Cases by Issue - Immigration and Naturalization

Hoffman Plastic Compounds, Inc. v. NLRB - Oral Argument

Fri, 09 Jan 2009 14:50:26 +0000

Case:

Hoffman Plastic Compounds, Inc. v. NLRB

Media File:

00-1595_20020115-argument.mp3

Related Transcript:

transcript.xml

Transcript:

ORAL ARGUMENT OF RYAN D. McCORTNEY ON BEHALF OF THE PETITIONER

Chief Justice Rehnquist: We'll hear argument now in Number 00-1595, Hoffman Plastic Compounds, Inc. v. The National Labor Relations Board.

Mr. McCortney.

Mr. McCortney: Mr. Chief Justice, and may it please the Court:

The issue in this case is whether the award of back pay to an undocumented alien who never was legally present or legally authorized to work in this country conflicts with this Court's holding in Sure-Tan or with this country's immigration laws and policies.

In Sure-Tan, this Court held that the discriminatees in that case must be deemed unavailable for work and the accrual of back pay therefore tolled during any period when they were not lawfully entitled to be present and employed in the United States.

The Sure-Tan Court's back pay limitation is consistent with INA's dual requirement that to be employed in this country an alien must be both legally present and legally authorized to work.

Despite this dual requirement, the board contends that Castro is entitled to back pay even though he never was legally present or legally authorized to work during the back pay period.

The fatal flaw in the board's position lies in its adherence to its physical availability doctrine.

The board contends that this Court denied back pay to the discriminatees in Sure-Tan only because they had left the country and were physically unavailable for work.

If the board is right, the Sure-Tan discriminatees could have illegally reentered the country to establish physical presence and to commence the accrual of back pay.

However, such reentry would violate the immigration laws of this country and be contrary to this Court's holding in Sure-Tan.

Mr. McCortney: Have the immigration laws changed at all in any relevant respects since our decision in Sure-Tan?

Mr. McCortney: Yes, Your Honor, the passage of IRCA in 1986.

Mr. McCortney: And what relevant changes did IRCA make?

Mr. McCortney: IRCA was an amendment to the INA that made the employment, the knowing employment of undocumented aliens unauthorized from the employer's perspective.

Mr. McCortney: And is it correct that when Sure-Tan was argued, IRCA, if that's the way you pronounce it, was being considered by Congress and the Government in its argument told us that if IRCA had been passed, back pay would not be available?

Mr. McCortney: That's correct, Your Honor.

Recognizing, as it must, that this Court in Sure-Tan conditioned the accrual of back pay on legal presence, the board contends that the Sure-Tan Court sought only to deter the discriminatees from illegally reentering this country to claim back pay.

Mr. McCortney: Well, when you say conditioned it on legal presence, I mean, in fact they were not present.

I mean, the people in that case were still out of the country, weren't they?

Mr. McCortney: That's correct, Your Honor.

Mr. McCortney: So you have to acknowledge that it was dictum.

Mr. McCortney: Well, Your Honor, I would not call it dicta only because the Court set forth the conditions upon which the discriminatees might receive back pay if they were to legally reenter the country.

Mr. McCortney: That's right, but it only had to say one condition in order to decide the case.

Namely, you had to be in the country, and it went on to say, and in addition you have to be available to work, but that is really unnecessary to the decision.

Mr. McCortney: Well, the threshold condition was legal reentry, and that was the starting point of the analysis.

If they were to reenter, then of course they would have to establish at the back pay hearing--

Mr. McCortney: Mr. McCortney--

Mr. McCortney: --legal authorization to work.

Mr. McCortney: --If that is so, then why did the Court make the comment on page 901 of the opinion in footnote 11, talking about the board has said it will make it an arbitrary number of weeks, and the Court said the board has never attempted to impose a back pay award that the employer must pay regardless of the actual evidence as to such issues as the employee's availability to work?

All of that would have been unnecessary if it were just this blanket rule, right?

Mr. McCortney: Well, Your Honor, I think in footnote 11 what the Court was addressing was the minimum back pay award of 6 months that the court of appeals had imposed and the board had adopted, and then the board tried to defend that award by arguing that it had in other cases had estimates of back pay, despite the fact that the discriminatee was unable to establish with any certainty the probable length of the back pay period.

I think the Court there was simply saying that, look, you don't even go so far as to provide any showing of proof as to how long these discriminatees would have worked before their apprehension by the INS, but we don't read that to mean that had those discriminatees in Sure-Tan remained in the country, that they would have been entitled to back pay, because they wouldn't have been legally present and legally authorized to work.

