ROSENBERG v. YEE CHIEN WOO
Legal provision: Immigration and Naturalization, Immigration, Nationality, or Illegal Immigration Reform and Immigrant Responsibility Acts, as amended
Argument of Charles Gordon
Chief Justice Warren E. Burger: -- this morning in number 156, Rosenberg against Yee Chien Woo.
Mr. Gordon, you may proceed whenever you’re ready.
Mr. Charles Gordon: Mr. Chief Justice and may it please the Court.
In this case, an alien who has been an overstayed temporary visitor in the United States since 1965, claims a right to remain under a statute which grants special benefits to refugees.
The issue concerns the construction of Section 203 (a) (7) of the Immigration and Nationality Act which affords a haven for refugees who have been -- who are fled persecution in communist countries, who are unwilling or unable to return and who are not nationals of the country or area in which their application is made.
Respondent unquestionably fled communist China in 1953.
However, like hundreds of thousands of others, his flight stopped at Hong Kong where he was granted generous residence privileges, established a home, was married and had a child and continued to live for seven years.
In 1959, respondent came to the United States for the first time as a temporary visitor for business.
He stayed a few months and returned to his home in Hong Kong.
Justice Potter Stewart: He had established a business in Hong Kong, had he?
Mr. Charles Gordon: Business.
Justice Potter Stewart: What kind?
Mr. Charles Gordon: Merchandizing and clothing.
In 1960, the respondent again came to the United States as a business visitor and left his wife in Hong Kong to operate the family business.
Chief Justice Warren E. Burger: When he left Red China, communist China, did he take his wife and child with him or did he live alone?
Mr. Charles Gordon: He left alone and was married in Hong Kong, and the child was born in Hong Kong.
He had previously been married in communist China.
His wife died and he had five children whom he left there.
He was married a second time in Hong Kong and have an additional child in Hong Kong.
After his coming to the United States in 1960, the respondent continued to remain in the United States.
His wife and child followed him to the United States in 1965, also entering as temporary visitors.
The temporary stay of the entire family expired in 1965 and they continued to remain here.
Deportation proceedings were brought against respondent and his wife and a deportation order was entered against them with the privilege of voluntary departure.
Justice John M. Harlan: Where they live in this country?
Mr. Charles Gordon: In California.
Immediately, the respondent filed an application for benefits under a proviso to Section 203 (a) (7) which grants refugee benefits to refugees who have lived in this country for two years.
That application was denied by the immigration and District Director by the Regional Commissioner on the ground that the respondent was no longer a refugee since he had established -- firmly established a residence and a home in Hong Kong.
He then sought judicial review.
The District Court ruled in his favor, finding that he had not been from the resettle in Hong Kong because of this allegation that he have never intended to remain their permanently and that he harbored an intention to come to the United States at all times.
The Court of Appeals affirmed.
They found, the Ninth Circuit.
The Ninth Circuit found that the question of whether he was firmly resettled was irrelevant.
The court said that under the statute, once respondent had been a refugee, he was entitled to its benefits even though he had established a stable new home in another country.
This con --
Justice William O. Douglas: That was because I gather the statute had been rephrased to --
Mr. Charles Gordon: It had and in a moment, I shall --
Justice William O. Douglas: Yes.
Mr. Charles Gordon: -- develop that.
That conclusion incidentally is opposed by the later decision of the Second Circuit in Shen against Esperdy which is reported in 428 F. 2d.
Now admittedly, Section 203 (a) (7) of the statute does not contain a specific disqualification of refugees who have been firmly resettled.
But I believe that the purpose to exclude them, clearly appears if we examine the history and the purpose of the statute.
After World War II, the United States became deeply concerned with the massive problems presented by millions of refugees’ leftover from that war and it developed temporary programs to deal with those problems.
These programs were reflected in a series of measures adopted from time to time.
The first of these, the major -- the first major statute was the Displaced Persons Act of 1948.
Under this statute in a three-and-a-half year period, the United States received approximately 400,000 refugees.
That statute did have specific language disqualifying refugees who are permanently, firmly resettled.
The next major statute was the Refugee Relief Act of 1953 under which, approximately 200,000 refugees were received into the United States and again, these statutes specifically excluded refugees who had been permanently resettled.
After that, the next statute was the Refugee Act of 1957.
This was a temporary statute again for a limited purpose, and the purpose was to assign approximately 18,000 visas that had been unused when the Refugee Relief Act had expired at the end of 1956.
The 1957 law said that these visas should be assigned to a group known as refuge escapees and in designating that group, it did not mention firm resettlement.
The next of these temporary statutes was the so called Fair Share Act of 1960.
Now, this again was a temporary measure.
It was designed to enable the United States to participate in a worldwide movement to enable the United Nations to close the remaining refugee camps.
And under the terms of this statute, the United States undertook to receive what it considered its fair share of these refugees in the camps; 25%.
Now again, this statute said nothing about refugees who had been firmly resettled.
Justice Potter Stewart: Do these camps date back to World War II?
Mr. Charles Gordon: World War II.
Justice Potter Stewart: They weren't the product of the 1956 events in Hungary or any --
Mr. Charles Gordon: No.
That’s completely independent and came later.
The camps remained -- it’s as strange as it may seem for all the years between World War II and 1960.
Justice Potter Stewart: 15 years after 1945.
Mr. Charles Gordon: And the problem had not yet been liquidated.
In 1960 – 1959, the United Nations undertook a concerted drive to close these camps and the United States cooperated with that movement in so called world refugee year and adopted the 1960 law as part of that movement.
Justice Potter Stewart: These were not -- this law was not concerned with the refugee camps in the Middle East?
Mr. Charles Gordon: No, specifically not because the United Nations mandate to which it was tied did not apply to the Middle East.
Again as I said, this law, the 1960 law did mention firm resettlement, and it did add language which excluded or which decreed that it would not apply to those who were nationals of the country in which their application was made.
