Opinion
No. 67-621.
December 15, 1967.
Kwan Cohen, by Hiram W. Kwan, Los Angeles, Cal., for petitioner.
Wm. Matthew Byrne, Jr., U.S. Atty., Frederick M. Brosio, Jr., Asst. U.S. Atty., Chief, Civ. Div., and Carolyn M. Reynolds, Asst. U.S. Atty., by Carolyn M. Reynolds, Los Angeles, Cal., for respondent.
Decision Dissolving Restraining Order and Permitting Deportation to Hong Kong
This matter comes before the Court now upon Respondent's Motion for order dissolving the Court's restraining order of August 23, 1967 which has prevented Respondent from deporting Petitioner pending further hearing and order by this Court.
Sui Fung Luk v. Rosenberg, 271 F. Supp. 485 (C.D.Cal. 1967).
In the order of August 23, 1967, the Court directed that the Respondent grant Petitioner a further hearing on his allegation of fear of persecution if deported to Hong Kong, pursuant to one or the other of the following two sets of provisions of the Immigration and Nationality Act of 1952 as amended and the Code of Federal Regulations 489:
(1) Section 243(h) of the Immigration and Nationality Act of 1952, as amended 8 U.S.C. § 1253(h), 8 C.F.R. § 243.4, as interpreted and applied in United States ex rel. Szlajmer v. Esperdy, 188 F. Supp. 491 (S.D.N.Y. 1960);
Sui Fung Luk v. Rosenberg, 271 F. Supp. 485, 490 (C.D.Cal. 1967).
or
(2) Section 212(d)(5) of the Immigration and Nationality Act of 1952 as amended, 8 U.S.C. § 1182(d)(5), 8 C.F.R. § 253.1(e), as interpreted and applied in Glavic v. Beechie, 225 F. Supp. 24 (S.D.Tex. 1963), aff'd 340 F.2d 91 (5th Cir. 1964).
After the decision in Sui Fung Luk, supra, notes 1 and 2, and prior to the District Director's decision now before the Court, Section 253.1 of 8 C.F.R. was recodified and amended and the substance of Section 253.1(e) was moved to and became new Section 253.1(f) in the following language:
"(f) Crewmen alleging persecution. Any alien crewman refused a conditional landing permit or whose conditional landing permit has been revoked who alleges that he cannot return to a Communist, Communist-dominated or Communist-occupied country because of fear of persecution in that country on account of race, religion or political opinion shall be removed from the vessel or aircraft for interrogation. Following the interrogation, the district director having jurisdiction over the area where the alien crewman is located may in his discretion authorize parole of the alien crewman into the United States under the provisions of section 212(d)(5) of the Act. If parole is not authorized, the crewman shall be returned to the vessel or aircraft on which he arrived in the United States."
The Court made the following further order:
"Regardless of whether the hearing is conducted on the one hand pursuant to 8 C.F.R. § 243.4 to determine if petitioner is entitled to a stay of deportation, or on the other hand pursuant to 8 C.F.R. § 253.1(e) [now (f)] to determine if petitioner should be paroled into the United States, because of his fear of persecution, petitioner in either event shall be granted a hearing which conforms to constitutional due process. He shall be given notice of the hearing, an opportunity to be heard and his attorney shall be `allowed to present every shred of evidence at his command' to support his allegations. Glavic v. Beechie, supra, 225 F. Supp. at page 27."
In support of the Motion to dissolve the Court's order restraining the Immigration and Naturalization Service from deporting Petitioner, the District Director of the Service has produced a certified copy of the Administrative Record, including his decision (see Appendix hereto) upon the hearing which, pursuant to the Court's order of August 23, 1967, he elected to afford Petitioner under the second of the two alternatives offered by the Court, namely § 212(d)(5) of the Immigration and Nationality Act of 1952 as amended, 8 United States Code 1182 (d)(5), 8 C.F.R. § 253.1(e) [now (f)], as interpreted and applied in Glavic v. Beechie, 225 F. Supp. 24 (S.D.Texas 1963) aff'd 340 F.2d 91 (5th Cir. 1964).
Following the hearing Respondent issued his written decision denying Petitioner's application for parole into the United States under 8 C.F.R. § 253.1(f) [formerly (e)] and affirmed his deportation to Hong Kong on two grounds:
1. That 8 C.F.R. § 253.1(f) by its own terms limits its benefits to an alien crewman who alleges that he cannot return to a Communist, Communist-dominated, or Communist-occupied country because of fear of persecution, and that the British Crown Colony of Hong Kong is not such a country.
2. That even if Hong Kong were a Communist country, the Petitioner failed to establish that his deportation to Hong Kong would subject him to persecution or fear of persecution.
