428 F.

2d 293

Peter Chow Lung SHEN, Plaintiff-Appellant,

v.
P. A. ESPERDY, as District Director of the Immigration and
Naturalization Service, Defendant-Appellee.
No. 557.
Docket 34212.

United States Court of Appeals, Second Circuit.

Argued February 26, 1970.
Decided June 8, 1970.

Martin Burroughs, New York City, for appellant.

T. Gorman Reilly, Asst. U.S. Atty. (Whitney North Seymour, Jr., U.S.
Atty., for the Southern District of New York, and Stanley H. Wallenstein,
Gen. Atty., Immigration and Naturalization Service, on the brief), for
appellee.
Before LUMBARD, Chief Judge, and ANDERSON, Circuit Judge, and
DOOLING, District Judge.*
LUMBARD, Chief Judge:

Peter Chow Lung Shen appeals from an order granting the District Director of
the Immigration and Naturalization Service's (INS) motion for summary
judgment and dismissing his complaint in this declaratory judgment action to
review the district director's determination that Shen was not a refugee within
the scope of section 203(a) (7) of the Immigration and Nationality Act, 8 U.
S.C. 1153(a) (7) (Supp. I, 1965-66). The basis for the INS's refusal to grant
Shen refugee status, and for the district court's dismissal of the complaint, was
that Shen had resettled in Taiwan after fleeing from Communist China and that
"nonresettled" status was a condition precedent to qualification under the
statute. We agree and affirm the judgment of the district court.

I. THE FACTS

Peter Chow Lung Shen is an alien born on the mainland of China in 1935. In
1948, at the age of thirteen, he fled the mainland with his family. Shen, his
parents, and his brothers and sisters took up residence on Taiwan, where his
father was engaged in the import-export business. The parents, brothers, and
sisters are still on Taiwan.

From 1948 through 1954, Shen attended school on Taiwan. During 1954, he
apparently completed his schooling, for he took a job as an interpreter for the
United States Air Force and remained in this position until 1956.

Shen left Taiwan in 1957 to accept a position in the United States Embassy in
Australia. In 1959, he left Australia for Japan, where he studied at the
International Christian University for three years. Upon completion of his
course of study in Japan, Shen came to the United States as a visitor for
pleasure, entering this country at Honolulu, Hawaii, on November 16, 1962. He
has remained here ever since. All of appellant's travel was accomplished on a
passport issued and revalidated by the Nationalist Government of the Republic
of China on Formosa.

The appellee INS held a deportation hearing on November 13, 1963, pursuant
to section 242(b) of the Act, 8 U.S.C. 1252(b) (1964). Shen was represented
by counsel, and he conceded that he had remained in the United States past the
date set for the end of his stay as a tourist September 14, 1963. Shen further
admitted that he was deportable and designated Formosa as the country to
which he wished to be deported. He also applied for the privilege of voluntary
departure pursuant to section 244(e) of the Act, 8 U.S.C. 1254(e). The INS
opposed this application, which was denied as a matter of discretion by the
special inquiry officer. A final order of deportation was entered after this
hearing on November 13, 1963. No appeal was taken from that order.

A warrant of deportation was issued the following day, but as the government's
brief recites, no action was taken to enforce Shen's departure until April, 1967,
because the Attorney General had declared a moratorium on deportations of
Chinese nationals to the Far East. In early April, 1967, Shen was directed to
surrender for deportation to Taiwan on the 14th. On April 12th, he filed an
application for a stay of deportation and an application for classification as a
refugee.1

Shen had an interview and examination on the latter application on September

11, 1967. The district director of the INS denied the application on February
28, 1968. His opinion stated

"* * * that at the time of the subject's entry into the United States he was not a
refugee from any country, nor was he fleeing from any country. Rather, he was
a tourist in possession of a valid passport and a visa. Therefore, he cannot be
considered a refugee as defined in Section 203(a) (7) of the Act * * *."

The district director certified Shen's appeal to the regional commissioner on

March 8, 1968, and on July 5, 1968, the regional commissioner affirmed the
denial of the application. The regional commissioner concluded in his opinion
that

10

"the applicant was firmly resettled in Taiwan and, as a consequence, is not a

refugee within the scope of Section 203(a) (7) of the Act since after he fled
Mainland China he became firmly resettled in Taiwan."

