Fong v. Immigration and Naturalization Service
Decision Date | 27 June 1962 |
Docket Number | No. 17744.,17744. |
Citation | 308 F.2d 191 |
Parties | Louie King FONG, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
Court | U.S. Court of Appeals — Ninth Circuit |
Sullivan, Redman & Winsor, and John J. Sullivan, Seattle, Wash., for appellant.
Brockman Adams, U. S. Atty., and Phillip DeTurk, Asst. U. S. Atty., Seattle, Wash., for appellee.
Before POPE, HAMLEY and BROWNING, Circuit Judges.
This case was first instituted by the filing of a complaint in the District Court of the United States for the Western District of Washington, by Fong, as plaintiff, against John P. Boyd, District Director of Immigration and Naturalization Service of the United States Department of Justice, as defendant. The complaint sought judicial review by way of a declaratory judgment of a deportation order of the Immigration and Naturalization Service through its special inquiry officer, which found and determined that the plaintiff Fong was, as a deportable alien, not eligible to apply for or obtain suspension of deportation under Sec. 244(a) of the Immigration and Nationality Act of 1952, (8 U.S.C.A. § 1254(a)).1
After answer had been filed in the district court, the litigation there was carried through a pretrial hearing and entry of a pretrial order in which all the facts of the case were stipulated by the parties. Thereafter, and before any further hearing was had in the district court, the Act of September 26, 1961, (Public Law 87-301), 75 Stat. 650 to 657, became effective as of October 26, 1961, 18 U.S.C.A. § 1101 et seq. Section 5 of that Act provided, with certain exceptions not here relevant, that: "The procedure prescribed by, and all the provisions of the Act of December 29, 1950, as amended (64 Stat. 1129; 68 Stat. 961; 5 U.S.C. 1031 et seq.), shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation heretofore or hereafter made against aliens within the United States pursuant to administrative proceedings * * *." It also provided: "Any judicial proceeding to review an order of deportation which is pending unheard in any district court of the United States on the effective date of this section (other than a habeas corpus or criminal proceeding in which the validity of the deportation order has been challenged) shall be transferred for determination in accordance with this section to the court of appeals having jurisdiction to entertain a petition for review under this section." 8 U.S. C.A. § 1105a. The case was transferred by order of the district court to this court in accordance with the statutory provision quoted.
The record shows that prior to the filing of his complaint in the district court, (the complaint is now treated as a petition for review as provided by the Act of December 29, 1950, (5 U.S.C.A. § 1031 et seq.), petitioner had exhausted all of his administrative remedies.2
Petitioner made timely application for suspension of deportation and at a time when no final order of deportation had been served on him. In affirming the order of the special inquiry officer, the Board of Immigration Appeals, to whom the record had been certified, stated the admitted facts respecting the petitioner, as follows:
The issues considered by the administrative officers and decided against the petitioner were stated as follows:
The applicable statute, upon whose construction the outcome of this case depends, is Sec. 244(a) of the Immigration and Nationality Act of 1952, (Title 8 U.S.C.A. § 1254(a)), which undertakes to describe and define the persons to whom suspension of deportation may be granted by the Attorney General. That subdivision contains five numbered paragraphs, the fifth of which has significance here. It is the only paragraph under which petitioner could possibly apply for suspension of deportation.3 Paragraph (5), with the introductory paragraph of the section, reads as follows:
The report of the special inquiry officer noted that petitioner became deportable at various times: — "he became deportable shortly after entry by accepting employment inconsistent with non-immigrant status or by remaining longer than the period for which he was admitted, which would fix his deportable status as commencing sometime early in 1944." "He also acquired a deportable status by virtue of the charge upon which deportability is based, failure to report his address annually to the Attorney General." His first violation under this provision occurred about February 1, 1953.
It is also to be noted that the first ground for deportability would be the ground mentioned in paragraph 2 of Sec. 1251(a) of Title 8, namely, "Any alien in the United States * * * shall, upon the order of the Attorney General, be deported who — * * * (2) entered the United States without inspection or at any time or place...
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