Ward v. Flynn ex rel. Yee Gim Lung , 74 F.2d 145 ( 1934 )

MORTON, Circuit Judge.

This is an appeal by the Commissioner of Immigration from a decree of the District Court in habeas corpus proceedings which held, in effect, that Yee Gim Lung, who will be referred to as the petitioner, had so clearly established his status as an American citizen and his right to enter this country that the denial of his claim by the immigration tribunals was arbitrary and unfair; and the court accordingly discharged the petitioner. It was conceded by the immigration tribunals that the American citizenship of the alleged father was established.

The only question in dispute was the alleged relationship. The evidence on this point was given by the applicant, by his alleged father, and by an alleged older brother who was admitted in 1931. All of them testified that the applicant was the son of Yee Hop and was born in the village of Bow Ben, China, in December, 1911, a few months after his father had left there to return to this country. The alleged father testified that he was informed of the applicant’s birfh by a letter from his wife written a few months afterwards, and that he had never seen him until he arrived here on the present occasion. Naturally lie knew very little about the applicant. The main witness for tbe applicant was his alleged older brother. Both of them were examined at great length and with much detail as to their home, family, village, and surroundings in China. While on a few points their testimony was not in strict accord, they agreed so closely on such a multitude of details as to leave no room for doubt that both were talking about the same village and people. In the proceedings in connection with the admittance of the older brother, Yee Shong Loong, in 1931, the present applicant was referred to by the older brother and by the alleged father as a younger brother then living in China; and an apparently disinterested witness testified that he had seen the applicant at the family home there in 1926.

The essence of the decision by .the immigration tribunals is that the evidence for the applicant shows sufficient indications of being a fabricated conspiracy to warrant rejecting his claim. If so, the conspiracy must have been formed as early as 1931 and have been participated in by the witnesses in the brother’s ease. The only substantial piece of evidence impeaching the applicant’s case was a statement made by the alleged father in an official proceeding relating to another person, not a member of his family, in 1913, when, according to the department record, he testified that he had only one son. At that time the applicant would have been about one and one-half years old, and the father, according to his testimony, was well aware that he had two sons. The point had no relevancy whatever to the matter then in hearing. No importance was placed on it at that time. There is only a single question and answer relating to it in the record. The testimony of the older brother, and of the disinterested witness in the brother’s case stand unimpeached.

The law on this subjéet is familiar, and it is unnecessary to cite authorities. Tribunals which undertake to ascertain facts must proceed on evidence or on the personal knowledge of their' members. They have no other way of getting at the truth. Of course, they are not obliged to accept every statement which is sworn to or to disregard inherent improbability; tribunals of administrative character may get at the facts in any way they see fit within the bounds of reason and fairness. Where the proceedings are of a, sort in which deception and fabrication are often attempted, a suspicious attitude towards them is not unreasonable. But, to reject sworn, consistent, unimpeaehed, and uneontradicted testimony, there must be a real reason which would be regarded as adequate by fair-minded persons. The single statement of the alleged father, appearing in a record made many years ago through an interpreter, and perhaps mistakenly taken down, concerning a matter not at that time in issue, which is in variance with his later testimony in both this and an intermediate proceeding and with the testimony of three other witnesses, one of them apparently disinterested, does not seem to us to be sufficient ground for a fair-minded person to conclude that the ease is fabricated and fraudulent. The decisions relied on by the government were made on facts much stronger against the testimony offered than those in the present ease.

The decree of the District Court is affirmed.