The opinion of the court was delivered by: Parsons, District Judge.
This matter is before me on a petition for a writ of habeas
corpus filed by Tak Cheong Hau against A.D. Moyer, the District
Director of the Immigration and Naturalization Service (INS),
seeking to enjoin the INS from effecting the petitioner's
deportation from the United States. Both parties have filed
briefs relating to the petition. I have heard arguments of
counsel on this case and have reviewed the administrative
The petitioner, who is a native of Hong Kong, B.C.C., entered
the United States near Buffalo, New York on October 2, 1981,
without inspection by an immigration officer. On December 12,
1981, the petitioner was arrested by the Chicago Police
Department and charged with theft, robbery, unlawful restraint
and intimidation. He was thereafter released on bond pending
trial on these charges. On May 13, 1982, the INS brought
deportation proceedings against petitioner by issuing an Order
to Show Cause charging him with being deportable for having
entered the country illegally, without inspection pursuant to
8 U.S.C. § 1251(a)(2). At a deportation hearing held on June 18,
1982, petitioner conceded deportability and was ordered
deported from the United States by the immigration judge. This
decision was not appealed.
In the interim, petitioner was placed under an order of
supervision effectively staying his deportation, pending the
disposition of the criminal proceedings against him in the Cook
County Circuit Court. On March 15, 1983, petitioner was
convicted of two felonies, unlawful restraint and intimidation,
and on August 10, 1983, he was sentenced to probation on one of
these felony counts and a term of periodic imprisonment on the
other consisting of one day per week for fifty-two weeks to be
spent in jail.
It is manifest that as far as the federal system is concerned
the Act contemplates a stay of deportation following the
imposition of a sentence of continuous incarceration. The
listed exceptions, parole, probation, possibility of rearrest
or further confinement for the same offense, were drafted prior
to the creation of periodic imprisonment under state law and
cannot therefore be construed as the only exceptions to the
rule that an alien sentenced to imprisonment shall not be
deported. Even if they were the only exceptions, I would still
have to address the threshold question of whether or not
periodic imprisonment under Illinois law is imprisonment for
purposes of the Immigration and Naturalization Act. For this
reason the argument cited by petitioner, via the maxim, that
where exceptions to a general rule are designated all omissions
are intended to be excluded, is not controlling.
The Unified Code of Corrections of Illinois, Ill.Rev.Stat.
1983, Ch. 38, § 1005-1-10 defines imprisonment as follows:
This would seem to dispose of the question presented in this
case were it not for Article 7, which in providing for a
sentence of periodic imprisonment recites that:
The two provisions when read together are somewhat ambiguous.
As a general rule of statutory construction, the statutory
definition of words to be used elsewhere in the same statute
furnishes official and authoritative evidence of legislative
intent and meaning and should be given controlling effect. 1A
Sands (Southerland), Statutes and Statutory Construction §
27.02 (4th ed. 1972 & supp. 1983). Illinois follows this rule.
See, Mette v. Feltgen, 148 Ill. 357, 36 N.E. 81 (1894). Where
the definitional clause is clear, it should ordinarily control
the meaning of words used in the remainder of the Act because
of its authoriative nature. Id. This leads to the conclusion
that periodic imprisonment under Illinois statutes is not
imprisonment for purposes of the Immigration and Nationality
Act. In this view of the case, periodic imprisonment falls
somewhere between imprisonment and outright release and is
distinct from probation or work release.
The federal laws provide for a system that is similar to
Illinois periodic imprisonment through the use of conditions on
probation. 18 U.S.C. § 3651. That this federal system is
administered under the authority granted pursuant to the
probation statute and a person sentenced under these provisions
is considered to be on probation supports the conclusion that a
sentence imposed by a federal court similar to that imposed on
the petitioner here would also not be a sentence to
imprisonment under the Act.
A published opinion of the Attorney General of Illinois, while
advisory only and not binding on a court of law, does interpret
the pertinent Illinois statutes and sheds some light on the
issue presented herein, although the Attorney General was
presented with a somewhat different background question. See,
1976 Illinois Attorney General Reports No. 5-1056. The issue
before the Attorney General was whether a person serving a
felony sentence on work release, periodic imprisonment,
probation, conditional discharge or parole has a right to vote.
