A-7196985.A-7197070
Decided by Central Office July 25, 1949 Decided by the Board January 27, 1950
Citizenship — Claim to being native-born — Evidence to support such claim — Burden of proving right to enter the United States — Effect of issuance of United States passport.
Two applicants, allegedly brothers, who claimed citizenship here by birth in the United States, presented United States passports, but failed to meet the burden of proving their right to enter as citizens by a preponderance of the evidence, and were found excludable on documentary grounds as immigrants.
A passport (United States) does not establish as a fact that a person is born in the United States nor is it a judgment of citizenship.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — No immigration visa.
Executive Order 8766 — No passport.
BEFORE THE CENTRAL OFFICE
Discussion: These subjects, allegedly brothers, claiming birth in the United States and in possession of United States passports, arrived at the port of San Francisco, Calif., in October 1948, via airplane, and sought admission as American citizens. They were held for a Board of Special inquiry which, after hearing, concluded that they had not established their claimed United States citizenship and excluded them on the above-stated grounds. They have appealed from the excluding decision and counsel has submitted a brief in their behalf.
At the outset it is desired to correct certain statements made by counsel in his brief. He states in his "Statement of fact" that "The appellants were incarcerated incommunicado for a number of months, running into February 1949, during which period a number of ex parte investigations were instituted. After a further delay of nearly a year, the Board of Special Inquiry voted to exclude the appellants, this appeal resulting."
A review of the record reveals that the appellants arrived at San Francisco in October 1948. The Board of Special Inquiry was convened on January 31, 1949, just 3 months later. The hearing was adjourned on January 31, because of closing time, but was resumed the following day, February 1, 1949. It was again adjourned on February 1, because of closing time and was resumed the following day, February 2, 1949. On this latter day, the appellant, H---- H----, stated his desire to have his attorneys make an effort to secure the appearance of his alleged brother, H---- J----, as a witness in the matter. And at that time a reply from a request for a further search of the census records was being awaited. Accordingly, further action in this case was deferred. On April 28, 1949, the hearing was resumed and Counsel J---- W. S---- appeared and waived the appearance of the appellants and interposed no objection to the introduction of exhibit 20, a report from the Bureau of the Census relative to the appellant, H---- M----.
The record further reveals that when the hearing was convened on January 31, 1949, the appellants testified that they were acquainted with Attorney W---- of the firm of C---- and S---- who had filed notice of appearance in these proceedings as the appellant's legal representatives; that Attorney W---- was present in the room when the hearing began; and that the attorneys waived their appearance before the Board during the hearing. Furthermore, exhibit 8 discloses that some time between the period November 6, 1948, and December 6, 1948, an officer of this Service "went to the extent of taking H---- H---- to Chinatown where H---- H---- thought perhaps these witnesses could be located." And some time prior to January 12, 1948, after several fruitless attempts had been made to locate one L---- N---- "finally it was learned from Mr. J---- S----, attorney for subjects, that the witness might be located at the Chinese hospital, San Francisco." Lastly, it is noted that on January 28, 1949, both appellants were taken by officers of this Service to the Chinese hospital for identification by L---- N----, the person who acted as their witness on their passport applications. He was unable to identify either appellant.
It is evident from the above that the appellants were not held "incommunicado for a number of months" and that there was not "a further delay of nearly a year" as alleged by counsel.
Counsel argues that "The decision of the Circuit Court of Appeals for the Ninth Circuit in the case of Lee Fong Fook v. Wixon, 170 F. 2d 245, shows what happened in these similar cases, namely, holding claimed citizens, who arrive at a port of the United States possessed of a United States passport, in jail at San Francisco, without benefit of counsel, or without being able even to see a friend, until such time as the immigration authorities at that port have concluded that they have made sufficient ex parte investigations and, finally, decide that the detainee shall be given a formal hearing before a Board of Special Inquiry."
We disagree with counsel's interpretation of the case he has cited above. In this case Lee Fong Fook applied for admission as an American citizen and was excluded by a Board of Special Inquiry and appealed. Pending decision on appeal he petitioned for a writ of habeas corpus and the district court issued the writ. The Ninth Circuit Court of Appeals said:
In applying for the writ the petitioner claimed that because of his detention he was unable to obtain witnesses in support of his claim of citizenship, and he asked that he be released on bail until the final determination of the administrative and court proceedings. The court thought that due process in the administrative proceeding could not be fully achieved without allowing the petitioner some liberty of action to prepare his case. It felt that his enlargement on bail was an appropriate method of remedying an unfairness not otherwise reachable, and that authority for such enlargement exists in the statute * * *. Accordingly, petitioner's temporary release was directed upon the posting bond in the sum of $1,000. * * *
In these circumstances, we think the court should have deferred decision on the merits. * * * The better practice would have been to continue the cause before the court until the final determination of the administrative proceeding.
