A-7069495.A-7069487
Decided by Board July 8, 1949
Legitimation — Decree by State Court of competent jurisdiction under law of State of Tennessee where "father" domiciled — Where such legitimation is confined by law to a "blood" child, the decree is res judicata on question of child being a "blood" child — Collateral impeachment of decree for want of jurisdiction or because procured by fraud.
1. Legitimation proceeds under State law, there being no concurrent Federal jurisdiction, and when by the law of the State where the father of an illegitimate child is domiciled, the child is legitimated, it will be regarded as legitimate everywhere.
2. Where a State court has jurisdiction of the subject matter and the person, the fact that an erroneous judgment is entered does not render the judgment void or subject to collateral attack in a Federal court.
3. While a judgment rendered by a court of competent jurisdiction cannot be impeached collaterally for error or irregularity, yet it can be attacked upon the ground of want of jurisdiction or of fraud or imposition.
4. Where a father of an illegitimate child was granted a decree of legitimation by a State court in the State where the father was domiciled (Tennessee), in conformity with the State laws as to legitimation which is restricted to a "blood" child, the question of such child being the legitimated blood child of the "father" is res judicata and not subject to collateral attack, the court being of competent jurisdiction and there being no substantial evidence of fraud in the procurement of the court's decree.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — No immigration visa.
Executive Order 8766 — No passport.
BEFORE THE BOARD
Discussion: This is an appeal from an order entered by the Assistant Commissioner on February 5, 1949, affirming the appellant's exclusion at the port of San Francisco on the above-stated grounds.
The appellants, natives and citizens of China, alleged cousins, seek admission to the United States for permanent residence under Public Law 271 as the minor alien sons of United States citizens, honorably discharged veterans of World War II. The older appellant arrived at the port of San Francisco on April 20, 1948. The younger arrived at the same port on July 22, 1948.
C---- W---- F----, alleged father of the older appellant, was originally admitted to the United States as the minor son of a merchant on June 14, 1932. C---- F---- B----, alleged father of the younger appellant and brother of C---- W---- F----, was admitted under the same status on September 2, 1936. Both alleged fathers served honorably in the Armed Forces during World War II and were duly naturalized citizens of this country during May of 1943 and 1944, respectively. The alleged fathers at the time of their original arrival gave their marital status as "single" with no children. Prior to their departure for China on January 24, 1947, they had never referred to the appellants as the issue of an extra-marital relationship in which it is alleged they indulged previous to their original entry in 1932 and 1936, respectively. C---- W---- F---- now alleges that prior to his departure from China in 1932 he had intimate relations with one L---- M---- H---- and that of this relationship the appellant C---- S---- J---- was born in China on June 22, 1932. He avers that L---- M---- H---- died during December of 1940 as the result of an accident. While in China on his recent visit he married W---- Y---- P----, who now resides in Hong Kong. Upon the petition of C---- W---- F---- a decree of legitimation was issued on January 23, 1948, in the Circuit Court of Shelby County, Tenn., adjudging C---- S---- J---- to be the legitimate son of C---- W---- F----.
C---- F---- B----, the alleged father of the younger appellant, testified that prior to his departure from China in 1936 he had intimate relations with one L---- W---- L---- and that of this relationship the appellant C---- Q---- Y---- was born in China on December 28, 1936. While in China on his recent visit he married L---- W---- L---- on July 18, 1947. She was admitted to the United States as the wife of a citizen veteran during October of 1947. A decree of legitimation was issued on February 5, 1948, in the Circuit Court of Shelby County, Tenn., upon the petition of C---- F---- B---- and L---- W---- L----, adjudging C---- Q---- Y---- to be the legitimate son of the petitioners.
The Assistant Commissioner concedes (1) that the appellants are of the ages claimed; (2) that the alleged fathers were in China during the period necessary for paternity; (3) that the State of Tennessee is the lawful domicile of the alleged father; (4) that the courts of Tennessee have jurisdiction over the subject matter in legitimation proceedings; (5) that the alleged fathers have complied with the statutory provisions for legitimation in the State of Tennessee. Certified copies of the legitimation decrees, naming the alleged appellants C---- S---- J---- and C---- Q---- Y----, are a part of the record.
The Assistant Commissioner in his opinion takes the position that inasmuch as the Government was not a party to the legitimation proceedings in Tennessee, the judgments they rendered are not binding and no obligation exists to give them full faith and credit in the instant proceedings. He then proceeds to make independent inquiry and finds that on this record the appellants are not the blood sons of the alleged fathers and therefore the alleged legitimation is a nullity because the courts in Tennessee have jurisdiction to legitimate only when the child is a blood son.
