Abraham Lebenkoff, for petitioners.
Solicitor General Cox, for respondent.
Petition for writ of certiorari to the United States Court of Appeals for the Second Circuit.
Mr. Justice DOUGLAS dissenting:
Section 243(a) of the Immigration and Nationality Act (66 Stat. 163, 212, 8 U.S.C. 1253(a)) provides in pertinent part:
Respondent and both lower federal courts have determined that petitioners, who were both born on the mainland of China, who came to the United States as crewmen in 1953 and 1955, and who have never resided in Formosa, are 'subject nation[s] or citizen[s]' of the Republic of China, located on Formosa. Accordingly, when the Republic of China refused to accept petitioners, they were ordered deported, under other provisions of the Act, to Hong Kong and the Netherlands-regimes to which they have never been subject-either as citizens or as nationals, petitioners having been born on the mainland of China, as I have said.
[ Ng Kam Fook v. Esperdy 375 U.S. 955 (1963) ][955-Continued]
The decision below is predicated in part upon nonrecognition of the Peking regime by the United States, and the fear that a contrary holding would require a preliminary inquiry concerning its willingness to accept petitioners 'which might impliedly suggest recognition and thus might embarrass the decisions of the Executive Department as to foreign policies.' 320 F.2d 86, 89. But that overlooks the fact that since 1955 we have been in regular contact with the Peking regime, first by Alexis Johnson, our former Ambassador to Czechoslovakia and now by John M. Cabot, our Ambassador to Poland; and, as the press has related,1 the matters discussed have reached far more delicate questions than this one, which, though minor, [375 U.S. 955 , 956] touches a basic human right.
The proper construction of the statute poses a substantial question,2 which should be considered by this Court.
I would grant certiorari.
[ Footnote 1 ] See Department of State, Release Aug. 14, 1963, interview of U. Alexis Juhnson by Irving Chapman; Washington Post, Sept. 12, 1963, p. A-24; New York Times, Aug. 8, 1963, pp. 1-2.
[ Footnote 2 ] Chief Judge Lumbard stated in dissent, 320 F.2d 86, 90: