Leong Leun Do A/K/A Wing Sang v. P. A. Esperdy, District Director of Immigration and Naturalization for the District of New York

WATERMAN, Circuit Judge.

By this appeal appellant raises several issues under the Refugee Relief Act of 1953, § 6, 67 Stat. 403 (1953), as amended, 68 Stat. 1044 (1954), 50 U.S.C.A.Appendix, § 1971d,1 and the Immigration and Nationality Act of 1952, § 243(a), 66 Stat. 212, 8 U.S.C.A. § 1253 (a) .2

Appellant is a native and citizen of China. He engaged in the currency exchange business in that country from 1934 to 1949; but in the latter year, fearing persecution at the hands of the *469Communists, he fled to the Dominican Republic, entering that country on a merchant’s visa. He stayed in the Dominican Republic for eleven months, until July 1950. That month he entered the United States as a non-immigrant visitor on a three month permit for the purpose of winding up the affairs of his deceased brother. When he entered this country he possessed a permit from the Dominican Republic giving him the right to re-enter that country if application for re-entry were made within the time limits stated in the permit, and he possessed an airlines return ticket. He remained in the United States beyond the three months’ period, his Dominican Republic re-entry permit expired, and the Immigration and Naturalization Service commenced deportation proceedings against him in 1951. At the deportation hearing a Special Inquiry Officer of the Immigration and Naturalization Service concluded that appellant was deportable, and the Board of Immigration Appeals affirmed that decision, but to date he has remained here.

In 1953, to aid persons fleeing from countries taken over by the Communists, Congress passed the Refugee Relief Act of 1953. Two years later appellant applied for adjustment of his status in this country to that of a permanent resident under section 6 of that act. See note 1 supra. The Special Inquiry Officer who considered this application denied it for he found on the evidence that the applicant’s last foreign residence was in the Dominican Republic and that the applicant had made no showing that he was unable to return to that country on account of persecution or fear of persecution because of race, religion, or political belief. The Acting Regional Commissioner approved the recommendation of the Special Inquiry Officer, and the Immigration Service prepared to deport appellant.

Appellant had elected no country to which he wished to be sent in the event of deportation, and so the Immigration Service, under section 243(a) of the Immigration and Nationality Act of 1952, see note 2 supra, asked the Republic of China (Formosa), the Dominican Republic, and the British Crown Colony of Hong Kong whether any of them would accept appellant. The Service did not ask the government on the Chinese mainland. The first two governments contacted refused to accept him, but Hong Kong consented, and he was ordered deported there.

Appellant then brought the present action in the United States District Court for the Southern District of New York so as to obtain judicial review of the order of the Immigration and Naturalization Service denying his application for adjustment of status under the Refugee Relief Act of 1953 and of the subsequent order of the Service directing that he be deported to Hong Kong. The defendant moved for summary judgment, which was granted by the court. The court held, first, that the administrative finding that appellant’s last residence was in the Dominican Republic was supported by substantial evidence; second, that as appellant failed to demonstrate that the reason for his inability to return to the Dominican Republic was persecution or fear of persecution, he could not obtain the benefit of the Refugee Relief Act of 1953; and, third, that the Immigration Service was not obligated to ask Communist China to accept appellant before the Service was entitled to deport him to Hong Kong. On appeal from that decision appellant seeks to have us review the action the court below took on each of these three issues.

We shall turn first to a resolution of the second issue, whether appellant’s inability to return to the Dominican Republic for reasons other than fear of persecution precludes him from obtaining the benefit of the Refugee Relief Act of 1953, § 6. Inasmuch as our answer to that issue is determinative of the appeal, we would not be warranted in reversing the finding of the Immigration Service that appellant’s “last residence” was in the Dominican Republic. The Government *470asks us to interpret the language of Section 6 “unable to return to the country of his birth, or nationality, or last residence, because of fear of persecution” to mean that appellant, in order to obtain the benefits of the Act, must show that he is unable to go to the three countries referred to in the statute and that his inability to go to each one of them is caused by persecution or fear of persecution. Appellant, on the ■ other hand, seeks to have us adopt the interpretation which the Court of Appeals for the Ninth Circuit reached and applied in Cheng Lee King v. Carnahan, 253 F.2d 893 (9 Cir.1958). In that case a merchant seaman, a Chinese national, born in China but with a “last residence” in Singapore, sought permanent residence under the Refugee Relief Act of 1953, § 6, alleging a fear of persecution in China and an inability to return to Singapore for a different reason. The Ninth Circuit held that the statutory language permits relief to be given to an alien applicant who demonstrates that he is unable to return to any one of the three countries because of persecution or fear of persecution, and also demonstrates an inability, for whatever reasons, to return to the others.

