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UNITED STATES EX REL. PON v. ESPERDY

February 25, 1969

UNITED STATES ex rel. Louie PON, Relator,
v.
P. A. ESPERDY, District Director for the New York District, Immigration and Naturalization Service, United States Department of Justice, Respondent



The opinion of the court was delivered by: WYATT

WYATT, District Judge.

 This is a petition by an alien, Louie Pon, for a writ of habeas corpus. The petitioner was in custody pursuant to an order of deportation and sought to "obtain judicial review thereof". 8 U.S.C. § 1105a(a)(9). The writ was allowed on April 10, 1968, and duly issued that day. By order filed on the following day, Pon was ordered released from custody by Judge Tyler under $1500 bond pending determination of this petition. That petitioner is no longer in physical custody but under a bail bond does not affect the jurisdiction of this Court to decide his petition. Jones v. Cunningham, 371 U.S. 236, 83 S. Ct. 373, 9 L. Ed. 2d 285 (1963).

 For the reasons given hereafter, the relief sought by the petition will be granted and the petitioner ordered to be discharged from the custody of respondent.

 The surname of petitioner is Louie and his given name is Pon. He will be referred to hereafter in short as "Pon". Apparently Chinese in this country sometimes put the surname first, sometimes last.

 Pon is a citizen of China who entered the United States at San Francisco under a false name on September 9 or 10, 1948, and who falsely represented himself to be a citizen of the United States. Aliens arriving at the United States are subject to inspection by immigration officers to determine whether they belong to excluded classes (8 U.S.C. §§ 1222-1225). By falsely representing himself as a citizen, Pon entered "without inspection" and was thus subject to deportation under 8 U.S.C. § 1251(a)(2). Ben Huie v. I & N Service, 349 F.2d 1014, 1017 (9th Cir. 1965).

 Pon was born in 1920 in Soon Wah village, Kwangtung Province, China. Canton is the capital of Kwangtung Province. Soon Wah must not be far from Canton but Pon speaks a "Toyshan" dialect rather than the Cantonese; possibly "Toyshan" is what appears on the map (Rand McNally International World Atlas, p. 34) as "Taohsien".

 The father and mother of Pon were born in China but the father had lived in the United States for some years before returning to China. Pon had two older brothers (Thomas and Lee) and two sisters (one of the sisters went to Indonesia and the other remained in China; they do not seem to figure in the relevant history).

 Pon was married in his native village in 1936 and had three children, the oldest and youngest being girls and the middle child a boy.

 Thomas Louie, an older brother of Pon, came to the United States in 1928. He went to school in New York City and for many years has had a laundry here; for some time he has lived in Far Rockaway with his wife and three children, born in New York. He went back to China in 1933, married his wife there in 1933 and returned to New York in 1937; his wife joined him here in 1948. Thomas served in the United States Air Force in the period 1942-45.

 Louie Lee, the other older brother of Pon, also came to the United States. Not much is in the record about Lee but it appears that he has lived in Far Rockaway for a number of years, has his own laundry there, and served in the Armed Forces of the United States.

 Pon's father died in China about 1945.

 As already noted, Pon came to the United States in September 1948. He came to New York City in December 1948, has lived here ever since, and for at least the last 15 years has lived at the same address, 156 West 143rd Street, where he has had a laundry. He has not left the United States since his arrival here.

 In 1950 Pon registered for military service with his Selective Service Local Board; at first classified 1-A, about a month later he was classified 4-F.

 About 1958 Pon's mother, wife and his two younger children left China and went to Hong Kong. Apparently Pon supports his wife and two children from his earnings here; he and his two brothers, or some combination, support the mother. Pon's oldest daughter is married and lives in Canton in China; her husband lives in Hong Kong.

 In January 1962, Pon and his two brothers confessed their illegal entry into the United States to the Immigration and Naturalization Service (the Service); they admitted that they were subject to deportation. Their objective was evidently to secure an adjustment of their status to that of aliens "lawfully admitted for permanent residence", as provided in 8 U.S.C. § 1254(a). Their confessions were doubtless brought about by the "Chinese Confession Program" of the Service. See (1962) 2 U.S. Cong. and Adm.News 4026, 4027.

 The two older brothers, Thomas and Lee, have accomplished their objective, obtained an adjustment of their status, and for some time have been citizens (by naturalization) of the United States.

 Pon has failed to accomplish his objective because of the finding of the Service that his "attitude toward the bearing of arms, and toward the Communist government of China raised a question as to his loyalty and attachment to our Government" (opinion ...


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