Lam Tat Sin v. Esperdy

• Decision Date: 13 July 1964
• Docket Number: No. 467,Docket 28816.,467
• Parties: LAM TAT SIN, Plaintiff-Appellant, v. P. A. ESPERDY, as District Director of the Immigration and Naturalization Service, New York District, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

334 F.2d 999 (1964)

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

No. 467, Docket 28816.

United States Court of Appeals Second Circuit.

Argued April 16, 1964.

Decided July 13, 1964.

Lebenkoff & Coven, New York City (Abraham Lebenkoff and Jules E. Coven, New York City, of counsel), for plaintiff-appellant.

Roy Babitt, Sp. Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty. for Southern District of New York, of counsel), for the United States of America.

Before MOORE, FRIENDLY and HAYS, Circuit Judges.

Certiorari Denied November 9, 1964. See 85 S.Ct. 190.

MOORE, Circuit Judge:

Plaintiff-appellant Lam Tat Sin brought this suit to review appellee's action in calling him to surrender for deportation to Hong Kong. He appeals from the district court's dismissal of his complaint and its award of summary judgment in favor of appellee.

Appellant, a citizen of the Republic of China on Formosa, arrived in the United States as a crewman with Hong Kong travel documents in January, 1962. He remained here beyond the period of his shore leave and in May, 1962, became the subject of deportation proceedings. At the hearing before the Special Inquiry Officer, appellant did not challenge his deportability and pursuant to Section 243(a) of the Immigration and Nationality Act, 8 U.S.C.A. § 1253(a)¹ designated the mainland of China as the place to which he wished to be sent. Accordingly, the Special Inquiry Officer on May 9, 1962 ordered appellant deported to that country, but, as an alternative if deportation could not be effected there, then to the Republic of China on Formosa and as a second alternative to Hong Kong. Appellant did not appeal from this order.

On February 21, 1963, when informed by an Immigrant Inspector that it was expected that a travel document would be issued by the government on the Chinese mainland, appellant re-affirmed his original preference for deportation to the mainland. By May 6, 1963, the formal consent for the return of appellant and two other aliens had been obtained from the government on the mainland. However, when appellant was told in October, 1963 that his deportation was imminent, he moved to have the Attorney General withhold expulsion under 8 U.S.C.A. § 1253(h) and to re-open the deportation proceeding alleging that he would be physically persecuted on the Chinese mainland because of his unwillingness to accept Communist rule. The Special Inquiry Officer held that appellant's application constituted a withdrawal of designation and that the application for withholding of deportation to the Chinese mainland had thus become moot. He denied the motion but resettled the order to provide for deportation to the Republic of China on Formosa, which earlier had refused to accept appellant, and in the alternative, to Hong Kong. Appellant does not challenge any aspect of the proceedings before the Special Inquiry Officer.

Appellant's argument focuses on an Executive policy determination to withhold involuntary deportations of Chinese aliens to the Far East. Appellee does not dispute the existence of "a general political policy of the Attorney General of forbearance, at present, from enforcing expulsion of Chinese to Hong Kong," but urges that the Attorney General is not barred from determining that a specific class of aliens should not be beneficiaries of this "broad act of administrative grace." Appellee emphasizes that there is no statute, executive order or regulation embodying this general policy and that the policy itself does not purport to set out rigid guide lines.

The district court found that the reason for staying the deportation of aliens to Hong Kong is to lessen refugee pressure in that area of Asia, where the influx of refugees from the mainland of China is acute, and in furtherance of that goal the Attorney General need not stay all orders but may distinguish between orders on any reasonable basis. The court held that "the degree of good faith the alien exhibits in his dealings with the Government is one such reasonable basis." We agree.

Underlying the Attorney General's determination that appellant should be removed from the United States is the history of section 243(a) of the Immigration and Nationality Act in the courts. In United States ex rel. Tom Man v. Murff, 264 F.2d 926 (2d Cir. 1959), this court held that before an alien might be deported, the consent of the receiving country must be procured. See also Lu v. Rogers, 164 F.Supp. 320 (D.D.C.1958), ...