The Attorney General reasoned that a person serving a sentence
of periodic imprisonment does have a right to vote if he
otherwise qualifies. The opinion reads in pertinent part:
From the definition of "imprisonment" it is also clear that a
person under the sentence of periodic imprisonment is not
considered imprisoned. (Citing Ill.Rev.Stat. 1983, Ch. 38 §
The opinion goes on to distinguish between the voting rights of
persons on periodic imprisonment and those on work release. The
key distinction noted was that the decision that a person
should be on work release is made by the Department of
Corrections, and the person is only permitted to leave the
institution for reasonable hours and is not otherwise released.
The Attorney General concluded that the person sentenced to
work release is still considered imprisoned. This clearly
distinguishes periodic imprisonment which can only be imposed
by a judge of the state of Illinois and as such the person
sentenced to periodic imprisonment is under the authority of
the courts and not the Department of Corrections.
The rule of law to be applied in a deportation case of this
sort is that because deportation might be a drastic penalty,
the statute in question should be given the narrowest of
several possible meanings. Fong Hau Tan v. Phelan,
333 U.S. 6, 10, 68 S.Ct. 374, 376, 92 L.Ed. 433 (1948). In a recent case
before the Supreme Court, however, the majority reasoned that
the Attorney General of the United States and his delegates,
specifically the District Director of the INS, have the
authority to construe a term in a statute narrowly should they
deem it wise to do so. Immigration and Naturalization Service
v. Jong Ha Wang, 450 U.S. 139, 101 S.Ct. 1027, 67 L.Ed.2d 123
(1981). And the Court stated that the administrative branch's
construction and application of the standard should not be
overturned simply because the reviewing court may prefer
another interpretation of the statute. Id. at 144, 101 S.Ct.
at 1031. Here, the INS made the determination in the first
a sentence to periodic imprisonment under Illinois law is not
imprisonment as that term is used in Section 242(h) of the
Immigration and Nationality Act. The determination of the INS
here is supported by the law sufficiently to cause me to defer
to this administrative interpretation.
And while a cursory review of the statutes of other states in
the circuit reveals that the District Director may not be able
to fashion a system which treats aliens located in different
states identically, this is not required as the treatment
accorded a person under federal law often varies from state to
state because of the impact of state law or policy.
The petitioner has also argued that the District Director
should be estopped on equitable grounds from effecting his
deportation, due to the fact that his deportation was stayed in
order to allow the state to complete the criminal proceedings
against the petitioner and the government now seeks his
deportation allegedly because of the "light" sentence given him
by the state court. I find this argument unavailing because the
Act itself and the regulations thereunder contemplate a stay of
deportation until after a criminal trial is concluded and
provide for immediate deportation if the defendant in the state
criminal case is not sentenced to imprisonment. Regulation §
243.4 of Title 8 provides:
The district director, in his discretion, may grant a stay of
deportation for such time and under such conditions as he may
And Section 242(h) of the Act, does not allow the deportation
of an alien sentenced to imprisonment until after the release
of the alien from confinement. Under the Act, if the INS stayed
deportation pending the outcome of a criminal proceeding and.
the alien was sentenced to probation, he would be deportable
immediately and no estoppel would come into play. The fact that
an alien is sentenced to periodic imprisonment, instead of
probation or completely released should not create an equitable
bar to his deportation.
Lastly, the decision of the District Director denying the
petitioner's application for a stay of deportation did not
constitute an abuse of discretion. As a general proposition, an
abuse of discretion is only to be found if there is no evidence
to support the decision or if the decision is based on an
improper understanding of the law. Absent a clear showing of an
abuse of discretion, a decision of a District Director denying
a stay of deportation will not be set aside by a reviewing
court. Kladis v. Immigration and Naturalization Service,
343 F.2d 513, 515 (7th Cir. 1965). In this case, it is clear that
the District Director considered the factors raised by the
petitioner in his request and articulated a reasoned decision.
Given the facts presented by this case his request cannot be
said to be an abuse of discretion.
In view of the foregoing, the petition for habeas corpus is
denied. So ordered.
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