62 F.2d 785 | 2d Cir. | 1933
The relator Gong Sik Ho, a Chinese boy of the age of 16 years, sought admission to the United States as the son of Gong Suey Ping, a native-born citizen. He was excluded on the ground that there were discrepancies in the testimony submitted which threw doubt on his identity. The nativity and citizenship of Gong Suey Ping (the putative father) are not questioned. Upon a writ of habeas corpus the District Judge found the discrepancies trivial and accordingly sustained the writ and held the relator entitled to be admitted to the United States as a citizen.
There is no doubt that the greater part of the testimony of the relator and of his younger 12 year old alleged brother Gong Sik Wah, who had been previously admitted to the United States, as well as of the identifying witness Li Moak, was completely harmonious. But there were three discrepancies relied on by the government, the first ©f which at least seems to us very serious.
The first relates to a scar on the relator’s right cheek and other sears on his neck. He testified that he had had these sears as long as he could remember. They are shown i-n his photograph and were described at the hearing as “two large irregular sears immediately behind right ear; * * * diamond-shaped sear one inch by onedialf inch on right jaw below the temple.” Such things upon the person of any one are noticeable to those who have lived with liim or have known him well. The alleged younger brother, Gong Sik Wah, who had lived with the relator until October, 1930, swore that he had no visible scars and Li Moak who had seen him quite a number of times in his house in China testified that ho had never noticed any scars on Gong Sik Ho. It is difficult to suppose that these witnesses would not have remembered the scars if the relator was really the son of Gong Suey Ping whom they were attempting to describe.
The next discrepancy relates to the attendance at school of an alleged sister. The relator testified that this sister in China never attended school but that he and his brothers did. The previously admitted younger brother testified that she attended school with
The final, though a minor discrepancy, is found between the testimony of the relator and that of his witnesses as to a visit of the younger brother and his mother to Li Moak. The younger brother, when seeking admission, testified that he had never gone with his mother to the house of Li Moak, his godfather. LA Moak testified to the same effect upon the younger brother’s proceeding for admission. Ln the present proceeding Li Moak likewise testified that the relator never came to his house with his mother. But the relator himself testified that he remembered an occasion when his younger brother went to LA Moak’s house with his mother.
On previous appeals we have held that the exclusion of a Chinaman cannot be justified merely because there are trivial and slight discrepancies in his proof and that an entirely- unreasonable deduction from the evidence as a whole will demonstrate that the hearing was unfair. United States ex rel. Leong Ding v. Brough (C. C. A.) 22 F.(2d) 926; Fong Lung Sing v. Day (C. C. A.) 37 F.(2d) 36. See, also, Johnson v. Damon (C. C. A.) 16 F.(2d) 65; Goon Hen Soo v. Johnson (C. C. A.) 13 F.(2d) 82. This is in accord with the rule laid down by the Supreme Court. Zakonaite v. Wolf, 226 U. S. 272, 33 S. Ct. 31, 57 L. Ed. 218. It must be remembered that our review is limited to the substantial fairness of the proceedings. Chin Yow v. United States, 208 U. S. 8, 28 S. Ct. 201, 52 L. Ed. 369; Kwock Jan Fat v. White, 253 U. S. 454, 40 S. Ct. 566, 64 L. Ed. 1010; Zakonaite v. Wolf, 226 U. S. 272, 33 S. Ct. 31, 57 L. Ed. 218; Geigiow v. Uhl, 239 U. S. 3, 36 S. Ct. 2, 60 L. Ed. 114; Tisi v. Tod, 264 U. S. 131, 44 S. Ct. 260, 68 L. Ed. 590. We may not review the weight of the evidence.
In spite of the fact that the younger brother of the applicant was only 12 years old, we cannot say that his failure to remember any sears on the head of the applicant with whom he had been brought up did not throw substantial doubt on his relationship. The failure of LA Moak to recollect any scars, though they are manifest, adds to our doubt. The less important discrepancy about the applicant’s sister going to school and the rather trifling one about the visit of Gong Sik Wah with his mother to the house of Li Moak have cumulative weight. We think the Department was justified in holding that such discrepancies, taken together, were enough to throw doubt on the relator’s identity. We accordingly hold that the relator was afforded a fair hearing and that the order of exclusion should be affirmed.
The order sustaining the writ of habeas corpus is reversed, with directions to dismiss the writ.
