United States ex rel. Lee Kum Hoy v. Murff

PETITIONER:United States ex rel. Lee Kum Hoy
RESPONDENT:Murff
LOCATION:Wolverine Tube, Inc.

DOCKET NO.: 32
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 355 US 169 (1957)
ARGUED: Nov 21, 1957
DECIDED: Dec 09, 1957

Facts of the case

Question

Audio Transcription for Oral Argument – November 21, 1957 in United States ex rel. Lee Kum Hoy v. Murff

Earl Warren:

Number 32, United States of America on a relation of Lee Kum Hoy, et al., Petitioners, versus John L. Murff, District Director of the Immigration and Naturalization Services.

Mr. Gim, you may proceed.

Benjamin Gim:

May it please the Court.

This case is here on certiorari to the Second Circuit and involves a question of whether the Immigration Service made lawfully imposed blood test on Chinese alone and not on other persons in cases involving claims to writ their citizenship based on a relationship to the citizen parent.

The District Court found that unlawful racial discrimination had been practiced against the petitioners and sustained the writ of habeas corpus.

The Circuit Court, Judge Frank dissenting, reversed this decision and judgment.

The petitioners, two boys and a girl being then at the ages of 22, 13, and 12, arrived in the United States at Ellis Island in June of 1952 seeking admission as citizens.

In July and August of 1952, they were blood tested twice.

These two blood tests conflicted.

The first blood test excluded all three petitioners as being the possible children of the citizen parent.

The second blood test excluded two of them.

On the bases of these conflicting blood tests, the Immigration Service ordered the exclusion of all three of the petitioners and incarcerated them in Ellis Island for a period of over two years.

In a review of these proceedings before the District Court, Judge Dimock remanded the proceedings to the Immigration Service for a reopen hearing to allow cross-examination of the blood test technicians and to develop evidence on the issue of racial discrimination.

At the reopened hearing, the Immigration Service refused to produce an official to testify on the policy of the service with regard to blood test.

They also refused to produce facts and figures as to the number of Chinese blood tested and whites if any.

The service position at that time was that the issue of racial discrimination had no possible bearing on the decision of this case.

Notwithstanding, the refusal of the Immigration Service to produce an official to testify on the policy of blood test, the petitioners went ahead and proved that the blood test program commenced with the sending of a circular at the direction of the Immigration Service to the public health authorities.

This circular directed blood testing of Chinese persons.

It did not specify blood test for any other nationality.

The Public Health Service doctor testified that pursuant to this circular, he conducted 200 blood tests that all the persons tested were Chinese and that he never tested a white person.

Then beginning June of 1953, the Immigration Service discontinued using the Public Health Service to conduct these tests and turn the matter over to private experts such as Dr. Leon Sussman.

Now Dr. Sussman testified that he conducted 300 blood tests at the request of the Immigration Service that all 300 of the persons tested were Chinese and that he never had occasion to blood test a non-Chinese.

Then both of these doctors testified at the hearing that these two blood tests were invalid and inaccurate and insufficient to form any conclusions as to paternity or non-paternity in this case.

When the matter went back to a District Court —

Earl Warren:

What was that last statement again, Mr. Gim?

Benjamin Gim:

The two doctors in this case, Your Honor.

Earl Warren:

In this case?

Benjamin Gim:

In this case, yes.

Earl Warren:

Yes.

Benjamin Gim:

Testified that the blood tests in this case were invalid and inaccurate and was insufficient to base any conclusion as to paternity or non-paternity.

Earl Warren:

Those are the Government’s doctors?

Benjamin Gim:

This was a private expert and the government doctor.

Earl Warren:

Where were the experts employed (Voice Overlap) —

Benjamin Gim:

Dr. Leon Sussman was the witness for the petitioners.

Earl Warren:

Yes.

William J. Brennan, Jr.:

Did they — did they say why they were invalid with —

Benjamin Gim:

Well, Dr. Sussman who was a recognized expert and who was used by the Immigration Service said that there were enough errors in the report themselves.

They were conflicting.

They indicated they were not done properly and therefore he would place no reliance on this case.

William J. Brennan, Jr.:

Were they’ve been done by serologist or by —

Benjamin Gim:

No, sir.

They were done by a transfusionist in the Public Health Service and the doctor who supervised these blood tests himself refused to standby the conclusions of these tests.

When the matter went back to the District Court, the Government moved to dismiss the writ.

The Government, contending that blood tests were not imposed on Chinese alone but were required of all persons who did not have birth certificates to prove their identity and relationship.

Now, petitioners answered this argument by citing cases of Chinese who had birth certificates and who were nevertheless were blood tested.

Judge Dimock noted that these cases led in substance to the issue of racial discrimination and remanded the case to the immigration authorities for the second time for the specific purpose of developing evidence on the issue of discrimination.

Now, this time at the second reopen hearing, the Immigration Service did produce a witness.

Now this witness was the very same attorney who had argued the prior proceedings before Judge Dimock.

This witness minimized for the first time a birth certificate matter as a — any factor in determining whether or not a blood test would be needed.

He stated that the most important factor in determining whether a blood test was required in any particular case was whether or not the citizenship claimant was born in an area which was accessible to an investigation by the American consul.

He said that if the American consul could investigate the area of the person’s claim birth and ascertain from his neighbors and relatives and local government officials his identity and relationship, there would be no need for a blood test.

