Kam Ng v. Pilliod, 12875.

• Citation: 279 F.2d 207
• Decision Date: 22 July 1960
• Docket Number: No. 12875.,12875.
• Parties: KAM NG, also known as Jimmy Eng, Plaintiff-Appellant, v. Alva L. PILLIOD, District Director, Chicago District, United States Department of Justice, Immigration and Naturalization Service, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

279 F.2d 207 (1960)

KAM NG, also known as Jimmy Eng, Plaintiff-Appellant, v. Alva L. PILLIOD, District Director, Chicago District, United States Department of Justice, Immigration and Naturalization Service, Defendant-Appellee.

No. 12875.

United States Court of Appeals Seventh Circuit.

June 16, 1960.

Rehearing Denied July 22, 1960.

COPYRIGHT MATERIAL OMITTED

William Greenhouse, Chicago, Ill., for appellant.

Robert Tieken, U. S. Atty., Elmer M. Walsh, Jr., John Peter Lulinski, Asst. U. S. Attys., Chicago, Ill., of counsel, for appellee.

Before DUFFY and KNOCH, Circuit Judges, and GRUBB, District Judge.

GRUBB, District Judge.

This is an appeal from an order granting defendant's motion for summary judgment in an action to review the orders of the Immigration and Naturalization Service denying appellant's applications for suspension and withholding of deportation.

Appellant, Kam Ng, is a thirty-three year old single male alien who was born in China. He entered the United States as a seaman in 1943 and has since resided in Chicago, Illinois. His parents and a married younger brother live in Hong Kong.

In September, 1957, the Immigration and Naturalization Service issued an order to show cause why appellant should not be deported. Appellant then filed an application for suspension of deportation under Section 244(a) (1) of the Immigration and Nationality Act, 8 U.S.C. A. § 1254(a) (1). After hearing on the application, the Special Inquiry Officer ordered suspension of deportation. In reaching the conclusion that Kam Ng would suffer exceptional and extremely unusual hardship if deported, the Officer relied on appellant's testimony that he would be persecuted in China for his anti-communist beliefs and that he had no place to go. The Special Inquiry Officer further ordered that Kam Ng be granted voluntary departure if Congress¹ did not concur in suspending deportation.

The Regional Commissioner who reviewed the case did not concur in the granting of suspension of deportation and ordered the matter certified to the Board of Immigration Appeals. The Board reversed the decision of the Special Inquiry Officer and ordered appellant deported on the charge contained in the order to show cause. Upon consideration of the entire evidence of record, the Board concluded that there was an insufficient showing of hardship to warrant the granting of the extraordinary relief of suspension of deportation where a deportable alien was not married, had no close relatives in the United States, and could return to Hong Kong where his parents resided. With respect to appellant's claim of physical persecution if he were deported to China, the Board stated that he had an adequate remedy under Section 243(h) of the Act providing for withholding of deportation.

Appellant's application to withhold deportation under Section 243(h) of the Act, and, in the alternative, for voluntary departure, followed. On recommendation of the Special Inquiry Officer who conducted the hearing on the application, the request for stay of deportation was denied by the Regional Commissioner on the ground that appellant's belief that he would be returned to the Chinese mainland if he were deported to Hong Kong was unsupported by the evidence. The Regional Commissioner stated that the British Consulate General in Chicago had received authority to issue appellant an entry visa to Hong Kong and concluded that there was no reason to believe that appellant's status in Hong Kong "will be anything less than a permanent resident."

On June 24, 1959, appellant commenced this action in the district court, alleging that the water shortage and water rationing in Hong Kong would endanger his health because of his kidney condition and that his deportation to any country after sixteen years of law-abiding residence in the United States would constitute exceptional and extremely unusual hardship. The district court granted the motion for summary judgment on the grounds that appellant had been accorded procedural due process and fair consideration by the Attorney General or his representatives and that the denial of suspension and of withholding of deportation was not an abuse of discretion as shown by the entire record, including the certified record of the administrative proceedings.

The argument advanced on this appeal is twofold: (1) The complaint states facts upon which some relief should have been granted, and (2) the denial of relief by the administrative agency was arbitrary and capricious because the Immigration and Naturalization Service publicly invited and encouraged Chinese aliens to come forward voluntarily to adjust their status under the Chinese "confession" program, and also because the Special Inquiry Officer who heard the application for suspension of deportation had recommended that relief be granted.

Section 244(a) (1) of the Act authorizes the Attorney General to suspend deportation of an alien of good moral character who has been physically present in the United States for not less than seven years preceding the application and "whose deportation would, in the opinion of the Attorney General, result in exceptional and extremely unusual hardship to the alien * * *." Section 243(h) authorizes the Attorney General to withhold deportation of any alien within the United States to any country in which, in the opinion of the Attorney General, the alien would be subject to physical persecution.

The granting of the relief provided by these sections lies within administrative discretion and grace. United States ex rel. Hintopoulos v. Shaughnessy, 1957, 353 U.S. 72, 77 S.Ct. 618, 1 L. Ed.2d 652; Tadashi Miyaki v. Robinson, 7 Cir., 1958, 257 F.2d 806, certiorari denied 358 U.S. 894, 79 S.Ct. 155, 3 L.Ed.2d 120. Judicial review of discretionary administrative action is limited to the questions whether the applicant has been accorded procedural due process and whether the decision has been reached in accordance with applicable rules...