Now from these developments, the Ninth Circuit took the position, came to the conclusion that because of this chain of events and the changes in the language of the statute, Congress had intended to make a change.
In the language of the court, this was a clear manifestation of congressional intent to change the criteria.
Justice John M. Harlan: What was the specific language that they arrived at?
Mr. Charles Gordon: Two things; one is in the Refugee Relief Act of 1953 and in it predecessor, the Displaced Persons Act of 1948, there was specific language barring refugees who had been from the resettlement.
Second, in the 1960 Fair Share Law, there was new language saying that its benefits would not apply to those who are nationals of the country in which the application was made.
The Court of Appeals for the Ninth Circuit concluded that this addition of the language “not a national” was intended to be a substitution for the criterion of those firmly resettled.
Now, no legislative history is cited by the Court of Appeals to support this conclusion, and I would suppose that if Congress had intended such a marked departure from the previously established procedures, criteria, it would have expressed its purpose in some clear manner.
Yet, nowhere in the legislative history is there any indication that a change was contemplated.
Moreover, the Second Circuit in a very careful and a very long and detailed opinion, studied the legislative history in much more detail and let’s say than the Ninth Circuit, they came to the conclusion that no change had been intended.
I think the 1957 law furnishes the key.
The 1957 law was the first law which changed the language, which eliminated the firmly resettlement.
But in the House report, reporting this legislation, and you recall Your Honors, this legislation was intended to take care of a group leftover from the previous law, the House Committee said they intended that in applying this law, the same criteria should be utilized.
So, it seems obvious that no change was intended.
Justice Thurgood Marshall: The Second Circuit pulled on the basis that the man had to actually be homeless?
Mr. Charles Gordon: Exactly.
Justice Thurgood Marshall: And he wasn’t homeless he can --
Mr. Charles Gordon: That’s exactly what I believe the statute was intended to deal with.
Justice Thurgood Marshall: Not with the Second Circuit --
Mr. Charles Gordon: And of course, we agree with the Second Circuit, but I think that as I develop my argument, I think that the history of this legislation indicates quite decisively that these statutes are intended to deal with homeless people, to provide the haven for a homeless into this place.
Now, I believe the “not a national language” which was inserted for the first time in 1960 had an entirely different purpose from that envisaged by the Ninth Circuit.
The court, unlike the Second Circuit which is I say considered this with great care, the court below overlooked the fact that the 1960 Act was tied to the mandate of the United Nations, United Nations High Commissioner for Refugees.
The mandate of the High Commissioner, which is incorporated in a U.N. statute specifically declares, among other things, that his mandate shall not extend to refugees situated in the country of their nationality.
So in adopting the criteria of the United Nations Congress followed that formulation.
Now when that formulation was carried over into the 1965 Act, which succeeded these laws, I believe Congress had in mind the change in world conditions that had occurred by that time, in 1965.
In the original refugee laws, Congress confronted a world, Europe particularly that was shattered by war.
The countries of Europe, even the countries which were receiving their own nationals were unable to care for such nationals and therefore, the United States pitched in and helped.
And in the earlier refugee laws, there was specific provision for the reception of Greek, Dutch, German and other ethnic refugees who were situated in the country of their nationality, Italian I believe is the other one.
Now, by the time the 1965 law was being considered, the situations as I said had changed.
Congress I believe concluded that these nations were now able to care for their own refugees and therefore, it inserted this proviso that it would not extend to refugees who were in their own countries, the countries of their nationality.
Now particularly, I call Your Honors' attention to the situation of West Germany, which may have been in the mind of Congress, which previously had been the beneficiary of all the refugee laws which had been previously enacted.
By the application of the “not a national” proviso, Congress apparently were saying that since Germany had now fully recovered, the ethnic German refugees who are coming into Germany could be cared for by their own country, and it was no longer necessary for the United States to pitch in and help.
I think, this is the basis for the adoption by Congress of the “not a national” proviso and it seems to me completely without warrant to assume that Congress intended to utilize this special statutory provision for the aid of refugees who didn’t need immediate help, who were not homeless, who were not displaced.
Our briefs recite the consistent administrative interpretation which has found that benefit under these refugees statutes are not available to refugees who have become settled and stabled new homes.
Justice Harry A. Blackmun: Mr. Gordon on the respondent’s theory, does refugee status once acquired continue forever?
Mr. Charles Gordon: This is the way I would construe it.
Justice Harry A. Blackmun: Incidentally, now that I’ve interrupted you, is there any distinction in immigration law terminology between the term national and the term citizenship?
Mr. Charles Gordon: Yes.
It’s a slight difference in the present practice.
National is a person owning permanent allegiance, includes citizens, it’s a broader term than citizens.
As used in our context today, I think it’s synonymous with citizens.
Now as I’ve said, the administrative interpretation is consistently upheld the view on arguing here today.
For example, when the 1957 Act was adopted, the state department immediately promulgated regulations which announced the firmly resettled concept even though the law hadn’t said anything about it.
In addition, a series of reported administrative decisions have expressed that concept.
And finally, that concept has been reflected in reports which are made by the immigration service to Congress every six months showing the operations under Section 203 (a) (7) as required by Section 203 (f) of the statute.
Now Congress has never questioned that interpretation and indeed, no court other than that court below has ever reached a contrary conclusion.
Now, respondent seeks to find support for his interpretation in a statement made by Senator Kennedy during the course of the debate on the 1965 law in which Senator Kennedy said that Section 203 (a) (7) refugees and I quote "must be currently settled in countries other than their homelands."
This statement was a small part in an explanation by Senator Kennedy of the many provisions of the 1965 law which primarily was adopted to abolish the national origin's coding system.
I think Senator Kennedy was not addressing the concept, he didn’t say he was and it doesn’t appear that he was addressing the concept of firm resettlement.
