SECTION 4

Sec. 4. When used in this act the term "nonquota immigrant" means

(a) An immigrant who is the unmarried child under 18 years of age, or the wife, of a citizen of the United States who resides therein at the time of the filing of a petition under section 9.

(b) An immigrant previously lawfully admitted to the United States, who is returning from a temporary visit abroad.

(c) An immigrant who was born in the Dominion of Canada, Newfoundland, the Republic of Mexico, the Republic of Cuba, the Republic of Haiti, the Dominican Republic, the Canal Zone, or an independent country of Central or South America, and his wife, and his unmarried chiildren under 18 years of age, if accompanying or following to join him.

(d) An immigrant who continuously for at least two years immediately preceding the time of his application for admission to the United States has been, and who seeks to enter the United States solely for the purpose of, carrying on the vocation of minister of any religious denomination, or professor of a college, academy, seminary, or university, and his wife, and his unmarried children under 18 years of age, if accompanying or following to join him.

(e) An immigrant who is a bona fide student at least 15 years of age and who seeks to enter the United States solely for the purpose of study at an accredited school, college, academy, seminary, or university, particularly designated by him and approved by the Secretary of Labor, which shall have agreed to report to the Secretary of Labor the termination of his attendance of each immigrant student, and if any such institution of learning fails to make such reports promptly the approval shall be withdrawn.

TEXT OF SENATE BILL NO. 2358, INTRODUCED BY SENATOR KING, AND H. R. BILL NO. 6544, INTRODUCED BY CONGRESSMAN DYER (69TH CONG., 1ST SESS.)

A BILL To permit the admission, as nonquota immigrants, of certain alien wives and children of United States citizens

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That clause (1) of subdivision (c) of section 13 of the immigration act of 1924 is amended to read as follows: (1) is admissible as a nonquota immigrant under the provisions of subdivision (a), (b), (d), or (e) of section 4 or."

DECISION OF THE SUPREME COURT OF THE UNITED STATES IN THE CASE OF CHANG CHAN, ET AL. V. JOHN D. NAGLE, AS COMMISSIONER OF IMMIGRATION FOR THE PORT OF SAN FRANCISCO

Supreme Court of the United States. No. 770-October Term, 1924

Chang Chan, Wong Hung Kay, Yee Sin Jung, et al., v. John D. Nagle, as Commissioner of Immigration for the port of San Francisco. On certificate from the United States Circuit Court of Appeals for the Ninth Circuit

[May 25, 1925]

Mr. Justice McReynolds delivered the opinion of the court.

Petitioners, Chang Chan and three others, claiming to be native-born citizens of the United States permanently domiciled therein, sought release from detention by the Immigration Commissioner of four young Chinese women, alleged to be their lawful wives wedded in China prior to July 1, 1924. On that day the young women were on the high seas as passengers upon the President Lincoln. Arriving at San Francisco, July 11, without immigration visas as provided for by section 9, immigration act of 1924, chapter 190, Forty-third Statutes at Large, page 153, they sought and were finally denied permanent admission. In support of this action the Secretary of Labor said—

"Neither the citizenship of the alleged husband nor the relationship of the applicant to him, has been investigated for the reason that even if it were conceded that both elements exist she would still be inadmissible, as section 13 of the act of 1924 mandatorily excludes the wives of United States citizens of the

Chinese race if such wives are of a race or persons ineligible to citizenship, and the department has no alternative than to recommend exclusion."

The court below inquires (Jud. Code, sec. 239): "Should the petitioners be refused admission to the United States either, (a) because of the want of a visa; or (b) because of want of right of admission if found to be Chinese wives of American citizens?"

This cause involves no claim of right granted or guaranteed by treaty and is therefore radically different from Cheung Sum Shee, et al. v. John D. Nagle, etc., this day decided.

The excluded wives are alien Chinese ineligible to citizenship here. (Rev. Stat. 2169; act May 6, 1882, c. 126, sec. 14, 22 Stat. 58, 61.) Notwithstanding their marriage to citizens of the United States they did not become citizens and remained incapable of naturalization.

