Ng Yip Yee v. Bruce G. Barber, District Director Immigration and Naturalization Service

This is an appeal from a decision of the district court in a habeas corpus proceeding in which appellant, the applicant for the writ, sought to have set aside the decision of the Immigration and Naturalization Service that he is not a citizen of the United States. Inter alia, is the contention that the special inquiry officer applied the wrong burden of proof.

The special inquiry officer’s burden of proof as stated by him is: “The rule is that the proof of alleged citizenship must be clear and convincing, Lee Sim v. United States, 2 Cir., 1918, 218 F. 432, 435 ; Ex parte Chin Him, D.C. W.D.N.Y.1915, 227 F. [131] 133. Since I find the evidence presented in support of the applicant’s cause to be neither satisfactory, nor clear, nor convincing, he has not sustained his burden of proof and his application for admission should be denied. * * *”

The special inquiry officer’s decision if in favor of the applicant is final, the Immigration Service having no right to appeal to the Board of Immigration Appeals. 8 U.S.C.A. § 1226 (c). If adverse to the applicant he may appeal, § 1226 (b), and make an oral argument on the legality of the special inquiry officer’s decision, § 6.1(e) of Title…