L

MATTER OF L

In DEPORTATION Proceedings

A-10635395

Decided by Board February 19, 1959

Evidence—Blood-grouping tests—Exclusion of parentage through Rh system.

As with the A-B-O and M-N systems, the same conclusive effect is given Rh

blood-grouping tests which exclude paternity when the test results are con-

sistent and uncontroverted and the interpretation is made by a recognized

authority.

CHARGE :

Order : Act of 1952—Section 2-11(a) (1) [8 U.S.C. 1251(a) (1)1—Excludable

at time of entry—No immigrant visa.

BEFORE THE HOARD

Discussion: Respondent is a native of China, 29 years of age, who

was admitted to the United States on April 21, 1956, as the United

States citizen son of L Y W , a citizen of the United

States. Following his admission he filed an application for a certifi-

cate of citizenship. The special inquiry officer found, following a

hearing, that recently - dovelop,1 evidence, e:Aablilhea that the respond

ent is an alien, a native and citizen of China, that he was not entitled

to enter the United States as a citizen and is, therefore, deportable on

the charge contained in the order to show cause. Respondent ap-

peals to this Board from the order of deportation.

Following his application for a certificate of citizenship, and at

the request of the Immigration and Naturalization Service, respond-

ent and his alleged parents were asked to cooperate in the perform-

ance of blood-grouping tests. On September 28, 1956, accompanied

by an immigrant inspector, they went to the Western Laboratories

in San Francisco, California, where blood Samples were taken fur

the purpose of establishing the groups, types and factors in the

blood of respondent and his alleged parents. These tests are designed

to establish the possibility or impossibility of the claimed parentage

or relationhip between respondent and the alleged parents. The

pathologist who supervised the tests was Dr. Leonard Ortega, who

later testified as to his own qualifications, described the techniques

259

used in his laboratory, and the meaning of the test results and of

the forms filled out and signed by him, part of exhibit 2.

On July 8, 1057, respondent and his alleged parents again cooper-

ated in the performance of blood tests at the Latham Square Labora-

tories in Oakland, California, accompanied by Mr. H K

their attorney. Dr. Paul Steiner later testified as to his own quali-

fications as a pathologist. He was not questioned by anyone regard-

ing the methods used in his laboratory or the circumstances under

which the tests wore made. Ho wax not naked whether he performed

these tests or supervised their performance.

The results of the tests performed at both laboratories are identi-

cal. It was conceded by the examining officer and by counsel for the

respondent that the interpretation of the test results is the primary

issue in this case. The special inquiry officer stated to the attorney

that it was his understanding that the Government contends that

respondent is not the son of the alleged parents, and that counsel

contends that he is the son of the alleged parents, anti "that is the

issue." Both counsel and the examining officer agreed to that state-

ment, of the case. The special inquiry officer stated further, "Then

as I understand it there is no issue as to the accuracy or the methods

used in the blood-grouping tests?" Counsel and the examining offi-

cer agreed there was no such issue.

We have had several eases wherein the testers for varying reasons

had arrived at different results, but this is the first blood-grouping

case to our knowledge wherein the test results are the same, but the

testimony of two pathologists is conflicting as to the meaning of

the tests. The findings of the two laboratories are reported in dif-

ferent forms, even though they purport to state the same test rhsults.

It is our opinion that the table appearing in Dr. Weiner's letter is

most easily comprehended by nonmedical persons. (Dr. Alexander

Weiner was chosen by both parties as arbiter, as we shall relate.)

He states:

The findings of the two doctors may be summarized as in the table

below:

Blood of- Group M-N type Rh-Tir type

Y—w—L—(putative father). 0 MN ROSS

(putative mother) A MN RhIRbl

J e3yon.ac.t) A

Dr. Ortega testified that following his graduation from medical

school he had extensive training and experience in the field of pathol-

ogy, that he supervised laboratories and blood banks in Texas and

California, that he is at present an instructor of pathology at the

University of California School of Medicine, that he has performed

hundreds of blood typings for the purposes of transfusions, for the

260

identification of blood stains in criminal proceedings, and for one,

to two hundred cases involving disputed paternity. He was asked

who in his opinion were the outstanding authorities in the field of

blood grouping and testing, and he named Dr. Alexander Weiner

of New York, Dr. Race in England and Dr. Philip Levine in New

Jersey. He testified that an exclusion of paternity may be demon-

strated as the result of tests concerning any one of the three blood

systems used for this purpose in routine medicolegal use. He stated

that the first tests used in paternity cases concern the A-B-O system,

next the M-N system, and last the Rh-Hr system, and that all the

tests used demonstrate results which Lure firm barer in genetic law.

