US v. Low Hong

I’m expressing an opinion here, and as with all articles, I welcome comment and criticism.

The case is United States v. Low Hong, Circuit Court of Appeals, Fifth Circuit.Circuit Court of Appeals (1919).

The case deals with rights of a citizen, and Low Hong was a United States citizen. What is interesting is how and why the court also described him as a “natural born citizen”.

The first part of the case states what the parties agree on:

This is an appeal by the government from an order discharging the appellee on a hearing in a habeas corpus proceeding instituted by the latter. The appellee’s amended petition for the writ alleged that he is a citizen of the United States, that he was born in San Francisco 25 years ago, and that he was being held by virtue of a warrant issued by the Secretary of Labor commanding that appellee be taken into custody and granted a hearing to enable him to show why he should not be deported in conformity with law. A demurrer to the amended petition was filed, and a return was made to the writ, which averred that petitioner’s arrest and detention were in pursuance of a warrant of the Secretary of Labor, duly and lawfully issued under the provisions of section 19 of the Act of Congress of February 5, 1917 (39 Stat. 889, c. 29 (Comp. St. 1918, Sec. 4289 1/4jj)).

The Court ruled that since everyone agreed that Low Hong was a citizen, he could not be held under a law that only applied to aliens. What is interesting is how the decision was worded:

A mere claim of citizenship, made in a petition for the writ of habeas corpus by one held under such process, cannot be given the effect of arresting the progress of the administrative proceeding provided
for. United States v. Sing Tuck, 194 U.S. 161, 24 Sup.Ct. 621, 48 L.Ed. 917; United States v. Ju Toy, 198 U.S. 253, 25 Sup.Ct. 644, 49 L.Ed. 1040. But an admission that such claim is well founded dispenses with any necessity or occasion for waiting for the Secretary of Labor to render a decision on a question that does not exist. An admission that one held under such process is not an alien is an admission that he is not subject to be detained under that process. What occurred on the hearing in the instant case amounted to an admission that the Secretary of Labor was without power or jurisdiction to have the appellee kept in custody under the warrant issued. The averments of the amended petition show that the appellee is a natural-born citizen of the United States. United States v. Wong Kim Ark, 169 U.S. 649, 18 Sup.Ct. 456, 42 L.Ed. 890. The truth of those averments being admitted, the immigration
officials were not entitled to retain the appellee in custody until the Secretary of Labor should in the summary proceedings pass on the question of deporting one who was admitted not to be subject to
be detained or deported under the process under which he was held.

Nothing in the case describes the citizenship of Low Hong’s parents, however, he was born in the United States about 1894, 32 years after passage of the Chinese Exclsion Act, a law that prevented the naturalization of Chinese persons. For this reason, it is unlikely that Low Hong’s parents were US citizens. In any case, the court took no notice of Low Hong’s parents in its decision and yet used the phrase “natural born citizen”.

What I find important is that the citation immediately following the statement that Low Hong was a “natural born citizen of the United States” is the Supreme Court case United States v. Wong Kim Ark. Wong is a case in which the Supreme Court decided that an child born in the United States to two alien (Chinese) parents was a US Citizen under the 14th Amendment. Note that the Wong decision said “citizen” and not “natural born citizen”. However, one can easily argue from the majority opinion in Wong that “natural born citizenship” is implied. Here it appears that the Low Hong decision agrees, using the phrase “natural born citizen” and justifying the language by Wong.