0300-419637 and 0300-420204
Decided by the Board July 31, 1953 Decided by the Board May 14, 1954
Paternity — United States citizenship, section 1993, revised statutes — Effect of refusal to submit to a second blood test.
Where a claim is made that a blood grouping test by the United States Public Health Service is inaccurate, it must be supported by competent evidence to controvert the findings of the United States Public Health Service. Refusal to submit to a second blood test by the United States Public Health Service or an individual authority must result in acceptance of the findings of the first blood test. (See Matter of L---- F---- F----, 0300-423162, Feb. 25, 1953, Int. Dec. No. 430; and Matter of W---- K---- S---- and W---- P---- S----, T-1495259 and T-1495260, May 20, 1953, Int. Dec. No. 444.)
EXCLUDED:
Act of 1924 — No immigration visa.
E.O. 8766 — No passport.
BEFORE THE BOARD
(July 31, 1953)
Discussion: This is an appeal from a decision of the board of special inquiry at New York, N.Y., excluding appellants as alien immigrants on the documentary grounds stated above.
Appellants arrived at New York on April 25, 1952. They sought admission as United States citizens pursuant to section 1993, Revised Statutes, as the sons of a native born American citizen father, D---- H---- L----, and a legally resident alien mother, C---- Y---- Y----. D---- W---- O---- claims to have been born in China on December 12, 1925, and now to be 27 years of age. D---- W---- H---- claims to have been born in China on December 10, 1926, and now to be 26 years of age. It is admitted that the alleged father was in China at the time when conception would normally have occurred for children born on these dates. The citizenship of the alleged father has been conceded.
The alleged father has already brought to the United States and secured the admission of 4 alleged sons and 1 alleged daughter. The appellants are said to be the 2 youngest sons of his family of 7 children.
Counsel complains that this is the third time this case has been before the Board, and that we have ordered two reopenings. The reopenings for clarification of the record were granted at counsel's request, even though it was obvious that such reopening would increase the costs both to appellants and to the Government and extend the time which appellants must spend in detention.
There is no affirmative evidence in this record establishing the claimed relationship, except the testimony of appellants and their alleged parents. There were no offers of family photographs, letters, evidences of monetary remittances or any of the usual evidences of a long-standing family relationship. The board of special inquiry found that appellants had reasonably good knowledge of the claimed mutual family background, the outward physical appearance of their alleged native village, and they were able to recite the names, ages, and family relationships of their various alleged relatives, both in China and in the United States. The decision of exclusion by the board of special inquiry in the case now before us was based primarily on the results of blood tests which were performed on specimens of blood of the appellants and the alleged parents. These tests show incompatibility of blood between appellants and the alleged parents.
The alleged parents were given blood tests by technicians of the United States Public Health Service at Staten Island on June 3, 1952. That test disclosed that the alleged father has BN blood, and that the alleged mother has OM blood.
The appellants were given blood tests by technicians of the United States Public Health Service at Staten Island, N.Y., on May 29, 1952. The tests disclosed that D---- W---- O---- has ON blood and that D---- W---- H---- has AM blood.
Exhibit 5 in this record is the pamphlet, "Blood Grouping Tests in the New York Courts" by Alexander S. Wiener, M.D. This pamphlet contains tables which summarize the laws of heredity as they apply to the inheritance of blood properties. These tables are also set forth in 163 A.L.R. 939, Annotation, and in other literature on the subject.
(A lot of material on this subject has been written by courts and nonlegal authorities since the note in A.L.R. was written.) Applying the information in the tables to the results of the tests in this case it can be quickly seen that the tests demonstrated that the alleged parents are not the blood parents of these appellants.
In the recent case of Matter of L---- F---- F----, 0300/423162 (Int. Dec. No. 430) decided on February 25, 1953, this Board considered at length the weight which we should assign to the results of such tests as these. We concluded after study of the cases and literature on the subject that blood grouping tests, properly performed by competent technicians, can disprove paternity conclusively in cases where there is incompatibility of blood.
In that case we cited extensive authority in support of our conclusions. We could discover no competent medical authority that disputes the conclusive character of blood tests, when they have been properly conducted.
One of the laws of the Landsteiner-Levine theory discussed by us in Matter of L---- F---- F---- ( supra), is that "a type M parent cannot have a type N child, regardless of the blood type of the other parent" and vice versa. This alleged mother with M blood cannot be the mother of appellant D---- W---- O----, who has N blood, regardless of the father's blood type. The alleged father, who has type N blood, cannot be the father of appellant D---- W---- H---- who has M blood.
Another of the rules set forth in our decision in Matter of L---- F---- F---- ( supra), and discussed in Dr. Wiener's dissertation is that two parents, one having B group blood and the other having O group blood cannot possibly be the parents of a child with A group blood. It thus becomes apparent that appellant D---- W---- H---- cannot be the child of the alleged parents whose blood falls in groups B and O, because his blood is group A.
In briefs and in appearances before this Board counsel has referred to a letter he received from the district director of the New York District of the Immigration and Naturalization Service dated August 11, 1952, exhibit 30 in this record, in which the alleged parents and the appellants were requested to report to the United States Public Health Service for a second series of tests. The letter states:
The reason for the second test is to insure against the possibility of error having been made in the first test in the laboratory or a clerical error in submitting the report.
Counsel believes that this letter supports his contention that the test results may not have been accurate and therefore should not be relied on by the Government in excluding these appellants.
