Yan Wo Cheng v. Rinaldi

• Decision Date: 05 February 1975
• Docket Number: Civ. A No. 74-1885.
• Citation: 389 F. Supp. 583
• Parties: YAN WO CHENG and Lai On Cheng, Plaintiffs, v. Dominick RINALDI, as District Director of the Immigration and Naturalization Service of New Jersey, Defendant.
• Court: U.S. District Court — District of New Jersey

389 F. Supp. 583

YAN WO CHENG and Lai On Cheng, Plaintiffs, v. Dominick RINALDI, as District Director of the Immigration and Naturalization Service of New Jersey, Defendant.

Civ. A No. 74-1885.

United States District Court, D. New Jersey.

February 5, 1975.

Jules E. Coven, New York City, Allan S. Berger, East Orange, N. J., for plaintiffs.

Jonathan L. Goldstein, U. S. Atty. by George E. Mittleholzer, Asst. U. S. Atty., Newark, N. J., for defendant.

OPINION

LACEY, District Judge:

Plaintiffs, claiming to be citizens of the Peoples Republic of China, sue to enjoin their deportation and for asylum in the United States. A temporary restraining order issued upon commencement of suit and, by consent, is still effective. Plaintiffs now move for a preliminary injunction and defendant cross-moves for dismissal of the complaint and, in the alternative, for summary judgment.

At the outset, I shall address defendant's claim that judicial review of the challenged agency determination cannot be had in this court because plaintiffs seek review of proceedings that are part and parcel of the deportation hearing authorized by Section 242 of the Immigration and Nationality Act, 8 U.S.C. § 1252 (1970), judicial review of which is exclusively vested in the Court of Appeals, 8 U.S.C. § 1105a (1970); Giova v. Rosenberg, 379 U.S. 18, 85 S.Ct. 156, 13 L.Ed.2d 90 (1964); Foti v. Immigration and Naturalization Service, 375 U.S. 217, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963). I conclude that this court can consider the issues raised by the parties in that the proceedings herein are ancillary to the statutory deportation hearing and therefore may be reviewed by this court. See 8 U.S.C. § 1329 (1970); Cheng Fan Kwok v. Immigration and Naturalization Service, 392 U.S. 206, 88 S.Ct. 1970, 20 L.Ed.2d 1037 (1968); Ming v. Marks, 367 F. Supp. 673 (S.D.N.Y.1973); Kan Kam Lin v. Rinaldi, 361 F.Supp. 177 (D.N.J. 1973), aff'd, 493 F.2d 1229 (3d Cir.), cert. denied, 419 U.S. 874, 95 S. Ct. 136, 42 L.Ed.2d 113 (1974); Buckley v. Gibney, 332 F.Supp. 790 (S.D.N.Y.), aff'd, 449 F.2d 1305 (2d Cir. 1971), cert. denied, 405 U.S. 919, 92 S.Ct. 946, 30 L. Ed.2d 789 (1972); Ching Ho Mui v. Rinaldi, 262 F.Supp. 258 (D.N.J.1966), aff'd, 408 F.2d 28 (3d Cir.), cert. denied, 395 U.S. 963, 89 S.Ct. 2101, 23 L. Ed.2d 748 (1969).

FACTUAL BACKGROUND

Both plaintiffs departed from China in 1961 (Pffs' Memorandum, 1), allegedly because of communist persecution, going first to Hong Kong and thereafter to the United States. Cplt., para. 7; Coven Affidavit, para. 9. Plaintiffs are or were seamen and had been issued a Hong Kong Seaman's Identity Book, permitting them at will to enter, leave or stay in Hong Kong. Friess Affidavit, paras. 4(viii) and 5(vii).

Lai On Cheng surreptitiously entered the United States in 1970 from Canada, and therefore illegally. 8 U.S.C. § 1251 (a)(2) (1970). Yan Wo Cheng was permitted to enter the United States in December 1971 at Los Angeles, California, as a non-immigrant crewman, while his ship was in port, for a period not to exceed 29 days. 8 U.S.C. § 1282 (1970). After entry he left his ship, and remained in the United States beyond the authorized period. Thus his presence here became illegal in January 1972.

Deportation proceedings were commenced against both plaintiffs on February 16, 1973, culminating in a hearing and the Special Inquiry Officer's March 30, 1973 decision ordering deportation, subject to voluntary departure, as plaintiffs requested, on or before May 15, 1973. 8 U.S.C. § 1252 (1970). At the hearing, where plaintiffs and three other Chinese aliens were represented by plaintiffs' counsel herein, plaintiffs admitted their illegal status and conceded deportability. See Appendix A. They saw fit to refrain from requesting asylum at that juncture, for reasons about which we can only speculate. They accepted Hong Kong as a place to which they would voluntarily depart. They disclaimed any intention of seeking deferment of deportation because of political persecution there. They sought no review of the Special Inquiry Officer's determination.¹ Cf. 8 C.F.R. § 242.21 (1974); Kan Kam Lin v. Rinaldi, 361 F.Supp. at 187 n. 9.

