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WEEDIN, Commissioner of Immigration, v. YIP KIM WING.

No. 6102.

Circuit Court of Appeals, Ninth Circuit.

June 16, 1930.

*666Anthony Savage, U. S. Atty., and Hamlet P. Dodd, Asst. U. S. Atty., both of Seattle, Wash. (John P. Dunton, U. S. Immigration Service, of Seattle, Wash., on the brief), for appellant.

Hugh C. Todd, of Seattle, Wash., for appellee.

Before RUDKIN, DIETRICH, and WILBUR, Circuit Judges.

WILBUR, Circuit Judge.

This is an appeal from an order of the court below granting a writ of habeas corpus and ordering that appellee, Yip Kim Wing, be discharged from the custody of the immigration officers, by whom he is held for deportation. Appellant claims that the applicant had a fair hearing before the immigration authorities and that the order of deportation is therefore conclusive on the courts, and that therefore habeas corpus should be denied.

The appellee, Yip Kim Wing, a China-man, at the age of 16 years, applied for admission into the United^States as the son of Yep Wah Yuen, a citizen of this country. He was denied admission and ordered to be returned to China because such relationship was not satisfactorily proved.

The alleged father, Yep Wah Yuen, was admitted to the United States June 17, 1908, as the foreign-bom son of Yup Lung Sat, a native-born American citizen. He has made three trips tó China. On his return from the first trip, May 5, 1913, he claimed to have married Jin Shee and to have a son named Yep Kim Wing, bom as a result of such marriage, on September 24, 1912. On his second return from China, May 23, 1922, he stated that he had a son, Yep Kim Wing, 11 years old, and one Yep See Wing, born June 21, 1921. On his third and last return he brought the applicant with him and claimed to have left in China the above-mentioned son, Yep See Wing, and two younger sons, Chun Wing, born June 15, 1927, and Gwong Wing, born March 25, 1929. In the present record the alleged father gives the date of birth of Chun Wing as October 25,1927, with no explanation of the discrepancy in his two statements as to date of -birth. Applicant stated that his alleged brother Chun Wing was bom “last year,” tenth month, first day (November 12, 1928).

Another discrepancy in the testimony between the .alleged father and applicant relates to the grandparents of applicant.

The applicant testified as follows:

“Q. Do you know the name of your father’s father? A. Yup Lung Sik; Gin Leung is his marriage name. He died in our home in the Ung On village more than ten years ago. He is buried in the Sear San Hill, about 3 lis north of our village of Ung On.

“Q. What is the name of your father’s mother? A. Jin Shee; no, her name is Jung Shee. She died over ten years ago.

“Q. Did you ever see your paternal grandparents? A. Yes.

“Q. Were they living in your village of Ung On when they died? A. Yes.

“Q. Were they living in your father’s house when they died? A. Yes, they occupied the large door side bedroom.

“Q. Which of the two died first, your paternal grandfather or your paternal grandmother? A. My grandfather died first. • * *

“Q. What is your mother’s name? A. Jin Shee; she has released feet; she is about 40 years old; she is from the Son How Sik village.

“Q. Do you know the names of her parents? A. Jin Nay Hung is my maternal grandfather. He died about four years ago; my maternal grandmother is Wong Shee; she died after my maternal grandfather died, about one year later.

“Q. Have you ever been in your mother’s home village? A. Yes, I went to my maternal grandfather’s funeral; my father did not accompany me as he was then in the United States. * * *

“Q. As of what status are you seeking admission to the United States? A. As a citizen.

“Q. If your father was born in China, how does it come that you are a citizen of the United States? A. I understand my grandfather was born in this country; I do not know at what place in this country.

*667“Q. Have you ever gone to worship your ancestors at Sear San hill with your father? A. No. '

“Q. How does that come? A. Yes, when my father was home we went every year.

“Q. When was the last time you went to worship at Sear San hill with your father? A. It was the second month this year.

“Q. Who were in the party besides you and your father? A. Just the two of us.