* * * * * * *
The cause is remanded with directions to vacate the order of dismissal and to continue the cause until the final determination of the administrative proceeding. [Italics supplied.]
Counsel next argues that "the investigative reports are not evidence; and the wholesale injection of such alleged `evidence' with the simple statement that `The Board introduces * * * (the report) * * * in this proceeding' is manifestly a violation of every fundamental right in any kind of quasi-judicial proceeding."
The above argument is completely unsupported by legal precedent, and after careful review of Lee Fong Fook v. Wixon, supra, we find no evidence that "this process was scored in the Fook case" as alleged by counsel. As a matter of fact, the precedent that the rules of evidence applicable to judicial proceedings need not be followed in administrative proceedings is so well established as to be axiomatic. Suffice it to say that in Chun Kock Quon v. Proctor, 92 F. (2d) 326 (C.C.A. 9, Sept. 28, 1937) the court said, "Hearsay and other evidence incompetent in a judicial proceeding is admissible." Furthermore, we are unable to see in what manner Carmichael v. Delaney, 72 F. Supp. 312, cited by counsel, supports his argument. The instant appellants have not been denied a judicial trial. Such action must await the termination of this administrative proceeding. Lee Fong Fook v. Wixon, supra.
It is argued by counsel that "the appellants' claim to citizenship had already been administratively determined by the Secretary of State, who had issued passports to them," and in support of his argument he cites Browder v. United States, 312 U.S. 334 and Warszower v. United States, 312 U.S. 342. We have had occasion heretofore, in Matters of G---- T---- P---- and L---- S---- F---- (A-7177610 and A-7190931) to determine that the decisions in the Browder and Warszower cases in no way changes the long line of precedent cases holding that a passport is only a mere ex parte certificate and that it is, at most, but prima facie evidence of the facts related. Furthermore, even if we accepted the argument that the appellants' claims to citizenship had already been administratively determined by the Secretary of State, this would amout to no more than a prima facie case of citizenship. An this prima facie case may be repudiated and the burden of proof is placed on the person making the claim of citizenship ( Lum Mong Sing v. United States, 124 F. (2d) 21; Mock Kee Song v. Cahill, 94 F. (2d) 975).
We find nothing in the case of Klaprott v. United States, 335 U.S. 301 (a naturalization case), or Ng Fung Ho v. White, 259 U.S. 276 (C.C.A. 9, 1922) (a deportation case), cited by counsel which neither supports his argument or is applicable to the case before us. Rather, the converse is true, for in the Ng Fung Ho case the court said, "If at the time of the arrest they (the aliens) had been in legal contemplation without the orders of the United States, seeking entry, the mere fact that they claimed to be citizens would not have entitled them under the Constitution to a judicial hearing."
Counsel next states that "the Government in this proceeding had the duty of producing substantial evidence of alienage," and he cites Yuen Boo Ning v. United States, 103 F. (2d) 355; Lau Hu Yuen v. United States, 85 F. (2d) 327; and Chun Kock Quon v. Proctor, supra.
We believe that the above contention is incorrect. The first two cases cited above are deportation cases and, therefore, are inapplicable here. The latter case, Chun Kock Quon, is contra to counsel's argument since therein the court said, "The burden of proving citizenship is on the applicant."
The balance of the brief submitted by counsel amounts, for the most part, to an allegation that the hearing was unfair. After a very careful review of the entire record in this case we find that the Board of Special Inquiry has been extraordinarily meticulous that nothing be left undone which would in any way cast any light upon the claims made by the appellants. Accordingly, we find that counsel's allegation of unfairness is unfounded and the argument is dismissed in its entirety. In conclusion, counsel's attention is directed to the decision of the Board of Immigration Appeals on June 10, 1949 in the cases of C---- J---- F---- and C---- Y---- J---- (A-6968090 and A-6966815). Therein the Board said to this counsel "* * * The charges of counsel that the Board of Special Inquiry was biased and prejudiced and that the hearings allowed the appellants were unfair are unfounded. * * * Such charges against the Board of Special Inquiry do not add strength to the appellants' case."
We come now to the consideration of the appeal before us.
These appellants, H---- M---- and H---- H----, claim to be brothers and both claim birth in San Francisco, Calif., H---- M---- on August 6, 1896, and H---- H---- on November 15, 1904. As evidence of their birth as claimed they have presented United States passports which were obtained on the basis of applications filed on October 23, 1946. They claim to be the sons of H---- F---- K---- (K----), who committed suicide in Beresford, Calif., on October 24, 1928, and his wife, L---- S----, who they claim disappeared in the San Francisco disaster on April 18, 1906. The appellants also claim that a third son, H---- J----, was born to their parents in San Francisco on March 3, 1906. And evidence has been introduced disclosing that H---- J---- did obtain a delayed birth certificate in the Superior Court in San Francisco in May 1946. The appellants disclaim any knowledge of the whereabouts of H---- J---- and efforts by this Service to locate him have been unsuccessful.
