Lu v. Rogers, Civ. A. 3766-56.

• Decision Date: 31 March 1958
• Docket Number: Civ. A. 3766-56.
• Parties: Alfred Dodge LU, Plaintiff, v. William P. ROGERS, the Attorney General, Defendant.
• Court: U.S. District Court — District of Columbia

164 F. Supp. 320

Alfred Dodge LU, Plaintiff, v. William P. ROGERS, the Attorney General, Defendant.

Civ. A. 3766-56.

United States District Court District of Columbia.

March 31, 1958.

Jack Wasserman, Washington, D. C., for plaintiff.

Oliver Gasch, U. S. Atty., Washington, D. C., for defendant.

McGARRAGHY, District Judge.

The plaintiff was born in Panama and is now a citizen of China. He last entered the United States at Miami, Florida, on June 8, 1948 and was admitted as a visitor. Subsequently his status was changed to that of a student, but he has since discontinued his studies in the United States. In 1951 plaintiff applied for adjustment of his status under Section 4 of the Displaced Persons Act of 1948, as amended, 50 U.S.C.A.Appendix, § 1953. This petition was denied upon the ground that he could return to the country of his birth without fear of persecution.

Deportation proceedings were instituted for plaintiff and after a hearing, the Special Inquiry Officer found him subject to deportation under Section 241(a) (9) of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1251(a) (9). The ruling was appealed and on August 12, 1955, the Board of Immigration Appeals concluded that plaintiff should be granted voluntary departure.

On October 17, 1955 plaintiff was notified to make arrangements for his departure; otherwise, he would be deported.

This suit was filed under the Declaratory Judgment Act, 28 U.S.C.A. § 2201, to review the order of the Immigration Service. Plaintiff has abandoned his first cause of action which relates to the fear of persecution if deported to the mainland of China. In the second cause of action, plaintiff seeks to prevent his deportation on the ground that the order of deportation entered against him does not specify the place of deportation and that no travel documents have been secured for him. This issue is the only one for determination by the Court.

Plaintiff admittedly is deportable but contends that under 243(a) of the Act, 8 U.S.C.A. § 1253(a), inquiry must be made of the proposed receiving country and it must reply that it is willing to accept the alien. The government, on the other hand, says that it would be fruitless in a case such as this to send inquiry to the mainland of China because it doubtless would be ignored. However, they propose to ship the plaintiff to the border of China and tender him to the Chinese with the hope that they will be willing to accept him. If they are unwilling to accept him, then he will be returned to the United States, presumably to be deported elsewhere.

The government's position is stated in its trial memorandum as follows:

"* * * The United States government maintains no diplomatic relations with the government in control of the mainland of China, and can never be sure that China will accept an alien until the alien is actually presented at its border. On the basis of its past experiences in cases of this kind the Service has every reason to believe that China is willing to accept plaintiff who is admittedly a native thereof. Accordingly, it will, in line with its usual procedure for returning Chinese illegally in this country to the mainland of China, secure from the British Consulate a transit visa granting plaintiff permission to travel through Hong Kong on his way to the Chinese mainland. Should plaintiff not be accepted upon reaching the boundary line of the Chinese Peoples Republic he will be returned to the United States,

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