Shen v. Esperdy, 557

• Decision Date: 08 June 1970
• Docket Number: Docket 34212.,No. 557,557
• Parties: Peter Chow Lung SHEN, Plaintiff-Appellant, v. P. A. ESPERDY, as District Director of the Immigration and Naturalization Service, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

428 F.2d 293 (1970)

Peter Chow Lung SHEN, Plaintiff-Appellant, v. P. A. ESPERDY, as District Director of the Immigration and Naturalization Service, Defendant-Appellee.

No. 557, Docket 34212.

United States Court of Appeals, Second Circuit.

Argued February 26, 1970.

Decided June 8, 1970.

Martin Burroughs, New York City, for appellant.

T. Gorman Reilly, Asst. U.S. Atty. (Whitney North Seymour, Jr., U.S. Atty., for the Southern District of New York, and Stanley H. Wallenstein, Gen. Atty., Immigration and Naturalization Service, on the brief), for appellee.

Before LUMBARD, Chief Judge, and ANDERSON, Circuit Judge, and DOOLING, District Judge.^*

LUMBARD, Chief Judge:

Peter Chow Lung Shen appeals from an order granting the District Director of the Immigration and Naturalization Service's (INS) motion for summary judgment and dismissing his complaint in this declaratory judgment action to review the district director's determination that Shen was not a refugee within the scope of section 203(a) (7) of the Immigration and Nationality Act, 8 U. S.C. § 1153(a) (7) (Supp. I, 1965-66). The basis for the INS's refusal to grant Shen refugee status, and for the district court's dismissal of the complaint, was that Shen had resettled in Taiwan after fleeing from Communist China and that "nonresettled" status was a condition precedent to qualification under the statute. We agree and affirm the judgment of the district court.

I. THE FACTS

Peter Chow Lung Shen is an alien born on the mainland of China in 1935. In 1948, at the age of thirteen, he fled the mainland with his family. Shen, his parents, and his brothers and sisters took up residence on Taiwan, where his father was engaged in the import-export business. The parents, brothers, and sisters are still on Taiwan.

From 1948 through 1954, Shen attended school on Taiwan. During 1954, he apparently completed his schooling, for he took a job as an interpreter for the United States Air Force and remained in this position until 1956.

Shen left Taiwan in 1957 to accept a position in the United States Embassy in Australia. In 1959, he left Australia for Japan, where he studied at the International Christian University for three years. Upon completion of his course of study in Japan, Shen came to the United States as a visitor for pleasure, entering this country at Honolulu, Hawaii, on November 16, 1962. He has remained here ever since. All of appellant's travel was accomplished on a passport issued and revalidated by the Nationalist Government of the Republic of China on Formosa.

The appellee INS held a deportation hearing on November 13, 1963, pursuant to section 242(b) of the Act, 8 U.S.C. § 1252(b) (1964). Shen was represented by counsel, and he conceded that he had remained in the United States past the date set for the end of his stay as a tourist — September 14, 1963. Shen further admitted that he was deportable and designated Formosa as the country to which he wished to be deported. He also applied for the privilege of voluntary departure pursuant to section 244(e) of the Act, 8 U.S.C. § 1254(e). The INS opposed this application, which was denied as a matter of discretion by the special inquiry officer. A final order of deportation was entered after this hearing on November 13, 1963. No appeal was taken from that order.

A warrant of deportation was issued the following day, but as the government's brief recites, no action was taken to enforce Shen's departure until April, 1967, because the Attorney General had declared a moratorium on deportations of Chinese nationals to the Far East. In early April, 1967, Shen was directed to surrender for deportation to Taiwan on the 14th. On April 12th, he filed an application for a stay of deportation and an application for classification as a refugee.¹

Shen had an interview and examination on the latter application on September 11, 1967. The district director of the INS denied the application on February 28, 1968. His opinion stated

"* * * that at the time of the subject\'s entry into the United States he was not a refugee from any country, nor was he fleeing from any country. Rather, he was a tourist in possession of a valid passport and a visa. Therefore, he cannot be considered a refugee as defined in Section 203(a) (7) of the Act * * *."

The district director certified Shen's appeal to the regional commissioner on March 8, 1968, and on July 5, 1968, the regional commissioner affirmed the denial of the application. The regional commissioner concluded in his opinion that

"the applicant was firmly resettled in Taiwan and, as a consequence, is not a refugee within the scope of Section 203(a) (7) of the Act since after he fled Mainland China he became firmly resettled in Taiwan."

