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The Court of Appeals rejected their arguments and affirmed the U.S. District Court decision denying their motion for an injunction to restrain deportation. The Appeals Court relied upon the plenary power of Congress in the area of immigration to prescribe the terms and conditions upon which aliens are permitted to enter and stay in the United States. It rejected the applicability to U.S. immigration laws of the Supreme Court decisions in Graham v. Richardson 403 U.S. 365 (1971), Sugarman v. Dougall, 413 U.S. 634 (1973), and In re Griffiths, 413 U.S. 717 (1973) (see 1973 Digest, pp. 93-95) and pointed out that those cases involved action by States which discriminated with respect to the rights and privileges which persons living in the United States possess. The Court said:

In view of the plenary power vested in Congress to fix and in the Executive to enforce, the terms and conditions of entry and stay in the United States, alienage cannot be a suspect classification in this context, nor is there an interference with any fundamental rights to marry and to raise a family. This being so, it follows that the strict or compelling interest test espoused by appellants cannot be applied in this case. (p. 1028]


In Cheng v. Immigration and Naturalization Service, 521 F.2d 1351 (1975), cert. denied January 13, 1976, 44 U.S. Law Week 3391, the United States Court of Appeals for the Third Circuit held, on August 18, 1975, that petitioner, who was born in mainland China, fled to Hong Kong, and then entered the United States illegally, would not be deemed a subject of the People's Republic of China, deportable only to the mainland (in which case he might claim political asylum) but could be ordered deported to the Republic of China.

At a deportation hearing in 1972, petitioner had conceded allegations which indicated that he was a citizen of the Republic of China. He was granted the privilege of voluntary departure, failing which he was ordered deported to Taiwan or, in the alternative, Hong Kong. He made no objection, and the immigration judge designated Taiwan, pursuant to Section 243(a) of the Immigration and Nationality Act, 8 U.S.C. 1253(a), and in reliance on prior decisions of the Board of Immigration Appeals. Petitioner did not depart. In 1972 he applied unsuccessfully for political asylum as a political refugee from mainland China. In 1974 he moved to reopen the deportation order on the ground that the United States had altered its position with respect to the People's Republic of China. The motion was denied by the immigration judge, and on December 30, 1974, the Board of Immigration

Appeals affirmed the order for deportation first to Taiwan and, alternatively, to Hong Kong.

In his petition for review, petitioner claimed a change in the State Department's position, opening to question earlier decisions designating persons in petitioner's circumstances to be citizens of Taiwan. The Court inquired of the Department and quoted the Department's response as follows:

That statute [8 U.S.C. § 1253(a)] provides that if an alien fails to designate a country to which he wishes to be deported, his deportation shall be directed toward "any country of which such alien is a subject national, or citizen if such country is willing to accept him into its territory."

Normally, the United States does not deport aliens to countries with whose government we do not have diplomatic relations. At the present time, with respect to persons who come from mainland China and claim to be citizens of the People's Republic of China and not the Republic of China, we believe there is no appropriate government with which we have diplomatic relations for purposes of directing a request for admission of an alien pursuant to Section 1253(a). Therefore, we believe it would be appropriate for the Attorney General 'to proceed to deport the petitioner, presumably to Hong Kong, pursuant to his discretionary authority as set forth in Section 1253(a).

The Court concluded that this provided no basis for overturning the Board's decision.

Depositions Abroad

On May 13, 1975, the Immigration and Naturalization Service (INS) of the Department of Justice published an amendment to Section 242.14(e) of Part 242, Chapter I, Title 8 of the Code of Federal Regulations, pertaining to the taking of depositions abroad in connection with obtaining evidence for use in proceedings to determine the deportability of aliens in the United States. The purpose of the amendment was to provide for the taking of depositions abroad preferably before an INS officer in a locality where he is authorized to interview witnesses in expulsion proceedings, elsewhere preferably before a United States consular officer. In its previous form the regulation conflicted with the policy of the INS and the Department of State, that in INS matters INS personnel, and not consular officers, should take such depositions in areas abroad where the INS has such authority. The amendment became effective June 12, 1975.

For the amended text of $ 242.14(e), see the Fed. Reg., Vol. 40, No. 93, May 13, 1975, p. 20816.

Prior Conviction

In Brice v. Pickett, 515 F.2d 153 (1975), the United States Court of Appeals for the Ninth Circuit affirmed a decision of the United States District Court for the Southern District of California that an alien was properly ordered deported because of a prior conviction for unlawful possession of marijuana, even though the conviction occurred in Japan.

Brice had been found deportable under 8 U.S.C. 1251(a) (11), which provides, in part, that an alien may be deported who "at any time has been convicted of a violation of ... any law or regulation relating to the illicit possession of ... marijuana.” The Court of Appeals agreed, stating that a plain reading of “any law or regulation” would include foreign laws or regulations. It rejected Brice's argument that deportation based on a foreign conviction was unconstitutional, noting that Congress has plenary power over the admission and expulsion af aliens and that an alien resident in the United States may be deported for any reason which makes his residence in the United States not in the best interests of the government, as determined by Congress. Galvan v. Pre88, 347 U.S. 522 (1953).

