MATTER OF L
In DEPORTATION Proceedings
A-10635395
Decided by Board February 19, 1959
Evidence—Blood-grouping tests—Exclusion of parentage through Rh system.
As with the A-B-O and M-N systems, the same conclusive effect is given Rh
blood-grouping tests which exclude paternity when the test results are consistent and uncontroverted and the interpretation is made by a recognized
authority.
CHARGE :
Order : Act of 1952—Section 2-11(a) (1) [8 U.S.C. 1251(a) (1)1—Excludable
at time of entry—No immigrant visa.
BEFORE THE HOARD
Discussion: Respondent is a native of China, 29 years of age, who
was admitted to the United States on April 21, 1956, as the United
States citizen son of L Y W , a citizen of the United
States. Following his admission he filed an application for a certificate of citizenship. The special inquiry officer found, following a
hearing, that recently - dovelop,1 evidence, e:Aablilhea that the respond
ent is an alien, a native and citizen of China, that he was not entitled
to enter the United States as a citizen and is, therefore, deportable on
the charge contained in the order to show cause. Respondent appeals to this Board from the order of deportation.
Following his application for a certificate of citizenship, and at
the request of the Immigration and Naturalization Service, respondent and his alleged parents were asked to cooperate in the performance of blood-grouping tests. On September 28, 1956, accompanied
by an immigrant inspector, they went to the Western Laboratories
in San Francisco, California, where blood Samples were taken fur
the purpose of establishing the groups, types and factors in the
blood of respondent and his alleged parents. These tests are designed
to establish the possibility or impossibility of the claimed parentage
or relationhip between respondent and the alleged parents. The
pathologist who supervised the tests was Dr. Leonard Ortega, who
later testified as to his own qualifications, described the techniques
259
used in his laboratory, and the meaning of the test results and of
the forms filled out and signed by him, part of exhibit 2.
On July 8, 1057, respondent and his alleged parents again cooperated in the performance of blood tests at the Latham Square Laboratories in Oakland, California, accompanied by Mr. H K
their attorney. Dr. Paul Steiner later testified as to his own qualifications as a pathologist. He was not questioned by anyone regarding the methods used in his laboratory or the circumstances under
which the tests wore made. Ho wax not naked whether he performed
these tests or supervised their performance.
The results of the tests performed at both laboratories are identical. It was conceded by the examining officer and by counsel for the
respondent that the interpretation of the test results is the primary
issue in this case. The special inquiry officer stated to the attorney
that it was his understanding that the Government contends that
respondent is not the son of the alleged parents, and that counsel
contends that he is the son of the alleged parents, anti "that is the
issue." Both counsel and the examining officer agreed to that statement, of the case. The special inquiry officer stated further, "Then
as I understand it there is no issue as to the accuracy or the methods
used in the blood-grouping tests?" Counsel and the examining officer agreed there was no such issue.
We have had several eases wherein the testers for varying reasons
had arrived at different results, but this is the first blood-grouping
case to our knowledge wherein the test results are the same, but the
testimony of two pathologists is conflicting as to the meaning of
the tests. The findings of the two laboratories are reported in different forms, even though they purport to state the same test rhsults.
It is our opinion that the table appearing in Dr. Weiner's letter is
most easily comprehended by nonmedical persons. (Dr. Alexander
Weiner was chosen by both parties as arbiter, as we shall relate.)
He states:
The findings of the two doctors may be summarized as in the table
below:
Blood of- Group M-N type Rh-Tir type
Y—w—L—(putative father). 0 MN ROSS
(putative mother) A MN RhIRbl
J e3yon.ac.t) A
Dr. Ortega testified that following his graduation from medical
school he had extensive training and experience in the field of pathology, that he supervised laboratories and blood banks in Texas and
California, that he is at present an instructor of pathology at the
University of California School of Medicine, that he has performed
hundreds of blood typings for the purposes of transfusions, for the
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identification of blood stains in criminal proceedings, and for one,
to two hundred cases involving disputed paternity. He was asked
who in his opinion were the outstanding authorities in the field of
blood grouping and testing, and he named Dr. Alexander Weiner
of New York, Dr. Race in England and Dr. Philip Levine in New
Jersey. He testified that an exclusion of paternity may be demonstrated as the result of tests concerning any one of the three blood
systems used for this purpose in routine medicolegal use. He stated
that the first tests used in paternity cases concern the A-B-O system,
next the M-N system, and last the Rh-Hr system, and that all the
tests used demonstrate results which Lure firm barer in genetic law.
