United States v. O'ROURKE

• Decision Date: 07 September 1954
• Docket Number: No. 9120.,9120.
• Citation: 125 F. Supp. 769
• Parties: UNITED STATES ex rel. Jim LEONG, Petitioner, v. J. L. O'ROURKE, Acting Officer in Charge Kansas City Division of the Immigration and Naturalization Service, United States Department of Justice, Respondent.
• Court: U.S. District Court — Western District of Missouri

125 F. Supp. 769

UNITED STATES ex rel. Jim LEONG, Petitioner, v. J. L. O'ROURKE, Acting Officer in Charge Kansas City Division of the Immigration and Naturalization Service, United States Department of Justice, Respondent.

No. 9120.

United States District Court W. D. Missouri, Western Division.

September 7, 1954.

Maurice E. Benson and Otto Schmid, Kansas City, Mo., for petitioner.

Edward L. Scheufler, U. S. Atty., Kansas City, Mo., William O. Russell, Asst. U. S. Atty., Joplin, Mo., for respondent.

RIDGE, District Judge.

Petitioner, being held under a warrant for his deportation as an alien, seeks release therefrom on a claim of United States citizenship.

A single issue of fact is presented in the instant habeas corpus proceeding, namely, "Is petitioner a citizen and national of China, and, therefore, an alien subject to deportation; or is he a citizen of the United States by birth?" If, as contended by respondent, petitioner is an alien the instant proceeding must be dismissed, as the Immigration and Naturalization Service has administratively determined that, as an alien, petitioner illegally entered the United States on April 7, 1947 in that he did not then present a valid visa, re-entry permit, or border-crossing card as required by the Act of June 28, 1940, 54 Stat. 673,¹ and because of false and misleading statements as to his citizenship he entered the

country without the required inspection in violation of the Act of February 5, 1917, 39 Stat. 874.² This administrative determination is final and conclusive upon this Court if petitioner is, in fact, an alien. However, making what we consider a substantial claim to United States citizenship, petitioner is entitled in the instant proceedings to a trial de novo on the question of his citizenship. N g Fung Ho v. White, 259 U.S. 276, 42 S.Ct. 492, 66 L.Ed. 938; Carmichael v. Delaney, 9 Cir., 170 F.2d 239; Lee Fong Fook v. Wixon, 9 Cir., 170 F.2d 245, certiorari denied, 336 U.S. 914, 69 S.Ct. 604, 93 L.Ed. 1077.

The factual issue here involved can be resolved by the consideration of whether the Government has sustained the burden, cast upon it by law, of producing substantial evidence in proof of the fact that petitioner is an alien and not a citizen of the United States. When a substantial claim of citizenship is made by a deportee, the burden is on the Government to prove that the deportee is an alien before he can be deported. Bilokumsky v. Tod, 263 U.S. 149, 44 S.Ct. 54, 68 L.Ed. 221; Brewster v. Villa, 5 Cir., 90 F.2d 853; United States, ex rel. Bishop v. Watkins, 2 Cir., 159 F.2d 505, certiorari denied, 331 U.S. 839, 67 S.Ct. 1509, 91 L.Ed. 1851; United States, ex rel. Rongetti v. Neelly, 7 Cir., 207 F.2d 281; United States, ex rel. Giglio v. Neelly, 7 Cir., 208 F.2d 337. Cf. N g Fung Ho v. White, supra. Evidence to sustain the burden of proof so cast upon the Government in a deportation case should be reasonable, clear, and substantial. Cf. U. S. ex rel. Marcello v. Ahrens, 5 Cir., 212 F.2d 830; Whitfield v. Hanges, 8 Cir., 222 F. 745; In re Giacobbi, D. C., 32 F.Supp. 508; Ex parte Delaney, D.C., 72 F.Supp. 312, affirmed, Carmichael v. Delaney, 9 Cir., 170 F.2d 239.

To establish that petitioner is an alien the Government wholly relies upon a single statement given by him to one of its investigators in 1949, wherein petitioner made certain admissions against his interest in saying that he was born in China. No other witness (not even the investigator who took the statement) nor any documentary evidence was adduced by respondent relating to that or any other matter here involved. Hence it appears that if we are to resolve the issue of alienage or citizenship here made it must be done by a consideration of the circumstances surrounding the making of that single admission against interest charged to petitioner, and the weight to be given thereto, measured in the light of the evidence now adduced by petitioner as to his birth in the United States. When so considered the following facts must be duly appreciated.