“Q. Describe your ancestors’ graves? A. There is one stone monument with four characters ‘Yip Goon Foon Moo’ engraved thereon‘

The alleged father testified on that subject as follows:

“Q. What is the name of your father? A. Yup Lung Sik; Yup Ging Leung is his marriage name; he died in China 6 or 7 years ago.

“Q. You do not agree with your son as to when he died; how do you account for that? A. No answer.

“Q. Give the date of your father s death. A. CR. 11 or CR. 12. It was the 11th month of CR. 12 (December, 1923, or January,

“Q. Where did he die, in the new or the old village? A. In the old village.

“Q. You do not agree with your son? A. No answer.

“Q. What was the name of your own mother? A. Jung Shee; she is dead.

“Q. When did she die? A. She died CR. 13 (1924) * v

“Q. You do not agree with your son Where did she die? A. In the old village of Hong

^ “Q. Which of your two parents died first, your father or your mother? A. My father. * * *

“Q. What is the name of your wife’s father? A. Jin Lee Hung; he is dead; he died three or four years ago. My wife’s mother’s name is Wong Shee; she died about ten years ago.

“Q. Did she die before your wife’s father? A. Yes.

“O Has the nrvnlicant ever been in his Q Has the applicant ever been in Ins mother’s home village? A. Yes.

. “Q. Where were you living when your wife’s parents died ? A. I was in the United States when they both died.

‘‘Q. Who notified you of their deaths? A. My wife.

“Q. Did any of your family attend the funeral of your wife’s parents? A. My son and my wife went.

“Q. And you are correct in your statement that her father died three or four years a^° and tbat/T wife’s mother died ten years ag°? A. Yes.

The applicant thus states that both his Patemal grandparents died in his Dome in the ^ ^ ^ T? ago/7 and that his grandfather died first, wMe the alleged father states tbat his father died „6 or 7 yoars » giving tbe date ag Deoember; 1923, or January, 1924, about a year previous to his mother, who he states died in 1924, and that both died in the old village of Hong Mee and not the new village of Ung On. It will be observed that the only point on which they agree, aside from the names, is that the grandfather died first. As to the maternal grandparents, the appellee states that his grandfather whose name he §'lves as ^ ^ years a^° he at fded *moral f company^ with his mother; that his grandmother, named Wong Shee, died about a year ¡ater< His alleged father states that his wi£o’s father’s name is Jin Lee Hung; that he died three or four years ago; that his wife’s mother’s name is Wong Shee, and that she died about ten years ago. We have set out the testimony in order to show that there was no inadvertent transposition of grandParents, due to a misunderstanding of the terms “maternal” and “paternal.

,, Tte appellee states that he had a brother older than himself who died when he was only a few days old; hence he was born and died before the appellant vas born. Tho al_ leged fethep denies tHs_ He le£t Sm Fran_ cisco Fecember 1911^ and claims to have been married January 14, 1912, and the applicant was born September 24, 1912. Obviously there could be no older child of this marriage.

The alleged father testified in April, 1920, that his wife was then living in Hong Mee village and in 1926 that she lived in that village with his two sons, the applicant and Yep See Wing. He now claims that his family moved from the Hong Mee village to the Ung 0n villaSe about ei&ht or nine years a£° or lg21 ^ 1922_ He tegtified tbat tbeso two villages &re aW three blockg apart. Ap_ pellee n1aiM that he was born in Ung On village and has never been in Hong Mee village £n b£s jjfe g0. fgj. as be ean remember. Appellee further states that the only school he ever attended was in the Ung On village, *668while the father claims that he never went to school there and always went to school in the Hong Mee village and that he was attending school there when the alleged father arrived from China in January, 1927. The appellee and the alleged father also differ as to the name of the teacher. The alleged father also testifies that the mother wrote him that the applicant had attended school in Sai How village for one year.

_. „ ....... In view of these discrepancies m the testimony relied upon by the applicant, we cannot say that the applicant was denied a fair hearing on the question of his right to enter the United States.

The order of the District Court is re- , _ verse .

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