The opinion
WILBUR, Circuit Judge
(concurring).
I concur. Petitioner having applied for entry at the port of Seattle, Washington, in August 1939, was rejected by the Board of Special Inquiry upon the first hearing, August 28, 1939, and was again rejected on December 13, 1939 after reopening the case to receive and consider additional evidence offered by the applicant. Each time he appealed and the appeals were dismissed by the Secretary of Labor upon recommendation of the Board of Review. The second hearing before the Board of Special Inquiry after the dismissal of the appeal from its first order of exclusion, occurred by reason of the application of the petitioner for a reopening of his case in order to hear the testimony of another witness in support of his application. This witness, Kong Tin, testified that he had visited the petitioner’s family in China and found petitioner in the home of his alleged father and mother. The second appeal having been taken, the Board of Review again recommended the dismissal of the appeal, which was done.
The Board of Review, in its opinion of November 6, 1939, which is appended in the footnote 1 held that it was improper for the *921 Board of Inquiry to use the record before it concerning the application of one Leong Sing for a. return certificate as a merchant made August 12, 1914, and also that it was improper to state in its opinion that the petitioner was “well-coached”. Notwithstanding the rejection of these considerations the first appeal to the Board of Review was dismissed because of discrepancies in the testimony of the alleged father as to the names and dates of birth of his four sons. After the reopening of the case and the second hearing by the Special Board, the applicant’s rejection was again recommended by it. Upon the appeal from his second rejection the Board of Review again sustained its conclusion and recommended the dismissal of the appeal. Consequently, the second appeal was dismissed. This opinion of the Board of Review is shown in the footnote. 2
*922 It will be noted that the conclusion of the Board of Review is based in part upon the memorandum of the names and dates of birth of the alleged brothers of the appellant made by an inspector at the time of the reentry of petitioner’s alleged father in 1924, after a three-year stay in China. I agree with my associates that this memorandum was unworthy of consideration as evidence in the case because of the defects apparent on its face and its certified deficiencies stated in the main opinion.
Eliminating the memorandum from consideration we find that the ultimate cause for rejection of the applicant is that notwithstanding the consistency of the evidence in other respects the alleged father, in September, 1930, gave the Immigration Authorities the name of his second son as Quan Toon Heung, and in 1932 gave them the name of his second son as Quan Toon Jung. The statements of the petitioner’s alleged father throughout have been consistent as to the number of his sons, and substantially the same, when properly understood, as to the dates of their births, but the rejection of applicant was based upon the difference in spelling of the third name of the second son; that is to say, he was given the names of Jung and Heung. The petitioner asserts that the spelling of these names in English was an attempt of the interpreter to indicate an appropriate spelling for the same sounds in Chinese, and whether or not this is true this variation is a very slender thread upon which to base the conclusion that the alleged father had no such son at all and to exclude the applicant who has otherwise established satisfactorily his claim as an American citizen.
The right of the immigration authorities to consider and review previous actions bearing upon the admissibility of the applicant for admission has been considered by the Supreme Court and also by this court. In re Tang Tun, 9 Cir., 168 F. 488 ; Tang Tun v. Edsell, 223 U.S. 673, 680, 681 , 32 *923 S.Ct. 359 , 56 L.Ed. 606 ; Nagle v. Wong Dock, 9 Cir., 41 F.2d 476 ; Wong Chow Gin v. Cahill, 9 Cir., 79 F.2d 854 .
In Nagle v. Wong Dock, supra, we stated it would be unreasonable and unfair for the immigration authorities after having fully investigated the conflicting statements of the applicant as to whether or not he was married, and having determined that he was in fact married, subsequently and without additional evidence, or additional circumstances warranting a change of conclusion, to deny the admission of a second son upon the ground that the father had not in fact married the mother of the applicant.
In Wong Chow Gin v. Cahill, supra, we considered at length the effect of the previous rulings of the immigration authorities upon a subsequent application for admission.
In Jung Yen Loy v. Cahill, 9 Cir., 81 F.2d 809 , opinion by Judge Haney, the court upheld an order of exclusion upon the ground that the applicant’s father was not a citizen although he has been five times admitted to the United States as a citizen. This rejection is based upon the testimony of the applicant that his paternal grandfather was Jung Wing Hong and not the American citizen, Jung Foo Wan, from whom the applicant’s father claimed to have descended.
