Louie Hoy Gay v. Dulles, 15390.

• Decision Date: 12 September 1957
• Docket Number: No. 15390.,15390.
• Parties: LOUIE HOY GAY, Appellant, v. John Foster DULLES, Secretary of State of the United States of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

248 F.2d 421 (1957)

LOUIE HOY GAY, Appellant, v. John Foster DULLES, Secretary of State of the United States of America, Appellee.

No. 15390.

United States Court of Appeals Ninth Circuit.

September 12, 1957.

Banks & Banks, Portland, Or., for appellant.

C. E. Luckey, U. S. Atty., Victor E. Harr, Asst. U. S. Atty., Portland, Or., for appellee.

Before STEPHENS, Chief Judge, and LEMMON and CHAMBERS, Circuit Judges.

LEMMON, Circuit Judge.

While we cannot agree with Mark Twain that "The government's work is always conspicuous for excellence, solidity, thoroughness, neatness",¹ in the instant case, at least, the Federal power has been exerted with justice and with success.

As is pointed out in an article appearing in the Stanford Law Review of May, 1955:²

"Before 1940, the citizenship claims of persons outside the United States were adjudicated by the Immigration Service in exclusion proceedings; claimants might test the validity of the proceedings by means of habeas corpus, but they could not get judicial review of the merits of the Service\'s decision. In 1940 Section 503 of the Nationality Act gave a new remedy."

That remedy, infra, has been unsuccessfully invoked by the appellant in the instant case.

1. Statement of the Case

The appellant originally filed his complaint through his alleged father, Louie Foo, in the Court below, asking for a declaratory judgment under Section 503 of the Nationality Act of 1940 (8 U.S. C.A. § 903, Edition of 1942). The complaint was dismissed on motion. When the case was appealed, this Court reversed, with the comment that the appellant and others had "the right to show by amendment or supplemental pleading their authorization of their next friend to apply for travel documents and to initiate the litigation or the right to initiate it themselves, as they may be advised." Joong Tung Yeau v. Dulles (Louie Hoy Gay v. Dulles), 9 Cir., 1955, 225 F.2d 854, 855.

It is worthy of note that the original complaint was filed on December 22, 1952, three days before the effective date of the Immigration and Nationality Act of June 27, 1952 (8 U.S.C.A. §§ 1101-1503; see note, 8 U.S.C.A. page 155 1953 Edition). The later act is much more restrictive. For example, as pointed out in the Stanford Law Review article from which we have already quoted, if a certain type of alien "is not within the United States, he is precluded from having his citizenship determined in a declaratory judgment action. Moreover, he is not even eligible to apply for a certificate of identity," etc.³ Under the 1940 Act, however, as we shall see, the alien might have instituted such an action "regardless of whether he was within the United States or abroad".⁴

It should be noted that the Act of 1952 contains an elaborate saving clause that would specifically make the 1940 Act applicable to the instant case, even though the amended complaint was filed long after the effective date of the 1952 statute.

In the instant case, the appellant filed an amended complaint on January 24, 1956, thus following the suggestion of this Court, supra. The amended complaint contained the requisite allegations for this type of action, and concluded in part with the following prayer:

"(1) That an order be directed to the appellee to issue and grant appellant a Certificate of Identity in order that he be eligible to obtain transportation to the United States and be temporarily admitted under bond in the sum of $500.00 for the purpose of prosecuting said claim of Citizenship in this court.

"(2) That a decree be entered herein adjudging said appellant to be a National and/or Citizen of the United States."

The appellee filed an Answer denying most of the allegations of the complaint. Oral and documentary evidence was adduced by both parties, and thereafter the District Judge rendered an opinion, filed Findings of Fact and Conclusions of Law, and on October 4, 1956, handed down a judgment, decreeing that the complaint be dismissed. From that judgment the present appeal has been taken.

2. The Applicable Statute

"Section 503 of the Nationality Act of 1940 (8 U.S.C.A. § 903, 1942 Edition) was as follows:

§ 903. Judicial proceedings for declaration of United States nationality in event of denial of rights and privileges as national; certificate of identity pending judgment.