In context and reading the statement in entirety, I think Senator Kennedy was speaking of providing homes for the homeless, for the displaced.
And in our reply brief at page 6, we set forth some additional excerpts from Senator Kennedy’s statements.
For example, Senator Kennedy spoke of the need for this country to remain and I quote “a haven for the displaced.”
And that again and I quote “the cases of the greatest need can be processed at once.”
Later in the floor debate, Senator Kennedy commented that the Bill, again I quote “establishes what we mean by refugees, those fleeing from communist dominations and from the other categories mentioned in the statute.”
I believe Senator Kennedy’s reference to those fleeing is an accurate paraphrase of the statutory requirement that speaks of those who have fled persecutions.
Now, the --
Chief Justice Warren E. Burger: To what act -- to what act was that -- to those were remarks directed, specifically?
Mr. Charles Gordon: Senator Kennedy -- there was a colloquy with Senator Quechol who had questioned -- Quechol -- who had question him about the scope of the statutory provision and to what extent it would benefit refugees and Senator Kennedy was responding.
Chief Justice Warren E. Burger: What Act were they debating at that time?
Mr. Charles Gordon: The 1965 law.
This is the law which is in the question here today.
Justice Potter Stewart: What so you suppose the Senator did mean when he used the language quoted by your brother in opposition?
Mr. Charles Gordon: I think Your Honor he was merely paraphrasing the statute.
Justice Potter Stewart: Must be currently settled in countries other than their homeland?
Mr. Charles Gordon: The word settled no where appears in the statute.
Justice Potter Stewart: No, but it does appear.
He did say it, didn’t he?
Mr. Charles Gordon: He said it, but he wasn’t reflecting what was in the statute.
Justice Potter Stewart: But do you suppose he did mean by it?
Mr. Charles Gordon: He meant as I understand it, he was paraphrasing what the statute said.
The statute said that the refugee must not be in the country of his nationality.
So what he was saying is that they must be in some other country.
Justice Potter Stewart: He says currently settled, he didn’t say --
Mr. Charles Gordon: Settled.
And at settled, I think he must mean -- by settle, he means situated.
He didn’t mean having a stable home as I understand it.
Justice Potter Stewart: Does he mean permanently settled --
Mr. Charles Gordon: Right.
That’s what I understand.
Justice Potter Stewart: -- already there in your submission?
Mr. Charles Gordon: I don’t think he was talking about in that context at all.
Justice Thurgood Marshall: Did respondent had given up their connection in Hong Kong?
Mr. Charles Gordon: As far as I know, they have, but they have the right to return.
They were given a certificate of identity which gives them the right to return.
Justice Potter Stewart: Is their child with them here in the United States?
Mr. Charles Gordon: Yes sir, yes sir.
Not under the order of deportation.
The order of deportation is against respondent and his wife and the child would go with them if they return, of course.
Justice Potter Stewart: But the child is presently --
Mr. Charles Gordon: In the United States.
Justice Potter Stewart: With them?
Mr. Charles Gordon: Yes.
Justice Potter Stewart: Minor child still?
Mr. Charles Gordon: Yes sir, 16 years old.
Justice John M. Harlan: He’s in business here now this gentleman?
Mr. Charles Gordon: I assume so.
The record doesn’t show.
He came here to attend a trade fare and to exhibit his goods here.
I assume he is continued in some business.
I don’t -- nothing in the record tells us that.
Chief Justice Warren E. Burger: Well, does the record show whether he is still maintaining the business in Hong Kong?
Mr. Charles Gordon: It doesn’t but I assume that he does not.
His wife was conducting the business on his behalf and she came here in 1965.
I call the attention to one other facet of the legislative history, and that is the remarks of Senator Heart, who is one of the chief sponsors of this measure.
As a matter of fact, his name was the leading name and the primary name on the Bill in the Senate.
Now, in speaking of -- describing the purpose of this legislation, Senator Heart said its concern is with the homeless and the oppressed; that’s his language.
And I think that’s a correct description of what the statute means.
Now, Section 203 (a) (7) reserved 10,200 numbers for refugees within its description.
Justice John M. Harlan: But I on the largest records -- what happened after his last temporary visa expired?
Did he apply for the extension or did he just overstayed?
Mr. Charles Gordon: There were applications for extension until 1965.
Then, his authorized stay expired and his wife’s did to and a deportation proceeding was brought and they were found deportable.
Justice John M. Harlan: But he didn’t try to secure himself?
Mr. Charles Gordon: No, no.
Now, the -- I’ve indicated that this is a small allotment, 10,200.
The purpose of this small allotment, I think is revealed in his legislative history is to afford, grant permanent authority to deal with refugee emergencies as they arise.
Justice Potter Stewart: 10,200 over, what’s span of time?
Mr. Charles Gordon: One year.
This is an annual allotment.
Justice Potter Stewart: It’s an annual allotment?
Mr. Charles Gordon: Part of the annual quota; 6% which adds out to 10,200, every year 10,200.
Justice Potter Stewart: I see.
Justice Byron R. White: Is it always over subscribed?
Mr. Charles Gordon: No, Your Honor.
It has been for the -- for the last two years, there was a very heavy pressure on it and indeed in the 1969, the chairman and 25 members of the House Judiciary Committee wrote to Attorney General saying that we anticipate the this will be over subscribed, had to admit additional refugees on the parole and the Attorney General in 1970 agreed to do so.
Justice Byron R. White: What -- how does he choose if the quota is over subscribed, first-come-first-serve?
Mr. Charles Gordon: First-come-first-serve, Your Honor.
It would have to be that way.
They are allocated on the monthly basis incidentally, so they try to space them out.
Justice Byron R. White: Your suggestion is that -- and I take it this Court is too small to expand the statute to include people who can stay somewhere else, who resettle some place else.
Mr. Charles Gordon: I was about to say that.
