Chinese American Civic Council v. Attorney General of U.S., 75-1870

• Decision Date: 11 October 1977
• Docket Number: No. 75-1870,75-1870
• Citation: 566 F.2d 321,185 U.S.App.D.C. 1
• Parties: CHINESE AMERICAN CIVIC COUNCIL et al., Appellants, v. ATTORNEY GENERAL OF the UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 321

566 F.2d 321

185 U.S.App.D.C. 1

CHINESE AMERICAN CIVIC COUNCIL et al., Appellants, v. ATTORNEY GENERAL OF the UNITED STATES.

No. 75-1870.

United States Court of Appeals District of Columbia Circuit.

Argued May 24, 1976.

Decided Oct. 11, 1977.

Jack Wasserman, Washington, D.C., with whom Mark A. Mancini, Washington, D.C., was on the brief for appellants.

Richard I. Chaifetz, Atty., Dept. of Justice, Washington, D.C., with whom B. Franklin Taylor, Jr., Acting Chief, Government Regulations Section, Crim. Div., Dept. of Justice, and James P. Morris, Atty., Dept. of Justice, Washington, D.C., were on the brief for appellee.

Before TAMM and MacKINNON, Circuit Judges, and KAUFMAN, ^* District Judge for the District of Maryland.

Opinion for the court filed by Circuit Judge MacKINNON.

Opinion filed by KAUFMAN, District Judge, concurring specially.

MacKINNON, Circuit Judge:

Between 1949 and 1956 the five Chinese appellants here fled to Hong Kong to escape communist persecution in their native land. They have resided in Hong Kong ever since. When their 1971-72 applications for conditional entry into the United States as Seventh Preference refugees were denied by the District Director at Hong Kong of the United States Immigration and Naturalization Service (INS), they sought judicial review. In that proceeding the District Court found that appellants ¹ lacked standing and dismissed the suit. In its opinion the court also noted that appellants in any event were not entitled to relief on the merits since the evidentiary record they presented to the Immigration Service indicated they were "firmly resettled" in Hong Kong and thus did not demonstrate that they were still refugees within the controlling statute, 8 U.S.C. § 1153(a)(7). Chinese American Civic Council v. Attorney General, 396 F.Supp. 1250 (D.D.C.1975). We affirm the District Court upon the substantive grounds relied upon by the District Director.

I.

The individual appellants, all originally citizens of China, fled to Hong Kong at various times after the communists assumed power in that country. They arrived in Hong Kong between 1949-1956 and all obtained and presently possess Hong Kong Identity Cards. ² Appellant, Chinese American Civic Council, is a non-profit organization which sponsors and provides assistance to conditional entrants and refugees.

Appellants filed applications for conditional entry pursuant to 8 U.S.C. § 1153(a)(7) ³ in 1971 and 1972 with the District Director of the United States Immigration and Naturalization Service in Hong Kong. ⁴ All five applications were considered, as the statute requires, by "an Immigration and Naturalization Service Officer" who notified each applicant by letter that he was satisfied from his "careful inquiry" they were "not eligible for the benefits of section 203(a)(7) of the Immigration and Naturalization Act." ⁵

In deciding on the evidence presented to him that each applicant was "not eligible for the benefits under section 203(a)(7)," supra, because each of them "is firmly resettled outside the country from which he fled," (emphasis added) the Immigration Officer was denying Seventh Preference entry in accordance with the Supreme Court decision in Rosenberg v. Yee Chien Woo, 402 U.S. 49, 91 S.Ct. 1312, 28 L.Ed.2d 592 (1971). ⁶

Although appellants have never been in the United States they challenged the denials of their applications by suits in the United States District Court for the District of Columbia requesting a declaratory judgment, pursuant to 8 U.S.C. § 1329 and 28 U.S.C. § 704. Their basic complaint is that the denials by the INS were arbitrary, capricious, contrary to law and invalid. Upon the alternative motion by the INS to dismiss or for summary judgment the District Court found that appellants lacked standing. It also observed that standing "apparently has never been granted to a person outside the United States challenging the denial of entry or immigration eligibility" and that serious practical consequences would result should a person "anywhere in the world" be afforded access to the federal courts to contest immigration eligibility. 396 F.Supp. at 1251. With respect to the Chinese American Council the court found that it also lacked standing for want of "concrete injury to itself or to its members." Id. at 1252. We affirm that finding without further discussion. Laird v. Tatum, 408 U.S. 1, 13, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972); Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); Ex Parte Levitt, 302 U.S. 633, 634, 58 S.Ct. 1, 82 L.Ed. 493 (1938).