The Refugee Relief Act of 1953 was enacted mainly to provide admission into this country for about 240,000 persons who had fled from Communist governments and were living abroad in desperate conditions. Section 3 of the act, 67 Stat. 401 (1953), 50 U.S.C.A.Appendix, § 1971a (1958), authorized the issuance of 205,000 special nonquota immigrant visas for those aliens and an additional number of such visas for their spouses and dependents. Section 4, 67 Stat. 401 (1953), 50 U.S.C.A.Apppendix, § 1971b (1958), allotted these visas among refugees having various ethnic origins. Section 2(a), 67 Stat. 400, 50 U.S.C.A.

Appendix, § 1971(a), defined “refugee” as follows:

“(a) ‘Refugee’ means any person in a country or area which is neither Communist nor Communist-dominated, who because of persecution, fear of persecution, natural calamity or military operations is out of his usual place of abode and unable to return thereto, who has not been firmly resettled, and who is in urgent need of assistance for the essentials of life or for transportation.”

Section 6, with which the present casé-is primarily concerned, was intended to-grant relief to a rather small group of not more than 5000 persons who had-entered this country as bona fide non-immigrants and were stranded here because of persecution at home.3 It was the purpose of this relatively insignificant provision of the act to extend refugee relief to those aliens stranded in the United States who would have come-within the other provisions of the act if they had been refugees abroad. The-House Report to the 1953 act stated:

Section 6

“The proposed adjustment of status of aliens who would fall within the refugee categories specified in section 4 except for the fact that they are now in the United States,, having entered lawfully in a temporary nonimmigrant status, represents the committee’s belief that relief should be granted to bona fidetemporary residents, if aliens in situations identical to theirs are to-be permitted to avail themselves of' newly offered immigration opportunities.” H.R.Rep.No.974, 83d Gong., 1st Sess. 18 (1953), U.S. Code Congressional and Administrative News 1953, p. 2103.

*471An alien lawfully present in the United States in the temporary status of a non-immigrant visitor is a person entitled to seek the relief afforded by section 6, if “he is unable to return to the country of his birth, or nationality, or last residence, because of persecution or fear of persecution * * Thus, without according to any one of the three countries a priority over the other two, the statute refers to the country of the applicant’s birth, the country of his nationality, and the country of his last residence. If the present case involved an applicant’s inability, because of a non-perseeutory reason, to return to the first-mentioned country, that of his birth, instead of inability, for a non-persecutory reason, to return to the third-mentioned country, that of his last residence, it seems clear that the applicant would be eligible for section 6 relief if he could not return to his last residence because of fear of persecution there. Regardless of his place of birth or of nationality, a person who is fleeing from persecution in the country of his last residence and who is present on a temporary basis in a displaced persons’ center, or anywhere else in the world in a country not that of his last residence, would obviously be a refugee within the spirit and the letter of the Refugee Relief Act. In the words of Section 2(a), such a person would be out of “his usual place of abode,” “unable to return thereto,” and “not firmly Resettled” — all as a result of persecution or fear of persecution. As pointed out ¿bove, section 6 of the act was intended to benefit persons already within the United States as bona fide non-immigrant aliens who would have been refugees under other provisions of the act if they were beyond our borders. It would be contrary to the humane policy of the act, and an oppressive interpretation of section 6 thereof, to preclude a longtime resident and national of a country taken over by the Communists from obtaining the relief provided by section 6 for the sole reason that he was born outside of that country (assuming that he is unable to return to the place of his birth for a non-per-secutory reason).

Here, instead of the supposititious case just discussed, we have a case involving flight from a Communist government in the country of one’s birth and nationality, coupled with an inability, for a non-persecutory reason, to return to one’s last residence. Inasmuch as the statute envisions no priorities among the three countries set forth therein, we should decide the case before us, unless there be a clear reason for a contrary ruling, in the same way that the case mentioned in the preceding paragraph would be decided.