From study of the record and decision upon the administrative hearing, and after full argument, it is clear that the Petitioner has had "a hearing which conforms to constitutional due process"; he has been "given notice of the hearing and an opportunity to be heard"; and his attorney has been "allowed to present every shred of evidence at his command" to support his allegations. Glavic v. Beechie, 225 F. Supp. 24, 27 (S.D.Tex. 1963) aff'd 340 F.2d 91 (5th Cir. 1964). It is noted, moreover, that in addition to his attorney, Petitioner had present an interpreter and his employer.
The decision of the Respondent is supported by substantial evidence in the record. That Hong Kong is not a Communist, Communist-dominated, or Communist-occupied country as required by the regulation is obvious. On the contrary, it is a British colony and a favorite American tourist spot. Although this would be sufficient reason to deny Petitioner's application, the Respondent also analyzed the testimony and evidence presented by the Petitioner and found that it did not establish persecution or fear of persecution if Petitioner were deported to Hong Kong.
Petitioner testified as to his anti-communist activities from 1940-1946 when he was a member of the Nationalist Guerrilla Force in China. Thereafter he moved to Hong Kong and worked as a cook until 1955. Then he worked as a crewman. He stated that he has a common-law wife and three children living in Hong Kong to whom he sends money. Although he mentioned fear of persecution if returned to China, there is no evidence or testimony to show that he or his family ever suffered or will suffer persecution in Hong Kong.
The affidavit of Mrs. I. Tao Fong states that Petitioner's life is threatened because of the presence of the Communist underground in Hong Kong. But this is pure speculation, unsupported by any evidentiary facts, and is conclusively controverted by Petitioner's admission that he lived and worked in Hong Kong from 1942 to 1962 without any assertion or even intimation that he had anything but a normal life during that time.
Based upon the certified record and all the facts adduced at the administrative hearing, the Court must necessarily find and conclude that the Petitioner has been afforded due process and that the Order of August 23, 1967 should now be dissolved, unless there is some validity to Petitioner's claim that he is entitled to a hearing before a special inquiry officer, pursuant to 8 U.S.C. § 1253(h), instead of or in addition to the hearing he actually received before the District Director, Respondent herein.
In United States ex rel. Kordic v. Esperdy, 386 F.2d 232 (2d Cir. Nov. 8, 1967) the Second Circuit confronted an almost identical situation in which two alien crewmen (man and wife) who had been paroled under permit and then failed to return to their Yugoslavian ship, alleged they could not return to Yugoslavia without being subject to persecution and claimed they were entitled to a hearing before a special inquiry officer under 8 U.S.C. § 1253(h), rather than before the District Director under 8 U.S.C. § 1182(d)(5). The Court affirmed the District Court's decision that this type of District Director hearing under 8 U.S.C. § 1182(d)(5) was the proper one to be granted to the alien crewmen and that the District Director's determination that they would not be subject to persecution if deported was supported by substantial evidence. See also Leng May Ma v. Barber, 357 U.S. 185, 78 S.Ct. 1072, 2 L.Ed.2d 1246 (1958) which teaches that when a paroled alien alleges threat of political persecution upon deportation he is not entitled to a hearing under 8 U.S.C. § 1253(h) since he is not "within the United States" as required by that Section.
Moreover, as we hold here, the Court held in United States ex rel. Kordic v. Esperdy, supra, that the treatment which the alien crewmen received in the District Director hearing under 8 U.S.C. § 1182(d)(5) not only met with all of the requirements of procedural due process, Glavic v. Beechie, 225 F. Supp. 24, 27 (S.D.Tex. 1963) aff'd 340 F.2d 91 (1964), but constituted a procedure which was "essentially fair". United States ex rel. Dolenz v. Shaughnessy, 200 F.2d 288 (2d Cir. 1952), cert. denied, 345 U.S. 928, 73 S.Ct. 780, 97 L.Ed. 1358 (1953); Maggiore Bakery, Inc. v. Esperdy, 238 F. Supp. 374 (S.D.N.Y. 1964); cf. Marcello v. Bonds, 349 U.S. 302, 75 S.Ct. 757, 99 L.Ed. 1107 (1955).
Concluding as we do that the District Director followed the correct hearing procedure under 8 U.S.C. § 1182 (d)(5), and made his decision upon substantial evidence, the Court has this date signed and entered formal Findings of Fact, Conclusions of Law, Judgment and Order, submitted by Counsel for Respondent District Director, dissolving the restraining order of August 23, 1967, thereby permitting Petitioner to be deported to Hong Kong forthwith.