Case Summary: Fong Sen v. United States Immigration and Naturalization Service

Factual and Procedural Background

Petitioner Fong Sen, a Chinese national born September 4, 1911, was admitted temporarily to the United States on February 17, 1949, as a visitor for business. Prior to that admission he resided in Hong Kong (departing China for Hong Kong in 1931, returning to China about 1941, remaining there until 1945, then returning to Hong Kong until his departure for the United States in 1949). Petitioner applied to the Immigration and Naturalization Service (INS) for adjustment of his temporary nonimmigrant status to lawful permanent resident status under Section 6 of the Refugee Relief Act of 1953. After a hearing the Acting Regional Commissioner denied the application. Because, under the applicable regulations, no administrative appeal lay from that determination, the court found petitioner had exhausted administrative remedies and permitted judicial review under Section 10 of the Administrative Procedure Act. Petitioner sought declaratory judgment, review of the administrative order, and injunctive relief. The court dismissed the complaint.

Legal Issues Presented

Whether, under Section 6 of the Refugee Relief Act of 1953, petitioner met the burden to establish he was unable to return to his country of last residence because of persecution or fear of persecution on account of race, religion, or political opinion.
Whether the administrative denial of petitioner's application was subject to judicial review under Section 10 of the Administrative Procedure Act (i.e., whether administrative remedies were exhausted and review was appropriate).
Whether the administrative proceedings were manifestly unfair, whether there was a manifest abuse of discretion or error of law, or whether the administrative finding lacked substantial evidence when the record is considered as a whole.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Shaughnessy v. Pedreiro, 349 U.S. 48, 75 S.Ct. 591.	Supports that agency action is reviewable by the court under the Administrative Procedure Act once administrative remedies are exhausted.	The court relied on this authority to conclude that, because no administrative appeal lay from the Regional Commissioner's determination, the agency action was reviewable by the court under Section 10 of the APA.
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456.	States the standard of judicial review: courts must uphold administrative findings unless proceedings were manifestly unfair, discretion manifestly abused, error of law committed, or there is no substantial evidence in the record as a whole.	The court applied this standard in reviewing the INS's denial, assessing whether substantial evidence supported the administrative finding and whether any unfairness, abuse, or legal error occurred.
O'Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 71 S.Ct. 470, 95 L.Ed. 483.	Reinforces the judicial review standard articulated in Universal Camera regarding deference to administrative findings subject to the specified exceptions.	The court cited this case alongside Universal Camera to frame the limits of judicial intervention and to justify upholding the administrative decision where those exceptions were not shown.

Court's Reasoning and Analysis

The court outlined the statutory burden under Section 6 of the Refugee Relief Act of 1953: the applicant must establish to the satisfaction of the administrative authorities that he is unable to return to his country of last residence because of persecution or fear of persecution on account of race, religion, or political opinion. Reviewing the administrative record, the court found petitioner offered no proof to sustain that burden. Petitioner testified he was unable to return to his country of birth (China) because of fear of persecution and that he feared to return to his place of last residence, Hong Kong, but he did not indicate why return to Hong Kong would be dangerous. The court noted the record showed petitioner was able to return to Hong Kong and took judicial notice that Hong Kong was a British Crown colony whose authorities had not undertaken persecution on account of race, religion, or political opinion. Applying the administrative-review standard (that courts must defer unless proceedings were manifestly unfair, discretion manifestly abused, error of law committed, or there is no substantial evidence), the court concluded the administrative denial was supported by sufficient evidence and that petitioner made no contention that the proceedings were manifestly unfair or otherwise fell within the exceptions permitting judicial relief. Therefore, the court declined to interfere with the administrative determination.

Holding and Implications

Holding: The court dismissed petitioner's complaint and upheld the administrative denial of his application for adjustment of status under Section 6 of the Refugee Relief Act of 1953.

Implications: The direct effect is that the INS's denial of petitioner's application stands and petitioner receives no relief. The opinion does not announce or rely upon any new legal precedent beyond applying established standards of administrative review.

Show full summary ...

FONG SEN, Plaintiff, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Defendant.

WRIGHT, District Judge.

Petitioner, a Chinese national lawfully in the United States under a temporary permit, applied to the Immigration and Naturalization Service for adjustment of his temporary nonimmigrant status to that of a lawful permanent resident under the provisions of Section 6 of the Refugee Relief Act of 1953, as amended, 67 Stat. 400 (1953), amended 68 Stat. 1044 (1954). After a hearing on the application, it was denied. Petitioner is here asking for a declaratory judgment, review of the administrative order, and injunctive relief.

50 U.S.C.A.Appendix, § 1971d.

The record made before the Immigration and Naturalization Service shows that Fong Sen was born in Sunwui, Province of Kwantgung, China, on September 4, 1911. In 1931 he departed China for the British colony of Hong Kong, residing there until about 1941 when he returned to China on account of the Japanese occupation of Hong Kong. He remained in China until 1945 when he returned to Hong Kong, where he resided until his departure for the United States in 1949. On February 17, 1949, he was admitted to the United States temporarily as a visitor for business until May 17, 1949.

Fong Sen testified that he is unable to return to the country of his birth because of fear of persecution, that country being Communist dominated. He also testified that he fears to return to his place of last residence, Hong Kong, as it might be dangerous to return to that country. He did not indicate why it would be dangerous for him to return to Hong Kong. The record shows that applicant is able to return to Hong Kong and the court takes judicial notice of the fact that Hong Kong is a British Crown colony and that the British authorities there have not undertaken any persecution of anyone on account of race, religion or political opinion.

Plaintiff's application for adjustment of temporary nonimmigrant status under the provisions of Section 6 of the Refugee Relief Act of 1953 was denied by the Acting Regional Commissioner of the Immigration and Naturalization Service. Since, under the regulations, no administrative appeal lies from the Regional Commissioner's determination, plaintiff has exhausted his administrative remedies. The agency action, therefore, is reviewable by this court under Section 10 of the Administrative Procedure Act. Shaughnessy v. Pedreiro, 349 U.S. 48, 75 S.Ct. 591. Unless, upon the record of the administrative hearing afforded petitioner, the proceedings were manifestly unfair, discretion manifestly abused, error of law committed, or unless these proceedings contain no substantial evidence, considering the record as a whole, to support the administrative finding, that finding must stand. Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456; O'Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 71 S.Ct. 470, 95 L.Ed. 483.

5 U.S.C.A. § 1009.

Under Section 6 of the Refugee Relief Act of 1953, the burden is upon the applicant to establish to the satisfaction of the administrative authorities "that he is unable to return to the country of his * * * last residence because of persecution or fear of persecution on account of race, religion, or political opinion * * *." Examination of the record of the hearing afforded petitioner by Immigration and Naturalization Service discloses that petitioner submitted no proof to sustain that burden. Petitioner's own testimony indicates that Hong Kong is his last place of residence prior to coming to this country and no basis for fear of returning thereto is shown. Accordingly, it is the determination of this court that the administrative decision denying petitioner's application for adjustment of status under Section 6 of the Refugee Relief Act is supported by sufficient evidence. Since petitioner makes no contention that the agency proceeding was manifestly unfair, that a manifest abuse of discretion or error of law has been committed, this court may not interfere with the administrative determination.

For the reasons stated, petitioner's complaint must be dismissed.

FONG SEN v. U.S. IMMIGRATION NAT. SERVICE, (E.D.La. 1956)