Lum Chong v. Esperdy
| Decision Date | 28 February 1961 |
| Citation | 191 F. Supp. 935 |
| Parties | LUM CHONG, Plaintiff, v. P. A. ESPERDY, as District Director for the New York District, Immigration and Naturalization Service, United States Department of Justice, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Andrew Reiner, New York City, for plaintiff.
S. Hazard Gillespie, Jr., U. S. Atty. for the Southern Dist. of New York, New York City, for defendant; Roy Babitt, Sp. Asst. U. S. Atty., New York City, of counsel.
This is a motion by the District Director of Immigration for summary judgment. The action is one for a declaratory judgment that the Attorney General's denial of plaintiff's application to have created a record of lawful admission to this country for permanent residence under section 249 of the Immigration and Nationality Act, 8 U.S.C. § 1259, was erroneous as a matter of law. Review of the administrative decision is sought pursuant to section 10 of the Administrative Procedure Act, 5 U.S.C. § 1009.
Denial of plaintiff's application was made as a matter of law on the sole ground that he did not meet the requirement of continuous residence in the United States after his entry to the country prescribed by section 249(b). It was held that plaintiff's departure from the United States in March of 1946 as a crewman aboard a United States flag vessel making a round trip voyage to Europe broke the continuity of his residence in this country, without regard to the circumstances of the departure, because a warrant of deportation was outstanding against plaintiff at the time of the voyage.
The following facts are not in dispute on this motion. Plaintiff, a 49 year-old native and citizen of China, had a warrant of deportation issued against him on January 8, 1946, by virtue of his illegal entry into the country in or after February, 1929, as an immigrant not in possession of a valid immigration visa. The Government does not contend that plaintiff did not reside continuously in this country from the time of his entry until March 3, 1946 when he left the United States as a crewman signed for a round trip voyage for Europe on a vessel flying the United States flag. There is no evidence that the Government at the time of plaintiff's departure knew of the departure and verified it so that the warrant of deportation could be executed and the bond exonerated. Plaintiff returned to the country as a crewman on the same vessel some six weeks after his departure, without having disembarked on foreign soil, and was admitted as a nonimmigrant crewman for shore leave. After his return to the United States, plaintiff made various applications for relief from a second deportation which were denied and are not in issue here.
In June, 1959, plaintiff made the application here in issue for the creation of a record of admission for permanent residence under section 249 of the Immigration and Nationality Act, 8 U.S.C. § 1259. At his hearing on the application, plaintiff admitted that he had been absent from the United States between March of 1946 and the end of April of 1946. He further testified that when he left the country he was not aware that a deportation order had been entered against him or that he would not be allowed to return without permission. Plaintiff stated that he continued to pay rent on his New York apartment and maintained his bank account here during his absence from the country. Plaintiff, who can neither read nor write English, was afforded a hearing on the deportation charge, conducted through a Chinese interpreter, some three years prior to his departure from the country. He was not represented by counsel at the hearing or at any time until after his return to the country. Plaintiff presented no witnesses or documentary evidence in his own behalf at the deportation hearing and waived all exceptions to the findings and conclusions of the hearing officer.
Prior to the conclusion of the deportation hearing, plaintiff had been released under $1,000 bond from imprisonment under the warrant of arrest in the deportation proceedings. A letter dated January 30, 1946, was mailed to plaintiff to notify him that a warrant of deportation had been issued directing that he be deported to China. The letter was addressed to plaintiff "c/o Bat Fong, 47 Bayard Street, New York, N. Y." The street address was that of plaintiff's social club. Bat Fong was secretary of the club and had, in December, 1942, furnished the $1,000 bond for plaintiff's release from arrest...
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Chan Wing Cheung v. Hamilton
..."domicile" or "permanent residence" as distinguished from his principal actual dwelling place in fact is not material. Lum Chong v. Esperdy, D.C.N.Y.1961, 191 F.Supp. 935; cf. Savorgnan v. United States, 1940, 338 U.S. 491, 70 S.Ct. 292, 94 L.Ed. 287. Since the plaintiff did in fact have hi......
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Mrvica v. Esperdy, 274
...required by Section 249. Cf. Sit Jay Sing v. Nice, 182 F.Supp. 292 (N.D.Cal. 1960), aff'd 287 F.2d 561 (9 Cir., 1961); Lum Chong v. Esperdy, 191 F.Supp. 935 (S.D.N.Y.1961). At the time of Mrvica's voyage in 1942, relief similar to that now provided by Section 249 (then provided to those who......
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Matter of Young
...of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(33). 2. Mrvica v. Esperdy, 376 U.S. 560, 11 L.ed. 2d 911; Chong v. Esperdy, 191 F. Supp. 935 (S.D.N.Y., 1961); Sit Jay Sing v. Nice, 182 F. Supp. 292 (D.C., Cal. 1960) aff'd. 287 F.2d 3. Matter of P----, 8 I. & N. Dec. 167, was cited ......
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Mrvica v. Esperdy
...indistinguishable from Sit Jay Sing v. Nice, 182 F.Supp. 292 (N.D. Cal.1960), aff'd 287 F.2d 561 (9th Cir. 1961) and Lum Chong v. Esperdy, 191 F.Supp. 935 (S.D.N.Y.1961). These cases clearly hold that an alien subject to a deportation order who departs as a crewman on a foreign voyage there......