Lam Leung Kam v. Esperdy

• Decision Date: 07 August 1967
• Docket Number: 2820,No. 67 Civ. 2833,2934.,67 Civ. 2833
• Citation: 274 F. Supp. 485
• Parties: LAM LEUNG KAM (A15 976 129), Plaintiff, v. P. A. ESPERDY, as District Director of the Immigration and Naturalization Service for the District of New York, Defendant. WONG KAM CHEUNG (A15 878 180) and Tung Shing Ho (A15 759 137), Plaintiffs, v. P. A. ESPERDY, as District Director of the Immigration and Naturalization Service for the District of New York, Defendant. CHIM PING (A15 942 827) and Ip Fui (A15 975 897), Plaintiffs, v. P. A. ESPERDY, as District Director of the Immigration and Naturalization Service for the District of New York, Defendant.
• Court: U.S. District Court — Southern District of New York

274 F. Supp. 485

LAM LEUNG KAM (A15 976 129), Plaintiff, v. P. A. ESPERDY, as District Director of the Immigration and Naturalization Service for the District of New York, Defendant.

WONG KAM CHEUNG (A15 878 180) and Tung Shing Ho (A15 759 137), Plaintiffs, v. P. A. ESPERDY, as District Director of the Immigration and Naturalization Service for the District of New York, Defendant.

CHIM PING (A15 942 827) and Ip Fui (A15 975 897), Plaintiffs, v. P. A. ESPERDY, as District Director of the Immigration and Naturalization Service for the District of New York, Defendant.

Nos. 67 Civ. 2833, 2820, 2934.

United States District Court S. D. New York.

August 7, 1967.

Lebenkoff & Coven, New York City, for plaintiffs.

Robert M. Morgenthau, U. S. Atty. for S. D. New York, for defendant, by Daniel Riesel, Sp. Asst. U. S. Atty., New York City.

MANSFIELD, District Judge.

These suits by alien seamen to stay their deportation to Hong Kong all raise the same question:

Where, pursuant to the Immigration and Nationality Act,¹ as amended, Title 8 U.S.C. § 1252, a deportation order was entered against an alien after according him due process, was it an abuse of discretion for the District Director of Immigration and Naturalization to refuse to stay such deportation pending hearing and determination of the alien's petition to reopen his deportation proceeding?

The essential facts with respect to each of the plaintiffs are not in dispute. Each is a native and citizen of the Republic of China, who was admitted to the United States as an alien seaman authorized to remain here during his vessel's stay in port but not to exceed 29 days, pursuant to § 252(a) of the Act (8 U.S.C. § 1282 (a)), and each thereafter remained unlawfully in the United States until he was apprehended.

Proceedings for the deportation of each of the plaintiffs were then duly instituted pursuant to the provisions of the Act and each alien was afforded a hearing before a Special Inquiry Officer pursuant to § 242(b) (8 U.S.C. § 1252 (b)), following which the Officer concluded in each case that the alien was deportable under § 241(a) (2) of the Act (8 U.S.C. § 1251(a) (2)), and ordered that he be deported to Hong Kong, the country designated by him pursuant to § 243(a) of the Act (8 U.S.C. § 1253). In each case the alien was granted the privilege of voluntary departure pursuant to § 244(e) (8 U.S.C. § 1254(e)).

The dates of entry and of deportation hearings for the plaintiffs were as follows:

                                       Date of Entry       Date of Hearing
                Lam Leung Kam          Feb. 8, 1966          July 18, 1966
                Wong Kam Cheung        May 5, 1965           Oct. 5, 1965
                Tung Shing Ho          April 30, 1966        June 21, 1966
                Chim Ping              June 5, 1963          June 18, 1965
                Ip Fui                 Oct. 4, 1964          Nov. 29, 1966
                

