Wei v. Robinson

• Decision Date: 28 June 1957
• Docket Number: No. 11871.,11871.
• Citation: 246 F.2d 739
• Parties: Hsuan WEI, Plaintiff-Appellee, v. Robert ROBINSON, District Director, etc., Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

246 F.2d 739 (1957)

Hsuan WEI, Plaintiff-Appellee, v. Robert ROBINSON, District Director, etc., Defendant-Appellant.

No. 11871.

United States Court of Appeals Seventh Circuit.

June 28, 1957.

Robert Tieken, U. S. Atty., John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill., for appellant. Richard C. Bleloch, John H. Bickley, Jr., Asst. U. S. Attys., Chicago, Ill., of counsel.

Franklin A. Cole, David R. Loewenberg, Chicago, Ill., for plaintiff-appellee.

Loewenberg, Cole, Wishner, Epstein & Marlow, Chicago, Ill., of counsel.

Before MAJOR, FINNEGAN and SCHNACKENBERG, Circuit Judges.

FINNEGAN, Circuit Judge.

Wei, plaintiff-alien, successfully tested the legality of the deportation order entered against him in a declaratory judgment action brought under § 10 of the Administrative Procedure Act, 60 Stat. 243, 5 U.S.C.A. § 1009. See also, Shaughnessy v. Pedreiro, 1955, 349 U.S. 48, 75 S.Ct. 591, 99 L.Ed. 868. By his complaint Wei also asked for a judicial declaration that: (1) section 241.2(c), 8 C.F.R. contravenes U. S. Constitution, Art. I, Section I, and (2) the warrant served on him is invalid. By way of additional relief, plaintiff seeks reversal of the order, issued by the Immigration and Naturalization Service, refusing him voluntary departure, on the basis that the Service acted arbitrarily and capriciously. Wei also requests the right to voluntarily depart the United States in lieu of deportation. After the government filed its responsive pleading, and the record made before the Service was filed below, it moved for summary judgment under Rule 56(b) and (c), Federal Rules of Civil Procedure, 28 U.S.C. From what appears in this record, the district judge, then discussed the matter with counsel for the parties, denied that motion for summary judgment and ruled that: "* * * the order of deportation heretofore entered by defendant District Director of Immigration and Naturalization against plaintiff be and the same hereby is declared null and void and of no force and effect, and the same is hereby vacated * * * plaintiff be and hereby is released from parole and * * * said parole be terminated instanter." From that brief order, containing no other findings of fact and conclusions of law, the government has appealed.

A chronological analysis of the significant facts facilitates the approach to questions arising in this case and, those tabulated below signaled with an asterisk are facts drawn from the stipulation of the parties:

*September 12, 1927 — Wei was born at an unknown place in China, Manchuria, or Russia.

January 8, 1938 — Entered Tientsin St. Louis High School; graduated December 22, 1944.

January 8, 1945 — Enrolled in Military Officer\'s School; graduated September 18, 1948.

1948 until early September 1952 — Wei served continuously as an officer in the Chinese Nationalist Armed Forces, transferring to the Chinese Marine Corps in 1949.

*1952 — Wei selected to go to the United States for training with the United Marine Corps.

*September 2, 1952 — Ministry of Foreign affairs at Taipe; issued Wei a Chinese official passport No. O-527-0139. This passport was valid until December 1, 1953. (Outside of the facts stipulated in writing it appears that from an oral stipulation of the parties during a hearing before the Service that: "the validity of this passport was extended until August 31, 1954.")

*September 7, 1952 — Wei admitted to the United States for training under the M.D.A.P. Program for a period for five months. Wei "was admitted for duration of status under Section 3(1) of the Immigration Act of 1924."

December 24, 1952 — Effective date of Immigration and Nationality Act of 1952.

October 8, 1954 — Wei\'s passport turned over to the Service.

*May or early June, 1954 — Wei completed his military training in the United States and was ordered to return to Formosa.

*June 10-11, 1954 — While awaiting transportation to Formosa at the Twelfth Naval District Establishment at San Francisco, Wei advised a Colonel of the Chinese Nationalist Army that he would not return to Formosa; Wei departed for Chicago, Illinois by bus.

*June 23, 1954 — Wei employed as an elevator operator at the Orrington Hotel, Evanston, Illinois, and at the time he possessed Social Security Card No. XXX-XX-XXXX.

*July 6, 1954 — Wei taken to San Francisco, California by United States Naval Officers.

*July 9, 1954 — Warrant of arrest issued by the District Director, Immigration and Naturalization Service, San Francisco served on Wei who was charged as being in the United States in violation of § 241 (a) (9) of the Act; that he had been admitted as a nonimmigrant and failed to maintain the status of a government official granted under § 3(1) of the Immigration Act of 1924.

