Chien Woo v. Rosenberg, 24334.

• Decision Date: 18 December 1969
• Docket Number: No. 24334.,24334.
• Citation: 419 F.2d 252
• Parties: Yee CHIEN WOO, Plaintiff-Appellee, v. George K. ROSENBERG, District Director, Immigration and Naturalization Service, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

419 F.2d 252 (1969)

Yee CHIEN WOO, Plaintiff-Appellee, v. George K. ROSENBERG, District Director, Immigration and Naturalization Service, Defendant-Appellant.

No. 24334.

United States Court of Appeals Ninth Circuit.

December 18, 1969.

Joseph Sureck (argued), Reg. Counsel INS, San Pedro, Cal.; Edwin L. Miller, Jr., U. S. Atty., Raymond F. Zvetina, Asst. U. S. Atty., San Diego, Cal., for appellant.

Gordon G. Dale (argued), Gould & Dale, Santa Ana, Cal., for appellee.

Before MERRILL and TRASK, Circuit Judges, and BYRNE, District Judge^*.

MERRILL, Circuit Judge:

This appeal presents the question whether an alien, otherwise entitled as a refugee to "Seventh Preference" treatment under § 203(a) (7) of the Immigration and Nationality Act,¹ may be denied such treatment on the ground that he had become firmly resettled elsewhere and that his entry into the United States was not therefore emergent.

Appellee is a native of Shanghai, China. In 1952 his substantial business and financial holdings were confiscated by the Communist Government. He sought and was granted permission to leave Communist China for a foreign visit with the understanding that he would return. In 1953 he went to Hong Kong and has never returned to Communist China.

In Hong Kong he started a business under the name of Harry Woo Trading Company, taking orders for merchandise and clothing. He was married and a son was born. In 1959 he was admitted to the United States temporarily as a visitor for business purposes, to operate a concession at the International World's Fair in Portland, Oregon. He returned to Hong Kong later that year. On May 22, 1960, he made his second entry into the United States as a business visitor in connection with the San Diego Fair and International Trade Mart. He has never since left the United States. His temporary stay expired March, 1966. By this time he had been joined by his wife and child, who had entered Canada and had been admitted to the United States from Canada as visitors for pleasure. Deportation proceedings were commenced upon his failure to depart. On March 8, 1966, he and his family were granted voluntary departure. They failed to depart. Also on March 8, 1966, appellee applied for classification as a refugee under § 203(a) (7). He has expressed opposition to communism and believes that should he return to Communist China he would be persecuted as a member of the capitalist class. However, he possesses a valid Hong Kong Certificate of Identity which is sufficient documentation to permit his return to Hong Kong. His application was denied by the District Director, Los Angeles, and that decision was affirmed by the Regional Commissioner, San Pedro, California. The Regional Commissioner held that "Congress did not intend that an alien, though formerly a refugee, who had established roots or acquired a residence in a country other than the one from which he fled would again be considered a refugee for the purpose of gaining entry into and or subsequently acquiring status as a resident in this, the third country," citing Matter of Sun, 12 I & N Dec. 36 (1966). The Regional Commissioner concluded that appellee is in possession of a document that permits him to return and reside in Hong Kong; consequently, that he had not established his inability to return to Hong Kong, or that he is unable to return thereto on account of race, religion or political opinion.

Upon denial of his application appellee brought the instant suit for declaratory judgment under 28 U.S.C. § 2201. The District Court ruled that he was entitled on the facts to the benefits of § 203(a) (7), regardless of the applicability of the "firmly resettled" criterion. The Service has taken this appeal.

We hold that § 203(a) (7) does not require, as a condition precedent to conditional entry, that the alien be "not firmly resettled elsewhere."

The nature of the relationship of the refugee to an intermediate host country to which he has fled from his home country and in which he has found temporary asylum is a necessary consideration under this and prior refugee relief acts.

In the Displaced Persons Act of June 25, 1948 (62 Stat. 1009), Congress excluded those who, after fleeing from their home countries, had been received for "permanent residence" elsewhere. In the Refugee Relief Act of August 7, 1953 (67 Stat. 400), Congress included as a condition precedent the fact that the refugee was "not firmly resettled" elsewhere. In the Refugee Act of September 11, 1957 (71 Stat. 639), however, these words were omitted and the phrase "not a national" (of the intermediate country) was substituted. This substituted language was repeated in the Fair Share Refugee Act of July 14, 1960 (74 Stat. 504, 505), and also in the Refugee Assistance Act of June 28, 1962 (76 Stat. 121). It was repeated again in the act now before us.

Whether appellee was firmly...