IN THE MATTER OF L---- K---- H

Paternity — Blood tests as evidence — Racial discrimination against Chinese persons as affecting due process — Service records of third parties, availability to prove discrimination.

(1) Citizenship claimants of the Chinese race applying for admission to the United States were not denied due process of law or subjected to unconstitutional racial discrimination by requirement that they submit to blood tests since the evidence shows that conditions in China posed great obstacles to investigation by ordinary means, that resort to blood tests was an entirely reasonable requirement, and that any discrimination involved was not based upon race or color.

(2) Where attorney for citizenship claimants requested permission to examine immigration records of third parties in effort to prove racial discrimination against Chinese persons in the matter of requiring blood tests, such request was properly denied because records of other persons contain personal information, are confidential in nature, and their release would be unfair to the persons involved.

EXCLUDED:

Act of 1924 — No immigration visas.

E.O. 8766 — No passport.

BEFORE THE BOARD

Discussion: This case has been before this Board twice previously. On May 11, 1953, and on June 17, 1954, we ordered that the appeals be dismissed. The case comes before us now on the limited issue described by Judge Dimock on August 31, 1954, "whether or not the requirement of blood tests in the case of Chinese applicants amounts to unconstitutional discrimination." In that decision, 123 F. Supp. 674 (D.C., S.D.N.Y., 1954), after finding (1) that blood tests, properly taken, can absolutely exclude the possibility of paternity in certain cases, and (2) that an applicant's refusal to submit to a blood test raises the logical inference that he knows that paternity does not exist and fears that its nonexistence may be disclosed by the tests, and (3) rejecting the claim that the immigration authorities cannot require submission to a blood test as a condition to finding American citizenship, the court held, "relators were denied due process of law by the special inquiry officer's ruling on the hearing that the immigration department's policy had no bearing on the case and by the Board of Immigration Appeals ruling that the issue of racial discrimination was not proper (intended to be "properly" in our decision) in the case." The court ordered that the writ of habeas corpus be sustained unless within 20 days the hearing before the board of special inquiry be reopened for the purposes of (a) the introduction of evidence with respect to the requirement of blood grouping tests in the cases of persons of the Chinese race and the omission to require blood grouping tests under similar circumstances in the cases of persons of other races, and (b) the determination, upon such evidence, of the issue of discrimination.

Since the decision of Judge Dimock on August 31, 1954, there have been two decisions by the Circuit Court of Appeals in New York in cases involving blood testing of Chinese applicants for admission to the United States, which, we believe, dispose of the issue of racial discrimination in these tests ( Lue Chow Kon, et al. v. Brownell, 220 F. (2d) 187 (C.A. 2, 1955) and United States ex rel. Dong Wing Ott and Dong Wing Han v. Shaughnessy, 220 F. (2d) 537 (C.A. 2, 1955)). In the former case the trial judge dismissed a declaratory judgment action brought on behalf of three seeking judgments of United States nationality and citizenship, claiming to be sons of a United States citizen. The trial court held that the appellants' testimony was not credible and that they had failed to sustain the burden of proof ( 122 F. Supp. 370 (D.C.N.Y., 1954)). The Circuit Court of Appeals held that the dismissal of the action was correct.

In addition to the appellants' failure to sustain the burden of proof, there was affirmative evidence, testimony of an expert, that on the basis of blood grouping tests one of the three claimed sons could not be the child of the alleged father. The Circuit Court of Appeals said:

It does not appear that Judge Kaufman held the tests in themselves to be conclusive, although he might properly have so held under New York law. Tyler v. Costonia, 97 N.Y.S. 2d 804; Fowler v. Rizzuto, 121 N.Y.S. 2d 666 and 1 Wigmore, Evidence, Section 165 (a). Appellants also raised the question of constitutionality of application of the tests only to Chinese * * *. Even if that were established, it would not in itself show that the discrimination was based on race or color. The conditions in China during the period in question posed such great obstacles to investigation by ordinary means into family history and evidence of parentage that resort to the tests to aid in determination of parentage or non-parentage of persons from the area is an entirely reasonable requirement.

The court also held that blood test evidence is admissible under the New York Civil Practice Act, section 306 (a), if such tests prove non-paternity or, alternatively, citing Beach v. Beach, 114 F. 2d. 479 (C.A.D.C., 1940), that the evidence is admissible under Rule 35 of the Federal Rules of Civil Procedure.

In the second decision of the same court, United States ex rel. Dong Wing Ott and Dong Wing Han v. Shaughnessy, ( supra), the court detailed the long history of litigation before the boards of special inquiry, Board of Immigration Appeals and the U.S. District Court of New York. The writs of habeas corpus had been dismissed by the U.S. District Court of the District of New York. The court disposed of several grounds of appeal, including the claim that the tests are racially discriminatory in much the same words as used in Lue Chow Kon v. Brownell, ( supra), stating that the requiring of blood tests of applicants born in China during the period in question is justified by the "unusual circumstances." These circumstances are described by the courts as "lack of reliable written governmental records of birth and parentage, difficulty of access to the areas from which the claimed family groups come, and long absences from the family group of the citizen father who is an identifying witness." The court declared that these circumstances justify the requirement of additional evidence, and the distinction is, therefore, "one not based on race or color."

On the strength of the two Circuit Court decisions cited above we hold that the blood tests when used as they were used in the instant case, with the necessary safeguards and for the purposes and with the justification with which they were used, are not racially discriminatory. However, because the reopened hearings were held as directed by Judge Dimock, and because a limited amount of information was made available in that record we will consider the hearings.

The reopened hearing was held, and an attorney for the Immigration Service testified at length upon the history, development and use of blood-testing techniques in the Immigration Service. The special inquiry officer also made a number of statements relying on his experience and recollection and read into the record several short factual synopses of cases of record which had been requested for perusal by counsel.