Prior to this case we have had recent appeals involving blood tests of 17 Chinese applicants alleged to have derived United States citizenship. In most, if not all, of these cases when the blood tests demonstrated incompatibility of blood between the appellant and the alleged parents, the Immigration and Naturalization Service and the United States Public Health Service arranged for a second series of tests to be made. In some cases even three series of tests have been performed in order to insure the accuracy of the results. It is recognized by the Government agencies that it is enormously important to applicants in such cases as these that the tests be accurately performed and reported. The fact that second tests have been made or requested is not an admission of error on the part of the Government, but a recognition of the fact that the Chinese applicants had invested a great deal in their claim, and demonstrates a desire on the part of the Government agencies to be as fair as possible with them.
Counsel refused to permit appellants and their alleged parents to submit to a second series of tests. On July 15, 1952, he requested the board of special inquiry in New York to continue the hearing for 1 week in order that he might discuss the matter of blood testing with an expert in the field of hematology and "decide whether or not he would present an expert witness." On July 22, 1952, counsel informed the board of special inquiry that he had decided not to produce an expert witness.
Counsel's principal attack on the authority of the blood tests was an attack on the qualifications of Dr. Cameron, the supervisor of the laboratory wherein these tests were made. Dr. Cameron testified before a reopened hearing of the board of special inquiry, and described briefly the laboratory routine and procedures in making such tests. Dr. Cameron declined to qualify himself as an expert in the field of blood hematology, but stated that it was his opinion that Dr. Wiener is an authority in that field, a conclusion challenged by counsel. It is our opinion that Dr. Cameron does not have to be an authority in the immediate field of blood testing in order to know that Dr. Wiener is an authority in that field. Many authorities, both legal and medical, which have come to our attention refer to Dr. Wiener as a leading contributor to literature on this subject.
The fact that Dr. Wiener's pamphlet was written in 1936 does not indicate that the conclusions set forth in that publication are not accurate. On the contrary, everything that has come to our attention written before or since Dr. Wiener's pamphlet, demonstrates the accuracy of the conclusions set forth therein. For literature by other authorities on this subject reaching the same conclusions, see the bibliography appended to our opinion in Matter of L---- F---- F---- ( supra).
Counsel has requested that the Government produce expert witnesses to testify to the commonly accepted rules of the inheritance of blood properties. Unless counsel can demonstrate some real conflict between test results or authorities, there would appear to be no justification for putting the Government to the expense of paying expert witness fees to any of those persons recognized nationally as authorities in this field. Counsel complains that the United States Public Health Service has made mistakes in performing blood tests in the past and claims that the tests in this case might not have been properly performed. Such an assertion with no offer of evidence to disprove the results of the tests is, of course, entitled to no consideration whatever. To maintain his position, counsel would have to offer competent evidence to controvert the findings of the Public Health Service. He has not done this.
In the 17 cases before this one which we have decided recently on the strength of blood tests performed by the United States Public Health Service, the accuracy of the test results was challenged in 7 cases. Only in one case did the attorney offer proof controverting the results of the tests made by the Public Health Service. In that case, Matter of W---- J----, T-1497125 (May 11, 1953) the appellant was paroled at San Francisco on a $2,000 bond, and permitted to proceed to New York. There Dr. Wiener performed a second blood test and certified that the appellant had a different blood type from that reported by the testing technicians in San Francisco. Dr. Wiener certified that none of the three different tests which he performed showed incompatibility between the blood of the appellant and that of his alleged parents. We found that the results of Dr. Wiener's tests were inconsistent with the results of the tests performed by the United States Public Health Service technicians, and the record should be reopened for the purpose of including the privately performed tests in the record. To date that record has not again come before us. In that case counsel's motion was properly made. In the present case there is no such offer of proof.
In Lew Mun Way v. Acheson, 110 F. Supp. 64 (S.D. Calif. February 2, 1953) the government offered as evidence the results of two radiological examinations on the basis of which two doctors had declared the applicant to be 10 or 12 years of age rather than the 18 years claimed by him. The applicant offered no evidence to controvert these findings but the alleged father's affidavit. The Department of State refused to document the boy for travel to the United States as a United States citizen, the son of the alleged father. The court said:
* * * although there were present in Hong Kong many reliable physicians, qualified to conduct radiological examinations, no attempt was made by plaintiff to obtain such an examination in order to disclose whether the findings theretofore made in the separate examinations of the two physicians mentioned were incorrect. Either plaintiff did not avail himself of this opportunity to have the examination, or, if he did have the examination, the result coincided with the findings of the examining physicians heretofore mentioned and, therefore, was not presented to the State Department.
The court's observation as to the manner in which the independent radiological examinations could have been used to refute the findings of the physicians relied upon by the State Department applies as well to a situation where counsel seeks to dispute the results of blood tests.
In Matter of L---- K---- H----, et al., 0300/423253-54-55 (May 11, 1953) we said:
If counsel feels that the individuals making these tests may have gone wrong because of faulty techniques or that the results of the tests have not been accurately reported, the proper action would have been to have secured a new set of tests by unexceptionable hands. However, counsel offers no evidence in support of his contention that the results of the tests conducted by the United States Public Health Service are unreliable.
