Interim Decision #1854 

MAN if.kt OF LAM 

In Deportation Proceedings 

A-15985124 

Decided by Board April 29, 1968 

Respondent, who, upon failure to depart in accordance with an order of voluntary departure, was ordered deported to Hong Hong, the country designated 

by him, or in the alternative to Formosa, the country of his nationality, and 

who stated he did not fear persecution if deported to either of those countries, 

will not now be granted a reopening of the deportation proceedings to permit 

him to withdraw his designation of Hong Kong as the country of deportation, 

nor to apply for temporary withholding of his deportation to that country 

under section 243(h) of the Immigration and Nationality Act, as amended, 

where he has failed to show a likelihood of establishing persecution (Chew 

Kai Fs v. Immigration and Naturalization Service, 386 F. 2d 750 (CA. 2, 

1967) ). 

CHARGE : 

Order: Act of 1952—Section 241(a) (2)18 U.S.C. 12517—Nonimmigrant (crewman)—remained longer. 

Orr DIMILLF or Bneroaounr : ON BEHALF OF Seams: 

Jules E. Coven, Esquire Robert A. Vielhaber 

One East 42d Street Appellate Trial Attorney 

New York, New York 10007 

On July 7, 1967, the special inquiry officer granted the respondent's 

application solely for voluntary departure, and provided for his deportation from the United States to Hong Kong, alternatively to the 

Republic of China on Formosa, on the charge contained in the order 

to show cause, in the event of his failure to so depart. That decision 

became final for want of an appeal, and the time set for the respondent's voluntary departure pursuant to the special inquiry officer's order 

was August 14, 1967. However, the respondent failed to so depart, and 

a warrant for his deportation was issued on August 28, 1967. 

On October 30, 1967, the respondent was notified that arrangements 

for his departure to Hong Kong had been made. Thereupon, a declaratory judgment action was filed in the respondent's behalf in the appropriate -United States District Court and a stay of the respondent's 

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deportation was requested. The results of that action were adverse to 

the respondent. 

The respondent then moved for reopening of his deportation proceedings to permit him to withdraw his designation of Hong Kong 

as a country of deportation, or to permit him to apply for temporary 

withholding of his deportation thereto pursuant to section 243(h) 

of the Lnmigration and Nationality Act, as amended (8 U.S.C. 1253). 

The special inquiry officer denied that motion on November 16, 1967, 

and the appeal from that decision, which brings the case before this 

Board for consideration, will be dismissed. 

The record relates to an adult male alien, a native of China and 

citizen of the Republic of China on Formosa, who last entered the 

United States on or about September 5, 1966. He was then admitted 

as a nonimmigrant crewman, for the period of time his vessel was to 

remain in United States ports, but in no event to exceed 29 days. He 

has, however, remained here 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 was conceded in the course of the hearing 

before the special inquiry officer when the respondent was represented 

by counsel. It has not been challenged since. 

The special inquiry officer granted the only discretionary relief 

requested of him by the respondent, to wit: voluntary departure. As 

already indicated, the respondent failed to take advantage of that 

privilege. 

The first country of deportation specified by the special inquiry 

officer was Hong Kong, the country designated by the respondent 

himself. The alternative country of deportation named by the special 

inquiry officer was the Republic of China on Formosa, the land of the 

respondent's nationality. The latter stated to the special inquiry officer 

that he did not fear persecution if deported to either of those countries. 

The respondent's claim that he should now be given an opportunity 

to apply for a temporary withholding of his deportation to Hong 

Kong is based on the assertion that he fled from China to Hong Kong 

as a refugee from communism. He asserts that he is opposed to communism. He points out that there have recently been communist riots 

in Hong Kong. He fears that if he is sent there he will be persecuted 

by the Communists. 

The facts and circumstances of this case bring it squarely within the 

scope of the November 16, 1967, decision of the United States Court 

of Appeals for the Second Circuit in the case of Chong Kai Fu v. 

Immigration and Naturalization. Service (386 F.2d 750; cert. den. 

4/1/68, 37 L.W. 3377). In that case, the court upheld the decision of 

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this administrative tribunal to deny without a hearing the motion of 

an alien situated similarly to this respondent to stay deportation and 

reopen the proceedings based on a claim under section 243(h) of the 

Immigration and Nationality Act (8 U.S.C. 1253). For the reasons 

set forth in the opinion of the court in that case, which we find to 

be controlling in the present case, we hereby affirm the decision of the 

special inquiry officer. 

We find no merit in the respondent's assertion that he should now 

be given an opportunity to withdraw his designation of Hong Kong 

as a country of deportation, with the idea of making a new designation. 

In the first place, the riots in Hong Kong on which the respondent 

bases his claim to fear of persecution erupted in May of 1967, so that 

he could have advanced his claim before the special inquiry officer who 

held the hearing in his case on July 7, 1967. Second, for the reasons 

set forth above the changed conditions in Hong Kong on which the 

respondent relies in support of his claim to fear of persecution are 

not such as to warrant withholding of deportation under section 248 

(h). Finally, under the foregoing circumstances the possibility that 

the special inquiry officer might specify some country other than Hong 

Kong is entirely speculative (see Man Chung Yin v. E8perdy, 276 

F. Supp. 882). 

ORDER: It is ordered that the appeal be and the same is hereby 

dismissed. 

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