Chow Sing v. Brownell, 13746.
Decision Date | 25 June 1956 |
Docket Number | No. 13746.,13746. |
Citation | 235 F.2d 602 |
Parties | CHOW SING, by his Guardian ad litem, Chow Yit Quong, Appellant, v. Herbert BROWNELL, Jr., as Attorney General of the United States, Appellee. |
Court | U.S. Court of Appeals — Ninth Circuit |
Jackson & Hertogs, Joseph Hertogs, San Francisco, Cal., for appellant.
Lloyd H. Burke, U. S. Atty., Charles Elmer Collett, Asst. U. S. Atty., San Francisco, Cal., for appellee.
Before DENMAN, Chief Judge, POPE, Circuit Judge, and SOLOMON, District Judge.
Chow Sing appeals from a judgment of the District Court in a declaratory judgment suit denying his claim to be declared an American citizen as the son of Chow Yit Quong, admittedly an American citizen. The grounds of his appeal are (A) that the District Court applied the wrong burden of proof and (B) that even assuming the court construed the evidence under the usual burden of proof in civil cases, it erred in holding that the burden had not been satisfied.
This case was tried in December, 1952, and a first judgment rendered on February 17, 1953. This court reversed, 217 F.2d 140, holding the District Court had considered the facts on an excessive burden of proof, that is, by clear and convincing evidence. It vacated the judgment and ordered the court to determine whether Chow Sing had proved he was the son of Chow Yit Quong applying the ordinary burden of proof in civil cases, that is, whether the preponderance of the evidence supports the petitioner's contention. The District Court had made the same ruling in the case of Ly Shew v. Dulles, also reversed and remanded. 9 Cir., 219 F.2d 413. Both cases were considered at the hearing by the District Court.
Appellant's contention is based on statements made by the District Judge at a hearing called after these cases were sent back to him for new findings. In essence,1 the District Judge stated that the application of a lower standard of proof did not change his problem. He had been unable to determine from the evidence whether appellants were the children of American citizens alleged to be their fathers. It is contended that this indicates that the District Judge continued to insist on "clear and convincing evidence."
Appellant's argument is based on a misconception of the meaning of proof by a preponderance of the evidence, the ordinary burden of proof in a civil action, as distinguished from proof by clear and convincing evidence or proof beyond a reasonable doubt. Despite the terms used to describe two of these standards, the burden of proof is not simply a matter of the quantity or type of evidence offered. More significant is the degree of belief required of the trier of fact to make a finding.
When the District Judge stated that he was unable to determine from the evidence whether appellant was the child of the citizen alleged to be his father, he was not applying the "clear and convincing evidence" burden of proof. He was merely stating that he did not believe that it was more probable than not that this fact was true. In other words, appellant had not carried any of the three possible burdens of proof. We hold he complied with the mandate of our court as to the burden of proof.
The evidence is nearly all through interpreters though the witness who could speak English occasionally corrected the interpreter's English words. It is as follows:
1. Chow Yit Quong (Chow Sing's alleged father) came to the United States in 1923. He has made several trips to China, and he testified that Chow Sing is his son who was born in China in 1934 while he was there. He testified that he lived with his son in China while there on visits, the last time being from 1946 to 1950. Chow Yit Quong's income tax returns for 1942, 1943, 1944 and 1945, which claimed Chow Sing as a dependent, were put in evidence together with a Selective Service Questionnaire in which the same claim was made.
It was stipulated that a blood test of Chow Yit Quong and Chow Sing showed that they could be father and son.
On cross-examination Chow Yit Quong testified that he had nine sons and one deceased daughter. He was unable to remember the birthdate of any of them except that of Chow Sing.
He stated that Chow Sing was not present at the wedding feast at Canton given to celebrate his second marriage, although Chow Sing did attend a second feast at the village where the family lived. He said that Chow Sing first saw the second wife in the village. Chow Yit Quong was asked to explain his alleged son's testimony before the Immigration Service that he did attend the wedding feast and saw the second wife for the first time in Canton. Chow Yit Quong said that Chow Sing must have been confused.
Chow Yit Quong testified that his first wife, Chow Sing's alleged mother, and his daughter, Chow Sing's alleged sister, had died in Kwantung, Po Village. Chow Sing had stated to the Immigration Service that they had died in Macao. There was a similar discrepancy as to the place of burial.
There was also a discrepancy between Chow Yit Quong's testimony and the statements of Chow Sing given to the Immigration Service as to the construction of the living quarters in China occupied by the family. A similar discrepancy was developed as to the construction of sleeping quarters where the father and son stayed for a brief period in 1947.
2. So Tak, a United States citizen, testified that he knew the alleged father, Chow Yit Quong, and that he had introduced Chow Sing as his son while So Tak was visiting China in 1947. Chow Yit Quong and Chow Sing were living in the same place as father and son. However, Chow Yit Quong had begun to make arrangements to bring Chow Sing to the United States in 1946, a year before So Tak encountered them in...
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Wong Ho v. Dulles
...section 503 of the Nationality Act of 1940 is an ordinary one. Wong Gong Fay v. Brownell, 9 Cir., 1956, 238 F.2d 1; Chow Sing v. Brownell, 9 Cir., 1956, 235 F.2d 602; Ly Shew v. Dulles, 9 Cir., 1954, 219 F.2d 413, 416. This rule was recognized by the court below.11 However, it is equally cl......
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...one resting upon plaintiffs in a civil action. Ly Shew v. Dulles, supra; Wong Gong Fay v. Brownell, 9 Cir., 224 F.2d 717; Chow Sing v. Brownell, 9 Cir., 235 F.2d 602. The Consul in Hong Kong was certainly beset with the task before him. At that particular time, no doubt an avalanche of appl......