He testified that the tests made in the instant case were actually performed four times in his laboratory, twice by each of two different
technicians. The tooth wore repeated beenvme they discovered there
was an exclusion of parentage. He testified that the test results
establish that respondent cannot be the child of the alleged father
and mother, and that the exclusion of paternity was not discoverable
through the A-B-O or the M-N tests but is established by the Rh-Hr
tests.
Dr. Ortega testified that respondent, the alleged son, has in his
blood the factor rh', and that both parents "are negative for this
factor." He stated, "For this factor to appear in a child it has to be
present in one or both parents. It is simply a matter of heredity
that the child cannot have something that neither parent has" He
was asked, "Doctor, is it your opinion that this is a conclusive finding?" He answered, "In my opinion, yes, it is a conclusive finding."
On cross-examination Dr. Ortega's testimony reads as follows:
Q. And if I were to tell you, Doctor, that I had a statement in writing by
a pathologist who presumably is well qualified to the effect that he is not
prepared to say that paternity is excluded in this case on the basis of the Ith
factor, what comment would you navel
A. My comment would be that this pathologist is certainly at variance with
practically every other serologist in the world.
Counsel called Dr. Paul Steiner, who testified to his medical school,
graduate school, and special training in pathology. He testified that
he is assistant pathologist and consultant pathologist to a number
of laboratories and institutions in the San Francisco area, including
the Veterans Administration and Mare Island Naval Hospital. He
was asked to name the outstanding experts in the field of blood
grouping, and he named the same three experts named by Dr. Ortega :
Dr. Alexander Weiner, Dr. Race (whom lie referred to as RaceSanger, apparently a team) in England, and Dr. Philip Levine.
Dr. Ortega and Dr. Steiner testified separately, not in the presence
of one another, and approximately two weeks apart. Dr. Steiner
referred briefly to the A-B-O and H-N systems and then discussed
at length the Rh system and the differences in nomenclature with
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regard to that system, describing the C, D, E, c, d, e designations
developed by the British doctors Race and Sanger, and the Rh-hr
symbols, developed by Dr. Weiner in this country. Dr. Steiner prefers to use the designations C, D, E, e, d and e for purposes of simplicity, rather than the Rh-hr designations. The subject of bloodgroup nomenclature is discussed in the "Supplementary Report of
the Committee on Medicolegal Problems, American Medical Association," reprinted from the Journal of the American Medical A SSOe-i,etton, August 31, 1917, vol. 101., pp. 2030-2014. It is a controversy
with which we need not concern ourselves here.
Dr. Steiner testified that exclusion of paternity based on what he
terms the big factor (oh") alone is ton ciontroversial to be fair.
He considers it to be "a matter of doubt." It is his belief that the
"big E factor" may consist of several factors, and that not enough
is known about it at this time to justify basing an exclusion of paternity on that test. He quoted from several publications he believes
support his view. He read from the American Journal of Human
Genetics, December 1952, an article by Dr. Weiner, whom he quotes
as saying, "The existence of individuals with the red cells lacking
both factors Rh" and He has an important implication for the
medical-legal application of these tests in cases of disputed parentage, and this could lead to erroneous csvolusiono of parentage." It
seems to us that this statement is not pertinent to the instant case.
These persons are not lacking both Rh" and He; the respondent's
blood has in it the factor Rh" and, judging from Dr. Steiner's own
test reports, he found the reaction to the anti-e (hr") serum to be
"positive as to all three parties." The tests done by Dr. Ortega did
not include the "e" (hr") test which is not recommended by the
American Medical Association Committee.
