317 F.2d 180 (D.C. Cir. 1963), 16996, Lee Wei Fang v. Kennedy

Docket Nº:16996, 16997.
Citation:317 F.2d 180
Party Name:LEE WEI FANG et al., Appellants, v. Robert F. KENNEDY, Attorney General of the United States, Appellee. WANG SIANG-KEN et al., Appellants, v. Robert F. KENNEDY, Attorney General of the United States, Appellee.
Case Date:March 25, 1963
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 180

317 F.2d 180 (D.C. Cir. 1963)

LEE WEI FANG et al., Appellants,

v.

Robert F. KENNEDY, Attorney General of the United States, Appellee.

WANG SIANG-KEN et al., Appellants,

v.

Robert F. KENNEDY, Attorney General of the United States, Appellee.

Nos. 16996, 16997.

United States Court of Appeals, District of Columbia Circuit.

March 25, 1963

Argued Dec. 3, 1962.

Page 181

Mr. David Carliner, Washington, D.C., with whom Mr. Jack Wasserman, Washington, D.C., was on the brief, for appellants.

Mr. Paul A. Renne, Asst. U.S. Atty., with whom Messrs. David C. Acheson, U.S. Atty., Nathan J. Paulson, Asst. U.S. Atty. at the time the brief was filed, and Gil Zimmerman, Asst. U.S. Atty., were on the brief, for appellee.

Before WASHINGTON, BASTIAN and WRIGHT, Circuit Judges.

WASHINGTON, Circuit Judge.

These are deportation cases, involving the special problems of the Government in dealing with persons of Chinese origin. All the plaintiffs-appellants, thirty-four in number, were born on the mainland of China prior to the time that the Chinese Communists drove out the Nationalist Chinese Government recognized by the United States as the legal government of China. All appear to have left the mainland of China for Taiwan or Hong Kong some years before their entry into the United States, and none came to the United States from the Chinese mainland. All, except one who was admitted to the United States on a six months visitor's visa, were non-immigrant seamen admitted to the United States for the period their vessel was

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in port, not to exceed twenty-nine days. All admit that they remained in the United States beyond the time allowed them, and all concede that they are deportable. The cases were presented to us on the basis that none of them had exercised the privilege given in the governing statute of designating the country to which he wished to be deported. 1See Sec. 243(a) of the Immigration and Nationality Act, 66 Stat. 212, 8 U.S.C. § 1253(a) (1958). 2

Following hearings in each case, the Attorney General found that the appellants were natives and citizens of China and made inquiry of the Nationalist Chinese Government as to whether it would accept them. That Government indicated it would accept only the appellants in No. 16, 997, thirteen in number: these the Attorney General ordered deported to Taiwan, also known as Formosa. The remaining twenty-one, those in No. 16, 996, were acceptable to the authorities in Hong Kong, and the Attorney General ordered them deported there under the alternatives in the third part of the statute.

These suits were then brought in the District Court, on the theory that each plaintiff-appellant was a 'subject, national and citizen' of Communist China, and that the Attorney General was obliged under the Act to ask the Government of Communist China to accept him, before asking any other government to do so. This contention had not been advanced at any earlier stage.

Both the appellants and the Government filed motions for summary judgment. Included as a part of the Government's motions were the certified administrative records of the Immigration and Naturalization Service relating to each plaintiff. The District Court, after

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hearing counsel, determined that there was no genuine issue as to any material fact, granted the defendant's motions, denied those of the plaintiffs, and entered judgments for the defendant as a matter of law. These appeals followed. We affirm the judgments of the District Court.

The Attorney General's findings that the appellants were natives and citizens of 'China' are properly construed as findings that they were natives and citizens of the Republic of China, Dai Ming Shih v. Kennedy, 111 U.S.App.D.C. 380, 297 F.2d 791 (1961), cert. denied, 369 U.S. 844, 82 S.Ct. 876, 7 L.Ed.2d 848 (1962), and the Attorney General himself has so construed his own findings. As we pointed out in Rogers v. Cheng Fu Sheng, 108 U.S.App.D.C. 115, 280 F.2d 663, cert. denied, 364 U.S. 891, 81 S.Ct. 222, 5 L.Ed.2d 187 (1960), the United States recognizes only the Government of the Republic of China (the Nationalist Government) as the legal Government of China-- a government which has its provisional capital on, and full control over, the island of Taiwan. In both the Dai Ming Shin and the Cheng Fu Sheng cases, we upheld the action of the Attorney General in ordering deportation of deportable citizens of 'China' to the Nationalist Government on the island of Taiwan, as the country of which they were subject nationals or citizens under the second priority of the statute. 3 And see United States ex rel. Leong Choy Moon v. Shaughnessy, 218 F.2d 316 (2d Cir., 1954), and United States ex rel. Tom Man v. Murff, 264 F.2d 926 (2d Cir., 1959), both of which recognize the propriety of treating Chinese citizens born on the mainland as citizens of Nationalist China, and not as citizens of Communist China, but hold that where the aliens were not acceptable to or accepted by the Nationalist Government under the second 'priority' of the statute, deportation could be made only to a country willing to accept them, after inquiry, under the third part of the statute. This might, in the Attorney General's discretion, include Communist China. 4 As was said in the Man case, 264 F.2d at 928:

