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UNITED STATES EX REL. SHUNG v. MURFF

July 29, 1959

UNITED STATES of America ex rel. TOM WE SHUNG, Relator,
v.
John L. MURFF, as District Director of the Immigration and Naturalization Service of the United States, Department of Justice, for the District of New York, or such person, if any, who may have said Relator in custody, Respondent



The opinion of the court was delivered by: WEINFELD

Tom We Shung, the relator, by this habeas corpus proceeding, challenges the validity of an exclusion order which directs his deportation to the mainland of China via Hong Kong. This attempt to execute the exclusion order is the culmination of more than eleven years of litigation before the immigration authorities and the Courts, in which Shung unsuccessfully contended that he was entitled to admission to the United States as the minor son of Tom Wing, an American citizen and an honorably discharged veteran of World War II. *fn1"

Shung, a native of China, arrived at San Francisco in November 1947. His claim that he was derivatively entitled to admission was referred to a Board of Special Inquiry which, after a hearing, found that he had failed to establish satisfactorily that he was the blood son of Tom Wing. Accordingly, Shung was denied admission in February 1949 and ordered excluded. There followed a long series of litigated activities before administrative agencies and the Courts. Detailed reference to these is necessary in view of relator's contention that notwithstanding prior adverse rulings, he is, nonetheless, entitled at this time to a de novo hearing to establish his immigration status.

The order of the Board of Special Inquiry was confirmed by the Commissioner of Immigration and Naturalization in April 1949. The Board of Immigration Appeals, in July 1949, dismissed the appeal. In December 1949 the Board denied Shung's application to reopen the hearing and to reconsider the matter. It found that proffered new evidence, of a documentary nature, 'in no wise reconciled the many discrepancies contained in the evidence in the record'.

 The relator's efforts to gain admittance then shifted to the Courts. In 1952 he instituted an action for a declaratory judgment *fn2" and to review the determination of the Board under section 10 of the Administrative Procedure Act. *fn3" He advanced various contentions, attacking both the procedural aspects of the hearings and the findings by the Board of Special Inquiry. All were rejected by the District Court which found that Shung had been accorded a fair hearing and that the record justified the action taken. *fn4" The Court of Appeals affirmed the judgment and expressly agreed with the conclusion of the District Court. *fn5" Interestingly, although the Court of Appeals determined the matter upon the merits, it noted a question as to Shung's right to test the validity of the exclusion order by a declaratory judgment action instead of by a habeas corpus proceeding. The postured question was answered by the Supreme Court which vacated the judgment, and directed dismissal of the complaint on the ground that the only remedy available to an excluded alien was a writ of habeas corpus. *fn6"

 In the meantime, the Immigration and Nationality Act of 1952 had become effective. Based upon that act and the Supreme Court's decision in Shaughnessy v. Pedreiro, *fn7" Shung instituted a second declaratory judgment action in the District of Columbia, making the same contentions and seeking the same relief as in the first action. His complaint was dismissed on the ground that habeas corpus still was the sole remedy available. The Court of Appeals reversed, *fn8" and the Supreme Court affirmed, holding that under the Immigration and Nationality Act of 1952 the validity of exclusion orders, as well as expulsion orders, was subject to challenge either by declaratory judgment or by habeas corpus. *fn9"

 The relator did not confine his efforts to gain admission to the Courts. While his first declaratory judgment action was pending in the Court of Appeals, he moved for reconsideration, and attacked the validity, of the exclusion order upon additional grounds. These were considered by the Board of Immigration Appeals and rejected in August 1953. In 1957 still another motion was made for reconsideration. This time the Board granted his application. *fn10" A further hearing was conducted before a Special Inquiry Officer. Blood test evidence was received, additional documentation offered, and further testimony taken. In December 1957 the Special Inquiry Officer filed his opinion, in which it was found again that the relator was excludable. The Board of Immigration Appeals sustained the order of exclusion in May 1958.

 During the long course of the administrative and judicial proceedings, Shung has been at liberty in the United States. *fn11" He was released from custody upon bond in September 1948 and remained at large until September 1958 when he was taken into custody for the purpose of effecting his exclusion. *fn12" Thereupon, the present habeas corpus proceeding was instituted.

 Before considering the relator's various contentions, it is important to emphasize that the instant case is governed by the exclusion and not the expulsion provisions of the Immigration Act. The return of aliens who seek and who are denied admission into the United States is governed by the exclusion provisions, whereas the deportation of aliens who have already gained admission, whether legally or illegally, is governed by the expulsion provisions of the act. *fn13" Congress has set up different procedures and remedies for dealing with each of these two well-defined classes of aliens.

 Shung, in contemplation of law, has never been in the United States. The fact that since September 1948 he has been at large on bond under an administrative order and for eleven years enjoyed what has euphemistically been referred to as a 'temporary haven' *fn14" within the United States while he litigated his claim for admission, did not alter his status as an excluded alien. *fn15" However one may view the fiction, he is still, in theory of law, 'on the threshold of initial entry'. *fn16" Thus, Shung's various contentions must be considered within the confines of the relevant exclusion provisions of the law.

 Shung first contends that he is entitled to 'a hearing de novo under this Writ to establish his immigration status'. The fundamental fact question of his status -- whether or not he is the blood son of Tom Wing -- upon which rests his son of Tom Wing -- upon which rests his by the Congress to an administrative agency. Shung already has had two full hearings, the first in 1949 and the second in 1957, when his matter was reopened and new evidence received. In each instance the initial adverse ruling was followed by an administrative appeal, with no change in result. Other than to reiterate his claim, repeatedly rejected, that he is entitled to admission as of right as the blood son of Tom Wing, he advances in this proceeding no other reasons to support his demand for a de novo hearing.

 The scope of judicial review is the same whether the challenge to the exclusion order is by way of the ancient writ or, as recently extended, by a declaratory judgment action. *fn17" Such review under existing law is limited. The procedure authorized by Congress reflects the standard of due process. *fn18" This is unlike the rule applied in expulsion cases where the alien enjoys a constitutional right to due process -- a right which may not be disregarded by Congress in establishing procedures. *fn19" Thus, in the instant case, judicial inquiry is limited to whether the statutory procedures which govern exclusions have been observed and whether Shung has been accorded a fair hearing thereunder. If so, the administrative determination is conclusive. *fn20"

 Upon the record now before the Court, there is no basis for any charge that the procedural processes authorized by the Congress have not been followed or that petitioner was not accorded a fair hearing by the Boards of Special Inquiry on his asserted immigration status. Moreover, the petition herein is devoid of any allegation of fact which impugns the administrative procedures or challenges the fairness of the hearing. Clearly, there is no basis for a hearing de novo.

 Shung next contends that before he may be deported to the mainland of China under the exclusion order, there must be affirmative documentation from the Communist Government that it is willing to accept him. No such proof has been presented. The attempt to effectuate the order of exclusion is in accordance with existing procedures of the Immigration Service. Our Government has received advice from the British Crown Colony at Hong Kong that it has granted Shung a 48-hour transit visa for Hong Kong en route to the mainland of China. It is contemplated that he will be taken by British authorities from Hong Kong to the Chinese border and there presented for admission into that country. Should Shung be denied admission, the Government represents that, at its expense, he will be returned to the United States.

 The statutory procedures for effecting exclusion are markedly different from those which apply in expulsions. Deportation of an excluded alien is governed by section 237(a) of the Immigration and Nationality Act which simply provides that such an alien 'shall be immediately deported to the country whence he came * * *'. *fn21" There is ...


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