Appellant is one who fled persecution at the hands of the Communists. His entire odyssey away from his homeland, now in its thirteenth year, commenced as a result of the Communist conquest of China. Furthermore, it cannot be said that he was “firmly resettled” in the Dominican Republic even if under our immigration laws he was technically a “resident” of that land.4 Leong Leun Do entered the Dominican Republic and remained there eleven months on a businessman’s visa. Neither party to this litigation has given us the text of the Dominican Republic’s immigration laws which define the status of one in that country on such a visa. However, if the law of the Dominican Republic is at all similar to the United States statute applicable to business visitors, it is clear that appellant could only remain in the Dominican Republic temporarily.5 Ap*472pellant certainly fits into the current image of a political refugee. It should be noted that the Court of Appeals for the District of Columbia Circuit has announced that applicants for adjustment of status under section 6 need not comply with all of the specific requirements imposed on those who would seek entrance into the United States as “refugees” under the other provisions of the Refugee Relief Act of 1953. Chien Fan Chu v. Brownell, 101 U.S.App.D.C. 204, 247 F.2d 790, 793, 795 (1957).

It might be asserted that the purpose of the Refugee Relief Act did not include relief to fleeing persons who had already found havens abroad. The conference report to the 1953 act, however, in defining the term “firmly resettled” tends to refute this proposition:

“While no definition is contained in the act, the conferees wish to state that the term ‘firm resettlement’ as applied to prospective beneficiaries of this legislation is not designed automatically to exclude aliens from the refugee category solely on the ground that they have been collectively, by law or edict, granted full or limited citizenship rights and privileges in any area of their present residence.” Cong. R. 1069, 83d Cong., 1st Sess., 2 U.S. Code Cong. & Ad.News, p. 2123 (1953).

Also, we point out that section 6 of the Refugee Relief Act only applies to non-immigrant aliens who lawfully entered this country before the enactment of that statute. Therefore, even if we hold in appellant’s favor, we shall not be fostering schemes by which persons born in Communist-controlled countries, but longstanding residents of other countries not Communist-controlled, enter the United States as bona fide non-immigrants, and then purposefully foreclose their rights to re-enter the land of their last residence, thereby claiming a right to permanent residence here under section 6. In other words, our decision here only affects aliens present here prior to midsummer 1953, and does not involve persons who will intentionally but unjustifiably seek to qualify for the privilege bestowed by section 6.

True, interpreting the language of section 6 in the way appellant asks us to interpret it could conceivably lead to an extension of the coverage of the section to include a person bom in a country now Communist-controlled and who, having for many years resided in a non-Communist country, happened to be lawfully in the United States on August 7, 1953, and who, by plan or accident, precluded a return to his last residence abroad. Even if it were not one of the purposes of the Refugee Relief Act to facilitate such a person’s permanent residence in the United States we would hazard a guess that there are very few persons, if any, in this position. More-ever, within section 6 itself Congress inserted a safeguard that would prevent such persons from taking advantage of the section’s benefits, for it is provided that Congress must approve by concurrent resolution the granting of permanent resident status to any alien seeking the benefit of section 6 before an alien *473may attain that status.6 Hence we should resolve whatever ambiguities there may be in the statutory language so as to preserve to Congress this final power to decide an alien’s status under the act.

Another argument against appellant’s interpretation of the clause “unable to return to the country of his birth, or nationality, or last residence, because of persecution or fear of persecution” is that the words “because of persecution or fear of persecution” should in every instance modify the phrase “unable to return.” As we have shown, a blind literalism leads to absurd results that would negate, in worthy cases, the very purposes which the Act was adopted to accomplish. This being so, the statute should be interpreted so as to include all worthy eases (even if an occasional unworthy one is also included) rather than to exclude worthy cases because of the possibility that an interpretation consistent with the Congressional purposes may give an occasional opportunity to an unworthy one.

If Congress had clearly manifested an intention contrary to appellant’s position we would interpret the statutory language in accordance with the grammar of the sentence. But Congress has nowhere indicated an awareness of the problem presented to us by this appeal. The most that we can infer from the legislative history of the 1953 act and its 1954 amendments is that Congress intended that one should read the countries listed in the statute in the conjunctive instead of in the disjunctive.7 Apparently Congress did not *474think it inequitable to require a person to return to one of the three countries, if he could so return, even if he could not return to one or both of the other two countries. See Cheng Lee King v. Carnahan, 253 F.2d 893 (9 Cir.1958); Lubini v. Brownell, 102 U.S.App.D.C. 125, 251 F.2d 28 (per curiam), cert. denied, sub nom. Lubini v. Rogers, 356 U.S. 966, 78 S.Ct. 1005, 2 L.Ed.2d 1073 (1958); Fong Sen v. United States Immigration and Naturalization Serv., 137 F.Supp. 236 (E.D.La.), aff’d per curiam, 234 F.2d 656 (5 Cir.1956). In the case before us, however, the applicant cannot return to any of the three countries.8

As the court below recognized, 197 F.Supp. at 607, there is no indication that any draftsman or congressman intended to deny relief to aliens in appellant’s situation, or that any thought was given to the particular problem before us. Hence it is hopeless to seek a mythical congressional “intent” in order to resolve the issue at hand. Cf. Associated Telephone & Telegraph Co. v. United States (2 Cir.1962), 306 F.2d 824.

