United States of America Ex Rel. Lee Kum Hoy, Lee Kum Cherk, and Lee Moon Wah, Relators-appellees, v. Edward J. Shaughnessy, District Director of the Immigration and Naturalization Service, Respondent-appellant, 237 F.2d 307 (2d Cir. 1957)

This is an appeal from an order in a habeas corpus proceeding in which the relators are three Chinese-born minors claiming admission to the United States as citizens by derivation from one Lee Ha, concededly an American citizen, alleged to be their father. The respondent is the District Director of the New York District of the Immigration and Naturalization Service.

The putative father, who sued out the writ, came to the United States as a derivative citizen in 1926. He returned to China for a visit in 1929 and again visited China in 1938 for a period of 16 months. The relators, it is claimed, were begotten during these periods; Lee Kum Hoy being born in 1930, Lee Kum Cherk in 1939, and Lee Moon Wah in 1940. In 1949 the wife came to this country, and in 1952 the relators arrived. Lee Ha testified that prior to their arrival he had sent from this country substantial contributions to the support of his children in China but was unable to furnish any documentary evidence of the transmission of such funds.

The original immigration hearing was held on August 14, 1952. The Board of Special Inquiry examined the relators and their parents with great particularity as to their village home in China, their dwelling house, various family celebrations, their neighbors and their relatives. The Board found that this testimony was "reasonably harmonious and reasonably consistent with the records of the Immigration and Naturalization Service."

Shortly prior to this hearing, two blood grouping tests of the entire family had been made. The results of the tests were put into evidence at the hearing and objected to by the relators. Although conflicting in some particulars, the data common to both tests established conclusively that Lee Ha could not be the father of two of the relators. Since the children all swore that they were brothers and sisters, the Board of Special Inquiry found that Lee Ha could not be their father and ordered all three excluded from the United States. The Board of Immigration Appeals supported the decision treating the blood tests as convincing evidence of non-paternity.

A writ of habeas corpus then issued followed by three successive hearings before the District Court. In the first of these the relators claimed that use of the blood test evidence deprived them of due process of law because they were not allowed to cross-examine the blood-test technician and because the tests were discriminatorily administered to all Chinese, and no whites. Judge Dimock held that the right to cross-examine the technicians had been improperly denied and, without passing on the claim of discrimination, remanded for rehearing before the Board of Special Inquiry, D.C., 115 F. Supp. 302. An adverse decision by the Immigration Service again brought the relators before Judge Dimock. This time he held that the blood test evidence had been properly received if the tests had been taken without undue discrimination but feeling that the evidence on the issue of discrimination was inconclusive he ordered another rehearing on that issue, D.C., 123 F. Supp. 674. After the Immigration authorities again ruled against the relators, Judge Dimock, in his third opinion, reported at D.C., 133 F. Supp. 850, found that the blood tests were administered to all Chinese and to no whites, and held that this was illegal discrimination. Accordingly, he sustained the writ and ordered the relators to be admitted as citizens of the United States.

From this order, the respondent appeals. The relators by their cross-appeal predicate error on Judge Dimock's ruling in his second decision that even without the sanction of statute or official, authorized, regulations the Immigration Service may make use of blood testing as a method of non-discriminatory investigative procedure.

At the administrative hearings evidence relative to the claim of anti-Chinese discrimination was developed as follows. When American Consulates in China were closed, the Consulate in Hong Kong was flooded with passport applications by those theretofore living in the interior of China. The State Department then began taking blood tests in Hong Kong as a check on claims of paternity. The results of the tests having there proved useful as an investigative device, the procedure was adopted on an informal basis by individual investigators of the Immigration Service in its examination of Chinese arrivals beginning at some time, not precisely identified, in 1952. Between June 1952 and November 1953, at the request of the Immigration Service, 200 Chinese were blood tested by the Health Service, pursuant to a Federal Security Agency circular authorizing it to test United States citizens of Chinese descent. The Immigration Service also referred Chinese claimants to private physicians to make blood tests, one of whom testified that between early 1952 and November 1953 he tested 300 Chinese and no whites. To refute the respondent's contention that such tests were required of Chinese only in cases in which a birth certificate and opportunity to make a local investigation of paternity were absent (as was generally true of those born and raised in the interior of China), the relators put in evidence proof of four cases of Hong Kong Chinese, who had birth certificates issued by the British government or the American Consulate in each of which blood tests had been requested. In three of these cases the request for blood tests was made between July 24, 1952 and June 2, 1954.

