566 F.2d 321 | D.C. Cir. | 1977
Lead Opinion
Between 1949 and 1956 the five Chinese appellants here fled to Hong Kong to escape communist persecution in their native land. They have resided in Hong Kong ever since. When their 1971-72 applications for conditional entry into the United States as Seventh Preference refugees were denied by the District Director at Hong Kong of the United States Immigration and Naturalization Service (INS), they sought judicial review. In that proceeding the District Court found that appellants
I.
The individual appellants, all originally citizens of China, fled to Hong Kong at various times after the communists assumed power in that country. They arrived in Hong Kong between 1949-1956 and all obtained and presently possess Hong Kong Identity Cards.
Appellants filed applications for conditional entry pursuant to 8 U.S.C. § 1153(a)(7)
Although appellants have never been in the United States they challenged the denials of their applications by suits in the United States District Court for the District of Columbia requesting a declaratory judgment, pursuant to 8 U.S.C. § 1329 and 28 U.S.C. § 704. Their basic complaint is that the denials by the INS were arbitrary, capricious, contrary to law and invalid. Upon the alternative, motion by the INS to dismiss or for summary judgment the District Court found that appellants lacked standing. It also observed that standing “apparently has never been granted to a person outside the United States challenging the denial of entry or immigration eligibility” and that serious practical consequences would result should a person “anywhere in the world” be afforded access to the federal courts to contest immigration eligibility. 396 F.Supp. at 1251. With respect to the Chinese American Council the court found that it also lacked standing for want of “concrete injury to itself or to its members.” Id. at 1252. We' affirm that finding without further discussion. Laird v. Tatum, 408 U.S. 1, 13, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972); Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); Association of Data Processing Ser
More important to our decision, the District Court also stated that even if appellants had standing, on the factual record here, they were “confronted with an almost irrebuttable presumption that at the present time, twenty to twenty-five years after having left mainland China, they have ‘firmly resettled’ in Hong Kong and are no longer ‘in search of refuge.’ ” Id., n. 2. The court reached this conclusion independent of any application of the “Hong Kong seven year rule” which the District Director had referred to in his letter to appellants denying their applications because he found them to be “firmly resettled.”
II
The parties have argued on appeal both the standing question and the merits of whether appellants were wrongfully denied refugee status by the INS District Director. Accordingly, we are not pressed to reach a decision on the standing issue since applicable legal standards lead us to conclude that the Immigration officer correctly decided on the record before him that appellants are not refugees under 8 U.S.C. § 1153(a)(7). Prudential considerations also restrain us from deciding the difficult and unquestionably far-reaching standing question when the merits of the case readily provide a fair, clear resolution of the appeal.
Finally, we find that the record on appeal provides us with an adequate basis for affirming the District Court’s order on grounds other than lack of standing.
The District Court not only had before it a motion to dismiss and a motion for summary judgment but also, as the court’s decision states,
Ill
Turning, then, to the merits of appellants’ claim, we find that the undisputed facts which were presented to the Immigration officer by appellants, specifically that sixteen to twenty years had elapsed between appellants’ departures from China and their applications for refugee status, clearly were sufficient to support his conclusion that appellants were not entitled to conditional entry. Appellants did not present any facts to rebut the normal conclusion from such extended residence that appellants were firmly resettled and no longer in flight. On that ground we affirm the judgment of the District Court. Our ground for this conclusion is based on the same reason expressed in the letter of the Immigration officer,
The Supreme Court, in reversing the Ninth Circuit and affirming the standard employed by the INS, provides particular guidance for deciding this case. The Court first found that the concept of resettlement was, contrary to the Ninth Circuit’s view, essential to the inquiry Congress intended the INS to make in reviewing applications for refugee status.
The District Director applied the correct legal standard when he determined that*328 § 203(a)(7) requires that “physical presence in the United States [be] a consequence of an alien’s flight in search of refuge,” and further that “the physical presence must be one which is reasonably proximate to the flight and not one following a flight remote in point of time or interrupted by intervening residence in a third country reasonably constituting a termination of the original flight in search of refuge. ”
402 U.S. at 57, 91 S.Ct. at 1317 (footnote omitted, emphasis added).
This standard of physical presence proximate to flight outside the departed country, as explicitly adopted by the Supreme Court, clearly supports the basis that the Immigration officer gave for denying the instant applications. In looking to whether appellants have “firmly resettled,” we find that the period of sixteen to twenty years between appellants’ flight and their applications for refugee status convincingly demonstrates that appellants’ applications are not “reasonably proximate to [their] flight,” but rather are “remote in point of time” and clearly “interrupted by intervening residence in a third country.” These facts support the finding of the Immigration officer that, on the record presented to him, appellants’ applications indicated they were “firmly resettled,” i. e., not still in flight.
