United States v. Shaughnessy, 183

• Decision Date: 15 March 1955
• Docket Number: No. 183,23308.,Docket 23307,184,183
• Citation: 220 F.2d 537
• Parties: UNITED STATES of America, ex rel. DONG WING OTT, Appellant, v. Edward J. SHAUGHNESSY, District Director of the New York District of the Immigration and Naturalization Service, or such other person, if any, as may have in custody one Dong Wing Ott, Respondent. UNITED STATES of America, ex rel. DONG WING HAN, Appellant, v. Edward J. SHAUGHNESSY, District Director of the New York District of the Immigration and Naturalization Service, or such other person, if any, as may have in custody one Dong Wing Han, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

220 F.2d 537 (1955)

UNITED STATES of America, ex rel. DONG WING OTT, Appellant, v. Edward J. SHAUGHNESSY, District Director of the New York District of the Immigration and Naturalization Service, or such other person, if any, as may have in custody one Dong Wing Ott, Respondent.

UNITED STATES of America, ex rel. DONG WING HAN, Appellant, v. Edward J. SHAUGHNESSY, District Director of the New York District of the Immigration and Naturalization Service, or such other person, if any, as may have in custody one Dong Wing Han, Respondent.

Nos. 183, 184, Docket 23307, 23308.

United States Court of Appeals, Second Circuit.

Argued February 9, 1955.

Decided March 15, 1955.

Elmer Fried, New York City, for appellants.

J. Edward Lumbard, U. S. Atty., for the Southern Dist. of N. Y., New York City (Matthew A. Campbell and Harold J. Raby, Asst. U. S. Attys., and Lester Friedman, Atty., Immigration and Naturalization Service, New York City, of counsel), for respondent.

Before CLARK, Chief Judge, HINCKS, Circuit Judge, and SMITH, District Judge.

SMITH, District Judge.

Realtors, foreign born Chinese who sought admission to the United States pursuant to Section 1993, Revised Statutes, 8 U.S.C.A. §§ 1431-1433, as sons of a native American citizen father and a legally resident alien mother, appeal from an order of the District Court for the Southern District of New York dismissing writs of habeas corpus issued on their behalf to test the validity of the administration determination, affirmed on appeal to the Board of Immigration Appeals, that their claims to citizenship were not established, and to test the validity of the order for their deportation.

Relators had applied for admission to the United States and hearings were held at Ellis Island July 15 and 22, 1952 before a Board of Special Inquiry. The applicants were represented by counsel. The answers to the usual questioning of the applicants and their witnesses as to family history and background in China were consistent and had they been relied on by the Board it would have found the claimed relationship satisfactorily established.

However, the Board received in evidence without objection reports of the U. S. Public Health Service purporting to show ABO blood grouping and MN blood typing results of blood taken from applicants and their claimed parents. There was also received in evidence a pamphlet by Dr. Wiener, entitled Blood Grouping Tests in the New York Courts, reprinted from United States Law Review, December 1936, containing tables from which, together with the blood test reports, the Board found that neither applicant could be a son of the claimed parents.

The blood test reports having been signed by Dr. Cameron, of the U. S. Public Health Service, the Board of Immigration Appeals ordered the hearings reopened so that he might be questioned. He appeared and testified on the methods employed at his laboratory, that the tests had been made by a technician named Monica, qualified to take the tests, and that Dr. Cameron was not qualified as an expert in genetics to interpret the tests for their bearing on the issue of heredity.

The Board on April 22, 1953 adhered to its earlier ruling.

Appeal from this decision was dismissed by the Board of Immigration Appeals on July 31, 1953.

Writ of habeas corpus was issued by one of the judges of the District Court for the Southern District of New York, September 14, 1953.

The District Court, Murphy, D. J., on December 11, 1953, ruled that giving conclusive effect to a learned treatise on the question of paternity over direct and competent evidence to the contrary, without producing the author or some similar expert, although conveniently available, was error sufficient to sustain the writ unless the hearing should be reopened and additional evidence taken.

It was also held that opportunity for proof of discriminatory use of blood grouping tests against Chinese alone should be accorded.

The writ was ordered sustained unless within 20 days the hearing before the Board of Special Inquiry should be reopened. D.C., 116 F.Supp. 745.

The hearings were reopened, Dr. Wiener, a competent expert produced, and his opinion received that the result of the tests precluded the establishment of the paternity claimed by appellant, Dong Wing Han. As a result, the Board found that neither appellant had established the claimed parentage, since both had testified they were blood brothers. Another appeal to the Board of Immigration Appeals followed. The appeal was dismissed. On motion of the government, Judge Murphy then dismissed the writs of habeas corpus. From that order no appeal was taken, but new habeas corpus proceedings were brought, dismissed without opinion, no proof being offered, and these appeals followed.

Appellants contend that the blood tests taken were involuntary and therefore admission in evidence of the results a violation of their rights to due process.

Their testimony at the hearing of January 8, 1953, however, established beyond question that the tests were taken voluntarily. Both testified that they made no objection of any kind to submitting to a blood test at the request of the Immigration Service, Han adding that his father asked him to go along with him.

Appellants further contend that they were denied due process by the failure of the government to produce on demand Monica, the technician who had tested the blood and assigned to the samples the groupings and types on which the expert opinion as to non-paternity was based. His production, unless waived, might well be held essential to the competency of the tests as evidence. See United States ex rel. Lee Kum...