"The Chief Justice and the associate justices of the Supreme Court assigned to each circuit, and the several district judges within each circuit, shall be competent to sit as judges of the circuit court of appeals within their respective circuits. In case the Chief Justice or an associate justice of the Supreme Court shall attend at any session of the circuit court of appeals, he shall preside. In the absence of such Chief Justice, or associate justice, the circuit judges in attendance upon the court shall preside in the order of the seniority of their respective commissions. In case the full court at any time shall not be made up by the attendance of the Chief Justice or the associate justice, and the circuit judges, one or more district judges within the circuit shall sit in the court according to such order or provision among the district judges as either by general or particular assignment shall be designated by the court: Provided, That no judge before whom a cause or question may have been tried or heard in a district court, or existing circuit court, shall sit on the trial or hearing of such cause or question in the circuit court of appeals. "44 It has been held that a Circuit Court of Appeals is legally constituted where is it composed of three District Judges of the Circuit regularly designated then to attend, in the absence of any Circuit Judge or Justice of the Supreme Court.45 "No appeal or writ of error by which any order, L. Garlick, C. C. A., 107 Fed. 542. Cf. §§ 592, supra. Where one party took a writ of error from the Supreme Court upon the question of jurisdiction and the other from the Circuit Court of Appeals upon the other questions, the Circuit Court of Appeals postponed the argument of the latter until after the former was decided. No. Pac. R. Co. v. Glaspell, C. C. A., 49 Fed. 482. See Pullman's P. C. Co. V. Central Transp. Co., 171 U. S. 138, 43 L. ed. 108; U. S. v. Jahn, 155 U. S. 109, 114, 39 L. ed. 87, 90. 44 Jud. Code, § 120, 36 St. at L. 1087. The disqualification arises when the judge has tried or heard any question upon which it is the duty of the Circuit Court of Ap peals to pass, including the validity. of a removal from a State court. Rexford v. Brunswick-Balke-Collender Co., 228 U. S. 339, 57 L. ed. —. Should counsel for the plaintiff in error or appellant concede that there was no error in the decision which a judge has made, the judge is not disqualified; but it is improper for the court to ask counsel whether an objection to the qualification of a judge or to the jurisdiction of the court is withdrawn, since such objection should be purely voluntary. Ibid. 45 Peters v. Hanger, C. C. A., 136 Fed. 181. Where the writ was granted solely on the ground that judgment, or decree may be reviewed in the Circuit Court of Appeals under the provisions of this act shall be taken or sued out except within six months after the entry of the order, judgment, or decree sought to be reviewed: Provided, however, that in all cases in which a lesser time is now by law limited for appeals or writs of error, such limits of time shall apply to appeals or writs of error, in such cases, taken to or sued out from the Circuit Courts of Appeals. And all provisions of law now in force, regulating the methods and system of review, through appeals or writs of error, shall regulate the methods and system of appeals and writs of error, provided for in this act in respect of the Circuit Courts of Appeals, including all provisions for bonds or other securities to be required and taken on such appeals and writs of error. And any judge of the Circuit Court of Appeals, in respect of cases brought or to be brought to that court, shall have the same powers and duties as to the allowances of appeals and writs of error, and the conditions of such allowances, as by law belong to the justices or judges in respect of other courts of the United States, respectively." 46 "Whenever, on appeal or writ of error or otherwise, a case coming from a District [or Circuit] Court shall be reviewed and determined in the Circuit Court of Appeals, in a case in which the decision in the Circuit Court of Appeals is final, such cause should be remanded to the said District [or Circuit] Court for further proceedings to be there taken in pursuance of such determination." 47 The Circuit Courts of Appeals, have power to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law.48 the Circuit Court of Appeals had failed to consider the case, the judgment was reversed and the case remanded to that court, with instructions to hear and decide the same. Lutcher & Moore Lumber Co. v. Knight, 217 U. S. 257, 54 L. ed. 757. 