Gung You v. Nagle

• Decision Date: 23 September 1929
• Docket Number: No. 5809.,5809.
• Citation: 34 F.2d 848
• Parties: GUNG YOU v. NAGLE, Commissioner of Immigration.
• Court: U.S. Court of Appeals — Ninth Circuit

34 F.2d 848 (1929)

GUNG YOU v. NAGLE, Commissioner of Immigration.

No. 5809.

Circuit Court of Appeals, Ninth Circuit.

September 23, 1929.

Stephen M. White, of San Fancisco, Cal., for appellant.

George J. Hatfield, U. S. Atty., and George M. Naus, Asst. U. S. Atty., both of San Francisco, Cal., for appellee.

Before RUDKIN, DIETRICH, and WILBUR, Circuit Judges.

WILBUR, Circuit Judge.

This is an appeal taken from the order of the District Court for the Northern District of California denying a petition for a writ of habeas corpus. The appellant, a Chinese boy, was born in China of Chinese parents on February 22, 1915. On October 3, 1928, when 13 years of age, he arrived in the United States and applied to the immigration authorities at the Port of San Francisco for admission into the United States, alleging citizenship through his alleged father, one Gung Sam, who is conceded to be a native-born citizen of the United States. His case was tried by a Special Board of Inquiry, which found, on November 19, 1928, that he was not entitled to admission for the reason that he failed to reasonably establish that he is the son of Gung Sam. An appeal was taken to the Secretary of Labor, who affirmed the decision of the Board of Special Inquiry and ordered appellant deported. He is now being held in custody by appellee for deportation.

The testimony before the immigration authorities is in absolute agreement as to matters respecting appellant's family relations, the principal events of his family life, and as to description and conditions in the Haw Hong Village, Sun Ning District, the village in China where appellant was born and has lived all his life; that the alleged father has made various trips to China and has three sons already admitted to and residing in this country and that on every occasion (at least six) he has claimed to have a son, Gung You, born February 22, 1915; that Gung Sam was in China at such a time at to make possible his paternity to a child of the appellant's age, he having departed from the United States in June, 1913, and returned to this country in August, 1914; that the appellant's prior landed brothers, on the occasion of their applications for admission into the United States, claimed to have a brother Gung You, born February 22, 1915. The immigration authorities also concede that the appellant bears some facial and physical resemblance to his alleged father, Gung Sam, and appears to be about the age alleged.

The order of exclusion was based upon certain evidence indicating fraud and discrepancies on the part of the applicant and his father. A photograph was produced on behalf of the applicant showing himself and his alleged brother Gung Dock together. The Special Board of Inquiry concluded that this photograph was fabricated, in that photographs of the two alleged brothers taken separately had been combined in one photograph in such fashion as to convey the impression that they were together at the time the photograph was taken, and thus to fortify the claimed relationship. The fabrication of testimony is always a badge of weakness in a case, and when clearly established justifies a conclusion of fraud in the entire case. Allen v. United States, 164 U. S. 492, 499, 500, 17 S. Ct. 154, 41 L. Ed. 528; McHugh v. McHugh, 186 Pa. 197, 40 A. 410, 41 L. R. A. 805, 65 Am. St. Rep. 849; Nowack v. Metropolitan St. Ry., 166 N. Y. 433, 60 N. E. 32, 54 L. R. A. 592, 82 Am. St. Rep. 691; B. & O. R. Co. v. Rambo (C. C. A.) 59 F. 75. The applicant did not introduce this photograph in support of his claim to American citizenship, but it was produced by his alleged brother Gung Tun, when the latter was later examined. This witness simply said that he knew nothing of the picture, save that his mother gave it to him. He did not notice anything irregular about it, and could not see anything wrong with it. We have examined the picture and cannot say that it is so plainly fabricated as to attract the attention of any one but an expert, if it is fabricated. The applicant later, confronted with this picture, testified that he remembered when it was taken and that Gung Dock and he were together at the time, although he had apparently forgotten the incident when first questioned as to photographs. Now it is quite possible that the two boys went to a photographer for a group picture and that one negative was good of only one and the other good of the other only, and that the photographer combined the two by eliminating the bad and combining the good negative. Certainly, in the face of the positive and direct testimony to the fact of the relationship — the ultimate fact — and of testimony that the two boys went to the gallery together, the mere circumstance that they were not both on the negative reproduced by the photographer would hardly be evidence of an intent to fabricate evidence for production years later, particularly in view of the presumption of innocence which applies in civil as well as criminal matters.

