Low King Yong v. Pan American Airways

• Court: U.S. District Court — District of Hawaii
• Writing for the Court: W. Y. Char, of Honolulu, T. H., for petitioner
• Citation: Low King Yong v. Pan American Airways, 74 F.Supp. 657 (D. Haw. 1947)
• Decision Date: 12 December 1947
• Docket Number: Civ. No. 826.
• Parties: LOW KING YONG v. PAN AMERICAN AIRWAYS, Inc.

74 F. Supp. 657

LOW KING YONG v. PAN AMERICAN AIRWAYS, Inc.

Civ. No. 826.

District Court, D. Hawaii.

December 12, 1947.

W. Y. Char, of Honolulu, T. H., for petitioner.

Garner Anthony, of Honolulu, T. H. (Robertson, Castle & Anthony, of Honolulu, T. H., of counsel), for respondent.

J. FRANK McLAUGHLIN, District Judge.

This is a suit to cancel an appearance bond given by the petitioner to the defendant and for injunctive relief. It is a removed case, 28 U.S.C.A. § 71, involving an issue claimed to arise under the Immigration laws, 28 U.S.C.A. § 41(22). A motion to remand, 28 U.S.C.A. § 80, having been denied, the matter came on for hearing Dec. 8. The petitioner elected not to press at the outset his prayer for a preliminary injunction, and accordingly the case was heard upon its merits.

The only evidence tendered by either party was the testimony of Mr. L. H. Haus, officer in charge of the Honolulu Immigration Station, presented by the petitioner.

Mr. Haus testified that:

(a) Petitioner arrived at the port of Honolulu Oct. 3 from China aboard a Pan American plane.

(b) His claim of right to re-enter the United States as a returning citizen was deemed doubtful by an inspector, and petitioner was held for hearing before a Board of Special Inquiry.

(c) On Oct. 14 the Board after the hearing denied petitioner's right to re-enter the United States as a citizen, and petitioner thereafter appealed to the Commissioner, before whom his case is now pending.

(d) Between Oct. 3 and 14 petitioner was detained at the Honolulu Immigration Station.

(e) Having a home, a family, and a business in Hilo, Hawaii, petitioner sought to be released on bond. The officer in charge inquired by radiogram of the director of the district in San Francisco whether or not he could release the petitioner on bond (Exhibit "A"). The district director replied (Exhibit "B") that petitioner should be returned to Pan American and that it could bond petitioner or take such other action as it might elect.

(f) On Oct. 14 at the Immigration Station, Mr. Haus turned petitioner over to a Pan American official for detention pending the outcome of petitioner's appeal. Thereupon petitioner with the aid of his attorney tendered the Pan American official a prepared and duly executed commercial appearance bond (Exhibit "A" of petition), which Pan American accepted and released petitioner, who then left the Station with his attorney. At no time with reference to the bond did anyone threaten, coerce, compel or in any way force petitioner to post bond with the respondent.

When questioned as to the Immigration Service's authority to release a person on bond or otherwise in an exclusion case, Mr. Haus informed the Court that pursuant to the administrative practice and operational instructions of his Service in an exclusion case the officer in charge of a station may for humanitarian and certain other reasons release a detained person (1) upon his own recognizance, (2) upon parole, and (3) upon bond if authorized by the Attorney General.

Such being the evidence, and all of it, the respondent moved to dismiss. The motion was denied, for despite the lack of a basis for an injunction a question of law remained.

Petitioner having asked for permission to be released on bond and it being accomplished, the Court inquired of petitioner's counsel during argument why petitioner did not leave well enough alone since if the bond were canceled petitioner would be detained physically by Pan American or the Immigration officials. The reply was novel, and it is mentioned for, dubious as it is in view of the express wording of 8 U.S.C.A. § 151, it nevertheless makes sense out of this case. The answer was that if the bond is canceled it would place petitioner inside the United States and then the United States, rather than the petitioner as is now the case, would have the burden of proving he is not a citizen of the United States or alien entitled to remain in this country.

The Court is satisfied that 8 U.S. C.A. § 151 should be interpreted in the light of modern transportation facilities and that therefore the words "vessels or transportation lines" should be construed sensibly to include an air carrier such as the respondent here. See Pan American Airways v. United States, 5 Cir., 1943, 135 F.2d 51, at page 52; 50 Am.Jur. "Statutes" § 237; Immigration Regulations 116.52, "Civil Air Navigation", 8 U.S.C.A. § 222.

There seems to be a total lack of specific authority in both the statutes and the Immigration regulations to support affirmatively the Immigration Service's custom and practice in deserving exclusion cases of releasing a detainee pending the determination of either his Board hearing or his appeal to the Commissioner, or both. From this the petitioner argues that the Immigration Service could not lawfully release the petitioner on...