46 26 St. at L. 829, § 11. Such a court may grant an original application for the substitution of parties in a case there pending, without regard to the decision of the District 48 Jud. Code, § 262, 36 St. at L. 1087, re-enacting in substance, 26 St. at L. 827, § 12; supra, §§ 455467. The Circuit Courts of Appeals have no power to issue writs of mandamus to compel the District and Circuit Courts to dismiss suits for § 694. Appeals to the District Courts. By the Judicial Code "The district courts shall have appellate jurisdiction of the judgments and orders of United States commissioners in cases arising under the Chinese exclusion laws." The District want of jurisdiction; U. S. v. Swan, C. C. A., 65 Fed. 647; U. S. v. Severens, C. C. A., 71 Fed. 768; supra, § 686; nor to issue writs of certiorari as original process to review final judgments of the District or Circuit Court; Travis County v. King I. Br. & Mfg. Co., C. C. A., 92 Fed. 690; supra, § 460; nor to issue the writ of habeas corpus for service outside of the circuit, even, it has been held, to review a decision of a court of a Territory within its circuit, Re Boles, C. C. A., 48 Fed. 75; supra, §§ 461, 466. § 694. 1 Act of March 3, 1911, ch. 231, § 25, 36 St. at L. 1094, Comp. St. § 1007; see supra, § 463: "Any Chinese person, or person of Chinese descent, found unlawfully in the United States or its Territories, may be arrested upon a warrant issued upon a complaint, under oath, filed by any party on behalf of the United States, by any justice, judge, or commissioner of any United States court, returnable before any Justice, judge, or commissioner of a United States court, or before any United States court, and when convicted, upon a hearing, and found and adjudged to be one not lawfully entitled to be or remain in the United States, such person shall be removed from the United States to the country whence he came. But any such Chinese person convicted before a commissioner of a United States court may, within ten days from such conviction, appeal to the judge of the district court for the district. A certified copy of the judgment shall be the process upon which said removal shall be made, and it may be executed by the marshal of the district or any officer having authority of a marshal under the provisions of this section. And in all such cases the person who brought or aided in bringing such person into the United States shall be liable to the Government of the United States for all necessary expenses incurred in such investigation and removal; and all peace officers of the several States and Territories of the United States are hereby invested with the same authority in reference to carrying out the provisions of this act, as a marshal or deputy marshal of the United States, and shall be entitled to like compensation, to be audited and paid by the same officers." Act of Sept. 13, 1888, ch. 1015, § 13, 25 St. at L. 479, Comp. St. § 4313; U. S. v. Gin Dock Sue, 230 Fed. 657. This statute is still in force notwithstanding the subsequent provisions of the general Immigration Laws which provide for the deportation within five years after their entry into the United States of aliens unlawfully admitted. Such subsequent provisions apply to Chinese who have unlawfully entered this country within the specified time, and in proceedings thereunder instituted, there is no appeal to the District Court, except by means of the writ of habeas corpus as herein before described. Supra, § 463. U. S. ex rel. Toy Gwok Chee v. Prentis, C. C. A., 202 Fed. 65; Ex parte Woo Shing, 226 Fed. 141; U. S. ex rel. Lem Him v. Prentis, 230 Fed. 935. But see Ex parte Woo Jan, 228 Fed. 927. A Chinaman who has been in the United States more than five years can not be deported except in pursuance of the Act of September 13, 1888, ch. 1015, § 13, 25 St. at L. 479, Comp. St. § 4313; Ex parte Tom Yuen, 230 Fed. 656. It has been held that the appeal to the District Judge does not stay the proceedings and that an order staying the execution of the judgment of the commissioner is necessary for a supersedeas. Re Ah Toy (N. D. Cal.), 45 Fed. 795. Contra, U. S. v. Lee (W. D. Tenn.), 184 Fed. 651. Pending an appeal to the District Judge or Court from an order of deportation, an alleged Chinese may be admitted to bail. U. S. v. Yee Yet, 190 Fed. 577. The order must be in the district where the Chinese is residing, not to another to which he is taken after his arrest. U. S. v. Chin Tong, 192 Fed. 485. appeal to the district judge is tried de novo and not on the record made before the commissioner. U. S. v. Wong Ock Hong, 179 Fed. 1004; U. S. v. Lee, 184 Fed. 651; U. S. v. Chin Sing Quong, C. C. A., 224 Fed. 752. The failure of the commissioner to certify his judgment to the District Court is not a jurisdictional defect. The court is authorized to require him to do so. Ibid. In the absence of rules upon the subject, the notice of appeal should be in writing; it should be filed with the clerk of the court, a duplicate served on the commissioner and another