Shew v. Dulles

• Decision Date: 04 February 1955
• Docket Number: No. 13808.,13808.
• Citation: 219 F.2d 413
• Parties: LY SHEW, as guardian ad litem of Ly Moon and Ly Sue Ning, Appellant, v. John Foster DULLES, as Secretary of State of the United States, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

219 F.2d 413 (1954)

LY SHEW, as guardian ad litem of Ly Moon and Ly Sue Ning, Appellant, v. John Foster DULLES, as Secretary of State of the United States, Appellee.

No. 13808.

United States Court of Appeals, Ninth Circuit.

December 30, 1954.

Rehearing and Rehearing Denied February 4, 1955, and March 3, 1955.

Stanley J. Gales, Sacramento, Cal., for appellant.

Lloyd H. Burke, U. S. Atty., Charles Elmer Collett, Asst. U. S. Atty., Morton M. Levine, Immigration & Naturalization Service, San Francisco, Cal., for appellee.

Before DENMAN, Chief Judge, and MATHEWS and BONE, Circuit Judges.

Rehearing and Rehearing in Banc Denied February 4, 1955, and March 3, 1955.

MATHEWS, Circuit Judge.

On or before November 8, 1950, the United States District Court for the Northern District of California appointed Ly Shew as guardian ad litem of a boy who called himself and claimed to be Ly Moon and is hereafter called Moon. On November 8, 1950, Moon, by his guardian ad litem, Ly Shew, instituted an action¹ in the District Court against Dean Acheson, as Secretary of State of the United States, for a judgment declaring Moon to be a citizen and national of the United States.

On or before January 11, 1952, the District Court appointed Ly Shew as guardian ad litem of a girl who called herself and claimed to be Ly Sue Ning and is hereafter called Ning. On January 11, 1952, Ning, by her guardian ad litem, Ly Shew, instituted an action² in the District Court against Secretary Acheson³ for a judgment declaring her to be a citizen and national of the United States.

The Secretary answered the complaints,⁴ the actions were consolidated, a trial was had, an opinion⁵ was filed, findings of fact and conclusions of law were stated, and on February 18, 1953, a judgment was entered denying the relief sought by Moon and Ning. From that judgment this appeal was taken on March 18, 1953.

The appeal was heard on July 16, 1954. On August 18, 1954, this court (Judge Bone dissenting) entered a judgment reversing the judgment appealed from and directing the entry of a judgment for Moon and Ning. On September 17, 1954, the Secretary filed a petition for rehearing. Upon consideration thereof, this Court (Judge Denman dissenting) has today vacated its judgment of August 18, 1954, and denied the petition for rehearing.

Jurisdiction of these actions was conferred on the District Court by 8 U.S.C. A. § 903,⁶ which provided: "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 be a national of the United States. * * *"

Moon and Ning were born in China and, up to the time the actions were instituted, had not entered the United States. The Secretary therefore contends that the District Court had no jurisdiction under § 903. There is no merit in this contention. See Fong Wone Jing v. Dulles, 9 Cir., 217 F.2d 138; Chow Sing v. Brownell, 9 Cir., 217 F.2d 140; Brownell v. Lee Mon Hong, 9 Cir., 217 F.2d 143; Lee Wing Hong v. Dulles, 7 Cir., 214 F.2d 753.

Moon's complaint alleged, in substance, that he was born in China on October 18, 1933; that Ly Shew was his father; that Ly Shew was a citizen of the United States at the time of Moon's birth and had resided in the United States since July 15, 1912; and that Moon was therefore a citizen of the United States under § 1993 of the Revised Statutes.⁷ Ning's complaint alleged, in substance, that she was born in China on January 26, 1937; that Ly Shew was her father; that Ly Shew was a citizen of the United States at the time of her birth and had resided in the United States since July 15, 1912; and that she was therefore a citizen of the United States under § 1993 of the Revised Statutes.⁸ Thus, in effect, the complaints alleged that Moon and Ning were nationals as well as citizens of the United States; for, although all nationals of the United States are not citizens thereof, all citizens thereof are nationals thereof.⁹

The answers denied that Ly Shew was the father of Moon and Ning, thus, in effect, denying that Moon and Ning were citizens or nationals of the United States. On the issues thus raised, Moon and Ning had the burden of proof,¹⁰ which is to say, the burden of proving that Ly Shew was their father.