Mr. McCortney: Well, if the opinion in Sure-Tan we think equivocal, if it's a wash either way, what is your principal argument for reversal here?

Mr. McCortney: Assuming that Sure-Tan is equivocal?

Mr. McCortney: Yes.

Mr. McCortney: That the board's award of back pay conflicts with the immigration laws and policies of this country as embodied in the INA and IRCA.

Mr. McCortney: Well, what do you say the argument that the board makes that even if the dictum in Sure-Tan were a holding as you say it should be treated, that the statute has changed the landscape, and that the board's rule in effect is in aid of the statute, because the board is saying the illegality on the part of the employer comes when the employer knowingly employs these people despite knowledge of their illegal character, so in effect we're going to say that the obligation to pay back pay stops when the employer knows that the alien in fact is illegally there.

Up to that point, however, we're going to follow a different policy.

We're going to make the employer pay back pay because otherwise we would make it very easy for employers.

We would, in fact, create an inducement for employers to ignore the law by, in effect, winking at illegality on the part of the workers, so the board is saying, sure, the statute changed the legal landscape even on your reading of Sure-Tan, and we've come up with what seems to be a sensible way of implementing it.

What is your response to that?

Mr. McCortney: Your Honor, just the mere prospect of receiving back pay in this case encouraged Castro to extend his illegal stay by more than 4 years and to continue using--

Mr. McCortney: Well, I think you're right, but the board is saying, yes, there's that inducement on one side, but there's a very powerful employer inducement if we come out the other way, and although I don't think the board put it in these words, I take it the board is saying, we think the employers are going to make a rational decision about inducements more clearly or more obviously than employees, the illegal aliens might do, so we're going to prefer the inducement or the policy that is going to have the strongest effect on the employers.

Isn't that a permissible choice for the board to make?

Mr. McCortney: --No, Your Honor.

The board's authority here is to enforce the provisions of the National Labor Relations Act to the extent that they do not conflict with the immigration laws and policies of this country, and--

Mr. McCortney: But the board is saying we can't have it both ways.

No matter which way we go, something we do would provide an inducement to violate the immigration laws.

We think probably the best way to get where we want to go is to concentrate on inducements on the employer.

Mr. McCortney: --Your Honor, I don't believe that those, the deterrence of the employer to... that knowingly hires illegal aliens or employs them, that awarding back pay is necessary in light of the sanctions under IRCA that now subject employers that do so to civil and criminal sanctions, and so--

Mr. McCortney: Wouldn't it also be the case that if the employer, by reason of this inducement, hired... supposed inducement... hired somebody whom he knew at the time of the hiring to be an unlawful, an illegal alien, even applying the board's rule, he wouldn't have to pay any back pay.

Mr. McCortney: --That's correct, Your Honor.

Mr. McCortney: What is... here... I think Justice Souter is... we said in our cases just what Justice Souter said, I take it, INS v. Lopez-Mendoza, quoting what Sure-Tan says.

An employer can be guilty of an unfair labor practice in his dealings with an alien, notwithstanding the alien's illegal presence in this country.

You agree with that.

Retrospective sanctions against the employer may accordingly be imposed by the board to further the public policy against unfair labor practices.

Now, those... that's what the Court said.

Now, this is a retrospective policy, a retrospective sanction of a compromise variety only for the period where the employer is not committing any labor law, any immigration law violation in order to further the labor policy.

Why doesn't this fit within the two sentences that I just described?

Mr. McCortney: Because--

Mr. McCortney: And if this doesn't, what would?

Mr. McCortney: --Your Honor, what it doesn't address is the violation of the INA.

Mr. McCortney: I'm sorry.

What the Court said in the sentences I read is, retrospective... I take it, retrospective sanctions can be assessed by the board.

Now, are we... now, I want to know, if they can't do this, what can they do retrospectively, or is the sentence I just read you by this Court wrong?

Mr. McCortney: Your Honor, I think what the sentence means, at least my reading of it, is that retrospective sanctions may be imposed, but not necessarily, and--

Mr. McCortney: Fine.

What other rules are there, is what... what other retrospective sanctions are there?

Yes.

Yes, that's correct.

Thank you.

Can the board fine the employer?

Mr. McCortney: --No, Your Honor.

Mr. McCortney: What else can the board do to punish the employer for the unfair labor practice?

Mr. McCortney: A cease and desist order, as in this case, with the threat of contempt sanctions.

Mr. McCortney: That's a prospective--

--I would have called that prospective.

