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07/02/53 Tom We Shung v. Brownell Et Al.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


July 2, 1953

TOM WE SHUNG

v.

BROWNELL ET AL. 1953.CDC.78 DATE DECIDED: JULY 2, 1953

Before WILBUR K. MILLER, PROCTOR and FAHY, Circuit Judges.

UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT.

Writ of Certiorari Granted Oct. 19, 1953, See 74 S. Ct. 70, Judgment Vacated Dec. 7, 1953.

PER CURIAM.

Tom We Shung, appellant, is an alien born in China. He sought entry into the United States under authority of Act of Dec. 28, 1945, c. 591, § 1, 59 Stat. 659, 8 U.S.C. § 232 (1946 ed.), U.S.Code Cong. Service 1945, p. 634, *fn1 upon the claim that he was a minor child of one Tom Wing, an honorably discharged veteran of World War II with United States citizenship. Admission was denied Shung upon the ground, as determined by a Board of Special Inquiry, that he had failed to satisfactorily establish his alleged relationship with Tom Wing. Suit was then filed in the District Court for a review under the Administrative Procedure Act, 60 Stat. 237, 5 U.S.C.A. § 1001 et seq., and for a declaratory judgment *fn2 that the hearing before the Board of Special Inquiry was unfair and void; and that Tom We Shung is the blood son of Tom Wing and so admissible to the United States.

In the course of hearings before the three-member Board of Special Inquiry its personnel was changed between hearings by substitution of one Immigration Inspector for another, and by substitution of a secretary, or clerk-stenographer, in place of another of the same rank. However, the members making final determination were familiar with all the evidence and no objection was raised to the changes either at the hearings or at any stage of the administrative proceedings.

On this appeal appellant repeats contentions unsuccessfully urged in the District Court. They involve composition of the Board, legal incompetency of its members, changes in its personnel during the hearings, and sufficiency of the evidence to support the decision and order of exclusion, from which it is argued that the proceedings were unfair and a legal nullity. These questions are fully dealt with by District Judge Keech in an opinion reported in 1952, 103 F.Supp. 507. We agree with his conclusions (1) that the Board was properly constituted, if not, that failure to make timely objection to its composition rendered the point unavailable now, *fn3 (2) that the hearings by the Board were fair and its decision sufficiently supported by the evidence.

The recent decision of the Supreme Court in Heikkila v. Barber, 1953, 345 U.S. 229, 73 S. Ct. 603, may suggest a serious question as to the right of judicial review of an exclusion order except by the limited process of habeas corpus. However, as appellant has been accorded the benefit of a full review and questions concerning validity of the administrative proceedings have been considered and resolved against him, it is unnecessary for us to consider the question now.

Affirmed.


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