He testified that the tests made in the instant case were actually per-

formed four times in his laboratory, twice by each of two different

technicians. The tooth wore repeated beenvme they discovered there

was an exclusion of parentage. He testified that the test results

establish that respondent cannot be the child of the alleged father

and mother, and that the exclusion of paternity was not discoverable

through the A-B-O or the M-N tests but is established by the Rh-Hr

tests.

Dr. Ortega testified that respondent, the alleged son, has in his

blood the factor rh', and that both parents "are negative for this

factor." He stated, "For this factor to appear in a child it has to be

present in one or both parents. It is simply a matter of heredity

that the child cannot have something that neither parent has" He

was asked, "Doctor, is it your opinion that this is a conclusive find-

ing?" He answered, "In my opinion, yes, it is a conclusive finding."

On cross-examination Dr. Ortega's testimony reads as follows:

Q. And if I were to tell you, Doctor, that I had a statement in writing by

a pathologist who presumably is well qualified to the effect that he is not

prepared to say that paternity is excluded in this case on the basis of the Ith

factor, what comment would you navel

A. My comment would be that this pathologist is certainly at variance with

practically every other serologist in the world.

Counsel called Dr. Paul Steiner, who testified to his medical school,

graduate school, and special training in pathology. He testified that

he is assistant pathologist and consultant pathologist to a number

of laboratories and institutions in the San Francisco area, including

the Veterans Administration and Mare Island Naval Hospital. He

was asked to name the outstanding experts in the field of blood

grouping, and he named the same three experts named by Dr. Ortega :

Dr. Alexander Weiner, Dr. Race (whom lie referred to as Race-

Sanger, apparently a team) in England, and Dr. Philip Levine.

Dr. Ortega and Dr. Steiner testified separately, not in the presence

of one another, and approximately two weeks apart. Dr. Steiner

referred briefly to the A-B-O and H-N systems and then discussed

at length the Rh system and the differences in nomenclature with

261

regard to that system, describing the C, D, E, c, d, e designations

developed by the British doctors Race and Sanger, and the Rh-hr

symbols, developed by Dr. Weiner in this country. Dr. Steiner pre-

fers to use the designations C, D, E, e, d and e for purposes of sim-

plicity, rather than the Rh-hr designations. The subject of blood-

group nomenclature is discussed in the "Supplementary Report of

the Committee on Medicolegal Problems, American Medical Associa-

tion," reprinted from the Journal of the American Medical A SSO-

e-i,etton, August 31, 1917, vol. 101., pp. 2030-2014. It is a controversy

with which we need not concern ourselves here.

Dr. Steiner testified that exclusion of paternity based on what he

terms the big factor (oh") alone is ton ciontroversial to be fair.

He considers it to be "a matter of doubt." It is his belief that the

"big E factor" may consist of several factors, and that not enough

is known about it at this time to justify basing an exclusion of pater-

nity on that test. He quoted from several publications he believes

support his view. He read from the American Journal of Human

Genetics, December 1952, an article by Dr. Weiner, whom he quotes

as saying, "The existence of individuals with the red cells lacking

both factors Rh" and He has an important implication for the

medical-legal application of these tests in cases of disputed parent-

age, and this could lead to erroneous csvolusiono of parentage." It

seems to us that this statement is not pertinent to the instant case.

These persons are not lacking both Rh" and He; the respondent's

blood has in it the factor Rh" and, judging from Dr. Steiner's own

test reports, he found the reaction to the anti-e (hr") serum to be

"positive as to all three parties." The tests done by Dr. Ortega did

not include the "e" (hr") test which is not recommended by the

American Medical Association Committee.