copy upon the United States attorney for the district. Re Ah The Toy, 45 Fed. 795. The entitling of the notice of appeal in the District Court and not before the commissioner, when the same was left with the commissioner, is not a jurisdictional defect. Ibid. No order allowing the appeal is required. Ah Toy, 45 Fed. 795. The deportation proceedings are civil, not crim ́inal. Re Chin Wah, 182 Fed. 256; Woo Jew Dip v. U. S., 192 Fed. 471. Re But the Chinaman is entitled to due process of law. McDonald v. Siu Tak Sam, C. C. A., 225 Fed. 710. A denial of the right to counsel may be strong evidence that he was denied a fair hearing. Jeung Bow v. U. S., C. C. A., 228 Fed. 868. See supra, § 463. The illegality may be established by a preponderance of evidence and need not be proved beyond a reasonable doubt. Woo Jew Dip v. U. S., 192 Fed. 471. By the Act of May 5, 1892, § 3, "any Chinese person or persons of Chinese descent arrested under the provisions of this Act, or the acts hereby extended, shall be adjudged to be unlawfully within the United States, unless the person shall establish by affirmative proof, to the satisfaction of such justice, judge or commissioner, his lawful right to remain in the United States." 27 St. at L. 25. Ex parte Lung Wing Wun, 161 Fed. 211; U. S. v. Fong Sen., 205 Fed. 398. It has been held that the Government has the burden of proof that the person sought to be deported is Chinese or of Chinese descent and not of the exempt class, and that an affidavit by a Government inspector making such a charge is not evidence upon the hearing. U. S. v. Lee, 184 Fed. 651; Ex parte Loung June alias Leong Jun, 160 Fed. 251. After such proof has been made, a Chinese gains no rights by standing mute. U. S. v. Chin Ken, 183 Fed. 332; aff'd Chin Ken v. U. S., C. C. A., 191 Fed. 817. Such affirmative proof by the testimony of Chinese alone, although their evidence is received with caution, U. S. v. Chin Sing Quong, C. C. A., 224 Fed. 752. The testimony of the alien as to the place of his birth is incompetent, Lee Sim v. U. S., C. C. A., 218 Fed. 432; but, since pedigree or descent can be proved by hearsay his testimony that his father told him he was born in the United States was received. U. S. v. Lem You, 224 Fed. 519. Testimony that he is a merchant without any statement of the facts, was disregarded as a conclusion. U. S. v. Chin Sing Quong, 224 Fed. 752. It has been said that he must establish his citizenship beyond a reasonable doubt. Moy Guey Lum v. U. S., C. C. A., 211 Fed. 91. It has been held that a Chinese within the United States cannot be arrested without a warrant based upon prima facie proof that he is unlawfully within the United States. U. S. v. Hom Lim, 214 Fed. 456. The statutory certificate given to a Chinese before his temporary return to China for a visit in the absence of fraud is conclusive evidence of the facts therein set forth in pursuance of the statute. U. S. v. Moy Nom, 249 U. S. 772. When it is not produced the burden of proving its previous existence and loss is upon the Chinaman. Lau Lau v. U. S., C. C. A., 223 Fed. 768. But see U. S. v. Hom Lim, 214 Fed. 456. A written translation by an interpreter of a statement made by a Chinese upon an examination in his presence sub sequent to the arrest, was held to be admissible in evidence, although the interpreter did not testify that he could not recollect what was said without referring to the writing. Guan Lee v. U. S., C. C. A., 198 Fed. 596. Statements in the opinion of the commissioner cannot be considered as evidence. Lew Ling Chong v. U. S., C. C. A., 222 Fed. 195. It has been held: that a previous decision of the Department that a Chinese should be deported, must be followed in a subsequent proceeding. Ex parte Lung Foot, 174 Fed. 70; but that decisions of the Department refusing to direct a deportation were not conclusive in subsequent proceedings. Ex parte Stancampiano, 161 Fed. 164; U. S. v. Lim. Jew, 192 Fed. 644. A previous decision of a commissioner and that of an immigration inspector, which has been affirmed on appeal, must be followed in a subsequent proceeding, Ex parte Lung Foot, 174 Fed. 70; see Tama Miyake v. U. S., C. C. A., 257 Fed. 732; although by the State law executions in civil cases expire at the end of a year unless renewed. Ex parte Wong Wing, 220 Fed. 352. But a person who relies upon such a judgment must prove that he was the person therein named and described. Ex parte Long Lock, 173 Fed. 208. A decision as to the right of the Chinese to enter the United States or remain therein, made under a former statute, is not conclusive as regards the new grounds for exclusion created by subsequent litigation. Ex parte Loung June alias Leong Jun, 160 Fed. 251; U. S. v. Lim Jew, 192 Fed. 644, aff'd. Lim Jew v. U. S., C. C. A., 196 Fed. 736. A judgment by a District Court |