The question of resettlement, however, is not always to be limited solely to an inquiry of how much time has elapsed between flight and application. We only hold that the Immigration officer was thoroughly correct in deciding on the facts of record as presented to him that the extended residence of appellants in Hong Kong, which far exceeded the minimal seven years upon which their Chinese resident status was based, is a sufficient basis for finding that appellants were no longer refugees in flight.
There is sufficient evidence that plaintiffs failed to meet the requirements established by Congress and implemented by the Service to qualify as refugees. It was reasonable of the Service to conclude from the length of Mr. and Mrs. Lui’s residences in Hong Kong, fourteen and six years respectively, and from the other attendant circumstances as set out in the facts, that both plaintiffs had “firmly resettled” in Hong Kong .
Id. at 544. Accord, Matter of Sun, 12 I & N Dec. 36 (1966) (refugee preference visa denied when seventeen years had elapsed since applicant had fled his homeland). The periods of time here generally exceed those in these cases. Cf. Matter of Chai, 12 I & N Dec. 81 (1967) (presence of five years, as a student, in Hong Kong not sufficient to establish firm resettlement); Matter of Moy, 12 I & N Dec. 121 (1967) (presence in Hong Kong for less than one year does not constitute firm resettlement).
Here we do no more than the court in Chi-Wai Lui v. Pilliod, supra, a case markedly similar to this one, when it concluded that it was, pursuant to the Supreme Court’s decision in Rosenberg v. Woo, supra,
left to the discretion of the Immigration Service to determine what amount of time of intervening residence in a third country is sufficient to terminate the applicant’s flight.
* * * * * *
. It was reasonable of the Service to conclude from the length of Mr. and Mrs. Lui’s residences in Hong Kong, fourteen and six years respectively, and other attendant circumstances . that both plaintiffs had “firmly resettled” in Hong Kong . . . . Under these circumstances, we cannot say that there was an abuse of discretion in denying plaintiffs permanent residence in this country.
358 F.Supp. at 544-45 (emphasis added).
IV
Appellants further contend they should be allowed conditional entry because they applied during 1971 and 1972 and had their applications been passed on before August 1, 1973, they would have been granted. In other words they complain that delay in the agency’s processing of their applications caused theirs to be denied. In the absence of a showing that such delay was intentional or the result of gross negligence we do not consider such delay as a proper basis for granting applications that do not satisfy the statute as presently interpreted by the Supreme Court. There is no showing on this record that the time which transpired in the processing of these applications was unreasonable, given the extensive consideration that agency procedures required.
Nor do we find that the Immigration Officer was required further to explain the alleged change in INS practices around April 1, 1973. The references in the INS
V
It is also significant that each appellant who considered “the denial of [his] application [to be] erroneous or . not [to] apply to [him] . . . ” was notified that his “application may be considered further” if he notified the Immigration Office within 30 days “of the basis for [his] objection supported by any evidence and requested] that [he] be interviewed with respect to [his] application ...”
This evoked letters from applicants’ attorneys in Chicago, Illinois, requesting reconsideration of each denial and a hearing reiterating many of the claims raised here, calling attention to the “Statutory Declarations” that were filed, and stating that if their clients had been interviewed they were not aware of it.
Thereafter, it appears that two applicants (Lee and Yuen) appeared with their attorney and were interviewed. They each stated their date of entry into Hong Kong as 1951 and 1959, respectively, and stated they never made application to Hong Kong Immigration for “Chinese resident” classification.
None of the material presented on these occasions was sufficient to overturn the pri- or conclusion that those three were firmly resettled in Hong Kong and hence were not refugees in flight entitled to Seventh Preference entry. Lee, Yuen and Lau had been residing in Hong Kong for 20 years, 21 years and 9 months, and 17 years and 10 months, respectively, and all the evidence they presented to the Immigration officer, both with their application and subsequently, proved their residence in Hong Kong for those periods of time, that they were firmly resettled in Hong Kong, and that they were not then refugees in flight from communism.