11

Thereafter, Shen initiated a declaratory judgment action in the Southern District

of New York to review the district director's denial of the application for
classification as a refugee. Judge Tenney granted the district director's motion
for summary judgment and dismissed the complaint, stating in his opinion of
September 30, 1969, that the "facts amply demonstrate the `firm resettlement'
of [Shen] in Taiwan and, as a matter of law, it cannot be said that the finding of
the District Director was arbitrary or discriminatory."

12

Judge Tenney stayed deportation pending appeal, upon stipulation of the

parties.

13

II. APPELLANT'S STATUTORY ARGUMENT: CHANGES IN

IMMIGRATION LAWS AND THE CONCEPT OF "FIRM
RESETTLEMENT"

14

Appellant's claim that the district director's denial of his application was
erroneous is bottomed on a comparison of the language of the present
Immigration and Nationality Act (hereinafter the Act) and predecessor statutes.
Section 203(a) (7) of the Act, under which Shen made his application, states:

15

"(a) Aliens who are subject to the numerical limitations specified in section
1151(a) [ 201(a)] shall be allotted visas or their conditional entry authorized,
as the case may be, as follows:

******
16
17

"(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) [ 201(a) (ii)], 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; or (B) that they are persons uprooted by catastrophic
natural calamity as defined by the President who are unable to return to their
usual place of abode * * *. Provided, that immigrant visas in a number not
exceeding one-half the number specified in this paragraph may be made
available, in lieu of conditional entries of a like number, to such aliens who
have been continuously physically present in the United States for a period of
at least two years prior to application for adjustment of status."
18

Shen argues that this section is the "direct descendant" of two earlier statutes,
and that section 203(a) (7) was intended to change the policy expressed in these
earlier enactments with regard to denial of refugee status to an alien who has
been firmly resettled in another nation prior to making application to the United
States. The government also bases much of its argument on the prior
legislation. It contends that the successive statutes embody a consistent
immigration policy including the concept of firm resettlement. Although our
examination of the statutes cited to us leads us to the conclusion that much, if
not all, of the legislation can be described as temporary in character and
responsive to specialized refugee problems, we agree, on balance, with the
government's position.

19

The first of the earlier statutes relied on by Shen is the Displaced Persons Act
of 1948, 62 Stat. 1009 (June 25, 1948), which provided for the entry of persons
displaced by World War II and the ensuing Communist domination of Eastern
Europe. Under the Displaced Persons Act, an alien, once in the United States,
could adjust his status to that of a legal residence by being designated a
"displaced person," regardless of the manner of entry into this country.
"Displaced person" was defined, inter alia, as one "who has not been firmly
resettled."2

20

The second predecessor statute, Shen argues, is the Refugee Relief Act of 1953,
67 Stat. 400 (Aug. 7, 1953) which permitted the admittance of 214,000 refugees
within a three-and-one-half-year period. It defined the term "refugee" as

21

"* * * any person in a country or area which is neither Communist nor

Communist-dominated, who because of persecution, fear of persecution,
natural calamity or military operations is out of his usual place of abode and
unable to return thereto, who has not been firmly resettled, and who is in urgent
need of assistance for the essentials of life or for transportation."3

22

There are other statutes in the chain of legislation, but as the government
concedes, the Refugee Relief Act of 1953 was the last enactment to incorporate
the "firm resettlement" language in defining who was eligible for adjustment to
legal residence as a refugee. The Act of 1957, P.L. No. 85-316, 71 Stat. 639
(Sept. 11, 1957), a measure which in effect allowed two more years to carry out
the work begun under the Refugee Relief Act of 1953, defined "refugeeescapee" as

23

"any alien who, because of persecution or fear of persecution on account of

race, religion, or political opinion has fled or shall flee (A) from any
Communist, Communist-dominated, or Communist-occupied area, or (B) from
any country within the general area of the Middle East, and who cannot return
to such area, or to such country, on account of race, religion, or political
opinion."4

24

The next statute was the Fair Share Law of 1960, P.L. No. 86-648, 74 Stat. 504
(July 14, 1960), the immediate predecessor of the present Act. Section 1 of the
Fair Share Law authorized the Attorney General to "parole" into this country
"an alien refugee-escapee defined in Section 15(c) (1) of the Act of September
11, 1957" (71 Stat. 643),5 if such alien

25

"(1) applies for parole while physically present within the limits of any country
which is not Communist, Communist-dominated, or Communist-occupied, (2)
is not a national of the area in which the application is made, and (3) is within
the mandate of the United Nations High Commissioner for Refugees."6