The first formal authority for the use of blood tests was contained in a precedent decision of the Board of Immigration Appeals handed down on February 25, 1953. The Immigration Service first promulgated instructions relating to blood tests in early 1953. The early instructions dealt only with visa petitions and certificates of citizenship: they did not directly or indirectly purport to apply to exclusion proceedings. While the early directives did mention the use of blood tests specifically in Chinese visa petition cases and applications for certificates of citizenship, those instructions at no time directed the use of blood tests exclusively in Chinese cases and at no time precluded the use of blood tests in non-Chinese cases.

More recently, some time in 1954, all of those instructions were rescinded and all current instructions concerning the investigation techniques with respect to cases wherein blood tests are deemed essential or necessary do not directly or indirectly refer to any racial or nationality group but predicate the requirement on the nature of the case and the issue of paternity or the relationship which is involved. No instruction of any kind as to Chinese or other persons has been issued with respect to exclusion hearings before Special Inquiry Officers.

The respondent, in an effort to show the blood testing of non-Chinese, pointed to four cases of testing in the 1952-1953 period but none of these were definitely identified as involving persons of non-Chinese extraction. The respondent offered as a witness an Attorney-Advisor in the office of District Counsel for the New York office of the Immigration and Naturalization Service who since 1941 had experience in the Service as a Naturalization Examiner and chief of the Status Section. Since 1946 he had been assigned to that office as Attorney-Advisor in which capacity he had had first-hand knowledge of all policy decisions and had participated in thousands of litigated cases, including cases involving evidence of citizenship involving Chinese persons. He testified that Chinese cases in the large fell within the general pattern described in Mar Gong v. McGranery, D.C. S.D. Cal., December 15, 1952, 109 F. Supp. 821,¹  and that a high incidence of fraud had been developed in the cases falling within that general pattern.²  He testified further as follows. The Service had discovered that in bringing Chinese-born children to the United States there had developed a practice to prepare coaching books or "Halgoons" comprising an extensive written summary of family background reciting alleged details of family life, village, neighbors, schooling and local geography, which the alleged members of the family memorize and use as the basis for the answers to the questions asked of them severally, thus avoiding inconsistencies and concealing evidence of fraud which might otherwise develop on their respective examinations. The complicated structure of the Chinese calendar, the similarity of humble Chinese homes and villages as well as the Chinese language were unique factors which added to the difficulty of testing the credibility of witnesses in Chinese cases by separate examination as to the detail of significant family dates and abodes. This witness further testified:

"* * * As a matter of fact, it has been my experience that a substantial, if not the major proportion of all Chinese children arriving in the United States are admitted to the United States on primary inspection because no doubt exists as to their admissibility. But the large incidence of fraud in Chinese cases is known and is recognized, although the fraud in one of a thousand cases is never imputed to other cases, nonetheless, it does form a very substantial and very rational basis for being particularly cautious in examining and in investigating cases which fall into the same pattern as the Chinese cases which have been demonstrated to be fraudulent, so that the Government's interests will be protected and the Government will not be imposed upon by fraudulent claims."

He testified further:

"For this reason, when the use of blood tests on such issues first came to the attention of the Immigration authorities, it was seized upon as one of the first genuinely, tangible methods of reaching the truth. It is the position of the Immigration Service that the use of blood tests under such circumstances is not discriminatory — but is necessary, by reason of the pattern and type of case! — and not because the persons involved happen to be of the Chinese race."

The respondent's witnesses categorically denied that racial discrimination in the use of blood tests had ever existed and attributed the number of Chinese tested in the 1952 period to a proper police motive on the part of individual investigators adequately to investigate cases which seemed suspicious against their current background, evaluated by the actual experience of those responsible for the enforcement of the applicable law. Their testimony showed that at a later period an increasing number of non-Chinese were blood tested.

