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TAI CHIU WONG v. ILCHERT

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


October 31, 1991

TAI CHIU WONG, Plaintiff,
v.
DAVID N. ILCHERT, District Director of the United States Immigration and Naturalization Service, San Francisco, WILLIAM BARR, 1 Attorney General of the United States, and GENE McNARY, Commissioner, United States Immigration and Naturalization Service, Defendants.

The opinion of the court was delivered by: WILLIAM H. ORRICK

OPINION AND ORDER

 Plaintiff, Tai Chiu Wong ("Wong"), seeks injunctive and declaratory relief enjoining defendants, David N. Ilchert, District Director of the United States Immigration and Naturalization Service, Dick Thornburgh, Attorney General of the United States, and Gene McNary, Commissioner, United States Immigration and Naturalization Service, from deporting him and compelling issuance of work authorization. *fn2" He claims that as a national of the People's Republic of China ("PRC") he is entitled to protection under Executive Order 12711 ("the EO"). *fn3"

 I.

 Wong entered the United States on a visitor visa on March 12, 1990, with a British passport stating he was a British Dependent Territories Citizen from Hong Kong. *fn4" He failed to depart at the end of the visa period. His illegal presence was discovered when he was subsequently arrested for reckless driving. He was then placed in deportation proceedings and ordered to voluntarily depart or be subject to deportation. Wong failed to leave, and in December 1990 applied for a passport (issued on January 7, 1991) from the PRC. His application for work authorization was then rejected by the Immigration and Naturalization Service ("INS"). Wong filed this action on March 13, 1991, one day before he was required by the prior order to report for immediate deportation.

 II.

 The parties' cross-motions for summary judgment essentially state mirrored propositions. *fn5" Defendants claim Wong is not eligible for coverage under the EO and must be deported. Wong states that he has established Chinese nationality and deserves a stay of deportation under the EO. The only issue of real dispute is whether Wong qualifies as a "national" of the PRC for the purposes of the EO. *fn6"

 Wong alleges that the issue of his nationality is one of fact, defeating summary judgment for defendants, and attempts to present proof that the definition of a PRC national includes individuals like himself, rendering summary judgment in his favor appropriate. The Court does not find any material issue of fact in dispute. Defendants challenge no significant facts alleged by Wong. Rather, this case involves interpretation of the EO as a matter of law and, thus, summary judgment is appropriate.

 The PRC clearly considers Wong to be a national, as evidenced by its issuance of his passport. Although no definition of "national" exists specifically for the EO in question, a general view of international relations is that countries defer to each other's definitions in determinations of nationality such as the one before the Court. The China-Hong Kong-Taiwan situation is somewhat of an exception, and this creates the issue at hand. Hong Kong is deemed for many purposes a part of China, although it is a British territory, and PRC nationals include Hong Kong citizens and residents. This supports Wong's position that he is protected by the EO.

 Defendants do not actually dispute Wong's claim of PRC nationality. Rather, they claim an exception to treatment under the EO for individuals in Wong's position, that is, "nationals" of the PRC who were in the United States during the applicable period on passports issued by other countries, who do not objectively appear to be the type of PRC nationals the President intended to protect with the EO. Even read restrictively, defendants argue that Wong is not an intended beneficiary of the EO's security.

 The INS letter of July 11, 1991, clarifying the "policy of the administration with respect to nationals of the [PRC]," submits a logical interpretation of the term "national" as used the EO. Defs. Exs., Ex. 15. This letter is supported by an earlier letter dated June 11, 1991, from the Deputy Assistant Commissioner of Adjudications, stating that "aliens who are citizens of the United Kingdom Colony of Hong Kong shall not be considered to be PRC nationals for purposes of Executive Order 12711, even if the PRC Government regards such aliens as PRC citizens." Plf.'s Mot. for Summ. J. and Mem. of P. & A. in Supp. of the Mot., filed Sept. 5, 1991, Ex. A. These statements support defendants' position.

 The standard of review accorded administrative actions helps tip the balance here, making summary judgment for defendants fitting. Courts are required to pay due deference to constructions of regulations by administrative agencies -- "'the ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.'" United States v. Larionoff, 431 U.S. 864, 872, 53 L. Ed. 2d 48, 97 S. Ct. 2150 (1977) (quoting Bowles v. Seminole Rock Co., 325 U.S. 410, 414, 89 L. Ed. 1700, 65 S. Ct. 1215 (1945)); see also Plyler v. Doe, 457 U.S. 202, 225, 72 L. Ed. 2d 786, 102 S. Ct. 2382 (1982) ("The obvious need for delicate policy judgments has counseled the Judicial Branch to avoid intrusion into the field" of immigration and alien status.); Fiallo v. Bell, 430 U.S. 787, 792, 52 L. Ed. 2d 50, 97 S. Ct. 1473 (1977) ("limited scope of judicial inquiry into immigration legislation").

 The INS letters put forth an interpretation of the EO that is not improperly restrictive and is reasonable under the circumstances. It does not seem plausible that the President intended to protect individuals who entered the country on Hong Kong passports and invoked their PRC "nationality" to avoid deportation on otherwise proper grounds. The Supreme Court's deference to agency enactment of statutory regulations is at least analogous, if not directly on point, to agency enactment of regulations regarding executive orders. *fn7"

 "The power of an administrative agency to administer a congressionally created . . . program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress." Morton v. Ruiz, 415 U.S. 199, 231, 39 L. Ed. 2d 270, 94 S. Ct. 1055 (1974). . . .

 We have long recognized that considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer, and the principle of deference to administrative interpretations . . . .

 Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984) (footnote omitted). The INS has made its decision, and "'if this choice represents a reasonable accommodation of conflicting policies that were committed to the agency's care by statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned.'" Id. at 845 (quoting United States v. Shimer, 367 U.S. 374, 382-83, 6 L. Ed. 2d 908, 81 S. Ct. 1554 (1961)).

 The INS has been entrusted by Congress with the task of regulating aliens and immigration. The President appears to be acting in his role as the INS' superior, and Wong does not object to the enactment of the EO, only the INS' interpretation. Substituting "the President" for "Congress" in the preceding quote, the INS' choice is entirely reasonable and must be considered the law for the purposes of the EO. Summary judgment, therefore, is appropriate for defendants.

 The equities of this case support this conclusion. It appears that Wong has invoked his PRC nationality for the sole purpose of deferring his deportation until the EO runs out in 1994, that he improperly overstayed his visa, and that he would be deportable without question but for the potential application of the EO. Probably most telling is the fact that Wong's arguments center on the rights of the PRC to protect its nationals and individuals it chooses to call nationals. In contrast, the motivation behind the EO was protection of PRC nationals from the PRC government in the wake of Tianamen Square. It seems singularly improper for Wong to be arguing the importance of heeding PRC prerogatives and predilections in interpreting an executive order specifically intended to accord temporary asylum from the PRC. *fn8"

 Both sides present their arguments by citing international law, *fn9" INS opinions, and the letters quoted above. While none of these references are controlling, the deference owed to the executive branch and the lack of disputed facts provides clear direction to the Court. Taking only the undisputed facts as true, Wong cannot be considered a PRC national for the purposes of protection under the umbrella of the EO. Accordingly,

 IT IS HEREBY ORDERED that:

 1. Defendants' motion for summary judgment is GRANTED.

 2. Plaintiff's motion for summary judgment is DENIED.

 3. The parties shall pay their own costs.

 Dated: October 31, 1991.

 William H. Orrick

 United States District Judge


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