26

These provisions of the Fair Share Law of 1960, including the quoted portion,
were extended indefinitely by section 6 of the Refugee Assistance Act of 1962,
P.L. No. 87-510, 76 Stat. 121 (June 28, 1962). On October 3, 1965, when the
present section 203(a) (7) was added to the Immigration and Nationality Act,
the Fair Share Law provisions were repealed. It is clear from the opinions of
the INS in this case, and in others cited to us, that the INS has, throughout the
period encompassed by these statutes, regarded the concept of firm resettlement
as important in determining whether aliens are entitled to adjustment to legal
status as refugees.7

27

The government has also called our attention to a recent Ninth Circuit decision
which supports Shen's position. In Yee Chien Woo v. Rosenberg, 419 F.2d 252
(9th Cir. 1969), petition for certiorari filed, 38 U.S.L.W. 3466 (May 26, 1970),
a case almost identical to the instant one,8 the Ninth Circuit held that in light of
the chain of enactments described above, section "203(a) (7) does not require,
as a condition precedent to conditional entry, that the alien be `not firmly
resettled elsewhere.'" Id. at 253-254. The Ninth Circuit went on to state that "
[t]he nature of the relationship of the refugee to an intermediate host country to
which he has fled from his home country and in which he has found temporary
asylum is a necessary consideration under this and prior refugee relief acts." Id.
at 254. The court then reviewed briefly the statutes discussed above and
concluded that

28

"[w]hether [Yee Chien Woo] was firmly resettled in Hong Kong is not, then,
relevant. What is relevant is that he is not a national of Hong Kong (or the
United Kingdom); that he is a national of no country but Communist China and
as a refugee from that country remains stateless." In so far as Yee Chien Woo v.
Rosenberg holds that the concept of firm resettlement is irrelevant to
applications made under section 203(a) (7) of the Act, we must disagree with
the Ninth Circuit.

29

III. SECTION 203(a) (7): INTERPRETATION AND CONGRESSIONAL

INTENT

30

Shen's application was made under the proviso to section 203(a) (7) that states
"immigrant visas * * * may be made available, in lieu of conditional entries * *
* to such aliens who have been continuously physically present in the United
States for a period of at least two years prior to application for adjustment of
status." The words "such aliens" in the proviso obviously refers back to the
description of aliens eligible for conditional entries into the United States. In
pertinent part, this earlier portion of the section provides that conditional entries
shall go

31

"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 * * *, 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; or (B) that they are persons uprooted by catastrophic
natural calamity as defined by the President who are unable to return to their

usual place of abode * * *."

32

As noted above, in Yee Chien Woo v. Rosenberg the Ninth Circuit seized on
the phrase "not a national" in section 203(a) (7) (A) (iii) and held that these
words were "substituted" for the language about firm resettlement which had
appeared in the Displaced Persons Act of 1948 and the Refugee Relief Act of
1953. This interpretation of section 203(a) (7) (A) (iii) as a pervasive test to be
applied to all aliens whether they seek conditional entries under the first
portion of the section or immigrant visas under the proviso is not correct.
Under regulations promulgated by the Attorney General, conditional entry
under section 203(a) (7) is available only after application to INS officers in
one of seven countries: Austria, Belgium, France, Germany, Greece, Italy, or
Lebanon. 8 C.F.R. 235.9 (1970). Given this regulation, the broadest scope
which the "not a national" language can be afforded is that it merely states that
applicants for conditional entries cannot be nationals of one of these seven
nations within which they have applied. Thus, we view the language of section
203(a) (7) (A) (iii) as relevant only to those aliens who apply for conditional
entries in one of these seven nations. It does not apply in any way to one in
Shen's position or, for that matter, in Yee Chien Woo's who applies for
an immigrant visa after spending more than two years in this country.9

33

For persons in Shen's position, the regulations applicable are drawn under
section 245 of the Act, 8 U.S.C. 1255, and are entitled "Adjustment of Status
to That of Persons Admitted for Permanent Residence," 8 C.F.R. Part 245
(1970) [especially 245.4]. These regulations do not and logically cannot make
reference to the "not nationals" language of section 203(a) (7) (iii).

