T-1495259 and T-1495260
Decided by the Board May 20, 1953
Paternity — United States citizenship, section 1993, Revised Statutes — Evidentiary value of impeached testimony.
(1) When the applicants for admission as foreign-born children of a United States citizen and their alleged parents have disqualified themselves as witnesses because of the demonstrated falsity of at least part of their testimony, all applicants must be excluded, unless there is sufficient credible evidence independent of the testimony of the discredited witnesses to establish the relationship.
(2) One of the rules governing the inheritance of blood properties is, "Regardless of the blood group of the other parent, a man or woman with O blood cannot have children belonging to group AB, and vice versa, no person belonging to AB blood group can have a child with blood belonging to group O." (See Int. Dec. 430 re admissibility of blood tests as evidence.)
EXCLUDED:
Act of 1924 — No immigration visa. E.O. 8766 — No passport.
BEFORE THE BOARD
Discussion: This is an appeal from a decision of the board of special inquiry at San Francisco, Calif., excluding appellants as alien immigants on the documentary grounds stated above.
Appellants arrived in the United States at San Francisco on August 7, 1952. They sought admission as United States citizens pursuant to section 1993, Revised Statutes, as the sons of a native-born American citizen father, W---- Y----. At time of entry W---- K---- S---- claimed the age of 25 years 3 months, and the birthdate of August 30, 1927. W---- P---- S---- claimed the age of 18 years 6 months and the birthdate of May 20, 1934. It is admitted that the alleged father was in China at the time when conception would normally have occurred for children born on these dates. The citizenship of the alleged father has been conceded.
The alleged father claims birth in San Francisco, Calif., in 1885 and five round-trips between the United States and China since that time. Since his marriage in 1908, the alleged father has spent approximately 9 ½ years in China, and he has claimed, for immigration purposes, eight sons. He has already brought to the United States and secured the admission of his three alleged oldest sons.
The appellants in the present proceeding are the alleged fourth and seventh sons of W---- Y----. He attempted also to bring to the United States at this time W---- K---- G----, his alleged eighth son, but the American Consul General at Hong Kong refused documentation of the youngest applicant on the ground that examinations, radiological and otherwise, showed him to be about 12 years of age rather than the 16 years of age he claimed. Since both older applicants had testified under oath as to the age of their alleged younger brother, W---- K---- G----, it was the decision of the examiner at the American Consulate in Hong Kong that documentation should be refused to all three applicants. This decision was appealed by counsel to the Passport Division of the Department of State. On the basis of additional photographs the documentation of the two appellants was authorized, but the request of W---- K---- G---- for travel affidavits was denied.
See Lew Mun Way v. Acheson, 110 F. Supp. 64 (S.D. Calif., February 2, 1953), for discussion of the evidentiary weight to be given radiological examinations to determine age of Chinese child claiming United States citizenship.
It was decided by the Department of State, under a then existing interpretation of the law, that even if his identity as a son of W---- Y---- should be established and the validity of his claim to American citizenship at birth conceded, W---- K---- G---- ceased to be an American citizen on the date of his alleged sixteenth birthday, February 1, 1952, because of his failure to comply with the requirement of section 201 (g) of the Nationality Act of 1940, 8 U.S.C.A. 601 (g) which required that persons in his circumstance take up residence in the United States prior to attaining the age of 16 years. This interpretation of the statute has since been reversed to bring the departmental rulings into harmony with court decisions on the subject. See Lee Bang Hong v. Acheson 110 F. Supp. 48 (D.C. Hawaii, 1951); Hong Yick Ming v. Acheson (N.D. Calif., October 21, 1951) not published; Lee Hong v. Acheson 110 F. Supp. 60 (N.D. Calif., 1953).
The decision of exclusion by the board of special inquiry in the cases now before us was based primarily on the results of blood tests which were performed on specimens of blood of the appellants and the alleged father. These tests show that appellant W---- K---- S---- could not possibly be the child of the alleged father. The tests did not show incompatibility of blood between the alleged father and the appellant W---- P---- S---- but the latter was excluded on the ground that he had testified under oath that he and W---- K---- S---- are blood brothers, that if this is so he cannot be a blood son of W---- Y----, and if it is not so, he is impeached by his own false testimony. In her brief and in oral argument before this Board counsel urged that the blood grouping tests are not reliable or conclusive and that the affirmative evidence supporting the relationship of appellants to the alleged father outweighs the blood test evidence relied upon by the board of special inquiry in the exclusion decision. The affirmative evidence consists of photographs, recent letters and copies of bank drafts, and the testimony of the interested parties and several of their alleged relatives.