Counsel contends that the Immigration Service had no right to make such tests and that the Government was invading the privacy of appellants in requesting them to submit to the tests. Counsel did not object at the hearing on July 15, 1952, to the introduction of the blood test results in evidence. We have discussed these objections in the case of Matter of W---- S---- P----, et al., A-1497399-400-401, in which we said that an applicant attempting to enter the United States, alleging himself to be a citizen, has the burden of proof to establish his identity. If he is not the person he claims to be he is not a citizen. The obligation is on the United States Public Health Service and the Immigration and Naturalization Service to inform themselves as to whether the claim to citizenship is properly made. In at least two instances recently Federal courts have ordered plaintiffs and their alleged fathers to submit to physical examinations, including blood grouping tests. Ly Shew ex rel. Ly Moon v. Acheson and Fong Sik Lung v. Acheson, unreported (N.D. Calif., So. Div., August 27, 1952). The court stated that its action followed the decision in Beach v. Beach, 114 F.2d 479 (C.A., D.C., 1940), wherein it was found that rule 35 (a) of the Rules of Civil Procedure, 28 U.S.C.A., following section 723c, now authorizes such tests.
The above reference is to an order of the court which preceded the disposition of this case on its merits. The latter action is reported in Ly Shew v. Acheson, 110 F. Supp. 50 (S.D., Calif. January 12, 1953).
Counsel's other objections have been considered in Matter of L---- F---- F---- ( supra) and Matter of W---- K---- S---- and W---- P---- S----, T-1495259-60, (Int. Dec. No. 444) and we will not repeat here the discussion contained in those cases.
It is our conclusion that the record in this case establishes that the appellants have not sustained the burden of proving the claimed relationship to the alleged father. The appeal must be dismissed.
Order: It is ordered that the appeal be dismissed.
(May 14, 1954)
Discussion: The applicants arrived at New York on April 25, 1952, by plane from Hong Kong. They sought admission as United States citizens, the sons of D---- H---- L---- a native-born United States citizen, and a legally resident alien mother, C---- Y---- Y----. On July 31, 1953, this Board affirmed the excluding decision of the board on special inquiry and dismissed the appeal.
Appellants petitioned for a writ of habeas corpus. The United States District Court for the Southern District of New York held that such a writ would issue unless the hearing were reopened for the purposes specified by the court ( Dong Wing Ott et al. v. Shaughnessy, 116 F. Supp. 745 (S.D.N.Y. December 11, 1953)). In accordance with the order of the court, the hearing was reopened before a special inquiry officer who was substituted, with the consent of counsel, for the board of special inquiry, in accordance with recent statutory changes. The special inquiry officer, after hearing the evidence, reaffirmed the earlier findings and again excluded the appellants on the ground that they have not sustained the burden of establishing that they are entitled to admission to the United States as the children of a United States citizen. The case is again before us on appeal from this decision.
The United States citizenship of the alleged father has been conceded by the Immigration and Naturalization Service. The alleged mother was admitted to the United States in 1949 and is a legal resident, now living with the alleged father. The alleged father has already brought to the United States and secured the admission of 4 alleged sons and 1 alleged daughter. Appellants claim to be the 2 youngest sons of his family of 7 children.
The board of special inquiry originally found after extensive interrogation of the alleged father, the alleged mother and each of the appellants, and the special inquiry officer at the reopened hearing found that the testimony of all of them was reasonably harmonious and that they had a reasonably good knowledge of the claimed mutual family background. The findings of noncitizenship and the exclusion order were based primarily upon the appellants' lack of positive proof of the claimed relationship and upon the results of blood-grouping tests.
A series of blood-grouping tests were made on blood specimens of each of the appellants and on the alleged father and mother at the United States Public Health Service Hospital at Staten Island, N.Y., during May and June 1952. The results of these tests were interpreted by the board of special inquiry in accordance with tables set forth in exhibit 5 of this record, a reprint of an article entitled "Blood-Grouping Tests in the New York Courts" by Alexander S. Wiener, M.D. The board of special inquiry, the special inquiry officer and this Board found that the results of the blood tests were such as to exclude the possibility that these appellants could be the children of the alleged parents.
Frequently in the course of these cases the tables have been referred to by the courts and others as "Dr. Wiener's Tables." Perhaps this has been misleading, because these same tables appear in all literature on the subject of blood testing. (The inheritance of blood properties follows and has been shown to be consistent with the general laws of inheritance established by the science of genetics.) Dr. Wiener's pamphlet containing the tables, which was used as an exhibit in these cases by the Immigration Service, was used, we assume, rather than some other exposition on the subject, simply because it happened to be available in convenient reprint form, and because of the prominence of the author, a pioneer in this field. The same tables are set forth in 163 A.L.R. 923, in State v. Damm, 62 S.D. 123, 252 N.W. 7 (1933) in "Medicolegal Application of Blood Grouping Tests," by Davidson, Levine, and Wiener, now ex. B-2 in this record, published in Journal of American Medical Association, June 14, 1952, vol. 149, pp. 699-706. For historical background of these tests see this Board's opinion in Matter of L---- F---- F----, 0300-423162, Int. Dec. No. 430, now part of this record.
