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Cheung v. Immigration and Naturalization Service

decided: February 17, 1970.

YEUNG YING CHEUNG (A15 825 416), PETITIONER,
v.
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT



Forman, Seitz and Adams, Circuit Judges.

Author: Per Curiam

Opinion OF THE COURT

The immigration difficulties of the petitioner, Yeung Ying Cheung, a citizen of the Republic of China, commenced many years ago, when, as a crewman he deserted his ship at Houston, Texas, and remained at large in this country longer than the 29 days to which he was permitted as a non-immigrant.*fn1 After apprehension he was afforded a hearing before a Special Inquiry Officer and found deportable on the ground charged. On December 12, 1961, he was ordered deported to the Republic of China, specified by him to be the country to which he should be deported.*fn2

His case thereafter crept through a series of abortive deportation proceedings plus a suit brought and discontinued by him in the United States District Court for the District of New Jersey. Finally a certificate of identity issued by Hong Kong authorities was obtained on December 13, 1966. It implemented an order of October 21, 1964, deporting him to the Republic of China on Formosa or to Hong Kong.

Petitioner moved to reopen the proceedings on April 18, 1967, for the purpose of applying for a suspension of his deportation and adjustment of his status for permanent residence pursuant to sections 244(a) (1) and (f) of the Immigration and Naturalization Act, 8 U.S.C. sections 1254(a) (1) and (f) for extreme hardship.*fn3 Reopening was granted.

After a hearing on September 7, 1967, the Special Inquiry Officer found that the petitioner, 51 years old, had been continuously physically present in the United States for the minimum required period of seven years; that he had established his good moral character during that period; that he had left his wife and four children in mainland China and went to Hong Kong because of alleged Communist oppression and his inability to support himself and family; that he resided in Hong Kong between 1953 and 1956 working as a taxi driver and factory hand; that in 1956 he became a seaman until he deserted his vessel in 1960, as aforementioned; that for the seven years prior to his hearing he was employed as a cook in a restaurant in West Orange, New Jersey, at $70.00 per week and had accumulated approximately $4,000 while in this country. The Special Inquiry Officer concluded that while employment in Hong Kong:

"may possibly be somewhat harder to obtain than in the United States and wages may not be comparable to what he can earn here. * * * [petitioner] will be able to return to Hong Kong with approximately $3,000 to tide him over the initial period of reestablishment until he can obtain employment comparable to what he had previously."

Such circumstances, found the Special Inquiry Officer, would not cause him to suffer extreme hardship within the meaning of the law. He denied the application for suspension of deportation and again ordered petitioner to be deported to the Republic of Formosa or in the alternative to Hong Kong. From this determination petitioner appealed to the Board of Immigration Appeals (Board). It approved the findings and conclusions of the Special Inquiry Officer adding:

"there are no equities in the * * * [petitioner's] case which merit the suspension of deportation. He has no close family ties in the United States and has only earned a modest salary while employed in this country."

The appeal was dismissed.

Petitioner now seeks from this court a reversal of the decision of the Board and an injunction restraining the Immigration and Naturalization Service from deporting him.*fn4 Petitioner charges that the Special Inquiry Officer and the Board ignored factors which he contends should have been regarded as evidence that he would suffer extreme hardship if deported to Hong Kong. Among them he cited the fact that petitioner has made a home for himself in the United States; that his family remains on the mainland of China; that he has no other relatives; that Hong Kong is overcrowded and has a water shortage and:

"tremendous problems with reference to Communist infiltration, sabotage and disrupting stresses and tactics; * * *"

that petitioner disliked Communism and that he would have difficulties in obtaining employment in Hong Kong.

Petitioner also stressed a comment of the Special Inquiry Officer, made during the course of his opinion, that "in view of the disturbed political condition in Hong Kong, however, the possibility of hardship is present * * *" in his appeal to the Board. He asked the Board to remand the case for the introduction of evidence relative to the political situation which existed in Hong Kong. The reference by the Special Inquiry Officer to disturbed political conditions in Hong Kong at the time of the hearing on September 19, 1967, as presenting the possibility of hardship was a passing one and certainly constituted no bar to the positive determination that the return of the petitioner to Hong Kong would not cause him to suffer extreme hardship. The Board, at its hearing in November 1967, took notice from current reports that conditions in Hong Kong ...


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