Mai Kai Fong v. Immigration and Naturalization Service

• Decision Date: 28 June 1962
• Docket Number: No. 17723.,17723.
• Citation: 305 F.2d 239
• Parties: MAI KAI FONG, also known as Yee Wing Young, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

305 F.2d 239 (1962)

MAI KAI FONG, also known as Yee Wing Young, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 17723.

United States Court of Appeals Ninth Circuit.

June 28, 1962.

Salvatore C. J. Fusco, San Francisco, Cal., for appellant.

Cecil F. Poole, U. S. Atty., and Charles E. Collett, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before HAMLEY, MERRILL and DUNIWAY, Circuit Judges.

HAMLEY, Circuit Judge.

This matter is before us on a petition to review a final order of deportation, and three subsequent orders or notices directing that the deportation be to Hong Kong, and advising when and where the petitioner should report for such deportation.

Petitioner, a native of China, entered the United States fraudulently under a false name on February 22, 1952. More than five years later deportation proceedings were instituted against him. In these proceedings a special inquiry officer of the Immigration and Naturalization Service on September 18, 1957, ordered deportation of petitioner under section 241(a) (1) of the Immigration and Nationality Act (Act), 8 U.S.C.A. § 1251(a) (1).

On the day on which the deportation order was entered petitioner was notified in writing that his deportation to China had been directed. Pursuant to section 243 of the Act, 8 U.S.C.A. § 1253, petitioner applied for a stay of deportation on the ground that if deported to China he would be subject to physical persecution. Deportation was thereupon withheld.

On August 14, 1961, petitioner was advised in writing by the Immigration and Naturalization Service that his deportation to "The United Kingdom to wit: The British Crown Colony of Hong Kong," had been directed. In the same writing he was advised that this notice replaced the notice of September 18, 1957, advising that his deportation to China had been directed. In another written notice dated August 14, 1961, petitioner was advised that arrangements had been made for his deportation to Hong Kong on September 15, 1961, and that he should report at a specified place on September 14, 1961, completely ready for deportation.

On September 12, 1961, petitioner commenced a civil action against the Attorney General of the United States in the United States District Court for the District of Columbia. Michael Yee aka Fong Mai Kai v. Robert F. Kennedy, Civil Action No. 3002-61. He therein sought a judgment declaring that (1) the warrant of deportation is void in that it fails to specify the country to which plaintiff shall be deported; and (2) petitioner may not be deported to a place "other than a country." Petitioner was then notified that because of the pendency of that suit, the notice for him to report for deportation on September 14, 1961, had been withdrawn.

On September 20, 1961, counsel for petitioner in the District of Columbia case formally stipulated that the determination of that case would be governed by the determination of the issues in Ying et al. v. Rogers, 180 F.Supp. 618, which had been instituted in the District Court for the District of Columbia. It was recited in this stipulation that "* * * in the event the result in Ying is adverse to plaintiff, no further issues will be raised and no other action will be filed in this or any other court respecting deportation of plaintiff."

The "result" referred to in this stipulation was to be manifested by the action of the Supreme Court of the United States on a petition for certiorari then pending before it in the Ying case. A judgment against Ying, this being adverse to petitioner's position, had already been entered in the District Court and had already been affirmed by the Court of Appeals for the District of Columbia. Ying v. Rogers, D.C., 180 F.Supp. 618, decided February 10, 1960, affirmed sub nom Ying v. Kennedy, 110 U.S.App.D.C. 247, 292 F.2d 740, decided April 27, 1961.

Certiorari in the Ying case was denied on November 13, 1961. Ying v. Kennedy, 368 U.S. 914, 82 S.Ct. 193, 7 L.Ed.2d 130. Consistent with the stipulation a consent judgment was entered on December 13, 1961, in petitioner's District of Columbia action, dismissing that action with prejudice.

On January 8, 1962, petitioner was notified in writing by the Immigration and Naturalization Service that arrangements had been made for his deportation to Hong Kong on January 23, 1962, and that he should report at a specified place on January 22, 1962, completely ready for deportation. He was also advised in this notice that he would travel from San Francisco to Manila, Philippine Islands on a vessel, the U.S.N.S. Mann, and then would be flown to Hong Kong.

Employing new counsel who were apparently unaware of petitioner's District of Columbia action, petitioner filed the instant petition in this court on January 19, 1962. He therein seeks review of the two notices of August 14, 1961 and the notice of January 8, 1962, all of which he terms "orders." He also seems to be seeking a review of the deportation order of September 18, 1957, although this is not altogether clear from the petition.

The jurisdiction of this court was sought to be invoked under section 106 of the Act, 8 U.S.C.A. § 1105a. Under section 106(a), 8 U.S.C.A. § 1105a(a), all final orders of deportation made pursuant to section 242(b) of that Act, 8 U.S. C.A. § 1252(b), are to be reviewed by Courts of Appeals pursuant to the procedure prescribed in the Act of December 29, 1950, as amended, 5 U.S.C.A. §§ 1031-1042. See Fleuti v. Rosenberg, 9 Cir., 302 F.2d 652, decided April 17, 1962, note 1.

For the reasons indicated below, we do not have jurisdiction to review the deportation order of September 18, 1957, or the notices of August 14, 1961 and January 8, 1962.

There are two reasons why we do not have jurisdiction to review the deportation order of September 18, 1957. The first of these is that, considered in the light of the stipulation referred to above, the judgment of dismissal with prejudice...