The procedure employed in making these tests was discussed by the court in United States ex rel. Dong Wing Ott v. Shaughnessy, 116 F. Supp. 745 at page 748. Blood specimens of the appellants and their alleged parents were subjected to two standard blood tests, the A-B-O test and the M-N test. The A-B-O tests resulted in findings that the alleged father's blood belongs to B group and the alleged mother's blood belongs to O group. The tests disclosed that the blood of D---- W---- O---- belongs to O group and the blood of D---- W---- H---- belongs to A group. Referring to the accepted tables of the inheritance of blood properties, it was discovered that, if the tests were accurate, D---- W---- H---- could not be the child of these parents, because two parents, one with B group and the other with O group blood* cannot have a child who has A blood.
See the following table:
Parents' blood groups: Groups of children not possible
A and A _______________ B, or AB. A and B _______________ None (i.e., all types possible). A and AB ______________ O. A and O _______________ B, or AB. B and B _______________ A, or AB. *B and O ______________ A, or AB. AB and B ______________ O. AB and AB _____________ O. AB and O ______________ AB, or O. O and O _______________ A, B, or AB.
Blood type of parents: Types of children not possible
M and M _______________ N, or MN. *M and N ______________ M, or N*. M and MN ______________ N. N and N _______________ M, or MN. *N and MN _____________ M. MN and MN _____________ None (all types possible).
The M-N test resulted in findings that the alleged father has blood that belongs to N type, and that the alleged mother has blood belonging to M type. D---- W---- O---- has N type blood*, and D---- W---- H---- has M type blood*, according to these tests. Using the blood test tables, it was found by the board of special inquiry; and by this Board in the past, that two parents, one with N type and the other with M type blood could not have a child with blood either of N or M type, and therefore both appellants were excluded on the basis of the M-N test also.
Following the first tests and upon the discovery that they demonstrated incompatibility of blood between appellants and the alleged parents, the United States Public Health Service requested appellants in a letter dated August 11, 1952, to submit to a second run of blood tests. In all of the cases we have seen, when blood tests performed by the United States Public Health Laboratory at Staten Island demonstrated incompatibility of blood between an applicant for admission and his claiming parents, the parties to the tests were requested to submit to a second series of tests in order to insure complete accuracy. In the instant case the alleged parents and the appellants refused at that time and have continued to refuse to submit to a second series of tests.
When appellants were before the United States District Court on their application for a writ of habeas corpus, the court declared that as a matter of notice and opportunity for hearing on the merits, there was no substantial objection to the use of Dr. Wiener's treatise in interpreting the results of the blood tests. The court held, however, that the failure of the Immigration and Naturalization Service to produce Dr. Wiener, or some similar expert conveniently available, to testify with regard to blood tests and to draw medical conclusions from the blood tests already in evidence is a defect sufficient to justify sustaining the writ. The court also found that the administrative rejection of relators' offer of proof of discrimination in the use of blood grouping tests against Chinese in exclusion proceedings was error, and that the hearing before the board of special inquiry should offer an opportunity both to appellants and to the Immigration Service to introduce evidence relating to the alleged discriminatory use of such tests.
It is the belief of this Board that the errors in and omissions from the record indicated by the court have been cured by the reopened hearing to the extent that it is possible, (1) in view of the refusal of appellants' counsel to submit appellants to additional blood tests conducted by any authority, and (2) in view of what seems to us to be the impropriety of counsel's request that the Immigration and Naturalization Service open a number of files for his inspection, in the hope that he might demonstrate that the Public Health Service in the past has made a number of errors in conducting blood tests and for other purposes.
In accordance with the court's instruction, the Immigration and Naturalization Service called Dr. Alexander Wiener, the author of Blood Grouping Tests in the New York Courts, and other publications. Dr. Wiener was qualified as an expert, and counsel did not challenge his qualifications. He testified as to the history and development of blood tests and as to their accuracy and efficacy at this time. He stated that there has been no change in the conclusions set forth in the article written by him in 1936, and that all experience since that time has been consistent with views expressed in that article. He declared that with more experience the earlier conclusions have been straightened. There was placed in evidence as exhibit B-2, a reprint of a newer article, Medicolegal Application of Blood Grouping Tests, by Dr. Wiener, Dr. Israel Davidsohn and Dr. Philip Levine, reprinted from Journal of American Medical Association, June 14, 1952. This review of the subject repeats and amplifies much of the material contained in exhibit 5.
Dr. Wiener testified that A-B-O, M-N and Rh blood systems are completely separate, independent, unrelated blood group systems, that there are a number of others (described in ex. B-2), but that the less known systems have not yet any practical medicolegal significance. He testified that it is immaterial whether parentage is disproved by one, two or all three blood tests, that any of the three tests is equally valid in disproving parentage. Some of his testimony was general and did not relate specifically to the facts in this case but was given as background information. He discussed techniques, theory and Rh tests, which were not used in this case.
Dr. Wiener testified that an ordinary hospital technician, qualified to perform A-B-O tests for transfusion purposes is competent to perform A-B-O tests for all purposes. He testified that he has no reason to doubt that the United States Public Health Service technician who made the blood grouping tests in this case to be competent to determine A-B-O classifications. He does doubt that this same technician is competent to perform M-N tests, because an M-N test to be reliable should be performed only by persons who do those tests frequently and regularly. A further reason for believing that the M-N tests in the present case may not be reliable, he testified, is that on two occasions he has disagreed with M-N tests performed by the United States Public Health Service. Dr. Wiener testified that the only discrepancies or errors he has found in the United States Public Health Service tests have involved M-N tests and never A-B-O tests.
