Damon ex rel. Wong Bok Ngun v. Tillinghast

MORTON, Circuit Judge. The only question is whether the evidence so clearly and convincingly establishes that the applicant is the son of Wong Fong Ling that the refusal to accept it was arbitrary and unreasonable. The story told by the applicant was that he was bom in Ai Yung Mee village in China on September 25, 1912; that his father, Wong Fong Ling, was bom in the United States and is now living in Ai Yung Mee village, having returned to China in 1911 and never since been in the United States; that the applicant lived in and around his native village until his departure on his present trip to this country. There is a supporting affidavit from the father executed before an American official in China. In support of the applicant’s story, there testified as witnesses his alleged brother, who recently applied for admission in New York and was rejected by the immigration tribunals there, and whose ease is now pending on habeas corpus before the Circuit Court of Appeals in the Second Circuit; Chin Cheung Nai and his wife, Moy She; Gong Yuen and his son, Gong Thick Foon. These five witnesses all said that they came from the same locality in China as the applicant; and their testimony was, as the immigration tribunals observed, in “substantial agreement” with him and with each other. The examination of these witnesses by the immigration tribunals was both skillful and searching, going into minute details. Considering that the witnesses were examined separately, it is hardly conceivable that the evidence, covering so many different witnesses, and given at different times and in different proceedings, is a fabricated invention. The evidence was rejected on two principal grounds: (1) Ontestimony given in other proceedings by sons of one Wong Gee; and (2) on the fact that a Chinaman, who applied for admittance to this country under the name of Chung Fong Kwong in October, 1928, and was deported in February, 1930, is the person who appears in a photograph, which was presented in these proceedings as that of the family of the applicant’s father, and is said by the applicant to have been taken in China in 1929, when Kwong was certainly in the United States. As to (1) the alleged father of the applicant and Wong Gee were admitted to- the United States in 1901, as brothers and native-' born citizens, by United States Commissioner Dudley. The evidence presented at that time was brief, there being only one identifying witness and he not being thoroughly examined. Three men have since been admitted as sons of Wong Gee. The records in the eases of these three sons were examined and incorporated into the present ease. They contain many discrepancies and contradictions of the applicant’s evidence, both as to persons and places. The immigration tribunals regarded this testimony as highly discrediting to the applicant’s ease. It could not reasonably be given that effect, unless it was clear that Wong Gee’s sons and the applicant are so related that the former would naturally know about, the applicant’s family [711] and surroundings. The contradictions and discrepancies are of such character as to suggest strongly the possibility that a fraud was perpetrated on the government in connection with the admission of the applicant’s alleged father and Wong Gee as brothers. The uncseapable doubt on this point greatly weakens the inference against the applicant. That uncertainty could not fairly or reasonably he ignored; but there is no mention of it in the decisions of the immigration tribunals. As to (2), even if Wong Bak Look, an older brother of the applicant, fraudulently endeavored to enter this country under the name of Kwong in 1928 and was detected and turned back, we do not perceive what bearing it has on the present ease, which deals only with the relationship of the applicant and Wong Bong Ling. On the other hand, the search of the department files revealed extraordinary corroboration of the applicant’s claim. In the case of Gong Thick Boon, which was heard by the immigration tribunals in New York in June, 1931, the applicant apparently came from the same village in China as the present • applicant. Two witnesses in that ease, being asked, apparently at random, who lived in the house on the first lot of the fourth row, Ai Yung Mee village, named the applicant’s alleged father and mother, said they had a family of seven sons and one daughter, and named the children almost exactly as they now appear. All through the evidence in that entirely independent proceeding, with which the present petitioner had nothing to do, there are references to this applicant’s family which accord with the present testimony. This highly significant corroboration is nowhere referred to in the decisions of the immigration tribunals, and apparently was not considered by them. A photograph said to be of the applicant’s family, a copy of which is said to have hung in the house in China, was also introduced. It represents, inter alia, a person who, as the immigration tribunals found, is the applicant, and also a person who looks like Kwong and is said to be the applicant’s brother, Wong Bak Look. The applicant dates the photograph as taken in 1929, when Kwong, or Wong Bak Look, was) in this country. If this dating is correct the photograph must be a fabrication. But if it was taken only a year earlier, when Wong Bak Look was certainly in China, all reason to doubt its genuineness disappears and it becomes highly persuasive evidence in the applicant’s favor. No consideration was given by the immigration authorities to this probability. The immigration tribunals appear to have been almost completely diverted, by the collateral questions above referred to, from a consideration of the real issue on which the case turns. The way in which they dealt with it was not that fair and reasonable determination of the applicant’s claim — which it is to be remembered involves American citizenship — to which he was entitled. The decree of the District Court is reversed, and the case is remanded to that court, with directions to issue the writ and discharge the petitioner.