Chen v. Foley, 16988.

• Decision Date: 08 December 1967
• Docket Number: No. 16988.,16988.
• Citation: 385 F.2d 929
• Parties: Paul Ching-Szu CHEN, Petitioner-Appellant, v. R. William FOLEY, District Director of Immigration and Naturalization Service of United States Department of Justice, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

385 F.2d 929 (1967)

Paul Ching-Szu CHEN, Petitioner-Appellant, v. R. William FOLEY, District Director of Immigration and Naturalization Service of United States Department of Justice, et al., Respondents-Appellees.

No. 16988.

United States Court of Appeals Sixth Circuit.

December 8, 1967.

Rives A. Manker, Memphis, Tenn., for appellant.

George W. Masterton, Jr., Dept. of Justice, Washington, D. C., (Thomas L. Robinson, U. S. Atty., Odell Horton, Jr., Asst. U. S. Atty., Memphis, Tenn., Maurice A. Roberts, Atty., Dept. of Justice, Washington, D. C., on the brief), for appellees.

Before WEICK, Chief Judge, EDWARDS, Circuit Judge, and CECIL, Senior Circuit Judge.

WEICK, Chief Judge.

As now constituted, this is a proceeding to review an adverse decision of the Board of Immigration Appeals, denying on discretionary grounds the petition of Paul Ching-Szu Chen, an alien, under Section 245 of the Immigration and Nationality Act, 8 U.S.C. § 1255 (Supp. 1966)¹, and directing his deportation. Because the issues are now entirely different than those originally presented in the appeal, the history of this case will be reviewed in detail.²

Petitioner is a native and citizen of China. He was born on June 23, 1907. He is married to Go Po Guioc and is the father of eight children, ranging in age from thirteen to twenty-five years, but he has been living apart from his family continuously since 1961. He is a person of considerable formal education, a portion of which was obtained in this country prior to the occurrences hereinafter related.³

Under date of December 10, 1960, E. Clayton Calhoun, President of Paine College, Augusta, Georgia, requested the Immigration and Naturalization Service to grant petitioner an immigrant visa under the provisions of Section 203(a) (1) (A) of the Act, 8 U.S.C. § 1153(a) (1) (A).⁴ On January 27, 1961, the Service notified Mr. Calhoun that the petition had been approved and was being forwarded to the American Consulate in Manila, Philippines, where petitioner could make application for the visa. However, petitioner never applied for this visa but instead, on May 4, 1961, he applied for and received a nonimmigrant B-2 visa in Tokyo, Japan. The visa was issued allegedly so that petitioner could "sight-see in Honolulu, Hawaii, for three weeks."

Petitioner actually entered the United States on May 24, 1961, at Seattle, Washington, as a nonimmigrant and eligible to stay only until November 23, 1961, but he has remained here ever since. Soon after his entry petitioner was employed by Paine College. Shortly before the expiration date of his authorized stay, he was notified by the Service that his employment would prohibit them from extending his stay as a nonimmigrant, but that Paine College, if they wished to do so, could file another first preference petition pursuant to Section 203(a) (1) (A). The letter also informed Chen that his authorized stay would be extended until January 26, 1962, the expiration date of the original petition filed on his behalf by Paine College.

On November 10, 1962, Paine requested revalidation of petitioner's visa petition. Prior to this date but subsequent to his arrival in this country, petitioner had been advised by letters from friends and relatives abroad that his wife, while on a trip to visit her sick mother in China, had died of a heart attack.

On January 1, 1962, petitioner married Ella Lucille Self, a thirty-year old native born United States citizen, who had been previously married and divorced. He immediately filed a petition for adjustment of status to permanent resident alien, using as grounds therefor his marriage and the subsequent visa petition filed on his behalf by Ella Lucille Self Chen. Paine College's revalidation request was never acted upon, and although the record is not entirely clear, the reason seems to have been that in view of petitioner's apparent qualification for nonquota status, the revalidation of a first preference petition was no longer necessary.

Ella Lucille Self Chen at some undisclosed later date withdrew her petition, but reinstated it by means of a letter to the Service under date of January 23, 1963. On November 22, 1963, her petition was denied on the ground that she had failed to provide adequate proof of the termination of Chen's prior marriage.⁵ No appeal was taken from the denial of this petition.

