Sit Jay Sing v. Nice

• Decision Date: 11 March 1960
• Docket Number: Civ. No. 38745.
• Citation: 182 F. Supp. 292
• Court: U.S. District Court — Northern District of California
• Parties: SIT JAY SING, Plaintiff, v. H. D. NICE, as District Director of the Immigration and Naturalization Service, San Francisco District, and Paul Posz, as Regional Commissioner of the Immigration and Naturalization Service, Southwest Region, Defendants.

182 F. Supp. 292

SIT JAY SING, Plaintiff, v. H. D. NICE, as District Director of the Immigration and Naturalization Service, San Francisco District, and Paul Posz, as Regional Commissioner of the Immigration and Naturalization Service, Southwest Region, Defendants.

Civ. No. 38745.

United States District Court N. D. California, S. D.

March 11, 1960.

Robert S. Bixby, Fallon, Hargreaves & Bixby, San Francisco, Cal., for plaintiff.

Lynn J. Gillard, U. S. Atty., Charles E. Collett, Asst. U. S. Atty., San Francisco, Cal., for defendants.

YOUNGDAHL, District Judge.

This action for a declaratory judgment came on to be heard on cross-motions for summary judgment. Since the material facts are not in dispute and only a question of law is involved the Court is free to grant summary judgment.

Plaintiff, "a native and citizen of the Republic of China",¹ seeks a decision that his application to the Immigration and Naturalization Service (hereinafter referred to as the Service) for adjustment of his status to that of a permanent resident alien, under § 249 of the Immigration and Nationality Act of June 27, 1952, 8 U.S.C.A. § 1259, as amended,² may not be denied on the ground that he has failed to reside continuously in the United States since a date prior to June 28, 1940. Paragraph (b) of this provision sets forth the second of four prerequisites to the exercise of the Attorney-General's discretion. The plaintiff asks the Court to hold that he has satisfied this prerequisite.

Plaintiff first entered the United States on June 17, 1939,³ at which time he was thirty-five years of age. This entry was as a non-immigrant crewman. He overstayed his shore leave and on June 26, 1942, a warrant for arrest in deportation proceedings was served on him. A hearing was accorded and on February 12, 1943 he was ordered deported. Because of the war, the order was stayed and the plaintiff was permitted to remain in the United States on bond.⁴

On September 22, 1945, the plaintiff sailed as a seaman from San Francisco aboard the S.S. "Fra Berlanga", a vessel of United States registry; on November 13, 1945, after a foreign voyage, the "Fra Berlanga", with plaintiff aboard, entered the United States at Seattle, Washington. When the plaintiff sailed on September 22, 1945, the Service noted "executed" on the warrant of deportation which had issued on February 12, 1943 and added "Note: This alien departed at no expense to Government as member of crew on above-named vessel Fra Berlanga."

The narrow issue presented by this case is whether plaintiff's voyage, coming at a time when a warrant of deportation was outstanding against him, interrupted the continuous residence he had established in the United States since June 17, 1939.⁵ Plaintiff concedes that "by voluntarily departing from the United States at a time when a warrant for his deportation was outstanding he effected his own deportation." The argument is made, however, that an interruption in residency does not automatically and always result from a deportation. While "deportation does interrupt residence in the overwhelming majority of cases", contends plaintiff, it does not do so in this case because plaintiff departed voluntarily aboard a vessel of United States registry.⁶

The plaintiff places his principal reliance upon Matter of M-, 4 I & N Adm. Dec. 82 (Oct. 9, 1950) in which the Board of Immigration Appeals held that a departure from the United States one week prior to the expiration of seven years from the date of the alien's entry did not preclude favorable action under the 7th proviso to § 3 of the Immigration Act of February 5, 1917, even though at the time of the alien's departure, a warrant of deportation was outstanding against him.

The statutory provision involved in Matter of M- reads:

"* * * aliens returning after a temporary absence to an unrelinquished United States domicile of seven consecutive years may be admitted in the discretion of the Attorney General, and under such conditions as he may prescribe."

Even assuming that "domicile" in the 7th proviso means the same thing as "residence" in § 249,⁷ the Court does not believe Matter of M- is applicable here.

