Tai Mui v. Esperdy, 133

• Decision Date: 09 December 1966
• Docket Number: No. 133,Dockets 30621,30622,162,30552.,154,133
• Citation: 371 F.2d 772
• Parties: TAI MUI, Plaintiff-Appellant, v. P. A. ESPERDY, as District Director of the Immigration and Naturalization Service for the District of New York, Defendant-Appellee. CHAN HING and Lai Cho, Plaintiffs-Appellants, v. P. A. ESPERDY, as District Director of the Immigration and Naturalization Service for the District of New York, Defendant-Appellee. WOO CHENG HWA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

371 F.2d 772 (1966)

TAI MUI, Plaintiff-Appellant, v. P. A. ESPERDY, as District Director of the Immigration and Naturalization Service for the District of New York, Defendant-Appellee.

CHAN HING and Lai Cho, Plaintiffs-Appellants, v. P. A. ESPERDY, as District Director of the Immigration and Naturalization Service for the District of New York, Defendant-Appellee.

WOO CHENG HWA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Nos. 133, 162, 154, Dockets 30621, 30622, 30552.

United States Court of Appeals Second Circuit.

Argued November 2, 1966.

Decided December 9, 1966.

Jules E. Coven, New York City (Lebenkoff & Coven, New York City) (Abraham Lebenkoff, New York City, of counsel), for appellants Tai Mui, Chan Hing and Lai Cho.

Martin Burroughs, New York City (Andrew Reiner, New York City), for petitioner Woo Cheng Hwa.

Francis J. Lyons, New York City (Robert M. Morgenthau, U. S. Atty. for Southern District of New York) (James G. Greilsheimer, Sp. Asst. U. S. Atty., of counsel), for appellee and respondent.

Before FRIENDLY, SMITH and FEINBERG, Circuit Judges.

FRIENDLY, Circuit Judge.

These cases present questions, of first impression for us, of the interpretation of the provisions of the Immigration and Nationality Act Amendments of 1965, 79 Stat. 911, 912-13, according certain refugees preferences for lawful admission.

I.

The 1965 statute had "as its primary objective the abolishment of the national origins quota system for the allocation of immigrant visas and the substitution of a new system of allocation based on a system of preferences which extends priorities in the issuance of immigrant visas to close relatives of U. S. citizens and aliens lawfully admitted for permanent residence, to aliens who are members of the professions, arts, or sciences, and to skilled or unskilled alien laborers who are needed in the United States, and to certain refugees." S.Rep. No. 748, 89th Cong., 1st Sess. (1965), in 1965 U.S. Code Cong. & Adm.News, pp. 3329-3330. Section 201(a) as amended now provides that, subject to exceptions not here material, "the number of aliens who may be issued immigrant visas or who may otherwise acquire the status of an alien lawfully admitted to the United States for permanent residence" shall not exceed 170,000 in any fiscal year. Section 203 lists seven categories of aliens subject to these numerical limitations who are entitled to preferences. The first six of these, entitled in the aggregate to 94% of the 170,000 total, are to receive visas from United States consular representatives abroad. Section 203(a) (7) dealing with refugees, with which we are here concerned, establishes a different procedure for the remaining 6%, or 10,200 per year. It prescribes that "Conditional entries shall next be made available by the Attorney General, pursuant to such regulations as he may prescribe * * * to aliens who satisfy an Immigration and Naturalization Service officer at an examination in any non-Communist or non-Communist-dominated country" that they come within the statutory definition of refugee, "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."

The further handling of an alien who conditionally entered under § 203(a) (7) was prescribed in § 203(g) and (h). After two years presence, if his conditional entry has not been terminated by the Attorney General and he has not established permanent residence, he must return to the INS for inspection and examination and is dealt with as any other qualified immigrant except that he is excused from the possession of documents required by § 212(a) (20). The 1965 Act made only unimportant amendments to § 245, the provision of the Immigration and Nationality Act dealing generally with the adjustment of status of a nonimmigrant to that of a person admitted for permanent residence. Subsection (a) provides:

"(a) The status of an alien, other than an alien crewman, who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is approved."