We agree with the relators that this case is not governed by our former decisions in Lue Chow Kon v. Brownell, 2 Cir., 220 F.2d 187, and U. S. ex rel. Dong Wing Ott v. Shaughnessy, 2 Cir., 220 F.2d 537. The evidence of discrimination here is substantially more compelling than that before us in those cases. However, we do not recede from our holding in those cases that blood tests, if not taken because of discrimination on racial grounds, are competent evidence on the issue of paternity, at least in federal courts sitting in the State of New York. We overrule the relators' contention, raised by their cross-appeal, that evidence of the blood tests was improperly received because of lack of administrative authority to make use of blood tests. Even in the absence of express authority embodied in official rules or directives, we hold that in the situation here responsible official personnel had authority to utilize any non-discriminatory, investigatory technique reasonably appropriate. The ruling complained of is sustained and the order complained of by the cross-appeal is affirmed.

We hold further that on the entire administrative record, only the salient portions of which are set forth above, the finding below that the testing of these relators was actuated by racial discrimination, was not warranted. It is true that in the 1952-1953 period there was evidence of 500 actual cases in which Chinese had been tested and no evidence of blood testing in any non-Chinese case or of Chinese admitted without blood testing.³  Nevertheless we think it more reasonable in the light of the administrative record, to attribute this apparent discrimination not to discrimination in fact but, rather, to the fact that in this early period the blood test technique first became known to investigators chiefly concerned with Chinese cases who were actuated to use it not because of racial prejudice but by a proper police motive for their aid in the solution of difficult cases. As the Special Inquiry Officer pointed out in his opinion, the technique of blood tests to check claims of paternity was a new procedure which originated in the American Consulate in Hong Kong whence it spread to the Immigration Service. We agree with him that discrimination did not result because in less than two years it was not immediately adopted in every case. We affirm substantially on the grounds stated in the last "decisions" of the Special Inquiry Office and the Board of Immigration Appeals, being satisfied that on the whole the administrative record supported the conclusion reached therein, viz., that discrimination had not been proved. Cf. Tulsidas v. Insular Collector, 262 U.S. 258, 43 S. Ct. 586, 67 L. Ed. 969; O'Connell ex rel. Kwong Han Foo v. Ward, 1 Cir., 126 F.2d 615.

Certainly, there was no evidence that in any other particular cases the particular investigating officer or Special Inquiry Officer involved was actuated by racial prejudice either in requesting blood tests or in processing the case without blood tests: so far as the direct evidence shows the scope of investigation in every case processed was adjusted to accord with doubts as to the bona fides of the applicant's claimed paternity and to the availability of local sources of information at the applicant's foreign residence. And even if, contrary to our view, occasional prejudice on the part of individual officers of the Service were deemed proved by inference arising from the preponderance of Chinese cases among those blood tested, it does not follow that the officers responsible for the policies of the Service had consciously, in 1952, adopted a discriminatory policy. Surely the policy-makers were not under duty to re-examine cases disposed of with or without administrative appeal, apparently on a factual basis, in a search for an undisclosed discriminatory motive on the part of the particular officers, or to keep elaborate and expensive statistics classifying each case for its race and nationality, and developing the particular reasons which had determined the scope of the investigation made by the individual investigators. The evidence showing that no such statistics were currently accumulated, warrants no inference to bolster the relators' case on the issue of discrimination. Rather, we think, it tends to betoken that in 1952 the Service was not even race-conscious in the formulation of its investigative policies. It also furnishes a reasonable explanation for the respondent's difficulty and occasional inconsistencies (too much stressed below) in attempting for purposes of the reopened hearing of October 28, 1954 to determine and synthesize into a general pattern the evanescent reasons on which individual officers had shaped the scope of numerous investigations made two years before.

In our judgment, the four cases of Hong Kong Chinese, earlier adverted to, of applicants who were blood tested although possessed of birth certificates issued by the American Consulate, are not enough to impugn the administrative conclusion. At most, those cases are of slight weight in showing the then existence of racial discrimination and certainly are not conclusive of discrimination against these relators.