In regard to their alleged brother, H---- J----, these appellants made various incomprehendible and conflicting statements. The more pertinent of these statements are set forth below.
H---- H---- arrived in the United States on October 16, 1948, and was held in detention pending further examination. On October 27, and October 28, 1948, he testified unequivocally that just he and H---- M---- had been born to H---- F---- K---- and L---- S---- and that there had been no adopted children or children who died; that upon H---- F---- K----'s death, title to the farm passed to H---- M----, but it was understood that he, H---- H----, owned half of it; that he and H---- M---- took care of the farm; and that only two men besides his father, his brother, and himself had ever worked the farm. And, in describing his alleged father's residence in the United States, H---- H----, stated, "* * * when he was 21 years old he got married. The following year my brother, H---- M----, was born, * * *, and when my father was 30 years old I was born. We stayed at the same address until the earthquake and my mother was lost at that time. * * * My father took me and my brother to Belmont, Calif., where he leased a farm and that is where we were raised."
At the time of the above testimony H---- H---- thought that H---- M---- was still in China, having remained there because of a cough, and he was uncertain as to whether H---- M---- would return to the United States.
On October 30, 1948, H---- M---- arrived at San Francisco and was placed in detention pending examination. He was interrogated on November 5, 1948, and stated that to his knowledge "* * * Only two sons, myself and my younger brother, H---- H---- were born to H---- F---- K---- and L---- S----; that only he and his brother were present when his alleged father was killed; and that when his alleged father moved to Belmont, Calif., in 1907 he and his brother moved with him; that he and his father and brother lived in that place for about 13 years, then they moved to San Carlos, then to San Mateo, and finally to Beresford. In describing the San Francisco disaster in 1906 he stated, "My father told me that we all left home together, my father was holding my brother in his arms, and I was following him, and my mother slipped away and lost her way." He added that thereafter his father took him and his brother to a boarding house in San Francisco.
There are numerous other statements made by H---- H---- on October 27 and October 28, 1948, and H---- M---- on November 5, 1948, indicating beyond any equivocation that there were only two children born of H---- F---- K---- and L---- S----, their alleged parents.
However, on November 8, 1948, H---- M---- and on November 1948, H---- H----, after having been together in detention, testified without any apparent reason that they had previously "forgotten" to mention their alleged brother H---- J----, although they claimed that he lived with them and their alleged father until 1928 and thereafter with H---- M---- for 3 or 4 years longer. Later, however, at the Board of Special Inquiry hearing they both averred that it was not a case of "forgetting" to mention H---- J----, but rather of refraining from mentioning him because they thought that the questions asked them referred only to those brothers who had been to China and returned. We do not know the reasons motivating the appellants' sudden recollection of H---- J----, but we do not believe the reasons given by them for their failure to mention him.
There are serious discrepancies in the record regarding the death of H---- F---- K----, the alleged father of the appellants. The appellants have variously stated that H---- F---- K---- "accidentally" shot himself; that he was outside in the field at the time; and that he was shot in the stomach; but on the other hand, they have stated that he committed suicide in the house by shooting himself in the temple. They admit that neither was questioned by any authorities in connection with the death of H---- F---- K---- and that neither was present at the inquest.
The person who actually did supply the date for the death certificate of H---- F---- K----, one H---- L----, has testified that he happened to be at or near the place where H---- F---- K---- committed suicide and that he was the one who brought the undertaker to remove the body. He stated that he has known H---- M---- for about 10 or 12 years; that he knows nothing concerning H---- M----'s parents or any relationship between H---- M---- and H---- F---- K----. He does not know whether or not H---- M---- ever had any brothers. He was unable to identify H---- H---- either by name or from his photograph.
One Mrs. M---- F. D---- was the owner of the property on which H---- F---- K----'s death occurred. She testified that H---- F---- K---- occupied a cabin by himself, as did H---- M----; that she did not know H---- H---- at all and did not know whether H---- F---- K---- was married or ever had any children. She further stated that after H---- F---- K---- had killed himself no one occupied the cabin in which he had lived. The appellants had previously testified that after their alleged father's death they and H---- J---- continued living in the same house, H---- H---- for about 1 year and H---- M---- and H---- J---- for about 4 years after the death.
The applications made by these appellants for American passports were supported by affidavits of one L---- N----. It has been previously shown that L---- N----, in the hospital in San Francisco was unable to identify either appellant. These affidavits asserted that the affiant was the brother of the mother of these appellants. However, these appellants now admit that L---- N---- was not the brother of their claimed mother and that as far as they know there was no relationship between him and their alleged mother.