With regard to the exhibits in the present case prepared by the United States Public Health Service, Dr. Wiener testified that neither completeness nor crudity in a report form is any gauge of the accuracy of the test results reported, that the only reason he would question the test results reported in exhibits 1-4 of this record are that he notes a discrepancy between the blood of the alleged parents and the children, and he would want to examine further into such a situation.
Dr. Wiener stated that he believed that Dr. Cameron, Chief of the Department of Pathology of the United States Public Health Service Hospital at Staten Island, is qualified to perform A-B-O tests, and therefore his technicians whom he trained would necessarily be qualified. He stated that the fact that the person makes an error in an M-N test does not necessarily shake confidence in his A-B-O tests, that errors in M-N tests are to be anticipated, because of the nature of the tests. He stated that there is hardly any mechanical difficulty in making A-B-O tests, that potent serums for this test are readily available on the open market and, if produced by one of the recognized serum producing firms, are certified by the National Institute of Health.
Dr. Wiener said that for the purposes of testifying in legal proceedings he preferred not to rely on the conclusions drawn from tests made by other persons, but preferred to make his own tests. He stated, "Naturally, if you testify you want to say you did everything with your own hands, you saw everything. However, if I were compelled to offer an opinion in a case like Dr. Sussman, I would take his report on face value."
Dr. Wiener's testimony provided the answers to several questions that have been asked by representatives of applicants in the blood grouping cases. Counsel has contended on a number of occasions that subjecting appellants to blood tests is dangerous to their health, that there is a possibility of infection. Dr. Wiener was questioned by counsel on this subject and testified that the possibility of infection is infinitesimal, that theoretically there is always a possibility of infection when the skin is broken, but that he had never heard of a case of infection, even in the Army where millions of blood specimens were taken for blood testing purposes. He said that he alone must have been responsible for nearly half a million punctures and that he considers that infection "is unheard of."
In several of the cases involving blood testing the question has arisen as to whether or not Asiatics have the same kinds of blood as Caucasians and Negroids, because most of the testing has been done among these latter races. Counsel asked Dr. Wiener whether he had done research among the Chinese and if the blood of the Chinese is different from that of any other race. Dr. Wiener testified that he published an article on the distribution of blood groups in the Chinese people with a Dr. Yi who was in New York during the war. There was a Chinese blood bank there, and Dr. Yi took specimens, and Dr. Wiener typed the specimens. He said that the types are identical but that the frequencies of the types are different. That is, the percentages or distributions of each type differ, but otherwise there is no difference.
The usual distribution is said to be as follows: Group O includes approximately 45 percent of the population; group A includes approximately 42 percent of the population; group B includes approximately 10 percent of the population, and group AB includes approximately 3 percent of the population. 163 A.L.R. 923.
Several doctors testifying in these cases have suggested that if a competent authority is not available in the locality, blood is transportable and durable and may be frozen and shipped to another city where there is an expert in blood testing.
The judges of the court of special sessions, after consultation with the New York Academy of Medicine, approved a panel of six doctors, including Dr. Wiener, to conduct blood tests in paternity proceedings before the court. The Immigration and Naturalization Service commenced to use this panel after the time of the original hearing in this case. Dr. Leon Sussman, who operates a private blood laboratory in New York City testified in Matter of L---- K---- H----, etc., 0300-423253-54-55 (May 11, 1953). He was called by counsel for appellants in that case to testify as an expert witness. Dr. Sussman testified that he is also a member of the selected panel, that when the Immigration and Naturalization Service desires a blood test conducted, the applicant is now presented with the panel of qualified experts, that the applicant selects one name from that panel, and that doctor conducts the blood test. The New York Office of the Immigration and Naturalization Service at first attempted to permit the applicant to choose his own doctor, since he was paying the fee. Finding that some doctors were not qualified and that the questions of fraud and overcharging arose, the procedure outlined by Dr. Weiner and Dr. Sussman was agreed upon.
The outstanding line of cases upholding blood test evidence is from the New York Courts: Dellaria v. Dellaria, (1944) 183 Misc. 832, 52 N.Y.S. (2d) 607; Schulze v. Schulze, 35 N.Y.S. (2d) 218 (1942); D'Agostino v. D'Agostino, 173 Misc. 312, 17 N.Y.S. (2d) 905 (1940); Cuneo v. Cuneo, 96 N.Y.S. (2d) 899, 198 Misc. R. 240 (1950); Scalone v. Scalone, 98 N.Y.S. (2d) 167, 199 Misc. Rep. 210 (1950); Saks v. Saks, 189 Misc. 667, 71 N.Y.S. (2d) 797 (1947); Clark v. Rysedorph, 118 N.Y.S. (2d) 103 (Sup.Ct. App. Div. 1952). Wong Yoke Sing v. Dulles, 116 F. Supp. 9 (E.D.N.Y., 1953), recently recognized the value of blood testing evidence.
Dr. Wiener testified that he, himself, has performed blood tests in approximately 2,000 court cases and 4,000 family studies, that never was there any doubt as to maternity, and the studies never once showed nonmaternity, but they frequently showed nonpaternity.