VI
Finally, our decision is consonant with, if not bolstered by, 8 U.S.C. § 1153(d) which provides:
Every immigrant shall be presumed to be a nonpreference immigrant until he establishes to the satisfaction of the consular officer and the immigration offices that he is entitled to a preference status.
This language makes clear that Congress intended that each immigrant should shoulder the burden of proving that he qualifies for a preference. This presumption was not overcome by the material presented to the Immigration Officer, nor was the burden met in view of the extended residence of appellants in Hong Kong before application. The “remoteness in point of time” of appellants’ applications in this ease establish that appellants are outside the standard of flight, and within the “firmly resettled” standard, as enunciated in Rosenberg. Those two elements had to be respectively proved or negated in order to qualify for a section 1153(a)(7) preference.
We therefore find that the INS District Director did not abuse his discretion in find
Judgment accordingly.
. Chinese American Civic Council, Pik Kuen Lee, King Sun Yuen, On Au Chiu, Shek-Chi Chan and Shu Cheung Lau. Hereafter, data with respect to the individual defendants refers to them in the above sequence.
. The affidavit of appellants’ counsel states:
A Hong Kong Identity Card merely has a person’s name, photograph, date of birth or age, a number and reference to nationality. It is a card required of all persons in Hong Kong pursuant to the Registration of Persons Ordinance of 1960. It is not a travel document and confers no residence privileges.
It is, however, some evidence that the bearer resides in Hong Kong. It differs from a Hong Kong Certificate of Identity which is the “equivalent of a passport” (Affidavit, R. 6).
The applications of all appellants stated that each had a Hong Kong Identity Card and the number thereof and stated that their respective residences in Hong Kong began: 1951, 1949, 1955, 1956, 1953 (R. 6). Their applications were filed in 1971 and 1972 and were denied in 1974 and 1975.
The Hong Kong Immigration Ordinance, 1971, provides:
2. (1) In this Ordinance, unless the context otherwise requires—
* tfc * * * *
“Chinese resident” means an immigrant who—
(a) is wholly or partly of Chinese race; and
(b) has at any time been ordinarily resident in Hong Kong for a continuous period of not less than seven years;
8. (1) The following persons shall have the right to land in Hong Kong, that is to say—
(c) Chinese residents but subject to section 20(6).
20. (1) The Governor in Council may make a deportation order against an immigrant, other than a Chinese resident, a United Kingdom belonger or a resident United Kingdom belonger, if—
(a) the immigrant has been found guilty in Hong Kong of an offence punishable with imprisonment for not less than two years; or
(b) the Governor in Council deems it to be conducive to the public good.
(2) Subject to subsection (3), the Governor in Council may make a deportation order*323 against a Chinese resident or a United Kingdom belonger, other than a resident United Kingdom belonger, if—
(a) such person has been found guilty in Hong Kong of an offence punishable with imprisonment for not less than two years; or
(b) the Governor in Council deems it to be conducive to the public good.
******
(6) If a deportation order is in force against a person who has the right to land in Hong Kong by virtue of section 8(1), such right shall cease while the deportation order is in force.
. When subject applications were being considered by the Immigration Service, 8 U.S.C. § 1153 provided;
(a) Aliens who are subject to the numerical limitations specified in section 1151(a) of this title shall be allotted visas or their conditional entry authorized, as the case may be, as follows:
******
(7) Conditional entries shall next be made available by the Attorney General, pursuant to such regulations as he may prescribe and in a number not to exceed 6 per centum of the number specified in section 1151(a)(ii) of this title, to aliens who satisfy an Immigration and Naturalization Service officer at an examination in any non-Communist or non-Communist-dominated country, (A) that (i) because of persecution or fear of persecution on account of race, religion, or political opinion they have fled (I) from any Communist or Communist-dominated country or area, or (II) from any country within the general area of the Middle East, and (ii) are unable or unwilling to return to such country or area on account of race, religion, or political opinion, and (iii) are not nationals of the countries or areas in which their application for conditional entry is made; .
(Emphasis added.) This subsection outlines the standards for aliens who claim they are refugees in flight from Communism to attain so-called Seventh Preference conditional entry status.
. The following summary sets forth the stated facts with respect to the individual appellants and their applications:
APPLICATIONS
Applicant
Left China
Filed
Elapsed Time
Denied
Lee 1951 9/17/71 20 years 3/24/74
Yuen 11/1949 8/25/71 21 years 9 months 2/20/74
Au 2/55 ■ 1/21/72 17 years 1/25/75
Chan 4/56 1/21/72 15 years 9 months 1/23/75
Lau 12/53 10/29/71 11/14/74 17 years 10 months
Elapsed time from departure from China to date of filing instant application for Seventh Preference Entry.
