Leong Leun Do v. Esperdy

• Citation: 197 F. Supp. 604
• Parties: LEONG LEUN DO a/k/a Wing Sang, Plaintiff, v. P. A. ESPERDY, District Director of Immigration and Naturalization for the District of New York, Defendant.
• Decision Date: 25 September 1961
• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

197 F. Supp. 604

LEONG LEUN DO a/k/a Wing Sang, Plaintiff, v. P. A. ESPERDY, District Director of Immigration and Naturalization for the District of New York, Defendant.

United States District Court S. D. New York.

September 25, 1961.

Benjamin Gim, New York City, for plaintiff.

Robert M. Morgenthau, U. S. Atty. for Southern Dist. of New York, New York City, for defendant. Roy Babitt, Sp. Asst. U. S. Atty., New York City, of counsel.

METZNER, District Judge.

Plaintiff instituted an action for declaratory judgment to review an order of the Immigration and Naturalization Service denying the plaintiff's application for adjustment of status under Section 6 of the Refugee Relief Act of 1953, as amended, 50 U.S.C.A.Appendix, § 1971d, and to review an order directing plaintiff's deportation to Hong Kong under Section 243(a) of the Immigration and Nationality Act, 8 U.S.C.A. § 1253 (a). The defendant has moved for a summary judgment and the plaintiff prays that defendant's motion be denied and that judgment be awarded the plaintiff.

Plaintiff was born in China and left there in 1949 to go to the Dominican Republic, where he lived for some 11 months. While he was in the Dominican Republic, he obtained a certificate of good conduct which shows the plaintiff's residence in the Dominican Republic and that he was the holder of a personal identification card issued by the Dominican Republic as well as an Internal Revenue stamp issued by that government. In June of 1950 he came to this country under a three-month visitor's permit, which was issued upon his affidavit that he intended to remain in the United States for a short period of time to take care of matters involved in the estate of a deceased brother, that he had status in the Dominican Republic as a treaty merchant and that he had a re-entry permit to the Dominican Republic. Plaintiff also possessed a return airlines ticket to the Dominican Republic. When the plaintiff overstayed the period allowed by his visitor's permit, the Immigration Service ordered his deportation after a hearing. The appeal from this determination was dismissed by the Board of Immigration Appeals.

Plaintiff then applied for adjustment of his immigration status pursuant to Section 6 of the 1953 Refugee Relief Act, as amended. A finding was made that the plaintiff's last foreign residence was in the Dominican Republic and in view of the plaintiff's failure to show that he was unable to return to that country because of persecution or fear of persecution, the application for relief was denied.

Plaintiff failed to designate a country to which he desired to be deported. The Attorney General made inquiry of the Dominican Republic, the British visa office in Hong Kong and Formosa as to whether they would accept plaintiff in their territory. Formosa and the Dominican Republic refused such application, but Hong Kong indicated that the plaintiff would be permitted to enter that territory.

The first question presented by this motion is whether the last residence of the plaintiff, before entering this country, was the Dominican Republic. This involves a construction of Section 6 of the Refugee Relief Act of 1953, as amended. The pertinent portion of that section reads as follows:

"Any alien who establishes that prior to July 1, 1953, he lawfully entered the United States as a bona fide nonimmigrant and that he is unable to return to the country of his birth, or nationality, or last residence because of persecution or fear of persecution on account of race, religion, or political opinion * * *."

There is no definition of the word "residence" in the Refugee Relief Act. However, Section 15 of that act (50 U.S.C.A. Appendix § 1971m) provides that except as otherwise expressly provided in the act all of the provisions of the Immigration and Nationality Act shall apply. Section 101(a) (33) of the Immigration and Nationality Act of 1952 (8 U.S.C.A. § 1101(a) (33)) provides that

"The term `residence' means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent."

On the basis of the length of time that plaintiff lived in the Dominican Republic, the indicia of residence which he obtained while there, the re-entry permit and return airplane ticket which he obtained before coming to this country as a visitor in 1950, and the announced intention of the purpose of his visit, I find the determination in the administrative proceedings that the Dominican Republic was plaintiff's last residence is sustained by substantial evidence.

The case of Chien Fan Chu v. Brownell, 1957, 101 U.S.App.D.C. 204, 247 F.2d 790, relied on by plaintiff, is clearly distinguishable on its facts. In that case the plaintiff went to Formosa from the mainland of China to await the issuance of his visa to come to the United States. He was unable to stay on the mainland because of the approach of the Communist forces. In the instant case, while plaintiff originally may have been forced out of the mainland for the same reason, it was never his intention, at least from the record, that the United States be his ultimate destination. Plaintiff went to the Dominican Republic for the purpose of establishing a business and all of the events that occurred up to the time that he overstayed his visitor's permit in this country establish the intention to create a residence there. While the statute (§ 101(a) (33), supra) states that intention is not to be considered in determining residence, I assume this means that the plaintiff cannot give evidence of his intention as to residence. It does not prevent the Government from showing intention on the part of the plaintiff to establish residence based on actions of the plaintiff.

The next question raised by this motion also involves an interpretation of Section 6. Plaintiff claims that he is a citizen and national of China, which was his last residence, but even assuming that he was last a resident of the Dominican Republic he is still entitled to the benefits of Section 6 because the Dominican Republic has refused permission for his return to that country.

An analogous situation was presented in the case of Cheng Lee King v. Carnahan, 9 Cir., 1958, 253 F.2d 893. There the plaintiff was born in China and was taken at an early age to Singapore, where he resided until 1939. Thereafter he left Singapore to work as a seaman and had never returned to Singapore or China. Plaintiff asserted that he was an anti-Communist and that his return to China would result in persecution. Singapore refused to take him back and there was no contention that he would face persecution there if he could return. The Ninth Circuit agreed with the interpretation of the Immigration Service that the words "unable to return to the country of his birth, or nationality, or last residence" are conjunctive, even though a literal reading shows them to be in the disjunctive. Thus, the plaintiff must show inability to return to all of the three possible places—of birth, nationality, or last residence. However, the court disagreed with the interpretation by the Immigration Service that the inability to return to all of these three countries must be predicated on persecution or fear of persecution on account of race, religion or political opinion. The court said at page 895:

"But it seems to this court, in view of the congressional history of the act, that the Congress

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