The opinion of the court was delivered by: LEVET
Plaintiffs are aliens, natives and citizens of China, who last entered the United States on April 11, 1965. On separate occasions they were admitted into the United States as non-immigrant crewmen authorized to remain for the period of time their respective ships remained in port, not to exceed twenty-nine days. Both remained beyond the twenty-nine day period without authority and, after being located, were granted the privilege of voluntary departure. On their failure to depart they were ordered deported to Hong Kong.
The plaintiffs then, each claiming to be a refugee from Communist China who had fled from that country because of persecution or fear of persecution, sought stays of deportation in order to make an application for classification as refugees pursuant to Section 203(a)(7) of the Immigration and Nationality Act, as amended, (hereinafter "The Act"), 8 U.S.C. § 1153(a)(7), because, as they alleged, such an application cannot be made in Hong Kong since no office is set up there for that purpose with the result that the United States is the only place available to the plaintiffs where such an application may be made. The defendant District Director denied such stays of deportation on three grounds: first, that as crewmen plaintiffs may not adjust their status in the United States under 8 CFR § 245.1; second, that, even if their respective applications under Section 203(a)(7) were to be approved, it would still be necessary for the plaintiffs to leave the United States; and, third, that insofar as plaintiffs sought to apply for classification as refugees under Section 203(a)(7) and thus to qualify for conditional entry into the United States, such application must be made outside the United States under 8 CFR § 235.9.
Plaintiffs, then, alleging that the denial of the stay was arbitrary, capricious, an abuse of discretion, illegal, and in violation of the law, brought this action seeking a judgment declaring that they are entitled to a stay of deportation pending the determination as to their classification as refugees pursuant to Section 203(a)(7) of the Act. The defendant District Director now moves for summary judgment dismissing the complaint. On this motion, the District Director relies solely on the third alternative ground for denying plaintiffs' application for stays of deportation - that is, that the conditional entries which plaintiffs seek may not be obtained in the United States.
Section 203(a)(7) specifically provides that conditional entries shall be made available by the Attorney General "pursuant to such regulations as he may prescribe." Under that authority, 8 CFR § 235.9
was promulgated and provides in pertinent part:
"§ 235.9 Conditional entries.
"(a) Countries in which applications may be filed. Pursuant to agreements entered into with the governments of the countries concerned, officers of the Service are authorized to accept applications and to examine the qualifications of applicants for conditional entry under section 203(a)(7) of the Act in Austria, Belgium, France, Germany, Greece, Italy, and Lebanon. Applications for conditional entry may be filed only by aliens who are physically present within one of the designated countries.
"(c) Application. A separate application for conditional entry under section 203(a)(7) of the Act shall be executed and submitted by each applicant on Form I-590 to the officer in charge of the nearest Service office outside the United States. Each applicant under this paragraph shall appear in person before an immigration officer and excepting a child under 14 years of age shall, prior to the adjudication of his application, be interrogated under oath concerning his eligibility for conditional entry into the United States. * * * The approval of an application by an officer in charge outside the United States authorizes the district director at a port of entry to effect the conditional entry of the applicant upon arrival at such port within 4 months after the date of the approval. * * *
Plaintiffs contend that the above-quoted regulation, 8 CFR § 235.9, is invalid in that it requires that an application for conditional entry pursuant to Section 203(a)(7) be made outside the United States.
Section 203(a)(7) permits conditional entries for:
"* * * 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; * * * 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 ...