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UNITED STATES EX REL. LEE KUM HOY v. SHAUGHNESSY

September 17, 1953

UNITED STATES ex rel. LEE KUM HOY et al.
v.
SHAUGHNESSY



The opinion of the court was delivered by: DIMOCK

The three relators in this habeas corpus proceeding are natives of China who claim United States citizenship by virtue of the United States citizenship of the man whom they allege to be their father. They have been excluded from entry on the ground that this relationship has not been proved. They raise, among others, the point that they were denied due process in the introduction and use of reports of blood grouping tests in the proceedings resulting in their exclusion. The reports upon which the Board of Special Inquiry acted in excluding relators and upon which the Board of Immigration Appeals acted in dismissing their appeal were said by those authorities to demonstrate that appellants Lee Kum Hoy and Lee Moon Wah could not have been the children of their alleged father Lee Ha and his wife, Wong Tew Hee. *fn1" The ground which the authorities took as to the third relator, Lee Kum Cherk, was that, by testifying that the others were his brother and sister he had forfeited any right to have his story as to his own paternity believed.

The alleged parents and the three relators testified to their relationship before the Board of Special Inquiry and that Board made a formal finding that the testimony of all five had been reasonably harmonious and reasonably consistent with the records of the Immigration and Naturalization Service. Nevertheless the Board held the relators inadmissible on the basis of the blood grouping test reports which were said to exclude the possibility of the claimed parentage of of two of them and to impeach the credibility of the third.

The Board of Immigration Appeals in a careful opinion cited a prior declaration that it would consider the results of blood grouping tests as conclusive if the tests had been properly conducted and that a showing of incompatability of blood type conclusively established nonpaternity. The Board therefore dismissed relators' appeal.

 I am thus presented with a case where everything but the reports of blood grouping tests of two of the relators indicates that they are the children of an identified American citizen and his wife but where the reports have been given conclusive effect to the contrary.

 To begin with I must ascertain whether or not relators may raise in this habeas corpus proceeding the question whether they were accorded due process in the proceedings leading up to their exclusion.

 Relators say that they are not only entitled to due process in these habeas corpus proceedings but are entitled to a judicial determination as to their citizenship in them. Relators would be clearly right if the administrative proceedings had been for deportation rather than exclusion. Kessler v. Strecker, 307 U.S. 22, 35, 59 S. Ct. 694, 83 L. Ed. 1082. As to exclusion proceedings, however, it was held in United States ex rel. Chu Leung v. Shaughnessy, 2 Cir., 176 F.2d 249, that the excluded alien was limited in habeas corpus to review of the fairness of the hearing and the correctness of the rules of law applied. Relators point out that the Court of Appeals in that case justified the denial of the right to a judicial determination of citizenship in habeas corpus on the ground that a separate special proceeding was available for that purpose. Relators say that the Immigration and Nationality Act of 1952 (8 U.S.C.A. § 1101 et seq.) has withheld that proceeding from them and that the ground has thus been cut from under the holding that persons in their situation may not have a judicial determination of citizenship in habeas corpus.

 I need not, however, decide that point. Relators were given a hearing pursuant to 8 U.S.C. § 153 and, under the authority of Kwock Jan Fat v. White, 253 U.S. 454, 40 S. Ct. 566, 64 L. Ed. 1010, were entitled to due process of law. Under the circumstances of this case relators were not accorded that protection.

 Lee Ha, the alleged father, was admitted to this country in 1926 as the son of a native born citizen. He had married Wong Tew Hee, his present wife, prior to leaving China. He claims that one son was born to them before he came to this country. The son is said to have gone into the Chinese army and not to have been heard from in thirteen years. The alleged father returned to China in 1929. He says that twin sons were born to his wife on September 8, 1930, and that one of these is the relator Lee Kum Hoy and the other is named Lee Kum Ark. The alleged father returned to this country in 1930 after the birth of the twin sons but went back to China, leaving the United States on June 25, 1938. He says that a son, relator Lee Kum Cherk, was born to his wife on May 19, 1939, and that a daughter, relator Lee Moon Wah, was born to her on June 20, 1940. The alleged father had returned to the United States after the birth of Lee Kum Cherk, arriving on October 30, 1939, and bringing with him one of the twin sons, Lee Kum Ark. In 1949 the alleged mother, Wong Tew Hee, came to this country. All of the immigration records made at the times of these various entries and departures are consistent with the family history as above recited.