Dr. Steiner continued his testimony by reading from the Supplementary Report of the Committee on Medicolegal Problems, American Medical Association, referred to above. The Committee consisted
of Dr. Weiner, Chairman, and three other persons. Assuming the
record we have to be correct, Dr. Steiner did not read the report
accurately. The record we have quotes him as follows:
* • * and finally the Journal of the American Medical Association of August 31, 1957 in a report of the Committee on Medical-Legal Problems in an
article Medical Logal Applications of aloud arollpinp: Tools. save here. With
regard to the Rh system and particularly to the Rh" factor obviously the
medical-legal application of such factors is premature. Indeed because the
lack of availability of adequate amounts of suitable anti-serums and the limited knowledge due to the small number of investigations carried out to date
the routine use in medical-legal work of the Factors Rh" is inadvisable.'
(Emphasis added.)
The report Dr. Steiner quotes from was not placed in evidence.
The special inquiry officer should have requested that it be made
262
part of the record. However, the report is available to us and it is
clear that Dr. Steiner misread the paragraph quoted, and taken out
of context the meaning is changed. The quoted paragraph, in tote,
read an follows:
Recent work has revealed the existence of still other factors belonging to
the Rh-Hr system, notably, factor V, often found associated with the genes r
and R., especially in Negroes. In addition, a series of new Rh factors has
been discovered that, with rare exceptions, occur in association with the factor
Rho (similar to the association of factor rhw with rh') and that have tentatively been designated as IthA, Rh; and so forth. Obviously, the medicolegal
oppnestion of spot) factors is premature. Indeed. because of the lack of availability of adequate amounts of suitable anti-serums and the limited knowledge
due to the small number of investigations carried out to date, the routine use
in medicolegal work of factors rh., hr", and hr is inadvisable. This Committoo recoassueudg, theref ore, shot for rnntine medicolegal work. for the present.
the Rh-Hr test be limited to the factors Rh o, rh', rh", and he. (Emphasis
added.)
The Committee report had already discussed the fact that there
are at the present time four principal Rh blood factors and three
principal Hr factors recognized. It states, "However, anti-serums
for only four of these seven factors are readily available for routine
clinical and medicolegal work, namely, anti-Rh o, anti-rh', anti-rh",
and anti-hi." The report discusses many rh and hr factors, some
of them rarely encountered, and clearly is discussing these, factors
in the paragraph road by Dr. Steiner (quoted above) when they
recommend that the tests for the rare and newly-discovered factors
not be used in routine medicolegal work. The Committee again says,
"As has already been pointed out, in medicolegal cases the paternity
blood tests are generally limited to the factors Rh., rh', rh" and hr'.
Actually many more Rh-Hr factors have been found."
Dr. Steiner again quoted from the Summary and Conclusions of
the Committee (Supplementary Report), "It is recommended that
routine medicolegal applications of blood grouping be restricted at
present to tests for the four blood groups, 0, A, B, and AB of the
A-B-O system; the three types M, N, and MN of the M-N-S- system;
and factors Rh., rh', rh", and hr' of the Rh-Hr system." Dr.
Steiner's comment on this recommendation is, "Now here they omit
expressly the factor hr" which is the one present in the two parents."
This seems to us to be a non sequitur, since the exclusion of paternity
in this case is not based upon the presence of the factor hr" in the
two parents, found by Dr. Steiner's tests. This is one of the factors
for which the Committee of the American Medical Association
recommends routine tests not be made. The exclusion here is based
upon the fact that the element rh" is present in respondent's blood
and is not present in the blood of the alleged parents.
It is not necessary for us to attempt to resolve the conflict between
the conclusions of Dr. Steiner and Dr. Ortega. When it became
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apparent to the special inquiry officer, counsel, and the examining
officer that the two doctors had conflicting opinions, the examining
officer asked Dr. Steiner if he felt that. Dr. Weiner is the outstanding authority in this field in this country, and if Dr. Steiner would
accept Dr. Weiner's word as final in this case if the tests were submitted to him for decision. Dr. Steiner answered, "Yes I do, not
the only one but one of the outstanding authorities. Dr. Philip
Levine is probably equally qualified, but he is not as flamboyant as
Dr. -Weiner is …." The examining officer then moved that the
testimony of the two witnesses and the two sets of tests be submitted
to Dr. Weiner for a final opinion. Counsel stated that he had no
objection to that and stipulated that lie was willing to be bound by
the results of Dr. Weiner's opinion. The examining officer also so
stipulated.