Justice Byron R. White: Is that you’re point?
Mr. Charles Gordon: Yes, Your Honor.
I think that’s the most important point I can make.
The point is that this is a small allotment intended to deal with emergencies and throughout the legislative history, the sponsors of this measure and the committees emphasized the need to keep this reserve authority in the hands of the President and the Attorney General so that they could deal with emergencies as they can arise -- as they do arise.
Justice Hugo L. Black: Who were the sponsors?
Mr. Charles Gordon: In the House, the principal sponsors were Senator Finn and -- excuse me, Congressman Finn and Congressman Sella.
In the Senate, the principal sponsors were Senator Heart and Senator Kennedy.
Justice John M. Harlan: Assuming that you prevail in this case, is there any authority in the Attorney General as a matter of discretion to allow this man to stay in this country?
Mr. Charles Gordon: Well, if there were -- there are a number of discretionary remedies as Your Honor knows.
Justice John M. Harlan: I’m wondering if there was any remedy.
I mean, is there such authority?
I’m not talking about whether it be exercised?
Mr. Charles Gordon: I don’t know whether there is in his case.
It seems to me that there wouldn’t be, unless he can establish that he is a refugee, and he hasn't a claim that he has any right or any eligibility for any discretionary benefit.
Now as I said, this is a small allocation and the fact that the certainty that it was intended for emergencies is underlined by the fact that the statute says that these persons shall be granted conditional entry.
Justice Byron R. White: You mean emergencies in the sense for people who haven’t any place else to go, who can’t stay any place else?
Mr. Charles Gordon: Right, and emergencies do or right --
Justice Byron R. White: Other countries won’t take them?
Mr. Charles Gordon: I’m sorry, I didn’t hear that.
Justice Byron R. White: Other countries won’t take them?
Mr. Charles Gordon: Either they won’t take them or they don’t have stable residence there.
They let them stay there for short time.
They’ll permit them to remain, for example, the Czechoslovak situation, many Czechoslovakian refugees crossed the border and came into adjacent countries.
They did not have residence privileges.
Under the emergency authority, which is granted in this statute, the President, the Attorney General can admit them immediately to this country as conditional entrance.
Now in addition, the fact that this is a design for emergency action, for keeping open the opportunity to deal with emergencies is underlined by the statement in the House Committee report on the 1965 law that this statute and I quote from the committee’s report “will permit the President to act immediately if the situation so request to come to the aid of refugees as defined in the Bill.”
I believe the acceptance of respondent’s interpretation would defeat the statutory purpose.
Approximately two million refugees have -- from China have settled in Hong Kong.
Justice Byron R. White: But your position is pretty well on the teeth of that language of the statute, isn’t it?
Mr. Charles Gordon: I don’t believe it’s in the teeth.
The statute doesn’t cover the situation, but that statute does say that the person who seeks its benefits must have fled; that’s the language of the statute.
And Senator Kennedy’s expression, I think is apt one referring --
Justice Byron R. White: But you could only admit them when the statute from countries other than the country from which they fled?
Mr. Charles Gordon: No.
They are – yes, but the statute then goes on to say even if they had fled, they can’t be admitted if they are nationals of the area in which they --
Justice Byron R. White: If they are nationals, but all non-nationals under the statute could be admitted under that?
Mr. Charles Gordon: If they had fled.
Justice Byron R. White: Well, there’s no question of it about this gentleman, is there?
Mr. Charles Gordon: Well, it’s question of --
Justice Byron R. White: If he fled -- he fled and he is not a national of the country from which he made application for entry here.
Mr. Charles Gordon: That would be perhaps a literal reading of the statute.
Justice Byron R. White: That’s what I say, your position takes literal construction?
Mr. Charles Gordon: It’s a literal reading of the statute possibly, but I say such a literal reading would defeat the statutory purpose and would be contrary to its purpose of providing emergency authority to deal with the homeless, the oppressed, the people who haven’t got a place to go to.
Justice William O. Douglas: I don’t quite understand why you say he had not fled?
Mr. Charles Gordon: He had fled, but he was no longer a refugee and this is a statute to deal with refugees.
Justice William O. Douglas: What was his status in Hong Kong?
Mr. Charles Gordon: He was a -- an authorized resident.
He’d gotten a certificate of identity which --
Justice William O. Douglas: I have been there a number of times. I assume that almost everybody was -- they are on a very temporary basis in Hong Kong.
Mr. Charles Gordon: No.
50 plus --
Justice William O. Douglas: He wasn’t a national, was he?
Mr. Charles Gordon: No.
There’s no Hong Kong nationality.
Justice William O. Douglas: British, I thought was --
Mr. Charles Gordon: There’s British nationality, and British nationality is a worldwide procedure and which could be followed in Hong Kong.
Justice William O. Douglas: He wasn’t a British?
Mr. Charles Gordon: No.
He never applied for that and he could have applied, but very few of the Chinese refugees have applied, but he did get residence privileges in Hong Kong, and he has a certificate of identity.
Justice Byron R. White: Did he have a business there?
Mr. Charles Gordon: Business.
He established a business and continued that business for seven years.
He had a home there.
His family was there.
He continued to reside there for seven years.
Chief Justice Warren E. Burger: If in the present posture for some reason or other, Hong Kong said that he had only 30 days to clear up his affairs and get out, how would that affect him?
Mr. Charles Gordon: If he had no stable residence, he might still be a refugee, but Hong Kong does not say that.
Hong Kong permits the Chinese to remain there as residence indefinitely.
There is no suggestion that Hong Kong will expel them, even single one of them.
Chief Justice Warren E. Burger: Oh, but if in the future.
Assuming you prevailed here and if in the future, he was so informed by Hong Kong and given 30 or 90 days to find a new place, would he then resume in your view a refugee, a homeless status?
Mr. Charles Gordon: It could be that he would then be considered a refugee.
He then would have no home.