He went on to say that this was seldom true in Chinese cases that all the Chinese applicants were born in the remote interiors of China and they were inaccessible or rather the areas of their birth were inaccessible to a consul investigation.

However, on cross-examination, this witness, although he conceded that the consular investigation factor was a long standing factor in determining whether blood test would be needed, this witness conceded that in all the prior proceedings before Judge Dimock, he had never once mentioned the factor of a consular investigation as being at all important in determining whether blood tests were necessary.

At that time in those proceedings before Dimock — Judge Dimock, the Government placed sole reliance on the birth certificate as the most important factor in determining whether blood test would be needed.

Now on further cross-examination, this witness who appeared as the Immigration Service expert on the policy insofar as on discrimination, this witness was unable to cite a single case from the beginning of the blood test where a white person had ever been required to take a blood test.

He was also unable to cite a single case of a Chinese who was ever exempted from the blood test.

Then these witnesses also forced to admit that the operation instructions of the Immigration Service did at one time contain a specific direction to blood test Chinese but this witness refused to produce these instructions for the examination of consul.

This witness even refused to summarize the language of these operations and instructions.

Earl Warren:

On what grounds do you do that?

Benjamin Gim:

This witness stated that the Government instructions were confidential and to review it would be prejudicial, Your Honor.

Benjamin Gim:

Petitioners went ahead to prove their contention that Chinese, all Chinese, regardless of whether or not they have birth certificates and regardless of whether or not they were born in areas which were accessible to consular investigation, were always required to take a blood test and other persons never were.

The form of proof which the petitioners introduced consisted of several cases of Chinese infants who were born in the British territory of Hong Kong.

None of these infants exceeded the age of six.

Each one of these infants had never been to China.

They were born in the British territory of Hong Kong.

In addition, each one of these infants had a British government birth certificate.

His parents had British marriage certificates.

In one of these cases, the American consul himself had issued a birth certificate for the child.

And most important, there is a large American consul staff in Hong Kong and these applicants were thoroughly investigated.

Nevertheless, each one of these children, two of them being only one-and-a-half years of age were required to take a blood test.

Now, on the face of this record, Judge Dimock found that the policy of the Immigration Service was to blood test all Chinese and no whites and he sustained the writ.

Now, the Circuit Court with Judge Frank dissenting conceded that the petitioners in this case had proved that there were 500 cases of Chinese blood testing.

That there were no cases of Chinese exemptions and that there was no evidence of any white person blood tested.

But the Circuit Court reasoned that the petitioners had failed to prove discrimination because they have failed to prove that the Immigration Service officials were actuated by an evil motive or conscious racial prejudice.

This Court granted certiorari limited to the sole issue of racial — whether or not racial discrimination was practiced in this case.

Now, petitioners submit that the factual issue tried administratively and reviewed by the District Court was whether in fact all Chinese were blood tested or whether the blood test extended to white persons.

The Government itself put this issue in question by contending that blood tests were not restricted to Chinese but were applied to all persons without birth certificates.

Then the Government later changed this position and claimed that blood tests were imposed on all persons, Chinese and non-Chinese alike who were born in areas which were not accessible to an investigation by the American consul.

The petitioners submit that we have shown that these two excuses advanced by the Government for blood testing Chinese only are really inconsistent and tardy afterthoughts.

We think further that the citation of the several cases of blood testing of Hong Kong Chinese infants who have birth certificates and who are accessible to a consular investigation prove that no Chinese were ever exempted from the blood test.

Now this is the record which this Court is asked to review.

Namely, whether or not, the blood tests were extended to white persons or whether or not the blood tests were confined and restricted to Chinese.

On this posture of the record, it is submitted that Judge Dimock’s finding that there was racial discrimination is imminently correct.

Now, after the Government lost this case before Judge Dimock and after Judge Dimock had entered a judgement for the petitioners, the Government for the first time moved in a motion for reargument claiming on a basis of an ex parte affidavit that beginning in 1955, 60 white persons had been blood tested.

Now, petitioners submit that the evidence of blood testing of white persons in 1955, the petitioners themselves being blood tested in 1952, the evidence of blood testing of white persons in 1955 if that be so does not absolve retroactively a discriminatory practice imposed upon Chinese in 1952.

Moreover, the actual citation of the 60 white person blood tested in 1955 actually lend support to the proof of discrimination in this case because if there were reason to blood test 60 white persons in 1955, surely there were reason — similar reasons existed for blood testing whites in 1952, in 1953 and 1954.

And yet in all these years, despite the reasons for demanding a blood test, the Immigration Service could not show any examples of white persons blood tested in those years.

Now, the Government argues in its brief that well beginning 1955, especially after Judge Dimock had condemned racial discrimination in blood testing Chinese beginning 1955, we reformed and there is no reason to exclude the discriminatory blood test in this case.

Petitioners submit that the — this case is controlled by the procedures in effect in 1952 and the subsequent repentance by the Government in blood testing white persons in 1955 does not retroactively cure any discrimination in blood testing Chinese in 1952.

Now, it may be true that if — as claimed by the Government that they have reformed and now the blood testing — and if blood testing is now administered on a widespread basis, it maybe true perhaps that any Chinese hereafter may not claim discrimination but this case is controlled by the procedures and the practices of 1952 and the petitioners were entitled to be determined that — were entitled to have a case determined on the procedures, the lawful procedures in effect of 1952.