--sanction, isn't it?

Mr. McCortney: Yes.

Mr. McCortney: So you really don't have any explanation for that language.

Mr. McCortney: All I would say, Your Honor, is that--

Mr. McCortney: Which is, I suppose your explanation is that that's as much dictum as your opponent says Sure-Tan was.

Mr. McCortney: --That's correct, Your Honor.

Mr. McCortney: So it's a wash, right?

Well, if that's the explanation, I take it that Sure-Tan was dealing with a case where the employer did know in respect to the sanction that the employee, the alien, was illegal, so Sure-Tan did not consider the kind of sanction here at issue, which is a sanction that applies only to the period where the employer did not know that the employee was an illegal, hence the employer was not violating the immigration law.

Mr. McCortney: It still doesn't address, Your Honor, the fact that the illegal presence and the use of fraudulent documents and working without authorization is a violation of the INA.

Mr. McCortney: Is it unlawful?

That's the question I was going to ask you.

Is... under the immigration laws, is it only the employer who is violating the law when he hires, with knowledge, an illegal alien, or is it also the case that an illegal alien who deceives an employer by providing a false green card and who then draws pay when he's illegally in the country, is that unlawful?

Mr. McCortney: Yes, Your Honor.

Mr. McCortney: Now, I know--

--I thought--

--the use of the green card is, but is the working and getting pay unlawful under the immigration laws?

Mr. McCortney: Yes, it is.

Mr. McCortney: I thought IRCA itself enacted a provision making it illegal for aliens to provide false documentation to get employment.

That wasn't in the law when Sure-Tan was decided, was it?

Mr. McCortney: Yes, it was, Your Honor.

In fact, let me just explain that 18 U.S.C. 1546 was already on the books, that prohibited the use of fraudulent documents for immigration purposes, and when IRCA came along it amended the INA but added 1324(c), which also prohibits the use of fraudulent documents to obtain employment, so at the time that Sure-Tan was decided, you had the following laws in this case that were violated by Mr. Castro, regardless of IRCA: entering a country illegally in violation of 8 U.S.C. 1325, failing to register as an alien within 30 days of his entry, a violation of 8 U.S.C. 1302, using fraudulent documents to obtain employment, a violation of 18 U.S.C. 1546, remaining in this country illegally and working without authorization, a violation of 8 U.S.C. 1182(a)(5), which was formerly 8 U.S.C. 11--

Mr. McCortney: Now, did IRCA add provisions and impose obligations on prospective employers to require them to review the documents and make sure that they appear to be regular on their face?

Mr. McCortney: --Yes, Your Honor.

Mr. McCortney: And that was a new provision?

Mr. McCortney: That was a new provision.

Mr. McCortney: And is there any allegation in this case that the employer failed to comply with that?

Mr. McCortney: No, Your Honor.

It's undisputed.

Mr. McCortney: It's--

--May I ask if your position would apply if this were a violation of the Fair Labor Standards Act instead of the labor act?

If the employer had underpaid the employee, would he have a right to back pay?

Mr. McCortney: Your Honor, I... in the amicus brief of the States they seem to equate back pay under the NLRA with back pay under the FLSA when they're two different things.

Back pay--

Mr. McCortney: I understand they're two different... I just want to know what your position is on that.

Mr. McCortney: --No, we would not advocate at all, and we have not, taking wages away from undocumented aliens that have been earned for work already performed.

Mr. McCortney: Even though they... it was a crime to do any work?

Why... if you're sticking with your theory that everything that this person did on that job, from presenting the false documentation on, was unlawful, so why should he be paid anything for unlawful activity?

You're making a distinction between the Fair Labor Standards Act and the NLRA, but your theory, I think, would cover both.

Mr. McCortney: Well, Your Honor, we give certain rights and benefits to undocumented aliens that are already in this country, and we do that to level the playing field between undocumented aliens and American workers so that unscrupulous employers won't prefer undocumented aliens over American workers.

Mr. McCortney: Well, furthermore, just from the standpoint of equity, I suppose the employer has benefitted from the services in the case that Justice Ginsburg puts, and there's--

Mr. McCortney: Absolutely.

Mr. McCortney: --no benefit here save, arguably, from the illegal labor practice, but there's no benefit for work received.

Mr. McCortney: That's absolutely correct, Your Honor.

In fact--

Mr. McCortney: Would you clarify one thing for me?

Mr. McCortney: --Sure.

Mr. McCortney: Do I understand that if the employer and the employee both know of the illegality, that then there's no back pay?