Dr. Steiner continued his testimony by reading from the Supple-

mentary Report of the Committee on Medicolegal Problems, Ameri-

can Medical Association, referred to above. The Committee consisted

of Dr. Weiner, Chairman, and three other persons. Assuming the

record we have to be correct, Dr. Steiner did not read the report

accurately. The record we have quotes him as follows:

* • * and finally the Journal of the American Medical Association of Au-

gust 31, 1957 in a report of the Committee on Medical-Legal Problems in an

article Medical Logal Applications of aloud arollpinp: Tools. save here. With

regard to the Rh system and particularly to the Rh" factor obviously the

medical-legal application of such factors is premature. Indeed because the

lack of availability of adequate amounts of suitable anti-serums and the lim-

ited knowledge due to the small number of investigations carried out to date

the routine use in medical-legal work of the Factors Rh" is inadvisable.'

(Emphasis added.)

The report Dr. Steiner quotes from was not placed in evidence.

The special inquiry officer should have requested that it be made

262

part of the record. However, the report is available to us and it is

clear that Dr. Steiner misread the paragraph quoted, and taken out

of context the meaning is changed. The quoted paragraph, in tote,

read an follows:

Recent work has revealed the existence of still other factors belonging to

the Rh-Hr system, notably, factor V, often found associated with the genes r

and R., especially in Negroes. In addition, a series of new Rh factors has

been discovered that, with rare exceptions, occur in association with the factor

Rho (similar to the association of factor rhw with rh') and that have tenta-

tively been designated as IthA, Rh; and so forth. Obviously, the medicolegal

oppnestion of spot) factors is premature. Indeed. because of the lack of avail-

ability of adequate amounts of suitable anti-serums and the limited knowledge

due to the small number of investigations carried out to date, the routine use

in medicolegal work of factors rh., hr", and hr is inadvisable. This Commit-

too recoassueudg, theref ore, shot for rnntine medicolegal work. for the present.

the Rh-Hr test be limited to the factors Rh o, rh', rh", and he. (Emphasis

added.)

The Committee report had already discussed the fact that there

are at the present time four principal Rh blood factors and three

principal Hr factors recognized. It states, "However, anti-serums

for only four of these seven factors are readily available for routine

clinical and medicolegal work, namely, anti-Rh o, anti-rh', anti-rh",

and anti-hi." The report discusses many rh and hr factors, some

of them rarely encountered, and clearly is discussing these, factors

in the paragraph road by Dr. Steiner (quoted above) when they

recommend that the tests for the rare and newly-discovered factors

not be used in routine medicolegal work. The Committee again says,

"As has already been pointed out, in medicolegal cases the paternity

blood tests are generally limited to the factors Rh., rh', rh" and hr'.

Actually many more Rh-Hr factors have been found."

Dr. Steiner again quoted from the Summary and Conclusions of

the Committee (Supplementary Report), "It is recommended that

routine medicolegal applications of blood grouping be restricted at

present to tests for the four blood groups, 0, A, B, and AB of the

A-B-O system; the three types M, N, and MN of the M-N-S- system;

and factors Rh., rh', rh", and hr' of the Rh-Hr system." Dr.

Steiner's comment on this recommendation is, "Now here they omit

expressly the factor hr" which is the one present in the two parents."

This seems to us to be a non sequitur, since the exclusion of paternity

in this case is not based upon the presence of the factor hr" in the

two parents, found by Dr. Steiner's tests. This is one of the factors

for which the Committee of the American Medical Association

recommends routine tests not be made. The exclusion here is based

upon the fact that the element rh" is present in respondent's blood

and is not present in the blood of the alleged parents.

It is not necessary for us to attempt to resolve the conflict between

the conclusions of Dr. Steiner and Dr. Ortega. When it became

263

apparent to the special inquiry officer, counsel, and the examining

officer that the two doctors had conflicting opinions, the examining

officer asked Dr. Steiner if he felt that. Dr. Weiner is the outstand-

ing authority in this field in this country, and if Dr. Steiner would

accept Dr. Weiner's word as final in this case if the tests were sub-

mitted to him for decision. Dr. Steiner answered, "Yes I do, not

the only one but one of the outstanding authorities. Dr. Philip

Levine is probably equally qualified, but he is not as flamboyant as

Dr. -Weiner is * * *." The examining officer then moved that the

testimony of the two witnesses and the two sets of tests be submitted

to Dr. Weiner for a final opinion. Counsel stated that he had no

objection to that and stipulated that lie was willing to be bound by

the results of Dr. Weiner's opinion. The examining officer also so

stipulated.

