Lum Wan v. Esperdy

• Decision Date: 05 July 1963
• Docket Number: No. 316,Docket 27829.,316
• Citation: 321 F.2d 123
• Parties: LUM WAN, Plaintiff-Appellant, v. P. A. ESPERDY, District Director of the Immigration and Naturalization Service, New York District, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

321 F.2d 123 (1963)

LUM WAN, Plaintiff-Appellant, v. P. A. ESPERDY, District Director of the Immigration and Naturalization Service, New York District, Defendant-Appellee.

No. 316, Docket 27829.

United States Court of Appeals Second Circuit.

Argued April 11, 1963.

Decided July 5, 1963.

Benjamin Gim, New York City, for appellant.

Roy Babitt, Special Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty. for the Southern District of New York, on the brief), for appellee.

Before MOORE, FRIENDLY and HAYS, Circuit Judges.

LEONARD P. MOORE, Circuit Judge.

Plaintiff, Lum Wan, born in China in 1894, who became a naturalized citizen of Canada in 1958, appeals from a decision of the district court, denying his motion for summary judgment and granting a similar motion by defendant.

Plaintiff left China in 1918 and entered Canada as a student. He lived in Canada (Toronto) for five years. In 1922 he was smuggled into this country (Detroit) via a freight train. He returned to Canada for an alleged visit in 1923; after a stay of two or three months in Canada, he was again smuggled into this country. From 1923 to 1932 plaintiff lived in Chicago. He then returned to Canada and, shortly thereafter, went to China. After remaining in China for four years, he returned to Canada in 1936. Again, by the smuggling process, for which as previously a monetary consideration was exacted, plaintiff re-entered the United States (Detroit). From 1936 to 1945 he operated a laundry in Chicago. From 1946 to January 1958 he carried on the same trade in New York City. In January 1958 he left his laundry in care of a friend and went to Canada for four months. Using his 1918 papers of permanent residence in Canada, he obtained a Certificate of Canadian Citizenship. In his application for Canadian citizenship, he stated that he had resided in Toronto from August, 1918, to date (September 4, 1957). Armed with this proof of Canadian citizenship, plaintiff for the first time quasi-legitimately entered the United States in May, 1958, where he continued to operate his laundry.

In December, 1959, plaintiff submitted an application for permanent residence pursuant to the provisions of Section 249 of the Immigration and Nationality Act of 1952 (66 Stat. 163), as amended (8 U.S.C.A. § 1259). This section provides in part that a record of lawful admission for permanent residence may be made "in the discretion of the Attorney-General" if the alien establishes that (1) he entered the United States prior to June 28, 1940, (2) that he has had his residence in the United States continuously since such entry, (3) that he is of good moral character, and (4) not ineligible to citizenship. A hearing was held on plaintiff's application which was denied for two reasons: (1) plaintiff had failed to establish continuous residence in the United States "in that you became naturalized in Canada in 1958", and (2) because of the concession of three entries, all by smuggling, favorable discretionary action was not warranted. On appeal to the Acting Regional Commissioner, the denial was sustained. The memorandum from the Regional Commissioner's office to the District Director entitled, "Appeal from District Director's Decision", stated that the decision and order "is (affirmed) on the sole basis that the alien's conduct in being smuggled into the United States on three occasions and in procuring fraudulent naturalization in Canada do not warrant the exercise of discretion in his favor." This memorandum was not sent to plaintiff. He was merely notified that his appeal "from the order of this office the District Director had been considered and denied by the Acting Regional Commissioner." Plaintiff then brought this action for a declaratory judgment to have the denial declared null and void and for a declaration that his application for permanent residence be approved.

The district court found "no basis to interfere with the discretion exercised by the Attorney General in this case" and also held that "plaintiff has failed to satisfy the requirement of continuous residence as found in Section 249."

On appeal, plaintiff claims that he has established by incontrovertible evidence continuous residence in this country since prior to 1940. Certainly all the facts support this conclusion — at least until 1957-58. And even a four-month sight-seeing or pleasure trip to Canada would not have broken the continuity. But plaintiff did not make such a trip. He stated his reasons with clarity: "Because of China's control by the Communists, I do not want to go back to China so I want to become a citizen over there in Canada." He didn't select the United States after he had enjoyed its hospitality for the better part of thirty-five years because "It takes too much time. * * * It's easier in Canada." And so it was. Merely exhibiting his permanent Canadian residence certificate and signing a paper (which he could not read or understand — so he claims), he became a Canadian citizen. This maneuver was "just to be a citizen of a country." In view of the situation in his homeland probably any country on the North American continent would have appeared highly desirable to him.

Satisfaction, if any, with his newly found country by adoption was shortlived. Soon he departed saying, "I don't like Canada." "I like this country the United States and my business is here." Indeed he has shown his liking by enduring the risks and rigors of three smugglings to come here. This propensity for illegal entry, argues plaintiff, should not preclude him from the relief he seeks because section 249 purges any pre-1940 sins. In support of this theory plaintiff points to certain decisions in other cases where discretion was exercised in favor of the alien. Assuming this to be so, Matter of S, 8 I & N Dec. 288; Matter of L-F-Y, 8 I & N Dec. 601; Linklater v. Perkins, 64 App.D.C. 69, 74 F.2d 473 (D.C.Cir.1934); there is no doctrine that the Attorney General may not consider the facts of each case in which he has to act.

There can be no question that the facts did not warrant the favorable exercise of discretion by the Attorney-General. What a travesty on justice it would be for a court to hold that the Attorney-General must make a "record of lawful admission for permanent residence" for an alien whose admissions were so patently unlawful. Plaintiff, however, would dissect the reasons assigned for each of the decisions against him and, by using the mathematical principle that the whole must equal the sum of its parts, destroy the whole to his satisfaction by questioning the...