Benjamin Gim:

Now, at — at this late stage, the Government has shifted its ground again and has advanced another justification.

Now this justification comes in the form of a consular report — it’s apparently unclassified and the author of the report and the date of the report is not clear but this report purports to recite a high incidence of fraud among Chinese persons and the Government argues that from this report which is replete with dubious generalities and racial insinuations that blood testing is somewhat justified on a reasonable basis.

Petitioners submit that this document was never submitted in the administrative hearings or before Judge Dimock.

It is submitted in the first in this Court.

If the — if this report had been submitted, petitioners wouldn’t have been able to attack the conclusions and cross-examine the author or authors.

The introduction of this report at this time is highly unfair and prejudicial and the petitioners have made a motion to strike this report from the records.

Now petitioners submit that the only effective way of ensuring the constitutional rights — kind of constitutional rights in this case is to exclude the evidence illegally obtained whereas Judge Learned Hand once observed that the exclusion of improper evidence is the only practical way the courts have of enforcing constitutional privilege.

Now, petitioners submit and the Immigration Service concedes that eliminating the disputed and inaccurate blood test, all the other evidences in this case clearly establishes the relationship and furnishes sufficient evidence to sustain petitioner’s claim to citizenship.

William J. Brennan, Jr.:

Does the Government concede that those blood tests were inaccurate?

Benjamin Gim:

The Government does not concede that Your Honor.

Earl Warren:

Mr. Davis.

John F . Davis:

Mr. Chief Justice, if the Court please.

This case comes before this Court on a very narrow issue and that is as limited by the author of the Court in granting certiorari and that is whether or not there is racial — unconstitutional discrimination against these petitioners by use of the blood test.

Under this question, there is really no question before the Court as to the sufficiency of the record with respect to the facts shown by the blood test.

What happened is that the blood test, the evidence that was introduced, showed that two of the children could not have been the children of the alleged parents.

This was attacked at the second hearing by counsel for the petitioners and on cross-examination they extracted some of the testimony which counsel has referred to.

The hearing examiner, special inquiry officer, found that on the basis of this test, they could not be the children of the alleged parent and the Board of Immigration Appeals affirmed that holding.

There is no holding by the District Court with respect to that, to that fact.

He eventually decided the case on the grounds of discrimination and I submit that as far as this Court is concerned, the issue of the sufficiency and the accuracy of the blood test is not here at this time.

Did the Government (Inaudible)

John F . Davis:

No.

I don’t — I do not so read this testimony.

The test, there were — there were inaccuracies in some of the test.

The two tests are different and there’s no question that the evidence is not as — because of the discrepancy between the two tests, one could — one could possibly have said that they needed a blood test.

As a matter of fact, the district judge when he sent it back for the first time suggested that there should be further test and opportunity was given to the petitioners to have a third test in order that any possible inconsistency could be removed and the petitioners refuse to submit to a — to a third test.

Actually, the first and second tests were entirely consistent with respect to the blood grouping under the A, B and O classifications.

There was no discrepancy in those.

There was a discrepancy with respect to the more difficult test which I call the M and the N, and the MN test.

William J. Brennan, Jr.:

Well, I think I’m right, am I not, Mr. Davis that not just anybody can give a blood?

John F . Davis:

Oh that’s right.

William J. Brennan, Jr.:

It takes rather high degree of efficiency in that —

John F . Davis:

Yes, but the test —

William J. Brennan, Jr.:

— particular —

John F . Davis:

The testimony is that the test in this — there was testimony to support these tests.

I mean that’s when it went back the first time, that was — they — they were given the chance to attack them and there was a testimony in both ways with respect to the sufficiency of the test.

What I’m urging this Court is that that issue is no longer before us.

It wasn’t — that wasn’t the basis of the decision of the District Court and it’s — the issue before us is — is a much broader issue than that factual question.

Earl Warren:

Then what is a fair — fair statement of the position of the doctor — the Government doctor as to the reliability of the tests here.

Mr. — Mr. Gim said that that he wouldn’t stand by it.

He said they couldn’t be relied upon because of there — what is your —

John F . Davis:

I am —

Earl Warren:

— what is your recollection?

John F . Davis:

I regret that I cannot — I cannot summarize that evidence for Your Honor at the moment.

I would have — I would have to reexamine it and submit it in an additional memorandum only if the Court pleases.

Earl Warren:

No, it won’t be necessary.

John F . Davis:

Because — I’m — I’m sorry.

Feeling that this was not the issue before the Court, I would hesitate now to try to summarize what the doctor said without — without reviewing it again.

I think that basically —

Felix Frankfurter:

You — you wouldn’t exclude the circumstance that’s warranted, the court could find on the base of the record, accountable error which is required.

I’m not (Voice Overlap) —

John F . Davis:

Oh of course (Voice Overlap) —

Felix Frankfurter:

— can you do about it but I just want to get it out of the way as to what is involved.

John F . Davis:

Of course that is right.

What I am saying is simply this that there was disputed evidence before the triers of fact that it was determined and that this was not an issue.

It was not determined adversely to the Government at any stage, at any stage in the proceeding.

