Matter of L----, A-10635395
| Decision Date | 19 February 1959 |
| Docket Number | A-10635395 |
| Parties | MATTER OF L---- In DEPORTATION Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
Discussion: Respondent is a native of China, 29 years of age, who was admitted to the United States on April 21, 1956, as the United States citizen son of L---- Y---- W----, a citizen of the United States. Following his admission he filed an application for a certificate of citizenship. The special inquiry officer found, following a hearing, that recently-developed evidence establishes that the respondent is an alien, a native and citizen of China, that he was not entitled to enter the United States as a citizen and is, therefore, deportable on the charge contained in the order to show cause. Respondent appeals to this Board from the order of deportation.
Following his application for a certificate of citizenship, and at the request of the Immigration and Naturalization Service, respondent and his alleged parents were asked to cooperate in the performance of blood-grouping tests. On September 28, 1956, accompanied by an immigrant inspector, they went to the Western Laboratories in San Francisco, California, where blood samples were taken for the purpose of establishing the groups, types and factors in the blood of respondent and his alleged parents. These tests are designed to establish the possibility or impossibility of the claimed parentage or relationship between respondent and the alleged parents. The pathologist who supervised the tests was Dr. Leonard Ortega, who later testified as to his own qualifications, described the techniques used in his laboratory, and the meaning of the test results and of the forms filled out and signed by him, part of exhibit 2.
On July 8, 1957, respondent and his alleged parents again cooperated in the performance of blood tests at the Latham Square Laboratories in Oakland, California, accompanied by Mr. H---- K----, their attorney. Dr. Paul Steiner later testified as to his own qualifications as a pathologist. He was not questioned by anyone regarding the methods used in his laboratory or the circumstances under which the tests were made. He was not asked whether he performed these tests or supervised their performance.
The results of the tests performed at both laboratories are identical. It was conceded by the examining officer and by counsel for the respondent that the interpretation of the test results is the primary issue in this case. The special inquiry officer stated to the attorney that it was his understanding that the Government contends that respondent is not the son of the alleged parents, and that counsel contends that he is the son of the alleged parents, and "that is the issue." Both counsel and the examining officer agreed to that statement of the case. The special inquiry officer stated further, "Then as I understand it there is no issue as to the accuracy or the methods used in the blood-grouping tests?" Counsel and the examining officer agreed there was no such issue.
We have had several cases wherein the testers for varying reasons had arrived at different results, but this is the first blood-grouping case to our knowledge wherein the test results are the same, but the testimony of two pathologists is conflicting as to the meaning of the tests. The findings of the two laboratories are reported in different forms, even though they purport to state the same test results. It is our opinion that the table appearing in Dr. Weiner's letter is most easily comprehended by nonmedical persons. (Dr. Alexander Weiner was chosen by both parties as arbiter, as we shall relate.) He states:
The findings of the two doctors may be summarized as in the table below:
Blood of— Group M-N type Rh-Hr type
Y---- W---- L---- (putative father)---------------- O MN Rh1rh
M---- Y---- L---- L---- (putative mother)---------- A MN Rh1Rh1
J---- K---- L---- [respondent]--------------------- A M Rh1Rh2
Dr. Ortega testified that following his graduation from medical school he had extensive training and experience in the field of pathology, that he supervised laboratories and blood banks in Texas and California, that he is at present an instructor of pathology at the University of California School of Medicine, that he has performed hundreds of blood typings for the purposes of transfusions, for the identification of blood stains in criminal proceedings, and for one to two hundred cases involving disputed paternity. He was asked who in his opinion were the outstanding authorities in the field of blood grouping and testing, and he named Dr. Alexander Weiner of New York, Dr. Race in England and Dr. Philip Levine in New Jersey. He testified that an exclusion of paternity may be demonstrated as the result of tests concerning any one of the three blood systems used for this purpose in routine medicolegal use. He stated that the first tests used in paternity cases concern the A-B-O system, next the M-N system, and last the Rh-Hr system, and that all the tests used demonstrate results which have firm bases in genetic law. He testified that the tests made in the instant case were actually performed four times in his laboratory, twice by each of two different technicians. The tests were repeated because they discovered there was an exclusion of parentage. He testified that the test results establish that respondent cannot be the child of the alleged father and mother, and that the exclusion of paternity was not discoverable through the A-B-O or the M-N tests but is established by the Rh-Hr tests.
Dr. Ortega testified that respondent, the alleged son, has in his blood the factor rh", and that both parents "are negative for this factor." He stated, He was asked, "Doctor, is it your opinion that this is a conclusive finding?" He answered, "In my opinion, yes, it is a conclusive finding." On cross-examination Dr. Ortega's testimony reads as follows:
Q. And if I were to tell you, Doctor, that I had a statement in writing by a pathologist who presumably is well qualified to the effect that he is not prepared to say that paternity is excluded in this case on the basis of the Rh factor, what comment would you have?
A. My comment would be that this pathologist is certainly at variance with practically every other serologist in the world.
Counsel called Dr. Paul Steiner, who testified to his medical school, graduate school, and special training in pathology. He testified that he is assistant pathologist and consultant pathologist to a number of laboratories and institutions in the San Francisco area, including the Veterans Administration and Mare Island Naval Hospital. He was asked to name the outstanding experts in the field of blood grouping, and he named the same three experts named by Dr. Ortega: Dr. Alexander Weiner, Dr. Race (whom he referred to as RaceSanger, apparently a team) in England, and Dr. Philip Levine. Dr. Ortega and Dr. Steiner testified separately, not in the presence of one another, and approximately two weeks apart. Dr. Steiner referred briefly to the A-B-O and M-N systems and then discussed at length the Rh system and the differences in nomenclature with regard to that system, describing the C, D, E, c, d, e designations developed by the British doctors Race and Sanger, and the Rh-hr symbols, developed by Dr. Weiner in this country. Dr. Steiner prefers to use the designations C, D, E, c, d and e for purposes of simplicity, rather than the Rh-hr designations. The subject of blood-group nomenclature is discussed in the "Supplementary Report of the Committee on Medicolegal Problems, American Medical Association," reprinted from the Journal of the American Medical Association, August 31, 1957, vol. 164, pp. 2036-2044. It is a controversy with which we need not concern ourselves here.
Dr. Steiner testified that exclusion of paternity based on what he terms the big E factor (rh") alone is too controversial to be fair. He considers it to be "a matter of doubt." It is his belief that the "big E factor" may consist of several factors, and that not enough is known about it at this time to justify basing an exclusion of paternity on that test. He quoted from several publications he believes support his view. He read from the American Journal of Human Genetics, December 1952, an article by Dr. Weiner, whom he quotes as saying, "The existence of individuals with the red cells lacking both factors Rh" and Hr" has an important implication for the medical-legal application of these tests in cases of disputed parentage, and this could lead to erroneous exclusions of parentage." It seems to us that this statement is not pertinent to the instant case. These persons are not lacking both Rh" and Hr"; the respondent's blood has in it the factor Rh" and, judging from Dr. Steiner's own test reports, he found the reaction to the anti-e (hr") serum to be "positive as to all three parties." The tests done by Dr. Ortega did not include the "e" (hr") test which is not recommended by the American Medical Association Committee.
Dr. Steiner continued his testimony by reading from the Supplementary Report of the Committee on Medicolegal Problems, American Medical Association, referred to above. The Committee consisted of Dr. Weiner, Chairman, and three other persons. Assuming the...
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