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TAK CHEONG HAU v. MOYER

October 28, 1983

TAK CHEONG HAU, PETITIONER,
v.
A.D. MOYER, ETC., RESPONDENT.



The opinion of the court was delivered by: Parsons, District Judge.

MEMORANDUM OPINION AND ORDER

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 record.

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.

Petitioner first asserts in his, petition, although he did not press this point at oral argument, that he should not be deported because he is married to a lawful permanent resident alien and a "Petition to Classify Status of an Alien Relative for Issuance of an Immigrant Visa" (I-130 petition) has been filed on his behalf. The filing of this I-130 petition, however, does not entitle Hau to automatic admission to the United States, but would merely qualify him, if it were granted, for classification under the second preference category as the spouse of a permanent resident alien. As such, he would still be subject to the numerical limitations imposed on immigrant visas. Even if the petitioner's spouse were to become a naturalized citizen of the United States and could therefore possibly exclude the petitioner from the numerical limitations imposed on immigrant visas, this would still not authorize automatic admission of the petitioner. DiFigueroa v. Immigration and Naturalization Service, 501 F.2d 191, 195 (7th Cir. 1974). I find petitioner Hau's first contention that he is entitled to remain in the United States because his wife is a permanent resident alien who has submitted an I-130 petition on his behalf to be devoid of merit.

Petitioner's next argument is that pursuant to Section 242(h) of the Immigration and Naturalization Act (the Act) 8 U.S.C. § 1252(h), the District Director cannot lawfully effect his deportation until he completes his sentence to a term of periodic imprisonment as ordered by the circuit court. Section 242(h) of the Act provides:

    An alien sentenced to imprisonment shall not be deported
  until such imprisonment has been terminated by the release of
  the alien from confinement. Parole, probation, or possibility
  of rearrest or further confinement in respect to the same
  offense shall not be ground for deferral of deportation.

Title 18 of the United States Code defines imprisonment as follows:

    "Imprisonment" means a penalty imposed by a court under which
  the individual is confined to an institution. 18 U.S.C. § 4101(b)
  (1983).

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:

    "Imprisonment" means incarceration in a correctional
  institution under a sentence of imprisonment and does not
  include "periodic imprisonment" under Article 7.

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 ...


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