If the immigration authorities in the case at bar had ruled that the applicant’s father was not a citizen and had denied him admission on that ground without additional evidence or circumstances justifying a change in their ruling it may be conceded that such action would be so unfair as to amount to the denial of due process. But the Board of Review, upon whose recommendation the secretary acted, in every instance disclaimed the right to consider anew the question of the citizenship of the alleged father, Quan Siew, and placed their denial of the right to enter upon the conclusion that the applicant was not the son of the American citizen Quan Siew. In view of the fact that the final action of the Secretary is based upon the conclusion that Quan Siew was an American citizen but that the applicant was not his son, the result must be judged from that standpoint and I think without regard to the fact that the local board improperly continues to insist upon the claim that Quan Siew was not an American citizen.
I, therefore, place my concurrence in the conclusion reached by my associates upon the ground that the immigration authorities having conceded the citizenship of Quan Siew the rejection of the evidence of both father and son that the applicant was the son of Quan Siew was so unreasonable as to amount to a denial of due process.
Quan Siew, alleged father of the applicant, who was last in China between September, 1930, and October, 1932, has appeared as the only witness to testify on applicant’s behalf.
The record shows that the alleged father of the applicant claimed in February, 1921, to have one son, for whom he gave the name of Quan Sang and stated his age to be six. When returning from the trip to China on which he departed shortly after recording that claim the alleged father was recorded on a form statement dated September 7, 1924, as stating that he had four sons, evidently meaning that in addition to the one son he had previously claimed three sons had been born while he was in China on the trip from which he was then returning. The names and birth dates of these three sons he gave as follows; Quan Gun, born May 22, 1921; Quan Gee, born June 14, 1923; and Quan Lai, bom August 15, 1924.
This applicant, Quan Toon Jung, is now claimed to have been born on May 27, 1922. In that September, 1924, statement there appears no claim by the alleged father to have had a son of the name or of a name closely similar to that given by and for this applicant and no son born on the birth date now given by and for this applicant. In September, 1930, when an applicant for a return certificate at Seattle, the alleged father gave the names and birth dates of his four claimed sons as Quan Toon Soon, born December 21, 1915; Quan Toon Heung, born May 27, 1922; Quan Toon Jon, born July 14, 1923; and Quan Toon Ham, born August 15, 1924.
In November, 1932, Quan Toon Soon, the older alleged brother of this present applicant, applied for admission as a son *921 of Qnan Siew, the applicant’s alleged father. At that time the names and birth dates of the alleged father’s four claimed sons by his first wife were given as Qnan Toon Soon, born December 21, 1915; Quail Toon Jung, born June 25, 1922; Quan Toon Hem, born June 14, 1923; and Quan Toon Heung, born June 15, 1924. The applicant Quan Toon Soon was excluded by a vote of the Board of Special Inquiry at Seattle and when his case came before the Department on appeal the appeal was dismissed (55813/733) principally upton the finding that “It is not to be believed that a father testifying truthfully regarding his children would so contradict himself at various times as to their names, ages and ■order of birth, and this feature would seem to discredit him as a witness regarding any claim of family relationship that he might make”. Hollowing the dismissal of that appeal a petition for a writ of habeas corpus was sued out in the District Court of the United States for the Western District of Washington, Northern Division, and while no opinion appears to have been spoken by the court, its action apparently indicated that the order denying that applicant’s admission was not arbitrary or capricious and that there had been no unfairness in the hearing. He was, therefore, returned to China in April, 1933.
While the present testimony is free from discrepancies and is thus corroborative of the applicant’s claim, in the opinion of the Board of Review no evidence lias been presented which is sufficiently strong or persuasive of the bona tides of the case to overcome the very serious adverse evidence in the inconsistent and conflicting prior-record statements which this applicant’s alleged father has made in the description of his claimed family and which were thus found to constitute a sufficient reason for the adverse finding in the case of applicant’s alleged older brother who applied for admission in 1932 and was returned to China in 1933.
It is unfortunately necessary to comment upon the statements contained in the “summary by chairman on rejection” in this case which appear to have afforded to the attorney some occasion for his charging an attitude of unfairness and prejudice. It appears to be a fact that although the Board of Special In'quiry conceded the citizenship of this applicant’s alleged father so that the only question at issue in the case was the relationship of the applicant to him, yet in the “summary” there appears the statement “The native horn status of applicant’s alleged father, Quan Siew, was established by fraud and misrepresentation”, and as to the character of the testimony the statement is made in this “summary” that “Applicant is well coached on testimony regarding his alleged father’s family and the homo village”. There appears to have been no warrant or justification whatever for the setting down of these statements in this “summary”. However, it is to be noted that this “summary” formed no part whatever of the hearing and, indeed, was written apparently after the action by the Board of Special Inquiry had been taken and was written, as its title indicates, as the summary not by tlie Board of Special Inquiry, the lawfully constituted body authorized to conduct the hearing, but as the “summary” by the chairman acting as an individual after the official action of the Board of Special Inquiry had been concluded. A review of the hearing itself gives no ground whatever for a charge of unfairness and in the circumstances it is not believed that these unfortunate statements made’ by the person who had officiated as the chairman of the Board of Special Inquiry after the conclusion of the hearing can properly be taken as grounding a charge of unfairness in the hearing.
