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HEE CHAN v. PILLIOD

November 25, 1959

HEE CHAN, PLAINTIFF,
v.
ALVA L. PILLIOD, DISTRICT DIRECTOR, CHICAGO DISTRICT, UNITED STATES DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, DEFENDANT.



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.

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 ...

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