"If any person who claims a right or privilege as a national of the United States is denied such right or privilege by any Department or agency, or executive official thereof, upon the ground that he is not a national of the United States, such person, regardless of whether he is within the United States or abroad, may institute an action against the head of such Department or agency in the District Court of the United States for the District of Columbia or in the district court of the United States for the district in which such person claims a permanent residence for a judgment declaring him to be a national of the United States. If such person is outside the United States and shall have instituted such an action in court, he may, upon submission of a sworn application showing that the claim of nationality presented in such action is made in good faith and has a substantial basis, obtain from a diplomatic or consular officer of the United States in the foreign country in which he is residing a certificate of identity stating that his nationality status is pending before the court, and may be admitted to the United States with such certificate upon the condition that he shall be subject to deportation in case it shall be decided by the court that he is not a national of the United States. Such certificate of identity shall not be denied solely on the ground that such person has lost a status previously had or acquired as a national of the United States; and from any denial of an application for such certificate the applicant shall be entitled to an appeal to the Secretary of State, who, if he approves the denial, shall state in writing the reasons for his decision. The Secretary of State, with approval of the Attorney General, shall prescribe rules and regulations for the issuance of certificates of identity as above provided."

3. The Lower Court's Findings Have Support in the Record.

(a) Foo's Fictitious Fatherhood

Louie Foo, hereafter Foo, who gave his age as 72 years and his birthplace as Portland, Oregon, testified that in 1907 he was married to Ng Shee in Hong Me Village, Toishan, Canton, China, and that the appellant was his son by that marriage. He said that he arrived in China in February, 1907, and was married the following month. He could not remember the exact month in which he returned to the United States, but he did testify that it was some time in 1908, and that his son was born on July 5 of that year.

In 1931 Foo went back to China, and lived in the same house with his son, according to his testimony. Between 1908 and 1921, he sent the boy money — "sometimes * * * hundred, sometime two hundred, sometime five hundred for family expense."

A second child, a girl, was born to Foo and his wife while he was in China on a second visit, from 1921 to 1924, he said, adding that after he returned to the United States he continued to send money to his family. Foo has not been back in China since 1924, but has been sending money to his family "every other month, sometime two or three months, sometimes I haven't got no money, I can't send any."

A letter purporting to be from the appellant to Foo, dated October 5, 1929, shows the appellant asking for money from his alleged father. A letter that Foo said was from the appellant, dated February 23, 1941, thanks Foo for the "$100 you sent me."

Foo testified that he sent $3,000 to his wife to repair his house, and a letter that he said was from his wife informed him that his check had been received. The alleged letter from his wife was put into evidence, but was not translated. It was dated July 26, 1952.

The witness identified a photograph alleged to be that of the appellant as that of his son when the latter was 16 or 18 years old.

A blood test made of the appellant in Hong Kong indicated that his blood type was "MN", while that of Ng Shee, described as his "alleged mother", was N. The doctor's written conclusion was as follows:

"Consideration of the above shows that Ng Shee\'s blood type is compatible with her? being the Mother of Louie Hoy Gay. The Father\'s blood type cannot be N."

A blood test made of the alleged father, Foo, in Portland, Oregon, showed his Type to be "M".

Robert W. Schmeer, 84 years old, a member of the Schmeer Agency and former vice president of the United States National Bank, both presumably of Portland, testified that he had known Foo for nearly 50 years, and that the latter had told him "many times" that he had a wife and boy in China. Elsewhere in his testimony, Schmeer testified that Foo "was going over to see his wife and sons".

Robert C. Kneeland, a certified public accountant, said on the stand that he had known Foo for more than 20 years, and had prepared Foo's income tax statements. The witness stated that at least ten years previously Foo had spoken of having a son.

The appellee introduced the Immigration File, Exhibit 14, "solely for the purpose of impeachment", according to the District Court's ruling. Such use of that document was proper. In Wong Ken Foon v. Brownell, 9 Cir., 1955, 218 F.2d 444, 446, Judge Stephens said:

"It is legitimate cross-examination to confront a witness with former statements and permit or request him to explain.

"The trial before the District Court was, of course, de novo and not a review of the Immigration hearings and the record shows that the court considered all of the evidence in that light."⁵

The Immigration File reveals that on two separate occasions Foo swore that he had two sons only, and on one of those occasions he specifically denied having any daughters. Let us examine the record meticulously on this point.

In an "Application...