Lam Tat Sin v. Esperdy

• Decision Date: 03 March 1964
• Citation: 227 F. Supp. 482
• Parties: LAM TAT SIN, Plaintiff, v. P. A. ESPERDY, as District Director of the Immigration and Naturalization Service, Defendant.
• Court: U.S. District Court — Southern District of New York

227 F. Supp. 482

LAM TAT SIN, Plaintiff, v. P. A. ESPERDY, as District Director of the Immigration and Naturalization Service, Defendant.

United States District Court S. D. New York.

March 3, 1964.

Lebenkoff & Coven, New York City, for plaintiff; Jules E. Coven, New York City, of counsel.

Robert M. Morgenthau, U. S. Atty., S. D. New York, for defendant; Roy Babitt, Special Asst. U. S. Atty., of counsel.

DAWSON, District Judge.

This action is here on an order to show cause why an order of deportation against the plaintiff should not be stayed and on motion for summary judgment for the defendant.

The complaint in this action admits that plaintiff is an alien, subject to a valid order of deportation to Hong Kong, but asserts that the plaintiff is an intended beneficiary of a policy of the Immigration and Naturalization Service termed, by the complaint, a "moratorium upon the deportation of Chinese aliens to the Far East." The order to show cause directs a temporary stay of the order of deportation and directs defendant Esperdy, as District Director for the New York District of the Immigration and Naturalization Service, to show cause why the order of deportation should not be stayed and why the plaintiff should not be permitted to remain free on bond pending the determination of these issues.

The statutory framework surrounding this action is provided by the Immigration and Nationality Act, Chapter 12 of Title 8 U.S.C. Section 241 of the Act states that "any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General, be deported who * * * is in the United States in violation of this Act or in violation of any other law of the United States." The applicability of Section 241 has been admitted by the plaintiff.

Section 242(b) of the Act provides the procedure which should be used to determine the deportability of any alien. No objection to the procedure followed in this case has been raised. Section 242 (c) provides that the Attorney General shall effect the alien's departure from the United States within six months of a final order of deportation. However, the section goes on to say that

"If deportation has not been practicable, advisable, or possible, or departure of the alien from the United States under the order of deportation has not been effected, within such six-month period, the alien shall become subject to such further supervision and detention pending eventual deportation as is authorized in this section. * * *"

Section 242(d) authorizes regulations governing the supervision of aliens who have remained in the United States beyond the six month period.

Section 243 deals with the country to which the alien shall be deported. Section 243(h) authorizes the Attorney General to withhold deportation to any country in which in his opinion the alien would be subject to physical persecution. No objection has been raised in this case as to the country to which the plaintiff is to be sent.

Section 244 provides that the Attorney General may in his discretion suspend deportation and adjust the status of certain aliens lawfully admitted for permanent residence. Plaintiff has not claimed relief under this section.

This Court has jurisdiction¹ under Section 279 of the Immigration and Nationality Act, 8 U.S.C.A. § 1329, and Section 10 of the Administrative Procedure Act, 5 U.S.C.A. § 1009. Section 279 of the Immigration and Nationality Act states that:

"The district courts of the United States shall have jurisdiction of all causes, civil and criminal, arising under any of the provisions of the Immigration and Nationality Act, subchapter II, 8 U.S.C. §§ 1151-1400."

Jurisdiction in this action is not affected by Section 106 of the Act (8 U. S.C. § 1105a). Section 106 provided for direct judicial review in the Court of Appeals of "all final orders of deportation." Plaintiff is not challenging the order of deportation in this case, but is seeking a stay of an admittedly valid order. See Foti v. Immigration and Naturalization Service, 375 U.S. 217, 84 S. Ct. 306, 11 L.Ed.2d 281 (1963).²

Plaintiff does not challenge the order of deportation or the warrant of deportation. He is challenging the act of deportation itself which he claims is contrary to a policy of maintaining a "moratorium upon the deportation of Chinese aliens to the Far East."

Plaintiff has offered no proof as to the existence of the alleged moratorium. In oral argument plaintiff stated that he relies upon admissions of the defendant contained in the affidavit of Roy Babitt submitted in opposition to the order to show cause and in favor of the motion for summary judgment. Presumably plaintiff intends to rely upon the following language:

"9. Your deponent concedes a general political policy of the Attorney General of forbearance, at present, from enforcing expulsion of Chinese to Hong Kong. This policy, does not, however, preclude the Attorney General from considering whether or not specific classes of cases should remain under this stay or whether, all relevant facts being considered, they should be taken out of this general stay policy.

"10. In the instant case, upon consideration of all the relevant factors in the plaintiff's immigration status, the Attorney General has concluded that the general policy is not applicable to the plaintiff and to those in similar posture * * *."

Further explanation of this policy of forbearance can be found in defendant's brief. Apparently the forbearance is a result of the refugee problem in Hong Kong and some other free areas of Asia resulting from an influx of refugees from Red China. It appears from defendant's brief that early in 1962 President Kennedy

"* * * indicated a willingness to temporarily cease the flow of traffic to those countries of people in the United States. Apparently this was translated by the Executive Branch of the Government into a temporary deferral of deportation of people in the United States who would be destined to the Far East, and in particular Hong Kong and Formosa. There does not seem to have been a regulation or a statute embodying this but rather a broad political policy determination. But this policy determination was of a general character and it did not purport to be anything more than a matter of temporary Executive grace which could be withdrawn at any time as to all or as to part of those aliens who, notwithstanding their clear deportability became the beneficiaries of the political problem in Hong Kong and Formosa." (Defendant's brief, p. 7)

The reason advanced by the defendant for not following the general policy of forbearance in this case is "a complete lack of good faith with the Government on the part of the plaintiff and indeed, affirmatively speaking, a clear showing of bad faith." (Defendant's brief, p. 9). This bad faith is established as follows:

"Reading between the lines it is crystal clear that plaintiff hopes to accomplish two things at one fell swoop: he has now gotten off the hook of electing the Mainland of China a place to which he never wished to go and now wishes to get off the hook of expulsion to Hong Kong by pointing to the fact that the Attorney General is not moving Chinese aliens to that place." (Defendant's brief, p. 12)

The facts in this action appear in the administrative file of the Immigration and Naturalization Service handed to the Court by the defendant on argument without objection from the plaintiff. The facts contained therein are briefly as follows:

1. Plaintiff entered the United States at Honolulu on January 20, 1962, as a crewman authorized to remain in the United States as long as the vessel on which he arrived remained in port, but not more than 29 days. Plaintiff remained in the United States for a longer time than permitted. On May 7, 1962, an order was issued by the Immigration and Naturalization Service to plaintiff to show cause why he should not be deported.

2. On May 9, 1962, a hearing was held before a Special Inquiry Officer. At that hearing the plaintiff testified to the following effect: Plaintiff was born in the village of Foo Chow on the Chinese mainland. He served in the Chinese navy based at Taiwan between 1947 and 1949. In 1951 he moved to Hong Kong and became a sailor, leaving his family on the mainland. Since then he has seen his family only once, in 1957 and 1958, when he returned to the mainland for three months. In response to questioning by the Special Inquiry Officer, plaintiff chose the mainland of China as the country to which he would like to be sent if deported. Plaintiff's counsel admitted that plaintiff was deportable, and waived plaintiff's right to request withholding of deportation on the ground of possible physical persecution (8 U.S.C.A. § 1253 (h)).

The Special Inquiry Officer delivered an oral statement of his decision and ordered plaintiff deported to the mainland of China (pursuant to his choice) if the government on the mainland would accept him. Formosa, as the country of his nationality, was named as an alternative; Hong...