'Certainly if the relator is to be regarded as a 'subject national, or citizen' of Nationalist China, he may not be deported (there) because that government will not 'accept' him. We assume that he cannot be regarded

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as a 'subject national, or citizen' of the Communist Government, because we do not recognize that as more than a de facto government. There remains therefore one or more of the seven subdivisions of § 243(a) of which number three certainly covers him and probably several others. * * * ' (Emphasis supplied.)

See also Wong Lum v. Esperdy, 187 F.Supp. 95 (S.D.N.Y.1960); Chu Lam v. Esperdy, 209 F.Supp. 1 (S.D.N.Y.1962); and Ng Kam Fook v. Esperdy, 209 F.Supp. 637 (S.D.N.Y.1962), app. pending, all of which recognize the Nationalist Government of China on Formosa as representing the country of which persons born on the mainland of China are nationals and citizens. And see Chao-Ling Wang v. Pilliod, 285 F.2d 517 (7th Cir., 1960); Liang v. United States Department of Justice, 290 F.2d 614 (9th Cir., 1961), in which deportation to Formosa was approved, respectively, as to a former officer of the Chinese Nationalist Navy born on the mainland, and a Chinese student who entered the United States in 1949, apparently with a Nationalist Chinese passport. Cf. United States ex rel. Wong Kan Wong v. Esperdy, 197 F.Supp. 914 (S.D.N.Y.1961), and Hom Sin v. Esperdy, 209 F.Supp. 3 (S.D.N.Y.1962), app. pending, where the aliens designated the mainland of China as the country to which they wished to be deported.

These cases stand for the principle that nationality and citizenship for purposes of Section 243(a) are not determined exclusively by the geographical spot where one was born, but that political matters must be considered. In the case of citizens of China, for purposes of deportation from the United States, they are properly regarded as citizens of the government of their country which the United States recognizes, at least in the absence of a showing that they in fact support and give allegiance to the government not recognizes by the United States. Since effectuation of deportation to the country of which the alien is a national depends, under the statute, on securing the prior consent of that government, the statute would be deprived of effectiveness, where there are two 'governments, ' if the Attorney General were required to secure the consent of the government not recognized by the United States. Not only are the customary diplomatic channels not available for this purpose, and the required consent virtually unobtainable, but the Attorney General would be obliged to subvert in a substantial sense the established foreign policy of the United States. And the result would be that the purpose of Congress to reduce the number of undeportables, see Rogers v. Cheng Fu Sheng, supra, would also be obstructed.

The problem here is not confined to natives of China. It has arisen before. Delany v. Moraitis, 136 F.2d 129 (4th Cir., 1943), was the case of a deportable citizen of Greece. The territory of Greece was at the time overrun and occupied by the Nazis, and the Greek Government recognized by the United States as the legal government of Greece was in exile in England. It was held proper to deport the alien to the custody of that government in England as 'the country whence they (he) came' under the statute then in effect. Speaking for the Fourth Circuit, Judge Parker said in language apt here:

'It is true, of course, that the term 'country' as used in the statute must be construed, ordinarily, to refer to

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the territory from which the alien came. Mensevich v. Tod, 264 U.S. 134, 136, 44 S.Ct. 282, 68 L.Ed. 591. But a man's 'country' is more than the territory in which its people live. The term is used generally to indicate the state, the organization of social life which exercises the sovereign power in behalf of the people. United States v. The Recorder, 27 Fed.Cas. page 718, 721, No. 16, 129. Ordinarily the state exercises sovereignty only within the territory occupied by its people; but a different situation is presented when the territory is overrun by its enemies and its government is in exile in the territory of a friendly nation exercising power in international matters in behalf of its nationals. In such case, the government in exile has taken over the only exercise of sovereign power left to the people of the country and is the only agency representing the country with...

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