Ah Kong v. Dulles, Civ. No. 434.
| Decision Date | 07 April 1955 |
| Docket Number | Civ. No. 434. |
| Citation | 130 F. Supp. 546 |
| Parties | AH KONG, as Guardian ad Litem for Fong Hong You, Plaintiff, v. John Foster DULLES, as Secretary of State, Defendant. |
| Court | U.S. District Court — District of New Jersey |
McCarter, English & Studer, James R. E. Ozias, Newark, N. J., for plaintiff.
Raymond Del Tufo, Jr., U. S. Atty., Herman Scott, Asst. U. S. Atty., Newark, N. J., for defendant.
This is an action for a declaratory judgment of United States citizenship. The complaint was filed by Ah Kong as guardian ad litem for and allegedly the father of Fong Hong You. Jurisdiction is based on § 503 of the Nationality Act of 1940, formerly 8 U.S.C.A. § 903,1 which was in effect in 1951 when this complaint was filed.
Fong Hong You's claim of United States citizenship factually is based on the allegation that on May 18, 1935, in China, he was born the son of Ah Kong, a native-born American. Fong Hong You's claim legally is based on § 1993 of the Revised Statutes.2
There are two material issues of fact: (1) Whether Ah Kong was born in the United States, and (2) whether Fong Hong You was born the son of Ah Kong. If Ah Kong was born in the United States and if Fong Hong You is his son, then the latter is entitled to a declaratory judgment.
Ah Kong testified, without objection, that he was born in San Francisco, California, on October 23, 1884, and has resided in East Orange, New Jersey, since 1905. He testified that he lived in San Francisco until he was 5 or 6 years of age, when he went to China with his parents; in 1901 he returned to the United States, entering at Port Henry, New York, where he was arrested on the charge of being unlawfully in the United States. His case was heard by United States Commissioner Dudley (for the Northern District of New York) who granted him a certificate of discharge and released him. Later, Ah Kong revisited China and in 1909 as a native he was readmitted through the Port of Malone, New York, to the United States.
In 1913, when Ah Kong decided to revisit China, he underwent an investigation of his citizenship status by the United States Immigration Service, which resulted in the following recommendation by the inspector in charge: "This certificate of discharge has been pronounced genuine by Commissioner Dudley and inasmuch as the evidence offered at the trial shows the issue to have been nativity and the applicant has reasonably established that he is the rightful holder of said certificate, I recommend favorable action." The recommendation was accepted. In 1915, Ah Kong was admitted at Seattle, Washington, "as a returning citizen." At that time, he was given a certificate of identity because "satisfactory proof has been submitted." In 1924, the Immigration Service admitted to the United States at Boston, Massachusetts (Fong) Hong Get "as the son of (Fong) Ah Kong, a citizen of the U. S. (native born) * * *." And in 1926, at New York, New York, Fong Hong Ong was admitted to the United States and was issued a certificate of identity declaring him to be a "Citizen (son of Fong Ah Kong, native)." In 1939, Ah Kong was readmitted to the United States at Seattle, Washington, "as a citizen."
What type of evidence and what burden of proof is required to prove the paternity of a Chinese claiming American citizenship?
On the issue of Ah Kong's citizenship, the documentary evidence of the prior determinations of his citizenship status establishes a prima facie case. McGrath v. Chung Young, 9 Cir., 188 F. 2d 975, 977; Wong Gum v. McGranery, D.C., 111 F.Supp. 114 and cases cited therein. Plaintiff's burden of proof is that he must establish his claim by a fair preponderance of the evidence. Ly Shew v. Dulles, 9 Cir., 219 F.2d 413; Lee Wing Hong v. Dulles, 7 Cir., 214 F.2d 753, 758; Wong Fon Haw v. Dulles, D.C., 125 F.Supp. 658; Lou Goon Hop v. Dulles, D.C., 119 F.Supp. 808, 810. In the case at bar that burden has been met by showing the numerous prior findings by the administrative agency charged with the duty of determining citizenship status for purposes of issuing traveling documents and admitting to the United States and excluding therefrom persons claiming American citizenship. The defendant produced no evidence refuting any of Ah Kong's testimony or the prior determinations and despite able cross examination by the Assistant United States Attorney, there is no material discrepancy in any of the evidence relevant to Ah Kong's birth.
Based on the foregoing, the court concludes that Ah...
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Reyes v. Neelly, 17435.
...other circumstances, the burden is then on the Government of producing substantial evidence of alienage. Likewise, in Ah Kong v. Dulles, D.C.N.J.1955, 130 F.Supp. 546, 547, a certificate of identity by the Commissioner of the United States Immigration Service was held to establish a prima f......
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Lee Hon Lung v. Dulles
...9 Cir., 248 F.2d 421, the same language was quoted. 5 Substantially the same rule had previously been announced in Ah Kong v. Dulles, D.C.N.J., 130 F.Supp. 546, 548, cited in the Delmore 6 The pertinent language of the Mah Toi opinion reads as follows: "Appellant concedes that if the superi......
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Delmore v. Brownell, Civ. A. No. 957-53.
...760; Rueff v. Brownell, D.C.N.J.1953, 116 F.Supp. 298, 307; Gensheimer v. Dulles, D.C.N.J.1954, 117 F. Supp. 836, 839; Ah Kong v. Dulles, D.C. N.J.1955, 130 F.Supp. 546. It is true that in all but the latter of these cases the government was required to establish by evidence of that quality......
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Patel v. Rice, Civ.A. 3:04-CV-0398-G.
...established the plaintiff's prima facie case); Choy Yuen Chan v. United States, 30 F.2d 516, 517 (9th Cir.1929)(same); Ah Kong v. Dulles, 130 F.Supp. 546, 547 (D.N.J.1955) (certificate of identity issued by Commissioner of Immigration Service established prima facie case which satisfied the......