Dong Wing Ott v. Shaughnessy

• Decision Date: 17 July 1956
• Citation: 142 F. Supp. 379
• Parties: DONG WING OTT and Dong Wing Han, Plaintiffs, v. Edward J. SHAUGHNESSY, District Director, Immigration and Naturalization Service, for the District of New York, Defendant.
• Court: U.S. District Court — Southern District of New York

142 F. Supp. 379

DONG WING OTT and Dong Wing Han, Plaintiffs, v. Edward J. SHAUGHNESSY, District Director, Immigration and Naturalization Service, for the District of New York, Defendant.

United States District Court S. D. New York.

July 17, 1956.

Elmer Fried, New York City, for plaintiffs.

Paul W. Williams, U. S. Atty., S. D. New York, New York City, for defendant (Charles J. Hartenstine, Jr., Roy Babitt, New York City, of counsel).

THOMAS F. MURPHY, District Judge.

Plaintiffs move for an injunction restraining their deportation and defendant counters for summary judgment dismissing the complaint.

Plaintiffs are Chinese natives who arrived in the United States on April 25, 1952. They sought admission as United States citizens as the sons of a native born American citizen father and a legally resident alien mother. After hearings before a Board of Special Inquiry the plaintiffs were ordered excluded and deported from the United States. Thereafter, writs of habeas corpus issued on behalf of plaintiffs were dismissed and the order affirmed by the Court of Appeals. U. S. ex rel. Dong Witt Ott v. Shaughnessy, D.C., 116 F.Supp. 745, affirmed 2 Cir., 220 F.2d 537.

Meanwhile, commencing October, 1954, plaintiffs were released on bond from defendant's custody and are still free of such custody and actually working in the City of New York. The validity of the order of deportation insofar as the question of plaintiffs' citizenship is concerned is not in issue. The present suit arises because of plaintiff's application for a stay of deportation to China based upon the claim that they would be subject to physical persecution if deported to China, relying on § 243(h) of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1253(h). After first accepting the plaintiffs' application together with the required fee the defendant returned the fee and advised plaintiffs that their applications were denied on the ground that they were not eligible to apply since they were "excluded" aliens and were not "aliens within the United States." As a result of this denial plaintiffs instituted this action seeking a declaratory judgment and injunction compelling the defendant to receive the applications and to consider the applications on the merits pursuant to the procedure established in 8 C.F.R. § 243.3(b) (2).

Whether or not the defendant rightly or wrongly refused to accept the plaintiffs' applications for the relief provided in § 243(h) turns on the subsidiary question whether the relief provided for in that section is available to aliens who are in the excluded class.

Section 243(h) is part of Title 2, Chapter 5, of the Immigration and Nationality Act of 1952, entitled "Deportation; Adjustment of Status" and provides:

"(h) The Attorney General is authorized to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to physical persecution and for such period of time as he deems to be necessary for such reason."

In 1925 Mr. Justice Holmes, writing for the full bench, held in Kaplan v. Tod, 267 U.S. 228, 45 S.Ct. 257, 69 L.Ed. 585, that an alien was not dwelling within the United States for the purposes of naturalization even though she was in fact actually...