Bong Youn Choy v. Barber

• Citation: 279 F.2d 642
• Decision Date: 07 June 1960
• Docket Number: No. 16159.,16159.
• Parties: BONG YOUN CHOY and Tung Suck Choy, Appellants, v. Bruce G. BARBER, District Director, Department of Justice, Immigration and Naturalization Service, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

279 F.2d 642 (1960)

BONG YOUN CHOY and Tung Suck Choy, Appellants, v. Bruce G. BARBER, District Director, Department of Justice, Immigration and Naturalization Service, Appellee.

No. 16159.

United States Court of Appeals Ninth Circuit.

June 7, 1960.

Walker Lowry, Brent M. Abel, Glenn Richard Murray, McCutchen, Doyle, Brown & Enersen, San Francisco, Cal., for appellants.

Robert H. Schnacke, U. S. Atty., Charles Elmer Collett, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before STEPHENS, BAZELON and HAMLIN, Circuit Judges.

STEPHENS, Circuit Judge.

Bong Youn Choy and his wife are resident aliens who are suffering under orders of deportation issued by respondent. They appeal from a ruling of the District Court rendered pursuant to 5 U.S.C.A. § 1009 sustaining the administrative action. See Shaughnessy v. Pedreiro, 1955, 349 U.S. 48, 75 S.Ct. 591, 99 L.Ed. 868.¹

The Choys were born in Korea and came to the United States from Japan as students, he in 1938, she in 1941. They married in California in 1942, and now have three children, all American citizens. During World War II, Mr. Choy continued his studies, earning a master's degree in political science from the University of California. He also translated Japanese documents for the government and taught the language to members of the armed forces. The Immigration Service adjusted Mr. Choy's status from time to time, extending his visa.

In 1946, Mr. Choy was employed by the War Department for work with the American Military Government in Korea. His wife and children subsequently joined him there. The family was brought back to the United States by the government in 1948; Mr. and Mrs. Choy entering under visitors' visas. Soon after their return to this country, the Choys moved to Seattle, Washington, the primary scene of their ensuing troubles.

In May, 1950, the Immigration Service issued deportation warrants charging the Choys with overstaying their visas. Mr. Choy was brought before a hearing officer in Seattle in July, 1951, his wife apparently forgotten by the authorities for the time being. The charges then lodged against Mr. Choy were that in 1948 he had entered the United States as an immigrant without an immigrant's visa in violation of 8 U.S.C. § 213(a) (1946 ed.), superseded by 8 U.S.C.A. § 1181(a), and that he had become a member of the Communist Party of the United States subsequent to his entry. See 8 U.S.C. § 137-3(a) (1946 ed. Supp. IV), superseded by 8 U.S.C.A. § 1251(a) (6) (C). At his hearing Choy testified that he had joined the Communist Party of the United States late in 1948 and that for a period of about five months he had attended monthly Party meetings comprised of himself and three Korean friends. He admitted that at one of these meetings he had filled out an application blank for membership in the Party. The purpose of the meetings, said Choy, was to discuss Communism and its various ramifications. Furthermore, Choy conceded that he had paid Party dues through one of his Korean friends in amounts ranging from fifty cents to a dollar each month.

A statement taken from Choy on April 17, 1951, describing his Communist activities in similar terms was also admitted into evidence at the hearing.²

Choy further testified that when he arrived in the United States in 1948, he intended a temporary visit of sufficient duration to enable him to complete his studies for a doctorate degree. He also planned to arrange to remain in this country long enough to afford his children an American high school education.

As a result of this hearing Mr. Choy was ordered deported on the charges lodged against him. However, the deportation order was subsequently withdrawn, and the hearing was reopened in San Francisco in 1953.

This time Choy testified that he had never joined the Communist Party of the United States, that during the months of his alleged Communist activity he and his three Korean friends had held monthly meetings simply to discuss the political situation in their native land, and that they discussed Communism in its relation to Korea's divided condition. Choy did not think that these gatherings were Communist Party meetings, and although he did sign a card of some sort, he could not remember what it was. He admitted paying fifty cents to a dollar each month to one of his friends. However, he claimed that the payments were not designed on his part as Communist Party membership dues, but were given rather for friendship's sake.