At the reopened hearing held on January 26, 1954, counsel submitted a report of a blood test, allegedly performed by Dr. Wiener on the blood of the alleged parents on September 24, 1952. This report was never before placed in evidence in this record, and it never was presented to us any of the three times the case was before this Board. According to the tests performed by Dr. Wiener, the alleged father has the same blood shown by the United States Public Health Service test (BN), but the alleged mother has blood belonging to the M-N group. Therefore, D---- W---- O---- with blood belonging to N type could possibly be the child of this marriage. (See footnote 2, N father and M-N mother can have children with blood of M or M-N type, but not of N type.) D---- W---- H---- with blood belonging to M type still could not be the child of the claiming parents.
There was some discussion in the reopened hearing as to whether or not the alleged mother is the same person as the woman whose blood tested by Dr. Wiener. It is our conclusion that the record supports a finding that she is the same person, in spite of the confusion of names and the smeared fingerprints on the blood testing report, and in spite of a statement made by counsel in his brief of December 9, 1952, as follows: "Dr. Wiener was not called as a witness and of course no opportunity was afforded to cross-examine him, nor is there any evidence that Dr. Wiener has ever heard of this case or of the tests made of the blood of these aliens." [Emphasis supplied.]
Mr. Davidson has been counsel for these aliens since the time of their first hearing before a board of special inquiry at Ellis Island on July 15, 1952, and it seems he should have known if they had gone to Dr. Wiener in September 1952, for independent tests. The special inquiry officer did not ask counsel or the alleged parents where the report of Dr. Wiener's blood tests has been since September 1952. There is no explanation of how the alleged parents happened to go to Dr. Wiener's laboratory, of how the reports came into counsel's hands at this late stage of the litigation, or why it has not been presented to this Board or to the United States District Court for consideration before this.
Accepting the tests of Dr. Wiener as conclusive of the mother's blood type, and as corrective of the Public Health Service finding as to her blood type, the blood tests do not exclude appellant D---- W---- O---- as a possible child of the alleged parents. D---- W---- H---- cannot be their child, because both the A-B-O and the M-N tests demonstrate incompatibility of blood between that appellant and the alleged parents. However, O----'s claim is entirely dependent upon the testimony of the other three members of the alleged family group, and since they are discredited as witnesses because of the blood tests which prove that H---- is not their child, D---- W---- O---- also must be excluded.
Counsel contends that there is no statutory authorization for physical examination of aliens by Government doctors. If indeed statutory authorization is needed for physical examinations of foreign born claimants to citizenship arriving in the United States for the first time (and blood typing is part of physical examination, Beach v. Beach, infra), it is provided by section 234 of the Immigration and Nationality Act of 1952, 8 U.S.C. 1224, formerly 8 U.S.C. 152, section 16 of the Immigration Act of 1917, as amended, the Public Health Service Act, 42 U.S.C. 252, and Public Health Service Regulation 42 C.F.R. 34.1. There are other statutes and regulations providing for medical and surgical treatment and dental care for aliens and "persons when detained". The fact that these appellants claim to be citizens and not aliens does not deprive the service of the power and duty to give care and treatment to conduct the necessary examinations under these laws and regulations. Until a determination has been made as to whether they are citizens or aliens, it may be administratively practical and a necessary precaution for the health and protection of all detainees that they be accorded the same treatment.
8 U.S.C. 1224: * * * Aliens (including alien crewmen) arriving at ports of the United States shall be examined by at least one such medical officer or civil surgeon under such administrative regulations as the Attorney General may prescribe, and under medical regulations prepared by the Surgeon General of the United States Public Health Service.
42 U.S.C. 252: The Surgeon General shall provide for the making, at places within the United States or in other countries, such physical and mental examinations of aliens as are required by the immigration laws, subject to administrative regulations prescribed by the Attorney General and medical regulations prescribed by the Surgeon General with the approval of the Administrator.
Public Health Service Regulations, 42 C.F.R. 34.1: The provision of this part shall apply to (a) the medical examination and reexamination of aliens presented therefor to the Public Health Service upon the arrival of such aliens at a port of entry, or upon an application for a visa at a foreign consulate of the United States, and (b) the medical and other care, and burial, of aliens admitted to Public Health Service stations and hospitals at the request of the Immigration Service.
42 U.S.C. 249. 42 C.F.R. 34.11 (a).
Since counsel for appellants has refused to permit additional blood tests by any authority, the United States District Court, if this matter comes before it again, may order new blood grouping tests without additional statutory authority. This action was taken by the court in Beach v. Beach, 114 F. (2d) 479 (C.A.D.C., 1940), and in Ly Shew ex rel. Ly Moon v. Acheson, No. 30159 (this order unrep. but later proceedings rep. 110 F. Supp. 50 (S.D. Calif., 1953) and Fong Sik Leung v. Acheson, unrep. No. 30318 (N.D. Calif. S.D. August 27, 1952).
In ordering blood grouping tests made, the court stated:
The defendant having moved, pursuant to rule 35, of the Federal Rules of Civil Procedure, for an order directing the plaintiff herein and his alleged father to submit to a physical examination, including blood grouping tests, and it appearing to the court that such tests, if made under proper conditions by persons competent to make and evaluate such tests, may have probative value to disprove, but not to prove paternity and thus may be admissible on a trial on the merits if the trial court should find that the question of paternity is legally an issue, and it further appearing to the court that such blood grouping tests may properly be ordered under said rule 35 (See Beach v. Beach), it is by the court ordered that the defendant's said motion for an order directing the plaintiff herein and his alleged father to submit to a physical examination, including blood grouping tests, be and the same hereby is granted and the defendant is directed to prepare an order in conformance with the provisions of said rule 35. Dated August 27, 1952. Michael J. Roche, Chief United States District Judge.