Mr. McCortney: Yes, Your Honor.

Mr. McCortney: It seems to me that's absolutely upside down.

Mr. McCortney: Well, Your Honor--

Mr. McCortney: The... and of course, you don't... this is the Government's position, you don't have to defend it, but in other words, as I understand the Government's... once the employer knows that there's a violation and continues it, he's no longer liable for back pay.

That's a strange calculus.

Mr. McCortney: --Well, Your Honor, that's the problem with the rule, is that it in some ways rewards the unscrupulous employer in Sure-Tan and penalizes the innocent employer, as in Hoffman.

If the unscrupulous employer knowingly hires an illegal alien, then whenever some kind of union organizing drive comes along and say gee, we can get rid of them, and we know they're illegal, and we're going to terminate them, then they can report them to the INS right from the outset--

Mr. McCortney: Mr. McCortney--

--Well, the difference is--

Mr. McCortney: --get him departed, and cut off back pay.

Mr. McCortney: --The difference is, of course, that if the employer knowingly hires this alien, he's subject to a lot of other penalties under the immigration law.

Mr. McCortney: That's correct, Your Honor.

Mr. McCortney: Take an employer who, you know, all he does, he says, I've checked their cards, I've checked their cards, the cards say they're here legally, and he runs some God-awful sweat shop.

Now, your theory, there is no remedy under any law against that employer but for a prospective remedy, and so everyone gets one bite at that apple.

Well, he has to pay for the sweat, though, doesn't he?

Mr. McCortney: Absolutely.

Mr. McCortney: And it's pretty low cost, because he's violating every labor law under the sun.

If, indeed, the worker, under this scheme you're proposing, there's no doubt that the document... undocumented alien works, he's going to get paid for the work.

Mr. McCortney: Absolutely, Your Honor, no doubt, and we have never advocated--

Mr. McCortney: And in Justice Breyer's hypothetical there's an OSHA violation.

Mr. McCortney: --Could be.

There could be an OSHA violation, and we're... as I said in answer to Judge... Justice Ginsburg's question, we recognize that undocumented aliens are given certain rights and benefits to level the playing field.

Mr. McCortney: What about title VII?

Mr. McCortney: Under title VII, if it's back pay exactly like back pay under the National Labor Relations Act, where it's unearned wages for work not performed during the back pay period, then that would be a problem.

Mr. McCortney: Suppose the allegation is, they kept me in this entry-level job, although I was qualified for the next step, because I was a woman and they never promote women.

That's the charge, and she wants back pay, she wants to be paid at the rate she should have earned absent sex discrimination.

Mr. McCortney: In that situation, Your Honor, if it were discovered that the illegal... that this person was an illegal alien--

Mr. McCortney: Make it just like this case.

Mr. McCortney: --Then there are other remedies available under title VII to effectuate the policies of the act and to enforce compliance.

Mr. McCortney: I'm asking about back pay for title VII.

You said you would treat FLSA differently, and there would be back pay.

Here, title VII, which... would that go... be bracketed with FLSA, or would it be bracketed with the NLRA?

Mr. McCortney: It would be... if... in your situation, you would get back pay, and let me explain the difference in this case.

The problem with the board's remedy is that the very nature of the remedy creates a duty to mitigate, which in turn requires and encourages the illegal alien to seek interim employment, thereby committing further and new violations of the immigrations law.

Mr. McCortney: So in title VII, if she were laid off, say, because they laid off all the women before they laid off any men, so she would also have a duty to mitigate in those circumstances, would the result be different?

Mr. McCortney: No.

When there's a duty to mitigate which requires them to seek interim employment, that is where the rub is, but under title VII, under, like, the National Labor Relations Act, there's a whole array of other remedies available to enforce compliance.

Punitive damages, you can... compensatory damages, emotional distress, that is not dependent on the victims authorization to work in this country.

Mr. McCortney: Of course, her complaint, if it were complaint, should read something like, you know, I shouldn't have been working at all, and it was illegal for me to be working at all, and I'm complaining because I only got $12,000 in illegal wages.

I should have gotten $14,000 in illegal wages.

I don't find that a very appealing case anyway.

Do you find that an appealing case?

Mr. McCortney: No, Your Honor, I don't.

I don't find that an appealing case.

Mr. McCortney: But you just told me that you would bracket title VII with the FLSA.

Mr. McCortney: Yes, because I... notwithstanding Justice Scalia's very good example that I don't find that appealing, that there is a way that this Court can distinguish between the National Labor Relations Act, which is remedial in nature, and all these other State and Federal discrimination laws that have punitive features to it that are not dependent on the undocumented alien's ability to work in this country.

