Oi Lan Lee v. District Director of Immigration and Naturalization Service at Los Angeles, Cal., 76-2755
| Decision Date | 21 March 1978 |
| Docket Number | No. 76-2755,76-2755 |
| Citation | 573 F.2d 592 |
| Parties | OI LAN LEE, Plaintiff-Appellant, v. DISTRICT DIRECTOR OF the IMMIGRATION AND NATURALIZATION SERVICE AT LOS ANGELES, CALIFORNIA, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Thomas N. Saldin, Marina Del Rey, Cal., for plaintiff-appellant.
J. Mark Waxman, Asst. U. S. Atty., Los Angeles, Cal., for defendant-appellee.
Appeal from the United States District Court for the Central District of California.
Before TRASK and KENNEDY, Circuit Judges, and THOMPSON, * District Judge.
On February 11, 1972, Oi Lan Lee, a permanent resident alien, filed a visa petition with the Immigration and Naturalization Service (I&NS), averring that one Sam Lee was her natural son. The petitioner asked that Sam Lee be accorded second preference status. 8 U.S.C. § 1153(a)(2). The I&NS notified appellant on May 11, 1972 that her petition had been approved subject to proof of the compatibility of her blood type with that of Sam Lee. Results of blood tests were submitted to the I&NS, and based on this report the district director informed Oi Lan Lee that he intended to revoke conditional approval of the visa petition. After appellant supplemented the record with briefs and rebuttal, the district director determined that she had failed to meet her burden of proof and revoked approval of the visa petition.
Appellant appealed the district director's decision to the Board of Immigration Appeals ("Board" or "BIA"). The Board dismissed the appeal. In the district court appellant sought a declaration that appellee had abused his discretion in denying a visa petition filed by the appellant on behalf of her son and a de novo hearing to determine whether her son should be accorded second preference status. The district court denied the requested relief and this appeal followed. We affirm.
The district director had before him evidence of blood types and medical testimony which conclusively proved that Sam Lee could not have been the natural son of Oi Lan Lee and her husband, who had been listed as the child's father on Sam Lee's birth certificate. Both had type O blood and their putative son had blood type AB. Appellant did not, and does not here, contest the district director's conclusion in this regard. However, she submitted an affidavit stating that Sam Lee was fathered by another man whose blood type is unknown and who is now deceased, as well as affidavits from persons claiming personal knowledge that appellant brought Sam Lee home as an infant from a maternity hospital and raised him as her own child.
The district director also considered the testimony of two doctors, one of whom is a recognized expert in blood grouping and analysis. The doctors were agreed that it was impossible for Oi Lan Lee and her husband to have a child with type AB blood. The blood grouping expert stated that there was, however, an extremely rare and unlikely possibility that if the blood type of the father were AB, a type O mother, such as appellant, could give birth to an AB child.
In reviewing the denial of preference classification, the district court was limited to determining whether or not the district director had abused his discretion. The district director must be found to have abused his discretion in this matter if his decision was based on an improper understanding of the law, or if there is no evidence to support the decision. Song Jook Suh v. Rosenberg, 437 F.2d 1098, 1102 (9th Cir. 1971); Loza-Bedoya v. Immigration and Naturalization Service, 410 F.2d 343, 346 (9th Cir. 1969). Appellant argues that the district director acted contrary to law in considering as evidence blood test results that did not definitely exclude the claimed relationship between Oi Lan Lee and Sam Lee, and that the decision to deny the petition is not supported by the evidence. For the reasons stated below we reject both contentions.
To support her position that it was not proper for the district director to consider the blood test data, appellant cites In re l______ f______ f______, 5 I. & N. Dec. 149 (BIA 1953), wherein the BIA stated: "It is essential that we make is (sic ) clear that only where definite exclusion of paternity is established shall the test be considered to be evidence." Id. at 157. The holding of that case is that when the claimed relationship is proved to be impossible by the results of properly conducted blood tests, the test results are to be deemed conclusive in I&NS proceedings. This holding has subsequently been codified in 8 C.F.R. § 204.2(c)(8) (1977). See Et Min Ng v. Brownell, 258 F.2d 304, 308 (9th Cir. 1958); United States ex rel. Lee Kum Hoy v. Shaughnessy, 237 F.2d 307, 309 (2d Cir. 1956), rev'd on other grounds sub nom. United States ex rel. Lee Kum Hoy v. Murff, 355 U.S. 169, 78 S.Ct. 203, 2 L.Ed.2d 177 (1957). That regulation allows the district director to require blood tests to be made whenever preference classification is requested on the basis of blood relationship, and requires the district director to withdraw conditional approval of a visa petition when blood test data conclusively precludes the claimed relationship. The regulation does not specify, however, what weight may be given to blood test data which is not conclusive. The BIA case cited by appellants grappled with the problem of the evidentiary value of blood test data prior to there having been any agency regulation to govern use of such test results. We decline to hold that the I&NS is bound by dicta in that case while a current regulation dealing with the collection and use of blood test data does not explicitly limit the extent to which such evidence may be considered by the district director in exercising his statutory discretion to revoke approval of visa petitions. 1
If the district director departed from previous I&NS policy in considering blood test data that is less than absolutely conclusive as to exclusion of blood relationship, the departure was a minor one since the test results in this case were all but conclusive. 2 Only an extremely...
To continue reading
Request your trial
-
Natural Resources Defense Council, Inc. v. U.S. E.P.A.
... ... United States Court of Appeals, ... District of Columbia Circuit ... Argued Jan. 27, 1988 ... Roger S. Greene, Irvine, Cal., entered an appearance for Citizens for a Better ... regulations would do more than pay lip service to public participation; instead, "[t]he public ... ...
-
Scharf v. U.S. Atty. Gen.
...of the citizen parent, and this may be sufficient to support an ultimate judgment for the Government. Oi Lan Lee v. Immigration and Naturalization Service, 573 F.2d 592 (9th Cir. 1978). Those results, however, although highly persuasive of noncitizenship, were not conclusive in the face of ......
-
Banks v. Immigration and Naturalization Service
...case must be decided on its own facts. Santos v. INS, 375 F.2d 262, 264-265 (9th Cir. 1967); and See e. g., Oi Lan Lee v. District Director,573 F.2d 592, 595 (9th Cir. 1978); 2 C. Gordon and H. Rosenfield, Immigration Law and Procedure, § 7.9d(5), Banks contends that deportation would work ......
-
Hong Kong TV Video Program, Inc. v. Ilchert
...improper understanding of the law, or if it is not supported by substantial evidence, the INS has abused its discretion. Lee v. INS, 573 F.2d 592, 594 (9th Cir.1978); Song Jook Suh v. Rosenberg, 437 F.2d 1098, 1102 (9th Cir. 1971). Judicial relief may also be warranted if it affirmatively a......