
    UNITED STATES ex rel. LEONG JUN v. DAY, Commissioner of Immigration, et al.
    District Court, S. D. New York.
    Jan. 7, 1929.
    M. Michael Edelstein, of New York City, for relator.
    Charles H. Tuttle, U. S. Atty., of New York City (Walter H. Schulman, Asst. U. S. Atty., of New York City, of counsel), for respondents.
   BONDY, District Judge.

Leong You, a Chinese lad, twenty years of age, has been denied admission to the United States.

At a hearing accorded the applicant for admission in October, 1928, the father, who was bom in the United States, testified that he was married and that the applicant is his son. In 1923, when he returned from China, he testified he was not married and that he did not have a marriage name. He now states that he so testified in 1923 because he was “seared.”

This is the only substantial discrepancy that appears in the record of the hearings to which the father and son were subjected separately.

The fact that the father testified falsely in 1923 evidently cannot deprive the applicant of his right to admission if he is the son of an American citizen. See Ex parte Ng Bin Fong (D. C.) 20 F.(2d) 1014.

There is such substantial agreement in the testimony of father and son as to all the important and many unimportant facts that no inference adverse to the credibility of either can be drawn from the few immaterial discrepancies in their testimony, referred to as major discrepancies by the Board of Special Inquiry. The board regards as major discrepancies contradictory testimony as to whether the grandparents of the applicant are buried in the same or separate graves, whether he was bom in April or May, 1909, whether the school in the home village consisted of one large room or one large and two small rooms, whether land owned by the father is located fifty or four jungs from the home village, and whether up to February, 1923, six years ago, his parents occupied a room with their two younger children or with only the youngest child, and the applicant and the other children the sleeping or the sitting room.

As a major discrepancy, the board also alludes to the fact that the father of the applicant testified that his father up to the time of his death, about 33 years ago, was in business in Chung Hong market, but that he did not know what kind of business; that he was then about 21 years old, and that he never was in that market, and that a witness testified in 1923 that he saw the father regularly in that market for ten years, and that the applicant, who was not bom till after the grandfather’s death, testified he never heard of the market.

This testimony the board states clearly shows that the father on April 9, 1923, acknowledged that he was never married, and therefore cannot have a wife and four children as he claims.

There were no discrepancies but substantial agreement as to the names and ages of the brothers of applicant, the names and ages of their wives and their children, the description of the village from which they came, the names and ages of its inhabitants, the name of the school-teacher, the time of the day when the father left the home village for America or the room in which he said goodby to his family, and as to which of his sons accompanied him to the station.

Their testimony could not have been in such accord as to so many details unless the claimed relation did exist. It seems to me that the finding that it was not established cannot be maintained with any sense of fairness to the applicant. U. S. ex rel. Leong Ding v. Brough (C. C. A.) 22 F.(2d) 926; U. S. ex rel. Fong Lung Sing v. Day, 29 F.(2d) 619, U. S. District Court, S. D. N. Y., August 3, 1928.

The writ, therefore, must be sustained.  