CARMICHAEL, DISTRICT DIRECTOR OF U. S. IMMIGRATION AND NATURALIZATION SERVICE,
v.
WONG CHOON OCK
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The court held that immigration authorities cannot disregard uncontradicted eyewitness testimony regarding an alien's birthdate and parentage.
An alien, detained by the INS, was ordered deported based on 'expert' opinion contradicting eyewitness testimony about his birthdate and parentage. Th…
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Seeking admission to the United States as a citizen thereof, appellee, Wong Choon Ock, was detained at the port of San Pedro, California, by appellant, William A. Carmichael, District Director of the Immigration and Naturalization Service. A board of special inquiry appointed under § 17 of the Immigration Act of February 5, 1917, c. 29, 39 Stat. 887, 8 U.S.C.A. § 153, heard appellee’s case and determined that he should be deported. The Secretary of Labor sustained the board’s decision and issued a deportation warrant. Appellee applied for and obtained a writ of habeas corpus. Appellant produced appellee’s body and, as part of his return to the writ, filed a transcript of the testimony and proceedings before the board. The court heard the case and entered judgment for appellee. Appellant seeks reversal.
The evidence establishes without conflict that appellee' is the son of Wong Quan, who, it is conceded, is a native-born citizen of the United States. Uncon-tradicted testimony to. this effect was given by appellee, by appellee’s parents, Wong Quan (father) and Chin King Nue (mother), and by appellee’s brothers, Wong Choon Loy, Wong Yowe, Wong Jeow and Wong Quong. Appellee’s parents and three of his brothers — all of whom were present at appellee’s birth — testified that appellee was born on November 20, 1930. This testimony was hot directly contradicted. The only testimony tending to contradict it was opinion testimony of “experts,” none of whom had or could have had any actual knowledge of the date of appellee’s birth. Their opinions varied widely. One thought that, at the time of the hearing (1939), ap-pellee was between eleven and thirteen years of age; another thought he was between thirteen and fifteen. Upon this “expert” testimony, and it alone, the immigration authorities ordered appellee’s deportation.
The court below held, and we agree, that this action of the immigration authorities was manifestly unfair. Compare Gung You v. Nagle, 9 Cir., 34 F.2d 848, 853; Ex parte Chung Thet Poy, D.C., 13 F.2d 262, affirmed in Johnson v. Chung Jeng ex rel. Chung Thet Poy, 1 Cir., 16 F.2d 1018; Ward v. Flynn, 1 Cir., 74 F.2d 145, 146. In Hom Ark v. Carr, 9 Cir., 105 F.2d 607, cited by appellant, no witness-testified from personal knowledge that the applicant was a son of his alleged father. Here there was positive, uncontradicted eyewitness testimony which, in our opinion, the immigration authorities had no right to disregard.
Judgment affirmed.
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- Gung You v. Nagle, 34 F.2d 848 (9th Cir. 1929)
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