On November 23, 1962, Paine College notified the Service that petitioner was no longer employed by it and that the College did not wish to sponsor him further in any action before the Service. Accordingly, on February 15, 1963, petitioner was notified in writing that he would be required to depart from the United States within one month. When he failed to leave the country on March 20, 1963, an order was issued requiring him to show cause why he should not be deported. 8 U.S.C. § 1251(a) (2).⁶

Hearings were commenced on April 1, 1963, and concluded one year later. During the early stages of the hearing petitioner was allowed to file another application for adjustment, based upon a 1962 amendment of the Act.⁷ By the provisions of this amendment, certain aliens were accorded nonquota status if among other things they were on April 1, 1962, the beneficiary of an approved visa petition and if they were at the time of application for adjustment of status found to have retained their status as established in the approved petition. The Special Examiner found that the petitioner had not actively engaged in teaching at Paine College since June, 1962. That fact coupled with the information that the College neither considered petitioner to be employed by them nor did they have any interest in representing him before the Service, led the Examiner to conclude that petitioner had not at the time of his application for adjustment maintained first preference status. Therefore the Examiner held:

"* * * he petitioner is not entitled to the benefits of Section 2 of Public Law 87-885. He has not established that an immigrant visa is immediately available to him since he is chargeable to an oversubscribed quota. Accordingly, his application for adjustment of status under Section 245 will be denied."

The Examiner found petitioner to be in this country unlawfully but granted voluntary departure. On appeal the Board affirmed, except it ordered deportation.

Almost contemporaneously with the Board's decree, Chen entered into a contract with Rust College, Holly Springs, Mississippi, by the terms of which he agreed to teach at that institution through June 1, 1965. On September 12, 1964, Dr. Earnest A. Smith, President of Rust College, filed with the Service a first preference petition on behalf of Chen. No action was taken on this petition, and on June 8, 1965, Chen was served with notice to surrender himself at Memphis, Tennessee, within three days, for deportation to Formosa.

On June 10, 1965, Chen filed a habeas corpus action in the United States District Court for the Western District of Tennessee. A stay of deportation was granted pending a hearing on the merits. On August 13, 1965, the District Court rendered its decision affirming the Board's denial of adjustment of status but reinstating the Examiner's allowance of voluntary departure. Approximately two weeks later petitioner was notified by the Service that he had until September 26, 1965, to depart voluntarily, but upon failure to do so he would be subject to deportation. On September 30, 1965, the first preference petition filed by Rust College was denied. An appeal to this Court followed.

But that is not the present posture of the case. While the appeal was pending the statutory provisions controlling the instant case were substantially amended by Congress.⁸ The amendment to Section 203 significantly rearranged the preferences and also altered the prerequisites of some of the old classifications.⁹ The change which was crucial to the instant case was that "professionals"¹⁰ automatically qualified for immigrant visas to the extent of their availability within the third preference group.

It appeared therefore that under the new law an immigrant visa might be more readily available to Chen, thereby removing the basis for the Board's denial of his most recent application for adjustment of status.

While this appeal was pending, Rust College, seeking to take advantage of the changes made by the amendment, initiated a third preference petition on behalf of Chen. The petition was granted and Chen was advised that he could now move for the reopening of his case and again file for adjustment of status, to be considered in the light of the recent amendment. Motion to reopen was made and granted, subject to the approval of this Court.

On the representation of the parties that further administrative proceedings might render the questions in the pending appeal moot, the Court entered orders on April 1 and June 27, 1966, allowing the appeal to be held in abeyance until completion of the planned administrative hearings.

The special inquiry officer's decision, following the reopened hearing, denied adjustment as a matter of discretion and ordered Chen deported. The decision was based on two grounds, only the second of which need be considered here inasmuch as the first was not adopted by the Board. The second ground was that it is the function of the immigration laws to keep the family unit together, and inasmuch as Chen's immediate family was and had been living in the Philippine Islands, it had not been demonstrated that allowance of adjustment of his status would accomplish this purpose. The Board, in affirming, adopted the reasoning of the Examiner and adopted additional grounds for denying discretionary relief. Voluntary departure was allowed.

Although it has been necessary to recite a large number of facts and issues in order to place the case in its proper prospective, the issue for consideration by the Court at this time is in fact a very narrow one. The only question before ...