Acheson v. Yee King Gee, 12431.

• Decision Date: 04 October 1950
• Docket Number: No. 12431.,12431.
• Citation: 184 F.2d 382
• Parties: ACHESON, Secretary of State of United States v. YEE KING GEE.
• Court: U.S. Court of Appeals — Ninth Circuit

184 F.2d 382 (1950)

ACHESON, Secretary of State of United States v. YEE KING GEE.

No. 12431.

United States Court of Appeals Ninth Circuit.

October 4, 1950.

J. Charles Dennis, U. S. Atty., John E. Belcher, Asst. U. S. Atty., Seattle, Wash., for appellant.

J. P. Sanderson, Gerald Shucklin of Hile, Hoof & Shucklin, all of Seattle, Wash., for appellee.

Jackson & Hertogs, San Francisco, Cal., as amicus curiae.

Before HEALY, BONE, and POPE, Circuit Judges.

HEALY, Circuit Judge.

This is an appeal by the Secretary of State from a judgment of the District Court for the Western District of Washington declaring appellee to be a national of the United States.

Appellee is a minor. The suit was brought by his father, Yee Don Found, as next friend, under the provisions of § 503 of the Nationality Act of 1940, 8 U.S.C.A. § 903, providing in part: "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. * * *"

Another provision of the 1940 Act should have preliminary notice, namely, § 201(g), 8 U.S.C.A. § 601(g). This statute so far as here material provides:

"The following shall be nationals and citizens of the United States at birth: * * *

"(g) A person born outside the United States * * * of parents one of whom is a citizen of the United States who, prior to the birth of such person, has had ten years' residence in the United States * * *, at least five of which were after attaining the age of sixteen years, the other being an alien: * * *."

There is no dispute as to the facts of the case. Appellee was born in China March 16, 1941, the son of Yee Don Found, who, although born in China, is an American citizen by virtue of the fact that his father was a citizen. Yee Don Found arrived in the United States on August 6, 1929 at the age of 17 years, being admitted as a citizen. He lived for a time in Boston, where he attended school, and later engaged in the restaurant business at Santa Barbara. He has since 1939 resided in Seattle and carried on his business or occupation there. During the period here important he made two visits to China, the first departure being in 1936 when he went to that country and was married to a woman of Chinese nationality, returning to the United States after a stay lasting a few days less than two years. The second visit was in 1940-41 during which time appellee was conceived and born. Prior to the institution of this suit Yee Don Found brought to the United States his wife and two children born to the couple prior to 1940.¹

Leaving out of account the periods covered by the father's absence in China, he was physically present in this country but eight years and four months prior to appellee's birth. Because of this fact the American consul general at Canton declined to recognize appellee's American nationality and refused to permit him to be brought to the United States. Subsequently, pursuant to the statutory provision permitting that procedure, the Secretary allowed him to come here for the purpose only of prosecuting his action.

Both below and here the Secretary has urged but two propositions, (1) that the district court was without jurisdiction to entertain the suit, and (2) that the father had not resided in the United States for the required ten years prior to appellee's birth. We agree with the trial court that the Secretary is wrong on both counts.

1. The first point has to do really with venue rather than jurisdiction. The contention is that in the circumstances of the case the only court in which action might be brought was the district court for the District of Columbia, where the Secretary resides. However, § 503 of the Act provides that the action may be brought either there or in the district in which the person asserting nationality "claims a permanent residence". The complaint alleged that appellee claims his permanent residence as Seattle, Washington, where his fat...