Mar Gong v. Brownell

• Decision Date: 12 January 1954
• Docket Number: No. 13787.,13787.
• Citation: 209 F.2d 448
• Parties: MAR GONG v. BROWNELL, Atty. Gen.
• Court: U.S. Court of Appeals — Ninth Circuit

209 F.2d 448 (1954)

MAR GONG v. BROWNELL, Atty. Gen.

No. 13787.

United States Court of Appeals, Ninth Circuit.

January 12, 1954.

Theodore E. Bowen, Los Angeles, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Clyde C. Downing, Asst., Chief, Criminal Division, Robert K. Grean, Asst., Los Angeles, Cal., for appellee.

Before STEPHENS, ORR and POPE, Circuit Judges.

POPE, Circuit Judge.

This is an appeal from a judgment for the appellee, 109 F.Supp. 821, in an action brought by the appellant under the provisions of § 503 of the Nationality Act of 1940, 8 U.S.C.A. § 903^* (repealed by the Immigration and Nationality Act of June 27, 1952, § 403.) Plaintiff's complaint asserted that he was a citizen of the United States because he was the son of Mar Kwock Tong, an American citizen who has lived and resided in the United States since 1924.¹

There is no question of the citizenship of Mar Kwock Tong; his father had been a natural born citizen of the United States, and he himself was admitted to the United States in 1924. He and his wife both testified that they were married in China in 1918; that their first son was born in 1919 and that appellant was their second son born to them after the father first came to the United States. The appellant himself testified that he was born at a certain village in China on September 13, 1924; that Mar Kwock Tong was his father, and Chin Poy Sue was his mother; that the alleged parents lived together in the village where the plaintiff was born until the time of the father's departure for the United States in 1924; that the father returned to China in 1933 when he moved the family residence to another village. On this occasion it was testified the father remained in China until January, 1935. During this period a third son was born to the same parents and a fourth son conceived. The mother and the third and fourth sons were admitted to the United States in 1948 and reside with Mar Kwock Tong in the Southern District of California. In 1951 the plaintiff applied for admission to the United States as an American citizen but his application was denied and he was ordered excluded after hearings before the Immigration and Naturalization Service. This action followed.

The court made findings of fact and conclusions of law in which it said: "The court does not believe the testimony of the plaintiff or of his witnesses; and there is insufficient evidence to support plaintiff's claim that he is a national or citizen of the United States," and found that plaintiff was not the blood son of Mar Kwock Tong.

Upon this appeal it is argued that such findings are clearly erroneous in that all of the witnesses testified positively that Mar Kwock Tong, admittedly an American citizen, married Chin Poy Sue and that the plaintiff, Mar Gong, was born to that marriage in China as the couple's second child. It is urged that this positive testimony was uncontradicted and we must follow the rule stated in Ariasi v. Orient Ins. Co., 9 Cir., 50 F.2d 548, 551, to the effect that in the absence of contradictory evidence and any inherent improbability in the testimony a court cannot arbitrarily reject the testimony of a witness which appears credible.

This court has had occasion recently to uphold the findings made by the trier of facts which refused to credit a witness' testimony even although that testimony is not contradicted. National Labor Relations Board v. Howell Chevrolet Co., 204 F.2d 79, 86, affirmed Howell Chevrolet Co. v. National Labor Relations Board, 74 S.Ct. 214.² Upon the plaintiff's own theory, all of the witnesses who testified on his behalf are interested and when viewed in this light their mere say-so does not have to be accepted. Flynn ex rel. Yee Suey v. Ward, 1 Cir., 104 F.2d 900, 902; Heath v. Helmick, 9 Cir., 173 F.2d 157, 161.

What has caused this court considerable difficulty in the application of the rule just mentioned, is the fact that the trial court in directing the preparation of findings in favor of the defendant, filed an extensive opinion which creates the impression that the findings are predicated upon considerations other than the evidence given in this particular case.

