Ly Shew v. Acheson

• Court: U.S. District Court — Northern District of California
• Citation: Ly Shew v. Acheson, 110 F.Supp. 50 (N.D. Cal. 1953)
• Decision Date: 12 January 1953
• Docket Number: No. 30159,31161.,30159
• Parties: LY SHEW v. ACHESON, Secretary of State (two cases).

110 F. Supp. 50

LY SHEW v. ACHESON, Secretary of State (two cases).

Nos. 30159, 31161.

United States District Court N. D. California, S. D.

January 12, 1953.

Stanley J. Gale, Sacramento, Cal., for plaintiff.

Chauncey Tramutolo, U. S. Atty. and Charles Elmer Collett, Asst. U. S. Atty., San Francisco, Cal., for defendant.

GOODMAN, District Judge.

These are two suits, among hundreds, filed in this court by persons of Chinese ancestry, pursuant to Section 503 of the Nationality Act of 1940, 8 U.S.C.A. § 903, seeking judgment declaring plaintiffs to be nationals of the United States. Ly Moon, plaintiff in No. 31059, aged approximately seventeen years at the time of the filing of the complaint herein, and Ly Sue Ning, plaintiff in No. 31161, aged approximately fifteen years, both claim to be the blood children of one Ly Shew, the latter admittedly a male citizen of the United States by derivation. Ly Moon alleges that he was born in China, the son of Ly Shew and one Ly Chin Shee, on or about October 18, 1933; Ly Sue Ning alleges that she is the daughter of Ly Shew and Ly Chin Shee, born in China on or about January 26, 1937. Neither has ever been in the United States except for the immediate purpose of prosecuting these actions. Both claim United States citizenship by virtue of Section 1993 of the Revised Statutes¹ which bestowed citizenship upon foreign-born children of citizen fathers. Ly Moon's claim does arise under Section 1993 because that statute was effective at the time of his birth. But Section 1993 was amended in 1934, prior to Ly Sue Ning's birth, by the Act of May 24, 1934, 48 Stat. 797.² The amendment provided that United States citizenship should not descend to a foreign-born child of a citizen father until the child had resided in the United States for five years continuously preceding his eighteenth birthday. Ly Sue Ning has not and could not now meet that condition. Her claim to citizenship must rest upon Subsections (g) and (h) of section 201 of the Nationality Act of 1940, 8 U.S.C.A. § 601(g), (h),³ which supersede Section 1993 of the Revised Statutes. These Subsections of the Nationality Act retroactively vest United States citizenship in a citizen's child born abroad after May 24, 1934, the effective date of the amendment to Section 1993, subject to divestment if the child does not reside in the United States for a period totaling five years between the ages of thirteen and twenty-one.

The testimony at the trial, which lasted three days, was entirely given in the Toy Shan Chinese dialect and interpreted into English. Neither Ly Shew, the alleged father, nor the plaintiffs, nor the witness in behalf of plaintiffs, could speak a word of English.

Many times the interpreter carried on extensive dialogues with the witnesses before obtaining a response to a question propounded. Inconsistencies and contradictions in testimony became manifest. To fairly determine their effect is difficult, if not impossible. Familiar as we are in this court with Chinese-interpreted testimony, it can be categorically stated that it is well-nigh impossible to determine the credibility of such witnesses. At least, after ten years of constant trial work, I find it so. Against this unsatisfactory evidentiary background the following general picture has emerged:

Ly Shew, the alleged father of plaintiffs, was admitted to the United States in July of 1912, as a citizen. His citizenship was derived from his father by virtue of the citizenship of the latter. Ly Shew claims to have been, since his entrance into the United States and up to the time of the trial of the cases, a permanent resident of the City and County of San Francisco, State of California, in this District, making his livelihood here. During the course of the years following his entry into the United States, he made several trips to China. On the occasion of one of these trips in 1932, he claims to have married one Ly Chin Shee in the Toy Shan District, Kwan Tung Province, Canton, China. It does not appear that any marriage, according to Western standards was had, but that a declaration or acknowledgment of some kind, the nature of which is obscure, took place. He claims that in the following year 1933, plaintiff Ly Moon was born and that on a subsequent visit to China in 1937, the plaintiff Ly Sue Ning was born. He never engaged in any business in China, going there, as he said, to "rest and visit." His permanent residence was always in San Francisco. It may be said, without in any way intending to be facetious, that the main object of his visits to China was for the purpose of procreation. There is testimony that some money was sent to China by Ly Shew from San Francisco to his alleged wife.