Subsection (b) directs that upon the approval of an application for adjustment under subsection (a) the Attorney General shall record the alien's lawful admission for permanent residence and the Secretary of State shall reduce by one the number of preference or nonpreference visas authorized by § 203(a) "within the class to which the alien is chargeable, for the fiscal year then current."

The Attorney General issued revised regulations to implement § 203(a) (7). Those pertinent to conditional entry are 8 C.F.R. § 235.9(a) and (c), 31 F.R. 5118 (1966):

"§ 235.9 Conditional entries.

"(a) Countries in which applications may be filed. Pursuant to agreements entered into with the governments of the countries concerned, officers of the Service are authorized to accept applications and to examine the qualifications of applicants for conditional entry under section 203(a) (7) of the Act, in Austria, Belgium, France, Germany, Greece, Italy, and Lebanon. Applications for conditional entry may be filed only by aliens who are physically present within one of the designated countries.

"(b) * * *

"(c) Application. A separate application for conditional entry under section 203(a) (7) of the Act shall be executed and submitted by each applicant on Form 1-590 to the officer in charge of the nearest Service office outside the United States. Each applicant under this paragraph shall appear in person before an immigration officer and excepting a child under 14 years of age shall, prior to the adjudication of his application, be interrogated under oath concerning his eligibility for conditional entry into the United States. * * * The approval of an application by an officer in charge outside the United States authorizes the district director at a port of entry to effect the conditional entry of the applicant upon arrival at such port within 4 months after the date of the approval. * * *"

Those relevant to the adjustment of status proviso are a portion of 8 C.F.R. § 245.1(d), 31 F.R. 535 (1966):

"(d) Immediate relatives under section 201(b) and preference aliens under section 203(a) (1) through 203 (a) (7).

"* * * An alien who claims preference status under the proviso to section 203(a) (7) of the Act is not eligible for the benefits of section 245 of the Act and as provided in § 245.4, unless the District Director has approved the alien\'s Application for Classification as a Refugee under the Proviso to Section 203(a) (7), Immigration and Nationality Act."

and § 245.4, 31 F.R. 536 (1966):

"§ 245.4 Adjustment of status under the proviso to section 203(a) (7) of the Act.

"The provisions of section 245 of the Act and this part shall govern the adjustment of status provided for in the proviso to section 203(a) (7) of the Act. Processing of applications for adjustment under the proviso to section 203(a) (7) and this section shall be initiated in each district in the chronological order in which the applicants last arrived in the United States. An alien who claims he is entitled to a preference status pursuant to the proviso to section 203(a) (7) of the Act shall execute and attach to his application for adjustment of status Form I-590A, Application for Classification as a Refugee under the Proviso to Section 203(a) (7), Immigration and Nationality Act. The determination as to whether an alien is entitled to the claimed preference status shall be made by the district director; no appeal shall lie from his determination." 31 F.R. 536, January 15, 1966.

II.

Tai Mui had last entered the United States as a crewman on July 31, 1961. He was ordered to be deported to Hong Kong and was scheduled to exercise his privilege of voluntary departure on or before November 1, 1965. After failing to depart and being directed to surrender for deportation, he applied to the New York District Director for a stay of deportation under 8 C.F.R. § 243.4 in order to prosecute an application for adjustment of status under the amended act. The Director denied the application on the basis that § 245 of the Act and 8 C.F.R. § 245.1 rendered a crewman ineligible to avail himself of the proviso to § 203(a) (7) as a preliminary step to adjusting his status. Tai Mui thereupon sued the District Director in the District Court for the Southern District of New York for a judgment declaring that his being a crewman did not deprive him of the benefits of the proviso to § 203(a) (7), that the regulations making him ineligible for such relief on that basis are void, and that a stay of deportation should be granted pending final determination of an application for adjustment of status pursuant to such declaration. Holding that the district court was not deprived of jurisdiction by § 106(a) of the Immigration and Nationality Act vesting the courts of appeals with exclusive jurisdiction for review "of all final orders of deportation heretofore or hereafter made against aliens within the United States pursuant to administrative proceedings under section 242(b) of this Act," Judge Levet sustained the District Director on the merits and granted summary judgment dismissing the complaint, from which Tai Mui appeals.

Chan Hing and Lai Cho, also crewmen, were ordered to be deported to Hong Kong and were given until October 1965 to effect voluntary...