# United States ex rel. Lee Kum Hoy v. Shaughnessy

> Court of Appeals for the Second Circuit · September 25, 1956 · 237 F.2d 307

URL: https://www.frixlaw.com/law-library/cases/6913612

## Case

- **Full name:** 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
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** September 25, 1956
- **Citations:** 237 F.2d 307
- **Precedential status:** Published
- **Opinion:** Dissent by Frank
- **Judges:** Clare, Frank, Hincks
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by United States Ex Rel. Lee Kum Hoy v. Murff, 355 U.S. 169 (1957).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6913612

## Opinion text

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. 674 1 and D.C., 133 F.Supp. *313 850 . 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. 2
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 *314 Judge Dimock’s opinion réported 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^ ifnpressions 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, *315 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 diseriminatorily 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 diseriminatorily 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 Bol *316 ling 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
. In 123 F.Supp. 674, 677-678 ; Judge Dimock said:
“Relators allege deliberate use of the blood test technique to exclude Chinese and admit others similarly qualified ex-; cept for race. This result is reached, they say, because the application of the bbod tests to Chinese and not to others constitutes more stringent enforcement of the immigration laws against Chinese than against others. Chinese persons, they say, are always subjected to the rigorous inquisition of a blood test while others, no matter how inconclusive may be the other evidence, are never subjected to a blood test. If such a; *313 deliberate use of the blood test technique to exclude Chinese exists, the discrimination against Chinese is clear even though the result may be to allow the admission of unqualified non-Chinese rather than to prevent the admission of qualified Chinese. It makes no difference that the complaint of the Chinese is against a failure to go to the full extent of the law in the case of non-Chinese rather than against going beyond the law in the case of Chinese. A minority could be as effectively persecuted by enforcing a law against them alone as by acting against them without warrant of law. Racial discrimination is abhorrent to our institutions. Yick Wo v. Hopkins, 118 U.S. 356 , 6 S.Ct. 1064 , 30 L.Ed. 220 ; Hirabayashi v. U. S., 320 U.S. 81, 100 , 63 S.Ct. 1375 , 87 L.Ed. 1774 ; Bolling v. Sharpe, 347 U.S. 497 , 74 S.Ct. 693 [ 98 L.Ed. 884 ].”
. In 133 F.Supp. 850, 854 , Judge Dimock said:
“The worst that can be assumed is that these three Chinese children sought admittance to the United States upon a false claim of paternity. They made an affirmative showing of paternity that would have been sufficient but for the requirement that they submit to blood tests. They have been excluded. Members of the white race in exactly the same position are admitted. The Chinese and white persons thus differently treated constitute a single class but for their color. The Chinese of this class are excluded and the whites admitted. That constitutes a deliberate strict enforcement of the immigration laws in the ease of Chinese and a deliberate loose one in the case of whites. As I stated in U. S. [ex rel. Lee Kum Hoy] v. Shaughnessy, supra, 123 F.Supp. 674 , at pages 677-678, such a practice violates the constitution. See, besides the cases there cited, Brown v. Board of Education of Topeka, 347 U.S. 483 , 74 S.Ct. 686 , 98 L.Ed. 873 ; Mar Gong v. Brownell, 9 Cir., 209 F.2d 448 ; Lau Hu Yuen v. U. S., 9 Cir., 85 F.2d 327 .”
. See, e. g., Yick Wo v. Hopkins, 118 U.S. 356 , 6 S.Ct. 1064 , 30 L.Ed. 220 .
. In 133 F.Supp. at pages 852-853, Judge Dimock said:
“In July of 1953, when charges of racial discrimination against the Chinese in blood tests were first made in relators’ application for a writ of habeas corpus, the government denied that Chinese were singled out for such tests and claimed that blood tests were required in all cases where there were no birth certificates or other documents of identity. Thus, in the Government brief, it was stated that blood tests were not imposed upon Chinese persons alone, but upon ‘all persons attempting to enter the United States without birth certificates and similar documents’. Similar statements were contained in several subsequent government affidavits to the effect that blood tests were required only in those eases where there was an absence of birth certificates and other documentary evidence of identity.