The respondent's appeal is reversed with a direction to dismiss the writ. Affirmed on the cross appeal.

FRANK, Circuit Judge (dissenting as to respondent's appeal).

I concur in the affirmance on relators' cross appeal. As to respondent's appeal, I dissent, for the reasons stated by Judge Dimock in his opinions reported in D.C., 123 F. Supp. 674¹  and D.C., 133 F. Supp. 850.²  I shall not repeat in detail his statement of the evidence or his reasoning. I think the record amply justifies his conclusion, 133 F. Supp. at page 852, that, "It has become so clear that the policy of the Immigration Authorities is to apply blood tests to all Chinese and to no whites that even the presumption of administrative finality will not support a determination to the contrary. The Government has been unable to point to a single instance where a white person had been subjected to a blood test or a Chinese excused from one." Judge Dimock seems to me to show, unanswerably, that we have here an unconstitutional administration of a valid statute.³ 

He carefully pointed out how the government, in the several stages of the hearings before him, kept shifting its position in a way which warranted his distrust of its protestations of an absence of discrimination.⁴  On the third administrative hearing (held pursuant to Judge Dimock's opinion reported in 123 Fed.Supp. 674) respondent introduced the testimony of an Attorney-Advisor in the New York office of the Service. This testimony was designed to rebut the strong case of discrimination theretofore made by relators. This witness narrated instances purporting to prove absence of discrimination, and added his impressions of the administrative practices. Relators were denied the opportunity to see the administrative records to which this witness had referred. The witness conceded, on cross-examination, that his testimony was inconsistent with statements previously made by him in the return to the writ of habeas corpus. I think his testimony, which my colleagues stress, was wholly insufficient to offset relators' proof of discrimination.⁵ 

The administrative decision, made in 1952, adverse to relators, rested solely on the blood test evidence. Judge Dimock found (I think correctly) that such blood tests were discriminatorily applied as against Chinese persons; that therefore that evidence was improperly received; and that, except for that evidence, the record entitled relators to admission. Accordingly, they should have been admitted in 1952. It is suggested that this conclusion is artificial and academic, for this reason: Since the time of the adverse administrative decision in 1952, blood tests have been applied without discrimination, so that, if there were now a new administrative hearing, new blood tests could be received properly and would prove that relators are not citizens. I cannot agree with this argument: On the record, as it stood when the adverse administrative decision was made in 1952, defendants should have been admitted at that time, and therefore we should deal with the case as if they had been.

At first glance, it might seem absurd that the blood test evidence should be disregarded, inasmuch as it demonstrates that relators are not citizens.⁶  But such was the sort of result reached in the justly famous case of Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220. There the relator had been convicted of a violation of an ordinance, and the Supreme Court accepted that violation as a fact. Nevertheless, the Court held that relator must be released on a habeas corpus writ because the ordinance had been discriminatorily applied to Chinese alone. The Court said in 118 U.S. at pages 373-374, 6 S. Ct. at page 1073: "Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution." See also, e. g., Norris v. Alabama, 294 U.S. 587, 589, 55 S. Ct. 579, 79 L. Ed. 1074; Smith v. Texas, 311 U.S. 128, 130-131, 61 S. Ct. 164, 85 L. Ed. 84; Patton v. Mississippi, 322 U.S. 463, 465-466, 68 S. Ct. 184, 92 L. Ed. 76.

It might be argued that the doctrine of Yick Wo v. Hopkins turns on the requirement of "equal protection of the laws" found in the 14th Amendment and that there is no like provision applicable to the federal government. But in Bolling v. Sharpe, 347 U.S. 497, 74 S. Ct. 693, 694, 98 L. Ed. 884, the Court said, "The Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause as does the Fourteenth Amendment which applies only to the states. But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The `equal protection of the laws' is a more explicit safeguard of prohibited unfairness than `due process of law,' and, therefore, we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process. Classifications based solely upon race must be scrutinized with particular care, since they are contrary to our traditions and hence constitutionally suspect."⁷