noting that “[a]p-pellants did not present any facts to rebut the normal conclusion from such extended residence that appellants were firmly resettled and no longer in flight” and citing Woo, 402 U.S. at 49, 91 S.Ct. 1312, for support
How later courts described this case
- noting that “[a]p-pellants did not present any facts to rebut the normal conclusion from such extended residence that appellants were firmly resettled and no longer in flight” and citing Woo, 402 U.S. at 49, 91 S.Ct. 1312, for support
- upholding finding that petitioners firmly resettled in Hong Kong where they lived sixteen to twenty years and were among a class of refugees accepted by the government for unconditional residence
- holding prudential considerations restrain court from deciding difficult standing issue where case can be readily decided on merits
- stays of sixteen to twenty years in third country required petitioners “to rebut the normal conclusion from such extended residence that [they] were firmly resettled”
Written by the judges who cited it.
The opinion
FRANK A. KAUFMAN, District Judge,
concurring specially:
Standing
I am in agreement with Judge MacKin-non that “[pjrudential considerations” (p. - of 185 U.S.App.D.C., p. 325 of 566 F.2d) should restrain us in this case from deciding the question of standing of the individual appellants, aliens who have never been in the United States, unless we need to do so. And I agree we need not do so. The District Court, however, granted appel-lee’s motion to dismiss the complaint of the Chinese American Civic Council (Council) because of lack of standing of any of the appellants. Judge MacKinnon’s opinion states agreement with the District Court concerning lack of standing of the Council. In so stating Judge MacKinnon affirmed the Court below which wrote:
The organizational plaintiff also lacks standing to sue. This is not a case where individual members of an organization have suffered or might suffer injury. See Sierra Club v. Morton, 405 U.S. 727 , 92 S.Ct. 1361 , 31 L.Ed.2d 636 (1972); As sociation of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150 , 90 S.Ct. 827 , 25 L.Ed.2d 184 (1970). The Chinese American Civic Council, although recognized by defendant as a sponsor for refugees and conditional entrants, has not alleged concrete injury to itself or to its members. Rather, the Council attempts to represent or stand in the shoes of the real parties in interest who themselves lack standing.
396 F.Supp. 1250, 1251-52 (D.D.C.1975).
In Warth v. Seldin, 422 U.S. 490 , 95 S.Ct. 2197 , 45 L.Ed.2d 343 (1975); Mr. Justice Powell, in the course of holding that several associations lacked standing, wrote that “[e]ven in the absence of injury to itself, an association may have standing solely as the representative of its members * * * [provided that] [t]he association must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit.” Id. at 511 , 95 S.Ct. at 2211-2212 . All of the individual appellants have suffered injury. The Council sponsors at least one of the individual appellants. It is seemingly recognized by the INS as a representative of applicants such as the individual appellants. “Where there is no effect on the organization itself, standing to represent the interests of its members has come most easily when an administrative agency itself has recognized the organization as a representative.” 13 Wright, Miller and Cooper, Federal Practice and Procedure § 3531 at 213 (1975) (footnote omitted).
The issue of whether an association, operating and existing within the United States, has standing to represent its members or those whom it sponsors, when such persons are determined to be without standing solely because of lack of physical presence in the United States, has not been specifically *332 presented or determined herein. Accordingly, before I would affirm the judgment below on grounds of lack of standing of the Council, I would remand this case to the District Court for further consideration of that issue and for further testimony with regard to the role of the Council and its relationship with persons such as the individual appellants. But since I am in accord with Judge MacKinnon’s conclusion on the substantive issue presented in this appeal, I agree that no remand is required.
Merits
The District Court’s observation that appellants “are confronted with an almost ir-rebuttable presumption that * * * they have ‘firmly resettled’ in Hong Kong and are no longer ‘in search of refuge’ ” hits the nail on the head. 396 F.Supp. at 1251 -52 n. 2. Appellants appear “firmly resettled” within the meaning of that term as explicated by Mr. Justice Black in Rosenberg v. Yee Chien Woo, 402 U.S. 49 , 91 S.Ct. 1312 , 28 L.Ed.2d 592 (1971). Therein, he wrote of the “ ‘resettlement’ concept”:
[I]t is not irrelevant. It is one of the factors which the Immigration and Naturalization Service must take into account to determine whether a refugee seeks asylum in this country as a consequence of his flight to avoid persecution. The District Director applied the correct legal standard when he determined that § 203(a)(7) requires that “physical presence in the United States [be] a consequence of an alien’s flight in search of refuge,” and further that “the physical presence must be one which is reasonably proximate to the flight and not one following a flight remote in point of time or interrupted by intervening residence in a third country reasonably constituting a termination of the original flight in search of refuge.”
Id. at 56, 91 S.Ct. at 1316-1317 (footnote omitted).
The denial letter 1 does erroneously apply the Hong Kong Ordinance 2 The letter seemingly also does not correctly apply the Rosenberg doctrine because it appears to assume that long residence creates an irre-buttable presumption of “firmly resettled”. But the letter nevertheless does basically rest upon that doctrine as the core reason for its negative decision. “The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.” SEC v. Chenery Corp., 318 U.S. 80, 87 , 63 S.Ct. 454, 459 , 87 L.Ed. 626 (1943). See also Burlington Truck Lines v. United States, 371 U.S. 156 , 83 S.Ct. 239 , 9 L.Ed.2d 207 (1962). Still, there is “some play in the joints” of that doctrine. K. Davis, Administrative Law Treatise § 16.12 at 581 (1970 Supp.), discussing, in a slightly different context, the effect of Penn-Central Merger and N & W Inclusion Cases, 389 U.S. 486 , 88 S.Ct. 602 , 19 L.Ed.2d 723 (1968), upon the Chen-ery principle. That “play” in this case eliminates the need for reversal because of any violation of the Chenery principle, particularly since the individual appellants were given the chance to rebut the effects of their long residences in Hong Kong and to present other facts relevant under the Rosenberg test. Judge MacKinnon (pp.-- - of 185 U.S.App.D.C., p. 330 of 566 F.2d) has carefully reviewed the opportunity given to each of the individual appellants after the denial letter was sent to them and their failure to present any data which, under the Rosenberg “firmly resettled” test, would have permitted an administrative determination other than a negative one. Thus, not only were the appellants dealt with fairly, but the total administrative action embodied in the combination of the denial letter, the post-letter opportunities afforded to appellants, and appellants’ failures to rebut the effect of their respective lengthy Hong Kong residences adds up to (a) fair procedure and (b) correct and indeed compelled substantive *333 application of Rosenberg . Thus, in this case, a strict application of the Chenery doctrine is not called for.
I concur in the affirmance of the judgment of the District Court.
. See n.5 in Judge MacKinnon’s opinion.
. The District Court has commented succinctly on the administrative error in that regard. 396 F.Supp. at 1252-53 .