Cheng Fu Sheng v. Barber, 35662

• Decision Date: 28 September 1956
• Docket Number: No. 35662,35681.,35662
• Citation: 144 F. Supp. 913
• Parties: CHENG FU SHENG, Plaintiff, v. Bruce G. BARBER, as District Director of Immigration and Naturalization Service, San Francisco, and David H. Carnahan, as Regional Commissioner of the Immigration and Naturalization Service, Defendants. LIN FU MEI, Plaintiff, v. Bruce G. BARBER, as District Director of Immigration and Naturalization Service, San Francisco, and David H. Carnahan, as Regional Commissioner of the Immigration and Naturalization Service, Defendants.
• Court: U.S. District Court — Northern District of California

144 F. Supp. 913

CHENG FU SHENG, Plaintiff, v. Bruce G. BARBER, as District Director of Immigration and Naturalization Service, San Francisco, and David H. Carnahan, as Regional Commissioner of the Immigration and Naturalization Service, Defendants.

LIN FU MEI, Plaintiff, v. Bruce G. BARBER, as District Director of Immigration and Naturalization Service, San Francisco, and David H. Carnahan, as Regional Commissioner of the Immigration and Naturalization Service, Defendants.

Nos. 35662, 35681.

United States District Court N. D. California, S. D.

September 28, 1956.

Fallon & Hargreaves, San Francisco, Cal., for plaintiffs.

Lloyd H. Burke, U. S. Atty., Charles Elmer Collett, Asst. U. S. Atty., San Francisco, Cal., for defendants.

GOODMAN, District Judge.

The plaintiffs in these two actions both seek review of orders of the Regional Commissioner of the Immigration and Naturalization Service denying their applications pursuant to Section 6 of the Refugee Relief Act of 1953, 67 Stat. 400, 50 U.S.C.A.Appendix, § 1971d, for adjustment of their non-immigrant status to that of aliens lawfully admitted for permanent residence. They ask declaratory judgments that their applications may not be denied, as they were, on the ground that they are of a class of aliens which Congress did not intend to come within the purview of the Refugee Relief Act. They have moved for summary judgment, and defendants have countered with motions to dismiss. The motions, in each case, have been submitted upon the record of the proceedings before the Immigration and Naturalization Service.

The record reveals that plaintiff, Cheng Fu Sheng was born on June 12, 1925 in the city of Chia, Honan Province, China, where he lived until 1944 when he enlisted in the Chinese Nationalist Airforce. From June, 1945 until December 1946 he trained in the United States as a member of the Chinese Nationalist Airforce. Thereafter he served as a member of the Nationalist Airforce in China until 1949 when the mainland fell to Communist forces and he was transferred to Formosa. On June 9, 1952, he again entered the United States as a member of the Chinese Nationalist Airforce for advance training. On October 21, 1952, when his training unit left the United States to return to Formosa, he deserted from the Chinese Nationalist Airforce and remained in this country. On November 3, 1952 he voluntarily presented himself to the Immigration and Naturalization Service and explained that he had deserted his airforce unit and remained in the United States because he considered the Chinese Nationalist Government to be a corrupt dictatorship to which he could no longer give his allegiance. On December 23, 1952 he was arrested in deportation proceedings. A hearing was had on March 13, 1953, and on December 2, 1953, he was granted voluntary departure with an alternative order requiring deportation in the event he did not depart voluntarily. Meanwhile on November 3, 1953, he had filed his application pursuant to Section 6 of the Refugee Relief Act of 1953 for adjustment of his status to that of an alien admitted for permanent residence.

Plaintiff Lin Fu Mei was born on March 27, 1924 in the city of Foo Chow, Fu-kien Province, China where he lived until 1945 when he enlisted in the Chinese Nationalist Airforce. He served in China until 1948 when he was transferred to Formosa. On February 12, 1953, he entered the United States as a member of the Chinese Nationalist Airforce for 11 weeks training. At the end of this period when his training unit left the United States to return to Formosa, he deserted and remained in this country. He was subsequently arrested in deportation proceedings and testified in such proceedings that he had deserted his airforce unit and remained in the United States because he considered the Chinese Nationalist Government to be totalitarian in character and a police state. On December 23, 1954, during the course of the deportation proceedings he filed his application pursuant to Section 6 of the Refugee Relief Act of 1953 for adjustment of his status to that of an alien admitted for permanent residence.

Section 6 of the Refugee Relief Act of 1953 provides that "Any alien who establishes that prior to July 1, 1953, he lawfully entered the United States as a bona fide nonimmigrant and that he is unable to return to the country of his birth, or nationality, or last residence because of persecution or fear of persecution on account of race, religion, or political opinion * * * may, not later than June 30, 1955, apply to the Attorney General of the United States for an adjustment of his immigration status. If the Attorney General shall, upon consideration of all the facts and circumstances of the case, determine that such alien has been of good moral character for the preceding five years and that the alien was physically present in the United States on the date of the enactment of this Act (August 7, 1953) and is otherwise qualified under all other provisions of the Immigration and Nationality Act (chapter 12 of Title 8) except that the quota to which he is chargeable is oversubscribed, the Attorney General shall report to the Congress all the pertinent facts in the case." Section 6 further provides that if, during the session in which a case is reported or prior to the end of the next session, Congress, by concurrent resolution, approves the admission of such alien for permanent residence, the Attorney General is authorized to record his lawful admission, but if the...