Now, if there were no evidence there was accountable error in spite of the limitation on certiorari or any other reason why the Court should of course correct that.

Felix Frankfurter:

That — that’s all I meant.

I (Voice Overlap) as I’ve said I don’t know what it’s about —

John F . Davis:

Yes.

Felix Frankfurter:

— and I’m not interested at the moment if —

John F . Davis:

But —

Felix Frankfurter:

— somebody proves to me that there’s a palpable screeching error that could prevent us from considering the case.

John F . Davis:

Well, I’d be — I’d be glad to review this evidence and give it to the Court.

I — I have not believed that that was the issue before the Court and I have not briefed it and I am not prepared to do — to summarize it without further studying it.

Hugo L. Black:

Are there any findings on the blood test?

John F . Davis:

On the blood test?

Yes, indeed.

The inquiry officer and the Board of Immigration Appeals both made the findings on the blood test.

Hugo L. Black:

(Inaudible) District Court.

John F . Davis:

And the District Court never passed, never specifically passed on the blood test.

They passed on the question of whether it was proper to use blood test under any circumstances and they denied an appeal without stating why but they — I mean they denied the — the ground that the petitioners in habeas corpus had raised on the ground of the insufficiency and returned it only on the ground and granted the writ only on the ground of discrimination.

Then there was a cross-appeal to the Court of Appeals and again the Court of Appeals upheld the Government on all grounds except including the discrimination ground.

I think that really Mr. Gim and I are not too far apart on even on what the basic — on what the basic facts are with respect to the — the practice at the time these particular petitioners applied for admission.

I am prepared to admit the fact that at the time these children applied for admission in New York, they were given blood test which in all likelihood would not have been required of them, had they been children coming from Western Europe.

And I’m also prepared to accept the proposition that at this period of time, the Immigration Service as a matter of practice, applied these blood tests to Chinese — to persons of Chinese extraction generally applying for admission to citizens even though they did not make these tests with respect to applicants of other races.

But I do not believe that this means that there was necessarily an unconstitutional race discrimination practiced against the Chinese.

William J. Brennan, Jr.:

Well, Mr. Davis, are you also willing to admit that they were given Chinese irrespective of whether or not the Chinese had birth certificates?

John F . Davis:

Not irrespective.

I would admit that there were cases where there were Chinese with birth certificates — there were general cases where they gave it to Chinese with birth certificates as to the cases that were cited and probably other cases.

Earl Warren:

Did the Government cite any case where they have birth certificates where they were not given blood tests?

John F . Davis:

Yes.

Well in the — in the application for rehearing why we present, we offer — made the offer of proof whether that’s reopened.

Earl Warren:

Offer to prove what then?

John F . Davis:

That there were, I believe, it was 50 cases where they have been admitted without blood test — Chinese.

Earl Warren:

Is that because they have — they have birth certificates?

John F . Davis:

It’s because —

Earl Warren:

Or were there some other reasons?

John F . Davis:

It was because the immigration authorities were satisfied on the evidence that they were citizens without the necessity of blood testing.

It wasn’t only on birth certificates presumably.

It was on the records as I know.

John F . Davis:

But it is our position here that there are very special circumstances which are applicable because of the attempts of many persons in a position similar to that of these petitioners to come into the country illegally and that therefore special precautions against this type of fraud were necessary in this type of situation.

Historically, there has always been resentment by the Chinese against the American Immigration Policy arising particularly from the Chinese Exclusion Act of 1882.

And historically, the Chinese who are normally law abiding citizens have felt no compulsion against gaining entry into this country by fraud.

And actually, relying upon the destruction of the birth records in San Francisco at the time of the San Francisco fire, enough persons of Chinese ancestry claimed to have been born in the United States so that if all of their claims were true, each Chinese women legally in the United States who have to had to have given birth to 800 Chinese in order to make that to permit this number of people to begin.

The repeal of the Exclusion Act in 1943 has not really helped the situation very much.

The quota for Chinese is 105 persons a year and so the pressure for admittance continues to be very great.

On the other hand, the opportunity of checking the voracity of applicants for entry of citizens is small.

Customarily, they claim that they come from rural sections of China where there are no birth records and in fact they frequently present no written evidence of any kind as it was true in this case.

Since the communist have taken over the mainland of China, there’s no opportunity at all to make a field check in the places where the applicants claim that they were born.

Difficulties in language and in translation, in the customs, and the Chinese calendar as against our calendar, the names, all make it difficult to check or to detect fabrication.

And then there is one other feature which makes it particularly difficult and that is the customary pattern of citizens of Chinese ancestry returning to China to marry.

There were fewer Chinese women in this country than Chinese men because of the early history and because of the Exclusion Act and so it became customary for American citizens of Chinese ancestry to return to China to marry, remained a year or two and since their wives could not return with them, they’ll come back to the country and perhaps make repeated trips back to China to see their wives and families.

And then as the children grew old enough, the children would then apply for admission as American citizens.

Their wives wouldn’t — their wives wouldn’t be an American citizen and couldn’t come in.

The children would be American citizens by derivation and would be admissible as citizens.

Now, this makes a great difficulty in determining the bona fides of the applications and the immigration officials and the state department people who had to issue passports and travel documents in China became convinced that much of the evidence which was being produced in many of the applicants who were appearing before them were not genuine, and that there was a tremendous fraud being — being operated through filling the possible vacancies that the people who were claimed to have been born with other individuals who wished to come to this country.

