The opinion of the court was delivered by: DIMOCK
This writ of habeas corpus was originally sued out to attack the right of respondent to hold three persons of the Chinese race born in China who had been excluded from the United States. They had contended that they were American citizens by virtue of the citizenship of one Lee Ha whom they claimed as their father. They were then held pursuant to a determination of a Board of Special Inquiry rejecting the claim of paternity. The determination was based largely upon the results of blood tests which were held to preclude the possibility of the claimed paternity.
On a previous hearing I held that relators had been denied opportunities to which they were entitled to attack the blood tests. D.C., 115 F.Supp. 302. I therefore directed that the writ should be sustained unless the hearing before the Board of Special Inquiry be reopened for proceedings which would afford relators those opportunities.
The hearing was reopened and relators were afforded all of the rights to which I had held them to be entitled. They declined to avail themselves of the opportunity to present the results of further blood tests. The Board of Special Inquiry reached the same result as on the earlier hearing and its determination was sustained by the Board of Immigration Appeals. So far as quantum of the evidence is concerned, there was before the Board of Special Inquiry and the Board of Immigration Appeals, if we include the blood test testimony, more than that minimum necessary to render their conclusion safe against attack as reached without due process of law.
On that basis the Government asks an order dismissing the writ. Relators, however, point to two matters left undecided by my previous opinion: first, the point that the mere requirement of a blood test is a denial of due process of law and, second, the claim that blood tests are actually used only in the cases of persons of the Chinese race and that this limitation of the use of the tests constitutes such discrimination as to deny these relators due process of law.
I found it unnecessary when the case was originally before me to decide either of these questions since there was no sufficient evidence that the blood tests here were actually required of these relators and their parents. Additional evidence taken establishes, first, that the tests were administered as if they were a matter of course though the subjects were not advised expressly that the relators would be excluded if they and their parents did not submit, and, second, that none of the subjects made any objection.
Putting the construction on the evidence least favorable to the Government it might be said, first, that relators were told: 'Unless you and your alleged parents submit to blood tests your claim of American citizenship will not be accepted' and, second, that, as a result of this compulsion, relators and the alleged parents submitted to the tests. Relators' position must be that the use of evidence obtained by this means deprived them of their liberty without due process of law. They do not contend that, where authorized by an act of the legislature, the requirement of a blood test violates constitutional rights. See Camden & Suburban Ry. Co. v. Stetson, 177 U.S. 172, 20 S. Ct. 617, 44 L. Ed. 721; Beach v. Beach, 72 App.D.C. 318, 114 F.2d 479, 131 A.L.R. 804; Lue Chow Kon v. Brownell, D.C.S.D.N.Y., 122 F.Supp. 370, decided by Irving R. Kaufman, J. Relators assert that resort to blood tests by the immigration authorities without Congressional sanction deprived them of their constitutional rights.
The immigration authorities are charged with the duty of determining the truth of the claims of those who apply for admission to the country as children of citizens. Blood tests, properly taken, can absolutely exclude the possibility of paternity in certain cases. Congress might constitutionally authorize the immigration authorities to require submission to a blood test as a condition to admission. An examining board does not overstep constitutional bounds if it, on its own authority, makes the same requirement. An applicant's refusal to submit to a blood test raises the logical inference that he knows that paternity does not exist and fears that its nonexistence may be disclosed by the test.
The cases that emphasize the lack of statutory authority to require physical examination, such as Union Pacific Ry. Co. v. Botsford, 141 U.S. 250, 11 S. Ct. 1000, 35 L. Ed. 734, Camden & Suburban Railway v. Stetson, 177 U.S. 172, 20 S. Ct. 617, supra, Howland v. Beck, 10 Cir., 56 F.2d 35 and Taylor v. Diamond, 241 App.Div. 702, 269 N.Y.S. 799, deal with orders by a court that litigants submit. It is pointed out by the leading case, Union Pacific Ry. Co. v. Botsford, that it is open to a jury to draw such inferences as it may think warranted from the fact that a litigant refuses to submit to a physical examination even where the court has no power to compel submission. As I understand the situation here, the immigration authorities do not assert the power to compel submission to blood tests; they merely reserve to themselves the right to presume, from a refusal to submit to a blood test, that the result would be unfavorable to the refusing party.
It is true that the enforcement of the rule 'no blood test, no admission' might be unfair in some cases. It is conceivable that the person alleged by the applicant to be his father might, for reasons of his own, refuse to submit to blood test so that the applicant, though willing to submit himself to the test, would be powerless to meet the condition. Relators, however, make no claim that any such state of facts exists here. Their claim is the bald one that the immigration authorities cannot in any case require submission to a blood test as a condition to admission as a child of an American citizen. I cannot accept that contention.
That brings me to relators' contention that blood tests are required only in the case of persons of the Chinese race and that such discrimination deprives them of due process of law.
To substantiate their claims relators say that blood tests are required in the case of Chinese even where birth certificates are available and are never required in the case of others. On that subject relators' counsel wrote respondent, before the reopened hearing by the Special Inquiry Officer, requesting that an Official of the District Office of the Immigration and Naturalization Service be available to testify with regard to the practices of the Immigration Service and its policies with regard to the blood testing of Chinese persons and submit a statistical report on the following:
(a) how many persons have been given blood tests for the purpose of disproving paternity since May 8, 1952.
(b) how many of these persons have been from the Chinese race and how many from other races.
(c) how many of the Chinese persons tested had birth certificates or other documentary evidence of their ...