There were other grounds stated by the Board for its conclusions which may now be briefly considered. The appellant readily identified a photograph of two prior landed uncles, although it appears that he had never seen his uncles as he said he did, and although he also says that there was no picture of them in his home. If he had failed to identify the photograph, it might be considered of some importance. His ability to do so hardly justifies a rejection of his testimony.

A family photograph taken in China in April, 1923, used as evidence on the admission of Gung Dock, an alleged brother of appellant, and on file with the immigration authorities, shows the alleged father, Gung Sam, and his wife, Chin Shee, and his son Gung Dock and his son Gung Tun and wife. In explaining the absence of the appellant from this family photograph, it was said to have been due to his illness. Certain discrepancies concerning the character of that illness, and the attendance of doctors upon the appellant at that time, were developed by the separate examination of the alleged father and his alleged son, the appellant. The explanation of the absence of Gung You from this family photograph was first made to the immigration authorities when the alleged father, Gung Sam, landed with his older son, Gung Dock, in 1927. The evidence taken at long intervals and covering the entire life of Gung You, in fact evidence taken concerning the marriage of the father, Gung Sam, concerning his departures to and return from China, clearly indicate that in the ordinary course of nature a son or daughter would be born about the time Gung You was born. The arrival of this son was duly chronicled in the records of the immigration service, by the sworn testimony of the alleged father, of his two brothers, uncles of the appellant, and of his two older sons. Thus the testimony of five witnesses given on different occasions, when the subject was purely incidental to the matter under investigation, confirms the ordinary course of nature. To reject this evidence under the circumstances would be equivalent to a refusal to hear them at all, and would be a flagrant disregard of the fundamental principles for the administration of justice.

We apprehend from the record that the immigration authorities had no doubt as to the existence of a son of Gung Sam, named Gung You, aged about 13 years. The question on which they were in doubt was whether or not Gung You was that son. As certified by the Special Board of Inquiry, he qualified as such son, by showing an intimate knowledge of the family and home and village of Gung Sam; he further qualified by age and appearance, by his race and language; but he was absent from the family group in 1923, when he was sick, as all agree, and as the immigration authorities had been advised in 1927 by the father and two sons. Are discrepancies as to the seriousness of this illness to be regarded as material? The explanation was reasonable.

Another discrepancy relates to the time when an alleged brother of appellant, Gung Dock, quit school to come to the United States.

In the midst of a long examination, the appellant was asked:

"Q. When did Gung Dock quit school before coming to the United States? A. He quit school at the end of C. R. 15 (1926).

"Q. What did he do during all that part of C. R. 16 (1927) that he was in How Hong New Village? A. He had no occupation.

"Q. Why did he stay home from school for such a long time before coming to the United States? A. I don't know why."

Earlier he was asked:

"Q. When did Gung Dock quit school before coming to the United States? A. He didn't go to school last year."

Gung Dock arrived here November 14, 1927, at which time his father, Gung Sam, stated that he quit school in July, 1927, and that the appellant went to school with him during that period. Gung Dock confirmed that statement. As to this discrepancy the chairman of the Special Board of Inquiry said: "In my opinion, a more serious discrepancy could not occur in the testimony of the applicant, and no explanation can be offered for its occurrence, in my opinion,...