An important recent case involving blood testing (not yet decided when the present controversy was last before us) is Wong Yoke Sing v. Dulles, 116 F. Supp. 9 (E.D.N.Y., 1953) wherein the plaintiff had applied to the Department of State for a statutory certificate of identity to enable him to travel from Hong Kong to the United States to testify in his action for a declaratory judgment under section 503 of the Immigration and Nationality Act of 1952. His application was denied by the American Consul, and he appealed to the Secretary of State. The Secretary offered to issue the certificates if the plaintiff's alleged mother would submit to a blood test, and if the test showed a possibility of a physical relationship between the mother and the plaintiff son. The alleged mother failed to submit to the blood test, but in spite of this failure, the plaintiff applied to the court for an order directing the issuance of the certificate of identity. The court held that the plaintiff should be given another opportunity to obtain a blood test of the alleged mother and set the period of 90 days for that purpose, during which time the defendant administrator was instructed to render plaintiff all possible assistance. The court further ordered that at the end of this period the defendant should issue an order either denying or granting the certificate of identity and stating his reasons therefor. There was no discussion of the propriety of the request by the Secretary of State that blood test evidence be offered to support the request for the travel document. The court apparently accepted without question the value of blood testing evidence.
What inference may be drawn from appellants' refusal to submit to blood tests by their own doctor?
In Wong You Henn v. Brownell, 207 F. (2d) 226 (C.A.D. of C., 1953) the plaintiff urged as error an unfavorable inference drawn by the trial judge from plaintiff's failure to take certain depositions in Hong Kong. The trial judge had suggested the value of such depositions from persons who had custody of plaintiff from an early age. The plaintiff declined to take such depositions, although the trial court offered a suitable continuance for that purpose. The appellate court held that the unfavorable inference drawn by the trial judge was unavoidable and proper.
The basic rule with regard to the nonproduction of evidence is stated in Wigmore, volume 2, paragraph 285, as follows:
The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstances or document or witness, if brought, would have exposed facts unfavorable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which make some other hypothesis a more natural one than the party's fear of exposure. But the propriety of such an inference in general is not doubted.
The nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party's cause. Ever since the case of the Chimney-sweeper's Jewel, this has been a recognized principle (1722, Armory v. Delamirie, 1 Strange 505). [Emphasis supplied.]
Wigmore then reviews a great number of cases expounding this principle, both English and American, from 1705 to the present day. A typical case is Wesson v. United States, 172 F. (2d) 931 (C.A. 8, 1949), in which the court said:
The failure of the Government, under the circumstances disclosed, to call these witnesses justifies, if it does not compel, the inference that their testimony would have been against the Government (citing cases).
Again in Neidhoefer v. Automobile Insurance Co. of Hartford, Conn., 182 F. (2d) 269 (C.A. 7, 1950), the presumption was stated:
The rule is well established, and we think it is of significance in the instant situation, that the failure to produce evidence, which under the circumstances would be expected, gives rise to a presumption against the party failing to produce it. [Emphasis supplied.]
In Chicago, M., St. P. P.R. Co. v. Slowik, 184 F. (2d) 920 (C.A. 8, 1950), the court declared that the failure of the plaintiff to call the driver of the car, who was his brother and was available as a witness, "warrants, if indeed it does not compel, the inference that his testimony would not have tended to establish plaintiff's contention, but that his testimony if presented would have been adverse to the plaintiff."
This rule is perhaps most widely applied against the bankrupt in bankruptcy proceedings, vast numbers of cases holding that he is in the best position to tell what happened to missing assets, and if he fails properly to inform the court, unfavorable inferences may be drawn. The United States Supreme Court recognized the presumption in United States v. Di Re, 332 U.S. 581, 68 Sup. 222, 92 L. Ed. 210 (1948) and Maggio v. Zeitz, 333 U.S. 56, 92 L. Ed. 476.
Since it was exclusively within the power of appellants to offer additional blood test evidence, the best possible refutation of the Government's blood test evidence, and since they have refused to do so, it seems reasonable to draw the inference that they know or fear that such evidence would be unfavorable to them.
Both in this case and in United States ex rel. Lee Kum Hoy et al. v. Shaughnessy, 115 F. Supp. 302 (S.D.N.Y., 1953), a companion case to the present one and simultaneously before the same tribunal, the court specifically refused to rule on the contention that requiring blood grouping tests of Chinese claimants to derivative citizenship constitutes racial discrimination by the Immigration and Naturalization Service. The courts stated that the facts with regard to the alleged practice were not sufficiently before them at that time. The court's order of January 6, 1954, in this case required that the reopened hearing before the board of special inquiry offer "opportunity to both relators and the Department of Justice of the United States to introduce evidence of alleged discriminatory use of blood grouping tests in accordance with the opinion of the court."
At the reopened hearing counsel for appellants made no offer of proof to support the contention that the blood testing of Chinese claimants to derivative citizenship constitutes racial discrimination, other than a request that the special inquiry officer produce the files in seven cases, for which counsel had names and some file numbers. All the cases involved Chinese applicants for admission to the United States, and counsel contended that some of the files "might tend to show discrimination." We stated that it was his purpose to demonstrate that the Immigration Service had limited blood tests specifically to Chinese applicants, and that in perhaps two of the cases he believed that blood tests were demanded by the Immigration Service, in spite of the fact that the Chinese applicants involved in those cases possessed birth certificates. He believed further that at least some of these files would show that errors had been committed by the United States Public Health Service in conducting blood tests.
