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CHENG FU SHENG v. ROGERS

October 6, 1959

CHENG FU SHENG and Lin Fu Mei, Plaintiffs,
v.
William P. ROGERS, Attorney General of the United States, Defendant



The opinion of the court was delivered by: HOLTZOFF

The principal question presented for decision in this case is whether an alien who is deportable to China may be deported to Formosa. This is an action against the Attorney General for a declaratory judgment, which would adjudicate that the plaintiffs, who are natives and citizens of China and whose deportation has been ordered, may not be deported to Formosa. The matter comes before this Court on cross-motions for summary judgment. There are no material issues of fact and only questions of law are involved.

The plaintiffs are natives and citizens of China, who entered the United States in 1952 to receive military training with the United States Air Force. They completed their studies but failed to depart from this country. Deportation proceedings were thereupon brought against them by the Immigration and Naturalization Service of the Department of Justice, and eventuated in warrants directing the deportation of the plaintiffs 'pursuant to law'. It has been stipulated that the Government intends to execute the warrants by deporting them to Formosa, in view of the fact that deportation to the mainland of China is impossible due to its occupation by the Communist regime. The plaintiffs thereupon instituted this action against the Attorney General for a declaratory judgment adjudicating that their deportation to Formosa would be contrary to law.

 The places to which an alien may be deported are expressly and specifically defined by statute. The provisions now in effect are contained in the Act of June 27, 1952, and are found in Section 1253 of Title 8 of the U.S.Code Annotated. This enactment enumerates eight possibilities as places of deportation. Each possibility, however, is expressly stated to be a country. Among them is the country from which the alien last entered the United States; the country in which is located the foreign port at which he embarked for the United States; the country in which he was born; the country in which his place of birth is situated when deportation is ordered; any country in which he resided prior to entering the country from which he entered the United States; or the country which had sovereignty over his birthplace at the time of his birth. It should be emphasized, however, that in each instance the place to which deportation may be ordered is a country and not a particular location. In this respect the 1952 statute is radically different from the earlier law, which permitted deportation to be had to a particular port, such as the foreign port at which the alien embarked for the United States. Thus, Section 20 of the Act of February 5, 1917, *fn1" expressly provided that the deportation of aliens 'be to the country whence they came or to the foreign port *fn2" at which such aliens embarked for the United States; * * *.' Were this provision in existence in the present statute, there would be no doubt whatever that the deportation of the plaintiffs to Formosa would be valid. For some reason which does not seem to appear in the legislative history, this provision was not included in the 1952 Act, and thereby was repealed by implication. No doubt the Congress must have had some good reason for abrogating the power of the Government to deport an alien to a specified port and requiring deportation only to a designated country.

 Since the plaintiffs are natives and citizens of China, their deportation may properly be effected to China. The question then arises whether Formosa is part of China. If it is, they may lawfully be deported to Formosa.

 It is fundamental that such questions as whether a foreign country or a foreign government should be formally recognized; whether a particular nation has sovereignty over a specified area; and what are the boundaries of a foreign country, are problems that are not to be solved by the courts, but are political matters that are to be decided by the executive and legislative departments of the Government. On such topics the President and the Secretary of State speak for the United States, and the courts are obligated to follow their pronouncements.

 Thus, in the leading case of Jones v. United States, 137 U.S. 202, 212, 11 S. Ct. 80, 83, 34 L. Ed. 691, Mr. Justice Gray wrote as follows:

 The following authorities among the legion that might be cited are to the same effect: Foster v. Neilson, 2 Pet. 253, 307, 309, 7 L. Ed. 415; Williams v. Suffolk Ins. Co., 13 Pet. 415, 420, 10 L. Ed. 226; Oetjen v. Central Leather Co., 246 U.S. 297, 302, 38 S. Ct. 309, 62 L. Ed. 726; National Union Fire Ins. Co. v. Republic of China, 4 Cir., 254 F.2d 177; Latvian State Cargo & Passenger SS Line v. Clark, D.C., 80 F.Supp. 683; Oppenheim, International Law, 7th Ed. Sec. 357a; I Hackworth, Digest of International Law, 165.

 It is necessary, therefore, to ascertain and be guided by the attitude of the Department of State on the question whether Formosa is to be regarded as a part of China.

 The attitude of the State Department is stated in a formal communication from Ely Maurer, Assistant Legal Adviser for Far Eastern Affairs of the Department of State, dated June 2, 1959, and addressed to Mr. Robert J. Asman, an Assistant United States Attorney. This statement was submitted by Government counsel as representing the views of the political department of the Government on this subject. Pertinent portions of this statement read as follows:

 'In response to your telephone inquiry of this date, you are informed that the United States recognizes the Government of the Republic of China as the legal Government of China. The provisional capital of the Republic of China has been at Taipei, Taiwan (Formosa), since December 1949.

 'In 1895, under terms of the Treaty of Shimonoseki, China was compelled to cede Formosa to Japan. In the Cairo Conference, the United States, United Kingdom and China declared it was their 'purpose' that Manchuria, Formosa and the Pescadores 'shall be restored to the Republic of China.' Thereafter in August 1945 in the Potsdam Conference of the United States, United Kingdom and China declared 'that the terms of the Cairo Declaration shall be carried out.' This Potsdam Declaration was subsequently adhered to by the U.S.S.R. On September 2, 1945 the Japanese Government, in the instrument, of surrender, accepted the provisions of the Declaration. The Supreme Allied Commander for the Allied Powers then issued Directive No. 1 under which the Japanese Imperial Headquarters issued General Order No. 1 requiring Japanese commanders in Formosa to surrender to Generalissimo Chiang Kai-shek of the Republic of China. Since September 1945 the United States and the other Allied Powers have accepted the exercise of Chinese authority over the island. In Article 2 of the Japanese Peace Treaty, which entered into force April 28, 1952, Japan renounced all 'right, title and claim' to Formosa.'

 A Department of State Bulletin, Vol. XXXIX, No. 1017, dated December 22, 1958, which constitutes an official expression of the foreign policy of the United States, contains the following discussion of the problem in which we are interested (pp. 1005 and 1009):

 'Since the middle of the 17th century and up to 1895 Formosa was a part of the Chinese Empire. In 1895 under the Treaty of Shimonoseki China ceded Formosa to Japan. In the Cairo conference in November 1943 the United States, United Kingdom, and China declared it was their 'purpose' that Manchuria, Formosa, and the Pescadores 'shall be restored to the Republic of China'. Thereafter in August 1945 in the Potsdam conference the United States, United Kingdom, and China declared that 'the terms of the Cairo Declaration shall be carried out.' This Potsdam declaration was subsequently adhered to by the U.S.S.R. On September 2, 1945, the Japanese Government, in the instrument of surrender, accepted the provisions of the declaration. The Supreme Allied Commander for the Allied Powers then issued Directive No. 1 under which the Japanese Imperial Headquarters issued General Order No. 1 requiring Japanese commanders in Formosa to surrender to Generalissimo Chiang Kai-shek of the Republic of China. Since September 1945 the United States and the other Allied Powers have accepted the exercise of Chinese authority over the island. ...


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