Home/C.D. California/Sui Fung Luk v. Rosenberg

Sui Fung Luk v. Rosenberg

276 F. Supp. 909, 1967 U.S. Dist. LEXIS 8577
CourtDistrict Court, C.D. California
DecidedDecember 15, 1967
DocketNo. 67-621
StatusPublished
Cited by1 cases

This text of 276 F. Supp. 909 (Sui Fung Luk v. Rosenberg) is published on Counsel Stack Legal Research, covering District Court, C.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sui Fung Luk v. Rosenberg, 276 F. Supp. 909, 1967 U.S. Dist. LEXIS 8577 (C.D. Cal. 1967).

Opinion

Decision Dissolving Restraining Order and Permitting Deportation to Hong Kong

HAUK, District Judge.

This matter comes before the Court now upon Respondent’s Motion for order dissolving the Court’s restraining order of August 23, 1967 which has prevented Respondent from deporting Petitioner pending further hearing and order by this Court.1

In the order of August 23, 1967, the Court directed that the Respondent grant Petitioner a further hearing on his allegation of fear of persecution if deported to Hong Kong, pursuant to one or the other of the following two sets of provisions of the Immigration and Nationality Act of 1952 as amended and the Code of Federal Regulations 489: 2

(1) Section 243(h) of the Immigration and Nationality Act of 1952, as amended 8 U.S.C. § 1253(h), 8 C.F.R. 243.4, as interpreted and applied in United States ex rel. Szlajmer v. Esperdy, 188 F.Supp. 491 (S.D.N.Y. 1960);
or
(2) Section 212(d) (5) of the Immigration and Nationality Act of 1952 as amended, 8 U.S.C. § 1182(d) (5), 8 C.F.R. 253.1(e),3 as interpreted and [911]*911applied in Glavic v. Beechie, 225 F.Supp. 24 (S.D.Tex.1963), aff’d 340 F.2d 91 (5th Cir. 1964).
The Court made the following further order:
“Regardless of whether the hearing is conducted on the one hand pursuant to 8 C.F.R. 243.4 to determine if petitioner is entitled to a stay of deportation, or on the other hand pursuant to 8 C.F.R. 253.1(e) [now (f)] to determine if petitioner should be paroled into the United States, because of his fear of persecution, petitioner in either event shall be granted a hearing which conforms to constitutional due process. He shall be given notice of the hearing, an opportunity to be heard and his attorney shall be ‘allowed to present every shred of evidence at his command’ to support his allegations. Glavic v. Beechie, supra, 225 F.Supp. at page 27.”

In support of the Motion to dissolve the Court’s order restraining the Immigration and Naturalization Service from deporting Petitioner, the District Director of the Service has produced a certified copy of the Administrative Record, including his decision (see Appendix hereto) upon the hearing which, pursuant to the Court’s order of August 23, 1967, he elected to afford Petitioner under the second of the two alternatives offered by the Court, namely § 212(d) (5) of the Immigration and Nationality Act of 1952 as amended, 8 United States Code 1182 (d)(5), 8 C.F.R. 253.1(e) [now (f)], as interpreted and applied in Glavic v. Beechie, 225 F.Supp. 24 (S.D.Texas 1963) aff’d 340 F.2d 91 (5th Cir. 1964).

Following the hearing Respondent issued his written decision denying Petitioner’s application for parole into the United States under 8 C.F.R. 253.1(f) [formerly (e)] and affirmed his deportation to Hong Kong on two grounds:

1. That 8 C.F.R. 253.1(f) by its own terms limits its benefits to an alien crewman who alleges that he cannot return to a Communist, Communist-dominated, or Communist-occupied country because of fear of persecution, and that the British Crown Colony of Hong Kong is not such a country.
2. That even if Hong Kong were a Communist country, the Petitioner failed to establish that his deportation to Hong Kong would subject him to persecution or fear of persecution.

From study of the record and decision upon the administrative hearing, and after full argument, it is clear that the Petitioner has had “a hearing which conforms to constitutional due process”; he has been “given notice of the hearing and an opportunity to be heard”; and his attorney has been “allowed to present every shred of evidence at his command” to support his allegations. Glavic v. Beechie, 225 F.Supp. 24, 27 (S.D.Tex.1963) aff’d 340 F.2d 91 (5th Cir. 1964). It is noted, moreover, that in addition to his attorney, Petitioner had present an interpreter and his employer.

The decision of the Respondent is supported by substantial evidence in the record. That Hong Kong is not a Communist, Communist-dominated, or Communist-occupied country as required by the regulation is obvious. On the contrary, it is a British colony and á favorite American tourist spot. Although this would be sufficient reason to deny [912]*912Petitioner’s application, the Respondent also analyzed the testimony and evidence presented by the Petitioner and found that it did not establish persecution or fear of persecution if Petitioner were deported to Hong Kong.

Petitioner testified as to his anti-communist activities from 1940-1946 when he was a member of the Nationalist Guerrilla Force in China. Thereafter he moved to Hong Kong and worked as a cook until 1955. Then he worked as a crewman. He stated that he has a common-law wife and three children living in Hong Kong to whom he sends money. Although he mentioned fear of persecution if returned to China, there is no evidence or testimony to show that he or his family ever suffered or will suffer persecution in Hong Kong.

The affidavit of Mrs. I. Tao Fong states that Petitioner's life is threatened because of the presence of the Communist underground in Hong Kong. But this is pure speculation, unsupported by any evidentiary facts, and is conclusively controverted by Petitioner’s admission that he lived and worked in Hong Kong from 1942 to 1962 without any assertion or even intimation that he had anything but a normal life during that time.

‘Based upon the certified record and all the facts adduced at the administrative hearing, the Court must necessarily find and conclude that the Petitioner has been afforded due process and that the Order of August 23, 1967 should now be dissolved, unless there is some validity to Petitioner’s claim that he is entitled to a hearing before a special inquiry officer, pursuant to 8 U.S.C. § 1253(h), instead of or in addition to the hearing he actually received before the District Director, Respondent herein.

In United States ex rel. Kordic v. Esperdy, 386 F.2d 232

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Bluebook (online)
276 F. Supp. 909, 1967 U.S. Dist. LEXIS 8577, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sui-fung-luk-v-rosenberg-cacd-1967.