Lew Moon Cheung v. Rogers, 16450.

Decision Date29 October 1959
Docket NumberNo. 16450.,16450.
Citation272 F.2d 354
PartiesLEW MOON CHEUNG, Appellant, v. William P. ROGERS, as Attorney General of the United States, et al., Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Robert K. Grean, Beverly Hills, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., James R. Dooley, Richard A. Lavine, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before BARNES, HAMLEY and JERTBERG, Circuit Judges.

JERTBERG, Circuit Judge.

Lew Moon Cheung appellant instituted this action against the Attorney General of the United States for a judgment declaring him to be a national of the United States.1 Appellant claims citizenship pursuant to the provisions of Section 1993, Revised Statutes of the United States, as amended by Section 1 of the Act of May 24, 1934, 48 Stat. 797.2

After trial without a jury judgment was entered for defendant appellee. Timely appeal from this judgment was filed, and this Court has jurisdiction to review the final decision of the district court under Title 28 U.S.C.A. §§ 1291 and 1294(1).

On this appeal appellant specifies as errors the admission of evidence pertaining to blood grouping tests, and the alleged failure of the district court to apply the proper standard of proof.

The facts of the case are not in dispute. Appellant was born on January 28, 1936, in China. He claimed his father to be Lew Shung, who was admitted to the United States as a citizen thereof on or about January 25, 1922, and his mother to be Chew Wai Ying, who married Lew Shung on March 21, 1929, and was admitted to the United States in 1951. The citizenship of Lew Shung has not been challenged. Appellant claims to be the third of five sons, including Lew Moon Chung, born in China to Lew Shung and Chew Wai Ying.

Appellant submitted to a blood test in Hong Kong on applying for admission to the United States. His alleged brother Lew Moon Chung applied at or about the same time, and was likewise blood tested in Hong Kong. Appellant was admitted to the United States as a citizen on January 26, 1952, at Honolulu, Hawaii, and on May 23, 1952, the United States Department of Justice issued to him certificate of citizenship No. AA-24951. In the interim, and in or about February 1952 the American Consul at Hong Kong requested a blood test of Lew Shung and Chew Wai Ying in furtherance of the application for admission to the United States of appellant's alleged brother, Lew Moon Chung. The then counsel Miss Kathleen Parker, Attorney at Law for Lew Shung and Chew Wai Ying, in reply to such request, objected to her clients undergoing blood tests because of the expense which would be involved, and because of the Consul's refusal to issue travel documents in other cases in which the blood test was found to be favorable. This reply letter, however, contained the following concluding paragraph:

"Under the circumstances, it would seem useless for Mr. Lew Lew Shung to incur this additional expense if the Consul does not regard the blood test as evidence of paternity and may still refuse to issue the travel document. However, Mr. and Mrs. Lew are quite willing to make a sacrifice and incur the additional expense if the Consul will accept a favorable result of the test as sufficient proof of paternity and will issue a travel document to his son, Lew Moon Chung, upon this additional evidence provided it is favorable."

By letter dated April 8, 1952 the American Consulate General, Hong Kong, advised Miss Parker that it was the intention of the Consulate in requesting blood tests of Mr. and Mrs. Lew to conclude the investigations in the case of Lew Moon Chung and to issue travel documentation to him promptly should the results of the blood tests be found favorable.

On or about April 29, 1952, appellant's alleged parents were given blood grouping tests at the United States Public Health Service, San Pedro, California, in connection with the application of Lew Moon Chung to enter the United States.

By letter dated May 7, 1952, addressed to the American Consulate General, Hong Kong, Miss Parker stated that immediately upon receipt of the Consulate letter of April 8, 1952, "arrangements were made with the Immigration and Naturalization Service for the blood tests which you requested and I have been advised by that Service that the results of the tests are being airmailed to your office."

It appears that Lew Shung and Chew Wai Ying were transported from their home to the United States Public Health Service at San Pedro, California a distance of some 20 miles on April 29, 1952 by an officer of the Immigration and Naturalization Service. Lew Shung and Chew Wai Ying testified that they were advised by such officer that they were required to take the blood test; that they did not submit to such blood tests voluntarily and only did so because of the advice given to them by such Immigration officer, and under the belief that they were required by law to do so.

On November 17, 1957 appellant was given a blood grouping test pursuant to order of the district court.

Evidence was received by the district court showing the result of the blood grouping test given appellant, the admissibility of which was not questioned in the district court and is not questioned on this appeal. Evidence was likewise received by the district court showing the results of the blood grouping tests given Lew Shung and Chew Wai Ying on April 29, 1952. Appellant claims error in the admission of the results of such tests.

The results of the blood grouping tests are Alleged father: Lew Shung blood grouping AB Alleged mother: Chew Wai Ying blood grouping B Appellant: Lew Moon Cheung blood grouping O

On or about September 17, 1956, appellant was served with a notice by the District Director of the Immigration and Naturalization Service of his intention to cancel the certificate of citizenship of appellant on the ground that it was fraudulently obtained.

