Wong Kwok Sui v. Boyd

• Decision Date: 14 December 1960
• Docket Number: No. 16799.,16799.
• Parties: WONG KWOK SUI, Appellant, v. John P. BOYD, as District Director of Immigration and Naturalization Service at Seattle, Washington, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

285 F.2d 572 (1960)

WONG KWOK SUI, Appellant, v. John P. BOYD, as District Director of Immigration and Naturalization Service at Seattle, Washington, Appellee.

No. 16799.

United States Court of Appeals Ninth Circuit.

December 14, 1960.

COPYRIGHT MATERIAL OMITTED

J. P. Sanderson, Gerald Shucklin, Seattle, Wash., for appellant.

Charles P. Moriarty, U. S. Atty., James F. McAteer, Seattle, Wash., for appellee.

Before CHAMBERS and HAMLEY, Circuit Judges, and SOLOMON, District Judge.

CHAMBERS, Circuit Judge.

Wong Kwok Sui came into the United States in 1951 from China without controversy. At that time, he asserted, and apparently still does, that his father was Wong Fook Quong (hereafter Quong), admittedly a citizen of the United States, and that his mother was Mar Toy Fung (hereafter Fung), an alien and resident of Hong Kong.¹ Sometime in December, 1951, the Immigration Service issued him an identification card reciting citizenship. (He claims the initial procedures when he came into the country finally settled and concluded the question of his nationality. To this, we shall return later herein.)

Some months after arrival, Wong Kwok Sui's (hereafter Sui) problems which concern us began when his alleged brother in Hong Kong made application for a travel document to come to the United States. All three, Sui, Quong and Fung, submitted to blood tests. The results showed the blood of Sui and Quong to be compatible but the blood types of Sui and the alleged mother, Fung, incompatible.

On January 6, 1955, Boyd, as district director of immigration, issued a warrant for Sui's arrest on the ground that he was an immigrant not in possession of a valid immigration visa at the time of entry.² A "deportation hearing" was held before a special hearing officer on February 17, 1955, and continued to April 14, 1955. And on April 22, 1955, Sui was ordered deported because he had no visa at the time of the entry. (Sui says, he being a citizen, it was a hidden charge to try him for not having a visa.)

Sui sought a judicial review in the District Court for the Western District of Washington under the Administrative Procedure Act.³ There he was partially successful, the court holding that there should have been some evidence as to the qualifications of the doctor (one Vio) in Hong Kong who took the blood sample from Fung. Upon the remand, the deportation hearing was opened and the depositions of the two doctors in Hong Kong who had been concerned with the blood tests of Fung were taken on interrogatories of the Immigration Service and cross interrogatories of Sui. Thereupon, the reopened hearing was concluded and Sui was again ordered deported.

Once more Sui filed a complaint in the same district court for review of the proceedings. This time the record was found adequate to sustain Director Boyd's position. The decision of the special inquiry officer as approved by the Board of Immigration Appeals was upheld and the complaint dismissed. Now Sui has appealed to this court.

We have alluded to Sui's claim that the charge against him, that he was an alien who had and has no visa, is not permissible because he has already been admitted as a citizen. This charge makes a traversable issue as to whether he is a citizen and consequently not an alien. But he is wrong that his original admission and the issuance of an identification card constitutes an adjudication or an estoppel of the government. It is no more an adjudication or a final determination than when an immigration officer asks a person at the border who has taken a walk into Canada or Mexico if he is a citizen and passes him into the country. If so, thousands of adjudications would be taking place every day. The identification card certainly is nothing more than a prima facie matter administratively. No case cited by Sui on any point bears him out that his admittance constituted an adjudication of citizenship or estopped the director. And we can find none. United States ex rel. Vajta v. Watkins, 2 Cir., 179 F.2d 137, and Mannerfrid v. Brownell, 99 U.S.App.D.C. 171, 238 F.2d 32, are two of several cases squarely against him. Citizenship of course is a precious right and not to be denied lightly. So, the director has the burden of proof.

While we do not believe that the case ever got beyond a question of fact, still we think there was evidence from which a trier of fact could conclude that Sui was an alien. And it would pass as a preponderance, as clear,...