Yep Suey Ning v. Berkshire

• Decision Date: 15 November 1934
• Docket Number: No. 7423.,7423.
• Citation: 73 F.2d 745
• Parties: YEP SUEY NING et al. v. BERKSHIRE, District Director of Immigration.
• Court: U.S. Court of Appeals — Ninth Circuit

73 F.2d 745 (1934)

YEP SUEY NING et al. v. BERKSHIRE, District Director of Immigration.

No. 7423.

Circuit Court of Appeals, Ninth Circuit.

November 15, 1934.

Geo. W. Fenimore, of Los Angeles, Cal., and Stephen M. White, of San Francisco, Cal., for appellants.

Peirson M. Hall, U. S. Atty., and M. G. Gallaher and Howell Purdue, Asst. U. S. Attys., all of Los Angeles, Cal., for appellee.

Before WILBUR, SAWTELLE, and GARRECHT, Circuit Judges.

SAWTELLE, Circuit Judge.

Claiming to be grandsons of Yep Nom, a native American citizen, Yep Wing Ock, 13, Yep Wing Shuey, 9, and Yep Suey Ning, 6, all three natives of China, on July 28, 1933, arrived at San Pedro, Cal., and applied for admission to the United States as citizens, under the provisions of 8 USCA § 6.

Yep Wing Ock and Yep Wing Shuey alleged that they were full brothers, and the sons of Yep Gim Nuey, who died in the United States in 1928. Yep Suey Ning claimed to be the son of Yep Gai On.

The American citizenship of Yep Gim Nuey and of Yep Gai On, the alleged fathers in this case, is conceded. The two men were brothers, the sons of Yep Nom, a native American citizen who is now residing in China.

Section 6, supra, provides that, under certain conditions, not pertinent here "all children born out of the limits and jurisdiction of the United States, whose fathers may be at the time of their birth citizens of the United States, are declared to be citizens of the United States."

All three boys were excluded from admission by a board of special inquiry of the immigration service, held at San Pedro, on the ground that they are not the sons of the alleged fathers. On appeal, the Secretary of Labor, through her board of review, affirmed the excluding decision as to Yep Wing Ock and Yep Suey Ning, the appellants herein, but, as to Yep Wing Shuey, reversed the board of special inquiry and permitted entry.

Habeas corpus proceedings were instituted on behalf of the appellants. From orders of the court below discharging the writs, the present appeal is being prosecuted.

The relationship of each appellant to his alleged father is the only issue in the case. In support of his position that the relationship has not been established, the appellee relies upon a number of discrepancies between the testimony of the appellants and that of their supporting witnesses.

It is settled law that such discrepancies may be urged for such a purpose. In Ex parte Wong Foo Gwong, 50 F.(2d) 360, 362, this court said:

"The immigration officials must necessarily base their decisions upon conflicts or agreements that arise in the testimony of applicants for admission and that of their witnesses."

It is equally well settled that the burden of proving the claimed relationship is on the appellants. Hoo Gan Tze v. Haff (C. C. A. 9) 67 F.(2d) 234, 236.

Finally, it is fundamental that, unless the lack of a fair hearing or the abuse of discretion is shown, the findings of immigration boards on the question of citizenship are final. In Quon Quon Poy v. Johnson, 273 U. S. 352, 358, 47 S. Ct. 346, 348, 71 L. Ed. 680, the court said:

"It is clear, however, in the light of the previous decisions of this Court, that when the petitioner, who had never resided in the United States, presented himself at its border for admission, the mere fact that he claimed to be a citizen did not entitle him under the Constitution to a judicial hearing; and that unless it appeared that the Departmental officers to whom Congress had entrusted the decision of his claim, had denied him an opportunity to establish his citizenship, at a fair hearing, or acted in some unlawful or improper way or abused their discretion, their finding upon the question of citizenship was conclusive and not subject to review, and it was the duty of the court to dismiss the writ of habeas corpus without proceeding further. Many cases cited."

Guided by these basic principles of immigration law, we advance to an examination of the discrepancies, for the purpose of determining whether or not they were of such a nature that the two boards, in basing their excluding decisions thereon, denied the applicants "a fair hearing" or "abused their discretion."

Yep Wing Ock previously applied for admission to the United States on September 24, 1931, at which time he was 11 years old. He was excluded on the ground that he had failed to establish that he was the son of his alleged citizen father, Yep Gim Nuey. The record in that first hearing is before this court in the instant case, and is relied upon by both sides in support of their respective contentions.

