Fan Wan Keung v. Immigration and Naturalization Serv., 821-830

• Decision Date: 19 October 1970
• Docket Number: 33920,34060,34614,34657.,No. 821-830,Dockets 33844,34343,34064-34066,34137,821-830
• Citation: 434 F.2d 301
• Parties: FAN WAN KEUNG, Chau Siu Pong, Au Ming, Cheng Sui Wa, Tam Pang Him, Ip Shu Wah, Man Loi Hing, Chau Yau Fuk, Wong Tat Kwong, Wu On Cheong, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

434 F.2d 301 (1970)

FAN WAN KEUNG, Chau Siu Pong, Au Ming, Cheng Sui Wa, Tam Pang Him, Ip Shu Wah, Man Loi Hing, Chau Yau Fuk, Wong Tat Kwong, Wu On Cheong, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Nos. 821-830, Dockets 33844, 33920, 34060, 34064-34066, 34137, 34343, 34614, 34657.

United States Court of Appeals, Second Circuit.

Argued May 26, 1970.

Decided October 19, 1970.

Anthony E. Anzalone, Stuart Wadler, New York City, for petitioners Fan Wan Keung, Chau Siu Pong, Cheng Sui Wa, Tam Pang Him, Ip Shu Wah, Wu On Cheong.

Thomas Church, New York City, for petitioners Man Loi Hing, Chau Yau Fuk.

Jules Coven, New York City, for petitioners Au Ming, Wong Tat Kwong.

T. Gorman Reilly, Asst. U. S. Atty., Stanley H. Wallenstein, Gen. Atty., INS, Whitney North Seymour, Jr., U. S. Atty., for respondent.

Before WATERMAN and FRIENDLY, Circuit Judges, and ZAMPANO, District Judge.^*

WATERMAN, Circuit Judge.

Petitioners¹ seek review of orders of the Board of Immigration Appeals denying their several motions in which they have requested reopening of their deportation proceedings so as to allow each of them reinstatement of voluntary departure. In each case the Service has moved to dismiss the petitions. We grant the motions to dismiss.² Although the facts of each case vary somewhat, the material facts in each, the facts upon which our decision is based, are sufficiently identical to warrant the consolidated treatment of all the petitions in this one opinion.

All of the petitioners are natives of China. All but Wu On Cheong, Docket No. 34657, are crewmen. Of the nine crewmen seven were permitted to enter the United States for the period of time their vessels would remain in port but not to exceed twenty-nine days. Section 252 of the Immigration and Nationality Act, 8 U.S.C. § 1282. They jumped ship and stayed here illegally. The other two, Cheng Sui Wa, Docket No. 34064, and Chau Yau Fuk, Docket No. 34343, were refused any permission to land but they nevertheless unlawfully entered the country. Wu On Cheong, Docket No. 34657, was admitted to the country as a non-immigrant visitor for pleasure but was in fact excludable because he had previously been arrested and deported as an overstaying crewman and he had not applied for permission to re-enter as required by Section 212(a) (17) of the Act. 8 U.S.C. § 1182(a) (17). All of petitioners are under outstanding orders of deportation and warrants of deportation have been issued in each case. In all but one of the cases, the discretionary privilege of voluntary departure had been granted by the Special Inquiry Officer at original deportation hearings because the aliens represented that they were able and willing voluntarily to leave without expense to the Government whenever required to do so. They all failed to depart and alternative orders of deportation took effect. In the remaining case, that of Cheng Sui Wa, the Special Inquiry Officer did not grant voluntary departure as a matter of discretion.

Five of the petitioners here presented their motions to the Board of Immigration Appeals which had original jurisdiction under 8 C.F.R. § 3.2. All of the motions were denied by the Board. Four presented theirs to the Special Inquiry Officer who had original jurisdiction under 8 C.F.R. § 242.22. He denied the motions and appeals taken therefrom were dismissed by the Board. Cheng Sui Wa, who had initially been denied voluntary departure, made a motion to the Board to reopen his case so that he could reapply for that privilege. This motion was denied by the Board.

We take the case of petitioner Fan Wan Keung for more particularized discussion. He was admitted as an alien crewman on February 17, 1969. Having remained longer than permitted, deportation proceedings against him were begun before a Special Inquiry Officer. During the course of these proceedings Fan Wan Keung applied for and was on April 7, 1969 granted the discretionary relief of voluntary departure. Under the terms of the grant he was given 30 days within which so to depart, but if he failed to leave within the prescribed period an order deporting him to Hong Kong would become effective.

