Ng Kam Fook v. Esperdy

• Decision Date: 02 July 1963
• Docket Number: No. 368,28121.,369,Dockets 27542,368
• Citation: 320 F.2d 86
• Parties: NG KAM FOOK, Appellant, v. P. A. ESPERDY, as District Director of the Immigration and Naturalization Service, Appellee. AU TONG, Appellant, v. P. A. ESPERDY as District Director of the Immigration and Naturalization Service, Appellee.
• Court: U.S. Court of Appeals — Second Circuit

320 F.2d 86 (1963)

NG KAM FOOK, Appellant, v. P. A. ESPERDY, as District Director of the Immigration and Naturalization Service, Appellee.

AU TONG, Appellant, v. P. A. ESPERDY as District Director of the Immigration and Naturalization Service, Appellee.

Nos. 368, 369, Dockets 27542, 28121.

United States Court of Appeals Second Circuit.

Argued June 3, 1963.

Decided July 2, 1963.

Jules E. Coven, New York City (Abraham Lebenkoff and Lebenkoff & Coven, New York City, on the brief), for appellants.

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

Before LUMBARD, Chief Judge, CLARK, Circuit Judge, and BARTELS, District Judge.

BARTELS, District Judge.

Plaintiff Ng Kam Fook (Fook) and plaintiff Au Tong (Tong) have joined in a consolidated appeal involving identical questions, from an order by Judge Metzner in each case, granting summary judgment in favor of the District Director, Immigration and Naturalization Service, New York District, in actions seeking to review the order of the Attorney General directing the deportation of Fook to Hong Kong and the deportation of Tong to the Netherlands.

The question involved in this appeal is the construction of the word "country" as used in Section 243(a) of the Immigration and Nationality Act of 1952 (the Act), (8 U.S.C. § 1253(a)), which sets forth a pattern for deportation of aliens illegally present in the United States. In providing for the mechanics for the enforcement of a deportation order, the section prescribes in succession three priorities for the deportation of an alien, in each of which the word "country" is employed; (1) deportation to a country designated by the alien if the country is willing to accept him; (2) upon failure to receive timely acceptance from the country mentioned in (1), deportation to "any country of which such alien is a subject, national, or citizen if such country is willing to accept him into its territory"; and (3) upon failure to receive timely acceptance from the country mentioned in (2), deportation to any one of seven categories of countries mentioned in the Act within the discretion of the Attorney General without priority as to order.

Fook and Tong arrived in the United States as crewmen, Fook in 1955 and Tong in 1953. Both were born on the mainland of China at the time it was under the control of the Nationalist Government of China, and both are concededly here illegally and subject to deportation. Each declined to designate a country to which he wished to be sent if deported, as provided in the first priority of the statute, thus requiring resort to the second priority. The United States recognizes only the Government of the Republic of China (Nationalist China) with a capital on Formosa as the legal Government of China and as the Government of which these appellants are subject nationals and citizens, see Rogers v. Cheng Fu Cheng, 108 U.S.App.D.C. 115, 280 F.2d 663, cert. denied, 364 U.S. 891, 81 S.Ct. 222, 5 L.Ed.2d 187 (1960). Accordingly, after their hearings the Attorney General inquired of the Nationalist Government on Formosa whether these aliens would be accepted by the Government upon deportation and the reply was in the negative. The Attorney General then resorted to the third priority and ordered Fook to be deported to Hong Kong and Tong to be deported to the Netherlands. The appellants claim that they are subject nationals and citizens of the Chinese mainland, which they claim is a "country" as that term is used in the second priority, and that the Attorney General was obligated under the Act to make preliminary inquiry of that Government to ascertain whether they were acceptable to that Government before directing deportation elsewhere.

This Court has held in the past that in construing Section 243(a) of the Act, "The word `country' has no fixed meaning, and should be construed in accordance with the purpose of the particular legislation." Chan Chuen v. Esperdy, 285 F.2d 353 (2 Cir. 1960). In United States ex rel. Tom Man v. Murff, 264 F. 2d 926 (2 Cir. 1959), and in United States ex rel. Leong Choy Moon v. Shaughnessy, 218 F.2d 316 (2 Cir. 1954), the mainland of China was deemed a "country" for the purpose of deportation under the third priority, the Man case holding that such deportation was subject to the condition of a preliminary inquiry of acceptability which, the court added, would not invade the prerogative of the Executive Department. These cases cannot be regarded, however, as holding that the Chinese mainland is a "country," as that term is used in all the other provisions of the Act. When referring to nationality and citizenship of a country, different concepts arise. The term "country," when referring to a foreign country, is ambiguous. "It may be taken to mean foreign territory or a foreign government. In the sense of territory, it may embrace all the territory subject to a foreign sovereign power. When referring more particularly to a foreign government, it may describe a foreign State in the international sense, that is, one that has the status of an international person with the rights and responsibilities under international law of a member of the family of nations * * *." Burnet v. Chicago Portrait Co., 285 U.S. 1, 5, 52 S.Ct. 275, 277, 76 L.Ed. 587 (1932). In other words, the different situations envisioned by the Act do not permit an absolutist approach to the definition.

In connection with naturalization and citizenship the dominant consideration is not geographical and in such case it is not unreasonable to construe the word "country" as meaning a foreign state with the rights and responsibilities under international law of a member of the family of nations. This apparently is what the court had in mind when Judge Hand said in the Man case in referring to deportation of a Chinese alien to the mainland under the third priority, "We assume that he cannot be regarded as a `subject national, or citizen' of the Communist Government, because we do not recognize that as more than a de facto government." United States ex rel. Tom Man v. Murff, 264 F.2d 926, 928 (2 Cir. 1959). But the United States does recognize the Government of the Republic of China with a capital on Formosa as the de jure Government of China. The courts have accordingly upheld...