As to the paternity of plaintiffs, the government did not and obviously could not present any evidence. For the area within Communist China, wherein plaintiffs claim to have been born and wherein the alleged mother is said to be, and wherein plaintiffs claim to have lived their entire lives, has long been closed to any opportunity for investigation or verification. Thus the only recourse of the defense was to cross-examine the witnesses.

The first, and, indeed the essential requisite to a just decision here, is to determine what standards should be applied in weighing and appraising the evidence offered in behalf of plaintiffs. For these and companion cases are not orthodox adversary suits. Despite the fact that the Secretary of State is party defendant, in every real sense, the people of the United States are defendants. This court is called upon to declare the nationality of plaintiffs. Hence the paramount necessity of an adequate legal yardstick with which to measure the evidence.

Proper selection of standards requires a preliminary consideration of certain historical background. As well it requires an analysis of the statutory history and purpose. And also there is needed an understanding of the unique problem posed by the hundreds of similar cases now before the court.

First as to historical background.

After the discovery of gold in California, a huge number of Chinese immigrants came to the United States, particularly to California. This mass immigration eventually resulted in the enactment of the Chinese Exclusion Acts⁴ in 1882, for by that time over 200,000 Chinese had come principally to California. These Acts were, from time to time, extended by successive statutes. They remained in existence until December 17, 1943,⁵ when all the Exclusion Acts were repealed. Simultaneously with repeal of the Acts, Chinese were made eligible for immigration and naturalization and an annual quota of 105 was established. 57 Stat. 600.

During the years prior to 1943, thousands of American males of Chinese ancestry, being unable, it is asserted, to find spouses in this country, made periodic visits to China and begot offspring. Up until the effective date of the Nationality Act of 1940, Act of Oct. 14, 1940, 8 U.S.C.A. § 501 et seq., there was no specific statutory provision which entitled persons living abroad and claiming United States nationality to have their nationality decreed by court order. So up to that time, American males of Chinese ancestry, who had begotten offspring on visits to China and desired to have the American nationality of such offspring established, as provided, since 1855, by § 1993, Revised Statutes, and, since 1934, by 48 Stat. 797, caused such offspring to come to the United States and they were either admitted by Immigration as United States nationals or denied admission. If any further recourse was sought, it was by way of habeas corpus in federal courts to review Immigration administrative decision. Upon such review, as is now well known, the limit of judicial inquiry was whether the administrative proceedings had afforded due process.

As to the history and purpose of § 903.

8 U.S.C.A. § 903,⁶ authorizing judgments declaratory of United States citizenship, became effective as a part of the Nationality Act of 1940 on January 13, 1941. But the first Chinese suit under § 903 was not commenced until August 1947. Mah Yung Og v. McGrath, D.C.Cir., 187 F.2d 199. And in this District the first Chinese case under § 903 was filed June 29, 1949. Two more were filed in the same year. In 1950, 22 additional cases were filed. In 1951, 161 cases were filed. Then came the deluge. By the close of business on December 24, 1952,⁷ there were on file in this District a total of 716 cases. By the same date, 189 cases had been filed in the Southern District of California, a grand total of 905 cases in both California Districts. As near as may be presently ascertained, a total of 1288 cases (including the California suits) have been commenced in the United States. Of the non-California cases, 9 were filed in the District of Oregon and 61 in the Western District of Washington. Thus 75% of all cases are to be determined in this District.

It has been blithely assumed that plaintiffs, who never have been in the United States and who have lived their lives as Chinese, have the status and right to avail themselves of § 903. Let us see, by studying Congressional proceedings and examining the language of the statute and its relation to the Nationality Code, whether this is so.

First of all it should be observed that Section 903 is a part of Subchapter V of the Nationality Code of 1940, which immediately follows Subchapter IV, dealing with the subject of expatriation or loss of nationality. The many new grounds for expatriation created by Subchapter IV prompted the Congress to afford a means of protection for persons abroad charged with being expatriates. While the opening words of Section 903 broadly state that "any person" denied a right of citizenship may seek a declaratory judgment, it is clear that the section was designed primarily to protect those who might run afoul of the expatriation provisions of Subchapter IV. See 86 Congressional Record 13247-48....