The Court saw no need to relitigate the question of whether Brice was guilty of the narcotics offense to which he pleaded guilty in Japanese court, stating: "Even if Brice could prove that the foreign conviction was obtained in proceedings which if conducted in this country would be violative of the United States constitutional guarantees, we find no requirement that a foreign court's proceedings or conviction must conform to United States constitutional standards."

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On March 29, 1975, President Ford announced that in view of a severe emergency in the coastal communities of South Viet-Nam, where refugees fleeing the North Vietnamese offensive were in need of assistance, he had directed United States participation in an international humanitarian relief effort to transport civilian refugees to safer areas farther south. Stating that he had ordered American naval transports and contract vessels to assist in the evacuation, he called upon all nations and corportations that had ships in the vicinity of the South Vietnamese coast to help evacuate refugees to safety in the south. He announced at a news conference on April 3, 1975, that the United States had appealed to the United Nations to use its moral influence to permit the refugees to leave, and he called on North Viet-Nam to permit the movement of refugees to the area of their choice.

On April 4, 1975, President Ford reported his directive on the use of American naval transports in the evacuation effort to Congress, taking note of Section 4(a) (2) of the War Powers Resolution (P.L. 93–148), enacted November 7, 1973, and setting forth the legal basis for the U.S. action.

Weekly Compilation of Presidential Documents, Vol. 11, No. 14, Apr. 7, 1975, pp. 319, 327-337. For a partial text of the President's report to Congress mentioned above, see post, Ch. 14, § 8, pp. 867–868.

On April 8 and 14, 1975, hearings were held by the House Judiciary Subcommittee on Immigration, Citizenship, and International Law on the admission of refugees from Viet-Nam and Cambodia into the United States and related refugee and humanitarian problems. The full Senate Judiciary Committee held hearings on April 15, and on April 22 voted in executive session to concur in a proposal by Attorney General Edward Levi to exercise his authority to permit the entry of certain South Vietnamese and Cambodians into the United States. The Attorney General on April 22, 1975, with the approval of the President, extended parole into the United States to four categories of Indochina war victims. See ante, Chapter 3, § 3, pp. 129–130.

President Ford had meanwhile established on April 18, 1975, a Special Inter-Agency Task Force “to coordinate ... all U.S. Government activities concerning evacuation of United States citizens, Vietnamese citizens, and third country nationals from VietNam ... and refugee and resettlement problems relating to the Viet-Nam conflict." Ambassador L. Dean Brown was named Special Representative and Director of the Task Force.

On April 29, 1975, after the fall of the Government of South VietNam, Secretary of State Kissinger held a news conference at which he described the United States effort to bring about a controlled and humane solution in Viet-Nam. He said, in part:

Our priorities were as follows: We sought to save the American lives still in Viet-Nam; we tried to rescue as many South Vietnamese that had worked with the United States for 15 years, in reliance on our commitments, as we possibly could; and we sought to bring about as humane an outcome as was achievable under the conditions that existed.

We succeeded in evacuating something on the order of 55,000 South Vietnamese, and we hope that we have contributed to a political evolution that may spare the South Vietnamese some of the more drastic consequences of a political change. But ... this last point remains to be seen.

On May 6, 1975, President Ford transmitted to Congress draft legislation to be cited as the Indochina Migration and Refugee Assistance Act of 1975, authorizing the provision of relief and relocation assistance to refugees from South Viet-Nam and Cambodia. He also requested additional supplemental appropriations for assistance to Indochina refugees, totaling $507,000,000. (See H. Docs. 94-133 and 94-134, 94th Cong., 1st Sess.).

Ambassador Brown, appearing before the Foreign Operations Subcommittee of the House Appropriations Committee on May 8, 1975, in support of the pending legislation, reviewed the steps already taken on refugee assistance, as follows:

The tragic outcome of events in Indochina has thrust upon the United States a gigantic humanitarian responsibility. Over 130,000 Vietnamese and Cambodians have fled their countries in fear of persecution; all expected American help, even those who were rescued at sea-resulting in the largest movement of refugees over a short period of time that the United States has ever faced. Confronted by sudden tragedy, we have responded with all the means at our disposal

We have directly evacuated over 40,000 Vietnamese and 7,000 Americans principally by air, including a dramatic helicopter extraction under hostile and hazardous conditions.

-We have in addition rescued at sea or escorted some 67,000 other Vietnamese who escaped and sought refuge at great peril to their lives. -We have established two staging centers in the Western Pacific to receive about 65,000 persons, manned by our military forces and civilians specializing in health, immigration, and refugee assistance, in less than a week.

-We have created and staffed three reception centers in the United States capable of receiving up to 42,500 refugees at one time.

-We have organized a massive air and sea transportation system to bring refugees from the Philippines and Thailand to Guam and Wake and on to the United States. The system at the same time furnishes the logistical support to our distant Pacific centers.

-We have launched a resettlement program in the United States in cooperation with nine voluntary agencies and those departments of government concerned with resettlement, including, inter alia, Health, Education, and Welfare; Defense; Housing and Urban Development; Transportation; Justice; Treasury; State.

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