34

Thus, aliens such as Shen who apply for immigrant visas from within the
United States must "satisfy an Immigration and Naturalization Service Officer"
that "they have fled" from a Communist nation because of political opinion and
that because of such opinion they are "unable or unwilling to return." Sections
203(a) (7) (A) (i), (ii), 8 U.S. C. 1153(a) (7) (A) (i) and (ii). The words
"satisfy an Immigration and Naturalization Service Officer" strongly imply
discretion, and in order to review properly the exercise of this discretion it is
imperative that we examine in somewhat greater detail the predecessor statutes
and the legislative history of the present section 203(a) (7) itself.

35

The Ninth Circuit found resort to legislative history unnecessary and

unenlightening, stating that

36

"[W]e cannot disregard the clear manifestation of Congressional intent shown

by the substitution, in 1957, of the status `not a national' for that of `not firmly
resettled' as formerly specified in the 1953 Act. Nothing in the legislative
history advanced by [the government] persuades us that Congress intended this
substituted language to mean anything but what it clearly says."
37

419 F.2d at 254. Congressional intention to make such a substitution is not at

all clear. First, as we have stated, we believe that the Ninth Circuit
impermissibly broadened the scope afforded the "not a national" phrase by
misinterpreting it as being applicable to aliens who apply for immigrant visas
as refugees from within the United States in accordance with the proviso of
section 203(a) (7). Second, the 1957 legislation was a measure of "limited
duration and scope * * * allotting the 18,656 unused visas under the Refugee
Relief Act [of 1953], to German expellees, persons of Dutch ethnic origin, and
`refugee-escapees.'" 1 Gordon & Rosenfield, Immigration Law and Procedure,
2-130 (1969). As such, it is hardly accurate to point to this particular piece of
legislation as a statute intended by Congress to effect a major change in the
criteria to be used in assessing refugees' applications for adjustment of status.

38

The Fair Share Law of 1960, in effect from 1960 to 1965, might be viewed as
more significant, but there is little evidence in the legislative history that it was
intended to abrogate or abandon the concept of firm resettlement. In the first
place, under the Fair Share Law application by refugee-escapees10 for parole
["conditional entry" under the present section 203(a) (7)] into the United States
was limited to the same seven nations listed earlier in this opinion.11 See Tai
Mui v. Esperdy, 371 F.2d 772, 779, 780 (2d Cir. 1966), cert. denied, 386 U.S.
1017, 87 S.Ct. 1372, 18 L.Ed.2d 454 (1967). Thus, the phrase "not a national"
is subject to the same limited reading as it is in the present section 203(a) (7).

39

Moreover, the Fair Share Law itself was a rather limited and specialized piece
of legislation, designed to implement our paticipation in the United Nations
World Refugee Year. The Report of the Senate Judiciary Committee on the
joint resolution which included the Fair Share Law provisions, H.J.Res. 397,
86th Cong., 2d Sess. (1960), states that the principal purpose of the resolution
was "to enable the United States to participate in the resettlement of certain
refugee-escapees by granting the Attorney General special authority * * * to
parole into the United States refugees * * * who are under the mandate of the
United Nations High Commissioner for Refugees in a number not to exceed 25
percent of the total number of any such similar refugees resettled during stated
periods of time in countries other than the United States * * *." S.
Rep.No.1651, 86th Cong., 2d Sess. (1960) at 3, 2 U.S.Code Cong. &
Admin.News, p. 3124 (1960). That this statute was not considered by Congress
as a general statement of immigration policy is demonstrated by the following

exchange of views, documented in the Senate Judiciary Committee's Report. In

a letter of July 9, 1959, Assistant Secretary of State William B. Macomber, Jr.,
writing for the Secretary, noted that the State Department was concerned about
the "very limited definition of refugees eligible for admission." The State
Department's view was that limiting the definition to those refugees under the
U. N. High Commissioner's mandate would discriminate against certain classes
of refugees, "principally in the Middle East and Far East who have not been
determined as falling under the aforementioned mandate * * *." Accordingly,
the State Department proposed that instead of requiring that aliens be within the
United Nations High Commissioner's mandate the provision should read as
follows:
40

"[a refugee-escapee] is any alien (A) who because of persecution or fear of

persecution on account of race, religion, or political opinion has fled or shall
flee from any Communist, Communist-dominated, or Communist-occupied
area, or from any country within the general area of the Middle East, and who
cannot return to such area or country on account of race, religion, or political
opinion, or (B) who is out of his usual place of abode because of a natural
calamity, military operations, or political upheaval, and who is unable or
unwilling to return to his usual place of abode, and (C) who is in a country or
area which is neither Communist nor Communist-dominated, and (D) who has
not been firmly resettled and is in urgent need of assistance for the essentials of
life."