First, a later administrative decision, Matter of P-, Int.Dec. No. 976 (October 16, 1958) squarely holds that "a departure from the United States as a result of exclusion or expulsion proceedings breaks the continuity of residence for the purpose of section 249, regardless of the period of time the alien is outside the United States after such departure".⁸

Second, it would not be appropriate to accept the plaintiff's contention in light of the history of § 249 and its evident purpose. § 249 was first enacted into law on March 2, 1929. It provides for the making of a record of admission for permanent residence of an alien; its purpose was to "provide relief for aliens who entered the United States prior to July 1, 1924 now June 28, 1940, where there is inability to locate a record of their permanent admission in conformity with the immigration law at the time of their entry".⁹ The Act of June 29, 1906 required that a registry be made of certain facts concerning each alien arriving in the United States and that "a certificate of such registry, with the particulars thereof" be granted to each alien.¹⁰ § 249 was passed in order to permit the naturalization, at the discretion of the Government, of aliens who did not possess this certificate of registry — a certificate which was required for naturalization. The alien might not have the certificate because he entered unlawfully, or he might not have it because, even though his entry was lawful, his records were lost. For illustrative cases see United States v. Ness, 1917, 245 U.S. 319, 38 S.Ct. 118, 62 L.Ed. 321; Linklater v. Perkins, 1934, 64 App.D.C. 69, 74 F.2d 473. In short, § 249 is an ameliorative provision;¹¹ it appears to have been designed to aid a person who has formed a substantial tie to the United States and who should not, if we are to remain humane, be automatically denied naturalization because of his inability to furnish the certificate. § 249 would not appear to be particularly pertinent to a seaman whom the Government had deported, whose wife and children live in a foreign country (Japan), and whose claim to remain in the United States results from a record of continuous shore leave violations.

A third reason why Matter of M- is inapplicable can be seen from an examination of the Board's disposition towards the factual backdrop: M- was married to a native-born citizen of the United States; he was supporting his wife and her child by a prior marriage; they were about to adopt another child; and, most importantly, his departure was only one week short of the seven-year period. The Board expressly stated: "The equities are all with the respondent" (p. 92) and the law in Matter of M- must be read in light of this statement.

If the plaintiff had been deported in 1945 at Government expense, he could not satisfy § 249. Simply because the Government permitted him to leave at his own expense does not mean a different result should obtain. Clearly, this latter procedure was preferred by the plaintiff. In September, 1945, the war had ended and he was amenable to deportation to China. Instead of this, he desired to ship out as a seaman. The Government does not appear to have had any reason to insist that it pay his way back to China and thus did not object to his leaving aboard the "Fra Berlanga".¹² But the Government's consent to the method of deportation does not lessen the force of the deportation; it does not make plaintiff's deportation something less than a Government-paid-for deportation.

The plaintiff's motion for a summary judgment is denied.

The defendants' motion for a summary judgment is granted.¹³

An order accompanies this memorandum.

1 Complaint, paragraph II, to which the defendants' answer states: "no information or belief."

2 "Record of admission for permanent residence in the case of certain aliens who entered the United States prior to June 28, 1940.

"A record of lawful admission for permanent residence may, in the discretion of the Attorney General and under such regulations as he may prescribe, be made in the case of any alien, as of the date of the approval of his application or, if entry occurred prior to July 1, 1924, as of the date of such entry, if no such record is otherwise available and such alien shall satisfy the Attorney General that he is not inadmissible under section 1182 (a) of this title insofar as it relates to criminals, procurers and other immoral persons, subversives, violators of the narcotic laws or smugglers of aliens, and he establishes that he —

"(a) entered the United States prior to June 28, 1940;

"(b) has had his residence in the United States continuously since such entry;

"(c) is a person of good moral character; and

"(d) is not ineligible to citizenship." (72 Stat. 546)

3 Both the plaintiff and the defendants agree that this was the plaintiff's initial entry into the United States.

Plaintiff need establish continuous residence in the United States only from June 27, 1940. Note 2, supra. Hence, a question and answer at p. 2 of a sworn statement made by plaintiff on September 11, 1952 to the Service becomes irrelevant:

"Q. How, when and where did you enter the United States the first time? A. In 1924 in San Francisco as a seaman."

4 In addition, the Order granted a waiver of inadmissibility under the 9th proviso of § 3 of the Act of February 5, 1917, 8 U.S.C.A. § 1182(d) (3) for entry into the United States from time to time as a bona fide crewman. And see § 3(5) of the Act of May 26, 1924, 8 U.S.C.A. § 1101(a) (15) (D).

5 The Service does not question that the plaintiff was a "resident" in the United States from June 17, 1939 to September 22, 1945, within the meaning of § 249.

Following 1945, the plaintiff continued to sail aboard vessels and was admitted to the United States at...