August 31, 1954 — Expiration date of passport under extension of time.

September 27, 1954 — Waiver, by Wei, of rights, privileges, exemptions and immunities under § 247(b) of the Immigration and Nationality Act of 1952.

March 2, 1955 — Hearing on Wei\'s claims under § 6, Refugee Relief Act.

September 28, 1955 — Special inquiry officer entered order for Wei\'s deportation and denied discretionary relief. Appeal later denied by the Board of Immigration Appeals.

February 6, 1956 — Complaint for declaratory judgment filed.

Clearly from the foregoing time-table, the effective date of the Immigration and Nationality Act of 1952 followed after Wei legally entered the United States, 66 Stat. 281, 8 U.S.C.A. § 1101 et seq. His entry was grounded in the authority granted by § 3(1) of the Immigration Act of 1924. 43 Stat. 153, 8 U.S.C. § 203.^* Yet the 1924 Act was expressly repealed by incorporating § 403(a) (23) as an integral part of the 1952 legislation (66 Stat. 279) which, in turn, carries a savings clause¹ codified as § 405. 66 Stat. 280, 8 U.S.C.A. § 1101 note. That clause is invoked on Wei's behalf in an argument for the applicability of § 3 (1) of the Immigration Act of 1924 as a factor determinative of his current status.

For § 3 of the 1924 Act provides: "When used in this Act the term `immigrant' means any alien departing from any place outside the United States destined for the United States, except (1) an accredited official of a foreign government recognized by the Government of the United States * * *" and, § 3 was governed by § 15: "The admission to the United States of an alien excepted from the class of immigrants by clause (1) * * * of section 3 * * * shall be for such time and under such conditions as may be by regulations prescribed * * * to insure that, at the expiration of such time or upon failure to maintain the status under which admitted, he will depart from the United States: Provided: That no alien who has been, or who may hereafter be, admitted into the United States under clause (1) * * * of section 3, as an official of a foreign government * * * shall be required to depart from the United States without the approval of the Secretary of State." 43 Stat. 162, 47 Stat. 524, 54 Stat. 711, 59 Stat. 669, 8 U.S.C. § 215.^† (Italics ours). Our tabulation of facts reflect Wei's admission to the United States "for training under the M.D.A. Program for a period of five months" under a passport valid until December 1, 1953, later extended to August 31, 1954. It is an inescapable stipulated fact that: "* * * Wei, completed his military training in the United States on or about May or the early part of June, 1954, at which time he was ordered to return to Formosa." Time, status, and purpose were essential for qualification under the 1924 Act. Wei was admitted for training purposes and that objective was concededly achieved.

There is little, if any, critical difference in Wei's position under either the 1924 or 1952 Acts. United States ex rel. Hintopoulas v. Shaughnessy, 1957, 353 U.S. 72, 77 S.Ct. 618, 1 L.Ed.2d 652 is determinative on the question of discretion in denying voluntary departure.

To be sure these parties agree upon the fact that Wei's passport was extended to August 31, 1954. Yet § 3 is written in the alternative making failure to maintain status under which an alien is admitted the statutory basis for deportation, as implemented by regulations.² With commendable candor the government, in its brief, tells us: "* * * it is admitted that the regulations promulgated under Section 3(1) of the Act of 1924, as to violation of status are not too clear. * * *" These earlier regulations, however, have been superseded by a new set effective December 31, 1952, 8 C.F.R. § 214.2 which were published in 17 Federal Register 11488 (December 19, 1952). See The Federal Register Act, 49 Stat. 500 (1935), 44 U.S.C.A. § 303 and Federal Crop Insurance v. Merrill, 1947, 332 U.S. 380, 385, 68 S.Ct. 1, 92 L.Ed. 10, holding such publication to constitute "legal notice." Contents of the Federal Register and of the Code of Federal Regulations are prima facie evidence of the original text and are required to be judicially noticed. 49 Stat. 502, 50 Stat. 304, 44 U.S.C.A. §§ 307, 311. Wei's position, in substance, would require such an interpretation of the savings clause, § 405, embedded in the 1952 Act, as preserving the regulations implementing the 1924 Act rather than the current following ones:

"§ 214.2 Conditions of nonimmigrant status. An alien found admissible as a nonimmigrant under the Immigration and Nationality Act shall be admitted to the United States, and an alien after admission to the United States as a nonimmigrant or after acquisition of a nonimmigrant status under the Immigration and Nationality Act or any prior act shall be permitted to remain in the United States only upon the following conditions:

"(a) That while in the United States he will maintain the particular nonimmigrant status under which he was admitted or such other status as he may acquire in accordance with the provisions of the Immigration and Nationality Act or which he may have acquired in accordance with the provisions of any prior law.

"(b) That he will depart from the United

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