CHEUNG>

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, Presi-

dent 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 withhold-

ing 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 over-

stay 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 prefer-

ence 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 con-

cerning the respondent's earlier claim of asylum, (Exhibit 2B) the immi-

gration 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 con-

cluded 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 Govern-

fears 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 an-

nounced 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 Immi-

gration 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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