He then would be displaced because of the events that went back to 1953 perhaps, and now were reinstated, and then he could claim to be a refugee.
But now in our view, he has a stable home.
He is a person who can return to his home.
He is not one for whom the statute was enacted.
Justice John M. Harlan: Does the record show he pulled up roots in Hong Kong?
Mr. Charles Gordon: Well, the record shows that he had an avid desire to come to the United States and I can only assume that coming here as a temporary visitor, he intended to remain.
Chief Justice Warren E. Burger: Thank you Mr. Gordon.
Argument of Gordon G. Dale
Mr. Gordon G. Dale: Mr. Chief Justice and may it please the Court.
Respondent’s position is that Congress knowingly and intelligently used the term “national” in excluding would be refugees under this Section 203 (a) (7).
And we say where an applicant qualifies under the literal terms of the statute, unless he’s become a national of intermediate country, he is eligible for consideration under the law.
So when respondent Harry Woo fled from Red China and he went to Hong Kong and he open up his one desk business of getting orders in the United States for clothing and he was able to live in an apartment of one room, with his $3.00 Hong Kong money when he arrived in Hong Kong, and was able to make a sufficient business so that he was able to get a trip to United States as a business visitor, and he was given by the British Government a certificate of identity and that’s all.
He had not become a British national.
He is eligible under the act.
Chief Justice Warren E. Burger: Well, isn’t the status of -- as Justice Douglas suggested that most of the people in Hong Kong precisely that that is they are on the certificate of identity which has the much the same function as a passport I take it.
Mr. Gordon G. Dale: That is basically true Mr. Chief Justice, except that a certificate of identity gives one no assurance of its continuance.
It is a certificate of identity.
It has to be renewed periodically.
As a matter of fact, respondent’s certificate of identity expired in 1967.
At the request of the petitioner, the immigration service, he was directed to apply for renewal of the certificate of identity.
He did so and was informed by the Hong Kong authorities; he must apply in Los Angeles at the office of the British Government there, the British consulate.
Now, the British consulate said we’re not interested.
Your application has to be made in Hong Kong.
So at the present time, Harry Woo has a three-year, four-year-old expired certificate of identity.
Justice John M. Harlan: Well at the time to the renewal, he was situated over here, was he?
Mr. Gordon G. Dale: That is correct Your Honor.
Chief Justice Warren E. Burger: But not legally in the United States?
Mr. Gordon G. Dale: He was legally in the United States until 1966, I believe on a series of extensions granted by the immigration service.
Now, his original visit in 1960 --
Chief Justice Warren E. Burger: He lived in here and perhaps a better way to put, he was here at sufferance very definitely?
Mr. Gordon G. Dale: He is -- I would say at sufferance since 1966, but he had a lawful extension of his business visitor’s visa each year from 1960 to 1965.
We contend that Congress used this term national because national is a well recognize term in international law.
We used that term in our Nationality Act of 1940.
We’ve used that again in our Act of 1952, the basic immigration act under which we now operate.
Certain rights and obligations go with nationality, among them of course the most important, military service to the country of which you’re a nation, and in turn, the nation provides the national with some protection abroad.
For example, could Harry Woo, the respondent expect some kind of protection for the British Government to the United States?
Not at all.
They are not interested in him.
Do we provide protection for people who have permanent residence in United States if they’re visiting abroad, not at all.
We have enough problems with our own citizens abroad.
Justice John M. Harlan: You got a -- this is getting back to the legal question for a moment.
You got a hand on (Inaudible) the Ninth Circuit and the Second Circuit, and that seems to be recognizable.
You tell me where you think the Second (Inaudible)?
Mr. Gordon G. Dale: Justice Harlan?
Justice John M. Harlan: Do it in your own time --
Mr. Gordon G. Dale: Alright.
Justice John M. Harlan: That has the legal questions -- two decisions.
The facts are simple, understandable and was give him -- that’s the -- just a pure question of the law -- circuit was right so, isn’t it?
Mr. Gordon G. Dale: I think that’s correct Your Honor.
Justice John M. Harlan: Now I’d like to know at your convenience, where do you think the Second Circuit went off the track?
Mr. Gordon G. Dale: In the Second Circuit, the court stated that in referring to the Fair Share Law for example, the Fair Share Law of 1960, the basic Refugee Act at that time.
And they claim that this statute provided the necessary understanding for the 1965 statute, and quoted the language under the United Nations High Commissioner for mandate and the court use the language, this particular statute which used the term “not a national” only applies -- applies only to those refugees who do not have the right and obligations of nationals in the country in which they reside.
And the court immediately picked this up and said “it might seem to prove the Ninth Circuit’s position” and I claim exactly, it does indeed.
But then the court makes a leap back into legislative history.
We claim that legislative history has no part in this case where the language is absolutely clear.
The petitioner would have us completely topsy-turvy apply the statutory construction rule.
The statute is plain.
But if you delve into the con -- the legislative history is sufficiently and not only of this act, but the 1948 Act, the 1953 Act, the 1957 Act, the 1960 act, the 1962 Act, I assure you, you can find sufficient confusion that now you can ignore the plain meaning of the statute.
Now, you’re in the position to look and decide what would be a good standard to apply, and that’s exactly what the petitioner has done under the statute.
Justice Thurgood Marshall: But don’t you have to be a refugee?
Mr. Gordon G. Dale: Yes, Your Honor.
Justice Thurgood Marshall: Well, from which -- from what country is Mr. Woo a refugee?
Mr. Gordon G. Dale: A refugee from Red China.
Justice Thurgood Marshall: But where did he come here from?
Mr. Gordon G. Dale: He came here from Hong Kong.
Justice Thurgood Marshall: And he wasn't fleeing Hong Kong, was he?
Mr. Gordon G. Dale: He was not fleeing Hong Kong, but where --
Justice Thurgood Marshall: He could stay -- have stayed in Hong Kong until today?