Dr. Weiner's letter addressed to the Immigration and Naturaliza-

tion Service at New York, July 16, 1958, signed and notarized, is

exhibit 3 in the record. Dr. Weiner's table summarizing the results

of the blood-grouping tests herein has been set forth above, and will

not be repeated here. The rest of Dr. Weiner's certifacatiuu reads as

follows:

Mr. E— also— showed me the records of the above-named case includ-

ing the report of Dr. L. R. Ortoge of the Western Laboratories in flohlond,

California, the report of Dr. Paul S. Steiner of the Latham Square Labora-

tories of Oakland, California, and the testimony of Dr. L. K. Ortega and Dr.

P. Steiner, all of which I have read, There appears to be no dispute about

the results of the blood tests themselves, but only regarding the interpretation

of the findings. While it is against my principles to offer an opinion based

on tests which I have not done myself, in the present ease, according to the

testimony, the tests were done many times, always with the same results, as

that it would be uareaooaablo to challenge the findings.

As far as the A-B-O and M-N tests are concerned the results provide no

Information as to the question of parentage. The Rh-Hr tests, however, show

that J- K L cannot be the child of I W L and

Y L L . The reason for this is that two parents both lacking factor

tit" (otherwise known as factor E) cannot have a child with factor rh" (or

E). In the present case the putative father X W L— is type Itlugh

lacking factor rb" (or E) and the putative mother, M I L— L is

type RhiIthi lacking factor rh", while the putative son, J K L is

type Rh iithz having factor rh". Therefore J—K—L------ is not the son

of Cho putatiro pax Onto, Y w L and br Y— L L

The hearing was reconvened on September 18, 1958, in San Fran-

cisco, at which time counsel objected to the acceptance in evidence

of Dr. Weiner's report "on the ground that the witness has impeached

himself." Counsel, admittedly basing his opinion on the "quoted

remarks of Dr. Weiner" as read into the record of hearing by Dr.

Steiner, states that he believed "that Dr. Weiner would rule out

exclusion of paternity on the basis of the big E factor of the Rh."

004

Counsel continued, "However, since Dr. Weiner has now repudiated

what he was quoted as saying the previous time I don't feel bound

by the stipulation * * *" (emphasis added). It is apparent that

counsel did nnt gtudy the report, of the Committee of the American

Medical Association himself, but based his opinion on the reading

of it by Dr. Steiner. If our copy of this report is correct, then

Dr. Steiner's reading of it cannot be correct.

The special inquiry officer felt that both parties were bound by

their stipulation, and accepted Dr. Weiner's opinion into the record

over counsel's objection, pointing out that Dr. Weiner had been

agreed upon by both parties as arbiter. A good statement on the

effect of a stipulation is available in Matter of 4 I. & N. Dec.

378, 384 (C.O., May 10, 1951), wherein it was concluded that the

decision as to whether or not the parties are bound by a stipulation

rests with the court, and that the court may, in its discretion, set

aside a stipulation on numerous grounds, such as fraud, undue influ-

ence, collusion, mistake, false statement innocently made, inadvert-

ence or improvidence in making the stipulation (Wigmore on Evi-

dence, vol. IX (3rd ed.), sec. 2590). Since these are administrative

proceedings, and since citizenship is a precious right, we would not

permit anyone to stipulate away his citizenship, if we believed that

the record supported a finding of United States citizenship. In the

present case the effect of the stipulation is unimportant, because the

report of Dr. Weiner is admissible, in any event. Obtaining Dr.

Weiner's opinion was a satisfactory solution to the impasse existing

at the close of the June 16th hearing. Dr. Weiner's certifications

have been accepted by us in a number of cases, and he has been

named in other similar proceedings as the ultimate authority on the

subject.

The Supplemental Report of the American Medical Association

referred to the subject of the qualifications of experts as "a difficult

and unsolved problem requiring serious study." It was found neces-

sary in New York City to set up a special panel for this purpose.

When blood tests were commenced in New York in 1953, persons to

be tested were permitted to choose their own doctors for this purpose.