In view of the adverse evidence in the contradictory prior-record statements of this applicant’s alleged father, it is not believed that the applicant’s claim to be bis son has satisfactorily or reasonably been established.
It is recommended that the appeal he dismissed.
The record shows that for the reasons stated in memorandum of November 6, 1939, the appeal of this appli *922 cant from denial of admission at Seattle was dismissed, and that on November 16th a stay of deportation was directed and authorization given for the reopening of the case to hear a proposed additional witness.
In his appearance before the Board of Review and in his supplementary brief; submitted since the case was reopened and, after hearing the proposed additional witness, the Board of Special Inquiry at Seattle again voted to exclude the applicant; the attorney has devoted the first and principal part of his argument to an attack upon the previous action of the Department in dismissing the appeal from the original excluding decision by the Board of Special Inquiry.
■ It is not believed that the attorney has set forth any substantial reason to support his contention that the previous action of the Department was erroneous in its finding that the alleged father’s failure, in 1924, upon return from his visit to China, in the midst- of which this applicant is now claimed to have been'born, to claim a son of name and birth date corresponding with those now given by and for this applicant, constitutes very seriously, if not indeed fatally, adverse evidence. The attorney has, however-, called attention to a statement in the Board of Review memorandum of November 6, 1939, in which two comparatively minor and immaterial mistakes were inadvertently made with reference to the testimony given by this applicant’s alleged father in November, 1932. This memoi'andum statement is that the name and birth date of his alleged second son, who this applicant claims to be, were given as “Quan Toon June, born June 25, 1922”. The attorney is warranted in saying that the transcription of the testimony given by the alleged father in November, 1932, “shows no name ‘June,’ but gives the name of the second son, Quan Toon Jung”, and it is to be regretted that this typographical error passed unnoticed.
As to the apparent difference in birth date between June 25, 1922, as set down in that memorandum statement, and May 27, 1922; the exact fact is that the alleged father spoke of his claimed second son as “Quan Toon Jung, 11 years old, born O.R. 10 or 11, 5th month, first day” and in answer to the question “Was he box-n in O.R. 10 or O.R. 11?” this alleged father stated, “I do not know, he is 11 years old”. As Chinese calculate ages, that statement “he is 11 years old” would indicate that it was C.R. 11, or 1922, that the son in question was claimed, to have been born and “O. R. 11, 5th month, first day” could be either May 27 or June 25, 1922, since there were two fifth months in that year. Agaixx, it may be said that it is to be regretted that in giving the Western calendar interpretation of the Chinese date as given by the alleged father the two alternative dates were not both set down in this previous memorandum statement.
While the Board of Review unhesitatingly admits these unfortunate mistakes, a referexxce to the previous xnemorandum cannot fail to show that the inadvertent *923 making of these mistakes had no determining importance or materiality in the substance of the Board of Review finding or in the action of the Department based thereon.
With the contention of the attorney that the original hearing of the applicant was rendered unfair because of certain statements contained in the “summary by chairman on rejection”, which was written after the Board of Special Inquiry hearing had been closed and that Board’s decision officially rendered, the Board of Review does not agree.
As to the new evidence presented since the case was reopened: This consists in testimony received on December S, 1939, from one Kong Tin, an alleged acquaintance of the applicant’s alleged father, who was last in China between April, 1937, and February, 1938. He has testified that prior to his departure for China in 1937 this applicant’s alleged father gave him the address of his family in China and asked him, if convenient, to visit his family, and that in or about October, 1937, he did visit this alleged father’s home and there had this applicant introduced to him by this alleged father’s wife. On his return on February 12, 1938, however, this Kong Tin, having been sworn as to the truth of his statements, answered in the affirmative the question whether he understood that the statements he made in reply to the questions following would be used if he should testify before the Service in the future and answered in the negative the questions “Did you visit any resident of the United States who happened to be at his home in China during your recent stay, or did you visit the home of any such resident?” and “Were you introduced to the son, wife, or daughter of any resident of this country, while in China?” Certainly, it would not seem reasonable to accept testimony given in corroboration of this applicant’s claim which rests wholly on the present assertion that this witness visited the alleged father’s home in China-and was introduced to this applicant in view of that record contradiction of the truth of this present assertion.
It is not believed that any evidence has been presented since the case was reopened which warrants a change in the outstanding decision.
It is, therefore, recommended that the order dismissing the appeal stand. '