Dr. Weiner's letter addressed to the Immigration and Naturalization Service at New York, July 16, 1958, signed and notarized, is
exhibit 3 in the record. Dr. Weiner's table summarizing the results
of the blood-grouping tests herein has been set forth above, and will
not be repeated here. The rest of Dr. Weiner's certifacatiuu reads as
follows:
Mr. E— also— showed me the records of the above-named case including the report of Dr. L. R. Ortoge of the Western Laboratories in flohlond,
California, the report of Dr. Paul S. Steiner of the Latham Square Laboratories of Oakland, California, and the testimony of Dr. L. K. Ortega and Dr.
P. Steiner, all of which I have read, There appears to be no dispute about
the results of the blood tests themselves, but only regarding the interpretation
of the findings. While it is against my principles to offer an opinion based
on tests which I have not done myself, in the present ease, according to the
testimony, the tests were done many times, always with the same results, as
that it would be uareaooaablo to challenge the findings.
As far as the A-B-O and M-N tests are concerned the results provide no
Information as to the question of parentage. The Rh-Hr tests, however, show
that J- K L cannot be the child of I W L and
Y L L . The reason for this is that two parents both lacking factor
tit" (otherwise known as factor E) cannot have a child with factor rh" (or
E). In the present case the putative father X W L— is type Itlugh
lacking factor rb" (or E) and the putative mother, M I L— L is
type RhiIthi lacking factor rh", while the putative son, J K L is
type Rh iithz having factor rh". Therefore J—K—L------ is not the son
of Cho putatiro pax Onto, Y w L and br Y— L L
The hearing was reconvened on September 18, 1958, in San Francisco, at which time counsel objected to the acceptance in evidence
of Dr. Weiner's report "on the ground that the witness has impeached
himself." Counsel, admittedly basing his opinion on the "quoted
remarks of Dr. Weiner" as read into the record of hearing by Dr.
Steiner, states that he believed "that Dr. Weiner would rule out
exclusion of paternity on the basis of the big E factor of the Rh."
004
Counsel continued, "However, since Dr. Weiner has now repudiated
what he was quoted as saying the previous time I don't feel bound
by the stipulation …" (emphasis added). It is apparent that
counsel did nnt gtudy the report, of the Committee of the American
Medical Association himself, but based his opinion on the reading
of it by Dr. Steiner. If our copy of this report is correct, then
Dr. Steiner's reading of it cannot be correct.
The special inquiry officer felt that both parties were bound by
their stipulation, and accepted Dr. Weiner's opinion into the record
over counsel's objection, pointing out that Dr. Weiner had been
agreed upon by both parties as arbiter. A good statement on the
effect of a stipulation is available in Matter of 4 I. & N. Dec.
378, 384 (C.O., May 10, 1951), wherein it was concluded that the
decision as to whether or not the parties are bound by a stipulation
rests with the court, and that the court may, in its discretion, set
aside a stipulation on numerous grounds, such as fraud, undue influence, collusion, mistake, false statement innocently made, inadvertence or improvidence in making the stipulation (Wigmore on Evidence, vol. IX (3rd ed.), sec. 2590). Since these are administrative
proceedings, and since citizenship is a precious right, we would not
permit anyone to stipulate away his citizenship, if we believed that
the record supported a finding of United States citizenship. In the
present case the effect of the stipulation is unimportant, because the
report of Dr. Weiner is admissible, in any event. Obtaining Dr.
Weiner's opinion was a satisfactory solution to the impasse existing
at the close of the June 16th hearing. Dr. Weiner's certifications
have been accepted by us in a number of cases, and he has been
named in other similar proceedings as the ultimate authority on the
subject.
The Supplemental Report of the American Medical Association
referred to the subject of the qualifications of experts as "a difficult
and unsolved problem requiring serious study." It was found necessary in New York City to set up a special panel for this purpose.
When blood tests were commenced in New York in 1953, persons to
be tested were permitted to choose their own doctors for this purpose.
