Fan Wan Keung v. Immigration And Naturalization ServiceFan Wan Keung v. Immigration And Naturalization Service
Thomas Church, New York City, for petitioners Man Loi Hing, Chau Yau Fuk.
Jules Coven, New York City, for petitioners Au Ming, Wong Tat Kwong.
T. Gorman Reilly, Asst. U.S. Atty., Stanley H. Wallenstein, Gen. Atty., INS, Whitney North Seymour, Jr., U.S. Atty., for respondent.
Before WATERMAN and FRIENDLY, Circuit Judges, and ZAMPANO, District Judge.*
WATERMAN, Circuit Judge.
Petitioners1 seek review of orders of thе Board of Immigration Appeals denying their several motions in which they have requested reopening of their deportation proceedings so as to allow each of them reinstatement of voluntary departure. In each case the Service has moved to dismiss the petitions. We grant the motions to dismiss.2 Although the facts of each case vary somewhat, the material facts in each, the facts upon which our decision is based, are sufficiently identical to warrant the consolidated treatment of all the petitions in this one opinion.
All of the petitioners are natives of China. All but Wu On Cheong, Docket No. 34657, are crewmen. Of the nine crewmen seven were permitted to enter the United States for the period of time their vessels would remain in port but not to exceed twenty-nine days.
We take the case of petitioner Fan Wan Keung for more particularized discussion. He was admitted as an alien crewman on February 17, 1969. Having remained longer than permitted, deportation proceedings against him were begun before a Special Inquiry Officer. During the course of these proceedings Fan Wan Keung applied for and was on April 7, 1969 granted the discretionary relief of voluntary departure. Under the terms of the grant he was given 30 days within which so to depart, but if he failed to leave within the prescribed period an order deporting him to Hong Kong would become effective.
Fan Wan Keung did not depart voluntarily within the 30-day period, as he had promised the Service he would, and the District Director issued a warrant for his deportation. On July 7, 1969, the day he was ordered to report for deportation he filed a motion before the Special Inquiry Officer to reopen his deportation proceedings so as to give him an opportunity to apply for reinstatement of voluntary departure and an extension of 60 days within which to do so.
The Special Inquiry Officer determined that the motion for reopening the deportation proceedings did not allege facts sufficient to warrant the granting of voluntary departure a second time and denied the motion, and on July 28, 1969 the Board dismissed the alien‘s appeal from that denial.
All of the other nine petitioners herein have managed to remain in the United States for even longer periods than Fan Wan Keung, one from 1964, one from 1966, six from 1967, and one from 1968. Among other devices used to delay deportation eight of them have resorted to the device of having a member of Congress introduce bills legalizing their entries, and, indeed, five of them have had bills introduced into two congressional sessions. Although no alien named herein has had a private bill favorably acted upon, the pendency of such a bill causes the Service, out of respect for the Congress, to delay enforcement of the deportation warrant until final action upon the bill or final adjournment.
The purposeful pattern found in all these cases, while varying slightly in immaterial respects from case to case, may be summed up in one word-- ‘delay.’ In no case does a petitiоner seriously contest the issue of his deportability. According to the statute, and on the merits of each case, not one of these petitioners should be here in this country, yet they are still here, one since as far back as in late 1964. The delays have been accomplished by resort to every applicable procedural delaying tactic known to our system of jurisprudence. The importance to deportable alien crewmen of obtaining delays in departure is set forth by the Board of Immigration Appeals in Wong Chung Pui, an unreported decision dated August 21, 1969:
Many alien crewmen have gladly availed themselves of the privileges of voluntary departure and have proceeded abroad, there to pursue the necessary steps and spend the time needed to obtain the immigrant visa required for their return here as immigrants. Others have sought to remain here indefinitely, until such time as a visa should become available. This usually requires a fairly substantial period, since normally before a visa becomes available to aliens who are crewmen by occupation there must first be obtained the labor certification required by section 212(a)(14) of the Act; then a visa petition in the alien‘s behalf must be processed and approved by the District Director; and, finally, the alien‘s turn must be reached on the quota waiting list. Once a visa becomes available, if the alien can arrange to have his visa application entertained by an American consul in a nearby country, he can make an appointment, depart from the United States long enough to pick up the visa, and return promptly and be admitted as an immigrant for permanent residence. In this way, the crewman illegally here can achieve permanent residence with only the slightest interruption in his presence and activities here.
