264 F.2d 52

WONG HING GOON, Appellant,
v.
Herbert BROWNELL, Jr., Attorney General of the United States and Albert Del Guercio, District Director of Immigration and Naturalization Service, Appellees.

No. 15425.

United States Court of Appeals Ninth Circuit.

February 18, 1959.

Bernard C. Brennan, George S. Lee, William E. Cornell, Newton, Cornell & Irvin, Los Angeles, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., James R. Dooley, Richard A. Lavine, Asst. U. S. Attys., Los Angeles, Cal., for appellees.

Before STEPHENS, BARNES and HAMLEY, Circuit Judges.

STEPHENS, Circuit Judge.

1

Appellant is a Chinese citizen who arrived in the United States for the first time in 1952 to prosecute his claim of blood relationship to a United States citizen. This claim was denied by the Immigration and Naturalization Service, and its decision was upheld on appeal.

2

Thereafter, appellant filed an application under Section 243(h) of the Immigration and Nationality Act alleging that he would be subject to physical persecution if deported to China. A hearing on the application was denied on the grounds of lack of jurisdiction. Appellant then commenced this action in the District Court seeking an order for declaratory relief and ordering appellees to grant the hearing requested. The District Court granted a summary judgment for appellees.

3

This case involves the interpretation of Section 243(h) which authorizes the Attorney General to withhold the deportation of any alien within the United States if the alien would be subject to physical persecution.1 The question is whether appellant, an alien, was "within the United States" as that phrase is used in Section 243(h).

4

Both parties agreed that the facts in the present case were indistinguishable from those in Leng May Ma v. Barber, 9 Cir., 241 F.2d 85, which was then awaiting review by the United States Supreme Court.2 In Leng May Ma we held that an alien seeking admission to the United States and physically present here was not within the United States in the meaning of Section 243(h). This decision was upheld on review by the United States Supreme Court, Leng May Ma v. Barber, 357 U.S. 185, 78 S. Ct. 1072, 2 L. Ed. 2d 1246. Accordingly, the judgment of the District Court denying relief to appellant was proper and is affirmed.

Notes:

1

"(h) The Attorney General is authorized to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to physical persecution and for such period of time as he deems to be necessary for such reason." Section 243(h) of the Immigration and Nationality Act, 66 Stat. 214, 8 U.S.C.A. § 1253(h)

2

Page 5 in appellant's brief; page 5 in appellees' brief