A-11236, OCTOBER 30, 1925, 5 COMP. GEN. 306

A-11236: Oct 30, 1925

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EVEN THOUGH SUCH AFFIDAVITS MAY NOT SERVE THE PURPOSE FOR WHICH THEY WERE INTENDED. IT WAS THE PRACTICE OF THE IMMIGRATION AUTHORITIES AT THE PORTS OF ENTRY TO ACCEPT SUCH AFFIDAVITS AS EVIDENCE OF THE AFFIANT'S RIGHT TO ENTER THIS COUNTRY. IT WAS NOT NECESSARY THAT SUCH DOCUMENTS BE VISAED BY AMERICAN CONSULAR OFFICERS. THE STATEMENT OF THE CONSUL IN CHARGE AT HONGKONG THAT THE DOCUMENTS REQUIRED VISAS UNDER THE REGULATIONS IS ERRONEOUS. COURSE IT IS THE DEPARTMENT'S OPINION THAT THE FEES PAID FOR ADMINISTERING THE OATHS TO LY KIM AND LY FOO SHOULD NOT BE REFUNDED. MIGHT HAVE BEEN USED IN EFFECTING ENTRY INTO THE UNITED STATES HAD IT NOT BEEN FOR CERTAIN PROVISIONS OF THE IMMIGRATION ACT OF 1924 AS INTERPRETED BY THE DEPARTMENT OF LABOR AT THE TIME THAT ENTRY WAS REFUSED.

A-11236, OCTOBER 30, 1925, 5 COMP. GEN. 306

IMMIGRATION VISAS--- REFUND OF FEES FEES PAID A UNITED STATES CONSULAR OFFICER FOR VISAING AFFIDAVITS PRIOR TO JULY 1, 1924, IN THE CASE OF MINOR CHILDREN AND WIFE OF A CHINESE MERCHANT, WHEN INSUFFICIENT TIME REMAINED TO MAKE USE THEREOF BEFORE JULY 1, 1924, EFFECTIVE DATE OF THE ACT OF MAY 26, 1924, 43 STAT. 153, RESTRICTING IMMIGRATION, MAY BE REFUNDED. FEES PAID FOR EXECUTING IDENTIFICATION AFFIDAVITS MAY NOT BE REFUNDED, EVEN THOUGH SUCH AFFIDAVITS MAY NOT SERVE THE PURPOSE FOR WHICH THEY WERE INTENDED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF STATE, OCTOBER 30, 1925:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 10, 1925, REQUESTING DECISION OF A QUESTION PRESENTED AS FOLLOWS:

THE DEPARTMENT ENCLOSES FOR CONSIDERATION AND APPROPRIATE ACTION COPIES OF CORRESPONDENCE, TOGETHER WITH THREE AFFIDAVITS, IN REGARD TO THE APPLICATION OF MR. C. C. WONG, OF HONGKONG, FOR THE REFUND OF FEES PAID TO THE AMERICAN CONSULATE GENERAL AT HONGKONG FOR ADMINISTERING THE OATHS TO LY KIM AND LY FOO AND FOR VISAING EACH OF THE DOCUMENTS.

IT MAY BE SAID IN THIS CONNECTION THAT PRIOR TO JULY 1, 1924, IT WAS THE PRACTICE OF THE IMMIGRATION AUTHORITIES AT THE PORTS OF ENTRY TO ACCEPT SUCH AFFIDAVITS AS EVIDENCE OF THE AFFIANT'S RIGHT TO ENTER THIS COUNTRY, BUT IT WAS NOT NECESSARY THAT SUCH DOCUMENTS BE VISAED BY AMERICAN CONSULAR OFFICERS. THE STATEMENT OF THE CONSUL IN CHARGE AT HONGKONG THAT THE DOCUMENTS REQUIRED VISAS UNDER THE REGULATIONS IS ERRONEOUS. COURSE IT IS THE DEPARTMENT'S OPINION THAT THE FEES PAID FOR ADMINISTERING THE OATHS TO LY KIM AND LY FOO SHOULD NOT BE REFUNDED, BECAUSE THE DOCUMENTS, SO EXECUTED AND WITHOUT VISAS, MIGHT HAVE BEEN USED IN EFFECTING ENTRY INTO THE UNITED STATES HAD IT NOT BEEN FOR CERTAIN PROVISIONS OF THE IMMIGRATION ACT OF 1924 AS INTERPRETED BY THE DEPARTMENT OF LABOR AT THE TIME THAT ENTRY WAS REFUSED.

THE FEES IN QUESTION WERE PAID TO THE CONSULAR OFFICER FOR TAKING ACKNOWLEDGMENT OF AFFIDAVITS IN THE CASES OF LY FOO AND LY KIM AT $2 EACH AND FOR VISAING THOSE AFFIDAVITS AND AN AFFIDAVIT BY JEW TE DUE AT $10 FOR EACH VISA. THE FIRST TWO AFFIDAVITS WERE DATED JUNE 5, 1924, AND VISAED THE SAME DATE, AND WERE FOR THE PURPOSE OF IDENTIFYING THE AFFIANTS AS MINOR CHILDREN OF CHINESE MERCHANTS DOING BUSINESS IN THE UNITED STATES. THE AFFIDAVIT OF JEW TE DUE WAS EXECUTED JANUARY 9, 1923, BEFORE A NOTARY PUBLIC AT SAN FRANCISCO, AND WAS TO THE EFFECT THAT THE AFFIANT WAS A CHINESE MERCHANT DOMICILED IN THE UNITED STATES AND WAS GOING TO CHINA FOR THE PURPOSE OF GETTING MARRIED AND EXPECTED TO BRING HIS WIFE BACK WITH HIM; THIS AFFIDAVIT WAS VISAED JUNE 30, 1924.