Mr. Choy also testified to events which led to the statement taken from him in April, 1951, regarding his Communist activities. See note 2, supra. According to Choy, whose testimony was unchallenged by the government, he was asked to come to Immigration offices on the evening of April 16, 1951, soon after supper. He waited in a room there for about fifteen minutes before the advent of a Mr. Garvey. Garvey greeted Choy harshly.³ He had Choy draw a pencil line on a piece of paper and write above the line "South Korean Police and American M.P." Below the line Choy was asked to write "I have a wife and three American-born children." Following this exercise, Garvey asked Choy if he knew what would happen to him if he were deported. Choy replied that he would be persecuted. Garvey agreed and again upbraided Choy.⁴ Garvey then left the room returning with a Mr. Stevens and a stenographer. Stevens proceeded to interview Choy, who continually denied that he was involved with the Communists. Stevens confronted Choy with a statement by Mr. Namkung, one of the Koreans with whom Choy met at several monthly meetings. The statement disclosed that these monthly meetings were Communist Party gatherings. Garvey emphasized the significance of this statement by calling Choy a liar. Namkung was brought in to identify Choy, who still denied Communist membership. The interview ended at midnight and Garvey took Choy home. On the way Garvey noted that Namkung was cooperative whereas Choy was not. Choy agreed to talk further and returned with Garvey to Immigration offices. A second interview took place, terminating at 3:00 A.M. Choy still denied Party affiliation. Upon parting, Garvey told Choy that if he didn't agree with Namkung's statement, he would either be deported within three weeks or charged with perjury.⁵ Choy was upset by these happenings and couldn't sleep. He contacted Namkung, who acknowledged accusing Choy of Party membership. The next day at 8:30 in the morning, Choy made the statement which was admitted in evidence against him.⁶

Charges against Mrs. Choy were also lodged at the San Francisco hearing. She was accused of being an excludable alien at the time of entry in that she had entered in 1948, as an immigrant without an immigrant's visa. See 8 U.S.C.A. § 1251(a) (1); 8 U.S.C. § 213(a) (1946 ed.). She testified that she did not intend to stay in this country permanently at the time she entered, but intended only to attempt to arrange to remain if such an arrangement were possible.

Following this hearing, the Choys were both ordered deported on the lodged charges. They challenge all the grounds upon which their deportation is predicated.

The Illegal Entry

To have entered the United States in violation of 8 U.S.C. § 213(a) (1946 ed.) — "No immigrant shall be admitted to the United States unless he (1) has an unexpired immigration visa. * * *" — the entrant must first have been an immigrant. And pursuant to 8 U.S.C. § 203 (1946 ed.),^* "an alien visiting the United States temporarily as a tourist or temporarily for business or pleasure" was not an immigrant. Appellants contend that when they came to the United States from Korea in 1948, they intended to stay only temporarily, that they planned to remain only if they could make such an arrangement within the framework of the immigration laws, and that therefore they were not immigrants within the meaning of the statute.

The record shows that Mr. Choy wished to do three things on his return to the United States: To continue his graduate education, to support his family, by working, if necessary and to provide his three children, if possible, with an American high school education. None of these purposes are inconsistent with the representations made by Mr. Choy when he obtained a visitor's visa from the American consul in Seoul, Korea. The consul was apparently well aware that Choy would remain in the United States if it was legally possible for him to do so. None of Mr. Choy's actions indicate fraud or misrepresentation.

In Brownell v. Stjepan Bozo Carija, 1957, 102 U.S.App.D.C. 379, 254 F.2d 78, 80, the court said:

"It is quite true that, if an alien enters the United States on a temporary permission but with a determination to stay here if possible — meaning by any means possible, — so that his representations to the authorities are false or fraudulent or misrepresentative, he has not lawfully entered this country. The cases so hold, and we agree with that doctrine. The permit upon which such an alien enters, reciting that he is visiting the United States temporarily, or is a seaman entering temporarily solely in the pursuit of his calling as a seaman, is an invalid document in that it was issued upon false information. If the aliens before us had not had a bona fide intent to travel through the United States, as their visas permitted, the case would fall under that doctrine. But we do not have such a case here.

These people, so far as this record shows, were in transit in good faith. They were actually en route through this country. In the words of the complaint, admitted by the Attorney General, they possessed `also\' the intention about remaining here. That they entertained `a desire or purpose or intent\' to take advantage of an opportunity afforded them by the laws of this country to remain here, if such an opportunity should offer itself, does not seem to us to smack of the unlawful or to negative their other basic intent to proceed through the

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