There can be no question but that petitioner has continuously resided in the United States at least since 1910, when he was four years of age, except for a period between February 3, 1947 and April 7, 1947 when he and his American-born wife took a delayed honeymoon trip to China. Petitioner claims he was born in San Francisco, California, on October 10, 1907. He asserts such claim because, although he has no personal recollection of his parents, he recalls going from San Francisco to St. Louis, Missouri, at an early age with his uncle, one Suey Leong, and that in 1932, after the death of his uncle, one Lee Lum Kee, who was then returning to China, gave him an affidavit in which Kee stated that he was well acquainted with the parents of petitioner and that:

"He had visited at their home in San Francisco many times before and after the birth of Leong Jim (petitioner); and that he saw said Leong Jim in his parents' home in San Francisco at frequent intervals after his birth, up until the return of his parents to China, at which time Leong Jim was a boy about twelve (12) years of age; that before the return of his parents to China they made arrangements with the deponent to leave the said Leong Jim in deponent's charge and custody; and deponent states "that said Leong Jim remained and lived with him and under his control until he reached the age of approximately twenty-one years, and that since said time deponent has seen Leong Jim at frequent intervals.

"Deponent state(d) that Leong Jim, whose affidavit preceded and whose photograph is attached thereto, is the same person who was born to Leong Sai Leong and Lum Shee in San Francisco in October 1904."

It is petitioner's testimony before the Court that after the death of his uncle in 1923 Lee Lum Kee, who lived in the same house as his uncle for ten or fifteen years, gave him the above affidavit and told him to keep it. He kept the affidavit but never used it for any purpose until he applied for his passport in 1947. Respondent claims that said affidavit is and was false and known to be so by petitioner at the time he used it to secure the passport issued to him and his wife and that it is wholly insufficient to support the claim of citizenship made by petitioner.

After the death of his uncle petitioner established a laundry in St. Louis, Missouri, which he operated until he moved to Evansville, Indiana. As a citizen he registered for the draft at Evansville in 1942, and sold his business upon being called for induction. When rejected for military service because of physical defects he went to Decatur, Illinois, then back to St. Louis for a short time, and finally to Kansas City, where he again established his own laundry. In 1946 he married a native-born citizen of the United States, the mother of two children. Since that time he and his family have continuously resided in Kansas City.

On November 14, 1946, petitioner and his wife applied for a passport to visit China. With his application petitioner, in support of his claim to citizenship, submitted an affidavit executed by himself and that of Lee Lum Kee. On the strength of such affidavits and a copy of the certificate of birth of his native-born wife a passport was issued to the couple as United States citizens. They left the United States on February 3, 1947 and returned on April 7, 1947. Petitioner was re-admitted into the country upon the strength of the above passport without any of the identification and inspection procedures required of aliens.

On July 14, 1949 petitioner was called before Investigator Thomas P. McDermott of the United States Immigration and Naturalization Service. Neither the cause nor the circumstances occasioning this summons are revealed in the record. Petitioner was informed by the Investigator that he desired to take a statement from petitioner concerning his right to be and remain in the United States and that any statement petitioner would make with respect thereto could be used against him either in criminal or deportation proceedings, or both. The only persons present at the taking of said statement were petitioner, his wife, Investigator McDermott, and a stenographer who transcribed the statement in question and answer form. From this transcript it appears that petitioner, logically, intelligently, and in proper syntax, made certain admissions against his interest. (It should be here noted that petitioner when testifying in his own behalf before the Court expressed himself ungrammatically, in more or less "pidgin" English.)

In the statement given to Investigator McDermott it is revealed that petitioner had previously been interrogated on January 21, 1949 and had made certain statements to McDermott at that time. Petitioner was asked if all the statements which he made at such prior interrogation were true and correct; he replied that they were not. He was then asked to point out "in your own words" that part of the prior statement which was not true. His recorded reply was that his prior statement that Lee Lum Kee had been present at his birth in San Francisco was not true, that Kee had not been so present. He was then asked why, if that part of his January 21 statement was not correct, did Lee Lum Kee execute the affidavit in which he had stated that he had been present at petitioner's birth. In explanation petitioner stated that Lee Lum Kee was a good friend of his uncle and "I guess the two of them got together and decided to make the affidavit." He was next asked how he knew that Kee was not present at San Francisco at his birth. In reply he is shown to have stated, "Because I was born in Canton, China, Ho Boc District, on October 10, 1906." When asked why he had told Investigator McDermott on January 21, 1949 that he was born in San Francisco on October 10, 1904, petitioner stated that he had done so because when Lee Lum Kee gave him the affidavit he told him to "stick to the story" given...