Quan Toon Jung v. Bonham

119 F.2d 915, 1941 U.S. App. LEXIS 3880

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 19, 1941
• Docket: No. 9700
• Status: Published

Opinions

HEALY, Circuit Judge.

Appellant, a Chinese boy seventeen years of age, was excluded from entry into the United States at the port of Seattle. He sought release on habeas corpus, asserting that the exclusion order was arbitrary and capricious, and from the denial of the relief prayed for he appeals.

Appellant claims the right to enter as the son of Quan Siew, a native-born citizen of the United States. In October, 1938, Quan Siew filed with the immigration service at Saint Paul an affidavit for predetermination of his status as a citizen in anticipation of the coming to this country of appellant, his alleged son. At the same time and for the same purpose he presented himself to the authorities there and submitted to interrogation. Upon receipt of his affidavit and deposition at Seattle, the commissioner at the latter place endorsed on the affidavit the notation: “American citizenship of af-fiant conceded this date on the basis of proof thereof submitted.”

In August, 1939, appellant arrived at Seattle and was examined before a board of special inquiry composed of Inspector Matterson, as chairman, and two others. He was questioned closely and at length concerning his relationship with Quan Siew; and as is customary in such cases the examination covered in great detail the cir.cumstances of his life in China, the physical aspects of his home, village and neighborhood, and particulars in respect of the various members of his family as far back as his grandparents. His deposition was then forwarded to the examining inspector at Saint Paul with the request that full and complete answers be obtained from the alleged father, Quan Siew, covering all matter's of which a father should' have knowledge. Accordingly Quan Siew was subjected to a rigid examination by the Saint Paul inspector. Thereafter appellant was again interrogated by the Seattle board and at the conclusion of the hearing the chairman moved immediately that the applicant be rejected, the other two board members concurring.

It will be observed that the sole issue before the board was whether the applicant was a son of Quan Siew. A summary of the case by the chairman opens with the following statement: “The native born status of applicant’s alleged father, Quan Siew, was established by fraud and misrepresentation, as will be seen from examining his San Francisco File, which is an exhibit in this case, and the Chairman in the case of applicant’s alleged brother, Quan Toon Soon, who applied for admission at this port on October 18, 1932, and was refused admission on Nov. 10, 1932, his appeal dismissed by the Secretary of Labor on appeal on Jan. 10, 1933, and a Writ of Ha-beas Corpus sued out in his behalf in the U. S. District Court in this District, and the writ dismissed and Quan Toon Soon deported to China, in whose Summary, pages 33 to 31, contain a resume of the citizenship status of Quan Siew. It is apparent that at the time Quan Siew’s appeal was sustained by the Central Office in Dec. 8, 1915, they did not have before them the file of Leong Sing, which was later incorporated in Quan Siew’s San Francisco file. However, they did have the complete record on June 20, 1921, when this office was directed to issue a citizen’s return certificate to Quan Siew. The native born status of Quan Siew is therefore conceded at this time.”

Later on in the board’s opinion, without explanatory comment, appears the remark that applicant “is well coached”; and at the end of the summary he is characterized as “a fraud and an imposter.” In such inauspicious mood had the board proceeded to perform its task of weighing the evidence of paternity.

The situation presented by the petition is an unusual one and a rather full understanding of the background is essential to a decision. It appears from the files of this and related cases that for a quarter of a century certain of the immigration authorities on the Pacific coast have been obsessed by the belief that appellant’s alleged father is a foreign-born imposter masquerading as a citizen. These officials have endowed Quan Siew with a dual personality, saddling him with an alias and attributing to this itinerant laundry worker an aptitude for dark ways and vain tricks which nothing in the files of the service would seem to justify.

Quan Siew first appears in the immigration records in 1914, when being about to pay a visit to China, he filed at San Francisco an affidavit, with photograph attached, stating that he was a native-born citizen and was making the showing to facilitate his landing on return. A year later he came back from China and on examination before the local board presented the testimony of himself and two witnesses to establish his nativity. The proof indicated that he had been born in San Francisco in June, 1886, and had lived there since. Pie had, he said, married during his stay in China, gave the board the name of his wife, and stated in response to a query that she was an expectant mother. The board ordered his exclusion, but on appeal the Commissioner-General, finding his showing of nativity to be “altogether probable”, reversed the ruling. The requisite identification certificate was thereupon issued.

