Wong Wing Foo v. McGrath

• Decision Date: 28 April 1952
• Docket Number: No. 12986.,12986.
• Citation: 196 F.2d 120
• Parties: WONG WING FOO v. McGRATH, Atty. Gen. of the United States.
• Court: U.S. Court of Appeals — Ninth Circuit

196 F.2d 120 (1952)

WONG WING FOO v. McGRATH, Atty. Gen. of the United States.

No. 12986.

United States Court of Appeals Ninth Circuit.

February 14, 1952.

As Amended on Denial of Rehearing April 28, 1952.

Chow & Sing, San Francisco, Cal., for appellant.

Chauncey Tramutolo, U. S. Atty., Edgar R. Bonsall, Asst. U. S. Atty., San Francisco, Cal. (A. W. Hargreaves, M. M. Levine, Adjudication Section Immigration and Naturalization Service, San Francisco, Cal., on the brief), for appellee.

Before: DENMAN, Chief Judge, ORR, Circuit Judge, and LEMMON, District Judge.

DENMAN, Chief Judge.

This is an appeal from a judgment in a suit brought under 8 U.S.C.A. § 903 for a judgment declaring appellant, plaintiff below, hereafter called plaintiff, to be a national of the United States. The district court held him not to be the son of one Wong Yem, an American citizen, and hence not entitled to enter the United States under the provisions of 8 U.S.C.A. § 601(c).

Plaintiff was born in China in 1928 and resided there until his voyage to San Francisco, California, where he arrived November 28, 1948. Upon presenting a passport from the American Consulate General at Hongkong he was denied his claimed right as an American citizen to enter at once and was held in detention by the immigration authorities. Instead of filing at once the instant suit under § 903 he waited until after the immigration authorities had determined in a proceeding under 8 U.S.C.A. § 153 before a board of special inquiry that he was not the son of Wong Yem.

Plaintiff here contends that the district court erred in not treating the instant § 903 proceeding as an independent action, but instead as a review of the special board of inquiry proceeding in which the evidence before that board was considered with other evidence taken before the district court. That is to say, the court below regarded the § 903 proceeding as though it were a review trial de novo. We can find nothing in the language of § 903 warranting treating the action there provided as anything other than an independent action which plaintiff could have brought as soon as the immigration officials refused to accept his passport and to allow him to enter. Such an action brought at once could not have its independent character changed by a subsequent administrative proceeding under § 153.

The pertinent portion of § 903 reads: "If any person who claims a right or privilege as a national of the United States is denied such right or privilege by any Department or agency, or executive official thereof, upon the ground that he is not a national of the United States, such person, regardless of whether he is within the United States or abroad, may institute an action against the head of such Department or agency in the District Court of the United States for the District of Columbia or in the district court of the United States for the district in which such person claims a permanent residence for a judgment declaring him to a national of the United States. * * *"

Nothing in the above text suggests that the "action * * * for a judgment declaring him to be a national" is to succeed some prior administrative proceeding. This section is largely invoked where there has been no administrative proceeding at all. Such is the case where the Department of State refuses to give a passport, Perkins v. Elg, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320; Podea v. Acheson, 2 Cir., 179 F.2d 306; or where a consul refuses to register a person as a United States national, Acheson v. Mariko Kuniyuki, 9 Cir., 189 F.2d 741; or refuses to allow a person claiming American citizenship to come to this country, Acheson v. Yee King Gee, 9 Cir., 184 F.2d 382; or where American citizens acting under claimed duress have filed with the Attorney General notices of their renunciation of citizenship and then later seek to have them set aside, McGrath v. Tadayasu Abo, 9 Cir., 186 F.2d 766. In none of the above cases is the § 903 action a trial de novo. There has not been anything tried by the Department of State or of Justice to be tried again as on appeal or review.

We do not think the independence of the 903 action is lost in other cases where the denial of the "right or privilege" is preceded by a hearing at which findings are made and a decision reached. The right to citizenship is a priceless thing and Congress in enacting § 903 in 1940 well could have decided that citizenship should not be denied one possessing it, by an administrative proceeding such as 8 U.S.C.A. § 153, first enacted in 1917, in which the right to any counsel is denied and mere hearsay evidence which may be determinative is admissible, Gung You v. Nagle, 9 Cir., 34 F. 2d 848; Jung Yen Loy v. Cahill, 9 Cir., 81 F.2d 809, and in which the finding as to citizenship is deemed final, United States v. Ju Toy, 198 U.S. 253, 25 S.Ct. 644, 49 L.Ed. 1040.

At the trial below plaintiff and Wong Yem, his alleged father, a citizen, testified and the testimony they gave before the board of special inquiry was also admitted with the consent of the plaintiff. From the testimony of these two witnesses the court well could have found that the plaintiff was the son of Wong Yem. The court, proceeding on its theory that the action was a review de novo of the board's order treated the testimony of one Wong Gong, an alleged uncle of the plaintiff, as before it and based its adverse decision upon that testimony. We think Wong Gong's testimony was not before the court merely because it was taken in the proceeding before the board of special inquiry.

The defendant appellee further contends that Wong Gong's testimony is admissible hearsay under certain exceptions to the hearsay rule. We think not. Wong Gong was in San Francisco at the time of the trial and available to be summoned as a witness. Hence his testimony before the Board of Special Inquiry, though between the same parties and on the same issue, is not admissible as the exception to the hearsay rule where such a witness is dead or otherwise not available. Smythe v. Inhabitants of New Providence Township, 3 Cir., 263 F. 481.¹

Admission of the hearsay testimony of the alleged uncle is also sought under 28 U. S.C. § 1733:

"§ 1733. Government records and papers; copies

"(a) Books or records of account or minutes of proceedings of any department or agency of the United States shall be admissible to prove the act, transaction or occurrence as a memorandum of...