To reach this happy ending, the crewman must somehow manage to remain here and postpone the day of his required departure by whatever means he can until the time is ripe. Some put off the day of departure by the simple process of absconding; some by contriving frivolous and dilatory litigation; some by obtaining thе introduction of private bills; some by various combinations of the foregoing.
Even after contriving to remain here until the eve of the consular appointment, however, one final boon must be sought. The outstanding deportation order must be withdrawn and voluntary departure authorized. Unless this bounty is granted, the alien‘s departure executes the outstanding deportation order under section 101(g) of the Act, and permission to reapply must bе sought and obtained before visa eligibility can be reacquired.
To the alien crewman intent on returning here permanently, voluntary departure is thus a privilege of the greatest importance.
If after the expiration of the voluntary departure time granted in connection with the alternate order of deportation entered by a special inquiry officer of the Board of Immigration Appeals the alien presents a valid travel document and a confirmed reservation for transрortation * * * a nunc pro tunc extension of the expired voluntary departure time may be granted.
The effect of the Service‘s liberal policy was to give to an alien who had been granted the privilege of voluntary departure but who had failed to depart within the prescribed time limit the reinstatement of the privilege which he had presumably ‘lost’ by his continued presence in this country. It is apparent that until June 1969 aliens, through the advice of their attorneys, had treated the long standing generosity of the District Director as the procedural norm and had been confident that any dilatory tactics aimed at postponing their departure date would not ultimately work an abandonment of their privilege to depart voluntarily. By June 1969, however, the Service‘s policy of generosity underwent a reevaluation and an abrupt change occurred in its attitudе toward those who sought a reinstatement of voluntary departure, i.e., ‘a nunc pro tunc extension of the expired voluntary departure time.’ On July 3, 1969, the Commissioner of Immigration and Naturalization issued an amendment to 243.1(a) which reflected the District Director‘s new emphasis in considering ‘nunc pro tunc extensions.’ The amendment reads:
The provisions of this paragraph shall not ordinarily be applicable to any alien who has remained in the United States for an extended period of time by means of obviously dilatory actions in Courts or elsewhere.
This policy change was recognized and discussed in Wong Chung Pui, supra, in which it was stated:
The purpose of authorizing voluntary departure in lieu of deportation is to effect the alien‘s prompt departure without further trouble to the Service. Both the alien and the Service benefit thereby. But if the alien does not depart promptly, so that the Service becomes involved in further and more costly procedures by his attempts to continue his illegal stay here, the original benefit to the Service is lost. And if, after years of delay, he is again rewarded with the opportunity for voluntary departure which he has previously spurned, what incentive is there for any alien similarly circumstanced to depart promptly when first given the opportunity?
The Service‘s Operations Instruction (243.1(a)) apparently authorizes the nunc pro tunc extension of voluntary departure even in the cases of crewmen. We are informed that until recently this dispensation was accorded by District Directors in their discretion where they considered it appropriate. The policy has now changed, and District Directors no longer extend this privilege to crewmen, as a general proposition, who managed to remain by using obviously dilatory tactics, absent some special equities such as a close relative who is a citizen or legally resident alien.
It may seem unduly harsh to slam the door in the face of an alien who has patiently through the years blocked the Service‘s attempts to enforce his departure and now stands almost on the threshold of achieving his goal. Effective law enforcement may require no less, however, in circumstances such as these.
