Lim v. Mitchell, 23787.

• Decision Date: 21 August 1970
• Docket Number: No. 23787.,23787.
• Citation: 431 F.2d 197
• Parties: George LIM, Appellant, v. John N. MITCHELL, as Attorney General of the United States, et al., Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

431 F.2d 197 (1970)

George LIM, Appellant, v. John N. MITCHELL, as Attorney General of the United States, et al., Appellee.

No. 23787.

United States Court of Appeals, Ninth Circuit.

August 21, 1970.

Robert E. Hinerfield (argued), and Richard A. Murphy, of Simon, Sheridan, Murphy, Thornton & Medvene, Los Angeles, Cal., for appellant.

James R. Dooley (argued), Asst. U. S. Atty., Robert L. Meyer, U.S. Atty., Frederick M. Brosio, Jr., Chief, Civil Division, Los Angeles, Cal., for appellee.

Before HAMLEY, BROWNING and TRASK, Circuit Judges.

TRASK, Circuit Judge:

George Lim brought this action against the Attorney General of the United States for a judgment declaring him to be a citizen of the United States.¹ Following a non-jury trial of some nine days duration, the district court entered judgment for the Attorney General. Lim appeals from that judgment.² We reverse.

The facts may be summarized as follows: Appellant was born in China in 1917. He sought to enter the United States in April, 1932, as Lim Len Hang, the son of Lim Jew — who was a derivative citizen of the United States because his father — appellant's grandfather, Lim Sam — was a citizen, having been born in the United States in approximately 1876, and admitted into this country as a native-born citizen in 1899 and 1909. Appellant's father had been admitted into the United States as a derivative citizen in 1908, 1916 and 1930, and had been issued a certificate of identity in 1916.

Appellant was not readily admitted into the country in 1932. After a four-day hearing between April 22 and 26, 1932, the Board of Special Inquiry voted to exclude him on the ground that he was not the true son of Lim Jew. This decision was reversed by a Board of Review, and appellant was issued a certificate of identity on June 6, 1932. The government issued appellant passports as a citizen in 1947 and 1963. Appellant's wife and daughter were admitted to the United States in 1952 as the wife and child of a citizen. Appellant has become a successful restaurant owner in Los Angeles and a highly respected member of the community.

The Immigration and Naturalization Service began to question appellant's citizenship at least as early as 1955 when he initiated attempts to bring one or more of his brothers to the United States. Because of the Service's doubts, in 1966 appellant filed an application with the Service for issuance of a certificate of citizenship pursuant to Section 341 of the Immigration and Nationality Act, 8 U.S.C. § 1452.³ On August 23, 1967, the District Director of the Immigration and Naturalization Service denied appellant's application and the Regional Commissioner affirmed this denial on October 30, 1967.

At trial in the district court commencing on March 19, 1968, the Service admitted that appellant's father was Lim Jew. It claimed, however, and the district court found, that this man's true name was Jew Hoy Yin and that appellant's true name was Jew Len Hang rather than Lim Len Hang. The court also found that appellant's grandfather was not the United States citizen, Lim Sam, but was Jew Look, who was born in China, and therefore appellant had no valid claim to derivative citizenship.

As plaintiff below, Lim had the burden of proving by a fair preponderance of the evidence that he is an American citizen. Lee Hon Lung v. Dulles, 261 F.2d 719, 720 (9th Cir. 1958); Lee Shew v. Brownell, 219 F.2d 301 (9th Cir. 1955). He established a prima facie case of citizenship by showing that he had been admitted to the country and issued a certificate of identity on June 6, 1932. By establishing this prima facie case he met his burden of proof. See Lee Hon Lung, supra.

The Service was entitled to rebut appellant's prima facie case by showing that the certificate had been obtained by fraud or error. Lee Hon Lung, supra. The government's burden of proof in such a case is a heavy one. This court stated in Lee Hon Lung, supra:

"We hold that where one has, over a long period of years, acted in reliance upon a decision of a board of special inquiry admitting him as a citizen of the United States, the fraud or error which will warrant disregard of such a decision must be established by evidence which is clear, unequivocal, and convincing." 261 F.2d at 724.

See also Lew Moon Cheung v. Rogers, 272 F.2d 354, 362 (9th Cir. 1959). This burden of proof is "much more than a mere preponderance of the evidence." Delmore v. Brownell, 236 F.2d 598, 600 (3d Cir. 1956). The evidence must not leave the issue in doubt. See Chaunt v. United States, 364 U.S. 350, 353, 81 S.Ct. 147, 5 L.Ed.2d 120 (1960); Baumgartner v. United States, 322 U.S. 665, 670, 64 S.Ct. 1240, 88 L.Ed. 1525 (1944); Schneiderman v. United States, 320 U.S. 118, 125, 158, 63 S.Ct. 1333, 87 L.Ed. 1796 (1943).

