Chien Fan Chu v. Brownell, 13643.

• Decision Date: 18 July 1957
• Docket Number: No. 13643.,13643.
• Citation: 101 US App. DC 204,247 F.2d 790
• Parties: CHIEN FAN CHU et al., Appellants, v. Herbert BROWNELL, Jr., individually and as Attorney General of the United States, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

101 US App. DC 204, 247 F.2d 790 (1957)

CHIEN FAN CHU et al., Appellants, v. Herbert BROWNELL, Jr., individually and as Attorney General of the United States, Appellee.

No. 13643.

United States Court of Appeals District of Columbia Circuit.

Argued May 14, 1957.

Decided July 18, 1957.

Mr. J. H. Krug, Washington, D. C., for appellant.

Mr. John W. Kern, III, Asst. U. S. Atty., for appellee.

Oliver Gasch, U. S. Atty., Lewis Carroll and Donald E. Bilger, Asst. U. S. Attys., were on the brief for appellee.

Harold D. Rhynedance, Jr., Asst. U. S. Atty., also entered an appearance for appellee.

Before BAZELON, DANAHER and BASTIAN, Circuit Judges.

DANAHER, Circuit Judge.

Appellants, husband and wife, applied for adjustment of immigration status under the provisions of § 6 of the Refugee Relief Act of 1953.¹ An Acting Regional Commissioner after approving the denial of relief as recommended by a Special Inquiry Officer, also denied reconsideration, concluding that "the country of their last residence" was Formosa. In an action seeking declaratory relief, the District Court granted the Government's motion for summary judgment attached to which was the administrative file, and denied appellants' cross motion, supported by the husband's affidavit with annexed exhibits.² This appeal turns on the meaning of "last residence" as used in § 6 of the Act, reading in pertinent part:

"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 * * * political opinion * * * may * * * apply to the Attorney General * * * for an adjustment of his immigration status."³

Prior to the amendment by the Act approved August 31, 1954,⁴ an adjustment of status might have been permitted to an eligible alien only "because of events which have occurred subsequent to his entry into the United States." After the elimination of this clause, the legislation was to be available, as in the instant case, because of events in the country of the aliens' birth, or nationality, or last residence at the time they made their way to the United States. These appellants had been residents of China throughout their entire lives until their arrival on Formosa, November 28, 1948, after their flight from Peiping. Appellant Chu in his application recited the circumstances thus: "I left my home town at the end of Nov. 1948 because of the threat of the Communist military attack. Shortly after I arrived Taiwan, my home was occupied by Communist. Up to date the whole mainland of China, included my home is under Communist control." The appellant wife described the events: "I left my home town (Peiping) Nov. 1948 prior the attack of Communist. Shortly I went to Taiwan with my husband my home was occupied by the Communist. Up to date the whole mainland of China is under Communist control. I came to United States via France to join my husband, and we are not willing to return our home, since it is controlled by Communist." Further background follows.

Chien Fan Chu, with the rank of lieutenant colonel in the Chinese Army, in 1945 had been honorably released from duty as an interpreter with the U. S. forces in China, with a commendation for having "displayed the highest of soldiery qualities" and for his "cooperation and loyalty." Incidental thereto he was accorded the privilege at Peiping in 1947 of taking an examination which might entitle him to further education and training in the United States. On October 16, 1948, he procured an English translation of the transcript of his record at National Central University in Nanking, China, and then sought the assistance of Professor Shyr, head of the Department of Chemical Engineering of National Central University, at Nanking, China.⁵ The latter under date of January 17, 1949, forwarded three letters in Chu's behalf to the Universities of Texas, of Washington and of Wisconsin. During the following weeks Chu traveled back and forth between Formosa and Nanking attempting to expedite necessary documents for his entry into one of the universities and into the United States, and while at Nanking, on April 21, 1949, he was granted a permit to secure a Chinese passport. That day the Nationalist Government of China was forced to remove its operations from Nanking to Canton because of the action of the Communist forces. Chu flew to Canton and there on April 28, 1949, was issued a passport. Then at Canton, he went to the United States Consulate, made preliminary application for a student visa and there took the required physical examination. After long delay during which Chu failed to receive the requested visa from our Consulate at Canton, he presented himself at the American Consulate in Taiwan, Formosa, where, finally in August 1949, he obtained a visa. He left Formosa immediately for the United States.