Following complaints of inaccuracy of test results and overcharging,
it was discovered that the judges of the Court of Special Sessions,
after consultation with the New York Academy of Medicine, had
approved a panel of six doctors to conduct blood tests in paternity
proceedings before the mutt_ The hiunizration and Naturalization
Service decided to follow the same procedure and to request the person whose blood was to be tested to choose one of the doctors from
this same panel. The panel at that time included Dr. Alexander
Weiner, Dr. Philip Levine, and Dr. Sussman.
This is not the first case in which we have had certified an exclusion of paternity based on Rh tests alone, although the others are
265
all unpublished cases. In unreported Matter of TV - TV Y ,
A-10236058, blood tests were performed by Dr. Leon Sussman, New
York, and he certified on January 26, 1954, that the tests demonstrated that it was impossible for respondent to be the offspring of
the two persons claimed to be his parents, inasmuch as this child
had a blood factor, rh", which he must have inherited from one of
his parents, and as neither of the claimed parents had this
blood factor, parentage could be excluded. In L S Y ,
A 7673112, unreported (May 10, 1051), Dr. Iora9,1 Davidcohn, Chicago, found an exclusion based on the hr' factor. Later, following
a blood test of the mother, he found a triple exclusion, based also
on the N and rh" factors. Dr. Davidsohn was a member of the
Committee of the American Medical Association which wrote the
report on blood-grouping tests in 1952, which evidences no hesitation
about using Rh-Hr tests for these purposes. In unreported Matter
of L S L , A 10292624, Dr. Sussman (in a report dated
December 22, 1954) certified an exclusion of paternity based on the
Rh test alone.
It is important in these cases to be able to rely on the Rh test.
It is possible for a person seeking a purchaser for a previously
established "immigration slot" to match the blood groups and types
of a candidate to those of the alleged father and mother, particularly
if the alleged father and mother fall in the common groups and
types, as in this case. Here we have an 0 father and an A mother.
They can have either 0 or A children and this covers approximately
87 percent of the population. According to the MN typing we have
an MN father and MN mother. They can have M, N, or MN children, and this is 100 percent of the population . Therefore, in the
instant case the A - B - 0 tests are of limited value, and the MN tests
are useless. However, with Rh tests added to 0-A-B and M-N tests,
blood matching becomes much more difficult.
Even with the use of Rh tests it is not possible to solve all cases
Of doubtful parentage. In a report of the Committee on Medicolegal
Problems, American Medical Association, 1952 (p. 12), the Committee stated, "When a man is falsely accused of paternity, he has better
than a 50 percent chance of being exonerated by the combined use
of the A-B-0, M-N, and Rh-Hr tests, while more than 90 percent of
cases of interchange of infants can be solved by such tests." The
factor rh" is the factor which respondent has which his parents do
not have. We note that the Supplemental Report of the American
Medical Association Committee, 1057, mentions that the factor rh"
occurs in less than .5 percent of the population. When the claimant
possesses a relatively unusual blood factor, blood matching becomes
most difficult.
The special inquiry officer denied the request of counsel to offer
the testimony of respondent's alleged father, holding that counsel
9011
was bound by his stipulation that there was no issue in the case but
the interpretation to be given the blood-grouping tests. We feel
that the special inquiry officer's denial of this request was unnecesawry, but does not constitute prejudicial error sufficient in require
reopening of the record. The alleged father's testimony probably
would not have lengthened the record unduly. But neither could
it influence our decision, which is bound by the test results. In the
past six years we have held repeatedly that blood-test evidence is
conclusive, when it is satisfactorily established that the tests have
been conducted by competent and experienced persons and where the
tests conclusively establish the impossibility of the claimed relationship. Matter of L F—F—, 5 I. & N. Dec. 149 (1953);
Matter of W K—S--- and IV P—S , 5 L& N. Dec.
