Interim Decision #1827
MA21221 OF LAIJ
In Deportation Proceedings
A-15984947
Decided by Board Jaruaary 6, 1968
(1) An order to show cause is not defective for failure to specify the country
of deportation and the subdivision of section 243(a) of the Immigration and
Nationality Act under which designated.
(2) Where respondent did not designate a country of deportation and wee thereafter ordered deported to Formosa, the country of his citizenship, and alternatively to Hong Kong, there was no abuse of discretion by the special inquiry
officer in designating Hong Kong as the alternate country of deportation since
the record shows that respondent resided in Kong Kong from 1957-1067; that
be left Hong Kong to join the'veaser which brought him to the United States
as a crewman; and that he is in possession of a seaman's identity book and
a seaman's discharge book issued to him by the government of Hong Kong.
CHARGE:
Order: Act of 1952—Section 241(a) (2) (8 U.S.C. 12513—Nonimmigrant
(crewman)—remained longer.
ON Emma or RESPONDENT: ON Smuts or REMICK :
Jules E. Coven, Esquire Irving A. Appleman
Lebenkoff & Coven Appellate Trial Attorney
1 Bast 428 StroPt
New York New York 10017
The special inquiry officer, in a decision dated July 6, 1967, granted
the respondent the privilege of voluntary departure, but provided for
his deportation from the United States to the Republic of China on
Formosa, alternatively to Hong Kong, on the charge contained in
the order to show cause, in the event of his failure to so depart. The
appeal from that decision, which brings the case before this Board
for consideration, will be cligpliizsed.
The record relates to a male alien, approiimately 24 years of age,
who was born on the mainland of China. He last entered the United
States on or about February 11, 1967. He was then admitted as a nontipigrant crewman for the period of time his vessel was to remain. in
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United States ports, but in no event to exceed 29 days. He has
remained in the United States since the expiration of the temporary
period of his admission without authority.
The foregoing establishes the respondent's deportability on the
above-stated charge. This has also been conceded. The point, therefore,
needs no further discussion.
The special inquiry officer has granted the respondent the privilege
of voluntary departure. Suffice it to say, in this connection, that the
record before us supports said official's action in this respect.
It is immaterial that the order to show cause on which these proceedings are predicated did not specify the country to which the Government would request respondent's deportation. There is no requirement
that the order state the section of the statutory provision under which
the Government would proceed in this connection. Our reasons for
rejecting this argument follow.
A proceeding before the special inquiry officer under an order asserting that the alien is to show cause why he should not be deported under
'certain sections of the Immigration and Nationality Act is merely investigative. It does not amount to an order of deportation. It does no
more than obtain direct jnrisqiction over the person of the alien, and
se% in motion an inquiry which may follow broad lines (see Haymes v.
Landon,115 F. Supp. 506).
If deportability is not established, then the question of place of
deportation becomes moot. Practically speaking, then, the procedure
desired by counsel would constitute "putting the cart before the horse."
A warrant of deportation, which issues only after deportability has
been established and discretionary relief questions disposed of, is not
required to set forth the country to which an alien is to be deported
(see Mee Hoek Chan v. Burney, 206 F. Supp. 894; and .1749 v. Kennedy,
292 F. 2d 140.A fortiori, there is no such requirement insofar as
an order to show cause, which merely institutes the proceedings, is
concerned.
We also reject the respondent's other argument, to wit: that the
speCial *quiff officer improperly designated Hong Kong as the alternate place of the respondent's deportation. The reason is that the procedure followed by the special inquiry officer complies strictly with the
controlling statute, which is section 243 (a), Immigration and Nationality Act; 8 U.S.C. 1253 (see Hom Bin v. Evenly,
209 F. Supp. 3).
Step #1 of the statute provides that an alien shall be deported to a
country designated by him if that country is willing to accept him.
Here, however, the alien failed to make such a designation. Therefore,
step #2of the statute had to be taken.
Such step contemplateSthe deportation of an alien to the country of
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which he is a subject national or citizen, if such country is willing to
accept him Here, the special inquiry officer has correctly concluded
that the respondent is a citizen of the Republic of China on Formosa
(see Ng Kam Fook v. Esperdy, 320 F. 2d 86) . Also, the special inquiry
officer has conditioned this portion of his order upon the Republic of
China on Formosa advising that it will accept'the respondent. If it
does not, then his deportation shall be effected as provided by step #3
of the statute.
That step allows for the alien's deportation to any one of seven
categories of countries within. the discretion of the Attorney General.
In this connection, the statute itself specifically points out that there
is no necessity for giving any priority or preference because of the
order of the countries referred to therein. One of those countries is
the one where the alien resided prior to entering the country from
which he entered the United States.
In connection with the foregoing, the record demonstrates that the
respondent resided in Hong Kong from 1957 until 1967. He left Hong
Kong to join the crew of the vessel which eventually brought him to
the United States. He is in possession of a seaman's identity book issued
to him by the government of Hong Kong, and he is also in possession
of a seaman's discharge book issued to him by the government of
Hong Kong.
Under these circumstances, the special inquiry officer was proceeding
within the scope of the statute when he designated Hong Bong as the
first alternate country of deportation for the respondent (he Peo
Timm v. Kennedy,
293 F.2d 543), and we find no basis for a possible
claim of abuse of discretion on 'his part in doing so. Moreover, the
respondent could have resolved the difficulties which he now stresses
by designating a country to which he.preferred to be deported, but
this he refused to do.
In conclusion, no claim of fear of possible persecution has been
raised in connection with the respondent's deportation to Formosa
or Hong Kong, either before the special inquiry officer or this Board.
No further comment in this respect is required.
ORDER: It is ordered that the appeal be dismissed.
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