Mr. Gordon G. Dale: Conceivably, he could have stayed in Hong Kong until today.
Justice Thurgood Marshall: And could have run his business there until today.
Mr. Gordon G. Dale: Conceivably, he could have done this.
Justice Thurgood Marshall: So far as you and I know, he can go back there tomorrow.
Mr. Gordon G. Dale: Except that apparently, we have a great deal of difficulty getting this so called certificate of identity, we were directed to obtain.
Justice Thurgood Marshall: Assuming that was obtained, he could go back?
Mr. Gordon G. Dale: If he had this document --
Justice Thurgood Marshall: The whole purpose of the act was to protect somebody from being sent back to where he had fled?
Mr. Gordon G. Dale: That’s correct.
Justice Thurgood Marshall: That means just -- I fail to see how he gets under the refugee?
Mr. Gordon G. Dale: We claim --
Justice Thurgood Marshall: He’s not homeless; he’s homeless now because he gave up his own.
Mr. Gordon G. Dale: We contend that where a refugee goes out of Red China into Hong Kong, which now has the highest population of any area in the world where two million of the people or four million are refugees, this is no haven.
This is a small piece of ground where true his breathing and living.
Justice Thurgood Marshall: Well, don’t we agree, you and I that there’s no country in the world quite good as the United States?
Mr. Gordon G. Dale: Yes sir.
Justice Thurgood Marshall: You don’t want to use the comparative basis now do you?
Mr. Gordon G. Dale: No.
I have no doubt about that belief about the United States Your Honor.
Justice Thurgood Marshall: But he is not a refugee from Hong Kong?
Mr. Gordon G. Dale: I claim his refugee status did not terminate merely because he had a place to put his feet in Hong Kong.
Justice Thurgood Marshall: A place to live, marry, raise a child and run a business is not permanent place?
Mr. Gordon G. Dale: I claim --
Justice Thurgood Marshall: What else do you need for residence?
Mr. Gordon G. Dale: I beg your pardon?
Justice Thurgood Marshall: What else to you need for residence?
Mr. Gordon G. Dale: I think some of the protections that the Congress intended by using the term “national.”
In other words, some protection if you’re abroad from your home country.
The right for example, in a democratic country to have something to do with voting, election of officers, hold office, a person with some citizenship rights, not just somebody who barely exists.
Justice Thurgood Marshall: Do you say a man with a business had barely existed?
Mr. Gordon G. Dale: I say the man was barely --
Justice Thurgood Marshall: Do you say a man that’s got a business and got enough money to come running from Hong Kong over here is barely existing when I don’t have enough money to get from here to Hong Kong.
[Laughter] He has money enough to get from Hong Kong here.
Mr. Gordon G. Dale: I don’t know the source of his ability to make that trip to the United States.
I do know the purpose was to get orders for clothing which he then take back to his one desk and parcel out to people to make the clothing.
Justice Thurgood Marshall: But there’s nothing in his record that shows that he was a corporal?
Mr. Gordon G. Dale: No, Your Honor.
I can’t deny the fact he got to United States.
There’s no question about that.
But I --
Justice Harry A. Blackmun: Mr. Dale, let me ask of you the comment I made of Mr. Gordon.
On your theory, is a man once a refugee, always a refugee?
Mr. Gordon G. Dale: No, Mr. Justice Blackmun.
If he’s become a national of intermediate country as Congress said in the statute, he is not qualified any longer for refugee status.
Justice Harry A. Blackmun: And do I take it that you do coalesce the term “national” with “citizenship?”
Mr. Gordon G. Dale: Yes Your Honor, I do.
Justice Byron R. White: So did that Hong Kong running his business, raising a family, 20 years and you would have the same case?
Mr. Gordon G. Dale: We will have the same case under my analysis, yes Your Honor.
I think that it seems to me that it might be fruitful to consider the specter that the petitioner has raised of inundation of the United States by refugees unless he his standard is applied and the congressional standard of nationalist at ward.
Justice Byron R. White: Can I interrupt you?
Pursuing Mr. Justice Blackmun’s point, what is the -- what is Hong Kong?
Mr. Gordon G. Dale: It’s a British crown colony.
Justice Byron R. White: Crown colony and that you can’t become a citizen of Hong Kong, can you?
Mr. Gordon G. Dale: There’s no such thing as citizenship there.
As I understand, you become a British national if Great Britain chooses to recognize you.
Justice Byron R. White: You become a British citizen?
Mr. Gordon G. Dale: Subject, yes, and you have to carry a British passport.
Justice Byron R. White: Where -- a British subject, and why didn’t Congress use the word citizenship or citizen?
Mr. Gordon G. Dale: I would suppose only that because the term national was used in the 1952 Basic Immigration Nationality Act to determine -- to describe a national as one who owes permanent allegiance, and it was used again in the 1940 Nationality Act.
So, it’s a term that has been constantly used and I suppose that’s why --
Justice Byron R. White: What is the permanent resident of the United States?
Is he a national?
Mr. Gordon G. Dale: No, he’s not.
Permanent resident merely has a right to reside. He has certain obligations such as --
Justice Byron R. White: Oh, yes.
But I say, he owes allegiance in the sense that he has to serve in the -- he has to serve the armed forces?
Mr. Gordon G. Dale: Under our law, he has to serve in the armed forces; that’s correct.
Justice Byron R. White: Yes, but you wouldn’t call him a national?
Mr. Gordon G. Dale: He’s not a national.
Justice Byron R. White: Because you just define national as a citizen?
Mr. Gordon G. Dale: Correct.
I think under our law, there are a couple of island areas where the natives are nationals.
For example, before the Philippine Independence Act, all the Philippine were nationals of the United States, but not citizens.
Justice Byron R. White: Oh, now I just wondered that what about that in this case.
People who are living there with certificate of identity and have been there for a quite awhile, are they nationals but not citizens?
