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CHIM MING v. SOL MARKS

November 27, 1973

Chim MING, Plaintiff,
v.
Sol MARKS, as District Director of the Immigration and Naturalization Service for the District of New York, and William P. Rogers, as Secretary of State of the United States of America, Defendants. LAM YIM YIM et al., Plaintiffs, v. Sol MARKS, as District Director of the Immigration and Naturalization Service for the District of New York, Defendant


Robert L. Carter, District Judge.


The opinion of the court was delivered by: CARTER

MEMORANDUM OPINION

ROBERT L. CARTER, District Judge.

 The plaintiffs in these two cases have petitioned the court for a preliminary injunction staying deportation orders now pending against them and the Government has cross-moved for summary judgment. The plaintiffs, *fn1" Chinese aliens arriving in this country as seamen on ships out of Hong Kong, seek asylum here as refugees under the provisions of the United Nations Protocol Relating to the Status of Refugees (hereinafter "the Protocol"), 19 U.S.T. 6223, T.I.A.S. No. 6577, and the 1951 Geneva Convention Relating to the Status of Refugees (hereinafter "the Convention"), 19 U.S.T. 6259, T.I.A.S. No. 6577.

 The jurisdiction of this court is invoked pursuant to 5 U.S.C. §§ 702-706, 8 U.S.C. § 1329 and 28 U.S.C. § 2201 et seq. The Government does not contest jurisdiction. In an action similar to this, Kan Kam Lin v. Rinaldi, 361 F. Supp. 177 (D.N.J. 1973), jurisdiction was found to exist pursuant to 8 U.S.C. § 1329. I follow the holding in that case on this point and find that jurisdiction is properly asserted. And see Buckley v. Gibney, 332 F. Supp. 790 (S.D.N.Y.), aff'd, 449 F.2d 1305 (2d Cir. 1971), cert. denied, 405 U.S. 919, 92 S. Ct. 946, 30 L. Ed. 2d 789 (1972).

 I

 Factual Background2

 Chim Ming:

 Chim Ming was born in China in 1919 and maintained continuous residence there until 1955. He then migrated to Hong Kong, was issued appropriate papers, became a seaman and was so employed from 1955 to 1967. Plaintiff's wife and three of his children remain in China and a fourth child lives in Hong Kong. In April 1967, after deserting his ship in Newark, New Jersey, he was permitted to enter this country as a non-immigrant crewman authorized to remain for a period of twenty-nine days. Section 252 of the Immigration and Nationality Act (hereinafter "the Act"), 8 U.S.C. § 1282.

 The plaintiff did not depart this country at the end of the authorized 29-day stay. He was apprehended on January 26, 1968, and deportation proceedings were begun. At the hearing plaintiff conceded deportability and by order of the Special Inquiring Officer, dated February 9, 1968, he was ordered deported. After being released on bond Chim Ming failed to surrender for deportation and was not again apprehended until 1972. Provisions were made for his deportation on December 1, 1972, but on November 24, 1972, plaintiff submitted a request for political asylum. A hearing on this application was held and pursuant to then current procedures, the Department of State was asked for an advisory opinion. The Department concluded that since plaintiff had not demonstrated that he was a political refugee, his deportation was appropriate.

 The plaintiff was notified on January 16, 1973, that his request for asylum had been denied but that he could request a temporary stay of deportation pursuant to § 243(h) of the Act, 8 U.S.C. § 1253(h), if he could establish that he would be subject to persecution in Hong Kong. Plaintiff concedes he is not entitled to relief under this section and has instituted this action to prevent deportation under the provisions of the Protocol and the Convention. The court has issued a temporary restraining order with the Government's consent, enjoining deportation until these issues are resolved.

 Lam Yim Yim:

 Lam Yim Yim was born in China in 1933 and lived there until 1961 when he entered Hong Kong. His wife, parents and five children remain in China. The plaintiff was permitted to enter this country as a non-immigrant crewman while his ship was in port for a period not to exceed 29 days. Section 252 of the Act, 8 U.S.C. § 1282. The plaintiff, after entry, deserted his ship and remained in this country beyond the authorized period.

 Lam Yim Yim was apprehended on September 21, 1972 in New York City and deportation proceedings were begun, culminating in a hearing on October 3, 1972 at which plaintiff conceded deportability. The Special Inquiring Officer found him deportable and granted his request of voluntary departure no later than November 15, 1972. The plaintiff did not leave this country as required and on March 16, 1973 a warrant of deportation was issued against him.

 On March 27, 1973 Lam Yim Yim submitted a request for political asylum and a hearing was held on that application on April 2, 1973. Unlike the case of Chim Ming, the Immigration and Naturalization Service, without consultation with the Department of State, concluded that the plaintiff was not a political refugee. *fn3" On April 9, 1973 Lam Yim Yim was notified of this decision and advised of his right to seek further relief pursuant to Section 243(h) of the Act, 8 U.S.C. § 1253(h), as a person subject to persecution in Hong Kong. Plaintiff, conceding the inapplicability of that statute to his case, initiated this action seeking relief pursuant to the Protocol and the Convention. The court has temporarily restrained deportation, with the Government's consent, pending determination of the issues raised here.

 II

 The Protocol and The Convention

 On October 4, 1968, the United States Senate approved, effective November 1, 1968, the United Nations Protocol Relating to the Status of Refugees. 19 U.S.T. 6257. The Protocol provides in Article 1 that except for certain technical alterations:

 
"1. The States Parties to the present Protocol undertake to apply articles 2 to 34 inclusive of the Convention [relating to the Status of Refugees] to refugees as hereinafter defined."

 The Convention (as modified by the Protocol) defines a "refugee", in Article 1, A(2), as any person who

 
"owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."

 Article 32 of the Convention, made applicable to the United States through the Protocol, ...


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