Nice

This action for a declaratory judgment came on to be heard on cross-motions for summary judgment. Since the material facts are not in dispute and only a question of law is involved the Court is free to grant summary judgment.

Plaintiff, “a native and citizen of the Republic of China”, 1 seeks a decision that his application to the Immigration and Naturalization Service (hereinafter referred to as the Service) for adjustment of his status to that of a permanent resident alien, under § 249 of the Immigration and Nationality Act of June 27, 1952, 8 U.S.C.A. § 1259 , as ■amended, 2 may not be denied on the ground that he has failed to reside continuously in the United States since a date prior to June 28, 1940. Paragraph (b) of this provision sets forth the second of four prerequisites to the exercise of the Attorney-General’s discretion. The plaintiff asks the Court to hold that he has satisfied this prerequisite.

Plaintiff first entered the United States on June 17, 1939, 3 at which time he was thirty-five years of age. This entry was as a non-immigrant crewman. He overstayed his shore leave and on June 26, 1942, a warrant for arrest in deportation proceedings was served on him. A…