In the recent Matter of L---- F---- F----, 0300/423162, February 25, 1953, Int. Dec. 430, this Board considered at length the subject of the conclusiveness of blood grouping tests. We concluded after study of the cases and literature on the subject that blood grouping tests, properly performed by competent technicians, can disprove paternity conclusively in cases where there is incompatibility of blood. As we pointed out in that decision, a large body of medical and legal authority has accepted the infallibility of blood tests. Laws have been passed in a number of States authorizing courts to order blood grouping tests in cases of disputed paternity, and the use of such tests as disproof of paternity, with or without a statute, has been approved in many cases. There is no competent medical authority that disputes the conclusive character of blood tests when they have been properly conducted.
The brief of counsel sets forth as a rule of law that "the results of blood group tests, even when properly proved, are not conclusive, but may only be taken into consideration along with other evidence." Most of the cases cited in support of this proposition have been considered and evaluated in our opinion in Matter of L---- F---- F---- (supra). We will not repeat here the extensive discussion and authorities set forth in that case.
Counsel cites Harding v. Harding, 22 N.Y.S. 2d 810 (1940). That case has been specifically overruled by a long line of cases in New York decided since the time of the Harding case. See Schulze v. Schulze, 35 N.Y.S. 2d 218, Dellaria v. Dellaria, 183 Misc. Rep. 832, 52 N.Y.S. 2d 607 (1944), Scalone v. Scalone, 98 N.Y.S. 2d 167, 199 Misc. Rep. 210 (1950), Saks v. Saks, 189 Misc. Rep. 667, 71 N.Y.S. 2d 797 (1947), Cuneo v. Cuneo, 96 N.Y.S. 2d 899, 198 Misc. Rep. 240 (1950), and the latest case accepting this view is Clark v. Rysedorph, (N.Y.Sup.Ct., App. Div., 3d Dept. (Dec. 30, 1952), 21 Law Week 2351). Since the Harding case was decided the New York courts have completely accepted the doctrine of the conclusive nature of blood tests.
Counsel also cites State ex rel. Walker v. Clark, 144 Ohio St. 305, 58 N.E. 2d 773 (1944) as discounting the conclusiveness of blood tests. We did not discuss this case in Matter of L---- F---- F----, and it is not necessary to do so here. In effect the court there held that the blood tests, with the testimony of plaintiff and her former husband, constituted "the clear and convincing evidence" necessary to refute the strong presumption of legitimacy. We fail to see where counsel finds comfort in this decision; the court clearly recognized the persuasive nature of blood test evidence.
Counsel also cites Hill v. Johnson, 102 Calif. App. 2d 94, 226 P. 2d 655 (1951) in which the court reversed a finding of a court commissioner based on blood test evidence. That decision was based on two California statutes: (1) Section 1978, California Code Civ. Proc. provides, "No evidence is by law made conclusive or unanswerable, unless so declared by this code." (2) Section 1962 (5), California Code Civ. Proc. provides, "The issue of a wife cohabiting with her husband, who is not impotent, is indisputably presumed to be legitimate." The appellate court held that in view of the presumption set forth in the California code, section 1962 (5) the commissioner erred in receiving the blood test evidence, declaring that such evidence was inadmissible because contrary to the conclusive presumption of legitimacy established by the code. The California statute is an enactment of the old English "Rule of Lord Mansfield," somewhat liberalized, but still more strict than that prevailing in most jurisdictions of the United States today.
The other California cases cited by counsel, Arais v. Kalensikoff, 10 Calif. 2d 428, 74 P. 2d 1043, 115 A.L.R. 163 (1938) and Berry v. Chaplin, 74 Calif. App. 2d 652, 169 P. 2d 442 (1946), also hold that because of section 1978 of the California code, set forth above, blood test evidence cannot be found to be conclusive, because it is not declared to be so by the code. The appellate courts in California hold that if a jury has rejected blood test evidence in reaching a verdict the appellate courts can not reverse that verdict on the strength of blood test evidence alone. As we stated in Matter of L---- F---- F----, supra, presumptions of legitimacy have no relevance in a proceeding to determine citizenship. As the court said in Ly Shew v. Acheson, 110 F. Supp. 50 (N.D. Calif., January 12, 1953) the problem here is one of identity — who is this person who claims to be a citizen?