Mr. McCortney: Well, I don't have any doubt that there are other ways for us to distinguish this, and it may very well be that if this were an original matter with us we wouldn't have struck the balance where the board did, but you've got the element here, the added element here of the board's decision, and I suppose we owe some kind of respect to it.

Given the confusion of statutes, the extent to which we owe deference is not, perhaps, clear, but we've got to give some consideration to it, haven't we?

Mr. McCortney: Well, Your Honor--

Mr. McCortney: If I could just supplement that, do we owe any deference to the views of the Attorney General of the United States, who is responsible for enforcing these... both statutes?

Mr. McCortney: --Your Honor, I don't believe so.

Under... we're looking at a remedial statute under 10(c) of the NLRA, and the only deference that the board is entitled to is, if the remedy that they order does not conflict with the immigration laws and policies of this country.

Mr. McCortney: We don't give a deference to administrative agencies as to what damage are available in court.

That's not part of their administration of the laws, is it?

I don't know any case where we've said, well, what damages... you know, the agency can tell us what damages we can award.

That seems quite extraordinary.

Were there agency adjudications here?

Mr. McCortney: In what way, Your Honor?

There was a back pay hearing, there was a underlying unfair labor practice proceeding.

Mr. McCortney: Which... and the result of which was?

Mr. McCortney: That the employer was found to have violated the National Labor Relations Act.

The administrative law judge at the back pay hearing--

Mr. McCortney: No, I mean, there was an administrative order to pay, wasn't there?

Mr. McCortney: --Yes.

Mr. McCortney: That's what I thought.

Mr. McCortney: But the administrative law judge did find... did not award any back pay to Castro because it conflicted with... Sure-Tan had found that it conflicted with IRCA.

Mr. McCortney: But the board did.

Mr. McCortney: Yes.

I guess you're quite right that if the board's award violates the immigration law, that's the end of the case.

Mr. McCortney: That's correct.

Mr. McCortney: You win.

But suppose that the immigration law doesn't forbid that award in terms, but its policy would, in fact, be hindered, while the labor law, actually the policy is furthered, though it doesn't insist on this kind of award, wouldn't we defer to the board when it seeks to reconcile, or the Attorney General when they seek to reconcile the policies of the two statutes?

Mr. McCortney: No, Your Honor.

Mr. McCortney: Because--

Mr. McCortney: I respectfully disagree, and this... in Sure-Tan this Court said in devising remedies for unfair labor practices the board is obliged to take into account another equally important congressional objective, to wit, the objective of deterring unauthorized immigration that is embodied in the INA.

Mr. McCortney: --Well, that goes back as far as Southern Steamship Company, where you're talking about the mutiny statute, that the board can't just go ahead without any reference to competing statutes.

Mr. McCortney: Well, Your Honor, I would agree, if the board's remedy conflicts with the policies of another statutory scheme, then it's... they're owed no deference.

Mr. McCortney: The board did take that into account, though.

I don't remember what they did in this case, but in the case where the board explained that it was, indeed, taking into account the policy of the immigration laws and the policy of the NRA... what was the name of that case?

It was affirmed on appeal.

The case where the board laid out its reasoning for taking this position.

Mr. McCortney: The APRA Fuel case?

Mr. McCortney: Yes.

Mr. McCortney: Okay.

Your Honor, the fundamental problem with this case is that this Court stated in Sure-Tan that the objective of the INA is to deter unauthorized immigration, and that a--

Mr. McCortney: But let's go back to one thing it also said in Sure-Tan, which is that the court of appeals here made an estimate without any evidence as to the period of time these employees might have continued working before apprehension by the INS, and that sounds... working before apprehension by the INS, that sounds very close to what the board did in this case?

Mr. McCortney: --Well, Your Honor, also in Sure-Tan, in the last sentence of the remedial section of the opinion it states, by directing the board to impose a minimum back pay award without regard to the employee's actual economic losses or legal availability to work, the court of appeals plainly exceeded its limited authority under the act.

It made it clear that it wasn't just actual losses that was the problem, it was the fact that the discriminatees were not either legally present or legally authorized to work.

Mr. McCortney: So then, what do you make of the condition about the period between the violation and when the employees might have continued working before apprehension by the INS?

Mr. McCortney: Your Honor, I don't know, because the discriminatees in that case were... left the country the same day their employment terminated.

