Wong Kew v. Ward, 6248.
| Decision Date | 22 July 1940 |
| Docket Number | No. 6248.,6248. |
| Citation | 33 F. Supp. 994 |
| Parties | WONG KEW ex rel. WONG YOOK v. WARD, United States Com'r of Immigration. |
| Court | U.S. District Court — District of Massachusetts |
Joseph F. O'Connell, of Boston, Mass., for petitioner.
Edmund J. Brandon, U. S. Atty., and William J. Koen, Sp. Asst. U. S. Atty., both of Boston, Mass., for defendant.
For a second time the decision of the Immigration and Naturalization Service of the Department of Labor excluding Wong Yook, who claims citizenship by reason of his birth in San Francisco, California, is challenged. I refused to disturb the earlier decision in habeas corpus proceedings on the ground that the applicant had not sustained his burden of showing that he was born in the United States.
The testimony at the earlier hearing compelled a conclusion that Wong Kew, one of the witnesses testifying for the applicant, had a brother named Wong Yook, who was born in San Francisco in 1899 and who, at an early age and after his parents had both died, went to China with a relative. Whether the applicant was the same Wong Yook was the pivotal question then presented. The evidence first received on this question might well have been deemed inadequate. The case was reopened in order to take the testimony of Deer Hung, who testified that he had known Wong Yook both in San Francisco and in China. It must be conceded that his testimony agrees with that of the applicant and his other witnesses in all material respects and, what is more important, the applicant was examined immediately after Deer Hung had completed his testimony, and he corroborated Deer Hung in almost every detail.
Both the Board of Special Inquiry and the Board of Review saw fit to disregard entirely the testimony of this additional witness. The Board of Special Inquiry in its supplementary memorandum admitted that the testimony of this witness and the applicant was in substantial agreement, but they go on to say: "However, our records show that the witness was located in the same restaurant where Wong Big (Bik) Choon, one of the witnesses in the original case, was manager and, therefore, could have been produced at the time of the original hearing in April 1939." The Board reached the opinion that the testimony of this witness did not overcome the adverse features upon which the original excluding decision was based.
As bearing upon the question of a fair hearing, it should be noted that the records do not show that the witness was located in the same restaurant where Wong Bik Choon was manager. Wong Bik Choon testified that he was manager of a restaurant at 422 Mass. Ave., Boston. Deer Hung testified that he did not go to work at 422 Mass. Ave. until June 1939 and that at the time the hearing was being held, he was working at King Wah Low Restaurant, 16 Tyler St., Boston. The following is quoted from the reported examination of Deer Hung:
It will be noted further that the Board of Review made the same error in referring to the record and quotes from the examination of the applicant's brother, Wong Kew, where he was told that the record showed that the witness was then working in the very restaurant where Wong Bik Choon was manager. Led by this incorrect statement of the record, Wong Kew replied that he didn't know that he needed Deer Hung before.
The Board of Review, as further justification for disregarding the additional testimony, stated that it appears that the reopening of the case was secured by misrepresentation and false allegation to the effect that the witness was unavailable at the time of the previous hearing, and that, therefore, the additional testimony was to be disregarded as not presented in accordance with the rules of the Department. On this aspect of the case it appears that the attorney who was looking after the interest of the applicant at the time of hearings in April 1939 died shortly after the first excluding decision was handed down, and the matter of the appeals to the Department of Labor was undertaken by another attorney. The attorney who made the request for reopening did not enter the case until the first petition for a writ of habeas corpus was filed. It is true that this attorney represented that the additional witness was not available at the time of the first hearing. I am satisfied that he...
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