Mr. Gordon G. Dale: They’re not nationals of the crown colony and they are not citizens.
They have a certificate of identity that identifies them as residing in Hong Kong which can be lifted.
So there’s no law that says that there’s anything that guarantees them, anything like for example, permanent residence in the United States.
If you have a permanent residence certificate here, so long as you do not become subject to deportable offense, you can remain here permanently and the law says you can.
There’s nothing that assured for a person who lives in Hong Kong with a certificate of identity.
Chief Justice Warren E. Burger: Mr. Dale, what do you have to say about the Government’s argument that this statute, this whole scheme program was generously conceived to take care of hardship cases, if you agree that it is a hardship type of statute, how do you fit to see your -- the respondent into the hardship category?
Mr. Gordon G. Dale: Of course in the first place, I do not subscribe to the Government’s contention that this is primarily a hardship statute.
There’s another section of the immigration law that allows parole in the United States under Section 212, parole in the United States where there’s a really emergency.
You can be assured that under this program of admission to the United States, under 207, there’s a long careful screening of each applicant who seeks to come in under this statute and nobody is just going to come drifting in under 203 (a) (7).
If there’s a real emergency, Section 212 I believe would be used which allows the Attorney General to certainly parole people in the United States.
This is really --
Chief Justice Warren E. Burger: Do you not agree that the legislative history of these statutes, of this particular statute demonstrates that it was for the purpose of giving relief to oppressed people, refugees, homeless people?
Mr. Gordon G. Dale: Yes.
Chief Justice Warren E. Burger: You don’t agree with that?
Mr. Gordon G. Dale: Yes, I agree.
That was the intention Your Honor.
But of course, I contend that --
Chief Justice Warren E. Burger: But then, it’s a hardship statute --
Mr. Gordon G. Dale: -- and that a man in the position of respondent is in a hardship situation contemplated by the statute.
Chief Justice Warren E. Burger: Well, had he every had any indication that his right to stay in Hong Kong would be terminated by the British?
Mr. Gordon G. Dale: He had not at the time that he’d left, no.
I would like to refer to another point that we have made that the 1951 convention on the status refugees, the signatories agree that they will not expel of compel refugees who come into their territory to go back to the country from whence their life or freedom might be threatened.
But when the United Kingdom exceeded to the treaty, it had the option to include all the territories whose foreign affairs that was responsible, but the United Kingdom chose to exclude Hong Kong from this agreement.
They did the same thing with the 1968 protocol, doubtlessly had good reasons.
Like China not impose certain conditions under retention of the crown colony and say we want some of those nationals returned.
But the United Kingdom didn’t want that treaty restricting their freedom and they wouldn’t agree that Hong Kong was included.
Does that sound like a certificate of identity holder like the respondent?
Could be assure that he had a nice safe haven in Hong Kong?
We claim no.
We claim that this refugee true had a place to stay, but it was a very tenuous location indeed, and Congress contemplated that this was a hazardous situation and said when you’re a national, then, you’re disqualified.
Chief Justice Warren E. Burger: Mr. Dale, I take that the Government’s direction to this man to apply for renewal of his certificate of identity in Hong Kong through Hong Kong was a not a gesture or a futile exercise for the purpose of seeing whether he could be reinstated there.
And if he could, if he now could be reinstated in his former position in Hong Kong, would you still claim his -- within the reach of a hardship statute?
Mr. Gordon G. Dale: I would claim he was within the reach of the strict construction of the statute as passed by Congress, yes Your Honor.
Justice Thurgood Marshall: Assume something against that, that a Red China became a democracy next year, will he still be refugee?
Mr. Gordon G. Dale: I think we might look to the protocol to which United States has subscribed.
Justice Thurgood Marshall: Will he still be a refugee under this Act?
I understood you’d answer my brother White's question that once he left Red China, he’s a refugee forever.
Mr. Gordon G. Dale: If he can return to Red China which is become a democracy and he’s, then no longer in fear of persecution because of his race or religion or political opinion, by know means, he can no longer claim refugee status.
Justice Thurgood Marshall: What’s the difference insofar as Hong Kong is concerned?
Mr. Gordon G. Dale: I think again, it’s a difference between the protection that is given to a national, by his home country.
He’s standing in that country as suppose to the mere temporary status of one who is at sufferance in an intermediate country.
Justice Thurgood Marshall: He claimed he’s a temporary resident of Hong Kong?
Mr. Gordon G. Dale: Yes Your Honor.
He had no -- he had nothing as substantial as permanent residence in United States where you have a card that says this man is got a right to permanent residence.
All he has to is file an address report card once a year.
Justice Thurgood Marshall: How long was he there, seven years?
Mr. Gordon G. Dale: He was there seven -- almost seven years.
Justice Thurgood Marshall: And lived there and raised a family, --
Mr. Gordon G. Dale: He was --
Justice Thurgood Marshall: But he was just temporarily there?
Mr. Gordon G. Dale: I contend --
Justice Thurgood Marshall: How long was he been in this country?
Mr. Gordon G. Dale: Something over 10 years.
Justice Thurgood Marshall: So, he’s three years more permanent here than Hong Kong?
Mr. Gordon G. Dale: I don’t think we could contend that he had a sure permanent residence here despite the 10 years.
Justice Harry A. Blackmun: Mr. Dale, a little while ago, I think you were about to say something about quotas.
If the quotas are over subscribed and he is here, then presumably, there are a lot of other eligible people who can’t get in.
Were you going to say something about quota?
Mr. Gordon G. Dale: Yes Mr. Justice Blackmun.
I want to quote from the 1969 visa office report on the numbers who have applied and been accepted under the statute.
According to that report, in 1966, 3,991 were admitted out of allowed quota of 10,200.