And so, it was that in 1951, the State Department instituted a program requiring a blood check in order to determine whether or not an applicant was in fact the son of the father whom as he claimed.

The — the program turned up a great number of cases in which the applicant was not the child of the alleged father and the immigration people then undertook the same type of program when the applicants knock for admission at the door here in this country.

And as it was in 1952, just about the time that these petitioners came to New York that the Immigration Service commenced the program of — of requiring blood test.

And because of this history which I have given you, it was not — it’s not strange that the — where they started this program, where they actually made these requirements was in the case of Chinese because it was in the case of Chinese that we have these peculiar circumstances of tremendous pressure for inference and this readymade opportunity for fraud.

Now, at the present time, this program is not in any way limited to Chinese.

There are no instructions, there are no regulations that require it to be applied to Chinese particularly and it is, in fact, applied across the Board to any applicants where paternity is an issue and where this type of testing is appropriate.

Earl Warren:

Mr. Davis, may I ask you in the administrative proceedings and in the court below?

Was this position of the Government frankly taken there to the effect that — that you had required these blood tests only from Chinese, not from others and — and for the reasons that you have mentioned here?

John F . Davis:

No.

Well not, not as a clearly as that, Your Honor.

Earl Warren:

Why not?

John F . Davis:

Well, because even the facts are not as clear as that.

But the position taken was that it was — it was recognized all along, this was primarily a Chinese problem but it was —

Earl Warren:

It was the Chinese that they recognize this, right?

John F . Davis:

Well — and so did the — and so did the expert, Mr. Friedman who testified for the — for the Government.

He — he asserted and he gave the — and the immigration files are not prepared with this blood testing, on the basis of blood testing statistics of it.

He can’t reach and find how many times blood testing was used and how many times it wasn’t.

He, out of his experience, testified as to four cases and only four, but four cases where he said it has been used with non-Chinese applicants.

He was cross-examined with respect to these cases and it seems possible that two of them seems probable indeed that two of them may have been Negroes if that has been of importance.

They weren’t tested because they were Negroes but at least they were not white persons.

So far as I know, that evidence still stands that it was used in some other cases and these four cases were the ones that the witness could testify as to — but the Government never did established that it was used generally in more than these four cases.

Now, originally, the statements were made that the basis was lack of trust.

There’s is no question about that.

That was put in — in an affidavit in response to — to a claim.

Later, the — maybe on reconsideration and consultation with others in the Immigration Service, the testimony in the final hearing was consistent — entirely consistent with the testimony which the position we’re taking today that it was a special situation which required this kind of testing.

That — that is the testimony of Mr. Friedman before the hearing — hearing officer on this question of discrimination.

Earl Warren:

And that the — that they blood tested all Chinese and that they did not blood test anyone else?

John F . Davis:

No.

No and that isn’t the position.

Earl Warren:

Well, you take that position.

John F . Davis:

No, I think —

Earl Warren:

You say very frankly — you say here very frankly we — we’re not a part from Mr. Gim on these facts, we did do this in 1951.

We did blood test only Chinese.

We did not blood test others.

Now, I want — all I want to know is during the course of this proceeding as the Government did in that or have you taken — have they taken below a different position that try to establish that there was no discrimination in that sense if you require the Chinese to have the blood test but not others?

John F . Davis:

Well, they took the position in those hearings that it — that it wasn’t limited to Chinese.

They definitely took the position that it was the circumstances that because it wasn’t limited to Chinese in the hearings before the — before the hearing officers in the Immigration Service.

And my position today is not that it was required of all Chinese or that there were no Chinese that were exempted.

My position is instead that with few exceptions, I mean it’s the same as it was in that case that primarily, the Chinese is a question of testing and that primarily and that by and large, all of the Chinese under these circumstances were given the test.

Earl Warren:

And no one else?

John F . Davis:

No — well — and by and large no one else but there are cases where it was used with others that were in that case, and that was — and that was argued before the — before the inquiry officer and it’s our position today that — that there were instances where it was used with others.

That is my position today before this Court.

Earl Warren:

To such an extent to make into practice or (Voice Overlap)?

John F . Davis:

No, I wouldn’t say it was the practice, it was the exception.

John F . Davis:

It was the exception.

Earl Warren:

Yes.

John F . Davis:

So that if this isn’t a black and white situation, the situation is today as it was then except that with more consideration of the files and the circumstances, we feel that we cannot make this a broader claim as it was made in that case that it was done across the Board.

In all cases, it wasn’t.

It was done only in exceptional cases with respect to those which were not Chinese.

Felix Frankfurter:

Are you saying it’s your position — it’s the Government’s position to grant the blood testing of Chinese is not a discriminate — is not in fact, I’m not talking about the law, is not in fact a discriminatory classification purposefully directed to Chinese as such, like the Yick Wo case, but that in fact the incidence of the use of effect means for preeminent on the Chinese.

John F . Davis:

That is precisely my position.

Earl Warren:

May I ask this then Mr. Davis?

Did they have — did they have an opportunity to litigate their case on that basis in the administrative proceedings and in the court below?

John F . Davis:

Yes, they did.

Earl Warren:

There was — there’s no question about that?

John F . Davis:

That is right.

