Interim Decision #1814

Interim Decision #1814

MATTER OF NG

In DEPORTATION Proceedings

A-16893733

Decided by Board December 11,1963

(1) Designation of country of deportation within step 3 of section 243(a),

Immigration and Nationality Act, is solely at the discretion of the Attorney

General.

(2) A Chinese crewman who arrived in the United States on a Netherlands vessel

may be deported to that country under step 3 of section 243 (a) of the Act and

what the Netherlands may do after accepting the alien is of no consequence

under the statute.

CRAnce:

Order: Act of 1952—Section 241(a) (2) [8 C.S.C. 1251(a) (2)3—Remained

longer—nonimmigrant crewman .

This case comes forward on appeal from an order entered by the

special inquiry officer on October 10, 1963, denying the respondent's

application requesting that his deportation to the Netherlands be withheld as provided in section 243 (h) of the Immigration and Nationality

Act and directing that he be deported from the United States to the

Republic of China on Formosa on the charge set forth in the order to

show cause. The special inquiry officer further directed that the

respondent be deported to the Netherlands in the event the aforenaraed

country advises the Attorney General that it is unwilling to accept him,

the respondent, into its territory and it was further directed that he

be deported to Hong Kong in the event the aforenamed country advises

the Attorney General that it was unwilling to accept the respondent

into its territory. The respondent, a 80-year-old male, native and

citizen of China, has resided continuously in the United States since

last entering at Port Everglades, Florida on or about September 7,

1962 as a nonimmigrant crewman, authorized to remain in the United

States the period of time his vessel remained in port, in no event to

exceed 29 days. He failed to comply with the terms of his admission

and has remained in the United States without authority.

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Interim Decision. #1314

Deportation proceedings were instituted against the respondent on

October 3, 1963. Hearings in deportation proceedings were held at

New York, New York on October 7 and October 10, 1963. The record

reflects that counsel and the respondent admitted the truth of the

factual allegations set forth in the order to show cause and conceded

deportability on the charge stated therein. The evidence in this record clearly establishes that the respondent is subject to deportation

under section 241(a) (2) of the Immigration and Nationality Act, in

that, after admission as a nonimmigrant under section 101(a) (15)

of the Act, he remained in the United States for a longer time than

permitted.

It is conceded that the respondent would not be subject to physical

persecution in the event of his deportation to the Republic of China

on Formosa (p. 3) . The respondent was sailing on a vessel of Netherlands registry at the time of his arrival in the United States on September 7, 1962. The Service is in possession of a valid Netherlands

seaman's book issued to the respondent at Amsterdam, Holland on

October 11, 1961. The Service also has possession of a Hong Kong

seaman's identification book issued to the respondent at the British

Crown Colony of Hong Kong on November 3, 1959. The validity of

the latter document expired on November 2, 1962 (p. 5). The respondent testified he signed on a Dutch ship at Hong Kong and went

to Holland; that after the Netherlands seaman's identification book

was issued to him at Amsterdam, Holland on November 11, 1961 he

sailed out of Holland for a period of nine months prior to his arrival

in the United States in September 1962 (p. 8). The respondent first

entered Hong Kong from China in 1957 where he resided until 1959.

The respondent has no family in Hong Kong or the Netherlands. He

testified that he always had a berth on a, Netherlands ship when sailing

from that country.

Counsel's argument that the Service should attempt to deport the

respondent to Hong Kong before directing his deportation to the

Netherlands in the event the Republic of China on Formosa refuses

to accept him is without merit. The country of selection is solely

within the discretion of the Attorney General (cf. Horn. Bin, v. Es-

perdy, 209 F. Supp. 3). There is no basis for counsel's obscure and

chimerical charges that if the respondent's deportation to the Netherlands is effected the end result will be his deportation to Communist

China with whom the Netherlands Government maintains diplomatic

relations. Section 243(a) of the Immigration and Nationality Act

provides the procedure for deportation of aliens. First the alien is

given the choice of designating the country to which he prefers to be

deported or as in this case no designation is made by the alien, his

deportation shall be directed to the country of which the alien is a sub429

Interim Decision #1314

ject national provided that country is willing to accept him. If such

country fails to advise the Attornel General that it will accept him

within the set forth in the statute, the alien's deportation will be

effected as provided in step (3) of section 243(a) of the Act. Step

No. (3) allows for deportation to any one of seven categories of countries within the discretion of the Attorney General. The Service

notes that the Netherlands Government has indicated its willingness

to accept the respondent into the Netherlands. The validity of the

respondent's Hong Kong seaman's identification book expired on November 2, 1962. His testimony shows that he has not lived in that

country since 1959. In this connection the respondent's deportation

to Holland is warranted under alternative provisions (1) and (2) of

step (3) of section 243(a) of the Immigration and Nationality Ant.

A valid seaman's identification book was issued to the respondent

by the Netherlands Government at Amsterdam on November 11, 1961

and as previously noted he sailed from Holland aboard vessels of

Netherlands registry for at least nine months prior to his arrival in the

United States as a crewman aboard a vessel of the Netherlands registry in September 1962. There is nothing in this record that in any

manner supports counsel's claim that if the respondent is deported to

Holland he will then be deported to the mainland of China where he

fears he will suffer physical persecution. It has been held that where

a Chinese entered the United States as a seaman and overstayed his

leave his deportation to Holland would not be stayed on the ground

that the alien once in Holland would be sent out of that country.

What the Netherlands may do after accepting an alien is of no consequence under the statute (cf. U.S. es rel. Tie Sing Eng v. Mw. f,

165 F. Supp. 633, air& 266 F.2d 957; cart. den. 361 'U.S. 840 and reh.

den. 361 U.S. 904).

After carefully considering all the, evidence of record, the decision

of the special inquiry officer will be affirmed inasmuch as there is no

claim of physical persecution as defined under section 243(h) of the

Immigration and Nationality Act. Accordingly, the following order

will be entered.

ORDER: It is ordered that the appeal be dismissed..

430