The Chinese exclusion acts cannot control the meaning or impair the effect of the stitutional amendment but must be construed and executed in subordination to its provi sions; U. S. v. Wong Kim Ark, 169 U. S. 649, 18 Sup. Ct. 456, 42 L. Ed. 890; and the right of the United States as exercised by and un der these acts, to exclude or expel from the country persons of the Chinese race, born in China and continuing to be subjects thereof, though having acquired a commercial domicil in the United States, has been upheld, for reasons applicable to all aliens alike, and in applicable to citizens of whatever race or color ; Chae Chan Ping v. U. S., 130 U. S. 581, 9 Sup. Ct. 623, 32 L. Ed. 1068 ; Nishi mura Ekiu v. U. S., 142 U. S. 651, 12 Sup. Ct. 336, 35 L. Ed. 1146; Fong Yue Ting v. U. S., 149 U. S. 698, 13 Sup. Ct. 1016, 37 L. Ed. 905; Lem Moon Sing v. U. S., 158 U. S. 538, 15 Sup. Ct. 967, 39 L. Ed. 1082 ; Wong Wing v. U. S., 163 U. S. 228, 16 Sup. Ct. 977, 41 L. Ed. 140. A Chinaman, within the United States who resists deportation on the ground that he is an American born citizen may not be deported until the right to do so has been ascertained; Moy Suey v. U. S., 147 Fed. 697, 78 C. C. A. 85. It was considered that the case was radically different from that of a Chinese citizen who left the United States and was excluded on his return, in which case it was held that the decision of the im migration officers was final unless reversed by the Secretary of Commerce and Labor, and was not reviewable by the federal courts ; U. S. v. Ju Toy, 198 U. S. 253, 25
Sup. Ct. 644, 49 L. Ed. 1040.
The constitutionality of the power of the Secretary, in cases where the alienage is ad mitted, is settled; Nishimura Ekiu v. U. S., 142 U. S. 651, 12 Sup. Ct. 336, 35 L. Ed. 1146; and also that one who claims citizenship cannot resort to the courts before prosecuting an appeal to the Secretary; U. S. v. Sing Tuck, 194 U. S. 161, 24 Sup. Ct. 621, 48 L Ed. 917; as a citizen could not be excluded from the country except as a punishment for crime ; In re Sing Tuck, 126 Fed. 386; Lee Sing Far v. U. S., 94 Fed. 834, 35 C. C. A. 327; it may reasonably be contended that the determination of this constitutional right is a judicial and not an executive function, and therefore it is a question whether the de cision of an executive official upon it is due process of law ; Japanese Immigrant Case, 189 U. S. 86, 23 Sup. Ct. 611, 47 L. Ed. 721.
By section 3 of the Geary Act the burden of proving affirmatively his right to remain in the country rests upon a Chinaman who has been arrested for being here illegally and the act raising this presumption of guilt is valid; U. S. v. Chun Hoy, 111 Fed. 899, 50 C. C. A. 57; the presumption, it is said, should be viewed under the rule of evidence as to facts peculiarly within the knowledge of the accused; 11 Y. L. J. 262; and its harshness arose mainly from the penalty im posed by section 4 ; In re Sing Lee, 54 Fed. 334; Fong Yue Ting v. U. S., 149 U. S. 698, 13 Sup. Ct. 1016, 37 L. Ed. 905, which section was held unconstitutional; U. S. v. Wong Dep Ken, 57 Fed. 206.
See CHINA.