The opinion of the court was delivered by: BYERS
The plaintiff Wong Yoke Sing by his alleged brother Wong Kim Sing, seeks a declaratory judgment that shall, (a) designate him to be a United States citizen pursuant to Section 1993 of the Revised Statutes;
(b) direct the defendant to issue to him a passport or 'other travel document to enable him to travel from Hong Kong to the United States,' and (c) further relief.
For convenience, the plaintiff will be referred to as Yoke, and his brother as Kim.
The complaint, reciting that it is on behalf of a man born in China who is unable to leave that country, was filed January 28, 1952; the cause was twice marked off the calendar and for the second time it was restored by order of July 3, 1956. A motion to dismiss was denied by Judge Galston on October 28, 1954 in a decision which held that the complaint was legally sufficient as a matter of pleading, and that the issues raised required determination as the result of trial.
In October of 1953 a motion to direct the defendant to issue to Yoke a certificate of identity to enable him to come to this country to prosecute this cause was denied by an order which recited that it was without prejudice to a renewal in accordance with these provisions:
'The plaintiffs are given ninety days to obtain a blood test of the alleged mother during which time the defendant is directed to render all possible assistance, and it is further
'Ordered, that within thirty days thereafter, the defendant is directed to allow or deny the issuance of a Certificate of Identity, in writing, with his reasons therefor. Any further motion will be determined on the entire record.'
The legal effect of the last paragraph above quoted has not been presented for decision herein, and is therefore not discussed. See however,
Dulles v. Lee Gnan Lung, 9 Cir., 212 F.2d 73; Eng v. Acheson, D.C., 108 F.Supp. 682; Wong Fon Haw v. Dulles, D.C., 114 F.Supp. 906.
The blood test aspect of the case requires brief discussion. In his opening, plaintiff's counsel made this observation:
'The mother had been blood typed in July, 1952, and the application before Judge Bruchhausen was sometime during the summer of 1953 * * * I think that the defendant, the State Department, was even unaware that its own files did contain such a report of blood typing.'
Inquiry was addressed to both attorneys by the court subsequent to the trial, because the record did not disclose any facts in amplification of the quoted statement.
The inquiry developed from both counsel that under date of March 5, 1954 the Director of the Passport Office of the Department of State advised plaintiff's counsel in material part as follows:
'By despatch dated October 15, 1953 the Consulate General at Hong Kong reported that the applicant and his mother had group O, Type M blood. The Department has not as yet been notified of the blood group and type of the alleged brother in this country, Wong Kim Sing.
'In addition, the Consulate General notified this office by cable dated December 4, 1953 that it had learned that your client actually is a Ma family man and is not a member of the Wong family.
10'In view of this serious implication of fraud, the Department has ordered that a full investigation be conducted and reports submitted as expeditiously as possible. A decision concerning the issue of a certificate of identity will be deferred until the Department has had an opportunity to evaluate the reports received.'
It is assumed that the court may accept the foregoing in view of the written statement of plaintiff's counsel dated May 14, 1957 in reply to the court's inquiry, as follows:
'On June 17, 1954, the attorney for the defendant submitted a motion to this Court for Re-argument, and attached to said Motion a letter of the defendant, dated March 5, 1954. The original letter was addressed to the undersigned, and I am enclosing it, with the request that it be returned when it has served its purpose. As to the information being a part of the record, I presume that all moving papers, such as the Motion for Re-argument, are a part of the record before this Court.'
It is assumed therefore that compatibility between the blood of the applicant and his alleged mother has been shown. This, however, does not establish the affirmative of the proposition that Yoke is indeed the applicant, or that he is the son of his alleged father.
The weight to be given to blood tests is discussed in the third edition of Wigmore, § 165(a), from ...