Wong Wing Hang v. Immigration and Naturalization Serv.

Decision Date28 March 1966
Docket NumberDocket 29335.,No. 116,116
CourtU.S. Court of Appeals — Second Circuit

Benjamin Gim, New York City, for petitioner.

Francis J. Lyons, New York City, (Robert M. Morgenthau, U. S. Atty., for the Southern District of New York; James G. Greilsheimer, Special Asst. U. S. Atty., of Counsel), for respondent.

Before LUMBARD, Chief Judge, and FRIENDLY and SMITH, Circuit Judges.

FRIENDLY, Circuit Judge:

Wong Wing Hang asks us to set aside a final order of the Board of Immigration Appeals insofar as this denied, as a matter of discretion, his application under the Immigration and Nationality Act § 244, 8 U.S.C. § 1254(a) (1), for suspension of a concededly valid order directing his deportation to Formosa.

The petitioner, a 37-year old native and citizen of China, entered the United States in 1951 on a false claim that he was the son of a United States citizen. Two years later he fraudulently applied for a certificate of citizenship, and in December 1955, when questioned by a United States attorney, gave false information as to his identity and that of other Chinese immigrants. Shortly thereafter he furnished the correct information when called before a grand jury, and subsequently revealed his identity to the INS and surrendered his certificate. In 1956 he was indicted as a member of a conspiracy to perpetrate passport frauds for other Chinese, the last overt act being the giving of false testimony in court on December 12, 1955; he was convicted on a plea of guilty in 1961, and, receiving a suspended sentence, was placed on probation for a year.

In September 1963, the INS held proceedings to determine whether Wong should be deported for having entered the United States without inspection, § 241(a) (2). Not disputing deportability, Wong applied for suspension. A hearing before a Special Inquiry Officer revealed that during the course of his probation Wong told his probation officer that his wife was in China and afterwards, in August 1962, when asked by an investigator of the INS where his wife and children were and whether they had ever entered the United States, stated under oath that they had never entered this country and were living in Kowloon; in fact, as Wong well knew, the wife and children had fraudulently entered Canada in 1958 as the spouse and children of a Canadian citizen and at the time of the statement to the investigator were visiting Wong in New York. The Special Inquiry Officer, after questioning Wong closely as to the extent of his wife's visits and whether she was spending most of the time here, reserved decision pending report of a character investigation being conducted by the Government. The following December, in the course of the investigation, the wife was found in Wong's apartment, having entered the United States two months before as a Canadian citizen saying she wanted to remain for three weeks or a month.

Section 244(a) (1) of the Immigration and Nationality Act provides in pertinent part as follows:

"As hereinafter prescribed in this section, the Attorney General may, in his discretion, suspend deportation and adjust the status to that of an alien lawfully admitted for permanent residence, in the case of an alien who applies to the Attorney General for suspension of deportation and —
(1) is deportable under any law of the United States except the provisions specified in paragraph (2) of this subsection; has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application, and proves that during all of such period he was and is a person of good moral character; and is a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence."

It is undisputed that Wong is deportable for his illegal entry into the United States under a provision not specified in paragraph (2); that he was physically present in this country for a continuous period of not less than seven years before he applied for suspension of deportation at his hearing in 1963; and that deportation would result in extreme hardship. Moreover, the Special Inquiry Officer and the Board of Immigration Appeals found that Wong's misconduct during the seven year period was insufficient to condemn him as lacking "good moral character" in the sense of § 101(f). Wong's application for suspension was denied not for ineligibility but because, in the language of the Special Inquiry Officer, "far from acting as a person who regretted his previous actions and was attempting to act in a law abiding fashion," Wong had "deliberately concealed the whereabouts and status of his wife and children" and had permitted his wife to enter the United States repeatedly with documents known to him to be fraudulent and to remain beyond the period of her admission. Wong complains that he is being penalized for protecting his wife and children as any husband and father would.

Disposition of the petition requires analysis of the scope of review of orders denying suspension of deportation. There is no reason to doubt that administrative findings of fact made in determining an alien's eligibility for suspension must meet the statutory test of support by "reasonable, substantial, and probative evidence on the record considered as a whole," § 106(a) (4), see Foti v. Immigration and Naturalization Service, 375 U.S. 217, 228-229 & n. 15, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963), or that a determination of ineligibility is subject to judicial scrutiny for proper application of the conditions prescribed in § 244. See Dessalernos v. Savoretti, 356 U.S. 269, 78 S.Ct. 690, 2 L.Ed.2d 751 (1958); Wadman v. Immigration and Naturalization Service, 329 F.2d 812 (9 Cir. 1964); Gagliano v. Immigration and Naturalization Service, 353 F.2d 922 (2 Cir. 1965). We can narrow the problem further by accepting that factual findings on which a discretionary denial of suspension is predicated must pass the substantial evidence test. The issue concerns the standard to be applied in reviewing an ultimate refusal to exercise discretion in favor of an eligible alien when the facts are undisputed or have been properly found.

Since the review provisions of § 106 of the Immigration and Nationality Act do not answer this question, we turn for illumination to § 10 of the Administrative Procedure Act, a course particularly appropriate in light of the expressed congressional purpose to fashion in § 106 a statutory procedure of review that "implements and applies" § 10 of the APA, H.R.Rep. No. 1086, 1961 U.S. Code Cong. & Ad. News 2950, 2966. Here we encounter the familiar conflict between the preamble of § 10, "Except so far as...

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