309 F.2d 467 (2nd Cir. 1962), 345, Leong Leun Do v. Esperdy

Docket Nº:345, 27295.
Citation:309 F.2d 467
Party Name:LEONG LEUN DO a/k/a Wing Sang, Appellant, v. P. A. ESPERDY, District Director of Immigration and Naturalization for the District of New York, Appellee.
Case Date:September 28, 1962
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 467

309 F.2d 467 (2nd Cir. 1962)

LEONG LEUN DO a/k/a Wing Sang, Appellant,

v.

P. A. ESPERDY, District Director of Immigration and Naturalization for the District of New York, Appellee.

No. 345, 27295.

United States Court of Appeals, Second Circuit.

Sept. 28, 1962

         Argued May 3, 1962.

Page 468

         Benjamin Gim, New York City, for appellant.

         Robert M. Morgenthau, U.S. Atty., S.D.N.Y. (Roy Babitt, Special Asst. U.S. Atty., of counsel), for appellee.

         Before LUMBARD, Chief Judge, and WATERMAN and FRIENDLY, Circuit judges.

         WATERMAN, Circuit Judge.

         By this appeal appellant raises several issues under the Refugee Relief Act of 1953, § 6, 67 Stat. 403 (1953), as amended, 68 Stat. 1044 (1954), 50 U.S.C.A.Appendix, § 1971d, 1 and the Immigration and Nationality Act of 1952, § 243(a), 6 Stat. 212, 8 U.S.C.A. § 1253(a). 2

         Appellant is a native and citizen of China. He engaged in the currency exchange business in that country from 1934 to 1949; but in the latter year, fearing persecution at the hands of the

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Communists, he fled to the Dominican Republic, entering that country on a merchant's visa. He stayed in the Dominican Republic for eleven months, until July 1950. That month he entered the United States as a non-immigrant visitor on a three month permit for the purpose of winding up the affairs of his deceased brother. When he entered this country he possessed a permit from the Dominican Republic giving him the right to re-enter that country if application for re-entry were made within the time limits stated in the permit, and he possessed an airlines return ticket. He remained in the United States beyond the three months' period, his Dominican Republic re-entry permit expired, and the Immigration and Naturalization Service commenced deportation proceedings against him in 1951. At the deportation hearing a Special Inquiry Officer of the Immigration and Naturalization Service concluded that appellant was deportable, and the Board of Immigration Appeals affirmed that decision, but to date he has remained here.

         In 1953, to aid persons fleeing from countries taken over by the Communists, Congress passed the Refugee Relief Act of 1953. Two years later appellant applied for adjustment of his status in this country to that of a permanent resident under section 6 of that act. See note 1 supra. The Special Inquiry Officer who considered this application denied it for he found on the evidence that the applicant's last foreign residence was in the Dominican Republic and that the applicant had made no showing that he was unable to return to that country on account of persecution or fear of persecution because of race, religion, or political belief. The Acting Regional Commissioner approved the recommendation of the Special Inquiry Officer, and the Immigration Service prepared to deport appellant.

         Appellant had elected no country to which he wished to be sent in the event of deportation, and so the Immigration Service, under section 243(a) of the Immigration and Nationality Act of 1952, see note 2 supra, asked the Republic of China (Formosa), the Dominican Republic, and the British Crown Colony of Hong Kong whether any of them would accept appellant. The Service did not ask the government on the Chinese mainland. The first two governments contacted refused to accept him, but Hong Kong consented, and he was ordered deported there.

         Appellant then brought the present action in the United States District Court for the Southern District of New York as as to obtain judicial review of the order of the Immigration and Naturalization Service denying his application for adjustment of status under the Refugee Relief Act of 1953 and of the subsequent order of the Service directing that he be deported to Hong Kong. The defendant moved for summary judgment, which was granted by the court. The court held, first, that the administrative finding that appellant's last residence was in the Dominican Republic was supported by substantial evidence; second, that as appellant failed to demonstrate that the reason for his inability to return to the Dominican Republic was persecution or fear of persecution, he could not obtain the benefit of the Refugee Relief Act of 1953; and, third, that the Immigration Service was not obligated to ask Communist China to accept appellant before the Service was entitled to deport him to Hong Kong. On appeal from that decision appellant seeks to have us review the action the court below took on each of these three issues.

