GILBERT, Circuit Judge.
The appellant, coming from China, and claiming to be the minor son of Chin Lung, a domiciled Chinese merchant, was denied admission to the United States for failure of proof of the mercantile status of his father. He appeals from the judgment of the court below, denying a petition in his behalf for habeas corpus. In the petition it was alleged that the evidence submitted before the Commissioner of Immigration and the Secretary of Labor, attesting the mercantile status of Chin Lung, was of such a conclusive character that to refuse to he guided thereby was abuse of official discretion. -The proof was that Chin Lung was a member of the firm of Qwong Sun Kee Company, engaged in general merchandise business in a small way at Monterey, Cal., and that, connected with the store and under the same roof were two rooms used for a restaurant and a lottery.
The ground on which Chin Lung was found not to be a merchant within the meaning of the Chinese Exclusion Act (Comp. St. § 4290 et sec.) was that a very considerable portion of his time was devoted to the lottery business. The report of Butler, immigration inspector, was that on visiting the premises he found Chin Lung in the lottery room, a room considerably larger than the store room, busily engaged in marking off the duplicate lottery tickets and receiving the cash, that several white persons were in the room, that upon questioning them they informed him that they had seen Chin Lung there oft and on when they had come in to buy tickets. The inspector also directed attention to the testimony of a. constable and a traffic officer of Monterey; the former testifying that he had found Chin Lung in the store and also found him in the lottery room selling lottery tickets .hack of the counter off and on during the past year, once a week or oftener, but he had not found him in the lottery room all the time. The traffic officer stated that he had found Chin Lung selling lottery tickets back of the Counter in the lottery room not less than a dozen times and perhaps more. Chin Lung testified that he had no connection with the lottery, that while he was there when the inspector called, he was there merely to take the place of the man who was ratming the lottery while the latter was out. The testimony was conflicting, and whether or not the decision of the Commissioner and the Secretary was against the weight of the evidence we are not called upon to decide. Certain it is that the evidence of the mercantile status of Chin Lung was not of such a conclusive ,character that to refuse to be guided by it was abuse of official discretion. In United States v. Ah Fawn (D. C.) 57 F. 591, it was held that the term “Chinese laborers” in the Exclusion Act is broad enough in its meaning and intent to inelude Chinese gamblers, and such is the generally accepted construction.
The appellant contends that the occasional activities of Chin Lung in conducting the lottery should not be held to deprive him of' the status of a merchant, and cites our decision in Ow Yang Dean v. United States, 145 F. 801, 76 C. C. A. 365. But in that case the manual- labor performed by the merchant was found to be only such as was connected with and necessary to the conduct of his business as such merchant and permissible within the express language of the statutory definition of the term “merchant,” whereas in the ease at bar the activities of Chin Lung in conducting a lottery business had no connection whatever with his occupation as a merchant, and there was evidence tending to show that the greater portion of his time was devoted to the lottery, and that his income was principally derived therefrom. The appellant cites Ng Fung Ho v. White (C. C. A.). 266 F. 765, to the proposition that a Chinese merchant, once domiciled as such within the United States, is not subject to deportation on the ground that he has abandoned his business as merchant and become a gambler. That decision has no bearing on the ease in hand, it being well settled that one who has once been lawfully domiciled within the United States as a Chinese merchant may not be thereafter deported as a laborer. Here the crucial question is whether or not Chin Lung was a merchant at the time when his minor son sought to enter the United States.
The judgment is affirmed. ■
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court conclude that it should defer to agency discretion? For example, if the action was committed to agency discretion. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".