Earl Warren:

Yes.

Now, this — just one more question — this report that Mr. Gim mentioned, the consular report, was that similar to the court below?

John F . Davis:

No, that was not (Voice Overlap) court below.

Earl Warren:

And on what theory does it come here then if it — if it would establish lack of discrimination, now why wasn’t it presented below?

John F . Davis:

Well, I don’t think it would have the status of the 1955 so it couldn’t have been prepared that a kind of evidence was taken in the case below.

This is a relatively reason to report.

I do not believe, Your Honor that this is the type of material which is required to be introduced as evidence in the case.

The material in this report has no reference to the particular facts of the particular case.

The material in this report is the — well it’s described in our response to the motion as the climate.

It describes the climate in which this practice took place.

Earl Warren:

It may be the necessity for finger printing — not finger printing but blood testing Chinese and not other people.

John F . Davis:

The truth or falsity of this report is really not an issue.

If it has been introduced, I would not think it would have been properly subject to cross-examination because if every fact in this report were false and make no mistake, I’m not — I’m not conceding falsity in this report but if every fact in this report were false, this was still the basic belief of the immigration people and of the — of the State Department people and the reason — the reason under which the — by reason of which they adopted this blood testing technique.

Earl Warren:

Made four years later.

John F . Davis:

Well, this — that — that’s right.

They didn’t do it on the basis of this report but these are the — this is the description of the practices which they had in mind.

This report is no different than making reference to other current materials which described the — the matters on which you may take judicial notice.

It’s — well, it’s different and that it is an official government report and therefore carries somewhat more weight but it is a background factual material such as what’s introduced in — in the — in the hours of labor and wage cases in order to — in order to substantiate the reasonableness of limiting hours of — hours of labor for women.

Earl Warren:

Well, there might be a difference here because Mr. Gim said that the Government refused to — at the hearings to state what the — what the practices were and what the orders and directions to the — to the Government offices were so far as these blood tests were concerned.

John F . Davis:

Mr. Friedman who testified at the report at the hearing, testified as to what the practices were and testified that there was no discrimination and there was a full — there was a full hearing on this matter.

What he refused to do was to turn over files or to make available the operating instructions which the field force was suppose to use in testing applicants.

There were no instructions or regulations with respect to exclusion cases.

There were some operating instructions with respect to other types of cases which set forth the — what were called operating instructions.

It was the field methods of testing and it was felt that if there were disclosures made as to what the field members, the officials were told to do in particular instances, that then the applicants would know what to avoid but they weren’t instructions which were directly applicable to this case.

William J. Brennan, Jr.:

Which is to say then that if there are such instructions they were not instructions with such — directly to those who did these things, apply that that’s only for Chinese.

John F . Davis:

Well, they were not instructions which dealt with exclusions, which they dealt with the kind of proceeding which was here involved in the (Voice Overlap) —

William J. Brennan, Jr.:

Were they instructions of the blood test?

John F . Davis:

But there were — but there were instructions with respect to visas and certificates of citizenship.

William J. Brennan, Jr.:

Well, were those instructions as to the blood test?

John F . Davis:

And with respect to — and whether — with respect to blood test and that was one of them which made a reference to the fact that it should be used with Chinese.

It made a specific reference to the Chinese.

William J. Brennan, Jr.:

Did it make — any of them made specific reference to anyone else?

John F . Davis:

No.

I think that the legal issue in this case is whether or not the blood testing which was imposed specifically with respect to Chinese is based upon race prejudice or whether it has a reasonable basis for falsifications apart from race prejudice.

I think that you have to — we have to consider whether this case falls within the line of the Yick Wo case against Hopkins where specifically an act was applied in such a way as to prevent Chinese people from doing — carrying on a business which they would have had a legal right to do when others were permitted to do it or whether this case falls within the kind of situation that occurred during the curfew regulations during the war in China, in the West Coast where the Japanese who have specific laws were passed with respect to the Japanese and those were upheld by this Court.

They were — they were discriminatory and they were applicable to the Japanese as such that the Court in examining the factual background found that there was a reasonable basis other than race prejudice for the application of those — of those rules.

Felix Frankfurter:

Mr. Davis may I ask whether your brief tells how many people are qualified, the total number of persons who sought admission to this country on the claim of citizenship, and secondly, what proportion of that total were people of Chinese variation?

John F . Davis:

No, those figures are not given.

Felix Frankfurter:

Are they —

John F . Davis:

They are given annual reports of the — I think that I can get them from an annual report —

Felix Frankfurter:

Would you that?

John F . Davis:

I would be glad to do that.

Felix Frankfurter:

Going to the last two or three —

John F . Davis:

Yes.

I — I want to call — to make one analogy that I think will make my point clear.

One of the — one of the problems facing immigration — the immigration people, is investigations for health.

The Public Health people make physical examinations in accordance with instructions in order to determine whether applicants for entry have communicable diseases.

Now, the current public health manual, the last one that I saw, provides with respect to amoebic dysentery that special test shall be made of all persons from the rural areas of Japan and Greece.

John F . Davis:

Now, we assume that an applicant for entry from Japan agrees with — were tested for amoebic dysentery and it was found that he had it.

I submit that they would — he would have no basis for claiming that this special test and it is a special test made as to these people was the result of race prejudice or rather it is a result of a determination that this particular test is necessary with respect to these particular applicants because of the circumstances surrounding their application.

