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United States District Court, Northern District of Illinois, E.D

November 25, 1959


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 Naturalization Service.

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.

It is undisputed that plaintiff Hee Chan was born in China; that on August 8, 1950, he entered the United States as a bona fide nonimmigrant and was admitted at Honolulu, Hawaii; that he has since resided continuously in the United States, and, quoting the complaint, that "Certain hearings have been held resulting in an order for deportation, requiring the plaintiff to present himself at the defendant's office ready for deportation to Hong Kong on March 7, 1959."

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 was permitted.

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 Hong Kong.

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 entered? A. I reserve the right to appeal.

    "Q. I will furnish you with a copy of the order and
  with the appeal forms and the appeal, if filed,

  must be submitted by February 3, 1958. Do you
  understand? A. Yes.

    "Q. Have you fully understood the interpreter in
  this hearing? A. Yes."

Plaintiff's brief in opposition to defendant's motion for summary judgment argues that the motion should be denied because "there are many genuine issues of fact in this cause," one of which is "whether or not the entire and complete record necessary to review the matter has been filed." Plaintiff continues, "The record should contain the Order Supervision issued by the defendant to the plaintiff;

  "notice to the alien of the country to which the
  deportation has been directed;

  "application Form 245 and Motion under Section 15
  filed on March 5, 1959, and referred to in paragraphs
  (7), (8), and (9) of the plaintiff's complaint;

  "motion under Section 243(h) of the Immigration and
  Nationality Act previously filed,"

and concludes: "These documents are necessary for an adequate review of the case and the record, and, in their absence the plaintiff should be given an opportunity to present secondary evidence of these material documents or supply copies where available."

Plaintiff's motion to compel the defendant District Director to file a complete record (specifically the above listed documents) was denied by another judge of this court, sitting in summer session. Subsequently, however, this court directed plaintiff to produce said documents and they are now before the court.

A letter dated February 24, 1958, and directed to the plaintiff by the Assistant Director for Deportation, Chicago, informed him that "Pursuant to the order of deportation in your case and Section 243 of the Immigration and Nationality Act, your deportation to China has been directed."

A later letter, however, dated February 26, 1959, and addressed to plaintiff by the same Assistant District Director for Deportation, informed plaintiff that —

    "Arrangements have now been completed to effect
  your deportation to Hong Kong, British Crown Colony.

    "In accordance with part one of an Order of
  Supervision executed by you on August 27, 1958, you
  are hereby called upon to surrender into the custody
  of the United States Immigration and Naturalization
  Service at 2335 South Indiana Avenue, Chicago,
  Illinois, at 12:00 noon Saturday, March 7, 1959. It
  is expected that you will be completely ready for
  return to Hong Kong."

It appears that on March 5, 1959, plaintiff filed with the Immigration and Naturalization Service an application for relief as a refugee from Communism under Section 15 of the Act of September 11, 1957 (Public Law 85-316 (85th Congress, First Session), 71 Stat. 643, 50 U.S.C.A.Appendix, § 1971a note). Before the court is a copy of such application in which the plaintiff alleges: "(2) That the respondent deems himself a refugee-escapee from a Communist-controlled country, to-wit, China; that he cannot return to such area on account of his political opinions."

It further appears that on March 5, 1959, plaintiff also filed with the Immigration and Naturalization Service an application for adjustment of status under Section 245 of the Immigration and Nationality Act. (8 U.S.C.A. § 1255.)

Section 1255(a) reads:

    "The status of an alien who was admitted to the
  United States as a bona fide nonimmigrant may be
  adjusted by the Attorney General, in his discretion
  and under such regulations as he may prescribe, to
  that of an alien lawfully admitted for permanent
  residence if (1) the alien makes an application for
  such adjustment,

  (2) the alien is eligible to receive an immigrant
  visa and is admissible to the United States for
  permanent residence, (3) an immigrant visa was
  immediately available to him at the time of his
  application, and (4) an immigrant visa is
  immediately available to him at the time his
  application is approved. A quota immigrant visa shall
  be considered immediately available for the purposes
  of this subsection only if the portion of the quota
  to which the alien is chargeable is undersubscribed
  by applicants registered on a consular waiting list."
  (Emphasis supplied.)

Exhibit B herein, filed by the Government, is a copy of a letter, dated March 6, 1959, addressed to plaintiff's attorney by the Assistant District Director for Travel Control, Chicago District, Immigration and Naturalization Service, and relating to plaintiff's application for status as a permanent resident under Section 245 of the Immigration and Nationality Act. Quoting from the letter:

    "Mr. Chan's claim to nonquota status as a
  refugee-escapee under Section 15 of the Act of
  September 11, 1957, made in connection with his
  Section 245 application, has been referred to the
  Office of Refugee and Migration Affairs, Department
  of State, and the Department of State has advised
  that a nonquota immigrant visa is not available to
  Mr. Chan under Section 15 of the Act of September 11,
  1957. He is therefore chargeable to the nonpreference
  portion of the quota for Chinese Persons, which is
  heavily oversubscribed.