Prior to September 22, 1922 (Rev. Stat. 1994) applied. It provided

Any woman who is now or may hereafter be married to a citizen of the United States, and who might herself be lawfully naturalized, shall be deemed a citizen.' Since that date chapter 411, Forty-second Statutes at Large, pages 1021, 1022, has been in force. It provides

"That any woman who marries a citizen of the United States after the passage of this act, or any woman whose husband is naturalized after the passage of this act, shall not become a citizen of the United States by reason of such marriage or naturalization; but, if eligible to citizenship, she may be naturalized upon full and complete compliance with all requirements of the naturalization laws * *

Section 13(c), immigration act of 1924, declares

"No alien ineligible to citizenship shall be admitted to the United States unless such alien (1) is admissible as a nonquota immigrant under the provisions of subdivision (b), (d), or (e) of section 4, or (2) is the wife, or the unmarried child under eighteen years of age, of an immigrant admissible under such subdivision (d), and is accompanying or following to join him, or (3) is not an immigrant as defined in section 3."

Subdivisions (b), (d), and (e) of section 4 apply to immigrants previously lawfully admitted, immigrants who seek to enter as religious ministers or professors, and to students. They are not controlling here. An immigrant is defined in section 3 as "any alien departing from any place outside the United States destined for the United States," with certain exceptions, none of which describes the present applicants.

Taken in their ordinary sense the words of the statute plainly exclude petitioners wives.

We can not accept the theory that as consular officers are required to issue visas to Chinese wives of American citizens therefore they must be admitted. A sufficient answer to this is found in section 2 (g)

"Nothing in this act shall be construed to entitle an immigrant, to whom an immigration visa has been issued, to enter the United States, if, upon arrival in the United States, he is found to be inadmissible to the United States under the immigration laws."

Nor can we approve the suggestion that the provisions contained in subdivision (a) of section 4 were omitted from the exceptions in section 13 (c) because of some obvious oversight and should now be treated as if incorporated therein. Although descriptive of certain "nonquota immigrants," that subdivision is subject to the positive inhibition against all aliens ineligible to citizenship who do not fall within definitely specified and narrowly restricted classes. In response to the demand for an interpretation of the act which will avoid hardships and further a supposed rational and consistent policy, it suffices to refer to what we have said in Yee Won v. White, 256 U. S. 399, 401, 402; Chung Fook v. White, 264 U. S. 443, 445, 446; Commissioner, etc., v. Gottlieb, 265 U. S. 310, 314.

The applicants should be refused admission if found to be Chinese wives of American citizens. It is unnecessary now to consider the requirements of the act in respect of visas.

1An immigrant who is the unmarried child under 18 years of age, or the wife, of a citizen of the United States who resides therein at the time of the filing of a petition under section 9.

See page 30 this pamphlet.

EXTRACT FROM OPINION OF UNITED STATES SUPREME COURT IN THE CASE OF CHUNG FOOK V. WHITE, 264 U. S. 446, WHICH CASE IS CITED BY THE COURT IN ITS DECISION IN THE CHANG CHAN CASE

The words of the statute being clear, if it unjustly discriminates against the native-born citizen, or is cruel and inhuman in its results, as forcefully contended, the remedy lies with Congress and not with the courts. Their duty is simply to enforce the law as it is written, unless clearly unconstitutional.

A SECOND PLEA FOR RELIEF

[This pamphlet, prepared for submission to the Committee on Immigration of the Senate (70th Cong., 1st sess.) in support of Senate bill 2271, and to the Committee on Immigration and Naturalization of the House of Representatives of the said Congress in support of H. R. 6974, is issued by the United Parlor, Native Sons of the Golden State, Chinese American Citizens' Alliance]

The Native Sons of the Golden State, Chinese American Citizens' Alliance, an organization composed of citizens of the United States of the Chinese race, submitted to the appropriate committees of the Sixty-ninth Congress in support of Senate bill 2358 and H. R. 6544, both identical in form, then pending before Congress, a certain pamphlet entitled "A Plea for Relief." These bills were never reported out of committee. The same bills have been introduced in the Seventieth Congress. They are Senate bill 2271, introduced by Senator King, and H. R. 6974, introduced by Representative Dyer.

These bills have as their primary object the granting of relief to citizens of the United States of the Chinese race whose alien Chinese wives are debarred from admission to the United States under subdivision (c) of section 13 of the immigration act of 1924.

The plea for relief submitted to the Committte on Immigration of the Senate and to the Committee on Immigration and Naturalization of the House of Representatives of the Sixty-ninth Congress is of course naturally equally responsive to the present bills now pending before the Seventieth Congress, and it is therefore requested that it be considered in connection therewith and considered filed in support thereof with like force and effect as if now originally presented. There is little to add to the said plea for relief, for the issue involved and the hardship complained of were sufficiently outlined therein to present the situation in which the American citizen of the Chinese race finds himself as a result of the provision of the immigration act of 1924 which it is sought to amend.

