Cheng Lee King v. Carnahan, 15415.

• Decision Date: 24 March 1958
• Docket Number: No. 15415.,15415.
• Citation: 253 F.2d 893
• Parties: CHENG LEE KING, Appellant, v. Davis H. CARNAHAN, as Regional Commissioner of the Immigration and Naturalization Service, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

253 F.2d 893 (1958)

CHENG LEE KING, Appellant, v. Davis H. CARNAHAN, as Regional Commissioner of the Immigration and Naturalization Service, Appellee.

No. 15415.

United States Court of Appeals Ninth Circuit.

March 24, 1958.

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

Lloyd H. Burke, U. S. Atty., Charles Elmer Collett, Asst. U. S. Atty., for appellee.

Before FEE and CHAMBERS, Circuit Judges, and WALSH, District Judge.

CHAMBERS, Circuit Judge.

Cheng Lee King, a merchant seaman born in Hainan Islands (now within the limits of Communist China), seeks adjustment of his immigration status as a permanent resident under Section 6 of the Refugee Relief Act of 1953.¹ He is a national of Communist China, but asserts he is anti-Communist. When eleven years of age he was taken to Singapore in the Malay States where he was a resident until 1939. He left there as a seaman that year and has never returned to Singapore or to China. Since leaving Singapore he seems to have established no residence other than his tenuous "residence" in the United States.

During World War II he sailed out of British ports into the Mediterranean area. Since the war he has been generally on Panamanian Ships (American owned) or on American ships out of American ports.

The immigration service appears to have concluded that he does qualify under the act as having entered the United States lawfully as a non-immigrant, but has denied him adjustment because of his former residence in Singapore. He produces proof that he cannot return to Singapore for residence.² Also, he fears persecution in China because of his service on American ships carrying munitions to the Korean theatre during the Korean hostilities. The last two factual matters were conceded by the immigration authorities.

The immigration service and the district court have decided against him. So where can this Philip Nolan go? Of course, the Congress does not have to admit all Philip Nolans. Our question involves a construction of the aforementioned Section 6 which reads as follows:

"Sec. 6. 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, or who was brought to the United States from other American Republics for internment, 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. If, during the session of the Congress in which a case is reported or prior to the end of the session of the Congress next following the session in which a case is reported, the Congress passes a concurrent resolution stating in substance that it approves the granting of the status of an alien lawfully admitted for permanent residence to such alien, the Attorney General is authorized, upon the payment of the required visa fee, which shall be deposited in the Treasury of the United States to the account of miscellaneous receipts, to record the alien\'s lawful admission for permanent residence as of the date of the passage of such concurrent resolution. If, within the above specified time, the Congress does not pass such a concurrent resolution, or, if either the Senate or House of Representatives passes a resolution stating in substance that it does not approve the granting of the status of an alien lawfully admitted for permanent residence, the Attorney General shall thereupon deport such alien in the manner provided by law: Provided, That the provision of this section shall not be applicable to any aliens admitted into the United States under the provisions of Public Law 584, Seventy-ninth Congress, second session (60 Stat. 764) section 1641 of this Appendix, Public Law 402, Eightieth Congress, second session (62 Stat. 6) chapter 18 of Title 22: Provided further, That the number of aliens who shall be granted the status of aliens lawfully admitted for permanent residence pursuant to this section shall not exceed five thousand."

67 Stat. 403 (Aug. 7, 1953) as amended by 68 Stat. 1044 (Aug. 31, 1954).

Literally the key words "unable to return to the country of his birth, or nationality, or last residence" are in the disjunctive. Literally King is entitled to relief if he can't go back because of fear of persecution on account of political opinion to the country of his birth or to the country of his nationality or to the country of his last residence.

When the Congress was passing the act it was in a beneficent mood, but we cannot attribute to the Congress a construction, a meaning so broad as...