Thereafter, Shen initiated a declaratory judgment action in the Southern District of New York to review the district director's denial of the application for classification as a refugee. Judge Tenney granted the district director's motion for summary judgment and dismissed the complaint, stating in his opinion of September 30, 1969, that the "facts amply demonstrate the `firm resettlement' of Shen in Taiwan and, as a matter of law, it cannot be said that the finding of the District Director was arbitrary or discriminatory."

Judge Tenney stayed deportation pending appeal, upon stipulation of the parties.

II. APPELLANT'S STATUTORY ARGUMENT: CHANGES IN IMMIGRATION LAWS AND THE CONCEPT OF "FIRM RESETTLEMENT"

Appellant's claim that the district director's denial of his application was erroneous is bottomed on a comparison of the language of the present Immigration and Nationality Act (hereinafter the Act) and predecessor statutes. Section 203(a) (7) of the Act, under which Shen made his application, states:

"(a) Aliens who are subject to the numerical limitations specified in section 1151(a) § 201(a) shall be allotted visas or their conditional entry authorized, as the case may be, as follows:

* * * * * *

"(7) Conditional entries shall next be made available by the Attorney General, pursuant to such regulations as he may prescribe and in a number not to exceed 6 per centum of the number specified in section 1151(a) (ii) § 201(a) (ii), to aliens who satisfy an Immigration and Naturalization Service officer at an examination in any non-Communist or non-Communist-dominated country, (A) that (i) because of persecution or fear of persecution on account of race, religion, or political opinion they have fled (I) from any Communist or Communist-dominated country or area, or (II) from any country within the general area of the Middle East, and (ii) are unable or unwilling to return to such country or area on account of race, religion, or political opinion, and (iii) are not nationals of the countries or areas in which their application for conditional entry is made; or (B) that they are persons uprooted by catastrophic natural calamity as defined by the President who are unable to return to their usual place of abode * * *. Provided, that immigrant visas in a number not exceeding one-half the number specified in this paragraph may be made available, in lieu of conditional entries of a like number, to such aliens who have been continuously physically present in the United States for a period of at least two years prior to application for adjustment of status."

Shen argues that this section is the "direct descendant" of two earlier statutes, and that section 203(a) (7) was intended to change the policy expressed in these earlier enactments with regard to denial of refugee status to an alien who has been firmly resettled in another nation prior to making application to the United States. The government also bases much of its argument on the prior legislation. It contends that the successive statutes embody a consistent immigration policy including the concept of firm resettlement. Although our examination of the statutes cited to us leads us to the conclusion that much, if not all, of the legislation can be described as temporary in character and responsive to specialized refugee problems, we agree, on balance, with the government's position.

The first of the earlier statutes relied on by Shen is the Displaced Persons Act of 1948, 62 Stat. 1009 (June 25, 1948), which provided for the entry of persons displaced by World War II and the ensuing Communist domination of Eastern Europe. Under the Displaced Persons Act, an alien, once in the United States, could adjust his status to that of a legal residence by being designated a "displaced person," regardless of the manner of entry into this country. "Displaced person" was defined, inter alia, as one "who has not been firmly resettled."²

The second predecessor statute, Shen argues, is the Refugee Relief Act of 1953, 67 Stat. 400 (Aug. 7, 1953) which permitted the admittance of 214,000 refugees within a three-and-one-half-year period. It defined the term "refugee" as

"* * * any person in a country or area which is neither Communist nor Communist-dominated, who because of persecution, fear of persecution, natural calamity or military operations is out of his usual place of abode and unable to return thereto, who has not been firmly resettled, and who is in urgent need of assistance for the essentials of life or for transportation."³

There are other statutes in the chain of legislation, but as the government concedes, the Refugee Relief Act of 1953 was the last enactment to incorporate the "firm resettlement" language in defining who was eligible for adjustment to legal residence as a refugee. The Act of 1957, P.L. No. 85-316, 71 Stat. 639 (Sept. 11, 1957), a measure which in effect allowed two more years to carry out the work begun under the Refugee Relief Act of 1953, defined "refugee-escapee" as

"any alien who, because of persecution or fear of persecution on account of race, religion, or political opinion has fled or shall flee (A) from any Communist, Communist-dominated, or Communist-occupied area, or (B)

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