    "His application for status as a permanent
  resident under Section 245 of the Immigration and
  Nationality Act has been rejected on the ground that
  an immigrant visa was not immediately available to
  him at the time his application was filed.

    "The application, Form I-507, is being submitted to
  the Northwest Regional Office of this Service with
  recommendation that the $25.00 fee submitted with the
  application be refunded to you." (Emphasis supplied.)

Section 1255(a), above quoted, requires that certain conditions precedent exist before the Attorney General may exercise his discretion to adjust the status of certain aliens. One of those conditions — that "(3) an immigrant visa was immediately available to him at the time of his application" — was absent in the instant case.

Plaintiff alleges that he has been denied due process of law because "certain decisions" were arbitrary and without sufficient evidence to support the findings; that they were capricious, erroneous, contrary to law, and without just cause.

Plaintiff complains that he was denied due process because he was not represented by counsel "at the preliminary stages and at the earlier hearings" and claims that he was therefore prejudiced because he did not have full awareness of his rights.

This court does not overlook the basic principle that the procedural guaranties of the due process clause of the Fifth Amendment apply to aliens as well as to citizens of this country, nor does the court overlook the fact that in many cases an alien's lack of representation by counsel could operate to deny him due process of law. It is the view of this court, however, that the instant case is not one of them.

Section 1252(b)(2) of Title 8 U.S.C.A reads:

  "the alien shall have the privilege of being
  represented (at no expense to the Government) by such
  counsel, authorized to practice in such proceedings,
  as he shall choose."

The statute does not say that he "must" be so represented. All that is required is that he be given an opportunity to obtain counsel if he desires.

Since the statute specifically says that such representation by counsel shall not be at the expense of the Government, we may assume that all counsel fees must be borne by the alien — regardless of his ability to pay them. An interpretation of the statute which would make mandatory the representation of an alien by counsel could work a hardship on many aliens having insufficient funds with which to employ able counsel.

It is conceivable that were the statute given such an interpretation, some aliens — either through financial inability to obtain counsel or through designed neglect to obtain counsel — might not only delay proceedings but also delay deportation indefinitely.

In the instant case, plaintiff was given an opportunity to obtain counsel but he waived representation.

In the case of United States ex rel. Mustafa v. Pederson, 7 Cir., 207 F.2d 112, Mustafa claimed that he had been denied due process because he had not been represented by counsel at the hearing before the hearing officer. The Seventh Circuit Court of Appeals, in a Per Curiam opinion said:

    "The record of the hearing discloses that relator
  was advised that he was entitled to have counsel
  represent him, that he could present evidence and
  cross-examine witnesses, but that he decided to
  proceed without counsel. * * *

    "We hold that petitioner knowingly,
  understandingly, and voluntarily waived counsel, and
  that he was accorded a full and fair hearing, and was
  not denied due process of law."

"Courts may not interfere with administrative determinations unless, upon the record, the proceedings were manifestly unfair, or substantial evidence to support the administrative finding is lacking, or error of law has been committed or the evidence reflects manifest abuse of discretion." United States ex rel. Schlimmgen v. Jordan, 7 Cir., 164 F.2d 633, 634; United States ex rel. Beck v. Neelly, 7 Cir., 202 F.2d 221; United States ex rel. Rongetti v. Neelly, 7 Cir., 207 F.2d 281.

A careful review of the entire record in this case convinces this court that the deportation hearing was fair and in accordance with law. The answers which plaintiff made to questions put to him at the hearing reveal that he was very well informed and understood what was said to him.

The record before the court reflects no abuse of discretion, nor does it evidence arbitrariness, capriciousness or denial of due process of law.

The plaintiff's own admissions made during the hearing — admissions which he clearly made with comprehension — constituted substantive evidence and support the administrative finding of deportability.

In United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S. 103, at page 106, 47 S.Ct. 302, at page 304, 71 L.Ed. 560, the court said:

    "Upon a collateral review * * * it is sufficient
  that there was some evidence from which the
  conclusion of the administrative tribunal could be
  deduced and that it committed no error so flagrant as
  to convince a court of the essential unfairness of
  the trial."

Defendant District Director's motion for summary judgment will therefore be granted and the temporary restraining order, heretofore entered herein, will be dissolved.


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