Cheng Kai Fu v. Immigration and Naturalization Service, 237

Citation386 F.2d 750
Decision Date16 November 1967
Docket NumberNo. 237,Docket 31842 and (31881).,236,237
PartiesCHENG KAI FU, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. YUI TING SANG, a/k/a Zai Ding Sung and Hui Mau Cheuk, Plaintiffs-Appellants, v. P. A. ESPERDY, District Director for the New York District, Immigration and Naturalization Service, United States Department of Justice, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

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Thomas A. Church, New York City, for petitioner and plaintiffs-appellants.

Francis J. Lyons, Asst. U. S. Atty., New York City (Robert M. Morgenthau, U. S. Atty. for Southern District of New York, and Daniel Riesel, Asst. U. S. Atty., New York City, on the brief), for respondent and defendant-appellee.

Before LUMBARD, Chief Judge, and MEDINA and HAYS, Circuit Judges.

LUMBARD, Chief Judge:

These cases, which have been consolidated for the purposes of this proceeding, all raise the same question: whether it was an abuse of discretion for the District Director in the case of Yui Ting Sang and Hui Mau Cheuk and the Board of Immigration Appeals in the case of Cheng Kai Fu to deny without a hearing the motions to stay deportation and reopen the proceedings based on the claim under Section 243(h) of the Act, 8 U.S.C. § 1253(h),1 that the aliens will be subjected to persecution if they are returned to Hong Kong. The issue presented is whether these aliens have made a sufficient showing to compel the government to afford them a hearing on their motion to re-open the proceedings in which they were afforded due process and which resulted in lawful orders of deportation entered under 8 U.S.C. § 1252.

The essential facts with respect to each alien are not in dispute. Each is a native and citizen of the Republic of China, who was admitted to the United States as an alien seaman authorized to remain here during his vessel's stay in port but not to exceed 29 days. Section 252(a) of the Act, 8 U.S.C. § 1282(a). Each of them thereafter remained unlawfully in the United States until he was apprehended.

Proceedings for deportation were then properly instituted under the Act. Cheng Kai Fu, the petitioner in one case, was apprehended in April 1965, and on April 26 of that year he was given a hearing and ordered deported to Taiwan. The Republic of China refused to issue a travel document permitting his re-entry to that country, and subsequently the government moved to re-open the proceeding so that Hong Kong could be designated as the place of destination. On October 18, 1967 petitioner surrendered himself for deportation to Hong Kong. He then moved to re-open the proceedings and requested an opportunity to apply for a stay under Section 243(h) of the Act, 8 U.S. C. § 1253 (h).2 In his motion the petitioner set out the circumstances of his escape from the mainland of China in 1957 and alleged that a return to Hong Kong at this time would subject him to hardship and deprivation which he claims amount to persecution as interpreted in Section 243(h). The Board of Immigration Appeals on October 26, without a hearing, denied his motion to re-open and the alien then brought this petition for review of that decision.

The appellants, Yui Ting Sang and Hui Mau Cheuk, appeal from an order of the Southern District Court denying their motion for a preliminary injunction staying the execution of orders of deportation pending determination of their action for a declaratory judgment in which they challenged the denial of a stay of deportation by the District Director. In their application to the District Director, the appellants also asked for relief under Section 243(h), claiming that they would be subjected to persecution in Hong Kong. Thus, although these cases arise from varying procedures, they present an identical issue.

Under Section 243(h) of the Act the Attorney General is given discretion to stay deportation in circumstances where the alien "would be subject to persecution on account of race, religion, or political opinion" in the country to which he is being deported. Only where there is a clear probability of persecution to the particular alien is this discretion to be favorably exercised. See, e. g., Lena v. Immigration and Naturalization Service, 379 F.2d 536 (7 Cir. 1967).

We have examined the papers submitted by the three aliens and we are convinced that they have failed to sustain their burden of showing some likelihood that reopening the proceedings will result in a stay of deportation. We therefore find that there was no abuse of the discretion confided in the Board of Immigration Appeals and the District Director. Each of these aliens was afforded the full benefit of procedural due process in their deportation proceedings. They cannot require that these steps, including a written statement of charges, the opportunity to cross-examine and produce evidence, and a full hearing, be repeated merely because they have filed a petition to reopen. As Judge Mansfield said in Lam Leung Kam v. Esperdy, "If such were...

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  • Immigration and Naturalization Service v. Stevic
    • United States
    • U.S. Supreme Court
    • June 5, 1984
    ...prima facie evidence that there is a clear probability of persecution to be directed at the individual respondent. See Cheng Kai Fu v. INS, 386 F.2d 750 (2 Cir.1967), cert. denied, 390 U.S. 1003, 88 S.Ct. 1247, 20 L.Ed.2d 104 (1968). Although the applicant here claims to be eligible for wit......
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    ...e. g., Foti v. Immigration & Naturalization Service, 375 U.S. 217, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963); Cheng Kai Fu v. Immigration & Naturalization Service, 386 F.2d 750 (2d Cir. 1967); Sovich v. Esperdy, 319 F.2d 21 (2d Cir. 1963); Blagaic v. Flagg, 304 F.2d 623 (7th Cir. 1962); Milutin v......
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    ...prima facie evidence that there is a clear probability of persecution to be directed at the individual respondent. See Cheng Kai Fu v. INS, 386 F.2d 750 (2d Cir. 1967), cert. denied, 390 U.S. 1003 (88 S.Ct. 1247, 20 L.Ed.2d 104) (1968). Although the applicant here claims to be eligible for ......
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