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Cheng v. Immigration and Naturalization Service

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


August 18, 1975

CHENG, PUN HOI (A19 389 492), PETITIONER
v.
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS.

Van Dusen, Rosenn and Weis, Circuit Judges.

Author: Per Curiam

Opinion OF THE COURT

This Amended Petition for Review of a December 30, 1974, order of the Board of Immigration Appeals raises the issue of whether petitioner is a "subject national or citizen of" the People's Republic of China within the meaning of 8 U.S.C. § 1253(a).*fn1

At a deportation hearing on May 19, 1972, petitioner conceded the allegations in the Order to Show Cause, which indicated that he was a native of China and a citizen of the Republic of China.*fn2 At that hearing he was granted the privilege of voluntary departure, failing which he was ordered deported to the Republic of China (Taiwan) or, in the alternative, to Hong Kong. No objection was made at that time to the designations of such countries of deportation. The immigration judge named the Republic of China (Taiwan) pursuant to 8 U.S.C. § 1253(a) and in reliance upon previous decisions of the Board of Immigration Appeals with reference to the citizenship of Chinese aliens born on mainland China.

Petitioner did not depart the United States. In September 1972, he applied for political asylum under the United Nations Treaty, claiming that he was a political refugee from mainland China. This application was denied on November 21, 1973. On December 11, 1974, petitioner moved to reopen the 1972 deportation order on the ground that the United States had, in the interim, altered its position with respect to the People's Republic of China. The motion was denied by the immigration judge in an opinion dated December 16, 1974; the Board of Immigration Appeals affirmed in an opinion dated December 30, 1974, saying, inter alia, "we agree with the well reasoned decision of the immigration judge."

In affirming, the Board found that petitioner was not "prejudiced by the immigration judge's designation of the places of potential deportation" since he had sought political asylum from the People's Republic of China and had never sought to be deported there. Order of December 30, 1974, at 3. Indeed, petitioner had not designated any country to which he desired deportation.*fn3 Under these circumstances, the Board affirmed the action of the immigration judge in ordering deportation first to Taiwan or alternatively, to Hong Kong.

That part of the 1972 order directing petitioner's deportation to Taiwan was pursuant to 8 U.S.C. § 1253(a)'s provision for deporting an alien "to any country of which such alien is a subject national, or citizen if such country is willing to accept him. . . ."*fn4 Petitioner contends that he is a citizen, not of Taiwan, but of the People's Republic of China and that he should, therefore, have been ordered deported to the latter country rather than to the former. Had he been ordered deported to the People's Republic, petitioner would have been allowed to apply for political asylum under 8 U.S.C. § 1253(h);*fn5 had this application been granted, he would have received an indefinite stay of deportation. Thus, petitioner argues, he was indeed prejudiced by the decisions of the immigration judge and of the Board.

Petitioner bases his claim that he is a "subject national, or citizen" of the People's Republic upon certain memoranda circulated within the Department of State. These memoranda*fn6 are read by petitioner as indicating that persons in petitioner's situation - born on mainland China who had left the mainland for Hong Kong and later entered the United States - are considered by the State Department to be citizens of the People's Republic rather than of Taiwan. This change in the State Department's position, it is urged, opens to question former decisions of the Board and of the courts that designated persons in petitioner's circumstances as citizens of Taiwan within 8 U.S.C. § 1253(a). See, e.g., Ng Kam Fook v. Esperdy, 320 F.2d 86 (2d Cir. 1963), and cases there cited. In response to the inquiry of this court, the Department of State has reaffirmed that it considers petitioner, and persons in his circumstances, to be citizens of Taiwan:

"That statute [8 U.S.C. § 1253(a)] provides that if an alien fails to designate a country to which he wishes to be deported, his deportation shall be directed toward 'any country of which such alien is a subject[,] national, or citizen if such country is willing to accept him into its territory.'

"Normally, the United States does not deport aliens to countries with whose governments we do not have diplomatic relations. At the present time, with respect to persons who come from mainland China and claim to be citizens of the People's Republic of China and not the Republic of China, we believe there is no appropriate government with which we have diplomatic relations for purposes of directing a request for admission of an alien pursuant to Section 1253(a). Therefore, we believe it would be appropriate for the Attorney General to proceed to deport the petitioner, presumably to Hong Kong, pursuant to his discretionary authority as set forth in Section 1253(a)."

Thus, the State Department memoranda upon which the Amended Petition for Review was predicated do not have the meaning ascribed them by petitioner and can provide no basis for overturning the decision of the Board.

For the foregoing reasons, the Amended Petition for Review will be denied. Costs shall be taxed against petitioner in accordance with DiMattina v. I.N.S., 506 F.2d 443 (3d Cir. 1974).*fn7


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