Even as the whole is often greater than the sum of its parts, a statute may encompass more than the combination of its properly parsed phrases. We agree with the statement of Judge Her-lands in D’Antonio v. Shaughnessy, 139 F.Supp. 719, 723 (S.D.N.Y.1956), that “the statute * * * apparently reflects a liberal and remedial purpose on the part of Congress; and it should be construed to effectuate that purpose.” See also Ching Lan Foo v. Brownell, 148 F.Supp. 420 (D.D.C.1957); Shio Han Sun v. Barber, 144 F.Supp. 850 (N.D.Cal.1956). Furthermore, it does not appear that a holding favorable to the alien in this case would be inconsistent with any of the policies behind the statute. If we are wrong in this assumption, Congress may still correct our error, as provided by the very section that we are now interpreting.9 With these considerations in mind, we deem it wiser and fairer to interpret the statute in favor of the alien. Therefore, we conclude that under section 6 of the Refugee Relief Act of 1953 an alien who establishes that he is unable to return to one or more of the three countries listed therein because of persecution or fear of persecution and is also unable to return to the remaining countries for nonpersecutory reasons is eligible to seek the relief that Act provides.

Accordingly, it is unnecessary for us to discuss the other two issues set forth earlier in this opinion that appellant presented to us on this appeal.

*475The judgment of the district court is reversed and the cause remanded to that court for further proceedings not inconsistent with this opinion.

. Section 6 provides in pertinent part:

“Any alien who establishes that prior to July 1, 1953, he lawfully entered the United States as a bona fide nonimmi-grant and that he is unable to return to the country of his birth, or nationality, or last residence because of persecution or fear of persecution on account of race, religion, or political opinion * * * may, not later than June 30, 1955, apply to the Attorney General of the United States for an adjustment of his immigration status.”

. Section 243(a) provides:

“The deportation of an alien in the United States provided for in this Act, or any other Act or treaty, shall be directed by the Attorney General to a country promptly designated by the alien if that country is willing to áecept him into its territory, unless the Attorney General, in his discretion, concludes that deportation to such country would be prejudicial to the interests of the United States. No alien shall be permitted to make more than one such designation, nor shall any alien designate, as the place to which he wishes to be deported, any foreign territory contiguous to the United States or any island adjacent thereto or adjacent to the United States unless such alien is a native, citizen, subject, or national of, or had a residence in such designated foreign contiguous territory or adjacent island. If the government of the country designated by the alien fails finally to advise the Attorney General within three months following original inquiry whether that government will or will not accept such alien into its territory, such designation may thereafter be disregarded. Thereupon deportation of such alien shall be directed to any country of which such alien is a subject national, or citizen if such country is willing to accept him into its territory. If the government of such country fails finally to advise the Attorney General or the alien within three months following the date of original inquiry, or within such other period as the Attorney General shall deem reasonable under the circumstances in a particular case, whether that government will or will not accept such alien into its territory, then such deportation shall be directed by the Attorney General within his discretion and without necessarily giving any priority or preference because of their order as herein set forth either—
“(1) to the country from which such alien last entered the United States;
“(2) to the country in which is located the foreign port at which such alien embarked for the United States or for foreign contiguous territory;
“(3) to the country in which he was born;
“(4) to the country in which the place of his birth is situated at the time he is ordered deported;
“(5) to any country in which he resided prior to entering the country from which he entered the United States;
“(6) to the country which had sovereignty over the birthplace of the alien at the time of his birth; or
“(7) if deportation to any of the foregoing places or countries is impracticable, inadvisable, or impossible, then to any country which is willing to accept such alien into its territory.”

. As originally enacted in 1953, section 6 required that the persecution or fear thereof result from events occurring after the alien had entered this country. 67 Stat. 403 (1953). The 1954 amendment removed this limitation. See S.Rep. No. 2045, 83d Cong., 2d Sess. 4-5 (1954), U.S.Code Congressional and Administrative News 1954, p. 3688.

. Section 101(a) (33) of the Immigration and Nationality Act of 1952, 66 Stat. 173, 8 U.S.C.A. § 1101(a) (33) defines “residence” as follows:

“(33) The term ‘residence’ means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.”

