Nagle v. Wong Ngook Hong

• Decision Date: 06 August 1928
• Docket Number: No. 5388.,5388.
• Citation: 27 F.2d 650
• Parties: NAGLE, Commissioner of Immigration, v. WONG NGOOK HONG et al.
• Court: U.S. Court of Appeals — Ninth Circuit

27 F.2d 650 (1928)

NAGLE, Commissioner of Immigration, v. WONG NGOOK HONG et al.

No. 5388.

Circuit Court of Appeals, Ninth Circuit.

August 6, 1928.

Geo. J. Hatfield, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal., for appellant.

Geo. A. McGowan, of San Francisco, Cal., for appellees.

Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.

DIETRICH, Circuit Judge.

The two appellees, who claim to be cousins, are of Chinese parentage and nativity. On August 25, 1927, they applied at the port of San Francisco to enter the United States upon the ground that their fathers were both citizens of the United States and were domiciled therein. Hearings were held about a month later, resulting in the denial of both applications. Whereupon a petition for a writ of habeas corpus was presented in their behalf to the District Court. In due course the District Court granted the writ, and from the order discharging them from detention the Commissioner prosecutes this appeal.

The appellee Wong Gung Jue is a boy 13 years of age. His alleged father, Wong Wing, was born in San Francisco in 1879, and with the exception of three short visits to China has always lived in the United States; his present residence being Los Angeles. The appellee Wong Ngook Hong is 21 years old, and claims to be the son of Wong Theung, who, as he testifies, was born in San Francisco in 1877, and with the exception of two short visits to China has always lived in the United States.

The nativity and citizenship, as claimed, of the two alleged fathers, are now conceded by the Commissioner, and the one question, therefore, in each case, is the relationship of the applicant to the alleged father. Upon that issue it is further conceded that the alleged father, in each case, was in China during a period consistent with the theory of his paternity as claimed.

In the case of Wong Gung Jue, the applicant, his alleged father, and one Wong Wai Han gave testimony. There was also considered the record in a hearing had in 1925 upon the application to enter of one Wong Bing Jue, who claimed to be the older son of Wong Wing.

In the case of Wong Ngook Hong, there was received the testimony of the applicant, his alleged father, and Wong Wai Han. In this case, too, both Wong Gung Jue and his alleged father gave further testimony at the request of the immigration officials. In one case or the other, or both, other immigration records were considered.

Owing to the wide range of the examination of the several witnesses, repetition, and minute detail, the records are voluminous. Certain discrepancies are relied upon by the Commissioner, but we agree with the lower court that they are either only apparent or insignificant. No group of witnesses, however intelligent, honest, and disinterested, could submit to the interrogation to which these witnesses were subjected without developing some discrepancies. We analyze some of them.

According to the testimony, the homes of the two boys were not far apart, in the very small village of Wong Gar. Near by was another small village, called Sun Hah. To a question whether, in going from one village to the other, you "cross any streams or rivers or bodies of water," Wong Wing, who, it is to be remembered, lived only for three short intervals in China, the last being in 1914, answered, "Yes; we cross a small stream by means of a stone bridge over it." He was not asked to describe the bridge or estimate the width of the stream, which, as he stated, was ordinarily dry. Later the applicant Wong Gung Jue was asked the question, "Are there any streams or creeks between your village and Sun Hah village?" to which he answered, "No." And to another question he answered that "you can walk from one village to another without crossing a bridge."

Beyond all question, both witnesses had been in these villages and were more or less familiar with them, and how, therefore, such a discrepancy, even if unexplained, has any real significance touching the one material issue, is not apparent. Granted that two persons come from the same locality, there is no more reason for thinking they will disagree in respect to its geography, if they are falsely asserting relationship, than if they are making such claim in good faith. By the Board of Special Inquiry, however, this is pointed out as one of the eight major discrepancies, on the basis of which the witnesses were discredited. But under the testimony of the other applicant, Wong Ngook Kong, such substance as the discrepancy appears to have melts away. He also was asked the question whether, in going from one village to the other, you cross any streams or rivers, and he answered, "No," but added that there is an irrigation ditch that has a small bridge over it, and that the ditch is often dry.

Much is also made of the discrepancy respecting the overflow of a river near the Wong Gar village. Both applicants agreed upon the location of the river and that it sometimes overflowed its banks. The younger one did not remember any overflow that came into the house of his father or of his uncle. The older boy testified that the last overflow was "several years ago," and, though he did not remember the exact year, he stated that it was while he was away at school at Sun Ning City. He further stated that at that time the water "barely came into the house his father's; * * * the floor was covered;" and to the same extent, apparently, entered the house of his uncle, Wong Wing. The first year he was in school at Sun Ning was 1922, at which time the other applicant was only 8 or 9 years old. The older boy was not asked how, if he was away from home at school, he could have had knowledge of the extent of the overflow; and besides, if the water barely came into the house and soon subsided, the younger boy, who was also then attending school and might have been away from home at the particular time, may not have been greatly impressed by the fact that the river was slightly higher than he had seen it at other times. But again it is to be said that both boys undoubtedly lived there, and how the trivial discrepancy can be regarded as discrediting the theory of their relationship, we are unable to see. It is no more inconsistent with one theory than with the other.

Wong Wai Han testified that he went from the United States to China in 1925 and remained there about 18 months; he visited Wong Wing's home, where he saw the boy, Wong Gung Jue, two or three times. Upon then being asked whether he ever met the boy...