States government to depart within six months. At the expiration of that period his stay within the United States was unlawful, and he states he knew it was unlawful. Section 14 of the Immigration Act of 1924 (8 USCA § 214) provides that any alien who remains longer than the time permitted by the act and regulations thereunder 'shall be taken into custody and deported.' Under all the authorities an alien gains no rights by an occupation entered into while unlawfully in the country."
While that case dealt with a visitor for a limited period, the decision states quite clearly that the statute and not the treaty should control the action of the court.
That case was affirmed on appeal to the Circuit Court of Appeals in 55 F.2d 623, 624. In the latter case the court, quoting from the case of Ng Fung Ho et al. v. White, 259 U.S. 276, 42 S. Ct. 492, 66 L. Ed. 938, said on page 624 of 55 F.2d: "'Unlawful remaining of an alien in the United States is an offense distinct in its nature from unlawful entry into the United States. One who has entered lawfully may remain unlawfully.'"
In the case of Haff v. Yung Poy (C.C.A. 9) 68 F.2d 203, it was held that a minor child of a Chinese merchant was not subject to deportation, even after the father had changed his status to laborer. This appears to be so because there is no provision in any statute which provides for the deportation of the children, if legally admitted to this country.
In the case of United States ex rel. Yee See Que v. McGregor (D.C.W.D. Pa.) 2 F.Supp. 688, it was held that the son of a Chinese merchant could not be deported, even though he had changed his occupation from merchant to laborer. The principle of law there stated places the case in much the position as was held in Haff v. Yung Poy (C.C.A.) 68 F.2d 203, supra. It is stated in the opinion that: "In Cheung Sum Shee v. Nagle, 268 U.S. 336, 45 S. Ct. 539, 69 L. Ed. 985, it was held that the wives and minor children of resident Chinese merchants were admissible under the treaty with China of November 17, 1880 (22 Stat. 826). In so deciding the Supreme Court held, in effect, that the treaty rights of Chinese merchants had not been affected by the act of 1924." Page 688 of 2 F.Supp.
I am unable to agree that this is the effect of the Supreme Court case. As hereinbefore stated, I believe the treaty and the statute were construed together in that case, and that the Supreme Court did not intend to hold that the treaty rights of Chinese merchants had not been in any way affected by that act of 1924.
The facts in the case of United States ex rel. To Ming v. Commissioner of Immigration (D.C.S.D.N.Y.) 52 F.2d 791 are practically identical with the facts in the instant case, with the exception that in that case the relator was admitted as a Chinese merchant, a more privileged class in accordance with some of the decisions. Judge Patterson there held: "Chinese alien entering United States as merchant after effective date of 1924 Immigration Act held subject to deportation, upon later changing status to that of laborer." Syl. 4.
The treaty with Italy does not extend any special privileges to the nationals of that country as to the conditions of their admission to the United States or the length of their stay.
Beyond a doubt Congress has the right to exclude aliens, or to permit them to enter this country upon prescribed conditions. The conditions have been enacted in the act of 1924.
That act provides for certain quotas, and, in addition, permits certain nonimmigrant aliens to enter the country for certain specified purposes, under restrictions set out in the statute.
Under the statutes, and regulations legally adopted thereunder, the relators were admitted as merchants upon the understanding, as set out in the statute, that if they failed to maintain the status under which admitted they would depart from the United States. Upon their filure to depart voluntarily, the law authorized their deportation, as having remained here for a longer period of time than permitted under the law and regulations made thereunder. 8 USCA § 214.
The proof establishes the fact that they changed their status; that they were not engaged solely as merchants, but were employed in labor, repairing shoes.
This is admitted by them, and as to Coco it appears fully in his affidavit submitted for the purpose of extending the time for his departure.
The duty of the court is to enforce the law; and, consequently, the writs of habeas corpus issued in each case will be discharged, and the relators will be remanded to the custody of the Commissioner for deportation.
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