41

S.Rep. No. 1651, supra, at 18-19, 2 U.S. Code & Admin.News, pp. 3139-40
(1960). The Senate Judiciary Committee's response was to reject the
suggestion, stating "the enlargement of the scope of this legislation as suggested
by the Department of State will not be conducive to the achievement of the
primary aim of House Joint Resolution 397, as amended, which is to contribute
to the closing of the remaining displaced persons and refugee camps in Europe,
such aim coinciding with the determined camp liquidation program of the
United Nations High Commissioner for Refugees." Sen.Rep. No. 1651, supra,
at 18-19, 2 U.S.Code Cong. & Admin.News, p. 3140 (1960). This exchange
indicates that the Fair Share Law was also a measure "of limited duration and
scope." 1 Gordon & Rosenfield supra, at 2-130.

42

Thus the definition of eligibility under the Fair Share Law remained pegged to
aliens who were under the Mandate of the United Nations High Commissioner,
and that mandate extended "only [to] those refugees who do not have the rights
and obligations of nationals in the country in which they reside."12 Sen.Rep.
No. 1651, supra, 2 U.S.Code Cong. & Admin.News, p. 3143 (1960). While this
definition might be viewed as supportive of Shen's position and the Ninth

Circuit's approach, we believe that the specialized purpose of the Fair Share
Law participation in the World Refugee Year in order to close out the D.P.
camps of Europe cuts against any interpretation of this enactment as a
pervasive declaration of immigration policy.
43

In 1963 and 1965, however, the Kennedy and Johnson Administrations

submitted many proposals for reform of the nation's basic immigration law, the
McCarran-Walter Act of 1952. Some of the proposed modifications were
directed at refugee problems. The Administration bills13 provided that the
President could reserve up to 10 per cent of the reserve quota of visas for
refugees who would not come within the Fair Share Law. As explained by a
State Department official, "[m]ost refugees are uprooted or flee from
persecution suddenly with no opportunity to plan for movement to a new home
through normal immigration procedures. In crises which create large numbers
of refugees, the political interest of the United States may make it desirable that
this country take a share of these new refugees."14 Accordingly, section 13 of
the Administration-sponsored bill was intended to remove the requirement that
refugees be within the mandate of the United Nations High Commissioner. The
House, although concerned about the number of entrants if the President was
allowed this flexibility with 10 per cent of the reserve quota of visas,
nevertheless accepted the basic premise of continuing to admit refugees and
giving the Executive authority to deal swiftly with new natural or political
upheavals. Thus, it cut the number of conditional entries available under what
became section 203(a) (7) to 10,200. See H.R.Rep. No. 745, 89th Cong., 1st
Sess. (1965) at 15, U.S.Code Cong. & Admin.News, p. 3328.

44

The Senate Committee on the Judiciary amended the bill passed by the House
by adding to it what is now section 203(a) (7) (B) the provision allowing
entry of aliens uprooted by catastrophic natural calamity. In discussing the
addition of this provision, the Senate Judiciary Committee Report cited and
quoted in full section 2(a) of the Refugee Relief Act of 1953, which included a
"natural calamity" provision and the language "[one] who has not been firmly
resettled" in defining "refugee."15 Sen.Rep. No. 748, 89th Cong., 1st Sess.
(1965) at 16.

45

Another theme important to this case emerges from the 1965 congressional
debates: the thought that repeal of the Fair Share Law and its reference to the
United Nations High Commissioner's mandate would once "again permit the
United States to determine who is or who is not a refugee." H.R.Rep. No. 745,
supra, at 15. See also remarks of Senator Edward M. Kennedy concerning H.R.
2580 [the bill passed by the House on August 25, 1965, and referred to and
passed by the Senate on September 22, 1965, with some changes, including

addition of the natural calamity provision] 111 Cong.Rec. 24,227, 89th Cong.,
1st Sess. (Sept. 17, 1965). This goal seems significant to us, particularly in light
of the language in the Act that an alien seeking adjustment of status under
section 203(a) (7) must satisfy an INS officer as to his eligibility. In passing on
refugee applications, officers have considered firm resettlement for many
years.16 Moreover, since section 203(a) (7) was adopted, the INS has continued
to determine whether aliens were firmly resettled, and this practice has been
reported on the floor of Congress.17 Congress has not given any indication that
this administrative practice and interpretation are contrary to its purpose. In
accord with the recognized standard for review of such administrative action,
we ought to give weight to a contemporaneous construction of a statute by
those charged with its administration. Udall v. Tallman, 380 U.S. 1, 85 S.Ct.
792, 13 L.Ed.2d 616 (1965); Chrysler Corporation v. Tofany, 419 F.2d 499,
511-12 (2d Cir. 1969).
46