. Each of the applicants thereafter received a letter which stated:
Dear Sir/Madam:
I am sorry to inform you that it is necessary for me to deny your application for conditional entry. After the most careful inquiry and after extensive consultation with appropriate Hong Kong authorities with respect to the effect of the Hong Kong Immigration Ordinance 1971, I have concluded that you appear to be eligible in all respects for official recognition by the Immigration Department, Hong Kong, as a “Chinese resident” within the meaning of the Ordinance which became effective April 1, 1972. The Ordinance accords “Chinese resident” status to*324 those persons who have legally resided in Hong Kong for 7 or more years and to those persons who have been residing in Hong Kong, whether legally or not, since prior to April 1, 1965. A “Chinese resident” enjoys the privilege of unconditional residence and is deemed under U.S. law to be firmly resettled. A person who is firmly resettled outside the country from which he fled is not eligible for the benefits of section 203(a)(7) of the Immigration and Nationality Act.
If you believe that the foregoing basis for the denial of your application is erroneous or does not apply to you, your application may be considered further if you, no later than 30 days from the date of this letter, notify this office of the basis for your objection supported by any evidence and request that you be interviewed with respect to your application for conditional entry.
I repeat my regret that it has been necessary to take this action.
Sincerely,
/s/ Sam I. Feldman
Sam I. Feldman
Officer-in-Charge
. That opinion holds that the statute which opens the doors of this country to those who have “fled” from fear of communism, or its persecution, imposes a requirement that applicants be in flight at the time they apply for conditional entry to this country and that those who became “firmly resettled” in another non-communist country after flight from a communist country are not, under the statute, eligible under § 203(a)(7) for conditional entry to the United States. As Justice Black remarked:
It was never intended to open the United States to refugees who had found shelter in another nation and had begun to build new lives. Nor could Congress have intended to make refugees in flight from persecution compete with all of the world’s resettled refugees for the 10,200 entries and permits afforded each year under § 203(a)(7). Such an interpretation would subvert the lofty goals embodied in the whole pattern of our refugee legislation.
In short, we hold that the “resettlement” concept is not irrelevant. It is one of the factors which the Immigration and Naturalization Service must take into account to determine whether a refugee seeks asylum in this country as a consequence of his flight to avoid persecution.
402 U.S. at 56, 91 S.Ct. at 1316 (emphasis added). The opinion further sets forth the correct legal standard to use in determining refugee and flight status under § 203(a)(7):
[T]he physical presence must be one which is reasonably proximate to the flight and not one following a flight remote in point of time or interrupted by intervening residence in a third country reasonably constituting a termination of the original flight in search of refuge.
402 U.S. at 57, 91 S.Ct. at 1317. This same standard may be applied in determining whether appellants are to be considered to be still in flight even though they have resided in Hong Kong continuously for 16 to 20 years, discussed infra.
. Both the terms “firmly resettled” and “fled” are closely related to the central theme of all 23 years of refugee legislation — the creation of a haven for the world’s homeless people.
Rosenberg v. Woo, 402 U.S. at 55, 91 S.Ct. at 1316.
. There is no question that a person present in the United States has standing to challenge a denial of preference under § 1153(a)(7). Rosenberg v. Woo, supra. See note 15 infra.
. Granting standing in a case such as this would result in serious practical considerations. It would, in the words of the District Court, afford “a Federal forum for a person anywhere in the world challenging denial of entry or immigration status. . . . ” 396 F.Supp. at 1251. Of course practical considerations of arguable certainty should not deny what the law in principle requires. However, such an issue should be decided only when it is essential to disposing of the case and not in cases such as this where the record readily allows for an alternative decision on the merits which were before the District Court in the form of a motion for summary judgment. Thus, it is not necessary here to decide the standing issue since the appellants are clearly not entitled to conditional entry as refugees.
In Chandler v. Judicial Council, 398 U.S. 74, 90 S.Ct. 1648, 26 L.Ed.2d 100 (1970), the Supreme Court recently reserved judgment on a jurisdictional issue, stating:
[Fjinding the prerequisites to support a conclusion that we do have appellate jurisdiction in this case would be no mean feat. It is an exercise we decline to perform since we conclude that in the present posture of the case other avenues of relief on the merits may yet be open ....
