The opinion of the court was delivered by: MURPHY
The issues in this case arise from a writ of habeas corpus issued by one of the judges of this district on September 14, 1953. Relators arrived in New York on April 25, 1952. They sought admission as United States citizens pursuant to Section 1993, Revised Statutes, as sons of a native American citizen father, Dong How Lung, and a legally resident alien mother, Chin You Yook.
The father's citizenship and the fact that he was in China at the time when conception normally would have occurred for relators are conceded. The father has already brought to the United States and secured the admission of four of his putative sons and one such daughter. The relators are alleged to be the two youngest sons of his family.
There is no testimony establishing the claimed relationship except that of relators and their alleged parents. No offers of proof were made by family photographs, letters, evidence of monetary remittances or any of the usual indicia of long standing family relationship.
The Board of Special Inquiry found that relators had reasonably good knowledge of the claimed mutual family background and the outward physical appearance of their alleged native village, and that they were able to recite names, ages and family relationships of their various supposed relatives born in China and in the United States.
The decision of exclusion by the Board was based solely on the results of tests which were performed of specimens of blood of the relators and their alleged parents. These tests showed incompatibility of blood between relators and their alleged parents.
At the first hearing before the Board held on July 15, 1952, there was offered in evidence four exhibits of four blood tests dated July 2, 1952, signed by George F. Cameron, Surgeon, U.S. Health Service, relating to the relators and their alleged parents. Counsel for the relators, who is the same counsel on the present writ, stated when this offer was made, 'I do not object to their admission into evidence.' There was then offered in evidence as Exhibit 5 a pamphlet reprinted from the U.S. Law Review of December 1936 entitled, 'Blood Grouping Tests in the New York Courts' by Alexander S. Weiner. Relators' counsel objected to its admission on the basis that it was hearsay and that he should have an opportunity to examine the author. His objection was overruled and the exhibit received.
Before any determination was made by the Board counsel for the relators requested that the hearing be continued 'in order to give me an opportunity to discuss the matter of a blood test with an expert and to decide whether or not to present an expert witness.' This motion was granted and the hearing was continued until July 22d.
On July 22d the continued hearing was opened by this statement of the Chairman to counsel: 'This hearing was deferred in order to give you an opportunity to discuss the matter of the blood typing with an expert and to decide whether or not to present an expert witness. What are your desires in this matter?' Counsel answered: 'I will not produce an expert.' Then the Chairman said: 'Do you have any further evidence or exhibits?' Answer: 'I haven't any further evidence.'
Comparing the results of the blood grouping and typing tests performed on the relators and their parents, Exhibits 1 to 4, with the charts contained in Exhibit 5, the Board found that relator Dong Wing Ott might possibly be the son of Dong How Lung and Chin You Yook under blood grouping test A & B. However, the possibility of such parentage was excluded as to him under blood typing test M & N. With respect to relator Dong Wing Han the possibility of his parentage was excluded on the basis of both the blood grouping and blood typing tests.
On December 9, 1952, the Board of Immigration Appeals, at the request of counsel, ordered that the hearings be reopened in order that new and material evidence and reexamination of relators be had on the issue of their claimed relationship. On December 11, 1952, before reopening of the hearings, counsel for relators requested by letter to the Director of Immigration and Naturalization issuance of subpoena to one of its officers to testify with respect to the rules and regulations of the Immigration and Naturalization Service relating to blood grouping tests. In the same letter he also asked for the personal appearance of the doctors upon whom the Immigration and Naturalization Service relied to establish its finding that the aliens be excluded.
At the reopened hearing of January 8, 1953, the Chairman denied counsel's request for the issuance of a subpoena, stating that the rules and regulations of the Immigration and Naturalization Service were a matter of public information and consequently he considered it not in order to produce testimony about them. Counsel for relators was informed on request that Dr. Cameron was still in the Public Health Service in New York. But his inquiry concerning whether Dr. Weiner was still within the jurisdiction of the Service in New York was met by the Chairman with, 'that question is deemed out of order.' The Chairman then denied request of counsel to subpoena or present as witnesses either Dr. Weiner or Dr. Cameron.
At this point counsel requested the Chairman, Mr. Bernsen, to take the stand as a witness for the purpose of establishing that the blood grouping tests of these Chinese are discriminatory. Counsel argued that these blood grouping tests have been applied only to the Chinese race and that, in his opinion, was discriminatory and in violation of the aliens' constitutional rights. Mr. Bernsen refused to take the stand as a witness. Counsel then asked Mr. Bernsen if he would state whether blood grouping was used in connection with any other than the Chinese race. The Chairman ruled 'that no member of this Board will submit to any examination relative to the investigative procedures of the Immigration and Naturalization Service.'
Over counsel's objection, a letter from Dr. Cameron, addressed to the Board, dated January 7, 1953, was then offered in evidence. This letter stated that the laboratory under his direction at the United States Public Health Service Hospital in Staten Island had in the past and continued to examine blood from individuals referred to it by the Immigration Service for the purpose of establishing such individuals' blood group in the A-B-O System, the M-N System and the Rh System; that the laboratory was competent to perform the mechanics of these examinations; that he personally did not feel that he had the background in blood grouping genetics to qualify as an expert in the medicolegal applications of blood grouping tests; that he recommended Dr. Alexander S. Weiner as an outstanding authority and that Dr. Weiner's article 'Blood Grouping Tests in the New York Courts' appearing in the publication, 'United States Law Review,' December 1936, was considered a currently accurate source of authoritative information on the subject. The only evidence introduced by relators was the statement by each that neither of them knew the purpose of the blood test at the time it was made. The Board ruled that, since no material evidence had been introduced, the former findings and conclusions were reaffirmed.
On April 8, 1953, the Board of Immigration Appeals, at the request of counsel for relators, again reopened the hearings for the purpose of producing Dr. Cameron for cross-examination concerning the mechanics followed in making the blood grouping tests, but not for cross-examination as an expert on the ...