About three months prior to Quan Siew’s departure for China in 1914 a Chinese giving his name as Leong Sing, his age as 45, his occupation as a merchant, and his place of birth as China, applied at San Francisco for investigation of his claimed status as a lawfully domiciled merchant, stating his purpose of making a temporary visit abroad. After an inquiry during which Leong Sing was personally questioned his application was disapproved and nothing further seems to have been heard of him. In 1917, upon comparison by the local immigration authorities of the photographs of Leong Sing and Quan Siew as contained in the above records, it was thought that the two were one and the same person; and a warrant for the arrest of Quan Siew, alias Leong Sing, was issued on the ground of his having secured admission in 1915 by means of false and misleading statements. Later, as will appear, the Bureau at Washington rejected this slender evidence of identity; and from our own examination of the extensive record we entertain little doubt the Bureau was right in doing so. But this notion of the identity of the young laborer Quan Siew with the middle-aged merchant Leong Sing runs like a somber thread through all the after relations of this Oriental with the local authorities of the service. It was of important if not controlling influence in the exclusion in 1932 of his alleged oldest son; and we are persuaded that it was responsible for the exclusion of appellant. Whenever questioned on the matter Quan Siew has denied all knowledge of the merchant Leong Sing, denied that he ever was or claimed to be that person and denied that the photograph of Leong Sing is a likeness of himself; but, far from being shaken by these denials, the local authorities have merely taken them as yet further evidence of the man’s incorrigible duplicity.

Quan Siew was not apprehended, but there is no ground for believing that he evaded arrest. He seems to have gone about his affairs in ignorance of the charge and of the fact that he was hunted. Glimpses of him are discernible through the years. Later inquiry disclosed that during the World War he had registered for the draft at Madison, Wisconsin, and was inducted into the service. In 1919 he made his presence known to the immigration service in Chicago, and in 1921 he filed with the inspector at Norfolk, Virginia, a statement to. the effect that he had lost the certificate issued him at the port of San Francisco, and desired a duplicate. It appears from his testimony taken in connection with the request that he had for several years been employed in a laundry at Madison and had more recently been engaged in similar work at Norfolk. Questioned on the subject, he told of his wife in China and of his boy, Quan Sang or Soon, aged 6. He stated also that he was about to make a trip to China via Seattle and desired preinvestigation of his status as American-born. The Seattle commissioner, to whom the papers were referred, denied his application for a citizen’s return certificate on the ground that he was in reality the merchant Leong Sing, born in China. It was declared that he had “succeeded in evading arrest” on the warrant mentioned “until after the statute of limitations had run on the particular charge”. On the appeal which ensued the entire record was before the Bureau and was strongly urged in support of the Seattle ruling; but the Commissioner-General rejected the holding of the local commissioner and directed the issuance of a certificate to Quan Siew as a departing citizen.

More than three years later, in 1924, Quan Siew returned to the United States. The landing sheet made out at the time of his arrival indicates that Quan Siew claimed three sons born during the years just spent in China. More will be said later of this landing sheet. Quan Siew has since made two visits to China, one in 1926, when his stay covered a period of about fourteen months, and the other in 1930, at which time he remained a little more than two years. On the first of these later visits he claimed to have remarried; his first wife, appellant’s mother, having died early in 1926. As a result of the visit of that year Quan Siew claimed that his second wife had borne him a son, and upon his return from the final trip in 1932 he told of a daughter born during that visit.

On his last return in 1932 he brought with him Quan Toon Soon, claimed to be the son born after Quan Siew’s first visit to China in 1915. The boy was excluded from entry by the Seattle board and his deportation ordered. In the summary of its findings the board gave renewed credence to the old charge that Quan Siew had hid himself to evade arrest; and predicating its assertions on the assumed identity of Quan Siew with Leong Sing, the board observed that “no doubt Quan Siew’s claim to American nativity is rankly fraudulent”; that his “claim to having been born in this country is clearly an absolute fabrication”; and that in fact Quan Siew himself “has sworn positively that he was born in China”. It is these spurious “findings” that the board of inquiry in the present case refers to and in effect adopts as its own. And largely on the basis of these confessedly indefensible assertions the board in 1932 ordered Quan Toon Soon’s deportation.¹

The case of Quan Toon Soon is water over the dam, and we make no further comment concerning it. We mention it here only as illustrative of the confirmed distemper of the Seattle board. Obviously, if Quan Siew is the Chinese-born imposter that these .officials persist in declaring him to be, no child of his is entitled to enter America as a citizen; and there the inquiry should end. And it seems equally obvious that by no feat of intellectual sleight-of-hand can the man be thought at once a native of America and an alien Chinese. It was officially conceded in the case before us that he was born in this country; and the concession was a necessary one in the light of the factual rulings of the Bureau. The concession cannot mean less than that he had satisfactorily met the burden of proving his nativity by credible evidence. To make the concession of citizenship with tongue in cheek, as was done here, is but to cloak in fair words the withdrawal from the citizen of rights guaranteed by the laws of his country.