Fan Wan Keung did not depart voluntarily within the 30-day period, as he had promised the Service he would, and the District Director issued a warrant for his deportation. On July 7, 1969, the day he was ordered to report for deportation he filed a motion before the Special Inquiry Officer to reopen his deportation proceedings so as to give him an opportunity to apply for reinstatement of voluntary departure and an extension of 60 days within which to do so.

The Special Inquiry Officer determined that the motion for reopening the deportation proceedings did not allege facts sufficient to warrant the granting of voluntary departure a second time and denied the motion, and on July 28, 1969 the Board dismissed the alien's appeal from that denial.

All of the other nine petitioners herein have managed to remain in the United States for even longer periods than Fan Wan Keung, one from 1964, one from 1966, six from 1967, and one from 1968. Among other devices used to delay deportation eight of them have resorted to the device of having a member of Congress introduce bills legalizing their entries, and, indeed, five of them have had bills introduced into two congressional sessions. Although no alien named herein has had a private bill favorably acted upon, the pendency of such a bill causes the Service, out of respect for the Congress, to delay enforcement of the deportation warrant until final action upon the bill or final adjournment.

The purposeful pattern found in all these cases, while varying slightly in immaterial respects from case to case, may be summed up in one word — "delay." In no case does a petitioner seriously contest the issue of his deportability. According to the statute, and on the merits of each case, not one of these petitioners should be here in this country, yet they are still here, one since as far back as in late 1964. The delays have been accomplished by resort to every applicable procedural delaying tactic known to our system of jurisprudence. The importance to deportable alien crewmen of obtaining delays in departure is set forth by the Board of Immigration Appeals in Wong Chung Pui, an unreported decision dated August 21, 1969:

Many alien crewmen have gladly availed themselves of the privileges of voluntary departure and have proceeded abroad, there to pursue the necessary steps and spend the time needed to obtain the immigrant visa required for their return here as immigrants. Others have sought to remain here indefinitely, until such time as a visa should become available. This usually requires a fairly substantial period, since normally before a visa becomes available to aliens who are crewmen by occupation there must first be obtained the labor certification required by section 212(a) (14) of the Act; then a visa petition in the alien\'s behalf must be processed and approved by the District Director; and, finally, the alien\'s turn must be reached on the quota waiting list. Once a visa becomes available, if the alien can arrange to have his visa application entertained by an American consul in a nearby country, he can make an appointment, depart from the United States long enough to pick up the visa, and return promptly and be admitted as an immigrant for permanent residence. In this way, the crewman illegally here can achieve permanent residence with only the slightest interruption in his presence and activities here.

To reach this happy ending, the crewman must somehow manage to remain here and postpone the day of his required departure by whatever means he can until the time is ripe. Some put off the day of departure by the simple process of absconding; some by contriving frivolous and dilatory litigation; some by obtaining the introduction of private bills; some by various combinations of the foregoing.

Even after contriving to remain here until the eve of the consular appointment, however, one final boon must be sought. The outstanding deportation order must be withdrawn and voluntary departure authorized. Unless this bounty is granted, the alien\'s departure executes the outstanding deportation order under section 101(g) of the Act, and permission to reapply must be sought and obtained before visa eligibility can be reacquired.

To the alien crewman intent on returning here permanently, voluntary departure is thus a privilege of the greatest importance.

In these present proceedings petitioners argue that due to a sudden "about-face" in Immigration Service policy, they were denied what had in the past been freely given, a second opportunity to depart voluntarily. Under the applicable statute an alien during the course of deportation proceedings may apply for the privilege of voluntary departure. Immigration and Nationality Act, § 244(e), 8 U.S.C. § 1254(e). According to the Regulations, 8 C.F.R. § 244.1, before the privilege may be granted by a Special Inquiry Officer, an alien must establish that "he is willing and has the immediate means with which to depart promptly from the United States." Also, according to 8 C.F.R. § 244.1, the Special Inquiry Officer may specify the time within which the alien may so depart and, according to 8 C.F.R. § 244.2, the District Director of the Service is vested with the sole jurisdiction to entertain requests to extend the time for voluntary departure that had been so granted by the Special Inquiry Officer. Apart from this regulatory base, it seems that the district director in New York had made it a practice under a procedure known as "a nunc pro tunc extension of the expired voluntary departure time" liberally to reinstate the privilege of voluntary departure when an alien had not departed within the initial period allowed him, irrespective of what may have occurred in the interim, if the alien who had failed to depart could...