In the case before us the results of the blood grouping tests were as follows: All of the blood tests, evidenced by Exhibits Nos. 10, 15, and 17, show the alleged father to have blood which falls in blood group "AB." Exhibits Nos. 12 and 16, a test and a recheck, show that apellant W---- K---- S---- has blood falling in blood group O. Exhibit No. 11 shows that appellant W---- P---- S---- has blood falling in blood group B. The board of special inquiry introduced one of the tables which summarizes the laws of heredity as they apply to the inheritance of blood properties. This table was obtained from 163 A.L.R. 939 at 942. These tables appear in all literature on this subject and are widely accepted as accurate. (It should be mentioned that much has been written on this subject by legal and nonlegal authorities since the A.L.R. note was written.)
One of the rules governing the inheritance of blood properties is "Regardless of the blood group of the other parent, a man or woman with O blood cannot have children belonging to group AB, and, vice versa, no person belonging to AB blood group can have a child with blood belonging to group O." It can be seen quickly that the blood grouping tests show that the alleged father who has AB blood cannot be the blood father of appellant W---- K---- S---- who has O blood. The test did not demonstrate incompatibility of blood between the alleged father and the appellant W---- P---- S----. It is our conclusion that the blood tests demonstrate conclusively that W---- Y---- cannot be the father of appellant W---- K---- S----, and therefore that appellant must be excluded from the United States as an alien immigrant not in possession of the proper documents.
The fact that the blood tests did not demonstrate incompatibility of blood between the alleged father and the appellant W---- P---- S---- does not constitute affirmative evidence of the relationship claimed. As we pointed out in Matter of L---- F---- F----, ( supra), these tests can be used only as negative proof, that is, to demonstrate nonpaternity, rather than as affirmative proof of paternity. It was the decision of the board of special inquiry that appellant W---- P---- S---- should be excluded on the basis of his clearly false testimony as to the blood relationship between the alleged father, appellant W---- K---- S---- and himself.
It is true that the credibility of W---- P---- S---- is seriously impeached. It is our belief that when both appellants and the alleged parents have disqualified themselves as witnesses because of the demonstrated falsity of at least part of their testimony, all appellants must be excluded, unless there is sufficient credible evidence independent of the testimony of the discredited witnesses to establish the relationship. This is rarely the case. Usually the testimony and evidence are so integrated that when one claim falls they all fall.
It is true that these appellants appear to have good knowledge of one another and of their mutual family background. There are several group or family photographs. P---- S---- appears in three of these, and K---- S---- in just one of them. W---- Y----, on July 1, 1945, purchased $9,500 worth (maturity value) of United States Savings Bonds, naming as co-owner W---- P---- S----. (The serial numbers of these bonds are set forth in an affidavit of W---- Y---- which is part of Exhibit 7 of this record.) However, it is only as sons of W---- Y---- that appellants are entitled to enter the United States as citizens, and we have concluded that these appellants are not blood sons of W---- Y----. They may have had long and close association with one another and even with him. This fact does not establish their citizenship.
In addition to the false testimony as to the relationship between the alleged father and W---- K---- S----, other factors reflect on the authenticity of the claims made by the various members of this family. It is claimed that K---- S---- was one of twin brothers, born on August 30, 1927. K---- G----, the alleged twin brother of K---- S----, is said to have gone to Young Gong District in 1944. No one has heard from him since that time. It is very common in these cases to have fictitious members of the family simply "disappear" if they have been claimed as sons, when it is no longer convenient to have them around. Neither K---- G---- nor K---- F----, the alleged sixth son (born on February 24, 1929), appeared in any of the family pictures. K---- F---- is supposed to be now present in Hong Kong, having arrived there with the alleged mother in July or August 1952. There is no showing that he appeared at the American Consulate there as a witness in behalf of any of the applicants from this family.