None of the plaintiffs appealed from the order of the Special Inquiry Officer. When each failed to depart voluntarily within the time fixed by the District Director, each was ordered to surrender for deportation on a specified date. Thereupon they applied for stays of deportation and classification as refugees pursuant to § 203(a) (7) (8 U.S.C. § 1153(a)), which were denied, whereupon they immediately instituted declaratory judgment actions, following which their counsel stipulated for withdrawal of the actions on the understanding that their status would be determined by the ultimate decision in pending declaratory judgment actions, Chan Hing v. Esperdy, 262 F.Supp. 973 (S.D.N.Y. 1966), affd., 371 F.2d 772 (2d Cir. 1966), cert denied, 386 U.S. 1017, 87 S.Ct. 1372, 18 L.Ed.2d 454 (April 24, 1967), and Tai Mui v. Esperdy, 263 F.Supp. 901 (S.D.N.Y. 1966), affd., 371 F.2d 772 (2d Cir. 1966), cert. denied, 386 U.S. 1017, 87 S.Ct. 1372, 18 L.Ed.2d 454 (April 24, 1967).

When the Goverment's position in both of the aforementioned cases was sustained, the District Director again made arrangements for the deportation of each of the plaintiffs ordering them to appear on specified dates for deportation. Plaintiffs, while conceding they are deportable, then moved to reopen their deportation proceedings to permit them to apply for stays of deportation, two (Chim Ping and Ip Fui) pursuant to § 243(h) (8 U.S.C. § 1253(h)),² and the remainder to permit them to withdraw their designation of Hong Kong as the country of deportation, see 8 C.F.R. § 242.2; Chao Chin Chen v. Murff, 168 F.Supp. 349 (S.D.N.Y. 1958). The motions of Wong Cheung and Tung Shing Ho to reopen were filed on July 20, 1967, Lam Leung Kam on July 21, 1967, and Chim Ping and Ip Fui on July 25, 1967. The motions of the first three were accompanied by one-page affidavits, identical in form and language, stating as grounds for their applications:

"4. That since my deportation hearing in July 18, 1967, the situation has changed radically and I no longer wish to be deported to that country. That at the time of my hearing I, in good faith, designated Hong Kong as the place to which I wished to be deported to. In view of the change of circumstances in Hong Kong since my hearing, I ask that I be given an opportunity to withdraw such designation."

The motions of Chim Ping and Ip Fui likewise were supported by affidavits, identical in form, stating that in the latter part of the 1950's each had fled from the mainland of China because of the Communist control of that country and

"5. That I am anti-Communist and I have opposed Communism wherever I have resided.

"6. That since my deportation hearing in June of 1965 the situation in Hong Kong has changed radically and the Communist influence in that British Crown Colony has become substantially greater and the Communist threat has become a more severe problem.

"7. That it is my belief that I will be persecuted in Hong Kong if I am deported to that country."

Each of the aforementioned applications for a stay was promptly denied by the District Director, who advised Chim Ping and Ip Fui that their applications were "not supported by any probative evidence indicating that you would be subject to persecution on account of race, religion or political opinion, if deported to Hong Kong", and directed all plaintiffs to surrender promptly for deportation. Thereupon plaintiffs instituted the present lawsuits. Pending this Court's determination of the plaintiffs' applications for a stay of deportation, execution of the deportation orders have been stayed.

Having had the full benefit of procedural due process in their deportation hearings, including a written statement of the charges against them, the opportunity to present evidence and to object on cross-examination, a fair hearing and a finding by a Special Inquiry Officer, with right of review, plaintiffs cannot merely by filing a petition to reopen require that these procedural steps be repeated before they may be deported. If such were the law, all deportations could be permanently frustrated by the mere filing of successive petitions to reopen. To forestall such an abuse of the due process procedures established under the Act, § 243(a) thereof (8 U.S.C § 1253 (a)) expressly provides that the alien shall "promptly" designate the country to which he is to be deported and that "no alien shall be permitted to make more than one such designation"; and 8 C.F. R. § 242.17(c) provides that the alien shall apply for temporary withholding of deportation under § 243(h) of the Act "not more than 10 days" after notice of his right to do so. The Regulations further provide, 8 C.F.R. § 103.5, that

"The filing of a motion to reopen or a motion to reconsider or of a subsequent application after notice of denial shall not, unless the Service directs otherwise, serve to stay the execution of any decision made in the case or to extend a previously set departure date."

Against such a background, the plaintiffs, in order to obtain a stay of deportation, bear the burden of showing that their applications have merit, that reopening of their...