Cheng Fan Kwok v. Immigration and Naturalization Service

PETITIONER: Cheng Fan Kwok
RESPONDENT: Immigration and Naturalization Service
LOCATION: WAFB TV

DOCKET NO.: 638
DECIDED BY: Warren Court (1967-1969)
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 392 US 206 (1968)
ARGUED: May 02, 1968
DECIDED: Jun 10, 1968

Facts of the case

Question

Media for Cheng Fan Kwok v. Immigration and Naturalization Service

Audio Transcription for Oral Argument - May 02, 1968 in Cheng Fan Kwok v. Immigration and Naturalization Service

Earl Warren:

Number 638, Cheng Fan Kwok, Petitioner, versus Immigration and Naturalization Service.

Before we start on the other case gentlemen, I would like to express my appreciation to Mr. Bring for representing this indigent defendant at the assignment of this Court that's a very important service and we recognize it as a public service and we thank you for your service.

And also Mr. Martin, we thank you for the diligent and efficient manner which you represented the Government.

John S. Martin, Jr.:

Thank you.

It's an honor.

Earl Warren:

Thank you, gentlemen.

Mr. Coven.

Jules E. Coven:

May it please -- Mr. Chief Justice, may it please the Court.

This is an appeal from a denial of a petition to review an application for stay of deportation made to the District Director of the Immigration Service in New Jersey by the Court of Appeals on the basis that pursuant to Section 106 (a) of the Immigration and Nationality Act, the Court of Appeals did not have original, initial jurisdiction of this matter and that the case properly belonged in the District Court.

I think we first must go into the facts in the matter to see how the case arose and why it was started in the Court of Appeals rather than the District Court.

The petitioners, a native and citizen of China, went to the United States as a crewman in 1965.

He had a deportation hearing in March of 1966 and was ordered deported, granted the privilege of voluntary departure.

The only relief available to him under the Immigration Law and took -- made one objection to the government procedure during the deportation hearing and an appeal was taken to the Board of Immigration Appeals.

The appeal to the Board of Immigration Appeals is not an issue here, however, after the alien did not depart from the United States when his voluntary departure time ran out, he was ordered to surrender for deportation to Hong Kong.

To go back a little bit in October of 1965, there was a broad base amendment to the Immigration and Nationality Act.

And for the first time, there was a permanent refugee provision written into the law, to with 203 (a) (7) of the Immigration and Nationality Act.

Pursuant to this section, provision was made for refugees from Communist-dominated countries to make application for admission into the United States and that is to give them a visa number.

There was no permanent provision in the Immigration Law prior to this.

The alien being a crewman, was not able to adjust pursuant to Section 245 of the Immigration and Nationality Act, filed an application with the district director in Newark, New Jersey for a stay of the execution of his deportation order on the ground that Section 203 (a) (7) said that a person could apply for relief to be classified as a refugee in any non-Communist dominated country.

Peculiarly enough, the administrative regulations set up only seven offices throughout the world and none in the orient.

They set up offices in Austria, Germany and some other countries in Europe.

The alien, therefore, felt agreed by not being able to apply for relief as a refugee any place in the world, any place that he possibly could get through in the world.

His only course of action was to sue the Government to declare the regulations invalid and that his deportation be stayed until either one of two things happened.

One, the district director in Newark, New Jersey rule on his application for classification as a refugee; or two, the Government would be directed to set up an office in Hong Kong or in somewhere in the orient where he would have the right to apply for relief as a refugee.

When he submitted his application for the stay of deportation, there was no claim made that the order made in his deportation hearing was improper in any way.

The sole claim of the petitioner was that the Government was improperly denying him an opportunity to apply to get an immigrant visa to the United States.

Theoretically under the classification program, he would have been paroled into the United States if his application had been granted.

The action started in the Circuit Court of Appeals for the Third Circuit pursuant to Section 106 (a) of the Immigration and Nationality Act.

This is a statute which came down about five or six years ago and has been the source of constant litigation in the different circuits in the United States.

The Lee case in the field is the case decided by this Court's Foti versus Immigration and Naturalization Service.