The University of Washington under date of February 11, 1949, had addressed Chu at National Central University, Nanking, advising that his scholarship had been found excellent and that he was eligible for admission. Transmitted therewith was a statement "For the Immigration Officials" which he was directed to "present to the nearest American Consul when you apply for your passport." Likewise, under date of March 8, 1949, the University of Wisconsin certified that Chu had been accepted as a student by the graduate school for advanced work in chemical engineering. This exhibit bears the receipt stamp of the Consulate General of the United States at Canton, China, as late as May 4, 1949. A letter from the University of Texas bears the receipt stamp of the Consulate General of the United States at Taiwan under date of July 12, 1949. In short, the record amply demonstrates the course of the efforts made and the circumstances attendant upon the issuance of the visa to Chu as a resident of China.

In 1947 Chu had married Chu Tuan Tieh-mei (hereinafter called appellant wife) whose father was a retired officer of the Nationalist Government owning property in China which the Communist forces have confiscated. The appellant wife was unable to accompany her husband in August, 1949, when he left Formosa for the United States, but was able then to depart for Hong Kong where she remained for five months. Expecting ultimately to join her husband, in the company of friends she left for France and remained in Paris from December 1949 to September 1950. At that time she was granted a Chinese passport, and with an American visitor's visa, she entered the United States at the Port of New York on September 13, 1950. Appellant wife was finally reunited with her husband who upon completion of his studies for a master's degree in chemistry, found employment as a chemical engineer in Illinois. A second child has been born to appellants in Illinois. The record indicates the character of appellants throughout more than the past five years to be excellent and that otherwise they meet the criteria specified in § 6 of the Act upon which the Attorney General must report to Congress.

The Act authorized the issuance of two hundred five thousand special nonquota immigrant visas to aliens "seeking to enter the United States as immigrants" and to certain members of their families.⁶ Section 4 authorized allotment of visas to certain named categories of "refugees," "escapees" and "German expellees," including not to exceed 2,000 visas to refugees of Chinese ethnic origin. The appellants were none of these, although they might have sought to enter as "refugees" if they had not already been in the United States. A "refugee" was defined in § 2(a) to mean "any person in a country or area which is neither Communist nor Communist-dominated, who because of persecution, fear of persecution, natural calamity or military operations is out of his usual place of abode and unable to return thereto, who has not been firmly resettled, and who is in urgent need of assistance for the essentials of life or for transportation." (Emphasis above supplied.)

The House bill, H.R. 6481, by its § 6, would have authorized the Attorney General to adjust the status of certain aliens in the United States.⁷ Had the House language prevailed, the Attorney General would have been authorized to adjust the status only of certain European aliens as prescribed in § 4, with allotments distributed among German expellees, refugees from West Germany and Austria, and aliens of European origin who "fled from Communist-dominated China after June 16, 1950, and who applied for such visas in Hong Kong."

The Senate language in S.1917,⁸ which became the law, markedly differed, not only in its definition of "refugee" as above quoted, but in a complete substitute for § 6. Thus the Act, by § 6 is available to any alien who comes within its terms. It is not limited to one who is a "refugee" or "escapee" or "German expellee." Eligibility was extended to an alien — in the United States — who, because of fear of persecution on account of political opinion, is unable to return "to the country of his birth, or nationality, or last residence." Here was no requirement that the alien be "out of his usual place of abode" or that he be "unable to return thereto." Nor was it necessary that an alien not be "firmly resettled" in an intervening country from which he came to the United States and to which he might return. There was no test that "any alien" be in "urgent need of assistance for the essentials of life or for transportation." Moreover, the Senate language did not confer upon the Attorney General the power of adjusting immigration status. On the contrary, Congress reserved to itself for decision in each individual case, the question of granting adjustment of status. In this particular, § 6 provides that the Attorney General in execution of a definitely limited function, must report to Congress:

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