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KAN KAM LIN v. RINALDI

July 3, 1973

KAN KAM LIN et al., Plaintiffs,
v.
Dominick RINALDI, as District Director of the Immigration and Naturalization Service of New Jersey, and William P. Rogers, as Secretary of State of the United States of America, Defendants. LAM, YI KAM, Plaintiff, v. Dominick RINALDI, as District Director of the Immigration and Naturalization Service of New Jersey, and William P. Rogers, as Secretary of State of the United States of America, Defendants. YU FUNG CHENG and Hi Pan Chan, Plaintiffs, v. Dominick RINALDI, as District Director of the Immigration and Naturalization Service of New Jersey, and William P. Rogers, as Secretary of State of the United States of America, Defendants. YEUNG YAN CHEUNG, Plaintiff, v. Dominick RINALDI, as District Director of the Immigration and Naturalization Service of New Jersey, and William P. Rogers, as Secretary of State of the United States of America, Defendants


Whipple, District Judge.


The opinion of the court was delivered by: WHIPPLE

These matters are before the Court pursuant to the petitioners' motion for a preliminary injunction staying their deportation pending the outcome of this litigation and the defendants' counter motion for summary judgment. Plaintiffs, who are all Chinese alien seamen, after being declared deportable on various dates, sought asylum from the Secretary of State and were denied. Petitioners' arguments will be treated with specificity later on in this Opinion, but first, in the interest of clarity, the Court will identify the parties.

 PARTIES

 Kan Kam Lin (Civil Action No. 1823-72), who is a native of the Republic of China, entered the United States as a nonimmigrant crewman on or about November 12, 1968. On April 21, 1971, the Immigration and Naturalization Service (INS) ordered, as a result of a deportation hearing, the plaintiff to voluntarily depart the United States since his presence here was unlawful. That order further provided that, should the plaintiff refuse to voluntarily depart, he would be deported.

 Subsequent to the aforesaid order, plaintiff filed an Application for Asylum or Temporary Refuge with the INS. He stated that that application was made pursuant to the provisions of a certain Policy Statement issued by the Department of State on January 4, 1972. *fn1" At the same time, plaintiff requested a stay of deportation, see 8 C.F.R. § 243.4, pending a determination on the request for asylum. The application for a stay was granted and the request for asylum was forwarded to the State Department by letter on May 19, 1972.

 On June 6, 1972, the State Department made a determination that they found no reason to grant plaintiff temporary refuge or asylum. On October 19, 1972, INS communicated this denial to the plaintiff and his attorney. The reason for the denial was that Lin had failed to establish that he would be persecuted on account of race, religion or political opinion if he were deported to Hong Kong. *fn2"

 Lin and two others filed their complaint and Order to Show Cause in this Court on November 10, 1972. An application for a preliminary injunction was heard by the Honorable Leonard I. Garth of this district and, on December 18, 1972 an Order was entered remanding numbers 1823-72 and 1862-72 to the District Director of INS for his consideration of plaintiff's request for asylum in light of the terms of the Protocol Relating to the Status of Refugees.

 On February 5, 1973 the District Director of INS advised the plaintiff that he did not fall within the ambit of the Protocol. *fn3" Plaintiff was on the same date noticed that his deportation would take place on February 20, 1973. On February 16, 1973 another Order to Show Cause was entered seeking another preliminary injunction. On March 5, 1973, the defendants filed their motion for summary judgment pursuant to Fed. R. Civ. P. 56. Both motions were heard on March 26, 1973.

 Yi Chun Cheng (Civil Action No. 1823-72) is a native of the Republic of China and entered the United States on or about November 26, 1969. At that time he was the holder of a valid Hong Kong Seaman's Identity book. He was refused permission to leave his ship and thereafter entered the United States illegally. On November 5, 1971, INS, after a deportation hearing, ordered Cheng to voluntarily depart the United States on or before December 15, 1971. The Order further specified that, failing voluntary departure, plaintiff would be deported to either Formosa or Hong Kong.

 Subsequent to the November 5th order of INS, plaintiff sought and was granted a stay of deportation based on the fact that he had requested asylum or temporary refuge from the Department of State. The request for asylum or temporary refuge was denied by letter dated October 5, 1972 from the Department of State to INS. The denial was communicated to the plaintiff and his attorney by letter dated October 30, 1972.

 Cheng thereafter joined Lin and Fong Ching Siu as a plaintiff in Civil Action 1823-72. The procedural history of that case has already been recounted.

 Fong Ching Siu (Civil Action No. 1823-72) is a native of mainland China and entered the United States as a crewman on or about May 5, 1971. Siu was a resident of Hong Kong from 1967 to 1971. In a sworn statement to INS he admitted that he entered the United States without the permission of the proper authorities. On June 25, 1971, a Special Inquiry Officer made a determination that Siu was unlawfully in the country and was to be deported to Hong Kong if he did not voluntarily depart the United States on or before July 25, 1971. Plaintiff did not comply and on June 13, 1972, after a warrant of deportation had been issued, he applied for asylum or temporary refuge and a stay of deportation. The stay was granted, but the plaintiff was notified by letter dated October 27, 1972 that his request for asylum had been denied. Siu then joined Lin and Cheng as a plaintiff in Civil Action No. 1823-72.

 Yi Kam Lam (Civil Action No. 1862-72) is a native of Foochow, China and lived there from birth until 1952. He entered the United States through Savannah, Georgia on or about February 5, 1970. He was admitted as a nonimmigrant crewman and was permitted to remain while his ship was in port, but in no event for longer than 29 days. See § 252(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1282(a); 8 C.F.R. § 252.1(d)(1). Plaintiff failed to depart and on January 12, 1972 was served with an Order to Show Cause why he should not be deported.

 On March 3, 1972, a hearing was held wherein Lam admitted that he was in the country illegally and requested permission to depart voluntarily to Hong Kong. He was ordered to depart on or before July 19, 1972. On that date, however, the plaintiff applied for a stay on the grounds that he had requested asylum or temporary refuge. A stay was granted until August 31, 1972. On October 26, 1972, the District Director informed Lam that his request had been denied.

 Lam filed his complaint in Civil Action No. 1862-72 on November 17, 1972 and that matter was also ordered remanded by Judge Garth on December 18, 1972. On February 5, 1973, the plaintiff was notified that his request for asylum had again been denied. Lam was ordered to be deported on February 20, 1973, but the present motions have intervened.

 Yu Fung Cheng (Civil Action No. 167-73) is a native and citizen of the Republic of China and entered the United States through New Orleans as an alien seaman on or about December 29, 1970. He failed to depart with his vessel at that time and did not present himself to the immigration authorities. On January 7, 1972 at his hearing plaintiff admitted ...


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