Interim Decision #2693
MATTER OF CHEUNG
In Deportation Proceedings
A-16032302
Decided by Board March 28, 1979
(1) In Matter of S—Y—L--, 9 I. & N. Dec. 575 (BIA 1962), it was held that an alien who
was born on the Chinese Mainland could be ordered deported to Formosa (Taiwan) as
the country of nationality under the provisions of section 243(a) of the Immigration and
Nationality Act because the United States recognized the Nationalist Government as
the legal government of China.
(2) In a Joint Communique on the Establishment of Diplomatic Relations Between the
United States and the People's Republic of China issued on December 15, 1978, President Carter announced the recognition by the United States of the government of the
People's Republic of China as the sole legal government of Chino..
(3) As Matter of S—Y—L— may no longer be considered valid law, the proceedings are
remanded so that the Immigration and Naturalization Service may reformulate its
policy regarding the designation of county of deportation in cases involving natives and
citizens of China.
CHARGE:
Order: Act of 1952—Section 241(a)(2) 18 U.S.C. 1251(a)(2))---Nonimmigrant
crewman--rerrained longer than permitted
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Jules E. Coven, Esquire George Masterton
Lebenknff & Coven, Esquires Appellate Trial Attorney
One East 42nd Street
New York, New York 10017 Jay D. Steinberg
Trial Attorney
/3 Y: MiLhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members
In a decision dated August 31, 1977, an immigration judge found the
respondent deportable as charged, denied his application for withholding of deportation to the People's Republic of China pursuant to section
243(h) of the Immigration and Nationality Act, 8 U.S.C. 1253(h), as
premature in light of the Immigration and Naturalization Service's
representation that deportation to the People's Republic would not he
attempted,' and granted the respondent the privilege of voluntary de-
' Evidence of record on the respondent's application for section 243(h) relief and on his
earlier claim of asylum is confusing. It appears that the respondent has claimed that he
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Interim Decision #2693
paxture in lieu of deportation with an order of deportation to the
People's Republic of China in the event of failure to depart voluntarily.
Hong Kong was designated as an alternate place of deportation. The
Immigration and Naturalization Service appeals on the ground that the
immigration judge erred in designating the People's Republic of China
as the country of deportation. The record will be remanded to the
immigration judge for further consideration.
The respondent is a 26-year-old alien who was born on May 7, 1952, in
Foochow, China. He was admitted to the United States as a crewman on
August 18, 1975, and was authorized to remain until his vessel had
departed, but in no event longer than 29 days. At his August 9, 1977,
deportation hearing the respondent conceded deportability as an overstay and was granted voluntary departure. Upon advice of counsel, he
then declined to designate a country of deportation, contending simply
that he was born on the Chinese Mainland, that he is a citizen of the
People's Republic of China, and that under step two of section 243(a) of
the Act, the immigration judge is required to order his deportation to
the People's Republic.
Under section 248(a) of the Act, if an alien does not designate a.
country of deportation, deportation shall first be directed to any country
of which the alien is a subject national or citizen if such country is willing
to accept him into its territory. If that cannot be arranged, deportation
may then be directed without necessarily giving any priority or preference because of their order to any one of seven categories of countries.
The narrow question raised in this case is what country the respondent
must be considered a citizen of for purposes of designating a country of
deportation under section 243(a).
On the basis of correspondence from the Department of State concerning the respondent's earlier claim of asylum, (Exhibit 2B) the immigration judge has concluded that the respondent is considered a citizen
of the People's Republic of China by the State Department and that
accordingly the designation of that country under section 243(a) is
appropriate. The Immigration and Naturalization Service disagrees,
citing the Board's decision in Matter of 9 I. & N. Dec. 575
(BIA 1962). After reviewing several court decisions, the Board concluded in S Y L , that despite the fact that the alien was born on the
— — —
Chinese Mainland and had later fled to Hong Kong, he was nevertheless
deportable to Formosa (Taiwan) rather than to the People's Republic of
China because the United States recognized the Nationalist Governfears persecution on the Chinese Mainland and in Hong Kong. Compare Tr. pp. 8-9, with
Form 1-589 (Request for Asylum in the United States). Resolution of the confusion
sur rounding these applications in not critical at the present time, however; therefore, we
will not address the matter further but will leave the clarification of these claims to the
immigration judge in the reopened proceedings.
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Interim Decision #2693
ment as the legal government of China. See Rogers v. Cheng F n Sheng,
280 F.2d 663 (D.C. Cir. 1960), cert. denied
364 U.S. 891 (1960); United
States ex rel. Tom Man v. Murff, ,
264 F.2d 926 (2 Cir. 1959); Chi Sheng
Liu v. Holton,
297 F.2d 740 (9 Cir. 1961). The Service points out that as
late as 1975, the United States Court of Appeals for the Third Circuit
reaffirmed the position reached by the Board in S Y--L--. Cheng v.
—
INS, 521 F.2d 1351 (3 Cir. 1975). While the Service's argument was
persuasive when made, very recent events compel the conclusion that
Matter of.9 — Y L
— — must now be overruled.
In a Joint Communique on the Establishment of Diplomatic Relations
Between the United States of America and the People's Republic of
China, issued on December 15, 1978, President Jimmy Carter announced the recognition by the United States of the government of the
People's Republic of China as the sole legal Government of China and
the establishment of diplomatic relations between the two countries,
effective January 1, 1979. In enunciating the principles agreed upon by
the two parties to the Communique, the President emphasized the fact
that the United States now acknowledges Peking's position that there
is but one China and that Taiwan is part of China. The eAclakuige of
ambassadors and the establishment of embassies occurred on March 1,
1979.
It is apparent in light of the December 15, 1978, Commnniranp that
Matter of S Y--L may no longer be considered valid law. Therefore,
— —
we conclude that our most appropriate action at this juncture is to
remand the present record to the immigration judge so that the Immigration and Naturalization Service may reformulate its positions on this
issue. Thereafter, the immigration judge should render a new decision
and certify it to us for review.
ORDER: The record is remanded to the immigration judge for the
action indicated in the foregoing opinion.
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