167 F. Supp. 828 | S.D.N.Y. | 1958
The relator brings this habeas corpus proceeding to test the validity of the Attorney General’s order of deportation and denial of his application, under § 244(a) (1) of the Immigration and Nationality Act, 8 U.S.C.A. § 1254(a) (1), for suspension of deportation.
Belator, a native and national of China, entered the United States on May 17, 1927, under the name of Soo Hoo Wing Yin upon the false claim that he was the citizen son of a native-born United States citizen, Soo Hoo Shu Sing.
Deportation proceedings were instituted during the course of which relator, represented by counsel of his choice and assisted by an interpreter, testified under oath that (a) he is a native and citizen of China; (b) he was admitted to this country in 1927 and again in 1936 under a claim, which he then knew to be false, to wit: that he was the son of a native United States citizen and that he was, therefore, a United States citizen; (c) when he last came to the United States he was not in possession of a valid immigration visa; (d) he intended to remain here indefinitely; (e) he used the name Soo Hoo Wing Yin from the time of his first entry until about October 12, 1956; and (f) on October 5, 1956, he falsely testified under oath before investigators of the Immigration and Naturalization Service that (i) he was the son of a United States citizen; (ii) he mari'ied in 1927,
Belator’s counsel urges that the deportation order is “not supported by any evidence.” What he overlooks, however, is that his client’s admissions at the deportation hearings were sufficient in themselves to provide the basis for a finding of deportability. Medeiros v. Brownell, 1957, 99 U.S.App.D.C. 396, 240 F.2d 634; United States ex rel. Avramovich v. Lehmann, 6 Cir., 1956, 235 F.2d 260, certiorari denied, 1957, 355 U.S. 905, 78 S.Ct. 328, 2 L.Ed.2d 250; Harris v. United States Department of Justice, D.C.E.D.Mich.1958, 161 F.Supp. 59. Cf. 8 C.F.R. § 242.16(b) (1958).
In order to be eligible for suspension of deportation under § 244(a) (1) of the Immigration and Nationality Act, 8 U.S.C.A. § 1254(a) (1), the alien must bear the burden of showing, among other things, that during the seven-year period immediately preceding the application for such relief he was and still is a person of good moral character. Application of Orlando, D.C.N.D.N.Y.1954, 131 F.Supp. 485, affirmed United States ex rel. Orlando v. District Director of I. & N. Service, 2 Cir., 222 F.2d 537, certiorari denied, 1955, 350 U.S. 862, 76 S.Ct. 103, 100 L.Ed. 764.
The Board indicated that it would be disinclined to grant- suspension deportation even if petitioner was eligible therefor.
While deportation of an alien who has resided in this country, albeit illegally, for upwards of 30 years may seem perhaps unduly harsh, the mandate of the law is clear. Although urged to do so,
Accordingly, the writ is dismissed and the relator is remanded to the custody of the respondent.
So ordered.
. Relator later admitted that his father was a citizen of China and that Soo Hoo Shu Sing was an uncle.
. At the deportation hearing, relator admitted that ho did not marry until 1933.
. At the deportation hearing, relator admitted he had hut one child. This child and the relator’s wife live in Hong Kong.
. Relator also applied to the Attorney General for suspension of deportation pursuant to § 243(h) of the Immigration and Nationality Act, on the ground that deportation to China or Hong Kong would subject him to physical persecution. After a full hearing on the merits the special inquiry officer recommended that the application be denied on the
Apparently relator does not now challenge the validity of this determination.
Now 8 U.S.C.A. § 1181(a). [Ed. Note.]
. At the hearing counsel for the relator was asked:
“Q. The respondent [relator herein] is admitting deportability. Is he making this admission with your consent?
“A. He is.”
The relator is now represented by other counsel.
. The statute does not contemplate that all aliens who meet the minimum legal standards will be granted suspension. Suspension of deportation is a matter of discretion and administrative grace. United States ex rel. Hintopoulos v. Shaughnessy, 1957, 353 U.S. 72, 77 S.Ct. 618, 1 L.Ed.2d 652.
. At the deportation hearing, the examining officer defined perjury for the petitioner’s benefit. This is the usual administrative practice. See Tandaric v. Robinson, 7 Cir., 1958, 257 F.2d 895; Matter of K-, A-7922461, 10/31/57, Int.Dec. No. 897.
. The Board, in its decision of August 4, 1958, observed: “The respondent’s [relator’s] testimony at the hearing held on October 30, 1956 (p. 8) seems to belie his present claim. He then testified that he revealed the truth about himself because his conscience bothered him. He was then represented by counsel and no exceptions along this line were then raised.”
. Apparently the Service did publicize the availability of benefits under Section 244 (a) (1) of the Immigration and Nationality Act in order to encourage aliens who could qualify thereunder and who would voluntarily disclose their illegal entries and immigration statuses, to initiate appropriate action before the statute, by its very terms, expired on December 24, 1957.
. It stated: “Finally, there is no merit to the claim that there has been a timely recantation in this case. It is clearly established that we are not here concerned with an innocent mistake. On this record, and at this stage of the proceedings, the respondent cannot purge himself by admitting to a fraud which permeates Ms record with the Government for a period of approximately 30-years.”
. United States ex rel. Kaloudis v. Shaughnessy, 2 Cir., 1950, 180 F.2d 489. We look only to see whether there has been a clear abuse of discretion, Asikese v. Brownell, 1956, 97 U.S.App.D.C. 221, 230 F.2d 34, or a failure to exercise it at all. United States ex rel. Accardi v. Shaughnessy, 1954, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681; Evans v. Murff, supra.
. Cf. Melachrinos v. Brownell, 1956, 97 U.S.App.D.C. 229, 230 F.2d 42. See note 3 supra.
. Cf. Tandaric v. Robinson, supra; Alexiou v. Rogers, 1958, 103 U.S.App.D.C. 79, 254 F.2d 782; Hiroichi Hamasaki v. Brownell, 1956, 98 U.S.App.D.C. 309, 235 F.2d 536.
. See “Whom We Shall Welcome”, Report of the President’s Commission on Immigration and Naturalization, pp. 197-198 (1953).