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 that he was in the United States illegally and sought to be allowed to depart voluntarily.
On November 9, 1972 plaintiff filed his application for asylum or temporary refuge and a stay of deportation until December 15, 1972 was granted on that basis. After receiving a recommendation from the Department of State that the request for asylum should be denied, INS communicated that denial to the plaintiff by letter dated February 1, 1973. Cheng filed his complaint in this court on February 7, 1973 and was not before Judge Garth in December but, other than the possible ramifications of the remand order, the issues are substantially the same.
Hi Pan Chan (Civil Action No. 167-73) is a native and citizen of China who entered the United States through Long View, Washington on or about November 4, 1971. At that time he was authorized to remain as long as his ship was in port, but in no event longer than 29 days. Plaintiff failed to depart and on January 28, 1972 was served with an order to show cause why he should not be deported.
A hearing was conducted on March 3, 1972 at which time plaintiff admitted through his attorney that he was illegally in the country and requested voluntary departure to Hong Kong. On June 14, 1972 Chan submitted his request for asylum or temporary refuge pursuant to the Protocol. On August 14, 1972 the State Department notified INS by letter that the request for asylum should be denied. The denial was then telephonically communicated to the plaintiff's attorney. Chan thereafter joined as a plaintiff in Civil Action No. 167-73 which was filed on February 7, 1973.
Plaintiff Yeung Yan Cheung (Civil Action No. 282-73), a native and citizen of China, entered the United States through Los Angeles on or about October 27, 1970. Thereafter, Cheung was served with an order to show cause why he should not be deported and a hearing was held on May 19, 1972. Plaintiff admitted he was illegally in the country at the hearing and was given until June 19, 1972 to voluntarily depart.
Plaintiff failed to voluntarily depart and made his application for asylum or temporary refuge on September 26, 1972. On the same date he applied for a stay of deportation which was granted. By letter dated November 2, 1972, the State Department notified INS that it did not deem asylum warranted. The denial was communicated to the plaintiff by letter dated February 15, 1973. He was on the same date noticed that he would be deported on March 1, 1973. On February 28, 1973 Cheung filed Civil Action No. 282-73.
The plaintiffs assert that jurisdiction exists pursuant to 5 U.S.C. §§ 702-706, 8 U.S.C. § 1329 and 28 U.S.C. § 2201 et seq. Jurisdiction is not contested by the defendants, but that fact does not, of course, obviate the Court's examination. 8 U.S.C. § 1329 provides in pertinent part:
The district courts of the United States shall have jurisdiction of all causes, civil and criminal arising under any of the provisions of this subchapter.
This statute was held to confer jurisdiction on a district court to hear the motion of the plaintiff to enjoin the enforcement of a warrant of deportation in Buckley v. Gibney, 332 F. Supp. 790 (S.D.N.Y., aff'd, 449 F.2d 1305 (2nd Cir. 1971), cert. denied, 405 U.S. 919, 92 S. Ct. 946, 30 L. Ed. 2d 789 (1972).
Further, this case is not one which would come within the purview of 8 U.S.C. § 1105a so that the Third Circuit Court of Appeals would possess original jurisdiction. Since the action complained of was not entered during the course of an immigration hearing, nor issued upon a motion to reopen proceedings, the matter is properly before this Court. Cheng Fan Kwok v. Immigration and Naturalization Service, 392 U.S. 206, 88 S. Ct. 1970, 20 L. Ed. 2d 1037 (1968).
The posture of these cases presents the somewhat unusual situation in which this Court must review the decision of the Secretary of State to deny asylum. Before treating that issue, however, the Court will consider the intervening motion of the defendants for summary judgment which takes logical precedence.
The United Nations Protocol Relating to the Status of Refugees (hereinafter referred to as the Protocol) was approved by the Senate on October 4, 1968 and entered into force with respect to the United States on November 1, 1968. Article 1 of the Protocol provides in pertinent part:
1. The States Parties to the present Protocol undertake to apply articles 2 to 34 inclusive of the Convention to refugees as hereinafter defined.
The "Convention" referred to is the 1951 Geneva Convention Relating to the Status of Refugees (hereinafter referred to as the Convention).
Article I of the Convention as modified by Article I of the Protocol defines the term refugee as
Any person who, . . . owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.