398 U.S. at 86, 90 S.Ct. at 1654. The Chief Justice then remarked for the Court that the jurisdictional ground was not being reached for reasons markedly similar to those we are employing:
Whether the Council’s action was administrative action not reviewable in this Court, or whether it is reviewable here, plainly petitioner has .not made a case for the extraordinary relief of mandamus or prohibition.
Id. at 89, 90 S.Ct. at 1656.
Accordingly, we do no more than decline to decide whether appellants have standing, when “plainly [appellants have) not made a case for the . . . relief [requested].” 398 U.S. at 89, 90 S.Ct. at 1656.
. Accordingly, upon consideration of defendant’s Motion to Dismiss or, in the Alternative, for Summary Judgment, and plaintiffs’
Ordered that defendant’s Motion to Dismiss this action as to all plaintiffs except Shui Chong Kwan be, and the same hereby is, granted; and it is further
Ordered that plaintiff Shui Chong Kwan’s cause is remanded to the Immigration and Naturalization Service for further proceedings consistent with this Memorandum and Order.
396 F.Supp. at 1253 (emphasis added).
. “A person who is firmly resettled outside the country from which he fled is not eligible for the benefits of section 203(a)(7) of the Immigration and Nationality Act.”
Letter of Officer in Charge to each applicant (Supp.Record, pp. 5, 14, 22, 31, 38).
. It is well established that an appellate court may sustain a judgment which is considered correct for reasons other than those given by the trial court. Securities and Exchange Commission v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 87 L.Ed. 626 (1942). Accord, Jaffke v. Dunham, 352 U.S. 280, 77 S.Ct. 307, 1 L.Ed.2d 314 (1957); accord, this circuit, Laughlin v. Eicher, 79 U.S.App.D.C. 266, 145 F.2d 700 (1944), cert. denied, 325 U.S. 866, 65 S.Ct. 1403, 89 L.Ed. 1985 (1945). See also, Kithcart v. Metropolitan Life Ins. Co., 150 F.2d 997 (8th Cir.), cert. denied 326 U.S. 777, 66 S.Ct. 267, 90 L.Ed. 470 (1945), where it was held that:
An appellate court may, when necessary or desirable, sustain a correct judgment on a different ground than that adopted by the trial court, where such ground is one that is within its power to formulate.
150 F.2d at 1001 (citations omitted). Burlington Truck Lines v. United States, 371 U.S. 156, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962), dealt with an agency decision and thus is not to the contrary. Here it is not only possible for us to formulate the ground for affirming the District Court’s action, but we find that the ground was before the District Court, considered by it, and included as one basis for its order. 396 F.Supp. at 1253.
Nor is it necessary in these circumstances to remand the case to the District Court for entry of the same judgment but for different reasons. Affirmance and not remand is the appropriate procedure in such a case:
It would be wasteful to send a case back to a lower court to reinstate a decision which it had already made but which the appellate court concluded should properly be based on another ground within the power of the appellate court to formulate.
Securities and Exchange Commission v. Chen-ery Corp., supra, 318 U.S. at 88, 63 S.Ct. at 459.
Finally, we note that the parties have argued the merits of appellants’ claim to this court and, thus have explicitly recognized that this court may dispose of the appeal on that ground. The parties may also urge grounds for affirming a judgment not relied upon by the District Court. California Bankers Ass’n v. Schultz, 416 U.S. 21, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974).
. See note 5 supra.
. Supra note 3.
. Standing was never considered as an issue in the Rosenberg case. Accordingly, an inquiry into whether non-resident aliens who have never had contact with United States have standing in a suit such as this is not aided by Rosenberg where the disappointed applicant was actually present in the United States when he initiated the litigation. Presence inside the United States is crucial and has been recognized in the past, by this court, to bear heavily on the question of standing. In Pesikoff v. Secretary of Labor, 163 U.S.App.D.C. 197, 501 F.2d 757, cert. denied, 419 U.S. 1038, 95 S.Ct. 525, 42 L.Ed.2d 315 (1974), we held that an American citizen who wished to employ an alien had standing to challenge a denial of a preference under § 1153. In so holding our opinion explicitly negated any inference that an alien who was physically outside the United States had standing:
Inasmuch as we hold that Dr. Pesikoff, as the prospective employer of the alien . . . does have standing . . . it is not necessary for us to consider whether Ms. Quintero, as an alien outside the country, may also challenge denial of her certification.