Following complaints of inaccuracy of test results and overcharging,

it was discovered that the judges of the Court of Special Sessions,

after consultation with the New York Academy of Medicine, had

approved a panel of six doctors to conduct blood tests in paternity

proceedings before the mutt_ The hiunizration and Naturalization

Service decided to follow the same procedure and to request the per-

son whose blood was to be tested to choose one of the doctors from

this same panel. The panel at that time included Dr. Alexander

Weiner, Dr. Philip Levine, and Dr. Sussman.

This is not the first case in which we have had certified an exclu-

sion of paternity based on Rh tests alone, although the others are

265

all unpublished cases. In unreported Matter of TV - TV Y ,

A-10236058, blood tests were performed by Dr. Leon Sussman, New

York, and he certified on January 26, 1954, that the tests demon-

strated that it was impossible for respondent to be the offspring of

the two persons claimed to be his parents, inasmuch as this child

had a blood factor, rh", which he must have inherited from one of

his parents, and as neither of the claimed parents had this

blood factor, parentage could be excluded. In L S Y ,

A 7673112, unreported (May 10, 1051), Dr. Iora9,1 Davidcohn, Chi-

cago, found an exclusion based on the hr' factor. Later, following

a blood test of the mother, he found a triple exclusion, based also

on the N and rh" factors. Dr. Davidsohn was a member of the

Committee of the American Medical Association which wrote the

report on blood-grouping tests in 1952, which evidences no hesitation

about using Rh-Hr tests for these purposes. In unreported Matter

of L S L , A 10292624, Dr. Sussman (in a report dated

December 22, 1954) certified an exclusion of paternity based on the

Rh test alone.

It is important in these cases to be able to rely on the Rh test.

It is possible for a person seeking a purchaser for a previously

established "immigration slot" to match the blood groups and types

of a candidate to those of the alleged father and mother, particularly

if the alleged father and mother fall in the common groups and

types, as in this case. Here we have an 0 father and an A mother.

They can have either 0 or A children and this covers approximately

87 percent of the population. According to the MN typing we have

an MN father and MN mother. They can have M, N, or MN chil-

dren, and this is 100 percent of the population . Therefore, in the

instant case the A - B - 0 tests are of limited value, and the MN tests

are useless. However, with Rh tests added to 0-A-B and M-N tests,

blood matching becomes much more difficult.

Even with the use of Rh tests it is not possible to solve all cases

Of doubtful parentage. In a report of the Committee on Medicolegal

Problems, American Medical Association, 1952 (p. 12), the Commit-

tee stated, "When a man is falsely accused of paternity, he has better

than a 50 percent chance of being exonerated by the combined use

of the A-B-0, M-N, and Rh-Hr tests, while more than 90 percent of

cases of interchange of infants can be solved by such tests." The

factor rh" is the factor which respondent has which his parents do

not have. We note that the Supplemental Report of the American

Medical Association Committee, 1057, mentions that the factor rh"

occurs in less than .5 percent of the population. When the claimant

possesses a relatively unusual blood factor, blood matching becomes

most difficult.

The special inquiry officer denied the request of counsel to offer

the testimony of respondent's alleged father, holding that counsel

9011

was bound by his stipulation that there was no issue in the case but

the interpretation to be given the blood-grouping tests. We feel

that the special inquiry officer's denial of this request was unneces-

awry, but does not constitute prejudicial error sufficient in require

reopening of the record. The alleged father's testimony probably

would not have lengthened the record unduly. But neither could

it influence our decision, which is bound by the test results. In the

past six years we have held repeatedly that blood-test evidence is

conclusive, when it is satisfactorily established that the tests have

been conducted by competent and experienced persons and where the

tests conclusively establish the impossibility of the claimed relation-

ship. Matter of L F—F—, 5 I. & N. Dec. 149 (1953);

Matter of W K—S--- and IV P—S , 5 L& N. Dec.

232 (1903) ; Matter of D TV 0 and D IF ,

5 I. & N. Dec. 351, 356 (1953, 1954); Matter of L C S—,

6 I. & N. Dec. 212 (1954). These decisions have been sustained in

the courts for the most part.' When the courts have found citizen-

ship in spite of blood tests demonstrating non-existence of the claimed

relationship, it has been for a procedural defect (Dulles v. QUa#1

Yoke Fong, 237 F. 2e1 496 (C.A. 9, 1936) ) ; or for a failure of the

Government to establish the qualifications of the technician (Chin

Wing Gwong v. Dulles, 139 F. Supp. 116 (D.C.R.I., 1956) ).

