injunction and defendant cross-moves for dismissal of the complaint and, in the alternative, for summary judgment.
At the outset, I shall address defendant's claim that judicial review of the challenged agency determination cannot be had in this court because plaintiffs seek review of proceedings that are part and parcel of the deportation hearing authorized by Section 242 of the Immigration and Nationality Act, 8 U.S.C. § 1252 (1970), judicial review of which is exclusively vested in the Court of Appeals, 8 U.S.C. § 1105a (1970); Giova v. Rosenberg, 379 U.S. 18, 85 S. Ct. 156, 13 L. Ed. 2d 90 (1964); Foti v. Immigration and Naturalization Service, 375 U.S. 217, 84 S. Ct. 306, 11 L. Ed. 2d 281 (1963). I conclude that this court can consider the issues raised by the parties in that the proceedings herein are ancillary to the statutory deportation hearing and therefore may be reviewed by this court. See 8 U.S.C. § 1329 (1970); Cheng Fan Kwok v. Immigration and Naturalization Service, 392 U.S. 206, 88 S. Ct. 1970, 20 L. Ed. 2d 1037 (1968); Ming v. Marks, 367 F. Supp. 673 (S.D.N.Y.1973); Kan Kam Lin v. Rinaldi, 361 F. Supp. 177 (D.N.J.1973), aff'd, 493 F.2d 1229 (3d Cir.), cert. denied, 419 U.S. 874, 95 S. Ct. 136, 42 L. Ed. 2d 113 (1974); Buckley v. Gibney, 332 F. Supp. 790 (S.D.N.Y.), aff'd, 449 F.2d 1305 (2d Cir. 1971), cert. denied, 405 U.S. 919, 92 S. Ct. 946, 30 L. Ed. 2d 789 (1972); Cheng Ho Mui v. Rinaldi, 262 F. Supp. 258 (D.N.J.1966), aff'd, 408 F.2d 28 (3d Cir.), cert. denied, 395 U.S. 963, 89 S. Ct. 2101, 23 L. Ed. 2d 748 (1969).
Both plaintiffs departed from China in 1961 (Pffs' Memorandum, 1), allegedly because of communist persecution, going first to Hong Kong and thereafter to the United States. Cplt., para. 7; Coven Affidavit, para. 9. Plaintiffs are or were seamen and had been issued a Hong Kong Seaman's Identity Book, permitting them at will to enter, leave or stay in Hong Kong. Friess Affidavit, paras. 4(viii) and 5(vii).
Lai On Cheng surreptitiously entered the United States in 1970 from Canada, and therefore illegally. 8 U.S.C. § 1251(a)(2) (1970). Yan Wo Cheng was permitted to enter the United States in December 1971 at Los Angeles, California, as a non-immigrant crewman, while his ship was in port, for a period not to exceed 29 days. 8 U.S.C. § 1282 (1970). After entry he left his ship, and remained in the United States beyond the authorized period. Thus his presence here became illegal in January 1972.
Deportation proceedings were commenced against both plaintiffs on February 16, 1973, culminating in a hearing and the Special Inquiry Officer's March 30, 1973 decision ordering deportation, subject to voluntary departure, as plaintiffs requested, on or before May 15, 1973. 8 U.S.C. § 1252 (1970). At the hearing, where plaintiffs and three other Chinese aliens were represented by plaintiffs' counsel herein, plaintiffs admitted their illegal status and conceded deportability. See Appendix A. They saw fit to refrain from requesting asylum at that juncture, for reasons about which we can only speculate. They accepted Hong Kong as a place to which they would voluntarily depart. They disclaimed any intention of seeking deferment of deportation because of political persecution there. They sought no review of the Special Inquiry Officer's determination.
Cf. 8 C.F.R. § 242.21 (1974); Kan Kam Lin v. Rinaldi, 361 F. Supp. at 187 n. 9.
Predictably, plaintiffs did not voluntarily depart on May 15, 1973. There is nothing to suggest that plaintiffs voluntarily brought their failure to do so to the attention of INS. In November 1974, a year and one-half later, INS wrote both plaintiffs to report on December 3, 1974 for deportation to Hong Kong.
Plaintiffs, as in Ming v. Marks, supra, and Kan Kam Lin, supra, then applied to the INS for asylum and a stay of deportation, in pertinent part as follows:
. . . That I was born in Foochow, China and that I fled from China because of the Communist control of my "home country". That it is my belief that China is my "home country" and I am, therefore, entitled to a stay of deportation based upon the Operations Instructions 108.1 and 108.2. That China is the country of my birth and nationality and I have not become firmly resettled in any other country.
By letter of December 4, 1974 to Yan Wo Cheng, the application was denied: