MASON ex rel. LEE WING YOU v. TILLINGHAST, Commissioner of Immigration, 27 F.2d 580

ANDERSON, Circuit Judge. In September, ’ 1927, Lee Wing You sought admission to the United States as the foreign-bom son of Lee Lin Chong, a native-born American citizen. R. S. § 1993 (8 USCA § 6). The immigration officials excluded him, on the ground that this relationship had not been reasonably established. On habeas corpus, the court below, without hearing new evidence, affirmed this decision, thus, in effect, ruling that there was no jurisdiction. If there was any substantial evidence to support the conclusion of the immigration officials, the ruling was right. Fong Tan Jew v. Tillinghast (C. C.

A.) 24 F.(2d) 632, and cases cited; Johnson v. Ng Ling Fong (C. C. A.) 17 F.(2d) 11, 12. The evidence consists of the testimony of three witnesses — the alleged father, his son, 19 years old, Lee Bok Wah, admitted as such in 1922, and the applicant, 15 years old. The father was bom in California, and has made four trips to China. The three witnesses are in full agreement as to the important facts — that the family consists of the father and the mother, Wong She, and three sons, the youngest 4 years old, still at home in China with his mother.

There is also pretty general agreement among the three as to the relatives, living and dead, of the layout of the village of 23 or 24 houses, and the names and marriage status, etc., of the occupants of the various houses. The cross-examination took the wide seope described by Judge Rudkin in Go Lun v. Nagle (C. C. A.) 22 F.(2d) 246, 247, and by Judge Bingham in Johnson v. Ng Ling Fong (C. C. A.) 17 F.(2d) 11, 12.

It was not directed to matters bearing even indirectly on the relationship in question; the endeavor was to find discrepancies among the witnesses as to the rows of houses, the occupants thereof, ’ the monument or marker over grandparents’ graves, etc. So proceeding, the immigration tribunals succeeded in developing some very slight discrepancies on matters purely collateral, on which they ground their finding that the relationship is not reasonably .established. But this euphemistic phrase must not be allowed to disguise the real situation. There is here no room for honest error.

The family exists as the three witnesses describe it, unless the record as a whole furnishes some basis upon whieh reasonable, truth-seeking minds can ground a conclusion of fraud and perjury on the part of all three witnesses. There is no conflicting evidence, direct or indirect, on the question of relationship. As noted above, the three witnesses were in absolute agreement on the vital issue of relationship and as to who the family are. We assume that these tribunals are not bound by the rules of evidence applicable in a jury trial.

But they are bound by the rules of reason and logic — by what is commonly referred to as common sense. Compare Commonwealth v. Jeffries, 7 Allen (Mass.) 548, 583, 83 Am. Dec. 712; State v. Lapage, 57 N. H. 288, 24 Am. Rep. 69; 1 Wigmore, Evidence, §§ 12, 13, 34. We agree fully -with Judge Rudkin’s observation in Go Lun v. Nagle, supra: “We may say at the outstart that discrepancies in testimony, even as to collateral and immaterial matters, may be such as to raise a doubt as to the credibility of the witnesses and warrant exclusion; but this cannot be said of every discrepancy that may arise.

We do not all observe the same things, or recall them in the same way, and an American citizen cannot be excluded, or denied the right of entry, because of immaterial and unimportant discrepancies in testimony covering a multitude of subjects.” When Congress vested in these administrative tribunals the power of determining family relationship and citizenship, it freed them from the technical methods of proof that courts have, but not from the obligation of seeking the truth with open and reasoning minds.

Careful study of the record and of the statements by the immigration tribunals of the grounds for their conclusions leads us to believe that there was no substantial evidence on which to base an exclusion order. There were only a few discrepancies, of a collateral and inconsequential nature, that were relied upon for the conclusion that the relationship was not established.- The chief discrepancy is as to the birth date of the applicant, now testified by all three witnesses to be C. R. 2 — 8—25 (September 25, 1913). To the same birth date of this alleged son the father testified in San Francisco in 1914.

But when, in 1922, the oldest son, Lee Bok Wah, was admitted at New York, the file (which is not a part of the record before us) is stated as showing that "this applicant was born in C. R. 3 — 8—25. The immigration tribunals reject the father’s claim of error in recording the date, and rely on this record discrepancy as one of the chief grounds for holding the relationship not established. Plainly, when the father returned from China in 1914, the year after the applicant’s birth, he would then have the date of the birth accurately in mind.

And it is also of much significance that in 1914 and 1922 the father stated that he had such a son. It is hardly conceivable that the father had at these times laid his plans to bring in an outsider as his son, and made a false announcement of paternity as a first step in his intended fraud. But besides, the discrepancy of one year in the applicant’s age — even if really originating with the witnesses, and not with the stenographer or the typewriter — has not the slightest tendency to discredit the claim that the applicant is the son of Lee Ling Chong and the brother of Lee Bok Wah.

Indeed, if the witnesses had been seeking to commit perjury, they would have been careful to check up on all such matters as dates. Lack of agreement on minor matters, resting on variant observation and accuracy of memory, is common, and, standing alone, would not as a rule justify an exclusion order. After reading and ■ re-reading of the record in this case, we think that the immigration authorities acted arbitrarily and unfairly in reaching their decision.

There is nothing in the record which would warrant a finding that this American citizen did not have a wife and three sons, as he and the two sons testify., The ease falls -under the principle laid down in Tisi v. Tod, 264 U. S. 131, 44 S. Ct. 260, 68 L. Ed. 590. “The error óf an administrative tribunal may, of course, be so flagrant as to convince a court that the hearing had was not a fair one.” It is, in effect, ruled by our decisions in Fong Tan Jew v. Tillinghast (C. C. A.) 24 F.(2d) 632; Johnson v. Ng Ling Fong (C. C. A.) 17 F.(2d) 11, 12; Johnson v. Damon (C. C. A.) 16 F.(2d) 65; Chan Sing v. Nagle (C. C.

A.) 22 F.(2d) 673,674. Cf. Kwock Jan Fat v. White, 253 U. S. 454, 464, 40 S. Ct. 566, 64 L. Ed. 1010; Chin Yow v. United States, 208 U. S. 8, 28 S. Ct. 201, 52 L. Ed. 369; Go Lun v. Nagle (C. C. A.) 22 F.(2d) 246; United States ex rel. Leong Ding v. Brough (C. C. A.) 22 F.(2d) 926; Whitfield v. Hanges (C. C. A.) 222 F. 745; In re Chung Thet Poy (D. C.) 13 F.(2d) 262. The decision must be reversed, and the case stand for trial on the merits in the court below. There, if the government has a case of fraud and perjury, it will have full opportunity to show it.

The deeree of the District Court is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion. JOHNSON, Circuit Judge, dissents.