More important to our decision, the District Court also stated that even if appellants had standing, on the factual record here, they were "confronted with an almost irrebuttable presumption that at the present time, twenty to twenty-five years after having left mainland China, they have 'firmly resettled' in Hong Kong and are no longer 'in search of refuge.' " Id., n. 2. The court reached this conclusion independent of any application of the "Hong Kong seven year rule" which the District Director had referred to in his letter to appellants denying their applications because he found them to be "firmly resettled." ⁷ One plaintiff, Shui Chong Kwan, was found to have standing since he had been in the United States since 1967, a factor clearly distinguishing him, for purposes of standing, ⁸ from the other plaintiffs. His case was remanded to the INS for further proceedings. Accordingly, Kwan did not appeal.

II

The parties have argued on appeal both the standing question and the merits of whether appellants were wrongfully denied refugee status by the INS District Director. Accordingly, we are not pressed to reach a decision on the standing issue since applicable legal standards lead us to conclude that the Immigration officer correctly decided on the record before him that appellants are not refugees under 8 U.S.C. § 1153(a)(7). Prudential considerations also restrain us from deciding the difficult and unquestionably far-reaching standing question when the merits of the case readily provide a fair, clear resolution of the appeal. ⁹

Finally, we find that the record on appeal provides us with an adequate basis for affirming the District Court's order on grounds other than lack of standing.

The District Court not only had before it a motion to dismiss and a motion for summary judgment but also, as the court's decision states, ¹⁰ considered the "entire administrative record" and heard argument. Our review of the record accordingly leads us to conclude that summary judgment could have been entered in favor of appellees on the same substantive grounds that the agency relied upon. ¹¹ We therefore affirm the District Court's order on the ground that the motion for summary judgment should have been granted. ¹²

III

Turning, then, to the merits of appellants' claim, we find that the undisputed facts which were presented to the Immigration officer by appellants, specifically that sixteen to twenty years had elapsed between appellants' departures from China and their applications for refugee status, clearly were sufficient to support his conclusion that appellants were not entitled to conditional entry. Appellants did not present any facts to rebut the normal conclusion from such extended residence that appellants were firmly resettled and no longer in flight. On that ground we affirm the judgment of the District Court. Our ground for this conclusion is based on the same reason expressed in the letter of the Immigration officer, ¹³ i. e., that appellants have "firmly resettled" so as not to be refugees under section 1153(a)(7). ¹⁴ This result is supported by the Supreme Court's decision in Rosenberg v. Yee Chien Woo, 402 U.S. 49, 91 S.Ct. 1312, 28 L.Ed.2d 592 (1971).

In Rosenberg, the Court was faced with an appeal from an INS decision in the United States denying refugee status to a Chinese national. The appellant Woo, fled communist China in 1953, lived in Hong Kong until 1960 and then moved to the United States upon receiving a temporary permit. When the permit expired the INS initiated deportation proceedings and Woo countered by applying for an immigrant visa claiming Seventh Preference rights as a refugee under section 1153(a)(7). The INS denied the application on the ground that to qualify an applicant's "physical presence in the United States (must be) a consequence of an alien's flight in search of refuge." 402 U.S. at 57, 91 S.Ct. at 1316. Woo successfully challenged this ruling in District Court which reversed ¹⁵ the INS. The Ninth Circuit affirmed the District Court and stated that "(w) hether appellee has firmly resettled in Hong Kong is not . . . relevant." Chien Woo v. Rosenberg, 419 F.2d 252, 254 (9th Cir. 1969).

The Supreme Court, in reversing the Ninth Circuit and affirming the standard employed by the INS, provides particular guidance for deciding this case. The Court first found that the concept of resettlement was, contrary to the Ninth Circuit's view, essential to the inquiry Congress intended the INS to make in reviewing applications for refugee status. ¹⁶ Next, in what we consider to be dispositive of our case, the Court approved the standard employed by the INS in assessing whether Woo had resettled:

The District Director applied the correct legal standard when he determined that § 203(a)(7) requires that "physical presence in the United States (be) a consequence of an alien's flight in search of refuge," and further that "the physical presence must be one which is reasonably proximate to the flight and not one following a flight remote in point of time or interrupted by intervening residence in a third country reasonably constituting a termination of the original flight in search of refuge."

402 U.S. at 57, 91 S.Ct. at 1317 (footnote omitted, emphasis added).

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