We turn now to the action taken by the board of review on appeal in this case. That board recommended a dismissal of the appeal on the ground that the relationship of the applicant to Quan Siew had not been satisfactorily established. In commenting on the conduct of the hearing, the reviewing board states: “It appears to be a fact that although the Board of Special Inquiry conceded the citizenship of this applicant’s alleged father so that the only question at issue in the case was the relationship of the applicant to him, yet in the ‘summary’ there appears the statement ‘The native born status of applicant’s alleged father, Quan Siew, was established by fraud and misrepresentation’, and as to the character of the testimony the statement is made in this ‘summary’ that ‘Applicant is well coached on testimony regarding his alleged father’s family and the home village’. There appeal's to have been no warrant or justification whatever for the setting down of these statements in this ‘summary’. However, it is to be noted that this ‘summary’ formed no part whatever of the hearing and, indeed, was written apparently after the action by the Board of Special Inquiry had been taken, and was written, as its title indicates, as the summary not by the Board of Special Inquiry, the lawfully constituted body authorized to conduct the hearing, but as the ‘summary’ by the chairman acting as an individual after the official action of the Board of Special Inquiry had been concluded.”

We regret our inability to accept this view of the matter. We think it inadmissible to suppose that the summary reflects merely the state of mind of an individual. Doubtless the members conferred during the progress of the inquiry and understood each other well enough. The summary is in form and content a statement of the findings of the board itself. It is signed by the chairman as such, is attested by a second member, and forms an integral part of the official record of the proceeding.

Moreover, the statute, 8 U.S.C.A. § 153, requires that boards of special inquiry shall consist of three members — not two — designated by the department as qualified to serve. Its decisions, adverse to admission in exclusion cases are by the statute made final, subject only to review by the Secretary of Labor. It is the trial court of the immigration service in exclusion cases; and often in such cases its excluding order is tantamount to a sentence of death. It is indeed a tribunal clothed with a serious not to say an awful responsibility.

The incurable vice of the trial was that, by its a priori assumption that Quan Siew had perpetrated a gross fraud on the government, the board of inquiry disabled itself from giving to the testimony of this essential witness that measure of consideration to which in law. as well as in common fairness it was entitled. It matters not that the board may have chosen to disbelieve Quan Siew on other grounds, for their minds were conditioned beforehand to discredit whatever the declared imposter, might say. Indeed, it can hardly be thought that irrefragable proof of the relationship would have sufficed to satisfy a board so fatally bent on exclusion as a public duty. Decision in such circumstances degenerates into a mere process of rationalizing; and such we believe was the process here.

Aside from the single item of the 1924 landing certificate, the showing of paternity was persuasive. On the occasion of Quan Siew’s various other landings and departures the information given by him concerning the appellant and his other children squares with the present testimony. There were slight discrepancies, of course, as in the phonetic spelling of names, but these were not significant and are readily explainable. The testimony of the applicant and of the alleged father in support of the relationship is of such character as to compel belief. On the great mass of intimate details testified to their accounts are confessedly in substantial agreement. There is no evidence of coaching, as the board of review concedes; and indeed coaching sufficient to produce the result observed here would have been virtually impossible. Quan Siew and the boy had not seen each other in seven years, and at the time of the inquiry they were separated by a distance of a thousand miles. If it were permissible to judge from their photographs it would be seen that the two so closely resemble each other as to further substantiate the belief that they are father and son.

It is principally on the basis of the 1924 landing sheet heretofore mentioned that the board of review upheld the Seattle ruling. We think, however, that this document is entitled to little if any weight. We now consider it.

The landing sheet was the routine work of an inspector on shipboard. The blanks contained in it are filled out by the officer roughly in pencil and the document is all but illegible, bearing on its face evidence of haste and incompleteness. The number of children is stated as four, but only three names are set down. The names and birthdates do not appear to correspond with information given at other times, and of this circumstance much has been made. On one margin of the sheet is the notation “difficult to give dates”, and on the other appears the penciled word “questionable”. It is impossible to know with certainty whether the difficulty lay with the Chinese or with the inspector, since Quan Siew does not readily speak or understand English and it is not known whether an interpreter was used in this instance or what questions were put. With characteristic eagerness to give an unfavorable quirk to every circumstance involving Quan Siew, the board of inquiry construed the notations as though the inspector meant to imply that it was questionable whether Quan Siew had any sons. But it is equally reasonable to believe that the notations were meant to indicate doubt whether the inspector- had accurately understood the information attempted to be imparted. We think the document is worthless.

Given a fair inquiry in these cases, the courts are bound to accept the determination of the administrative authorities on questions of fact and of the credibility of witnesses. But the trial in this instance was had in such an atmosphere of predetermined discontent as to strip the inquiry of the essentials of due process. On the merits, as has been said, the showing of paternity was ample; and we believe the proof in this respect would have been accepted by the members of a tribunal whose minds were fairly open to persuasion. We hold that the exclusion order was a mere nullity and it is set aside.

The order below is reversed with directions to enter a judgment granting the petition and discharging appellant from custody.

1 ln transmitting the papers for review in that case the commissioner at Seattle expressed the opinion that the discrepancies in the testimony were not very material except for the discrepancy between the 1924 landing certificate an'd the other evidence. He said the board of inquiry was “undoubtedly in error in bolding that the father is not an American citizen”, and ithat, if sustained at all, the board would have to bo sustained because of lack of sufficient showing of paternity.