United States v. Day
| Decision Date | 11 January 1932 |
| Docket Number | No. 191.,191. |
| Citation | 54 F.2d 990 |
| Parties | UNITED STATES ex rel. FONG ON v. DAY, Commissioner of Immigration. |
| Court | U.S. Court of Appeals — Second Circuit |
George Z. Medalie, U. S. Atty., of New York City (Leon E. Spencer, Asst. U. S. Atty., of New York City, of counsel), for appellant.
James C. Thomas, of New York City, for relator-appellee.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
Fong Bing Len, a person of Chinese descent, arrived at the port of New York on the steamship Silvia in December, 1929, and claimed admission to this country as a foreign-born son of the relator, Fong On, who is a native-born citizen of the United States. If the claimed relationship exists, the applicant for admission is himself a citizen by virtue of the statute. 8 USCA § 6. A hearing was accorded the applicant by a board of special inquiry. It decided against the applicant upon the issue of paternity, and on appeal to the Secretary of Labor the board's excluding decision was affirmed. Thereupon a writ of habeas corpus was sued out, to which the respondent filed a return, incorporating a transcript of the proceedings before the board and on the appeal to the Secretary. The District Court sustained the writ and referred the issue of paternity to a special master to hear evidence thereon de novo and report his conclusions. 39 F.(2d) 202. Upon the coming in of the master's report, which found in favor of the applicant, the order appealed from was entered.
A person of Chinese descent claiming the right to enter the United States as a citizen is not entitled to a judicial hearing on the issue of his citizenship. The determination of this question rests with the immigration officials, and, if they accord a fair hearing and reach a decision not utterly arbitrary, their finding is conclusive. 8 USCA § 104; United States v. Ju Toy, 198 U. S. 253, 25 S. Ct. 644, 49 L. Ed. 1040; Tang Tun v. Edsell, 223 U. S. 673, 32 S. Ct. 359, 56 L. Ed. 606; Ng Fung Ho v. White, 259 U. S. 276, 282, 42 S. Ct. 492, 66 L. Ed. 938; United States ex rel. Fong Lung Sing v. Day, 37 F.(2d) 36 (C. C. A. 2). The District Court held that the applicant had not been accorded a fair hearing, and the correctness of this decision is the first, and indeed, in view of the conclusion we have reached as to it, the only, question presented by this appeal.
While there were some slight discrepancies in the testimony of the applicant and of his putative father as well as in the testimony of the father given at this and a prior examination, we pass at once to the main ground of exclusion, namely, the apparent age of the applicant. The date of birth claimed for him was June 14, 1917, which would make his age 12½ years at the time of the hearing. If he was substantially older than this, he could not be the son of Fong On, whose first visit to China was undertaken in June, 1916. The applicant, his father, and the identifying witness testified to the boy's age as claimed but the record notes that in the unanimous opinion of the board of special inquiry he is at least 20 years old. He is five feet six and a quarter inches tall, and the full length photograph of him included in the record certainly gives him the appearance of being many years older than the age claimed. A certificate signed by a surgeon of the public health service states that he has examined the applicant and believes him to be at least 16 years of age.
When the age of a person becomes an issue and the person is present before the triers of the fact, it can hardly be doubted that they are at liberty to use their senses and to draw an inference as to the person's age from his physical appearance. 1 Wigmore, Evid. (2d Ed.) § 222; Wong Fook Ngoey v. Nagle, 300 F. 323 (C. C. A. 9). It is true that such inference cannot always be drawn with accuracy, and that the difficulty may be enhanced by the fact that the person whose age is in question is of an alien race; nevertheless we cannot say that the mature appearance of Fong Bing Len did not present some evidence in contradiction of the testimony that he was only 12½ years old. Moreover, the board had before it the certificate of the surgeon of the public health service. Such a certificate is competent evidence, although it would carry...
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