At the 1931 hearing, in San Francisco, Yep Wing Ock testified that there was one outside window in each of the two bedrooms in his home, in his native village of Tung San, Sun Ning District, China. Yep Gai On, his uncle and chief supporting witness, declared that there were two such windows in each bedroom.

Yep Wing Ock said that there were no rice fields on either side of his village. Yep Gai On testified that there were rice fields "at the head or tail" of the village; and Yee Ngip Wo, one of the applicant's witnesses, who, in an affidavit, described himself as a cousin of Yep Gim Nuey, Yep Wing Ock's alleged father, asserted that there was a rice field in front of Tung San, "only about a quarter of a city block away," and that "there is also a rice field at the head and tail of the village." Since Yee Ngip Wo stated that he had seen Yep Wing Ock "outside the village," while "passing by," it is inconceivable that an 11 year old boy would have missed seeing the rice fields surrounding the settlement as he loitered in the outskirts.

Again, Yep Wing Ock said that there was no embankment around the fish-pond in front of the village. Yep Gai On testified that "the south rim of the fish-pond is an embankment about four feet high, made of dirt," and that such embankment is "the only wall in or around" the village.

The applicant asserted that there are no bamboo or other small trees on the top of a levee that he had said lies between the fish-pond and the village. Yep Gain stated that there were such trees.

In this connection, it should be observed that, though Yep Wing Ock positively declared in one part of his testimony that there was no embankment around the fish-pond, he nevertheless stated that there was a "levee" in front of the village, "between the houses and the fish-pond." Since the village faces south, the alleged levee, according to Yep Wing Ock, would be north of the pond. Yet his alleged uncle placed the embankment at the south rim of the pool. Thus, even if we interpret Yep Wing Ock's statement most favorably, as meaning that, despite his other testimony, there was an embankment at the fish-pond, he and his alleged uncle cannot agree as to its location.

Yep Wing Ock testified that there was no candy store in Hong Mee village, near Tung San. Yep Gai On stated that the only store in that village was a candy store. This is one detail that we should expect a small boy to notice.

The applicant said that he did not know where his paternal grandmother was buried, and that he had "never been there." On this subject, Yep Gai On testified in some detail:

"Q. Did Yep Wing Ock ever visit his paternal grandmother's grave with you? A. Yes.

"Q. How many times? A. Once during my last visit, and it took place the third month of this year.

"Q. Did any one else accompany you besides him to that grave at that time? A. My father, the two younger brothers of the applicant, and my two youngest sons. That is all."

This discrepancy is significant, when one remembers the importance that the Chinese attach to reverence for ancestors. This reverence has been judicially recognized. In Flynn v. Tillinghast (C. C. A. 1) 63 F.(2d) 729, 731, the court said:

"Ancestor worship is a well-known and deep-rooted custom in China, and the younger generations hold in reverence their forbears, especially after their decease. One would have a right, therefore, to expect some degree of accord in the family testimony as to the date and place of death of the parents and grandparents, and their place of burial."

In the instant case, the applicant did not only fail to state the location of his grandmother's grave, but denied ever having visited the place of burial, though his alleged uncle testified that he had taken the boy there that very year! The discrepant testimony on each side as to this matter is cleancut and unequivocal, and there seems very little likelihood of an error in interpreting, so strongly insisted upon in this case by counsel for the appellants.

Yep Wing Ock said that he attended the same school for four years, commencing at the age of 7 and continuing up to the end of the year before he testified. There was only one teacher at that school. The applicant did not know his name.

The appellant asserted that he last saw his alleged father, Yep Gim Nuey, "over ten years ago," when "I was 12 years old." He later changed his answer to "two years ago," "when I was ten years old." This would make the year that he last saw his father either 1921 or 1929. Neither answer accords with the record. Yep Gim Nuey's file and Yep Gai On's testimony show that Yep Gim Nuey was last in China in 1924, and that he died in Grand Forks, N. D., on July 7, 1928.

Yep Wing Ock declared that the house in which he had been living with his family in the home village was separated by a space of about three feet from the next house, or the first house in the sixth row. The applicant's house was said to be the second house in the sixth row from the head of the village. Yep Gai On, however, testified that the family home was so close to the first house in the row, that they touched. Yep Sok Soon, an alleged cousin of Yep Wing Ock, declared that the two houses "actually touched one another." Yep Hoy Seem, another alleged cousin, and Yee Ngip Wo, the alleged second cousin, also stated that the two houses touch.

Yep Wing Ock first...