The special inquiry officer refused counsel's request on the grounds that counsel was engaged in a fishing expedition, and that all immigration files have always been considered to be confidential. It was proper for the special inquiry officer to refuse to permit counsel to search files which have no relation to the present matter. Files of the Immigration Service are not available for general examination by unauthorized persons.
There was no other evidence as to the alleged racial discrimination offered by either appellants or by the Immigration Service. It is our belief that the issue is not properly in this case. When a case involves acquestion of whether or not members of a minority group in the United States shall vote or go to certain schools or be employed in certain jobs, and the allegation is that they are being prevented from voting, schooling or employment because of their race, then racial discrimination is an issue. This is not such a case. Here is only one question, that of identity — "Is this child the offspring of the claimed father?" There is no question of race involved. In disputed paternity proceedings the value of blood testing was quickly recognized, because it had been so difficult to disprove a false charge of paternity. The same is true in the present case — it is more difficult to disprove a false claim of relationship, than it is to prove a true claim.
We cannot hold that merely because claimants are nonwhite it is not necessary for them to offer adequate proof to substantiate their claims of citizenship. Claimants born in countries other than China are not permitted to establish citizenship without any proof except their claims. In United States ex rel. Rongetti v. Neelly, 207 F. (2d) 281 (C.A. 7, 1953), the court stated that where plaintiff was born in Italy and came to the United States from that country, the burden of proof to establish his United States citizenship was upon him, and that he had not sustained the burden by a bare claim of citizenship unsubstantiated by any evidence. In United States ex rel. Barilla v. Uhl, 27 F. Supp. 746 (S.D.N.Y., 1939), affirmed, 108 F. (2d) 1021, the court found that the precedents require "some substantial evidence in support of their claims of citizenship."
A quick, scientifically accurate, simple and inexpensive method to assist in screening applicants should be as valuable and desirable from the standpoint of the applicants as from the standpoint of this Government. The courts as well as the immigration authorities dislike the "discrepancy in testimony" technique. The cases which have so far arisen have involved Chinese persons, because of their historic custom of leaving their children in China to be raised and educated before bringing them to the United States. Most of the tests were made at the request of the American Consul in Hong Kong prior to documentation of claimants who wished to proceed to the United States. The tests were made of mothers and children in Hong Kong and fathers in the United States. The results of the tests were compared, and a determination so far as possible of compatibility or incompatibility made before the claimant children began their expensive trips to the United States. Here again an early determination is of even greater value to the applicant than to the Government.
For a comprehensive discussion of the overall problem see: Mar Gong v. McGranery, 109 F. Supp. 821 (N.D. Calif. 1952) and Ly Shew v. Acheson, 110 F. Supp. 50 (N.D. Calif. 1953).
In the cases that have involved blood grouping tests that have come before this Board the only tests that have been performed in Hong Kong have been A-B-O tests. The technicians there have not attempted the more difficult M-N and Rh tests.
Counsel contends that in at least two cases where they possessed birth certificates, Chinese applicants have been required to submit to blood tests. The applicants in the present case were not in possession of birth certificates, so the question should not arise here. However, it should be observed that China is still a country almost without vital statistics and, Chinese birth certificates, so far as we know without exception, have been certificates issued many years after the alleged date of birth. It has been held that a birth certificate not filed contemporaneously with the birth of the person named therein is not entitled to be given the weight of a birth certificate executed at the time of birth. Ex Parte Wilson, 49 F. (2d) 468 (W.D. Wash., 1930); Nagle v. Dong Wing, 26 F. (2d) 438 (C.C.A. 9, 1928). We followed those precedents in Matter of W---- F----, A-7181963 (October 25, 1949), which involved a birth certificate issued by the State of California 49 years after the alleged date of the birth of the applicant.
To recapitulate: The burden is on the appellants to establish their citizenship. The appellants have failed to sustain the burden of proving the necessary relationship. On the other hand, the Government has introduced persuasive proof that the claimed relationship does not exist between the alleged parents and D---- W---- H----. There were procedural errors in the original hearing which led the United States District Court to hold that the appellants were denied due process of law. We believe that those errors have been cured in the reopened hearings accorded appellants by the Government in obedience to the order of the court. Appellants were granted adequate opportunity to cross-examine Dr. Wiener and to introduce expert testimony in their own behalf, if they wished to do so. A-B-O tests conducted by Government technicians disproved the claimed family relationship with regard to one appellant. Counsel's objections are frivolous in the face of his continued refusal to permit additional blood tests conducted by technicians of his own choosing. Nonproduction of evidence within the power of one party to produce, permits the inference that its tenor is unfavorable. Since new or additional blood test evidence is in the hands of appellants, they cannot properly complain that it is not in the record. Although the blood tests do not demonstrate incompatibility of blood between D---- W---- O---- and the alleged parents, his claim is dependent entirely upon the testimony of the other three members of the alleged family group, and they are discredited as witnesses by their own demonstrably false testimony. Therefore, D---- W---- O---- also must be excluded.
It is our conclusion that the appellants have not sustained the burden of proving the claimed relationship to the alleged parents. The appeal will be dismissed.
Order: It is ordered that the appeal be dismissed.