The hardship of the situation, which consists in the separation of these citizens from their wives, was dwelt upon in the plea for relief. The immigration act of 1924 went into effect on July 1, 1924, and as a period of over three years has elapsed since that time and no relief has been afforded, the hardship has become more pronounced and more acute as the period of separation has increased.

Without repeating the observations contained in the original plea for relief on the matter of hardship and the extreme necessity for remedial legislation, it might be proper to refer to the fact that the Department of Labor itself evidently keenly recognizes the hardship, and we might say inhumanity, involved in the separation of families, for the Secretary of Labor himself in his 1927 annual report says at page 166, under the caption "Reunion of families":

"The provisions of the present immigration law which have had most serious thought are those which are designed, or should be designed, to effect the reunion of separated families. In the consideration of this subject there has also been studied means for preventing the further separation of families by the arrival in the United States of husbands and fathers as immigrants whose intention is later to bring families to this country."

The Secretary of Labor further says, on the same page of his report, after referring to the fact that the immigration act of 1924 permits the admission of wives (not born of a race ineligible to citizenship) and unmarried children under 18 years of age of citizens, as nonquota immigrants, that—

These provisions are very just concessions to citizens, for it must be conceded that a citizen of the United States separated from his family is entitled to special consideration. Moral and economic reasons, as well as privilege because of citizenship, dictated the wisdom of joining these families and keeping them together. If citizenship is to be the basis of the right to the comfort and associa

tion of a family, then it is urged that the class of nonquota immigrants should be extended to include husbands of American citizens, as well as wives."

It is of course unfortunate, from the viewpoint of their admissability, that the wives of the citizens of this country in whose behalf this plea is presented are for the most part of the Chinese race and resident in China, but it could hardly be otherwise, owing to the small number of Chinese women of marriageable age in the United States as compared with Chinese males of like age. Interracial marriages are not favored, either by the Chinese themselves or by Caucasians, and are prohibited by the laws of many States.

It is submitted that the same humane considerations which actuated Congress in making admissible the citizens' wives who are of a race eligible to citizenship apply with equal force to the citizens' wives who are of a race ineligible to citizenship. A man is a man whatever his race, and his natural desire for and need of his wife are the same, irrespective of his race or the race of his wife.

On page 4 of the original plea for relief submitted to the committees of the Sixty-ninth Congress it was pointed out under the caption, "Alien Chinese wives of Chinese merchants admissible," that the alien Chinese wife of the alien Chinese merchant resident in the United States is admissible under the immigration act of 1924, and that the act therefore gives greater rights to an alien Chinese merchant living in this country than it does to an American citizen of the Chinese race. This situation is referred to in the 1927 report of the Secretary of Labor on page 175 in the following words:

"The Chinese exclusion act specifically permits the entrance of Chinese merchants, and the courts have held that such provision includes the wife and dependent, unmarried, minor children. Should an oriental alien, however, chance to be the wife of an American citizen, regardless of the occupational status of the husband, the wife can not be admitted, thus giving to a Chinese and other aliens the right to the association of his wife which is denied to the citizen. I am sure it was never intended by the Congress than an alien should be entitled to more rights under the immigration laws than an American citizen." We would like to emphasize the concluding words of the foregoing quotation: "I am sure it was never intended by the Congress than an alien should be entitled to more rights under the immigration laws than an American citizen."

NO OTHER REMEDY BUT RELIEF FROM CONGRESS

There is no other remedy for the hardship under which the American citizen of the Chinese race suffers in his separation from his wife but relief from Congress. He went to the courts believing that the courts would hold that an American citizen had an inherent, natural and constitutional right to have his wife with him in the country of his citizenship, that his domicile was her domicile, and that his home was her home. But the United States Supreme Court in the test case of Chang Chan et al. v. John D. Nagle (268 U. S. 346, 45 Sup. Ct. 540), decided otherwise, and his only hope of relief is in following the intimation contained in the decision of the court to the effect that Congress alone can remove the hardship from which he suffers. The decision of the United States Supreme Court is printed in the appendix to the original plea for relief referred to herein, on pages 27, 28, and 29. It will be noticed that the Supreme Court said: "In response to the demand for an interpretation of the act which will avoid hardships and further a supposed rational and consistent policy, it suffices to refer to what we have said in Yee Won v. White (256 U. S. 399, 401, 402; Chung Fook v. White, 264 U. S. 443, 445, 446").