We are of the opinion that the weight of judicial authority will not support the position taken by the Assistant Commissioner nor do we find the authority relied upon to be in point. The question before the Supreme Court in the case cited by the Assistant Commissioner ( supra, footnote 1) was whether a Georgia judgment as to the domicile of the decedent conclusively establishes the right of the Georgia executors to demand delivery to them of personal assets (corporate stocks) of their testatrix which the State of Delaware (situs of the corporation) was willing to surrender to the domiciliary representative when another representative appointed by the State of New York asserted a similar domiciliary right. The Supreme Court in line with ample judicial authority held that the full faith and credit clause allowed Delaware in disposing of local assets to determine the question of domicile de novo for any interested party who was not bound by participation in the Georgian proceedings. In other words, the issue before the Supreme Court was one of jurisdiction and it is well established that a decree of a State court may be collaterally attacked in a Federal court for want of jurisdiction over the subject matter or the person ( Herron v. Dater, 120 U.S. 464, 30 L. ed. 748).
Riley v. N.Y. Trust Company, 315 U.S. 341, 86 L. ad. 885. This case arose on a writ of certiorari granted the Supreme Court of the State of Delaware to review a decree reversing on a question of fact a judgment of a court of chancery (Georgia) in a suit to determine whether stock in a Delaware corporation belonging to a decedent's estate should be transferred to the executor claiming under letters testamentary issued in the State of Georgia or to an administrator c.t.a. appointed in the State of New York.
U.S. Constitution, art. 4, sec. 1:28 U.S.C. 1738 (effective Sept. 1, 1948).
In the case before us it is conceded that the courts of Tennessee had jurisdiction over the subject matter and the person. Legitimation is purely a local process, there being no concurrent Federal jurisdiction. When by the law of the State where the father of an illegitimate child is domiciled, the child is legitimated, it will be regarded as legitimate everywhere (32 Op. A.G. 162, 164; 39 Op. A.G. 556, 557). The Judiciary Act of May 26, 1790 (R.S. 905) extended the provisions of article 4 section 1, of the Constitution to all courts, Federal as well as State ( Mills v. Durvea, 7 Cr. 481, 3 L. ed. 411, 413). Where a State court has jurisdiction of the subject matter and the person, the fact that an erroneous judgment is entered does not render the judgment void or subject to collateral attack in a Federal court ( N.Y. Lamp Chimney Co. v. Ansonia Brass Copper Co., 91 U.S. 656, 23 L. ed. 336; Cole v. Cunningham, 133 U.S. 107, 33 L. ed. 538).
Ibid. footnote 2.
While a judgment rendered by a court of competent jurisdiction cannot be impeached collaterally for error or irregularity, yet it can be attacked upon the ground of want of jurisdiction, or of fraud or imposition ( Cole v. Cunningham, supra). As stated above, it is conceded that the courts of Tennessee had jurisdiction. Concerning fraud in the procurement, no substantial evidence had been produced by the Government that the proceedings before the courts in Tennessee were predicated upon false allegations on the part of the alleged citizen fathers. Accordingly, the question of whether the appellants herein are the legitimate blood sons of citizens of the United States, both of whom are honorably discharged veterans of World War II, is res judicata. The appellants are entitled to enter under the provisions of Public Law 271 provided they meet the burden of proving their identity.
Concerning the issue of identity the Assistant Commissioner refers to numerous favorable factors presented in behalf of the appellants. He regards of no significance whatever the "identification" of the appellants made by the alleged fathers/uncles, the alleged grandfather, the alleged mother/aunt, the appellants of each other, or that made by the unrelated witnesses, since all of this "identification," it is alleged, is made through the medium of photographs. We note, however, that the testimony in the record before us concerning many intimate details of former events is in substantial agreement with testimony contained in records covering the original admissions of the alleged fathers. The appellants' claim is supported by their own testimony and the joint testimony of the alleged parents, alleged uncles, an alleged aunt and an alleged grandfather. One of the unrelated witnesses identified a group photograph of the appellants which he testified was first shown to him in 1940. Another unrelated witness testified concerning the foreign exchange transactions of the alleged father. Exhibit 6 is a foreign money order receipt which indicates that C---- W---- F---- forwarded a large sum of money to China in the name of the older appellant as far back as 1938.
The Assistant Commissioner negatives the affirmative evidence of record primarily because he could assign no reason for the alleged fathers denying parenthood in their Selective Service and naturalization records unless such was their true condition. Prior to the legitimation proceedings the alleged fathers were under no legal obligation to disclose the existence of illegitimate children. People generally do not refer to illegitimate children when the question asked does not require such an answer.
On this record, therefore, we find that the appellants have affirmatively met the burden of establishing their identity as the sons of C---- W---- F---- and C---- F---- B----, duly legitimated under the laws of the State of Tennessee. Inasmuch as C---- W---- F---- and C---- F---- B---- are naturalized citizens of the United States and veterans of World War II, the appellants herein are entitled to admission as aliens without documents under the provisions of Public Law 271. The appeal will be sustained.
Order: It is ordered that the appeal be and the same is hereby sustained.