We further hold that this construction of section 203(a) (7) is logical and
completely consonant with the overall scheme embodied in that section. Most
important here is the fact that the flexibility afforded to the Executive in
admitting refugees suffering from comparatively recent crises whether
political or natural would be all but destroyed if Shen's position were
accepted. The government is quite correct in asserting that the 10,200 entries or
visas per year afforded under section 203(a) (7) could be quickly exhausted by
aliens who have found relief by resettlement in new homes but who
nevertheless still wish to immigrate to the United States. As the government
points out, if this were allowed to happen "the real refugee, the homeless, will
go wanting."18

47

Finally, there are several decisions, including at least two at the district court
level in California which predate Yee Chien Woo v. Rosenberg, supra, which
have held that once an alien stops fleeing and becomes integrated in another
nation (i.e., firmly resettled) he is outside the scope of congressional concern
because he is no longer a refugee.19 At first glance, it might seem inappropriate
to impose such a time-frame upon applications under section 203(a) (7) since
that section does not even use the key word "refugee." However, as we have
pointed out, the legislative history is replete with direct assertions that this
section deals with refugees.20 We agree with the cases which define "refugee"
as one who is still in flight. We do not believe that Congress ever meant that
once someone has been a refugee he remains one for the rest of his life,
regardless of intervening events.

48

Shen's other claims that denial of his application was discriminatory and that
granting summary judgment and dismissing his complaint on the government's

motion were improper are without merit.

49

Affirmed.

Notes:
*

Sitting by designation

In his application, Shen stated that in 1948, "I and my family fled from the
oncoming Communist armies by ship to Taiwan." He also stated "I am an antiCommunist and will be persecuted, imprisoned or executed if I return to the
communist controlled mainland of China." This statement was made despite the
fact that Shen had earlier designated Taiwan as the place to which he wished to
be deported, and that the INS's request to surrender for deportation specified
Taiwan

Section 2(c) of the Displaced Persons Act of 1948

Section 2(a) of the Refugee Relief Act of 1953

Section 15(c) (1)

See text accompanying note 4,supra.

Section 1, 74 Stat. 504 (July 14, 1960)

See e. g., Matter of Rodriguez, 11 I&N Dec. 901 (1966); Matter of Sun, 12
I&N Dec. 36 (1966); Matter of Moy, 12 I&N Dec. 117 (1967); Matter of Moy,
12 I&N Dec. 121 (1967); Matter of Ng, 12 I&N Dec. 411 (1967); Matter of
Chai, 12 I&N Dec. 81 (1967); Matter of Hung, 12 I&N Dec. 178 (1967)

Yee Chien Woo v. Rosenberg,supra, was a declaratory judgment suit to review

the Los Angeles INS district director's denial of an application under section
203(a) (7). Yee Chien Woo was a native of the mainland of China, and in 1952
his substantial business and financial holdings were confiscated by the
Communist government. The Communist government granted him permission
to leave for a foreign visit, on condition that he would return. In 1953 he went
to Hong Kong, and never returned to Communist China. He began a trading
business in Hong Kong, married, and had a son. In 1959, he was admitted to the
United States as a temporary visitor for business purposes, to operate a
concession at the International World's Fair in Portland, Oregon. Later in 1959,
he returned to Hong Kong. In May, 1960, he reentered the United States as a

business visitor in connection with the San Diego Fair and International Trade
Mart. Thereafter, he remained in this country.
His temporary stay expired in March of 1966, but by this time his wife and son
had joined him by entering the United States as visitors for pleasure from
Canada. Deportation proceedings were commenced, and on March 8, 1966, Yee
Chien Woo and his family were granted voluntary departure. They did not
depart, but on that date applied for classification as refugees under section
203(a) (7).
The district director denied the application and the regional commissioner
affirmed. In the declaratory judgment action, it was recited that Yee Chien Woo
had expressed opposition to Communism and fear of persecution if he should
have to return to Communist China. It was also made clear that he possessed a
valid Hong Kong Certificate of Identity and that that was sufficient
documentation for him to return to Hong Kong.
The district court held that Yee Chien Woo "was never `firmly resettled' and
still qualifies as a refugee under the terms of section 203(a) (7). Accordingly,
the District Director erred in denying plaintiff's application." 295 F.Supp. 1370,
1372 (S.D. Cal.1968). The district court also noted that "[i]n reality, plaintiff
had no choice but to stay in Hong Kong until he could afford immigration as a
refugee," and that "[h]is feeling that Hong Kong might not be a safe place to
return to is not unfounded." Id.
9