Some documents were offered as evidence: letters between appellants and the alleged father and evidence of money contributions from the alleged father to appellants. These documents are all of recent date. The file contains four copies of "Remitter's Memorandum" dated 1951, evidencing payments made by W---- Y---- to P---- S----. P---- S---- testified that he does not remember any money coming directly to him, that his father sent money to them through a store in the market when they lived in the village and through one W---- S---- L---- after they went to Hong Kong. P---- S---- was asked how these drafts were cashed. He stated that he did not know. Therefore, while the remittance memoranda make it appear that W---- Y---- sent substantial money payments to his family through P---- S----, it is clear that this appellant has no knowledge of those transactions.
One discrepancy in testimony was with regard to the identity of a small girl, S---- F----, who appears in the family group picture taken in 1935. E---- W---- (whose case is now before us on appeal from an exclusion order, File T-303304), alleged to be a niece of appellants, and W---- Y----, the alleged father, testified that S---- F---- was a maid servant who worked for " my family in our house." H---- H----, the alleged father's third son and himself, the alleged father of E---- W----, when questioned in New York (Ex. 2, T-303304) gave a different name for her but testified similarly, "the first one we called M---- N----, whom my family used as a servant." He was asked if he knew W---- M---- Y----, and he identified that person as a distant relative, a member of the W---- clan who lives nearby. Both appellants testified that she worked for "M---- Y---- `S----'" or "W---- M---- Y----, the wife of M---- Y----", a relative who lived "next door" to them. This seems to be a discrepancy. The four male witnesses are supposed to be father and three sons, all living in the same house, but two of them identify the maid servant as working for them in their house, and two of them identify her as working for a distant relative who lived nearby in the home village.
The most important single feature of P---- S----'s case is the fact the record shows that the alleged mother of appellants was born in 1888 and, therefore, at the time of the birth of P---- S----, she would have to have been 47 years old. At the time of the birth of W---- K---- G----, she would have to have been 49 years old. (For reference to K---- G----, see p. 2 of this decision.) On July 11, 1933, W---- Y---- declared his wife to be 45 or 46 years old. P---- S---testified on August 27, 1952, that his mother was 65 years of age. The alleged first, second, and third sons were said to have been born in 1909, 1913, and 1915 when the alleged mother was 21, 25, and 27 years of age. These three alleged sons have all been admitted to the United States as citizens. The alleged twins, K---- S---- and K---- G----, were supposedly born in 1927 when she was 39, K---- F---- in 1929 when she was 41, P---- S---- in 1934 when she was 47 years of age and K---- G---- in 1936 when she was 49 years of age. W---- Y---- married J---- S---- on or about August 17, 1908. He has testified repeatedly throughout these and all his immigration proceedings that this is his only marriage and that this same wife is the mother of all eight of his sons.
It is not a biological impossibility, of course, for the alleged wife of W---- Y---- to have given birth to her seventh and eighth sons at the ages of 47 and 49. It does seem to us highly unlikely that she did so. The birth rate for women in this age bracket is negligible. Further, if she did have children at these ages, the chances of those children being alive today are less good than if she had been a younger woman at the time of their birth. If this is true in the United States, as our sources indicate, it is probable that it would be just as true of infants born to an older woman in China.
The birth rate in the United States per 1,000 white women in the age bracket 20-24 in 1949 was 190.5. The birth rate per 1,000 white women in the age bracket 45-49 was 1.0. The rate per 1,000 nonwhite women in the age bracket 20-24 was 226.2. The birth rate per 1,000 nonwhite women in the age bracket 45-49 was 1.7 in 1949. (Encyclopedia Britannica, Yearbook 1952.)
Infants born to mothers over 45 years of age in the United States suffer approximately two and one-half times the mortality rate of infants born to mothers between the ages of 20 and 35. (Encyclopedia of Social Sciences, vol. III, p. 388.)
We do not find as a matter of law that W---- Y---- and J---- S----, his wife, are not the parents of P---- S---- because of the age of J---- S---- in 1934, but we do find that this factor combined with the other unfavorable aspects of this case compels us to find that P---- S---- has not sustained the burden of proving the alleged relationship.
It is our conclusion that the appellants have not sustained the burden of proving the claimed relationship to the alleged father. They are not admissible as United States citizens and the appeal must be dismissed.
Order: It is ordered that the appeal be and the same is hereby dismissed.