UNDER THE LAW IN FORCE PRIOR TO JULY 1, 1924, MINOR CHILDREN AND WIVES OF CHINESE MERCHANTS ALREADY DOMICILED IN THE UNITED STATES, AND THE MERCHANTS THEMSELVES WHEN RETURNING TO THE UNITED STATES AFTER A TEMPORARY ABSENCE ONLY, WERE ENTITLED TO ADMISSION TO THE UNITED STATES WITHOUT A VISA OR A CERTIFICATE UNDER SECTION 6 OF THE ACT OF JULY 5, 1884, 23 STAT. 115. UNITED STATES V MRS. GUE LIM, 176 U.S. 459. IT WAS NECESSARY, OF COURSE, THAT SUCH PERSONS PRODUCE SOME EVIDENCE OF THEIR RIGHT TO EXEMPTION FROM THE STATUTORY REQUIREMENTS, AND, ACCORDING TO YOUR STATEMENT, IT WAS CUSTOMARY FOR THE IMMIGRATION AUTHORITIES TO ACCEPT AFFIDAVITS SUCH AS WERE EXECUTED IN THIS CASE AS EVIDENCE OF THE STATUS OF THE AFFIANTS AND THEIR RIGHT TO ADMISSION TO THIS COUNTRY, BUT SUCH AFFIDAVITS WERE NOT REQUIRED TO BE VISAED.

SECTION 13 (C) OF THE ACT OF MAY 26, 1924, EFFECTIVE ON AND AFTER JULY 1, 1924, PROVIDES:

NO ALIEN INELIGIBLE TO CITIZENSHIP SHALL BE ADMITTED TO THE UNITED STATES UNLESS SUCH ALIEN (1) IS ADMISSIBLE AS A NON-QUOTA IMMIGRANT UNDER THE PROVISIONS OF SUBDIVISION (B), (D), OR (E) OF SECTION 4, OR (2) IS THE WIFE, OR THE UNMARRIED CHILD UNDER 18 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.

PERSONS OF THE CHINESE RACE ARE NOT ELIGIBLE TO CITIZENSHIP UNDER SECTION 2169, REVISED STATUTES, AND IF NOT BORN IN THIS COUNTRY HAVE NEVER BEEN RECOGNIZED AS CITIZENS. FONG YUE TING V UNITED STATES, 149 U.S. 716. THE MINOR SONS AND THE WIFE OF CHINESE MERCHANTS, WHO ARE NOT CITIZENS OF THE UNITED STATES, ARE NOT "NON-QUOTA" IMMIGRANTS UNDER SECTION 4 OF THE ACT OF MAY 26, 1924. IT IS ASSUMED THEREFORE THAT THE MINOR SONS AND WIFE OF CHINESE MERCHANTS WERE NOT ADMISSIBLE TO THE UNITED STATES AFTER JULY 1, 1924, UPON A SHOWING OF THEIR RELATIONSHIP TO CHINESE ALREADY DOMICILED IN THIS COUNTRY AND THAT BECAUSE OF THIS NO USE WAS MADE OF THE VISAED AFFIDAVITS HERE INVOLVED.

IRRESPECTIVE OF THE RIGHTS OF THE PERSONS TO ADMISSION TO THIS COUNTRY AFTER JULY 1, 1924, IT IS APPARENT FROM YOUR STATEMENTS THAT THE VISAING OF THE AFFIDAVITS WAS NOT REQUIRED OR AUTHORIZED. HOWEVER, EVEN HAD THE VISAS BEEN REQUIRED ON SUCH AFFIDAVITS, THERE REMAINED INSUFFICIENT TIME WITHIN WHICH TO MAKE USE OF SUCH VISAED AFFIDAVITS BEFORE THE RESTRICTIONS OF THE NEW ACT BECAME EFFECTIVE JULY 1, 1924. SUCH VISAS WERE, THEREFORE, IMPROPERLY ISSUED AND THE REFUND OF THE FEES IS AUTHORIZED. 4 COMP. GEN. 518.

THE FEES CHARGED BY THE CONSUL FOR THE AFFIDAVITS OF THE TWO MINORS WERE FOR SERVICES REQUESTED BY THE AFFIANTS AND RENDERED BY THE CONSUL. THE LAW AUTHORIZED THE CONSUL TO RENDER SUCH SERVICES UPON REQUEST THEREFOR AND THE FEES CHARGED WERE AT THE LEGAL RATE PRESCRIBED THEREFOR. ACCORDINGLY, REFUND OF THE FEES CHARGED FOR THE AFFIDAVITS IS NOT AUTHORIZED.

THE $30 IN FEES PAID FOR VISAING THE AFFIDAVITS IN QUESTION MAY BE REFUNDED BY THE CONSULAR OFFICER DIRECT TO THE PERSONS FROM WHOM COLLECTED.