Petition of Sam Hoo, 80390.

• Decision Date: 13 November 1945
• Docket Number: No. 80390.,80390.
• Citation: 63 F. Supp. 439
• Parties: Petition of SAM HOO.
• Court: U.S. District Court — Northern District of California

63 F. Supp. 439

Petition of SAM HOO.

No. 80390.

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

November 13, 1945.

Daniel H. Lyons, Naturalization Examiner, of San Francisco, Cal. for the United States.

Kenneth Y. Fung, of San Francisco, Cal., for petitioner.

GOODMAN, District Judge.

The petitioner, a native and national of China, seeks citizenship under the provisions of section 311 of the Nationality Act of 1940, 8 U.S.C.A. § 711. He may be admitted under 8 U.S.C.A. § 711, if he shows that for at least one year preceding the filing of his petition for naturalization, he was married to a citizen of the United States and, for at least two years prior thereto, was a resident of the United States.¹

In support of his petition, petitioner alleges that he was married at San Francisco, Cal., in 1937 to an American citizen spouse and has three American born children as the issue of his marriage. If this marriage is valid, petitioner is qualified for citizenship. It appears however that petitioner was married for the first time in China in 1914; he remained there or returned there (the record is silent in the matter) long or often enough to beget two children as issue of the marriage. There is evidence by way of affidavit that this first wife died in China in 1928. In 1929, petitioner was again married in China to a Chinese national. He returned to the United States in 1930 and has remained here continuously since. There is evidence in affidavit form that the second wife, one Ng Shee, appeared in 1932 before the "elders" of Ai Pong Village in China and publicly declared that she severed her marital ties with petitioner. In the same affidavit it is stated that said Ng Shee subsequently married one Quon Quong, a teacher, and lived as man and wife with him. In another affidavit, it is alleged that Ng Shee died in China in 1938. Neither of the signers of the affidavits appeared before the court. No showing was made to the Court as to the legal effect of Ng Shee's so-called appearance before and statement to the village "elders" in 1932.

The Naturalization Service recommends the granting of the petition. Its recommendation is mainly based upon the claim that under California law the legality of a regularly solemnized marriage is presumed and that the burden of proof is upon him who seeks to attack such marriage, even though such burden might involve the proof of a negative. The following California cases are cited: In re Estate of Hughson, 173 Cal. 448, 160 P. 548; In re Estate of Harrington, 140 Cal. 244, 73 P. 1000, 98 Am. St.Rep. 51; Hunter v. Hunter, 111 Cal. 261, 43 P. 756, 21 L.R.A. 411, 52 Am.St. Rep. 180; Immel v. Dowd, 6 Cal.App.2d 145, 44 P.2d 373. It is true that these cases so hold, although the statute they interpret, Cal.Civil Code § 61, seems to promulgate a stricter rule. Civil Code § 61 reads as set forth in the margin.²

The petitioner has not, however, proved under subdivision 1 of § 61 that his former marriage in 1929 has been annulled or dissolved. Nor has he proved under subdivision 2 of the same section that his former spouse by marriage was not known to him "to be living for the space of five successive years immediately preceding such subsequent marriage." Moreover, the evidence produced by the petitioner himself shows that he knew his second wife to be alive within the five year period antedating his California marriage; further, that he had no reason to believe her dead when he married his American citizen wife; and that, actually, she did not die until the year after such marriage took place.

It may well be that the validity of petitioner's California marriage, if attacked by an interested party, would be sustained under California law, because of the presumptions indulged in and recognized by the California Courts. These presumptions clearly find their rationale in the laudable desire to sustain in the public interest and well being, the stability of the marriage status in matters relating to legitimacy, inheritance and other relationships growing out of and dependent upon the marital status. But the burden upon petitioner, when he seeks American citizenship, is different. The presumptions...