William J. Brennan, Jr.:

Well, I gather though, Mr. Davis, present regulation have deleted any reference to Chinese?

John F . Davis:

That’s right.

William J. Brennan, Jr.:

Specifically, right.

John F . Davis:

That is right.

William J. Brennan, Jr.:

What was — what’s the regulation on blood test now?

John F . Davis:

There are no — there are no regulations which deal specifically with where it shall be used.

There is a regulation only in general that it can be required in appropriate cases.

William J. Brennan, Jr.:

That’s all there is to it.

John F . Davis:

That’s all there is.

That’s right.

William J. Brennan, Jr.:

Yes.

John F . Davis:

That’s right.

Earl Warren:

Mr. Gim, do you want to respond?

Benjamin Gim:

Yes, sir.

I may have a few minutes, Your Honor.

Earl Warren:

Yes.

Benjamin Gim:

If I may be permitted to make a reply to the question I believe this Court has addressed to Mr. Davis on whether or not the — what the Government doctor’s position was on the accuracy of his blood test and I believe that it’s found on page 216.

The Government doctor was asked on the one segment of the blood test, the ABO segment which is the simplest part of the blood test and the doctor was asked this question.

Would you be — do you feel on that factor alone being the ABO, you would be prepared to stand by your conclusions even from a medical-legal point of view?

And the doctor replied, “No, I don’t think so”.

Now this is what the — the recognized expert said on the blood test.

Dr. Sussman on page 178, I am questioning the validity or accuracy of this report and on the basis of such, I cannot exclude paternity.

I am not saying that blood testing is not a good way to establish on paternity but on these particular reports, I am loathe to do it because of a feeling that there are inaccuracies which prevent me from establishing these as good evidence of paternity or non-paternity.

Earl Warren:

Now what doctor is that?

Is that the Government doctor?

Benjamin Gim:

That is a private expert used by the Government, Your Honor.

Earl Warren:

Used by the Government, yes.

Benjamin Gim:

Dr. Leon —

Earl Warren:

Yes.

Benjamin Gim:

Dr. Leon Sussman.

Earl Warren:

Yes.

Benjamin Gim:

Yes, sir.

Felix Frankfurter:

He’s the author of that article, isn’t he Mr. Gim?

I mean the one who coauthored that.

Benjamin Gim:

Yes, he’s the coauthor in the article.

Felix Frankfurter:

Same article, is it?

Benjamin Gim:

That is right, Your Honor.

Felix Frankfurter:

Thank you.

Benjamin Gim:

Now, the Court also said on page 47 that these — that the trial court did, the pieces of blood test reports are clouded in inaccuracies and shrouded mystery.

Now, Mr. Davis with commendable candor admitted that at the time the petitioners had blood test in this case, the practice was to ask all Chinese to take blood test and that these blood tests were not extending to other people.

I only regret that the Government counsel below did not have the same degree of candor.

Now, on page 15, this is the pleadings which the Government set in joint issue.

The petitioner charged that blood tests were administered discriminatorily against Chinese only and this is what the Government said in its return.

This is on page 15.

While it is true that such blood grouping test have been requested principally in Chinese cases, these relaters have not been singled out for unusual treatment since such test are uniformly now requested of all applicants for admission who are similarly situated.

Now Mr. Davis cites in response to Mr. Chief Justice Warren’s question as to whether any Chinese were exempted, Mr. Davis said that there were 50 Chinese exempted and I think what Mr. Davis is referring to is page 99 which is the ex parte government affidavits submitted after the decision was in.

I would like to draw the Court’s attention to the fact that on these 40 cases, rather 50 — the latest date of the admission is June 16, 1952.

This is obviously before the blood test program commenced and obviously that 40 Chinese were admitted before the blood test program commenced is totally irrelevant and is no showing that any Chinese were exempted.

I think more significant, however, is that after the decision was in and after the Government took the trouble to dredge up the statistics which they had maintained all along, there were none.

They have failed to show any cases after June, after the petitioners in this case were blood tested.

They have failed to show a single case of a Chinese exemption.

I think that is more significant.

Now, Mr. Davis also mentioned that there’s a great difficulty in these case because the Chinese make a habit of going back and be getting shown abroad.

Now, on our — in our reply affidavit on page 8, we have pointed out that the Chinese are not alone in this practice for instance in — from the immigration annual report of 1954, foreign-born children from Italy, numbered 2,736 as compared to only 336 from China.

Now, a passing comment on this Hong Kong report that I — the petitioners submit that the Court may not take judicial notice of it because it’s not an official published report.

It apparently was classified at one time.

It certainly disputable, it was never made accessible to the public.

It was never printed by the government printing office.

Benjamin Gim:

It is not entitled to the same status as an official report of which this Court can take judicial notice.

Felix Frankfurter:

I should have taken out of Mr. Davis’ time.

I see on top unclassified and I assume that that was the classification of — it had at the time it was — on December 9th, 1955, you just said something that disturbs me a little bit.

It was classified?

Benjamin Gim:

Well I — I (Voice Overlap) —

Felix Frankfurter:

I mean, it wasn’t unclassified for purposes of this argument, was it?

Benjamin Gim:

I don’t know, Your Honor.

I don’t know from whence this report came.