 The relators, two boys and a girl, aged respectively twenty-one, thirteen and twelve, arrived in New York by air on June 17, 1952. They and their alleged parents were examined before the Board of Special Inquiry with great particularity as to their village in China, their dwelling house, various family celebrations, their neighbors, their relations and even the hour of the day that their mother left in 1949, and who accompanied her to catch the bus. The answers of all were substantially consistent and gave no indication that they were the result of coaching.

 The examination was adjourned for the purpose of taking blood grouping tests.

 Upon resumption, the Government marked in evidence two sets of five cards each. The cards were Standard Form 514b, promulgated 1948 in the case of three of the cards and revised 1951 in the case of the rest. Each bore the designation 'Hematology'. The cards bearing the names of the three relators in the first set were signed with an indecipherable monogram which looks like D.S. and all the rest of the cards in both sets were signed with another indecipherable monogram which looks like N.Y. In each case the signatures were over a line under which was printed '(Report Made by . . . Initials.)'. In the first set the cards bearing the names of the relators had no notation on a line subscribed 'Name of Hospital or Other Medical Facility' but all the rest in both sets bore in this space the words 'U.S. Public Health Service Hospital, Staten Island 4, N.Y.'

 The forms were divided into two columns, respectively headed 'Check Exam. Requested' and 'Results'. The lines designated 'Blood Type' and 'Rh Factor' on the 1948 form and 'Blood Group' and 'Rh Type' on the 1951 form were checked on some of the cards and there were notations on all of the lines so designated under the word 'Results'. On the cards of the three relators in the first set there were additional notations on a line with no designation and placed below the line designated 'Rh Factor'. In tabular form the information was as follows: First Set ///////-- Date of Ck. Exam. Name Report Reqtd. Results Signature //-- /////-- ///////-- /////-- ///////-- Lee Kum Hoy 7/ 1/52 Blood Type B D.S (?) Rh Factor (Undesignated line) MN Lee Kum Cherk 7/ 1/52 Blood Type O D.S (?) Rh Factor (Undesignated line) N Lee Moon Wah 7/ 1/52 Blood Type B D.S (?) Rh Factor (Undesignated line) MN Lee Ha 7/18/52 Blood Type A N.Y. (?) Rh Type M (Undesignated line) (None) Wong Tew Hee 7/18/52 Blood Group A N.Y. (?) Rh Type M (Undesignated line) (none) Second Set ////////-- Date of Ck. Exam. Name Report Reqtd. Results Signature //-- /////-- ///////-- /////-- ///////-- Lee Kum Hoy 8/12/52 Blood Group B N.Y. (?) Rh Type M (Undesignated line) (none) Lee Kum Cherk 8/12/52 Blood Group O N.Y. (?) Rh Type N (Undesignated line) (none) Lee Moon Wah 8/12/52 Blood Group B n.2 N.Y. (?) [Footnote Omitted] Rh Type MN (Undesignated line) (none) Lee Ha 8/14/52 Blood Group A N.Y. (?) Rh Type MN (Undesignated line) (none) Wong Tew Hee 8/14/52 Blood Group A N.Y. (?) Rh Type MN (Undesignated line) (none) 2. Followed by an indecipherable sign which may have been inadvertent. The examining inspector summarized the reports as follows: First Set ///////-- Lee Kum Hoy Blood Type B Rh Factor MN Lee Kum Cherk " ' 0 " " N Lee Moon Wah " " B " " MN Lee Ha Blood Group A Rh Type M Wong Tew Hee " " A " " M Second Set ////////-- Lee Kum Hoy Blood Group B Rh Type M Lee Kum Cherk " " O " " N Lee Moon Wah " " B " " MN Lee Ha " " A " " MN Wong Tew Hee " " A " " MN

 Counsel for relators objected to the introduction of the reports in evidence.

 The examining inspector announced to Wong Tew Hee, who was under examination at that particular time, that, according to the 'A-B' test in both sets of reports, she and Lee Ha could not possibly be the ...


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