United States v. Esperdy

• Citation: 197 F. Supp. 914
• Parties: UNITED STATES of America ex rel. WONG KAN WONG, Relator, v. P. A. ESPERDY, as District Director of the Immigration Service for the District of New York, or such person, if any, who may have the said Wong Kan Wong in custody, Respondent.
• Decision Date: 08 September 1961
• Court: U.S. District Court — Southern District of New York

197 F. Supp. 914

UNITED STATES of America ex rel. WONG KAN WONG, Relator, v. P. A. ESPERDY, as District Director of the Immigration Service for the District of New York, or such person, if any, who may have the said Wong Kan Wong in custody, Respondent.

United States District Court S. D. New York.

September 8, 1961.

Abraham Lebenkoff, New York City, for relator.

Robert M. Morgenthau, U. S. Atty., Roy Babitt, Sp. Asst. U. S. Atty., New York City, for respondent.

LEVET, District Judge.

Relator is detained by respondent under Section 242(c) of the Immigration and Nationality Act, 8 U.S.C.A. § 1252 (c), and applicable regulations 8 C.F.R. (1958 Ed.), Section 243.3(a), for the purpose of effecting his departure from the United States pursuant to an order of the Attorney General that he be deported.

Relator was ordered deported on July 25, 1961 following a hearing before a Special Inquiry Officer of the Immigration and Naturalization Service.

Relator is a native and citizen of China, who entered the United States at New York, N. Y. on or about February 23, 1961 as a crewman.

At the time of the hearing above mentioned the Special Inquiry Officer concluded that relator was subject to deportation as an alien who was in the United States in violation of law. At the hearing, relator designated the mainland of China as the country to which he wished to be sent in the event he were ordered deported.

Subsequently, a Supervisory Deportation Officer communicated with Francis J. Noble in Hong Kong, Immigration Officer there. Mr. Noble was advised that relator had designated the mainland as the place to which he wished to be sent, and accordingly Mr. Noble was requested to confer with appropriate authorities in Hong Kong to ascertain whether upon relator's arrival there deportation could be completed to the mainland of China.

Mr. Noble advised subsequently by cable that the Director of Immigration for the Hong Kong government had confirmed that upon relator's arrival in possession of Hong Kong documentation, deportation to the mainland of China could be completed.

The government contends that relator possesses proper documentation for entering into Hong Kong en route to the mainland of China in accordance with the designation of country authorized by Section 243(a) of the Act, 8 U.S.C.A. § 1253 (a).

The respondent allegedly advised relator that pursuant to the order of deportation and Section 243 of the Act, relator's deportation to the mainland of China, in accordance with his election, was directed, and further advised relator that in the event the government occupying the mainland of China should not permit relator entry, he would be returned to the United States without expense.

The relator contends that since he designated the mainland of China, deportation cannot be effected there because respondent has not inquired of that government as to whether it will accept relator into its territory. The relator thus argues that this inquiry by the respondent is demanded by the Act and that, therefore, since it cannot be done because we do not maintain diplomatic relations with the mainland government, relator cannot be deported and, therefore, there is no basis for holding him in custody.

Section 243(a) of the Act, 8 U.S.C.A. § 1253(a), is as follows:

"§ 1253. Countries to which aliens shall be deported—Acceptance by designated country; deportation upon nonacceptance by country

"(a) The deportation of an alien in the United States provided for in this chapter, or any other Act or treaty, shall be directed by the Attorney General to a country promptly designated by the alien if that country is willing to accept him into its territory, unless the Attorney General, in his discretion, concludes that deportation to such country would be prejudicial to the interests of the United States. No alien shall be permitted to make more than one such designation, nor shall any alien designate, as the place to which he wishes to be deported, any foreign territory contiguous to the United States or any island adjacent thereto or adjacent to the United States unless such alien is a native, citizen, subject, or national of, or had a residence in such designated foreign contiguous territory or adjacent island. If the government of the country designated by the alien fails finally to advise the Attorney General within three months following original inquiry whether that government will or will not accept such alien into its territory, such designation may thereafter be disregarded. Thereupon deportation of such alien shall be directed to any country of which such alien is a subject national, or citizen if such country is willing to accept him into its territory. If the government of such country fails finally to advise the Attorney General or the alien within three months following the date of original inquiry, or within such other period as the Attorney General shall deem reasonable under the circumstances in a particular case, whether that government will or will not accept such alien into its territory, then such deportation shall be directed by the Attorney General within his discretion and without necessarily giving any priority or preference because of their order as herein set forth either—

"(1) to the country from which such alien last entered the United States;

"(2) to the country in which is located the foreign port at which such alien embarked for the United States or for foreign contiguous territory;

"(3) to the country in which he was born;

"(4) to the country in which the place of his birth is situated at the time he is ordered deported "(5) to any country in which he resided prior to entering the country from which he entered the United States;

"(6) to the country which had sovereignty over the birthplace of the alien at the time of his birth; or

"(7) if deportation to any of the foregoing places or countries is impracticable, inadvisable, or impossible, then to any country which is willing to accept such alien into its territory."

Relator relies upon the decision of the Second Circuit in United States ex rel. Tom Man v. Murff, 2 Cir., 1959, 264 F.2d 926.

In the Man case, the relator was born in China and last entered the United States in 1925 as a seaman upon a British ship. Concededly, he was subject to deportation for having long overstayed the time permissible to a seaman who leaves the ship. Deportation proceedings were begun against him in 1952, and in 1954 he was found subject to deportation and a warrant issued under Section 243(a) of the Immigration and Nationality Act (Section 1253(a) of Title 8 U.S.C.A.). The relator thereupon specified Formosa as the "country" to which he wished to be deported, and the Attorney General applied to the National Chinese Government to "accept" him. That government, however, refused to do so, whereupon the Attorney General directed him to be sent to "China," which meant "the mainland of China." In the district court, Judge Dimock held that, although there was no proof that the relator would have been subject to "physical persecution" on the mainland of China, the Act did not permit deportation to China since the Attorney General had not inquired of the Communist Government of China whether it was willing to "accept" the relator.

Under these circumstances, the appellate court seems to have concluded that a...