232 (1903) ; Matter of D TV 0 and D IF ,
5 I. & N. Dec. 351, 356 (1953, 1954); Matter of L C S—,
6 I. & N. Dec. 212 (1954). These decisions have been sustained in
the courts for the most part.' When the courts have found citizenship in spite of blood tests demonstrating non-existence of the claimed
relationship, it has been for a procedural defect (Dulles v. QUa#1
Yoke Fong, 237 F. 2e1 496 (C.A. 9, 1936) ) ; or for a failure of the
Government to establish the qualifications of the technician (Chin
Wing Gwong v. Dulles,
139 F. Supp. 116 (D.C.R.I., 1956) ).
Counsel complains that he was not permitted to cross-examine
Dr. Weiner, and therefore should not be bound by Dr. -Weiner's
certification. Counsel had two blood-test experts for examination
and cross-examination. Examination of experts in these cases has
gone largely to the matter of the accuracy of the testing procedure,
proper identification of the parties (to eliminate the possibility of
substitution), adequate supervision of laboratory workers, and the
general acceptance of blisnrEtristing procedure and results for medical
and legal purposes. Cross-examination would serve no purpose here,
because all parties conceded Dr. Weiner's qualifications and agreed
to an acceptance of his interpretation. Until Dr. Weiner's determination was unfavorable to respondent, counsel was willing to submit
the issue of the true meaning of the test results to him.
Counsel protests that in Matter of DW 0 and D
TV H—, 5 I. & N. Dec. 351, at page 361, Dr. Weiner is quoted
United States en re/. Done Wing Ott v. Shaughnessy, 220 F.2d 537, 245
F.24 875, reaff.
247 F.2d 769 (CA. 2, 1955-1957) ; United States ex rel. Lee
Kern Boy, et at. v. shaughnessy, ma a. Supp. 302, 123 a. Bui,p. Cris (o.o.r.r.y,,
1953-1955),
237 F.2d 307 (CA. 2, 1956),
352 U.S. 966; United States ex re/.
Lee Kern Hay v. Merff,
355 U.S. 169; Lee Chow Ken v. Brownell,
122 F. Supp.
370, 220 F.24 187 (CA. 2, 1055),
148 F. Supp. 3,
245 F.2d 874 (CA. 2, 1957);
Jew Jock Keen v. Males,
139 F. Supp. 205 (S.D. Texas, 1955) ; Get v. Dulles,
154 F. Supp. 577 (E.D.N.Y., 1957) ; Wong Fuel) Ping v. Dulles,
137 F. Supp.
470 (D.C. Mass., 1956); Lett Moose Cheung v. Rogers, (D.C. Calif., November
12, 1958).
267
by us as having said that for the purposes of testifying in legal
proceedings he prefers not to rely on the conclusions drawn from
tests made by other persons but prefers to make his own tests. Dr.
Weiner's letter, exhibit 3 in this record, states that he prefers to
conduct the tests himself, but where, as in the instant case, the test
results are consistent and only the interpretation is at - issue, he is
willing to make an interpretation. We fail to see any ground here
for a valid objection.
As counsel points out, the Court of Appeals for the Ninth Circuit
has held that where the Immigration Service has admitted a claimant as a citizen the burden necessary to overcome the prior admitting
decisions falls on the Government. Lee Hon Lung v. Dudes, 261
F.2d 719 (C.A. 9, 1938)_ The Ninth eirenit else held in Re Ng
v. Browned,
258 F.2d 304 (C.A. 9, 1958), that the trial court did not
abuse its discretion in determining (among other findings) that the
blood tests were reliable and "should be given great weight."
To recapitulate: It is our conclusion that blood-test evidence presented here, consisting of the test results which are consistent and
uncontroverted, and interpreted by an unimpeachable expert to establieu' exclusion of paternity, must be accepted by us. Clearly, Dr.
Steiner does not agree with the American Medical Association Committee Reports of 1952 and 1957, but evidently he stands alone in
his opinion that the blood factor rh" is too controversial to serve
as a basis for an exclusion of paternity. The record does not establish Dr. Steiner as a recognized authority in the field. The writings
referred to by him and counsel do not support his view. On the
contrary, they support the view of Dr. Ortega, Dr. Weiner, and
other authorities. The warnings and exceptions set forth in the
American Medical Association Subcommittee reports refer to blood
factors other than the rh" factor present here. Any errors committed
in the hearing were not prejudicial errors sufficient to require reopening and rehearing. The blood tests constitute clear and convincing
evidence that the respondent is not the son of the alleged father.
Therefore, he is not a United States citizen. The appeal will be
dismissed.
Order: It is ordered that the appeal be and is hereby dismissed.
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