. The status of a non-immigrant businessman alien is defined in the Immigration *472and Nationality Act of 1952, § 101(a) (15) (B), (E), 66 Stat. 171, 8 U.S.C.A. § 1101(a) (15) (B), (E):

“(B) an alien * * * having a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for business * * *
“(E) an alien entitled to enter the United States under and in pursuance of the provisions of a treaty of commerce and navigation between the United States and the foreign state of which he is a national * * * (i) solely to carry on substantial trade, principally between the United States and the foreign state of which he is a national; or (ii) solely to develop and direct the operations of an enterprise in which lie lias invested, or of- an enterprise in which he is actively in the process of investing, a substantial amount of capital * * (Emphasis added.).

. Section 6 provides:

“[T]he Attorney General shall report to the Congress all the pertinent facts in the case. If, during the session of the Congress in which a case is reported or prior to the end of the session of the Congress next following the session in which a case is reported, the Congress passes a concurrent resolution stating in substance that it approves the granting of the status of an alien lawfully admitted for permanent residence to such alien, the Attorney General is authorized, upon the payment of the required visa fee, which shall be deposited in the Treasury of the United States to the account of miscellaneous receipts, to record the alien’s lawful admission for permanent residence as of the date of the passage of such concurrent resolution. If, within the above specified time, the Congress does not pass such a concurrent resolution, or, if either the Senate or the House of Representatives passes a resolution stating in substance that it does not approve the granting of the status of an alien lawfully admitted for permanent residence, the Attorney General shall thereupon deport such alien in the manner provided by law * *

. The legislative reports to the 1953 act do not refer to any situation involving more than one country. See H.R.Rep. No. 974, 83d Cong., 1st Sess. (1953); S.Rep. No. 629, 83d Cong., 1st Sess. (1953).

In 1954 the House proposed to amend section 6 to read as follows: “ * * * unable to return to the country of hia birth, nationality, and last residence because of persecution or fear of persecution * * * ” (Emphasis added.) H.R. 8193, 83d Cong., 2d Sess. § 3 (1954). The Senate deleted the word “and” and restored the “or” construction found in the 1953 act. Thus, in the statute the countries have always been separated by the word “or.” When it restored the “or,” the 1954 Senate Committee on the Judiciary commented:

“The committee has restored the language ‘birth, or nationality, or last residence,’ which is the language presently contained in section 6 of the Refugee Relief Act of 1953. The committee understands that this language has been construed by the Immigration and Naturalization Service to mean that if the applicant for adjustment is able to return to any such country without persecution or fear of persecution, he is not eligible for adjustment. Since the existing language, as construed, correctly expresses the intent of the section no purpose would be served by modifying the language as proposed in the bill.”

S.Rep. No. 2045, 83d Cong., 2d Sess. 5 (1954).

This statement by the Senate Judiciary Committee makes it clear that the countries listed in the statute should be read in the conjunctive. But it is a non sequitur to conclude that by referring to the situation in which one is able to return to one of the listed countries the committee had also considered the situa*474tion created when one is unable to return to one country because of persecution and unable to return to the other country or countries for other reasons.

The statement just quoted was immediately preceded in the Senate Report by this less illuminating comment:

“The proposed amendment would * * * permit the adjustment in those cases where because of events which existed at the time the refugee fled to this country he cannot return to his place of birth, or place of his nationality, or place of his last residence, because of fear of persecution in any of those countries if there is more than one.”

The Senate Report also stated one of the purposes of the 1954 amendments to be: “ * * * (3) [to] permit additional refugees within the United States who are unable to return to any country of their birth, nationality, or last residence because of fear of persecution * * Id. at 1; see note 3 supra.

. In Fong Sen v. United States Immigration and Naturalization Serv., supra, District Judge (later Circuit Judge) Wright, in holding against the alien in that case, pointed out that Fong Sen was able to return to the country of his last residence, but the opinion does not disclose whether that fact was essential to the holding the court reached.

. Section 6 of the Refugee Relief Act is not one of the provisions in our immigration laws that grants broad discretionary power to the Immigration Service. Compare Immigration and Nationality Act of 1952, § 243(h), 66 Stat. 214, 8 U.S.C.A. § 1253(h). In the Refugee Relief Act, § 6, Congress retained for itself the power to exercise discretion. Cheng Fu Sheng v. Barber, 269 F.2d 497 (9 Cir. 1959); see 105 Cong.Rec. 17586 (1959); H.R.Rep. No. 1176, 86th Cong., 1st Sess. (1959).