In the case of Chung Fook v. White, referred to by the court in the Chang Chan case, the court said: "The words of the statute being clear, if it unjustly discriminates against the native-born citizen, or is cruel and inhuman in its results, as forcefully contended, the remedy lies with Congress and not with the courts. Their duty is simply to enforce the law as it is written, unless clearly unconstitutional."

Therefore the American citizen of the Chinese race comes to Congress for relief. Has he come in vain? We trust not.

APPENDIX A

Copies of certain affidavits, to be filed with the Senate Committee on Immigration, in support of S. 2271, and with the House of Representatives Committee on Immigration and Naturalization, in support of H. R. 6974.

AFFIDAVIT OF KENNETH Y. FUNG

STATE OF CALIFORNIA,

City and County of San Francisco, ss:

Kenneth Y. Fung, being first duly sworn, upon oath doth depose and say: That he is a native-born citizen of the United States, and that he resides in the city and county of San Francisco, State of California.

That he is the executive secretary of the United Parlor of the Native Sons of the Golden State, Chinese American Citizens Alliance, an organization composed of citizens of the United States of the Chinese race. That the said order has a membership of over 4,000, and has subordinate lodges scattered throughout the United States, the united parlor being the supreme lodge of said order.

That affiant makes this affidavit as the executive secretary of said united parlor, and for and on behalf of the said order, in support of Senate bill 2271 and H. R. 6974, now pending in Congress, which bills are identical in wording, and have for their object the amendment of the immigration act of 1924 to permit the admission into the United States of the alien wives belonging to races ineligible to citizenship of citizens of the United States. That such wives were admissible before the passage of the immigration act of 1924, but that their right of admission was taken away by that act.

That the situation of hardship which has developed by reason of the provision of the immigration act of 1924, which the bills in question seek to amend, is extreme, particularly in its application to citizens of the United States of the Chinese race, whose wives are for the most part alien Chinese women, to whom such citizens were married in China, there not being a sufficient number of Chinese women in the United States of marriageable age to supply wives for such citizens, there being comparatively few Chinese women in the United States compared with men.

That the wives of most of these citizens are in China. That it has been custom for such citizens, as soon as their financial circumstances permitted, to send for their wives to join them in the United States, here to establish a home for them, but that under the immigration act of 1924, they, although citizens of the United States, are separated from their wives and from such of their children as are too young to leave their mothers.

That there were introduced into the Sixty-ninth Congress at its first session two bills, each a duplicate of the other, one Senate bill 2358 and the other H. R. 6544, which bills are identical in wording with said Senate bill 2271 and said H. R. 6974, now pending before the Seventieth Congress. That said H. R. 6544 was referred to the Committee on Immigration and Naturalization of the House of Representatives of the Sixty-ninth Congress, and that a hearing was had on said bill by the said committee. That affiant prays that the records of the said hearing, together with the exhibits submitted thereat, including a pamphlet entitled "A Plea for Relief, together with a supplement containing some arguments in support thereof," which said pamphlet was submitted by the said united parlor of which affiant is the executive secretary, to the said committee, be considered at the hearing to be had on H. R. 6974 by the Committee on Immigration and Naturalization of the House of Representatives, and introduced in evidence at the said hearing.

That the position of the said united parlor in its support of the said bills (Senate bill 2271 and H. R. 6974) being outlined in general in the said plea for relief, it is deemed unnecessary for affiant to go into the subject at length in this affidavit, as it would be only a repetition of matter which would burden the records of the committees to which said bills now pending have been referred.

That affiant does desire, however, to emphasize the hardship inflicted upon the Chinese American citizens by the provision of the immigration act of 1924 which Senate bill 2271 and H. Ř. 6974 seek to amend. That it is possible to obtain the affidavits of a large number of Chinese American citizens as to the hardship inflicted upon each in his individual case, but that it would be burdensome to the said committees to have submitted to them a large number of affidavits which would be largely repetition one of the other, as the hardship is the same in general character in most all cases. That affiant therefore submits in conjunction with this affiadvit, affidavits covering only a few individual cases which are typical in their nature.

KENNETH Y. FUNG.

Subscribed and sworn to before me this 19th day of January, 1928. [SEAL.]

HARRY L. HORN,

Notary Public in and for the City and County
of San Francisco, State of California.