Hun Chak Sun v. Immigration and Naturalization Service

• Decision Date: 27 August 1969
• Docket Number: No. 23658.,23658.
• Citation: 415 F.2d 791
• Parties: HUN CHAK SUN, also known as Jack Sun, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

415 F.2d 791 (1969)

HUN CHAK SUN, also known as Jack Sun, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 23658.

United States Court of Appeals Ninth Circuit.

August 27, 1969.

Joseph Hertogs (argued), of Jackson & Hertogs, San Francisco, Cal., for petitioner.

David R. Urdan (argued), Asst. U. S. Atty., Cecil F. Poole, U. S. Atty., Stephen M. Suffin, INS, San Francisco, Cal., John N. Mitchell, Atty. Gen. of U. S., Washington, D. C., for respondent.

Before MADDEN, Judge of the United States Court of Claims, and ELY and CARTER, Circuit Judges.

ELY, Circuit Judge:

The petitioner vigorously challenges a final administrative order of the respondent, denying his application for adjustment of status to that of a lawful permanent resident of the United States. Section 245 of the Immigration and Nationality Act ("the Act") (8 U.S.C. § 1255).

The petitioner, a citizen of the Republic of China, entered this Country on August 18, 1956. His wife and two children remained in Taiwan. His original entry had been gained by reason of his status as a non-immigrant employee of his own government. When that status terminated, he was directed to return to his Country and was granted time, until April 7, 1963, within which to do so. He failed to depart, whereupon there issued an Order to Show Cause in deportation proceedings. The alien conceded deportability at the hearing and applied for status as a permanent resident under section 245. The Special Inquiry Officer denied the application, the Board of Immigration Appeals ("the Board") affirmed the denial on April 24, 1964, and a deportation warrant was issued on the following June 6th. Three days later, the petitioner moved the Board to reopen the proceedings so that he might apply for relief under section 243(h) of the Act (8 U.S.C. § 1253(h)) on the ground that he, if deported, would be subjected to persecution. The motion was denied. Thereafter, on April 30, 1966, the petitioner moved to reopen the proceedings for the purpose of applying for suspension of deportation under section 244(a) (1) of the Act (8 U.S.C. § 1254(a) (1)) and for temporary withholding of deportation under section 243(h) of the Act (8 U.S.C. § 1253(h), as amended (8 U.S.C. § 1253(h) (Supp. I, 1965)). The Board granted petitioner's request that there be oral argument, and after hearing the same, the Board, on October 26, 1966, denied this motion. On July 10, 1967, the petitioner married an American citizen, and in the following November filed a motion to reopen the proceedings to apply for relief under section 245. The motion was granted, and a hearing was conducted on March 13, 1968. After the hearing, the Special Inquiry Officer denied the application, and the Board of Immigration Appeals dismissed the appeal. The Petition for Review was then filed in our court. We mention, in passing, that a part of the petitioner's success in so long resisting the Government's efforts is attributable to a succession of Congressional bills introduced for his private relief.

Only two contentions are here presented: (1) That the Board of Immigration Appeals abused its discretion in denying the relief sought under section 245; (2) That the petitioner's due process rights were infringed by the Board's denial, on October 26, 1966, of the motion to reopen the proceedings to permit the petitioner to seek suspension of deportation under section 244(a) (1).

Petitioner's counsel has ably presented...