Predictably, plaintiffs did not voluntarily depart on May 15, 1973. There is nothing to suggest that plaintiffs voluntarily brought their failure to do so to the attention of INS. In November 1974, a year and one-half later, INS wrote both plaintiffs to report on December 3, 1974 for deportation to Hong Kong.

Plaintiffs, as in Ming v. Marks, supra, and Kan Kam Lin, supra, then applied to the INS for asylum and a stay of deportation, in pertinent part as follows:

. . . That I was born in Foochow, China and that I fled from China because of the Communist control of my "home country". That it is my belief that China is my "home country" and I am, therefore, entitled to a stay of deportation based upon the Operations Instructions 108.1 and 108.2. That China is the country of my birth and nationality and I have not become firmly resettled in any other country.

By letter of December 4, 1974 to Yan Wo Cheng, the application was denied:²

Dear Sir:

Reference is made to your request for political asylum and temporary refuge in the United States pursuant to the terms of the Treaty "Protocol relating to the Status of Refugees", and the Policy Statement of the Secretary of State of January 4, 1972.

It is noted that you are unlawfully in the United States because you entered solely as a crewman for shore leave and remained longer than 29 days or the period your vessel remained in the United States.

Because of the foregoing it has been concluded after due hearing that you are deportable from the United States and it is not proposed to deport you to any other country where you would be in danger of persecution; it is proposed to deport you to Hong Kong. You have failed to establish that you have not been firmly resettled in Hong Kong.

After careful consideration and general guidelines from the Department of State, it has been concluded that you should not be exempted from regular immigration procedures since you have failed to establish pursuant to Article 1(a)(2) and Article 32(1) of the Treaty, that you are a refugee lawfully in the United States and that you would be persecuted on account of race, religion, nationality or membership of a particular social group, or political opinion, if returned to Hong Kong. Therefore your request for a stay of deportation (Form 1-246) has been denied.

If you desire not to withdraw your request for political asylum, you may file a motion to reopen your deportation proceedings to continue your request under Section 243(h) of the Immigration and Nationality Act.

Sincerely Dominick F. Rinaldi District Director

To the extent that this case involves nothing more than the issue of asylum founded upon the aforesaid provisions of the Treaty Protocol and the State Department Policy Statement, it is controlled by Kan Kam Lin, supra. Thus, since plaintiffs are in the United States unlawfully, they are not entitled to asylum under those provisions.

Plaintiffs' counsel, however, with affirmance of Kan Kam Lin, supra, by the Court of Appeals, abandoned in this case the approach taken in that case³ and in Ming v. Marks, supra. Instead, he claims for his clients here the right of asylum allegedly created by certain Operations Instructions hereinafter sometimes referred to as OI⁴ of the Immigration and Naturalization Service. For the reasons hereinafter set forth, I find that these create no right of asylum, but simply set forth instructions for implementing the right of asylum granted by the Act's § 243(h), 8 U.S.C. § 1253(h) (1970),⁵ and State Department Policy Statement and Treaty Protocol.

Administration and enforcement of immigration and naturalization laws lie with the Attorney General of the United States. 8 U.S.C. § 1103(a) (1970). His authority enables him to promulgate rules and regulations affecting the processing of aliens:

He shall establish such regulations; prescribe such forms of bond, reports, entries, and other papers; issue such instructions; and perform such other acts as he deems necessary for carrying out his authority under the provisions of this chapter. . . .

Id.

Pursuant to § 1103(a), and authority delegated to him, 8 C.F.R. § 2.1 (1974); Buckley v. Gibney, supra, the aforesaid Operations Instructions have been promulgated by the Commissioner of Immigration and Naturalization. They are found in an INS publication entitled: "CURRENT LAWS; TITLE 8, CODE OF FEDERAL REGULATION; OPERATIONS INSTRUCTIONS; AND INTERPRETATIONS" hereinafter cited as CURRENT LAWS.

Some of the instructions are not available to the public, others are. See 8 C. F.R. § 103.9 (1974); CURRENT LAWS General Explanation, para. 2.

The specific instructions plaintiffs rely upon were adopted July 26, 1972. CURRENT LAWS, at p. 618.11. Instructions 108.1(f) et seq. pertain to "Aliens within the United States". There are three subsections under this Heading: (1) Asylum request prior to deportation hearing;⁶ (2) Asylum request during course of deportation hearing;⁷ and (3) Asylum request after completion of deportation hearing.⁸

When an asylum request is submitted prior to a deportation hearing, both the District Director and the Office of Refugee and Migration Affairs of the State Department review the application. If the District Director denies the application but the state Department recommends it, the case is thereafter reviewed by the INS Regional Commissioner. If he agrees with the District Director's adverse determination, the case proceeds to further review before the Office of Travel Control of INS. Instruction 108.1(f)(1) also requires that, where the decision is adverse to the alien, he should be advised that he may apply to the Special Inquiry Officer during his deportation hearing for asylum and withholding of deportation pursuant to § 243(h) of the Act, 8 U.S.C. § 1253(h) (1970).

When...