Just one closing comment, Mr. Davis says that the issue was really whether or not there is a reasonable basis admitting that blood testing, for a specific period of time, was limited to Chinese.

The petitioners submit that the reasonable basis was never an issue advanced by the Government, that the Government’s sole reliance in the trial court below was that blood tests were extended to other people.

They had never raised the issue of whether or not this was a reasonable justification.

Now, petitioners submit that the issue of reasonable justification is not before this Court and especially in cases involving racial discrimination, the classification has to be more than reasonable.

I think this Court has enunciated that racial discrimination is odious and are foreign to our institutions and there must be a compelling justification and exceptional circumstances.

This, we submit, the Government has failed to do.

Thank you.

Earl Warren:

Mr. Davis, would you answer Justice Frankfurter’s question as to whether this was once classified and then declassified?

John F . Davis:

I have no specific information that it was ever — whether it was ever classified or not but the distribution which appears, the last paragraph on the facing page provides for a general distribution, not a general distribution but for a distribution to places outside of the State Department and to many offices.

And I — I would doubt that it was ever classified.

Felix Frankfurter:

But you can answer if I take it explicitly that it was not unclassified for purposes abused by the Government (Voice Overlap) argued.

John F . Davis:

That is quite right.

It was not declassified.

Hugo L. Black:

Declassified, I mean declassified.

Could I ask one question?

John F . Davis:

Certainly, sir.

What extent did those statements of facts in your brief (Inaudible)?

John F . Davis:

The statement of facts in our brief.

You relied on (Inaudible)

John F . Davis:

I think we have referred to the report once or twice, very little that we’ve relied on it in our brief as they’ve come to it — referred to report at one — at one place and I think it was obviously referred to the report if it were — if it were relying on it.

It’s what I understand.

John F . Davis:

Most of it — most of it comes form the testimony of Mr. Friedman at the hearing most of the materials in the brief.

What I’m getting out of this frankly, assuming that one does not wish to rely on this report or look at it (Inaudible) not to rely on anything in this report?

John F . Davis:

Mr. Justice Harlan, I have to check particularly all the statements in the brief and in order to answer that categorically.

I think — my belief is that except for the footnote that describes the report in one place where there is a reference to the report later on in the brief where it is identified.

I think that the information comes from Mr. Friedman’s testimony rather than this report in the proceedings, but I would — I would want to check carefully before I have to rely on that statement.

Earl Warren:

Mr. Davis, would you be good enough to determine if this was classified at one time and if declassified to the extent that it has been when?

William J. Brennan, Jr.:

Mr. Davis, may I ask one last question?

I don’t know if you really answered it.

Would you suggest that the justification is where having filed that in the Court?

John F . Davis:

I have filed that so that you may the information as to the background material or so that you may take judicial notice of it and we do it the same — in the same way that I would make a reference to it if it were readily available to you in the brief for you to find it in the library.

I — I file this as material which it is appropriate for you to take judicial notice of, and for your convenience, I’ll give you a copy of it.

Felix Frankfurter:

I take it — I take it if you suggest that if this has been forwarded to Congress and put it as a public document, the question wouldn’t arise, is that right?

This has been a congressional document.

I suppose you could turn to it.

I don’t know — I’m not saying for what the purposes or what it proves.

John F . Davis:

Maybe no one would have objected.

I would think it would not change the nature of the document to do it.

Felix Frankfurter:

That is the question, isn’t it?

John F . Davis:

That’s right.

Felix Frankfurter:

I haven’t had any doubt that if it were a congressional document if you looked at it.

John F . Davis:

That’s right.

Felix Frankfurter:

It’s just (Inaudible)

Earl Warren:

Well, could you answer this question, Mr. Davis?

Is there anything in that report that has not been available to the petitioner on his way up to this Court?

John F . Davis:

I — I just can’t answer that, Your Honor.

I don’t know whether — this report itself has been available to him if he had the part — if he knew about it and if he asked for it whether the information — all of the information —

Earl Warren:

Well, of course it was only written a year or so?

John F . Davis:

That’s right but I mean since it was written.

Earl Warren:

Yes, but I’m talking about the information in there.

Did he put in there any information that would help the cause of the Government in this Court that was not available to him?

John F . Davis:

As to the details, I do not know how much they had available to them.

John F . Davis:

Generally speaking in this — and I’m sorry to speak in generalities but it’s all that I can do.

The — the situation described in this report is the same situation which has been testified to in District Courts as referred to in several District Courts in California.

The — the general situation which is described in particular in this report has been received wide notoriety.

This in — there is —

Felix Frankfurter:

Made before or since the report?

John F . Davis:

Before and since.

Felix Frankfurter:

Well, I assume (Voice Overlap) —

John F . Davis:

But before —

Felix Frankfurter:

I assume that a fact document like this submitted by the consul general at Hong Kong, where the closing paragraph to which you’ve called attention that it should be made available to all its agencies of the Government must have contained something and not be merely an anchor of well known facts.

John F . Davis:

Well, it’s certainly a particular documentation of — of a situation which has been described by witnesses in the courts and is referred to in their opinions.

I mean the District Courts in California have in dealing with this problem have described the same thing.

Perhaps not in this great detail but have described the same thing which is described in this document in several cases which are referred to in our brief.

Earl Warren:

Thank you.