Although these appellants claim to have lived in the United States throughout their lives, reports on searches of the census records indicate that neither appellant was ever included in any census return as being a resident of any of the places where they claim to have resided. Furthermore, they have been able to produce no witnesses or evidence to verify their claim of birth in the United States. Upon a review of the entire record, it is concluded that the appellants have not satisfactorily established their claimed birth in the United States. Accordingly, they are deemed to be aliens and as such they are required to present the appropriate immigration documents for admission into the United States for permanent residence. These documents they do not have.
In view of the foregoing, the findings of fact and conclusions of law of the Board of Special Inquiry which were read to the appellant's representative on April 29, 1949, are hereby adopted. In view of these findings of fact and conclusion of law, the excluding decision of the Board of Special Inquiry should be affirmed.
Counsel has moved that as an alternative to sustaining the appeals of these appellants they be afforded an opportunity to adjust their status in the same manner as in the case of L---- C----, 55743/5 (September 13, 1948, C.O.), who, because of his long residence, was afforded an opportunity to apply for a certificate of lawful entry under the provisions of section 328 (b) of the Nationality Act of 1940. Such procedure, in effect, would admit the alienage of the appellants since otherwise they would be unable to adjust status as in the L---- C---- case.
However, we do not find the factors in the instant case sufficiently analagous to those in the L---- C---- case to warrant granting the alternative motion. In the L---- C---- case there had been a prior determination of citizenship by this Service and it was established that he had resided in this country since 1923. Such factors are not present in the cases of these appellants.
Recommendation: It is recommended that the excluding decision of the Board of Special Inquiry be affirmed
So ordered.
Discussion: This record is before us on appeal from an order entered by the Assistant Commissioner on July 25, 1949, affirming the appellants' exclusion on the above-stated grounds.
The facts of the case are fully stated in the Assistant Commissioner's opinion. Briefly they relate to two applicants, allegedly brothers, claiming birth in the United States and in possession of United States passports, who arrived at the port of San Francisco, Calif., during October of 1948 via airplane and sought admission as American citizens.
Counsel on appeal argues that the appellants have been denied a fair hearing and implies that it was the duty of the Government to assist the appellants in securing evidence which would be of assistance in reaching a determination as to the true status of their citizenship. We find no evidence that the Government failed to follow any leads furnished by the appellants which would be of assistance in reaching a determination of the issue here involved. In our opinion, the record affirmatively establishes that the appellants and their counsel were afforded adequate opportunity to secure evidence to establish their claim to citizenship. As an example, action in the cases was deferred on a motion of the Chairman of the Board of Special Inquiry from February 2, 1949 to April 28, 1949, to afford the appellants an opportunity to secure their alleged brother as a witness in their behalf. We affirm the Assistant Commissioner's discussion of the exceptions taken by counsel and find that the record fails to show that the fundamental principles of a fair hearing embraced within the conception of due process of law were denied the appellants. Cf. Tang Tun v. Edsell, 223 U.S. 673, 56 L. ed. 606 (March 11, 1912). This being so, we will proceed with a consideration of the merits.
It is argued in behalf of the appellants that their claim to citizenship had already been administratively determined by the Secretary of State when he issued passports to them. The record, however, affirmatively establishes that the applications for the passports were supported by affidavits of a witness who was unable to identify either appellant at the time of these proceedings and the appellants admitted that this affiant did not bear the relationship claimed for him at the time the applications were submitted. A passport does not establish as a fact that a person is born in the United States nor is it a judgment of citizenship. We are of the opinion that there is a substantial showing that a mistake has been made which, if possible, should be corrected, not repeated. Cf. Mock Gum Ying v. Cahill, 81 F. (2d) 940, 943 (C.C.A. 9, 1936).
The appellants by leaving the United States and returning thereto have assumed the burden of proving their right to enter. Cf. Wong Chow Gin v. Cahill, 79 F. (2d) 854, 857 (C.C.A. 9, 1935); Mock Kee Song v. Cahill, 94 F. (2d) 975 (C.C.A. 9, 1938). They have been unable to produce witnesses or evidence to verify their claim of birth in the United States. We note that the witnesses interrogated have substantially failed to corroborate the appellant's testimony with respect to their alleged birthplace and their early life. Under the circumstances, therefore, we must affirm the Assistant Commissioner's finding that the appellants have not met the burden of proving their right to enter as citizens by a preponderance of the evidence. Cf. Mui Sam Hun v. U.S., 78 F. (2d) 612 (C.C.A. 9, 1935).
Order: It is directed that the appeal be and the same is hereby dismissed.