On or about December 19, 1956, the Acting District Director of the Immigration and Naturalization Service entered an order cancelling appellant's certificate of citizenship No. AA-24951. On or about March 25, 1957 this order was affirmed by the Acting Regional Commissioner, Southwest Region, Immigration and Naturalization Service. On April 18, 1957, appellant instituted this action in the district court. The district court found that, based upon the blood tests set forth above, appellant "cannot possibly be the child of his alleged father."

The two questions presented for review on this appeal are (1) Did the district court err in admitting in evidence results of the blood grouping tests given appellant's alleged parents on April 29, 1952? (2) Did the appellee rebut appellant's prima facie case by clear, unequivocal and convincing evidence? We will consider these questions in the order in which they are stated.

There is no doubt that blood grouping tests were given Lew Shung and Chew Wai Ying on April 29, 1952 at the United States Public Health Service, San Pedro, California. Both parties so testified in the district court. Original records of the United States Public Health Service at San Pedro, California, purportedly relating to Lew Shung and Chew Wai Ying, were received in evidence. These records consisted of two groups of three documents each, one purportedly relating to Lew Shung and the other purportedly relating to Chew Wai Ying. Prior to their receipt in evidence Mrs. Catherine Fay Wood testified that she was the registrar of the United States Public Health Service at San Pedro, California, and had been such for more than ten years; that the two groups of documents were records of the United States Public Health Service at San Pedro, California; that one document in each group was a form regularly used in the Public Health Service at San Pedro, California, and was described by the witness as an "outpatient card" which is made out when a person applies for examination. The pertinent printing and typing on one of these cards appears as follows:

                  Shung, Lew       (Male)      49      W     444 S. Los Angeles St
                   (Surname)    (Given name)  (Age)  (Race)  Los Angeles, Calif.  IMM
                                                                 Address       (Class of
                                                                               beneficiary)
                  Admitted    4-29-52  2:15 p. m.  Form I-114, U. S. Immigration Service
                               (date)   (hour)                 Terminal Island
                  cc: Blood typing — C-A-B-AB, M-N and RH            Report to be
                                                                     mailed to U. S
                                                                     Immigration Service —
                                                                     4 copies
                                                            ___________________________
                                                                Patient's signature
                  PHS-1299 (HD)
                  Rev. 8-49
                  Federal Security Agency
                  Public Health Service                     _________________ Surgeon, U. S
                                                                              P.H.S.
                

In ink handwriting on this card in the space below "patient's signature" appears the following, "Sent to lab for blood typing" then the initials "L.G." The printing and typing on the other outpatient card is the same, except the name "Ying, Chew Wai", the word "female" and "age 43" appears on such card. Written in ink on this card appears, "Pt reported for blood typing sent to lab L.G." The witness testified that she was familiar with the handwriting of Dr. Louis Gaul, and that she recognized the handwriting on each card as being that of Dr. Gaul, including the initials "L.G."; that Dr. Gaul was a commissioned officer of the United States Public Health Service at San Pedro on April 29, 1952, and was the San Pedro outpatient clinic medical officer.

Another document in each group was stated by the witness to be a form regularly used in the Public Health Service at San Pedro, and was described by the witness as a ...

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5 cases
  • Thomas v. Hogan
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • September 12, 1962
    ...expressly ruled on by the courts in Wheeler v. United States, 93 U. S.App.D.C. 159, 211 F.2d 19, 22-23 (1953), and Lew Moon Cheung v. Rogers, 272 F.2d 354, 360 (9th Cir.1959). Cf. United States v. Ware, 247 F.2d 698 (7th Cir.1957). Concededly, the plaintiff may still attack the regularity o......
  • Durant v. U.S., 85-1592.
    • United States
    • Court of Appeals of Columbia District
    • December 16, 1988
    ...284 F.2d 495 (8th Cir. 1960); Missouri-Kansas-Texas R.R. Co. v. Ridgway, 191 F.2d 363 (8th Cir. 1951). 7. See, e.g., Lew Moon Cheung v. Rogers, 272 F.2d 354 (9th Cir. 1959); Medina v. Erickson, 226 F.2d 475 (9th Cir. 1955), cert. denied, 351 U.S. 912, 76 S.Ct. 702, 100 L.Ed. 1446 ...
  • Matter of C----Y----L----
    • United States
    • U.S. DOJ Board of Immigration Appeals
    • May 23, 1961
    ...set forth in Matter of L----, supra (which we will not repeat here), there are three new decisions, as follows: Lew Moon Cheung v. Rogers, 272 F.2d 354 (C.A. 9, 1959); Wong Kwok Sui v. Boyd, 285 F.2d 572 (C.A. 9, 1960) (cited above), sustaining our unreported decision in Matter of W----K---......
  • Wong Kwok Sui v. Boyd
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 14, 1960
    ...the significance of the three blood types found in the alleged father, mother and son. 5 Our decision is in accord with Lew Moon Cheung v. Rogers, 9 Cir., 272 F.2d 354. And this court regards its result herein as wholly consistent with United States ex rel. Lee Kum Hoy v. Murff, 355 U.S. 16......
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