This is an appeal from a decision of the United States District Court for the Western District of New York holding that the appellant is a Chinese laborer having entered the United States from .Canada and being unlawfully within the United States. Upon these findings appellant was ordered deported to China.

The controversy here turns upon a question of fact. The appellant seeks to remain, in this country upon the theory that he was born in San Francisco in 1876 and lived there until he was 9 years of age, when he went to China -and lived there 20 years, returning to San Francisco about 9 years prior to his examination. His testimony is not at all persuasive.

[1] The burden was upon him to prove that he was bom in the United States and he has failed to sustain it. The commissioner and the District Judge passed upon the questions here involved and agree as to the main proposition, viz. that the proof fails to sustain appellant’s contention that he was born in the United States.

[2] The burden was upon him to prove this contention, and it would be contrary to the long-established rule in this court that, upon questions of fact as to the place of birth of Chinese persons, we will not substitute our opinion for that of the commissioner and Judge, especially when they have seen and heard the witnesses.

The judgment and order of deportation are affirmed.