reason for holding that no other examination was ever intended to
be made. The right is carefully guarded against abuse. Before the
apparent title to it is conferred due investigation is made, and
manifestly the right should be shown by satisfactory proof to be
still possessed by the applicant when he actually arrives here on
his return voyage.
Paragraph III of the circular, suggesting rather than requiring that
a returning laborer should notify the collector from China in
advance of his intention to return, is plainly for the convenience
of the Chinaman and to save him from loss and dis appointment. This
provision was dictated by consideration for the Chinese, and the
suggestion is not just that the benefit and convenience to them is
doubtful; that the rule really subjects Chinamen to an adverse
investigation in their absence, with no opportunity to refute false
charges or the machinations of enemies. In any bona fide case
adverse influences, if, indeed, such should exist, would be
powerless to prevent the establishment before the appropriate
Government officers of such patent fact as the necessary family
relations or property ownership.
In view of all the foregoing considerations, I have the honor to
advise you that in my opinion, as matter of law, the circular in
question is warranted by the treaty with China and existing laws of
the United States.
Very respectfully,
Henry M. Hoyt,
Acting
Attorney-General.
