The opinion of the court was delivered by: KAUFMAN
Plaintiff, a native and citizen of the Chinese mainland, brought this action pursuant to the Administrative Procedure Act, 5 U.S.C.A. 1001 et seq. to review the determination of the Attorney General that he is deportable to Hong Kong. He seeks an injunction restraining the defendant from executing an order and warrant for his deportation and a declaration that he is entitled to a hearing on the issue of his deportability to the Chinese mainland. The case is now before me on plaintiff's application for an injunction pendente lite. The proceedings were instituted by an order to show cause containing a temporary stay.
The plaintiff last entered the United States, as a crewman, on September 3, 1956. He has admitted that his entrance was permitted only on a temporary basis and that he illegally overstayed the authorized period. On January 31, 1958 a deportation hearing was held, before a Special Inquiry Officer, during which plaintiff conceded his deportability. At that time plaintiff stated that in the event his deportation was ordered, he desired to be sent to the place of his birth, the mainland of China.
This selection was made pursuant to 8 U.S.C.A. § 1253(a) which sets up a method for determining the country to which a deportable alien is to be sent. The statute provides that in the first instance the alien shall be deported to '* * * a country promptly designated by the alien if that country is willing to accept him into its territory * * *.' Thus, had plaintiff taken no action subsequent to his designation of the mainland of China, the Attorney General might have been under a duty to communicate with the Chinese Communist government, before deporting the plaintiff, in order to determine whether that government would receive him. See United States ex rel. Tom Man v. Shaughnessy, D.C.S.D.N.Y.1956, 142 F.Supp. 444. (appeal now pending).
However, on October 27, 1958, plaintiff submitted an application for the withholding of his deportation to China on the ground that he would be subject to persecution there. 8 U.S.C.A. § 1253(h). In paragraph 2 of this application plaintiff stated: 'Your deponent desires to point out that he designated the mainland of China as it existed before the Communists occupied the same * * *.'
On the basis of this formal request by plaintiff, not to be sent to the Chinese mainland, the Immigration and Naturalization Service (hereinafter 'Service') considered his original designation withdrawn. The Service, therefore, did not proceed under that portion of Section § 1253(a), requiring deportation to a country of which the alien is a 'subject national, or citizen' because those words described the country to which plaintiff has specifically requested not to be sent in his application of October 27, 1958. The Service then proceeded in accordance with the final portion of the subsection which provides that if the country of nationality or citizenship is not willing to accept the alien:
'deportation shall be directed by the Attorney General within his discretion and without necessarily giving any priority or preference because of their order as herein set forth either --
(1) to the country from which such alien last entered the United States;
(2) to the country in which is located the foreign port at which such alien embarked for the United States or for foreign contiguous territory;
(3) to the country in which he was born;
(4) to the country in which the place of his birth is situated at the time he is ordered deported;
(5) to any country in which he resided prior to entering the country from which he entered the United States;
(6) to the country which had sovereignty over the birthplace of the alien at the time of his birth; or
(7) if deportation to any of the foregoing places or countries is impracticable, inadvisable, or impossible, then to any country which is willing to accept such alien into its territory.'
The Service determined that the plaintiff was deportable to Hong Kong under subsections (5)