“In answering this argument of the government, relators cited two cases where Chinese persons were blood tested notwithstanding the fact that they had birth certificates. This was noted by me in my decision at 123 F.Supp. 674, 677 , supra, where I said that these two cases lent substance to the claim that Chinese, regardless of the availability of birth certificates or other documents, were always subjected to a blood test while other persons never were.
“In the reopened hearing following that decision, the Immigration Bureau witness sought to minimize the importance of birth certificates in determining whether a blood tost was necessary, stating that it was ‘only one of the many criteria’ for determining whether a blood test was needed in a particular ease. According to the witness there are three *314 common patterns of children of American citizens born abroad who apply for admittance to the United States as citizens. The first involves an American child in an ‘American colony’ abroad, whose parents keep in close touch with the Consulate, and where the births and marriages would be registered at the Consulate. The second pattern, which, like the first, is not the usual pattern for Chinese children, would be where the American parent is not known to the Consulate, but where birth and marriage certificates are produced to substantiate the claim and, most important, the children involved are born in an, area where the Consul could speedily conduct an investigation and ascertain from neighbors, friends and local government officials, the true identity of the child.
“In the foregoing two patterns of cases, the witness stated ‘there would be no need for using blood test evidence to verify an obvious relationship.’ The third type of situation was one which he said was typical of Chinese. This was where the child was born in the remote interior of China, where no birth or marriage certificates were kept, and, most important of all, the claimed area of birth was inaccessible to the Consul and hence where he could not conduct any investigation as to the circumstances of the child’s birth. The witness then concluded and reaffirmed on cross examination that the most important factor in determining whether a blood test would be required is whether a child is born in an area where the American Consul can readily - conduct an investigation. He ' said that, if’ the Consul could verify the identity of • the child involved from his investigation, by talking to neighbors, friends "ahd local officials, there would be no need for - á blood test.
“Although the witness testified that the most important criterion for’determining the necessity of a blood’ ‘test — namely, the ability of the consulate to investigate the area of a person’s birth — had been a factor in immigration investigations which antedated by a long time the use of blood tests, he admitted that, in the government brief filed when" this case' was first argued, there was no mention at all of this ‘most important’ criterion. Similarly, in the subsequent government affidavits filed prior to the issuance of my decision, the Immigration Service had stated specifically that blood tests were required in cases where there were no birth certificates or documentary evidence, and there was no mention whatsoever of the feasibility of a consular investigation as being determinative of whether blood tests were necessary.
“To show that Chinese persons claiming a right to enter the country as children of United States citizens are always required to submit to blood tests,, irrespective of how satisfactory their other proof as to identity was and regardless of whether they were born in an area where a consular investigation was possible, relators cited several cases as examples.
“Exhibit No. 27, involved B-B the son of B-H, an American citizen of Chinese descent. B-B was born in Hong Kong, and produced a contemporaneous official birth certificate issued by the British government to prove his identity. This certificate stated the names of his parents and the place and date of his birth. In addition, the parents of L-B, having been married in Hong Kong, produced a. marriage certificate. Most important,, the son and mother were living in HongKong, and an investigation by the American Consul there was thoroughly feasible, and in fact conducted. Nevertheless, B-B, a child- only a year and a half' old at the time, was subjected to a blood, test along with his father and mother.
‘‘Exhibit No. 28, involves Ng Ho Gim,. an American citizen of Chinese descent, who petitioned for his six year old son who was living in Hong Kong with his mother. His son was born in Hong Kong and his birth was registered at the American Consulate which issued a certificate verifying the birth of the child and the marriage of- the parents. Notwithstanding the American Consulate’sown certificate acknowledging the identity of the child and the fact of his parents’ marriage, and in spite of the fact that the child was living in Hong Kong, thus, making a thorough investigation *315 possible, a blood test was still demanded of the parents and the child.