Fairness to the appellant requires us to examine the findings in the light of the court's opinion.³ The opinion states that the court had tried many similar cases brought by Chinese under § 503; that all those cases followed a certain pattern. The pattern was that the alleged father claimed to have returned to a village in China for the purpose of marriage; that within a year or so a child was born, then following a second conception the father returned to the United States; later application was filed for admittance of sons as citizens by virtue of their being the lawful issue of a father of Chinese ancestry who is himself a citizen. The court then listed what it called "a marked similarity of facts" among all these cases. These included the circumstance that offspring always followed cohabitation with the wife in China; the children are preponderantly male in startling proportions; that although the children came from rural villages with mud and adobe houses poorly lighted and ventilated, and with running water and plumbing unknown, yet all children born survived and none are deformed or ailing. The court pointed out that these are exceedingly unsatisfactory cases to try because the United States Attorney has no way to meet the testimony given in support of plaintiff's case; that the Immigration authorities and the State Department are very suspicious of these applicants; and "the government insinuates there has been substitution of children and that the individual before the court is not in truth and in fact the natural son of the alleged father but is, perhaps, a relative substituted for a son (who probably did not survive infancy) solely for the purpose of entry into the United States."

This lengthy discussion of the pattern of proof in cases filed under this section of the statute by other persons of Chinese ancestry would indicate that the court's findings here are based in part upon the circumstances shown in these other cases.

In comparison with most of the other cases mentioned in the court's opinion, the plaintiff here has made what would appear to be a strong showing. Unquestionably the alleged parents are husband and wife; they are the parents of two younger sons who reside with them at Los Angeles where the family is maintained;⁴ not only the plaintiff and his father testified that the plaintiff was lawful issue of the father, but the mother testified as well.⁵ The court was therefore confronted with testimony by persons admittedly husband and wife that the plaintiff was their son.

On the part of the defendant an effort was made by cross-examination of the plaintiff and his witnesses to turn up discrepancies in their testimony relating to certain details concerning which they had previously been examined at hearings before a Board of Special Inquiry when the Immigration authorities were considering the plaintiff's previous application for admission. Upon such inquiries the witnesses were asked a great many questions about matters not directly related to the issues before the Board but designed apparently to test their recollection as to a multitude of details relating to their family life in China. Thus they were asked to describe the family home in the Chinese village in minute detail, — the construction of the large door of the house; the construction of the smaller door; whether the doors were fastened at night; when the doors were installed; whether a wooden bar was used for fastening; how and of what material the furniture was made; where the meals were prepared; whether the family had a cat or a dog; how long the family had a cat; whether the children played with the cat; whether anyone in the village raised chickens. Apparently no detail of these parties' life in China, whether small or large, was omitted from the inquiries by the Special Board.

It is now claimed that when the record of these earlier examinations is laid alongside of the testimony given in the court below, and when the testimony given on these several occasions by the alleged mother or father is compared with that given by the plaintiff, discrepancies appear which throw doubt upon the veracity of these witnesses. The alleged discrepancies relate to three different matters, namely, some scars on the plaintiff's right forearm; the names by which the plaintiff was called; and the location of the Chinese village and of nearby villages.

We are of the opinion that the defendant has attempted to magnify these discrepancies so as to give them a significance which the record will not sustain. None of them relate to the basic issue whether Mar Kwock Tong sired the plaintiff. In view of the multitude of details about which inquiry was made, we doubt if any honest witness of average intelligence could survive as exhaustive an examination as this and disclose fewer discrepancies in his testimony.

It may be conceded that if the plaintiff and his alleged mother, Chin Poy Sue, lived in the same village in China they should be able to testify whether the nearby village, separated by a bamboo fence, was ten feet away or whether it was twenty feet away. But if one says ten feet and the other says twenty feet, it does not necessarily follow that one of them has testified falsely. As we recently had occasion to say: "Discrepancies * * * are commonplace in any trial. Discrepancies are more likely to appear in the record of the testimony of the candid witness than in that of an astute perjurer." Palakiko v. Harper, 9 Cir., 209 F.2d 75.

The discrepancy relating to the scars on plaintiff's right forearm arises out of the fact that he had such a scar which came from an accident sustained by him in China after his mother had left that country and had come to the United States. When she was questioned she was asked about a...