111 F.2d 707 (9th Cir. 1940), 9325, Wong Kam Chong v. United States

Docket Nº:9325.
Citation:111 F.2d 707
Case Date:May 02, 1940
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 707

111 F.2d 707 (9th Cir. 1940)




No. 9325.

United States Court of Appeals, Ninth Circuit.

May 2, 1940

Appeal from the District Court of the United States for the Territory of Hawaii; S. C. Huber, Judge.

E. J. Botts, of Honolulu, T. H., for appellant.

Ingram M. Steinback, U.S. Atty., and John E. Parks, Asst. U.S. Atty., both of Honolulu, T. H., and Frank J. Hennessy, U.S. Atty., and Louis R. Mercado, Jr., Asst. U.S. Atty., both of San Francisco, Cal., for appellee.

Before GARRECHT, HANEY, and HEALY, Circuit Judges.

HANEY, Circuit Judge.

Appellant, a Chinese person, was arrested, 'found and adjudged to be one not lawfully entitled to be or remain in the United States' and ordered to be 'removed from the United States to the country whence he came', pursuant to 8 U.S.C.A. § 282. He appeals from the judgment to that effect.

Page 708

On December 17, 1900 there was recorded in the Bureau of Vital Statistics of the Territory of Hawaii a record of the birth on March 1, 1900 of 'Kam Chong Wong' to 'Wong Kai Sing', father, and 'Sen See', mother, in Palama, Honolulu, Territory of Hawaii.

Wong Kam Chong, the appellant, in 1922, being then in Hawaii, applied for a Certificate of Hawaiian birth before departing for the mainland of the United States. On September 18, 1922, he testified in answer to the questions of an Immigration Inspector, that his name was 'Wong Kam Chong'; that he was born in Palama, Honolulu, Territory of Hawaii, on December 17, 1900; that his father's name was 'Wong Kwai Sam'; that his mother's name was 'Sin She'; that his father died in 1908; that his mother died in 1903; and that his father's friend, Chun Wah Bun 'took care of' him after his father's death. Appellant presented a certified copy of the above-mentioned record of birth, and also two witnesses who were Chun Wah Bun and Chong Chung also called Chang Hing Tai. The latter testified that he lived near the place where appellant was born, and knew appellant during the first five years of his life. 'Chun Wah Pan' testified on September 22, 1922, that he had known appellant since he was born; that he saw him when he was a baby, and when he was about 7 or 8 years old; and that appellant lived with him after appellant's father's death. On September 27, 1922, a 'Certificate Of Hawaiian Birth' was issued to appellant.

On April 10, 1923, appellant, on his return from the mainland, was admitted into the Territory of Hawaii as 'Hawaiian born' and was given a 'Certificate Of Identity' dated April 12, 1923.

On January 26, 1929, appellant presented to the Immigration Service; his Certificate Of Identity for endorsement prior to a second trip to the mainland. His testimony then given, agreed with the testimony given in 1923, except that he gave as his father's name 'Wong Kwai Sam', and except as to the date of his birth, concerning which he testified:

'A. I am 29 years old born on March 1, 1900. There was a mistake in my statement before when I said I was born on December 17, 1900. I was really born March 1, 1900.

'Q. How did you happen to make that mistake before? A. On December 17th I was reported to the Board of Health but I was born on March 1st.'

He also testified that neither of his parents returned to China after his birth.

Appellant did not go to the mainland, but departed for China on October 16, 1930. He returned on January 29, 1931, and was admitted into the Territory of Hawaii.

Appellant was questioned on December 18, 1933, in connection with his application for a Certificate of Citizenship. He then testified that he was born on March 1, 1900; that his name was Wong Kam Chong, also known as Chung Wong; that his father was named Wong Kwai Sun, who died 'over' twenty years prior to that time; that his mother, Sin Shee, predeceased his father by five years; and that he expected to depart for China on January 5, 1933. On December 22, 1933, there was issued to appellant a 'Certificate of Citizenship'.