Petitioners do not claim that this change of policy in the treatment of ‘nunc pro tunc extensions’ is arbitrary if the change is considered to authorize prospective discretionary acts, but they do claim that the change occurred suddenly and came about without adequate notice, and therefore should not be applicable to them. Petitioners say that if they, whо were in the country in June 1969 and had failed to depart voluntarily when the opportunity had first been accorded them, had been given the benefit of the liberal ‘nunc pro tunc extension’ policy each of them would again have received the privilege of departing voluntarily; hence, because they were not afforded reasonable notice of the change of policy and were not given a ‘grace period’ before the changed policy was applied to them, the refusal to reopen their deportation proceedings is an arbitrary abuse of discretion.3 We agree that the changed policy affected some, if not all, of these petitioners,4 but we are in no way persuaded that any of them were entitled to a ‘grace period’ before the change in policy was put into effect.
An alien who once was granted voluntary departure and who is found here illegally, does not merit a second chance for such departure in the absence of very strong extenuating circumstances.
If an alien, after apprehension in deportation proceedings and prior to the hearing in the deportation case, has been given an opportunity to depart voluntarily within a reasonable time, usually at least 30 days, he does not merit a further grant of departure by the hearing officer unless he gives good and sufficient reasons why he did not or could not depart when granted that opportunity. Likewise, if voluntary departure is granted by the hearing officer at the hearing, or if at that hearing the alien makes it clear he does not wish voluntary departure within a reasonable time, this Board will not grant voluntary departure in the absence of very strong and persuasive reasons to support contrary action. The purpose of this limitation is apparent. An alien should not be permitted to prolong his illegal presence in this country by failure to apply for or accept voluntary departurе until he has brought his case, through various procedural steps, to the last authority where such relief may be granted.
See also Gil v. Del Guercio, 246 F.2d 553, 556 (9 Cir.), cert. denied, 355 U.S. 863, 78 S.Ct. 96, 2 L.Ed.2d 69 (1957); United States ex rel. Ling Shing v. Esperdy, 305 F.Supp. 1106, 1108 (S.D.N.Y.1969).
The need for the change is self-evident. The practice of granting the privilege of voluntary departure within a stated period had become a meaningless ritual; the granting of a ‘nunc pro tunc extension’ was bound to follow the initial grant as a matter of course. Therefore thеre was no incentive for an alien to live up to his part of the voluntary departure bargain; and the informal practice, thought of as encouraging aliens to be on their way out of the country without expense to the Government, encouraged aliens to extend their illegal stay within the country.
Of course those aliens who applied for ‘nunc pro tunc extensions’ after June 1969 have been denied a relief that many of their predecessors had almost routinely received, but we agree with the Government that this situation does not make the petitions of these petitioners meritorious.
The justification for whatever reliance petitioners may have placed on the old policy of liberality, a reliance which stemmed from their attorneys’ advice that they could expect liberal treatment, must be determined in the light of the nature of thе discretionary relief petitioners hoped to receive. The practice of freely granting ‘nunc pro tunc extensions’ was, as previously stated, thought to avoid the expense and formality of deportation and was believed to have the effect of hastening the departure of deportable aliens. It must have been perfectly clear to immigration attorneys that their clients were receiving gratuitous rеlief they legally were not entitled to, absent ‘very strong extenuating circumstances.’ Matter of M, supra. They also should have envisioned that this informal gratuitous practice might prove unworkable if utilized to delay, rather than to accelerate, departure, and that the Service then would necessarily return to the practice of exercising discretion in cases where an alien sought a second chance to depart voluntarily, and that a major factor in the exercise of discretion would be whether deportable aliens were using the grant to further dilatory tactics. Thus reliance, if any, on the Service‘s policy of liberality should have been qualified to the extent that there was always the possibility that the Service‘s attitude might shift toward strictness and that each motion to reinstate voluntary departure might be decided on its particular merits.
We, therefore, grant the Government‘s motions to dismiss.
Notes
We have thought it better, however, to treat the petitions here as having a color of validity and as deserving discussion on their merits.