Counsel for appellants sought through statistical theorizing to prove racial discrimination. He requested large amounts of statistical data with respect to the ratio between the numbers of Chinese cases handled by the Immigration Service since 1952 and the number of non-Chinese cases handled, to be compared with the ratio between the number of cases in which blood tests of applicants and their alleged parents had been made in Chinese cases, as opposed to the number of non-Chinese cases in which blood tests have been performed. The special inquiry officer stated that there is no such statistical data in existence and that to prepare such data would necessitate a review of practically all immigration cases handled by this Government since 1952, because cases are not kept by name, nationality, or subject matter, but are filed by the Immigration and Naturalization Service only by number.

Counsel also requested that he be furnished a number of specifically named and identified immigration records. It was his intention, apparently, to demonstrate with facts obtained from these records that, first, blood tests have been used almost exclusively in cases involving applicants of Chinese descent and, second, that blood tests have been required in a number of cases, even though the persons of Chinese descent were in possession of birth certificates and other documentary evidence, and came from an area in China where it is still possible for the United States consul to conduct an investigation for the purpose of ascertaining the truth of the applicants' claims. This area referred to the city of Hong Kong.

Counsel's request for extensive immigration records was properly denied. It has been the attitude of this Government that all immigration records must necessarily remain confidential, because they contain large quantities of personal information. Making such records available to even a few outside persons and even for limited purposes, would obviously be unfair to the persons whose records were released. It was proper for the special inquiry officer to refuse to permit counsel to search files which have no relation to the present matter.

Further, the amount of data available on this subject to the Government and to counsel, even if the Service attempted to cooperate in making such studies, is inadequate at this time to permit drawing any persuasive conclusions. It seems to us that conclusions would have to rest, not on the numbers of all kinds of cases, but on the number of derivative citizenship cases involving disputed paternity arising during the control period concerning Chinese persons, as distinguished from those involving non-Chinese persons. If most of such cases concern Chinese persons, naturally blood tests would usually concern Chinese persons. Objective controls of such a study would be almost impossible. A limited number of cases, haphazardly selected, and analyzed by either party or by us, does not constitute a basis for drawing any persuasive conclusions.

The use of blood tests was commenced in immigration proceedings concerning Chinese applicants, not as a matter of racial discrimination, but as the result of a tremendous need. In 1949 and 1950 twelve United States consulates in China were closed, leaving open only the consulate at Tai Pei, Formosa, and that at Hong Kong which is not considered by the Department of State to be part of China. All persons seeking documentation for the United States were required to be processed at those two centers. Applicants from all over China descended upon the Hong Kong consulate claiming to be sons of United States citizens, most of them inadequately documented, and most of them from the interior of that great country. The problem of checking the thousands of claims for authenticity seemed almost unsolvable. Government witnesses testified that the use of blood tests in this emergency by the State Department came to the attention of the immigration authorities in this country when the United States consul at Hong Kong asked the Immigration Service for assistance in securing information regarding blood grouping of persons living in this country and seeking to bring alleged offspring to the United States. The Immigration Service then adopted the method for use in some of its proceedings.

The use of a new scientific device must begin somewhere. The fact that blood tests have been used primarily in cases involving applicants of Chinese descent does not mean that the use of such tests in the future will be limited to such persons. Occasionally cases involving persons of other descent come to our attention where there is a question of parentage, and the proof of the relationship is inadequate. Since blood testing has become more widely known to Immigration and State Department personnel we have no doubt that the tests will prove valuable in non-Chinese cases as well. Before blood tests might be used universally in immigration work to assist in the detection of imposition it was necessary to secure their acceptance by the courts. This Board did not accept blood test results as conclusive until our decision in Matter of L---- F---- F----, 0300/423162, 5, I. N. Dec. 149. That exclusion was not appealed, so far as we know.

Counsel argues that persons coming from Hong Kong, where birth records may be maintained, and where consular investigations are still possible should be relieved of the necessity of taking blood tests. The argument is not relevant to the present case, because these appellants did not come from Hong Kong and were not properly documented. Furthermore, a rule based purely on geographical considerations, that persons coming from Hong Kong should not take blood tests but persons coming from other parts of China should be required to take such tests, would not seem fair and reasonable.

In Mar Gong v. McGrannery, 109 F. Supp. 821 (December 15, 1952), the trial judge discussed the pattern of Chinese citizenship cases as he and other judges in the District of California had seen them over a period of years. The Circuit Court of Appeals, 209 F. (2d) 448 (C.A. 9, 1954), criticized this treatment of the case, stating that the court's findings were "based in part upon the circumstances shown in these other cases," and concluded, "We think that the court here should not have given weight to its experiences, unfortunate as they may have been, in other cases, in arriving at its findings with respect to this appellant. Each case should be allowed to stand upon its own bottom." Similarly, on the issue of racial discrimination, we believe the instant case should be required to stand upon its own bottom, not on a study of other cases which may or may not be similar.

The instant case is much the same as Lue Chow Kon et al v. Brownell and Dong Wing Ott et al v. Shaughnessy, supra. There is here an absence of convincing family history data, an absence of reliable birth records maintained by a responsible governmental authority, and lack of access for investigation to the geographical area of origin of the family. Under these circumstances, there was no racial discrimination practiced by requiring blood tests of these appellants. If it is alleged that racial discrimination was practiced by the requirement of blood tests in other cases, we will have to decide those cases on their own facts as they come before us.

We affirm our previous conclusion that the appellants have not sustained the burden of proving the claimed relationship to the alleged father. They have had ample opportunity to meet the unfavorable evidence and have not done so. They have been granted due process, and the hearings have been conducted in accordance with the applicable law and regulations.

Order: It is ordered that the appeal be dismissed.