320 F.2d 86 (2nd Cir. 1963), 368, Ng Kam Fook v. Esperdy

Docket Nº:368, 369, 27542, 28121.
Citation:320 F.2d 86
Party Name:NG KAM FOOK, Appellant, v. P.A. ESPERDY, as District Director of the Immigration and NaturalizationService, Appellee. AU TONG, Appellant, v. P.A. ESPERDY as District Director of the Immigration and NaturalizationService, Appellee.
Case Date:July 02, 1963
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 86

320 F.2d 86 (2nd Cir. 1963)

NG KAM FOOK, Appellant,

v.

P.A. ESPERDY, as District Director of the Immigration and NaturalizationService, Appellee.

AU TONG, Appellant,

v.

P.A. ESPERDY as District Director of the Immigration and NaturalizationService, Appellee.

Nos. 368, 369, 27542, 28121.

United States Court of Appeals, Second Circuit.

July 2, 1963

Argued June 3, 1963.

Page 87

Jules E. Coven, New York City (Abraham Lebenkoff and Lebenkoff & Coven, New York City, on the brief), for appellants.

Roy Babitt, Sp. Asst. U.S. Atty., Southern District of New York, New York City (Robert M. Morgenthau, U.S. Atty., Southern District of New York, on the brief), for appellee.

Before LUMBARD, Chief Judge, CLARK, Circuit Judge, and BARTELS, District Judge.

BARTELS, District Judge.

Plaintiff Ng Kam Fook (Fook) and plaintiff Au Tong (Tong) have joined in a consolidated appeal involving identical questions, from an order by Judge Metzner in each case, granting summary judgment in favor of the District Director, Immigration and Naturalization Service, New York District In actions seeking to review the order of the Attorney General directing the deportation of Fook to Hong Kong and the deportation of Tong to the Netherlands.

The question involved in this appeal is the construction of the word 'country' as used in Section 243(a) of the Immigration and Nationality Act of 1952 (the Act), (8 U.S.C. § 1253(a)), which sets forth a pattern for deportation of aliens illegally present in the United States. In providing for the mechanics for the enforcement of a deportation order, the section prescribes in succession three priorities for the deportation of an alien, in each of which the word 'country' is employed; (1) deportation to a country designated by the alien if the country is willing to accept him; (2) upon failure to receive timely acceptance from the country mentioned in (1), deportation to 'any country of which such alien is a subject, national, or citizen if such country is willing to accept him into its territory'; and (3) upon failure to receive

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timely acceptance from the country mentioned in (2), deportation to any one of seven categories of countries mentioned in the Act within the discretion of the Attorney General without priority as to order.

Fook and Tong arrived in the United States as crewmen, Fook in 1955 and Tong in 1953. Both were born on the mainland of China at the time it was under the control of the Nationalist Government of China, and both are concededly here illegally and subject to deportation. Each declined to designate a country to which he wished to be sent if deported, as provided in the first priority of the statute, thus requiring resort to the second priority. The United States...

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