Counsel complains that he was not permitted to cross-examine

Dr. Weiner, and therefore should not be bound by Dr. -Weiner's

certification. Counsel had two blood-test experts for examination

and cross-examination. Examination of experts in these cases has

gone largely to the matter of the accuracy of the testing procedure,

proper identification of the parties (to eliminate the possibility of

substitution), adequate supervision of laboratory workers, and the

general acceptance of blisnrEtristing procedure and results for medical

and legal purposes. Cross-examination would serve no purpose here,

because all parties conceded Dr. Weiner's qualifications and agreed

to an acceptance of his interpretation. Until Dr. Weiner's determi-

nation was unfavorable to respondent, counsel was willing to submit

the issue of the true meaning of the test results to him.

Counsel protests that in Matter of DW 0 and D

TV H—, 5 I. & N. Dec. 351, at page 361, Dr. Weiner is quoted

United States en re/. Done Wing Ott v. Shaughnessy, 220 F.2d 537, 245

F.24 875, reaff. 247 F.2d 769 (CA. 2, 1955-1957) ; United States ex rel. Lee

Kern Boy, et at. v. shaughnessy, ma a. Supp. 302, 123 a. Bui,p. Cris (o.o.r.r.y,,

1953-1955), 237 F.2d 307 (CA. 2, 1956), 352 U.S. 966; United States ex re/.

Lee Kern Hay v. Merff, 355 U.S. 169; Lee Chow Ken v. Brownell, 122 F. Supp.

370, 220 F.24 187 (CA. 2, 1055), 148 F. Supp. 3, 245 F.2d 874 (CA. 2, 1957);

Jew Jock Keen v. Males, 139 F. Supp. 205 (S.D. Texas, 1955) ; Get v. Dulles,

154 F. Supp. 577 (E.D.N.Y., 1957) ; Wong Fuel) Ping v. Dulles, 137 F. Supp.

470 (D.C. Mass., 1956); Lett Moose Cheung v. Rogers, (D.C. Calif., November

12, 1958).

267

by us as having said that for the purposes of testifying in legal

proceedings he prefers not to rely on the conclusions drawn from

tests made by other persons but prefers to make his own tests. Dr.

Weiner's letter, exhibit 3 in this record, states that he prefers to

conduct the tests himself, but where, as in the instant case, the test

results are consistent and only the interpretation is at - issue, he is

willing to make an interpretation. We fail to see any ground here

for a valid objection.

As counsel points out, the Court of Appeals for the Ninth Circuit

has held that where the Immigration Service has admitted a claim-

ant as a citizen the burden necessary to overcome the prior admitting

decisions falls on the Government. Lee Hon Lung v. Dudes, 261

F.2d 719 (C.A. 9, 1938)_ The Ninth eirenit else held in Re Ng

v. Browned, 258 F.2d 304 (C.A. 9, 1958), that the trial court did not

abuse its discretion in determining (among other findings) that the

blood tests were reliable and "should be given great weight."

To recapitulate: It is our conclusion that blood-test evidence pre-

sented here, consisting of the test results which are consistent and

uncontroverted, and interpreted by an unimpeachable expert to estab-

lieu' exclusion of paternity, must be accepted by us. Clearly, Dr.

Steiner does not agree with the American Medical Association Com-

mittee Reports of 1952 and 1957, but evidently he stands alone in

his opinion that the blood factor rh" is too controversial to serve

as a basis for an exclusion of paternity. The record does not estab-

lish Dr. Steiner as a recognized authority in the field. The writings

referred to by him and counsel do not support his view. On the

contrary, they support the view of Dr. Ortega, Dr. Weiner, and

other authorities. The warnings and exceptions set forth in the

American Medical Association Subcommittee reports refer to blood

factors other than the rh" factor present here. Any errors committed

in the hearing were not prejudicial errors sufficient to require reopen-

ing and rehearing. The blood tests constitute clear and convincing

evidence that the respondent is not the son of the alleged father.

Therefore, he is not a United States citizen. The appeal will be

dismissed.

Order: It is ordered that the appeal be and is hereby dismissed.

268