In 1967, 4,337; 1968, 6,325; 1969, 9,850; so that in none of the four years reported has the entire quota have been used and I think it’s interesting that and one of the immigration reports referred to by Mr. Gordon, there is a record of denials of applicants who sought to come in and they denied them on the basis that they were firmly resettled.
And the total number of denials for the whole year 1967 was 82.
So, I think it’s unrealistic to imagine that we are going to be an inundated with refugees either applying abroad or applying here under the statute.
The facts just aren’t that way.
Justice Harry A. Blackmun: Does the record show why he didn’t come here originally out of China?
Mr. Gordon G. Dale: Yes, it does.
As soon as he arrived in Hong Kong, according to the applications that were before the service and were considered by the District Court, he indicated he tried to come to United States and was told do you have a sponsor there and he just told no, I don’t have a sponsor.
Do you have a guarantee job?
I don’t even know anybody there.
Well, you can’t go.
So, forget it.
Then, he made applications to go to other countries, apparently just before, he again applied to come to the United States.
He was told he could to Indonesia as a refugee and about the same time, he then was told there’s a great program going on against Chinese in Indonesia, so he didn’t go there.
Justice Hugo L. Black: May I ask you if you’re familiar with the immigration laws.
Is there any other method by which a man can be permitted to come in here by any Government agencies under circumstances like this except to go through the courts?
What I mean is, is there a hard and fast, rigid rules which the Government officers are under oath bound to obey that they must try to keep this man out?
Mr. Gordon G. Dale: I don’t see that this is an absolute rule, but the odd thing is that the petitioner admits that they’ve decided every single refugee case from 1948, 1953, 1956, 1960, 1962 and this Act as if the language had never changed, all of them are turned down in the opinion of the immigration officer --
Justice Hugo L. Black: You’re talking now about the rigid application of the law.
Does anybody have an authority in the immigration department all the way up to the President to make a suspension in cases like this to loosen and to relieve hardships?
Mr. Gordon G. Dale: Of course, we have a novel position of arguing for strict construction to statute which we did in our client.
Justice Hugo L. Black: I understand that, but I was just asking you for your information about the others?
Mr. Gordon G. Dale: There is a provision under the act --
Justice Hugo L. Black: -- pretty bad thing to have a case like this here before us.
One man living, he was living in Hong Kong as far I’m -- into judge that I have a place to live, and reside.
If your wife doesn’t buy too many clothes, but it is a delight to please and he leaves.
Of course, he is not a refugee from there, strictly speaking, he is not a refugee from there.
He is a refugee from the other place and has found place to like, like a bird in the song.
But is there any other method?
We have so many of these cases that present these type hardship cases and this is a hardship case, as it is now.
Whatever maybe said about the law, it's a hardship case, and been living here seven years isn’t it?
Mr. Gordon G. Dale: 10.
Justice Hugo L. Black: 10 and he would have to go back to Hong Kong.
Is there any power in any agency, the Attorney General, head of the immigration department, President, anybody else that could suspend the operation of that law as to this man and his wife and child?
Mr. Gordon G. Dale: Yes Your Honor, there is.
There is a provision under the deportation law that allows what’s called suspension from deportation if he resided in the United States for in excess of seven years.
However, the instructions have gone down that no applications will be approved where the time has been built up either by court actions or by private Bills in Congress, or by -- when you came in as a student or if you came in as a visitor, or indeed if you came in a legal capacity.
Apparently, the only way you could be assured that the seven-year rule might apply is if you are hiding out successfully for about seven years.
Justice Hugo L. Black: Or what about a private Bill?
Mr. Gordon G. Dale: Private Bills are extremely difficult Your Honor because you have to have a congressman who is terribly eager and will to go and back for you because it has been abused in the past.
Justice Hugo L. Black: How long is this case been pending now?
Mr. Gordon G. Dale: We first filed I think in 1965 for the refugee application.
Justice Hugo L. Black: 1955?
Mr. Gordon G. Dale: 1965.
Justice Hugo L. Black: 1965.
Mr. Gordon G. Dale: And the court decision was in 1968 I believe in the Court of Appeals decision in our favor was 1969.
Justice Hugo L. Black: Of course you would agree that by the two circuits disagree; this is a pretty close case?
Mr. Gordon G. Dale: Oh, I just think the Second Circuit is wrong Your Honor.
Justice Hugo L. Black: What?
Mr. Gordon G. Dale: I just think the Second Circuit is wrong Your Honor.
[Attempt to Laughter] I would like to refer to the decision of the Supreme Court in Schwegmann Brothers versus Calvert Distillers Corporation where the writer of the opinion said it’s a business of Congress to sum up its own debates and its legislation.
Moreover, it’s only the words of the bill that have presidential approval where that approval has been given.
It’s not to be supposed that in signing a Bill, the President endorses the whole congressional record.
And incidentally, this record appearing covers some 1,500 pages on that are referred to by the petitioner.
For us to undertake to reconstruct an enactment from legislative history is merely to involved the Court in political controversies which are quite proper in the enactment of the Bill which you have no place in its interpretation.
And ending by and large, I think our function was well stated by Mr. Justice Holmes.
We do not inquire what the legislature meant.
We ask only what the statute means.
We believe that on the basis of the statute, our client, the respondent qualified under the statute should be considered and should therefore be eligible for such a visa, and we ask that the decision of the Court of Appeals, for the Ninth Circuit be affirmed.
Justice John M. Harlan: Could I ask you a question?
You argue of this case I suppose in the Ninth Circuit, did you?
Mr. Gordon G. Dale: Ninth Circuit, I did.
Justice John M. Harlan: Did you put in an amicus brief for the Second Circuit?
Mr. Gordon G. Dale: No, I did not.
I didn’t -- I wasn’t even aware of it.
Justice John M. Harlan: You weren’t aware of it?
Chief Justice Warren E. Burger: Thank you Mr. Dale.
Thank you Mr. Gordon.
The case is submitted.