         We shall turn first to a resolution of the seconde issue, whether appellant's inability to return to the Dominican Republic for reasons other than fear of persecution precludes him from obtaining the benefit of the Refugee Relief Act of 1953, § 6. Inasmuch as our answer to that issue is determinative of the appeal, we would not be warranted in reversing the finding of the Immigration Service that appellant's 'last residence' was in the Dominican Republic. The Government

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asks us to interpret the language of Section 6 'unable to return to the country of his birth, or nationality, or last residence, because of fear of persecution' to mean that appellant, in order to obtain the benefits of the Act, must show that he is unable to go to the three countries referred to in the statute and that his inability to go to each one of them is caused by persecution or fear of persecution. Appellant, on the other hand, seeks to have us adopt the interpretation which the Court of Appeals for the Ninth Circuit reached and applied in Cheng Lee King v. Carnahan, 253 F.2d 893 (9 Cir.1958). In that case a merchant seaman, a Chinese national, born in China but with a 'last residence' in Singapore, sought permanent residence under the Refugee Relief Act of 1953, § 6, alleging a fear of persecution in China and an inability to return to Singapore for a different reason. The Ninth Circuit held that the statutory language permits relief to be given to an alien applicant who demonstrates that he is unable to return to any one of the three countries because of persecution or fear of persecution, and also demonstrates an inability, for whatever reasons, to return to the others.

         The Refugee Relief Act of 1953 was enacted mainly to provide admission into this country for about 240,000 persons who had fled from Communist governments and were living abroad in desperate conditions. Section 3 of the act, 67 Stat. 401 (1953), 50 U.S.C.A.Appendix, § 1971a (1958), authorized the issuance of 205,000 special nonquota immigrant visas for those aliens and an additional number of such visas for their spouses and dependents. Section 4, 67 Stat. 401 (1953), 50 U.S.C.A.Appendix, § 1971b (1958), allotted these visas among refugees having various ethnic origins. Section 2(a), 67 Stat. 400, 50 U.S.C.A.Appendix, § 1971(a), defined 'refugee' as follows:

         '(a) 'Refugee' means any person in a country or area which is neither Communist nor Communist-dominated, who because of persecution, fear of persecution, natural calamity or military operations is out of his usual place of abode and unable to return thereto, who has not bee firmly resettled, and who is in urgent need of assistance for the essentials of life or for transportation.'

         Section 6, with which the present case is primarily concerned, was intended to grant relief to a rather small group of not more than 5000 persons who had entered this country as bona fide non-immigrants and were stranded here because of persecution at home. 3 It was the purpose of this relatively insignificant provision of the act to extend refugee relief to those aliens stranded in the United States who would have come within the other provisions of the act if they had been refugees abroad. The House Report to the 1953 act stated:

         Section 6

         'The proposed adjustment of status of aliens who would fall within the refugee categories specified in section 4 except for the fact that they are now in the United States, having entered lawfully in a temporary nonimmigrant status, represents the committee's belief that relief should be granted to bona fide temporary residents, if aliens in situations identical to theirs are to be permitted to avail themselves of newly offered immigration opportunities.' H.R.Rep.No.974, 83d Cong., 1st Sess. 18 (1953), U.S.Code Congressional and Administrative News 1953, p. 2103.

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          An alien lawfully present in the United States in the temporary status of a non-immigrant visitor is a person entitled to seek the relief afforded by section 6, if 'he is unable to return to the country of his birth, or nationality, or last residence, because of persecution or fear of persecution * * *.' Thus, without according to any one of the three countries a priority over the other two, the statute refers to the country of the applicant's birth, the country of his nationality, and the country of his last residence. If the present case involved an applicant's inability, because of a non-persecutory reason, to return to the first-mentioned country, that of his birth, instead of inability, for a non-persecutory reason, to return to the third-mentioned country, that of his last residence, it seems clear that the applicant would be eligible for section 6 relief if he could not return to his last residence because of fear of persecution there. Regardless of his place of birth or of nationality, a person who is fleeing from persecution in the country of his last residence and who is present on a temporary basis in a displaced persons' center, or anywhere else in the world in a country not that of his last residence, would obviously be a refugee within the spirit and the letter of the Refugee Relief Act. In the words of...

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