On November 10, 1938, appellant appeared as a witness for another applicant. He testified that his name was Wong Kam Chong, and that he had no other names and that he was born on March 1, 1900. He was then unable to remember his father's name and the examination was postponed until November 12, 1938, because of appellant's intoxication. On that day he testified that his name was Wong Kam Chong and that he had no other name; that he was born on March 1, 1900; that the birth certificate he had previously presented was his; that his father, Wong Kwai Sing had died about 30 years previously. He further testified as follows:

'Q. Describe your mother? A. Siu Shee, she went to China at the time my father's remains were sent to China and is now living in China but I don't know where.

'Q. How old is your mother? A. She is over sixty years old now.

'Q. Why don't you know where she is living in China? A. I don't know the address of my mother.

'Q. Did you live with your mother until she went to China about ten years ago? A. I meant that my mother's remains were disinterred and sent to China at the same time my father's were.

'Q. Is your mother living? A. No.

'Q. When and where did she die? A. She died in Honolulu when I was three years old.

Page 709

'Q. Where was she buried? A. In the same place where my father was buried here.

'Q. How old was your mother when she died? A. Slightly over thirty years old.

'Q. Did you visit her grave? A. Yes, when I was quite young.

'Q. Why didn't you visit her grave up until ten years ago? A. Because I didn't remember where her grave was located.

'Q. Were your father's grave and your mother's grave together or far apart? A. Far apart.'

On April 27, 1939, the complaint herein was filed. The testimony related above as contained in the immigration office was introduced into evidence. For appellee, Wong Chan, also known as Wong Kam Chong, Wong Kam Chang and Wong Kim Chang, testified that his father was Wong Kai Sing, also known as Wong Kwai Sing, and that sometimes 'Sing' was spelled 'Sang'; that his mother's name was Seu See or Sui See; that both his parents were living; that he possessed a copy of birth certificate which was introduced into evidence and which contained the same information as the one produced by appellant in 1922; and that such copy had always been considered by him and his family as a record of his birth.

The Registrar General of births, deaths, and marriages in the territory testified that the copy of birth certificate presented by appellant, and the copy of birth certificate presented by the witness Wong Chan, were taken from the same record. Wong Kai Sing then testified that Wong Chan was his son, and that the copy of birth certificate presented by his son, was a record of his son's birth. Wong Siu Shee then testified that Wong Chan was her son, and that appellant was not one of her sons.

The Clerk of the Supreme Court of the Territory of Hawaii testified that while he did not know where appellant was born, he believed appellant was the same person he had known since he (appellant) was three or four years old. Fong On testified that appellant's father was Wong Kwai Sung, and that he had known appellant since appellant was four or five years old. A Senator of the territorial legislature testified that he had known appellant since appellant was 15 or 16 years old, and had always thought of him 'as Hawaiian-born'.

Appellant testified that his name was Kam Chong Wong, and that his married name was Chung Wong; that the witnesses who had testified in 1923 (Chun Wah Bun and Chong Chung) as to his Hawaiian birth were both dead; that his father, Wong Kwai Sung, died in 1908 when he was eight years old, and that his mother, Siu Shee, died when he was three years old; that both his mother and father were buried at Pauoa, but that there was quite a distance between the two graves; and that the copy of birth certificate he had presented in 1923 referred to his birth. There was also testimony that the records of births in the Territory of Hawaii were incomplete.

It is provided in 8 U.S.C.A. § 284 that: 'Any Chinese person * * * arrested under the provisions of this chapter shall be adjudged to be unlawfully within the United States unless such person shall establish, by affirmative proof, to the satisfaction of such * * * judge * * * his lawful right to remain in the United States.'

The trial court found that appellant had failed to carry the burden of proof required by the statute, and entered the judgment of deportation from which this appeal was taken.

Appellant contends that the burden of proving the right to be admitted into the United...

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