The absurdity of applying the "not a national" language to aliens applying

under the proviso is demonstrated by the fact that the requirement would
always be satisfied by an alien who had overstayed his temporary admission to
the United States. The Ninth Circuit interpreted the Act to say, in effect, "not a
national of the intermediate host country to which he has fled from his home
country." See 419 F.2d at 254. However, here the language of the Act is quite
clear; section 203(a) (7) (A) (iii) states "not nationals of the countries or areas
in which their application for conditional entry is made." Even if one could
properly construe this language as applicable to applicants under the proviso, it
would dictate merely that the alien could not be eligible if he was a national of
the United States, the country in which his application was made

10

This term, as stated earlier, was used as defined in section 15(c) (1) of the 1957
Act. See text accompanying note 4,supra.

11

See text accompanying note 9,supra.

12

For a discussion of the formula to be used in arriving at the number of refugees

to be admitted, see Sen.Rep. No. 1651,supra, at 22-25.

13

H.R. 2580, 89th Cong., 1st Sess. (1965); S. 500, 89th Cong., 1st Sess. (1965)

14

Testimony of Abba P. Schwartz, Administrator, Bureau of Security and

Consular Affairs, in Hearings before Senate Subcommittee on Immigration of
Senate Judiciary Committee on S. 500, at 173. Mr. Schwartz' point was
reiterated in the House Judiciary Committee's Report, H.R.Rep. No. 745,supra,
at 15, which stated:
"This new section of the law will permit the President to act immediately, if the
situation so requires, to come to the aid of refugees as defined in this bill."

15

See text accompanying note 3,supra.

16

See cases cited note 7,supra, and note 19, infra.

17

See remarks of Congressman Feighan, 113 Cong.Rec. 22787-88, 90th Cong.,

1st Sess. (Aug. 16, 1967), which includes reading into the record a report of
Raymond F. Farrell, Commissioner of INS, setting forth statistics on the
operation of section 203(a) (7) for the six-month period ending June 30, 1967.
The report shows that 53 applications were rejected during that period under
"established screening procedures" because the aliens were "firmly settled."
See also, a similar report read into the record by Congressman Feighan, 114
Cong.Rec. 1177-78, 90th Cong., 2d Sess. (Jan. 29, 1968), for the six-month
period ending December 31, 1967

18

An argument of this type was rejected by the Ninth Circuit, but from that
court's opinion it is unclear if the government pressed it in terms of the
flexibility which was to be afforded to the Executive in dealing with sudden
crises as they arise. The opinion of the Ninth Circuit states:
"The Service insists that Congress cannot have intended that `once a refugee';
that this `literally would make thousands upon thousands of aliens, formerly
refugees and firmly resettled in host countries eligible to apply for conditional
entry.' But Congress appears to have met this possibility by specifically
limiting [to 10,200] the number of those who can claim conditional entry under
the `Seventh Preference.'" 419 F.2d at 254.
Whatever the propriety of this rejection of the government's "floodgates"
argument in Yee Chien Woo v. Rosenberg, we find the more sophisticated
argument presented to us on the need for Executive flexibility, supported as it is

in the legislative history, most persuasive.

19

See Min Chin Wu v. Fullilove, 282 F. Supp. 63 (N.D.Cal.1968); Ou Young v.

District Director, Civil No. 68-1563-F (S.D.Cal. Dec. 24, 1968); Yee Chien
Woo v. Rosenberg, 295 F.Supp. 1370 1372 (S.D.Cal.1968). Cf. Leong Leun Do
v. Esperdy, 309 F.2d 467 (2d Cir. 1962) at 471-472 (discussing "resettlement"
under the Refugee Relief Act of 1953; id. at 475-477) (Lumbard, J.,
concurring). See also S.Rep. No. 748, 89th Cong., 1st Sess. 16, 17 (1965)

20

See text accompanying notes 13-16,supra.