Hom Sin v. Esperdy

• Decision Date: 27 September 1962
• Citation: 209 F. Supp. 3
• Parties: HOM SIN, Plaintiff, v. P. A. ESPERDY, District Director of Immigration and Naturalization for the District of New York, Defendant.
• Court: U.S. District Court — Southern District of New York

209 F. Supp. 3

HOM SIN, Plaintiff, v. P. A. ESPERDY, District Director of Immigration and Naturalization for the District of New York, Defendant.

United States District Court S. D. New York.

September 27, 1962.

Benjamin Gim, New York City, for plaintiff.

Robert M. Morgenthau, U. S. Atty., for the S. D. of New York, for defendant; Roy Babitt, Sp. Asst. U. S. Atty., S. D. of New York, of counsel.

METZNER, District Judge.

Defendant moves for summary judgment in this action for a declaratory judgment seeking to review an order of the District Director of the Immigration and Naturalization Service directing the deportation of plaintiff to Hong Kong pursuant to a warrant of deportation.

Plaintiff is a Chinese crewman who overstayed his shore leave permit. He was apprehended and given a hearing which resulted in an order of deportation. Plaintiff admittedly is deportable. At his hearing plaintiff designated the mainland of China as the "country" to which he desires to be deported. Concededly, defendant made no inquiry of the authorities on the mainland of China to determine if the latter would accept plaintiff.

Inquiry, however, was made of the Nationalist Chinese Government on Formosa, which this country recognizes as the government of China, as to whether it would admit plaintiff. After a negative answer to this request was received, inquiry was made of the authorities in Hong Kong, who authorized entry there. These inquiries were made pursuant to the procedures set forth in section 243(a) of the Immigration and Nationality Act (8 U.S.C.A. § 1253(a) ), which must be followed by the Attorney General in effecting the deportation of an alien. Step No. 1 of section 243(a) provides that the alien shall be deported to a country designated by him if that country is willing to accept him. If the alien fails to make a designation or if he does so and the designated country fails to advise that it will accept him into its territory, then the Attorney General must take Step No. 2. Step No. 2 contemplates the deportation of an alien to the country of which he is a subject national or citizen if such country is willing to accept him. If such country fails to advise that it will accept him, then deportation shall be effected as provided by Step No. 3. Step No. 3 allows for deportation to any one of seven categories of countries within the discretion of the Attorney General.

After receipt of the acceptance from Hong Kong, defendant notified plaintiff that he would be given ninety days within which to obtain acceptance of his entry into the China mainland pursuant to Step 1 of the procedures, in default of which he would be deported to Hong Kong. Plaintiff admittedly made no effort to gain admission to the mainland. At the expiration of the ninety-day period, an order of deportation to Hong Kong was issued, and it is this order which plaintiff seeks to have reviewed.

The issue presented is whether under section 243(a) the government is obliged to make inquiry of the country designated by the alien, as to his acceptability for deportation to that country, or whether the government may impose that burden upon the alien. The pertinent portions of section 243(a) read as follows:

"The deportation of an alien in the United States provided for in this chapter * * * shall be directed by the Attorney General to a country promptly designated by the alien if that country is willing to accept him into its territory * * *. If the government of the country designated by the alien fails finally to advise the Attorney General within three months following original inquiry whether that government will or will not accept such alien into its territory, such designation may thereafter be disregarded."

The mainland of China is considered a country for purposes of section 243(a). United States ex rel. Leong Choy Moon v. Shaughnessy, 218 F.2d 316 (2d Cir. 1954).

Our government does not "recognize" the authorities on the mainland as the government of China and states that it is unable to communicate with them. However, the statute contemplates communication prior to deportation because deportation may not be effected unless the country "is willing to accept him into its territory". United States ex rel. Tom Man v. Murff, 264 F.2d 926 (2d Cir. 1959); Lu v. Rogers, 164 F.Supp. 320 (D.D.C. 1958), aff'd, 104 U.S.App.D.C. 374, 262 F.2d 471 (D.C.Cir. 1958); see United States ex rel. Leong Choy Moon v. Shaughnessy, supra, 218 F.2d at 319.

In both the Lu and Man cases, supra, the alien did not wish to go to the China mainland, but that country was designated as the destination of the alien by the Attorney General without first having obtained the consent of the authorities on the mainland. The orders were found invalid on the ground that acceptance from the mainland was a necessary prerequisite to deportation. These decisions were made despite the argument that our government does not recognize the authorities on the mainland and that to compel inquiry would be "to invade the prerogative of the Executive Department by compelling it to do something that would, or might be, deemed a `recognition of' the Communist Government." United States ex rel. Tom Man v. Murff, supra, 264 F.2d at 928. The court answered this argument by stating:

"Nor can we agree that it would be any greater `recognition' of the de facto government of China to secure his acceptance after a preliminary inquiry, than to do so without any inquiry." 264 F.2d at 928.

In United States ex rel. Wong Kan Wong v. Esperdy, 197 F.Supp. 914 (S. D.N.Y.1961), the alien had designated the China mainland as the country to which he wished to be sent in the event that he were ordered deported. Again, the government was faced with its policy of "nonrecognition" and arranged for the authorities in Hong Kong to accept the alien and transport him to the mainland of China. This was done to facilitate deportation to the country designated by the alien. There is no showing that the Hong Kong authorities...