The opinion of the court was delivered by: BYERS
This action is colloquially known as a 903 suit (Title 8 U.S.C.A. § 903
), in which the plaintiff alleges that denial of his application for a passport or travel document by the American Consul in Hong Kong, was arbitrary and unlawful by reason of the fact that the plaintiff asserts that he is a citizen of the United States in virtue of Section 1993 of the Revised Statutes.
The question for decision is whether Chin Kai Su, to be called Su, the actual plaintiff, is the son of Chin Jung Thoon, to be called Thoon, (and Ng Shee, his alleged mother -- to be called Shee,) who was the son of Chin Leon Goon, to be called Goon, who was said to have been born in the United States.
Part of the proof consists of the records of the Bureau of Immigration, referred to at pages 329 et seq. of the record, which have been carefully reviewed; they are deemed to show that the Bureau has accepted the respective statements of Thoon and Goon concerning the birth in this country of the latter, whereby Thoon, although born in China, derived United States citizenship through Goon, his father.
While these records are not adequate to prove the essential fact as to the true place of Goon's birth, they do disclose departmental action consistent with reliance upon the truth of the representations made by Thoon and Goon in that behalf.
The petitioner urges that now the Government is estopped to deny that Goon was born in the United States. The law is not so understood by this court. It does not appear that any agency of the Government has done or refrained from doing anything with respect to Thoon or Goon, whereby the plaintiff Su has changed his position.
Since there is no attempt by the defendant to repudiate or disavow the departmental actions referred to, there is no occasion to inquire whether estoppel could be successfully urged against the Government. Cf. United States ex rel. Lapides v. Watkins, 2 Cir., 165 F.2d 1017, at page 1019; Louie Hoy Gay v. Dulles, 9 Cir., 248 F.2d 421.
The records and other exhibits are deemed further to show, for the purposes of this case, that Thoon had three sons, namely:
Chin Kai Hong, to be called Hong, born August 8, 1927 (or perhaps September 3, 1927);
Chin Kai Chew, to be called Chew, born October 14, 1928;
Chin Kai Su, the plaintiff, born June 14, 1935.
All of the foregoing were born in Lin Far Village in China. Certain physical characteristics of that village and of the village of You Ning to which removal was had by some members of the family, are important since not all of the testimony on that subject is consistent.
Su received a document in October of 1951 from the Consul in Hong Kong, generally known as a certificate of identity, to enable him to travel to the United States in order to testify in this cause which was instituted after the denial of the passport application; this occurred in the month of May, 1951. The certificate which was issued was for the limited purpose stated, and was therefore not equivalent to what is technically a certificate of identity.
Since it is assumed for the purposes of this decision that there is such a person as Su of the parentage stated, it becomes important to require of this plaintiff a showing by a preponderence of credible evidence that he is indeed that individual. This necessity is underlined by the decision in the case of United States v. Sing Kee, 2 Cir., 250 F.2d 236, in which the operation of 'slots' is discussed.
The effort was made in Wong Yoke Sing v. Dulles, D.C., 151 F.Supp. 459, to expound the difference between the denial of a travel document (a) for failure to establish identity, and (b) for failure to establish ...