Kong Din Quong v. Haff , 112 F.2d 96 ( 1940 )

STEPHENS, Circuit Judge.

Appellant sought admission to the United States as a citizen thereof, basing his claim of citizenship' on § 1993 of the Revised Statutes, 8 U.S.C.A. § 6, which provides: “All children born out of the limits and jurisdiction of the United States, whose fathers may be at the time of their, birth citizens of the United States, are declared to be citizens of the United States; but the right of citizenship shall not descend to children whose fathers never resided in the United States.” His case was heard by a board of special inquiry appointed under § 17 of the Immigration Act of February 5, 1917, c. 29, 39 Stat. 887, 8 U. S.C.A. § 153. The board determined that appellant was not a citizen and should not be admitted. The Secretary of Labor upheld the determination of the board. Appellant then applied for a writ of habeas corpus. Upon denial of the writ by the District Court, appellant appeals to this court.,

Appellant was born in China and claims to be the son of Kong Ngok Wah. Kong Ngok Wah is conceded to be a citizen of the United States. The claimed father was also born in China of a native born citizen of the United States, and was first admitted to the United States on May 11, 1921. In order to establish appellant’s claimed citizenship, it was necessary for him to prove his alleged relationship to Kong Ngok Wah and also that he was born on or after May 11, 1921. Weedin v. Chin Bow, 274 U.S. 657, 675, 47 S.Ct. 772, 71 L.Ed. 1284.

To support his claim, appellant offered his own testimony, that of his alleged father, and that of his alleged maternal aunt, Jung Moy Ho. The testimony of these three witnesses was to the effect that appellant was horn on December 29, 1921, approximately eight months after Kong Ngolc Wah was first admitted to the United States. Thus, according to his claim, appellant would have lacked about two weeks of being 17 years of age at the time of his examination by the board of special inquiry on December 9 and 10, 1938.

At the hearing before the board of special inquiry it was decided to cause the appellant to be examined physically by medical examiners, for guidance in correctly determining his age. As a result of such physical examination, including X-rays, Dr. E. M. Townsend, Roentgenologist, certified that the applicant was probably over 24 years of age. Dr. E. C. Kading, A. A. Surgeon, U.S.P.H.S., Chief Medical Officer, Immigration Hospital, Angel Island, Calif., certified that he believed the applicant to be between 21 and 23 years of age or within one year either way of 22 years. Appellant was then given an opportunity for examination by a private physician, who submitted a statement to the effect that the appellant was “about 18 years of age”. The members of the board of special inquiry expressed their opinions as to the age of appellant as follows:

“Member Sims: After carefully observing the applicant during the time he has been before the board, and judging from his general bearing, facial expression, the maimer in which he has answered the questions, and his physical development, 1 believe him to be at least 19 years of age, American reckoning.”

“Member Oberg: After carefully studying the mannerisms, attitude, bearing, demeanor and physical development of the applicant before me, I believe he is between 18 and 20 years of age — surely not younger than 18 years of age, American reckoning, and probably slightly older.”

“By Chairman: After questioning this applicant during the examination, and noting his attitude, the timber of his voice, his demeanor and other points of observation, I am of the opinion that this applicant is between 19 and 20 years old, American reckoning.”

When the alleged father originally applied for admission to the United States in April, 1921, he claimed one son, whose name he gave as Kong Yee Gwong, then two years of age, Chinese reckoning. When preisivesligated in 1925, incident to a tj Ip which he was about to make back to his home, he claimed two sons, Kong Yee Gwong of the age of six years, and Kong Din Gwong, of the age of five years (Chinese reckoning). Upon returning from that trip two years later he gave the birth date of the older son, Kong Yee Gwong, as “C.R. 9-10-5” (November 15, 1920) and of Kong Din Gwong as “C.R. 10-12-1” (December 29, 1921). Appellant now argues that considering the testimony of appellant, his alleged father and his alleged aunt, and further considering the fact “that appellant’s age as claimed by and for him has been recorded in the files of the immigration department for approximately thirteen years” it would be arbitrary and unfair to reject such evidence.

We do not deem it necessary to discuss in detail the medical reports upon which the physicians based their estimates as to the appellant’s age. This court in the case of Hom Ark v. Carr, 1939, 9 Cir., 105 F.2d 607, decided that testimony such as that before the board in the instant case was sufficient to sustain the finding of the board that the applicant was over the age claimed for by him. We quote from the last cited case language which is apropos in the instant case (105 F.2d at page 610) : “Appellant assumes, erroneously, that the board’s decision was based entirely on the testimony of Drs. Smith and Evans. Appellant overlooks the fact, which the record discloses, that the examination of appellant by Drs. Smith and Evans was ordered by the board because of the board’s belief, based on observation of appellant, that he was older than he claimed to be. The testimony of Drs. Smith and Evans confirmed that belief.”

Appellant relies strongly on the undisputed fact that appellant’s claimed father was born on September 11, 1902, and hence was only 36 years of age at the time of the hearing in question. It is urged that in order to accept the findings of the medical examiners, it would mean a finding that the claimed father was from 12 to 15 years of age at the time of appellant’s birth. The simple answer to this argument, however, lies in the fact that the claimed father himself admitted that he had a son born on November 15, 1920, over a year prior to the claimed birth date of appellant. The finding of the board was not that the appellant was 24 years of age, but rather that “the applicant is considerably older than the claimed age and that he was born prior to May 11, 1921.”

It might well be that the board believed that the appellant was in fact the claimed father’s first born son. In this connection, we note the following excerpt from the proceedings before the board:

“Q. [to appellant] How many children has your father ever had? A. 4 sons; no daughters.

“Q. Describe them. A. Kong Yee Quong, 19 years, living at Ping San Village. I am the second; Kong Foon Quong, 13, now at Ping San Village; Kong Chun Quong, 11, now at Ping San Village.

“To Interpreter:

“Q. When I asked the question ‘Describe them’ in what manner did you ask the question and what was the applicant’s answer? A. I told the applicant to describe his oldest brother and he said, ‘Did you mean the second one.’ Then he seemed to ‘wake up’ and gave the name of the first one, and then gave the rest along the line.

“Q. Was he paying attention to you when you asked the first question, to name the oldest brother? A. Yes.

“Q. What did you mean by the term, ‘Wake up’? A. He realized what.he was saying and then changed.

“To Applicant:

“Q. Whát did you mean by answering the first question of the interpreter as to the name of your oldest brother, by stating ‘Did you mean the second one’? A. I don’t know why I did that:

“Q. Is that the only explanation you have to offer? A. Yes.”

It cannot be said that the board acted unfairly or abused its discretion.

Order affirmed.