Sui Fung Luk v. Rosenberg, Civ. No. 67-621.
| Decision Date | 23 August 1967 |
| Docket Number | Civ. No. 67-621. |
| Citation | 271 F. Supp. 485 |
| Parties | SUI FUNG LUK, Petitioner, v. George K. ROSENBERG, District Director, Immigration and Naturalization Service, Respondent. |
| Court | U.S. District Court — Central District of California |
Kwan, Cohen & Lum, Los Angeles, Cal., for petitioner.
Wm. Matthew Byrne, Jr., U. S. Atty., Frederick M. Brosio, Jr., Asst. U. S. Atty., Chief Civil Division and Carolyn M. Reynolds, Asst. U. S. Atty., Los Angeles, Cal., for respondent.
DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW, ORDER and STIPULATED AMENDED ORDER
Petitioner, a native and citizen of China, arrived in the United States as a member of the crew of the SS "Pacific Leader" on June 30, 1962, at the port of New York from Manila, Philippine Islands. The Immigrant Inspector found him not eligible for a conditional permit to land under 8 U.S.C. § 12821 and paroled him under 8 U.S.C. § 1182(d) (5)2 until July 29, 1962, or the date his vessel sailed foreign, whichever first occurred.
The petitioner failed to depart on the vessel and was not located by the Immigration and Naturalization Service until April 1965 when he was found in Los Angeles, California working as a chef. His parole was terminated and in accordance with 8 CFR 212.5(a) he was restored to the status which he had at the time of parole—an alien crewman applying for admission to the United States— and further inspection conducted under 8 U.S.C. § 1225.3
Upon this further immigration inspection, petitioner was held to be inadmissible to the United States under 8 U.S.C. § 1182(a) (20)4 as a crewman seeking admission as an immigrant not in possession of the required immigrant visa. The transportation company on whose vessel petitioner was brought to the United States was notified on April 20, 1965, of its obligation to detain and deport the petitioner from the United States under 8 U.S.C. § 1284.5 Pending arrangements for the petitioner's removal from the United States by the transportation company, he was again paroled on April 22, 1965, upon the posting of a $1500.00 bond for the release of an alien under exclusion proceedings pursuant to 8 U.S.C. § 1182(d) (5).6
On August 10, 1965, the petitioner was notified that the parole of April 22, 1965 was revoked and that since an appearance bond had been posted in his behalf that he would have to appear when notified to do so by the Immigration and Naturalization Service.
The transportation line on whose vessel the petitioner was brought to the United States having completed arrangements for the deportation of the petitioner from the United States in accordance with 8 U.S.C. § 1284,7 the bonding company was notified on April 21, 1967 to produce the petitioner for deportation on May 1, 1967. A copy of this notice was sent to petitioner and his attorney.
On April 27, 1967, petitioner filed an Application for Stay of Deportation on the ground that he desired to remain in the United States while a petition filed by his employer seeking sixth preference classification in the petitioner's behalf was being adjudicated and on the further ground that if such petition were approved, the petitioner would seek a United States Consulate outside the United States which would accept his application for an immigrant visa. This application was denied by the District Director of the Immigration and Naturalization Service on April 27, 1967, on the ground that petitioner's presence in the United States was not required in connection with the processing of any application for an immigrant visa which the petitioner intended to file at an American Consulate outside the United States, and on the further ground that the petitioner was not eligible for any relief from deportation under the Immigration and Nationality Act, as amended, or to have his illegal status adjusted in any way under such Act.
Petitioner brought this Petition for Writ of Habeas Corpus and Judicial Review on April 28, 1967, alleging that the deportation order was null and void because petitioner was not given a hearing before his parole was revoked. Petitioner also claims that he is entitled to a stay of deportation pending the determination of his visa application.
Counsel for petitioner and respondent stipulated in open court that petitioner was inspected and paroled into the United States initially on June 30, 1962, and again on April 22, 1965. The parties also stipulated that no hearing was held in revoking either parole prior to ordering the petitioner deported.
The only issues, then, are (1) whether petitioner was entitled to a hearing before revocation of his parole, and (2) whether petitioner is entitled to a stay of deportation.
In support of his contention that he was entitled to a hearing, petitioner cites United States ex rel. Paktorovics v. Murff, 260 F.2d 610 (CCA 2nd 1958). However, that case did not involve an alien crewman, but a Hungarian refugee paroled into the United States after an announced foreign policy of the United States to give asylum to such refugees. Because of special circumstances of the case, the Second Circuit held that the appellant was entitled to a hearing prior to the revocation of his parole.
However, an alien crewman who is conditionally paroled into the United States is not entitled to a hearing on the revocation of his parole precedent to his being deported from the country. Wong Hing Fun v. Esperdy, 335 F.2d 656 (CCA 2nd 1964), cert. denied sub nom. Ng Sui Sang v. Esperdy, 379 U.S. 970, 85 S.Ct. 667, 13 L.Ed.2d 562 (1965); United States ex rel. Lam Hai Cheung v. Esperdy, 345 F.2d 989 (CCA 2nd 1965). Under the Immigration and Naturalization Act, petitioner never made an entry into the United States and is subject to the exclusion rather than the expulsion provisions of the statute. Leng May Ma v. Barber, 357 U.S. 185, 78 S.Ct. 1072, 2 L.Ed.2d 1246 (1958). As no hearing is provided by statute in this type of case, petitioner is entitled to none.
As to petitioner's second contention that he is entitled to a stay of deportation, that determination is entirely within the discretion of the District Director under 8 CFR 243.4.8 A denial by the District Director is not appealable and judicial review is limited to a determination as to whether there has been an abuse of discretion. Melone v. Immigration and Naturalization Service, 355 F.2d 533 (CCA 7th 1966); Say v. Del Guercio, 237 F.2d 715 (CCA 9th 1956); Polites v. Sahli, 302 F.2d 449 (CCA 6th 1962), cert. denied, 371 U.S. 916, 83 S.Ct. 259, 9 L.Ed.2d 175 (1962).
Petitioner herein requested a stay of deportation in order to allow him additional time to process an application for an immigrant visa with an American Consul abroad. Under 8 U.S.C. § 1101 (a) (16), "the term `immigrant visa' means an immigrant visa required by this chapter and properly issued by a consular officer at this office outside the United States to an eligible immigrant under the provisions of this chapter." Emphasis added.
It is obvious that the director did not abuse his discretion in denying petitioner's application for a stay of deportation since petitioner must leave this country in order to apply for such a visa.
From the foregoing facts and discussion the Court concludes that:
(1) Petitioner, an alien crewman conditionally paroled into the United States who absconded and whose parole was revoked, was not entitled to a hearing on the revocation of his parole precedent to his being deported from this country.
(2) There was no abuse of discretion by the District Director of the Immigration and Naturalization Service in denying petitioner's application for a stay of deportation.
(3) Petitioner is not entitled to a Writ of Habeas Corpus and judgment should be entered in favor of the respondent.
The foregoing shall and does constitute this Decision, Findings of Fact and Conclusions of Law herein, as required by Rule 52, Federal Rules of Civil Procedure.
The petition herein is denied and the Court makes and enters the following "JUDGMENT AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS":
Upon the petitioner's motion for new trial and after the hearing thereon in which the Court considered the pleadings, the administrative record on file and the arguments of counsel for both parties, the Court suggested and the parties stipulated by and through their respective counsel, to the following "AMENDED ORDER":
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