Ng Kam Fook v. Esperdy
| Decision Date | 19 February 1962 |
| Docket Number | 62 Civ. 191. |
| Citation | 209 F. Supp. 637 |
| Parties | NG KAM FOOK, Plaintiff, v. P. A. ESPERDY, as District Director of Immigration and Naturalization Service, New York District, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Abraham Lebenkoff, New York City, Jules E. Coven, New York City, of counsel, for plaintiff.
Robert M. Morgenthau, U. S. Atty. for Southern District of New York, Roy Babitt, Sp. Asst. U. S. Atty., Southern
District of New York, of counsel, for defendant.
Defendant moves for summary judgment in this action for a declaratory judgment which seeks to review an order of the District Director of the Immigration and Naturalization Service, directing the deportation of the plaintiff to Hong Kong pursuant to a warrant of deportation.
Plaintiff is a Chinese seaman who jumped ship and, after a hearing, was ordered deported. Upon the issuance of the warrant of deportation, the plaintiff requested a stay pursuant to section 243 (h) of the Immigration and Nationality Act, on the ground that he would be subject to persecution if returned to the mainland of China. The stay was granted. He then applied for a special non-quota visa pursuant to 8 U.S.C.A. § 1255 (b), in which application he again claimed that he would be subject to persecution if returned to the Chinese mainland. This application was denied.
Section 243(a) of the Immigration and Nationality Act (8 U.S.C.A. § 1253(a)) sets forth the procedures that must be followed by the Attorney General in effecting the deportation of an alien. Step No. 1 provides that the alien shall be deported to a country designated by him if that country is willing to accept him. 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 refuses to accept the alien, then deportation shall be effected as provided by Step No. 3. Step No. 3 allows for deportation to any one of 7 categories of countries within the discretion of the Attorney General.
The plaintiff has not indicated a country to which he desires to be deported. The Service has not made inquiry of the authorities on the Chinese mainland to see if they would accept plaintiff. Plaintiff claims that he is a subject national of the Chinese mainland and therefore his deportation may not be effected to Hong Kong because of failure to make this inquiry.
In United States ex rel. Tom Man v. Murff, 264 F.2d 926 (2d Cir. 1959), the...
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...to some other country (see Step 2 above). This defense was overruled. Chu Lam v. Esperdy, 209 F.Supp. 1, S.D.N.Y., 1962; Ng Kam Fook v. Esperdy, 209 F.Supp. 637, S.D.N.Y., 1962; Leong Leun Do v. Esperdy, 197 F.Supp. 604 (S.D.N.Y. 1961). Now they designate Communist China as the place to whi......
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