Weedin v. Lee Fung , 64 F.2d 48 ( 1933 )

CAVANAH, District Judge.

Lee Fung, a Chinese who claims to have been bom in China, December 7, 1908, came from there on October 6, 1931, and applied for admission into the United States as a citizen of this country by virtue of being a foreign-born son of Lee Nong, a native-born citizen of the United States. He was denied admission by a Board of Special Inquiry and from which decision he appealed to the Secretary of Labor, who dismissed his appeal and directed that he be returned to China. Upon a petition for a writ of habeas corpus, he was discharged by the court below, and from such order this appeal is taken by the United States Commissioner. The American nativity and citizenship of the alleged father were conceded by the immigration officials, consequently if the appel-lee were his blood son he would be, under section 1993 of the Revised Statutes (8 USCA § 6), a citizen of the United States.

Therefore, the only question at issue is whether or not in refusing to concede the claimed relationship and denying appellee’s admission the immigration officials acted arbitrarily and unfairly, and were their acts in conflict with the principles of justice. The reason given by the immigration authorities as to why appellee was rejected are four discrepancies claimed to appear in the testimony.

First, as to the conflict between the sketches made by the' appellee and his father of the home village in China, for they differ in some respects as to the direction, size, number of inhabitants and dwelling houses, and a portion of the village not occupied by buildings being waste land. In the drawings one calls west east and the other calls east west, one of which is turned around. This difference might have occurred to any one who is familiar with the village. An examination of the sketches discloses that each named fifteen homes in the solid portion of the village in which they claimed to have lived, and agreed alike as to the inhabitants of every one of these buildings. This circumstance would show that they both had some knowledge of the village, although they may differ as to what portion is occupied by buildings and what is waste land.

Second, when the father was last in China he had a grocery store. He says that there are wooden shutters in the front of the store which can be opened and closed, and that back where the counters are there are glass windows. Petitioner says there are glass windows in the front part of the store. An apparent discrepancy exists there without a difference. It seems that the father’s store is located on the side of the Gai Noon river and as to its being possible to walk from their home to the store without crossing the river, both agree as to that.

Third, they both testified that the father owns twelve ows of rice land in China. They differ as to whether it is all in one piece. The petitioner thinks it is all in one piece, while the father says it is not. The father knows of other pieces he owns, and it may be possible that petitioner had in mind one of the other pieces.

Fourth, relates to the time of the death of appellee’s grandmother. They both say that the appellee never saw her, and when she died appellee only knows from what he has been told, which might have been incorrect.

These discrepancies are minor matters, collateral to the main issue of relationship, and are not sufficient evidence to overcome the proof of relationship as appears in the record. For it clearly appears that the father, in August, 3909, mentioned the appel-lee “Lee Foon (Fung), nine months old.” When the father was making a trip to China in August, 1912, he again mentioned his son “three years old,” and on his return from that trip in August, 1914, he again mentions him “six years old,” and in March, 1922, he again mentions appellee “now fourteen.” And at that time when a hearing was on he stated that he had three children born and that two had died, as we find he testified that: “(1) Lee Hen, boy; he would be about twenty years old but died of the flu in 1919; (2) Lee Fung, now fourteen, living in China, single; (3) Lee Ton would be eight years old if living; died in China of the flu in 3919.”

This information appears from the immigration records, and it is clear that the relationship claimed exists. There are other circumstances in the record where the father and the appellee agree, which go to establish that the relationship of father and son exists. These circumstances are undisputed, and when wo take the record as a whole we are satisfied that the lower court was correct in the conclusion reached that the appellee was the blood son of his father Lee Kong, which entitles him to admission into the United States.

Affirmed.