Rosenberg v. Yee Chien Woo

In 1953, respondent fled mainland China, of which he was a national, going to Hong Kong, where he resided with his family until 1960, when he came to the United States as a business visitor. He remained in this country, though he kept his business in Hong Kong for several years. His temporary permit having expired, the Immigration and Naturalization Service (INS) in 1966 began deportation proceedings. Respondent then sought classification as a refugee under § 203 (a)(7) of the Immigration and Nationality Act of 1952, which provides that aliens may apply in any non-Communist country for conditional entry into the United States if (i) they have fled from any Communist country because of persecution or fear of persecution for reasons of race, religion, or political opinion, (ii) are remaining away from that country for those reasons, and (iii) are not nationals of the country in which they apply for conditional entry. The INS Director denied respondent's application on the ground that § 203 (a)(7) requires that "physical presence in the United States [be] a consequence of an alien's flight in search of a refuge" and that such presence must be "reasonably proximate to the flight and not one following a flight remote in point of time or intervening residence in a third country reasonably constituting a termination of the original flight in search of refuge." Without deciding whether resettlement would have barred respondent's claim, the District Court reversed the INS determination, on the ground that respondent had never firmly resettled in Hong Kong. The Court of Appeals affirmed on the basis that the relevant factor was not the "firmly resettled" issue but that under § 203 (a)(7)(iii) respondent was a national of Communist China, from which he was a refugee, and not a national of Hong Kong.

Held: Whether a refugee has already "firmly resettled" in another country is relevant to determining the availability to him of the asylum provision of § 203 (a)(7), since Congress did not intend to grant asylum to a refugee who has found permanent shelter in another country, and the § 203 (a)(7)(iii) nationality requirement is no substitute for the "resettlement" concept. Pp. 52-58.

BLACK, J., delivered the opinion of the Court, in which BURGER, C.J., and HARLAN, WHITE, and BLACKMUN, JJ., joined. STEWART, J., filed a dissenting opinion, in which DOUGLAS, BRENNAN, and MARSHALL, JJ., joined, post, p. 58.

Charles Gordon argued the cause for petitioner. With him on the briefs were Solicitor General Griswold, Assistant Attorney General Wilson, Jerome M. Feit, Beatrice Rosenberg, Paul C. Summitt, and George W. Masterton.

Gordon G. Dale argued the cause and filed a brief for respondent.