163 U.S.App.D.C. at 199, 501 F.2d at 759. Similarly, the separate opinion, concurring in part and dissenting in part, noted:
In view of the disposition I would make herein I do not find it necessary to determine whether appellant Quintero as a nonresident alien, has standing to bring this action.
163 U.S.App.D.C. at 205 n. 3, 501 F.2d at 765 n. 3.
Again, the notion that the existence or lack of standing may be affected by presence in the United States, albeit illegal, is found in Brow-nell v. Tom We Shung, 352 U.S. 180, 77 S.Ct. 252, 1 L.Ed.2d 225 (1956). There the Court noted, in holding that an alien present at the borders of the United States could challenge an exclusion order either by habeas corpus proceedings or by seeking a declaratory judgment (later limited by Congress to habeas corpus proceedings, 8 U.S.C. § 1105a(b)), that:
We do not suggest, of course, that an alien who has never presented himself at the borders of this country may avail himself of the declaratory judgment action by bringing the action from abroad.
Id. at 184 n. 3, 77 S.Ct. at 255.
Consistent with our decision not to reach the standing issue in this case we mention this distinction, not to intimate our views on whether a non-resident alien has standing, but only to underscore that Rosenberg, aside from its silence on standing is clearly distinguishable from this case regarding standing and that as in Pesikoff, supra, the question remains open in this circuit.
. The Court found, that while the language employed by Congress in the various Acts covering refugee immigration varied, that the concept of “firmly resettled” was still an integral part of the present statutory scheme. The Court concluded that:
For substantially the reasons stated by the Second Circuit in Shen v. Esperdy [428 F.2d 293 (1970)] ... we find no congressional intent to depart from the established concept of “firm resettlement” . .
402 U.S. at 54, 91 S.Ct. at 1315.
. Appellants and the INS argue over whether the District Director correctly applied the Hong Kong Ordinance of 1971 as a basis for denying their applications. Because we are affirming the INS in its determination that appellants were “firmly resettled” within the standards established by the Supreme Court in Rosenberg v. Woo, 402 U.S. 49, 91 S.Ct. 1312, 28 L.Ed.2d 592 (1971), we do not reach the parties’ arguments concerning the Hong Kong rule beyond the following.
As we interpret the decision of the Immigration officer, he had a right to and he did decide on the evidentiary record before him that appellants’ 16 to 20 years uninterrupted residence in Hong Kong, with the added assurance such residence acquired under the 1971 Ordinance, clearly justified a conclusion that they could continue to rely upon. the firmness of their residence and hence were firmly resettled. The evidence they presented to the District Director showed that each of them met the Ordinance’s requirement of seven consecutive years’ residence in Hong Kong, “whether legally or not” (emphasis added), necessary in order to qualify for Chinese resident status and the Ordinance gave persons with such residential qualifications reasonable assurance that they would not be deported, in the absence of any disqualifying showing in the record to the contrary. He was therefore justified in holding that each applicant was to be considered “not eligible for the benefits of § 203(a)(7),” supra.
We accordingly affirm based on our conclusions from the facts of record that the decision of the Immigration officer was correct in finding, on this record, that appellants were firmly resettled, i. e., not still in flight, because their applications are clearly “remote in point of time [and] interrupted by intervening residence in a third country reasonably constituting a termination of the original flight in search of refuge.” Rosenberg v. Woo, 402 U.S. at 57, 91 S.Ct. at 1317 (emphasis added). This was what the District Director based his decision on when he referred to our law on firm resettlement.
. Other factors besides time elapsed may be germane in deciding whether an applicant has “firmly resettled” so as to be eligible for refugee status. An applicant’s family ties, intent, business or property connections and other matters may be relevant to resettlement determinations. To the extent that these were presented to the Immigration Officer they were insufficient to support a finding that any of the appellants were still in flight and not firmly resettled in Hong Kong. Resettlement is largely a factual question which, once that fact appears of record, the applicants bear the burden of overcoming. As we read the record which was before the INS official in this case, we conclude that he did not abuse the long-standing discretion accorded the INS in these matters in finding that applicants because of their
The scope of judicial review in cases of denial of preference visas is very narrow. We are limited to a determination as to whether the Attorney General has abused his discretion in denying the classification required for the preferential visa.
Pizarro v. Dist. Dir. of United States I. & N. Serv., 415 F.2d 481, 483 (9th Cir. 1969). Accord, Nazareno v. Atty. Gen. of United States, 366 F.Supp. 1219 (D.D.C.1973), aff’d, 168 U.S.App.D.C. 22, 512 F.2d 936, cert. denied, 423 U.S. 832, 96 S.Ct. 53, 46 L.Ed.2d 49 (1975).
. Supra note 5.
. Under the Ordinance, it was not necessary for them to apply to be a “Chinese resident” in order for them to enjoy that status.
. Counsel for appellants has argued that to deny appellants refugee status is harsh since most of the appellants have relatives in the United States. That refers to considerations which generally are not relevant to a determination of one’s Seventh Preference rights. This opinion does not consider whether appellants might successfully attain other immigration preference categories or whether they are eligible for immediate relative status. While appellants are ineligible for refugee preference visas, we are not in any way passing upon the eligibility of any one of them to obtain entry into the United States under the statutory provisions specifically designed by Congress to alleviate those situations where an alien’s family relationships warrant entry.
Concurrence Opinion
concurring specially:
Standing
I am in agreement with Judge MacKin-non that “[pjrudential considerations” (p. - of 185 U.S.App.D.C., p. 325 of 566 F.2d) should restrain us in this case from deciding the question of standing of the individual appellants, aliens who have never been in the United States, unless we need to do so. And I agree we need not do so. The District Court, however, granted appel-lee’s motion to dismiss the complaint of the Chinese American Civic Council (Council) because of lack of standing of any of the appellants. Judge MacKinnon’s opinion states agreement with the District Court concerning lack of standing of the Council. In so stating Judge MacKinnon affirmed the Court below which wrote:
The organizational plaintiff also lacks standing to sue. This is not a case where individual members of an organization have suffered or might suffer injury. See Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). The Chinese American Civic Council, although recognized by defendant as a sponsor for refugees and conditional entrants, has not alleged concrete injury to itself or to its members. Rather, the Council attempts to represent or stand in the shoes of the real parties in interest who themselves lack standing.
396 F.Supp. 1250, 1251-52 (D.D.C.1975).
In Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); Mr. Justice Powell, in the course of holding that several associations lacked standing, wrote that “[e]ven in the absence of injury to itself, an association may have standing solely as the representative of its members * * * [provided that] [t]he association must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit.” Id. at 511, 95 S.Ct. at 2211-2212. All of the individual appellants have suffered injury. The Council sponsors at least one of the individual appellants. It is seemingly recognized by the INS as a representative of applicants such as the individual appellants. “Where there is no effect on the organization itself, standing to represent the interests of its members has come most easily when an administrative agency itself has recognized the organization as a representative.” 13 Wright, Miller and Cooper, Federal Practice and Procedure § 3531 at 213 (1975) (footnote omitted).
The issue of whether an association, operating and existing within the United States, has standing to represent its members or those whom it sponsors, when such persons are determined to be without standing solely because of lack of physical presence in the United States, has not been specifically
Merits
The District Court’s observation that appellants “are confronted with an almost ir-rebuttable presumption that * * * they have ‘firmly resettled’ in Hong Kong and are no longer ‘in search of refuge’ ” hits the nail on the head. 396 F.Supp. at 1251-52 n. 2. Appellants appear “firmly resettled” within the meaning of that term as explicated by Mr. Justice Black in Rosenberg v. Yee Chien Woo, 402 U.S. 49, 91 S.Ct. 1312, 28 L.Ed.2d 592 (1971). Therein, he wrote of the “ ‘resettlement’ concept”:
[I]t is not irrelevant. It is one of the factors which the Immigration and Naturalization Service must take into account to determine whether a refugee seeks asylum in this country as a consequence of his flight to avoid persecution. The District Director applied the correct legal standard when he determined that § 203(a)(7) requires that “physical presence in the United States [be] a consequence of an alien’s flight in search of refuge,” and further that “the physical presence must be one which is reasonably proximate to the flight and not one following a flight remote in point of time or interrupted by intervening residence in a third country reasonably constituting a termination of the original flight in search of refuge.”
Id. at 56, 91 S.Ct. at 1316-1317 (footnote omitted).
The denial letter
I concur in the affirmance of the judgment of the District Court.
. See n.5 in Judge MacKinnon’s opinion.
. The District Court has commented succinctly on the administrative error in that regard. 396 F.Supp. at 1252-53.