The opinion of the court was delivered by: Perry, District Judge.
Hee Chan, plaintiff herein, was ordered deported after a
hearing before a Special Inquiry Officer of the Immigration and
In this action (in which jurisdiction is based on 8 U.S.C.A. §
1329, 5 U.S.C.A. §§ 1009 and 1011, and the Federal Declaratory
Judgment Act, 28 U.S.C.A. §§ 2201, 2202), plaintiff seeks to have
all orders and decisions of the defendant District Director
reviewed and to have the said District Director restrained from
enforcing said order of deportation.
This matter is before the court on the motion of the defendant
District Director for summary judgment.
The certified copy of transcript of hearing had before the
Special Inquiry Officer discloses that the proceedings were
conducted through an official interpreter because the plaintiff
said he could speak and understand only the Chinese language.
The transcript shows that during the hearing, and after the
plaintiff had acknowledged receipt of notice of the hearing, the
following questions were asked and answers made thereto:
"Q. In this hearing you may be represented by an
attorney or by any other person authorized to
practice before officers of this Service. Such
representation must be obtained by you without
expense to the government. Do you wish to have anyone
represent you in this hearing? A. No.
"Q. In this hearing you may examine the evidence
against you. You may present evidence in your own
behalf; you may cross-examine any witnesses presented
by the government and any objections you make will be
entered on the record. Do you understand? A. Yes."
Then, in answer to questions put to him by the Special Inquiry
Officer, plaintiff admitted: (1) That he is not a citizen or
national of the United States; (2) that he is a native of China
and a national of China; (3) that he last entered the United
States at Honolulu, Territory of Hawaii on August 10, 1950; (4)
that he was admitted as a nonimmigrant visitor for pleasure and
was authorized to remain in this country only until October 9,
1950; and (5) that he has remained in this country longer than he
Again quoting from the transcript:
"Q. The deportation charge against you is under
Section 241(a)(2) of the Immigration and Nationality
Act [8 U.S.C.A. § 1251(a)(2)]. The charge is that
you are subject to deportation because after being
admitted to this country as a nonimmigrant under the
Immigration Act of 1924 you have remained in this
country for a longer time than permitted. Do you
fully understand this charge? A. Yes.
"Q. Do you admit that you are subject to
deportation on that charge? A. Yes.
Plaintiff further testified at the hearing that he is married,
has a small daughter, and that both his wife and child live in
The Special Inquiry Officer asked: "Do you want to apply for
the privilege of leaving the United States voluntarily at your
own expense instead of being deported?" to which plaintiff
replied: "I do not think I would be able to obtain visas or other
necessary documentation to go to any other countries outside of
the United States."
During the hearing, plaintiff expressed a fear that if he were
deported to Communist China he would suffer physical persecution
at the hands of the Communists, whereupon the Special Inquiry
Officer advised him that he could request a stay of deportation
under Section 243(h) of the Immigration and Nationality Act,
8 U.S.C.A. § 1253(h).
The transcript then shows that after the Special Inquiry
Officer had advised Hee Chan, the plaintiff, that he was entering
the order of deportation, the following occurred:
"Q. The order that I have entered is final unless
an appeal is taken to the Board of Appeals in
Washington, D.C. Do you want to appeal from the order
I have ...