Moon and Ning appeared at the trial and, by their guardian ad litem, Ly Shew, introduced evidence¹¹ some of which tended to show that Ly Shew was the father of persons known as Ly Moon and Ly Sue Ning and that Moon and Ning were those persons. Some of the evidence so tending was uncontradicted. However, the District Court was not required to believe such evidence or to accept it as true.¹²

The District Court found: "That the persons Moon and Ning who call themselves Ly Moon and Ly Sue Ning and who claim to be the plaintiffs herein and who claim to be the children of Ly Shew have failed to introduce evidence of sufficient clarity to satisfy or convince this Court that Ly Shew is the natural blood father of the persons known as Ly Moon and Ly Sue Ning * * * or that the persons Moon and Ning who appeared before this Court claiming to be Ly Moon and Ly Sue Ning are in truth and fact Ly Moon and Ly Sue Ning." Thus, in effect, the District Court found that Moon and Ning had not sustained their burden of proof.

However, it appears from the District Court's opinion,¹³ that the District Court proceeded on the theory that the burden of proof resting on Moon and Ning was different from and heavier than the ordinary burden of proof resting on plaintiffs in civil actions — a theory which was and is untenable.¹⁴ We hold that Moon and Ning's burden of proof was the ordinary one. As to whether they sustained that burden, we express no opinion.

The judgment is vacated and the causes are remanded with directions to make findings as to whether Ly Shew was the father of Moon and Ning, such findings to be made in the light of this opinion,¹⁵ and thereupon enter such judgment as may be proper.

DENMAN, Chief Judge (dissenting).

I. The Denial of Due Process and Need for Rehearing En Banc.

The proceeding before us is the consideration of a petition for rehearing. Instead, the majority opinion and decision treat it as a petition for reversal of our then existing decision without hearing and without reply. The majority's decision is in gross violation of the principles of due process to which Ly Shew is entitled. It should be reviewed en banc.

We decided this case with a reversal ordering judgment to be rendered for Ly Shew, requiring the admission of his son and daughter to join their parents and their sister in the United States. Dulles filed a petition for rehearing. Our Rule 23 does not require such a petition to be served on the successful litigant nor for a brief or other opposition to it. All Ly Shew is required to do is to wait to see whether the petition is granted. If granted, Ly Shew for the first time is required to meet the contentions and authorities upon which the rehearing is granted.

The petition consists of several contentions never considered in the opinion in favor of Ly Shew. It relies upon over eighteen federal decisions, never cited in Dulles' brief on appeal.

Upon these contentions and cases the majority opinion reverses our decision in favor of Ly Shew, without granting him any opportunity to reply to them. No clearer case of denial of due process is conceivable.

II. The Failure to Consider the Facts as in Mah Gong v. Brown, 9 Cir., 209 F.2d 448, in View of the District Court's Statement that Under the Usual Burden of Proof it is Required to Decide for Ly Shew.

Assuming, however, that a rehearing en banc is not granted, I further dissent from the opinion's failure to consider the appeal under the principles established in our decision in Mar Gong v. Brownell, 9 Cir., 209 F.2d 448, 453, where, as here, the opinion directed the lower court to make findings as to paternity "in the light of what is said in this opinion."

In the Mar Gong case we gave an extended review of the evidence and the trial court's disposition thereof, covering nearly five pages of the Federal Reporter. Such a review here is of greater importance since the district court's opinion is based upon a too heavy burden of proof on Ly Shew, the court stating that if the ordinary burden of proof is applied it will be compelled to "issue a rubber stamp decree admitting the plaintiffs" in this case and many other cases. It is only by the wrongful application of the clear and convincing rule, held invalid in the Mar Gong case, that the court found against Ly Shew and his children, that finding being: "II. The persons who claim to be plaintiffs have failed to introduce evidence of sufficient clarity to satisfy or convince this Court that Ly Shew is the natural blood father of persons known as Ly Moon and Ly Sue Ning, or that the persons who appeared before this Court claiming to be plaintiffs Ly Moon and Ly Sue Ning are in truth and fact Ly Moon and Ly Sue Ning." (Emphasis supplied.)

The evidence upon which the district court states that applying the ordinary rule of burden of proof it is required to "admit plaintiffs," the boy and the girl, to citizenship to join their citizen sister in the United States amply supports the court's conclusion. As in the Mar Gong case all of it was given through interpreters. It is as follows:

1. Ly Shew testified that appellants were his children. He said Ly Moon, the boy, was born while he was in China on a visit and that Ly Sue Ning, the girl, was being...