United States District Court, Northern District of Illinois, E.D
November 25, 1959
HEE CHAN, PLAINTIFF,
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
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,
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 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
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
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
(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."
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
"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
"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
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
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
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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