Denial of a certificate of citizenship some thirty-six years after appellant was admitted into this country as a citizen is, like cancellation of a certificate of citizenship, in its consequences "more serious than a taking of one's property, or the imposition of a fine or other penalty." The government should not prevail "without the clearest sort of justification and proof." Schneiderman v. United States, supra, 320 U.S. at 122, 63 S.Ct. at 1335.

On appeal, this court must make an independent determination as to whether the evidence introduced by the Service was "clear, unequivocal, and convincing." See Chaunt v. United States, supra, 364 U.S. at 353, 81 S.Ct. 147, 5 L. Ed.2d 120; Knauer v. United States, 328 U.S. 654, 657, 66 S.Ct. 1304, 90 L.Ed. 1500 (1946); Stacher v. United States, 258 F.2d 112, 120 (9th Cir.), cert. denied, 358 U.S. 907, 79 S.Ct. 232, 3 L. Ed.2d 228 (1958).⁴

It is to be noted that the issue in 1932, when appellant, then fifteen years old, was admitted as a citizen by derivation, was whether appellant was in fact the son of Lim Jew. On this issue the Board of Review found that the relationship of father and son was established, the Board stating:

"The applicant appears to have full knowledge regarding all members of his immediate family and his testimony is harmonious with that of his alleged father concerning them * *.

* * * * * *

"It is believed that the evidence reasonably establishes the applicant\'s claim to be a son of his alleged father. It is ordered that the appeal be sustained."

The government did not challenge the citizenship of appellant's father, Lim Jew, at any stage of the 1932 proceedings.

The district court below found that the appellant was not entitled to citizenship because his father, the same Lim Jew, was fraudulently admitted. The father, Lim Jew, was admitted as a citizen in 1908. He made two trips to China since, one in 1916 and one in 1926. The official immigration files with respect to the admission of Lim Jew in 1908 are a part of the record. At that time (February 1, 1908) Lim Jew testified in person under oath. His testimony was supported by that of his father, a native born Chinese, Lim Sam, and a second witness who was named Jew Sen, age 52, and testified in person. All were sworn. The present proceeding is thus a collateral attack on the February, 1908, proceeding. All of the witnesses to that proceeding had died long prior to this trial.

Upon a reading of the entire transcript, we determine that, although there was some evidence tending to show that appellant's family name was Jew rather than Lim, appellee did not meet its burden of proving fraud or error by clear, unequivocal and convincing evidence.

The government's first, and perhaps most damaging, evidence concerned one Wong Foo who had come to the United States in 1909, had worked with appellant's father, had served in the United States Armed Forces in World War I, and had known appellant since shortly after his entry into the country. In 1954 and again in 1958, Wong Foo testified to the Immigration and Naturalization Service that appellant's family name was Lim and not Jew. At that time, he identified himself, and appellant identified him at trial, as a long-time friend but not a relative. Wong Foo could not be located to testify at trial. The court admitted into evidence his sworn statement dated October 20, 1967, and taken after an interview with a Service attorney, a State Department agent, and an interpreter. The interview took place in the convalescent hospital in which Wong Foo was then a patient. In the statement, Wong Foo admitted that he had entered the United States in 1909 under the false or "paper" name of Wong Foo but that his real name was Jew Hoi Bo. He stated that he was the brother of appellant's father. This fact, if believed, would establish that appellant's family name was Jew. Oral statements made by Wong Foo during the interview and a subsequent interview in December, 1967, which substantiated these facts, were testified to by those present at one or both interviews: Sam I. Feldman, the Service's attorney; Dr. J. Hym Moy, the interpreter; and Hibbard Lamkin, the State Department Special Agent.

These written and oral statements constituted hearsay evidence as they were extra-judicial statements offered to prove the truth of the matter contained therein. Papadakis v. United States, 208 F.2d 945, 952 (9th Cir. 1953). Such statements are generally inadmissible but may be admitted if they fall within any exception to the hearsay rule. Sica v. United States, 325 F.2d 831, 836 (9th Cir. 1963), cert. denied, 376 U.S. 952, 84 S.Ct. 970, 11 L.Ed.2d 972 (1964). The trial court admitted the statements on the ground that they met the declaration against penal interest exception to the hearsay rule in that, Wong Foo, by admitting that he entered the United States by fraud, may have rendered himself deportable and liable for possible criminal penalties.

The declarations directly controverted sworn statements he had made to the Service on two previous occasions in which he had confirmed the facts supporting appellant's citizenship. Wong Foo was seventy-two years of age and was...