Jung Sam v. Haff, 9500.

• Decision Date: 18 December 1940
• Docket Number: No. 9500.,9500.
• Citation: 116 F.2d 384
• Parties: JUNG SAM et al. v. HAFF, District Director of Immigration and Naturalization.
• Court: U.S. Court of Appeals — Ninth Circuit

116 F.2d 384 (1940)

JUNG SAM et al. v. HAFF, District Director of Immigration and Naturalization.

No. 9500.

Circuit Court of Appeals, Ninth Circuit.

December 18, 1940.

Dion R. Holm, of San Francisco, Cal., for appellants.

Frank J. Hennessy, U. S. Atty., and Robert B. McMillan and L. R. Mercado, Asst. U. S. Attys., all of San Francisco, Cal. (Arthur J. Phelan, of San Francisco, Cal., of U. S. Immigration and Naturalization Service, on the brief), for appellee.

Before WILBUR, GARRECHT, and HEALY, Circuit Judges.

GARRECHT, Circuit Judge.

May 11, 1939, one Jung So, a person of the Chinese race, arrived at the Port of San Francisco aboard the steamship "President Taft," accompanied by two youths for whom he sought admission into the United States. These two boys, appellants here, Jung Tim and Jung Sam, aged, at the time of arrival, 15 years 6 months and 10 years 8 months, respectively, were allegedly the foreign-born sons of said Jung So, who was the son of a native-born citizen of the United States, and admission was sought on that ground.

Hearings were held by the Board of Special Inquiry to determine the status and admissibility of the applicants. As a result of these hearings, it was conceded that the alleged father was a citizen; that he resided in the United States prior to the birth of either applicant; that by reason of journeys to China, Jung So was in China at a time to render possible the paternity of children of the ages claimed; and that Jung So had, on previous occasions, advised the immigration authorities he claimed parentage of children in China of the names and ages to correspond with those given by the applicants. Jung So had one son, Jung Yow, admitted to the United States October 31, 1928.

After concluding the hearings, the Board of Special Inquiry recommended the applicants be denied admission to the United States. Appeal was taken to the Board of Review, which ordered dismissal. Thereafter, on the basis of receipt of additional evidence from China — a group photograph forwarded to Jung So by his alleged wife — another hearing was had before the Board of Special Inquiry which, at the conclusion thereof, adhered to its former decision. Another appeal was taken to the Board of Review, attended with the same result. Later, request was made to sustain the appeal of Jung Tim, the elder applicant, upon the basis that he was included in the group photograph, while Jung Sam did not appear therein. This was denied. The alleged father filed a petition for writ of habeas corpus in behalf of the applicants in the court below. The petition for the writ was denied and an appeal was taken to this court.

The appellants contend that the testimony sustains the burden of proof imposed upon them of establishing their relationship with the alleged father; that the discrepancies in the testimony are trivial and neither prove or disprove the relationship; and that the immigration officials failed to give any weight to the group photograph.

All three witnesses — the two applicants and the alleged father — were in substantial accord on the basic outlines of the story, but a number of discrepancies in the testimony of the three were considered by the Board of Special Inquiry to be of a sufficiently serious nature to discredit the witnesses and justify exclusion.

The first of these inconsistencies concerns the attendance of the applicants at school. The alleged father testified, before the Board of Special Inquiry, that he arrived home in the middle of the week, at about 4 p. m.; that his wife and three sons, Tim, Sam, and Quan, were at home to greet him; that neither boy attended school at any time — not even for a single day — while he was last in China, a period of nearly a year. Jung Tim, the elder applicant, testified that Jung So arrived at home a little after 9 a. m., on a Sunday; that Jung Sam was also at home; that both boys attended the same school; that the school hours were from 6 or 7 to 10 in the morning, with an hour off for breakfast, for which they came home, and then back to school at 11 a. m., until dismissal at 4 p. m.; that "20 odd" pupils attended the school; that both boys attended the school for several months after the father's return home (from March to October) until school was discontinued because of Japanese bombings in the neighborhood. Jung Sam said he was not at home when his father arrived, but first saw him when he came home from school at noon; that Tim was also at school that day, but arrived home earlier than he; that "50 odd" pupils attended the school. Both boys agreed as to the time of, and reason for, discontinuance of school, disagreed on the number of pupils and on the question of who was at home when the father arrived. The alleged father disagreed with the boys regarding the time of arrival and very markedly on their attendance at school, he saying they did not attend school at all after his arrival and they that they were in attendance for the greater part of the day for several months after Jung So's arrival in the village.

Another difficulty arises in attempting to reconcile testimony of the three witnesses respecting visits to Hong Kong made from the home village. Jung Tim testified he had made two trips to Hong Kong, once for two or three days a few months before commencing the journey to the United States, and the second time as a part of that journey. Jung Tim said one Young Ing accompanied him on the first trip and that he stayed at Young Ing's house. Jung Sam said Tim had been to Hong Kong but once to his knowledge and that time was on the trip to the United States; that he did not recollect the first trip to Hong Kong, to which Tim testified; that Tim was absent from home a few nights, which absence Sam thought was occasioned by fear of Japanese airplanes. The alleged father, on the other hand, said Jung Tim had been to Hong Kong three times to his knowledge, once with Young Ing for seven or eight days, once for a little over a month, and the last time on the way to the United States. Moreover, while both Jung So and Jung Tim claimed to know Young Ing and said that the latter had visited at their home, Jung Sam denied knowing such person.

Considerable confusion is caused by the testimony relative to the leave-taking of the alleged mother and the village of Sar Yuen and the trip to and stay in Hong Kong immediately preceding embarkation. Jung Tim testified they said good-bye to the mother and younger brother at the bus depot in Shek Kee City (about twenty-five minutes walk from Sar Yuen village), but both Sam and Jung So said the good-byes were...