“Exhibit No. 29 involves a naturalized American citizen of Chinese descent who married a Chinese alien woman in Hong Kong who subsequently gave birth to a child there. In a petition to bring his son over, the citizen submitted a contemporaneous birth certificate issued by the British government for his son, and his marriage certificate, also issued by the British government. In addition, the son and wife were living in Hong Kong where an investigation was feasible. But most important there were prior records of the wife and son at the American Consulate and the Consul had been for a long time cognizant of the family relationship of the individuals. Nevertheless, a blood test was required of all the parties.
“Exhibit No. 30 involves an American citizen of CMnese descent who married a Chinese alien in Hong Kong to whom a son was later born, also in Hong Kong. The citizen parent had a contemporaneous birth certificate issued by the British government for his son, and a contemporaneous marriage certificate for his marriage issued by the British government. In addition, the child being born and living in Hong Kong with his mother, the American Consul was able to conduct a thorough investigation. Nevertheless a blood test was required.”
. See footnote 4.
. Cf. a case where a decision rests on evidence which indubitably proves a defendant’s guilt, but has been obtained by an unlawful search and seizure.
. I think it would be improper to direct Judge Dimock now to take evidence as to relators’ citizenship in a de novo judicial hearing. If relators had been residents of this country, and on their re-entry had asserted their American citizenship, I think they would have been entitled, on their demand, to such a judicial hearing de novo. See Chin Yow v. U. S., 208 U.S. 8 , 28 S.Ct. 201 , 52 L.Ed. 369 ; Cf. U. S. ex rel. Medeiros v. Watkins, 2 Cir., 166 F.2d 897, 900 (dissenting opinion) ; Shaughnessy v. U. S. ex rel. Mezei, 345 U.S. 206, 214-215 , 73 S.Ct. 625 , 97 L.Ed. 956 . On the facts of this case, however, the sole function of Judge Dimock was to determine whether the administrative finding of lack of citizenship was supported by the evidence received at the administrative hearing in 1952 and to decide whether the administrative decision adverse to relators was legally justified. Shaughnessy v. U. S. ex rel. Mezei, 345 U.S. 206, 213-215 , 73 S.Ct. 625 . Judge Dimock decided .that the evidence properly received at the administrative hearing did not support the administrative finding and the administrative decision, and that, as of 1952, relators were entitled to come into this country as citizens.
After Judge Dimock had filed his opinion sustaining the writ, the government moved for a reargument and for a hearing de novo, on new evidence, before Judge Dimock. This motion was supported by an affidavit of Inspector Yarbrough. In part the affidavit related to an irrelevant showing of lack of discrimination beginning in 1955. Attached to the affidavit was an Exhibit showing that 40 Chinese persons, out of 'a total of 124, had been admitted without blood tests between March 1 and September 30, 1952. Kelators in a reply affidavit stated: “It will be noted that most of these persons were admitted during the first part of the period involved before- blood tests for all Chinese applicants was officially commenced. Moreover, the date of admission no doubt is the date of the final determination of admission and is not the earlier date of the arrival of the applicants at which time they would be examined by the Immigration Service. Dr. George F. Cameron of the United States Public Health Service testified in this case that he did not start blood testing until June 1952. It is obvious that a number of Chinese may have escaped blood testing in March, April and May, or even in June, before the mechanics for blood testing were devised and before the practice became uniformly established as it was at the time that the relators in this case were blood tested in July and August 1952. Dr. Cameron testified that when he began blood testing in June 1952 he was directed to blood test only Chinese and that he did not blood test any white persons. It is submitted therefore that Exhibit B annexed to Investigator Yarbrough’s affidavit is of no assistance and supplies no basis whatsoever for a rehearing. Moreover, the statement that one Chinese recently was not blood tested obviously has no bearing on the uniform practice of blood testing all Chinese which was proved to exist commencing in June 1952.”
I think Judge Dimock correctly denied this motion. In addition to the insufficiency of the proposed additional evidence, it would have been improper for the judge to hold a de novo hearing. ■Moreover, the motion was an application .for a new trial upon newly discovered evidence, and all the suggested new evidence had previously always been in the -government’s possession.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6913612. Public record. Not legal advice.