Mr. McCortney: I'm not talking about the outcome of that particular case, where they were in Mexico, but a case where they were here, and the question was, how much back pay, and there's a reference to not a flat 6 weeks or 6 months or whatever, but a time period from the unlawful employment practice until one would expect the INS would pick up these people.

Mr. McCortney: Your Honor, again I think that is consistent with the other language in the Sure-Tan decision which is repeated over and over again about legal availability to work, and being legally authorized to work, and why would the Court use that language if it didn't have to?

So I... getting back to the policy of this that underlies the immigration laws of this country, it is to preserve jobs for American workers.

It is not the act of illegal entry that takes jobs away from American workers.

It's the act of working in this country without authorization that takes jobs away from American workers, and I would submit that the continued presence of an illegal alien in this country poses a greater threat to American jobs than an alien who enters this country repeatedly, because the latter presupposes that the alien has been physically absent from the job market for a period of time.

If the... under the board's scenario, the Sure-Tan discriminatees could have reentered on a tourist visa and be legally present and not legally authorized to work, and under that scenario they're clearly not entitled to back pay because it violates 1182(a)(5), that sets forth the terms and conditions on which aliens can work in this country and those that can't.

The same would be true of aliens who enter the country on a student visa, or who overstay their visa and work without authorization, so whether you have an alien that enters this country illegally and works without authorization, or who enters this country legally and works without authorization, both takes jobs away from American workers, and both violate the INA.

Mr. McCortney: Thank you, Mr. McCortney.

Mr. Wolfson, we'll hear from you.

Mr. McCortney: Thank you, Your Honor.

ORAL ARGUMENT OF PAUL R. Q, WOLFSON ON BEHALF OF THE RESPONDENT

Mr. McCortney: Mr. Wolfson, before you get to the substance of the matter, I want to ask a question that sort of relates to something that Justice Steven asked... Stevens asked, and that is, can we take it that this... I know that the SG's office usually reconciles the views of various agencies before a case is argued here.

What was the position of the Immigration and Naturalization Service--

Mr. Wolfson: Justice Scalia--

Mr. McCortney: --in this matter when it was told that it... that you're going to argue that courts should pay illegal aliens money that it was unlawful for them to earn?

What did the INS say to that?

Mr. Wolfson: --Justice Scalia... may it please the Court... the position in our brief has been developed in consultation with the Immigration and Naturalization Service.

This is the position of the United States, and--

Mr. McCortney: I understand that.

Did the INS agree with it?

Mr. Wolfson: --The INS has agreed with it and accepts it, and I'm here representing--

Mr. McCortney: They accept it.

Mr. Wolfson: --Right.

Mr. McCortney: They have no choice--

Mr. Wolfson: Well--

Mr. McCortney: --but to accept it if the Attorney General--

Mr. Wolfson: --Well--

Mr. McCortney: --tells them to.

Well, I mean, if they agreed with it, and just thought--

Mr. Wolfson: --The INS--

Mr. McCortney: --well, I have no... it explains why we have a massive problem of illegal immigration, if that's how the INS feels about this.

Mr. Wolfson: --I must disagree with that, Justice Scalia, and the point is, as the board recognized both in this decision and in the APRA Fuel decision which preceded it, the essential problem is that there is, as the board pointed out, an inseverable connection between illegal immigration, the availability of jobs, and poor working conditions for employees for... that illegal immigrants are wiling to take in the United States.

Now, Congress enacted IRCA on the premise that there was very little that it could do about the wage differential and the difference in levels of employment, unemployment that was drawing illegal immigrants to the United States in search of jobs.

Mr. McCortney: What did it say in IRCA... didn't the history of the report say that IRCA is not meant to undermine or diminish in any way labor protections in existing law, or to limit the powers of labor relations board to remedy unfair practices committed against undocumented employees?

Mr. Wolfson: That is exactly right, so--

Mr. McCortney: What is exactly right, that is what the legislative history--

Mr. Wolfson: --That is what the legislative history says, but simultaneously in the--

Mr. McCortney: --What legislative history was that?

I mean, was this a really powerful portion of legislative history?

Mr. Wolfson: --Yes.

Yes, it is.

[Laughter]

Mr. McCortney: One committee report?

Mr. Wolfson: It's two committee reports.

Mr. McCortney: Two committee reports?

Mr. Wolfson: It's the Judiciary Committee, House Judiciary and the Education and Labor Committee, but I don't just have--

Mr. McCortney: Of the House or the Senate?

Mr. Wolfson: --Of the House.

Mr. McCortney: Both of the House?

Mr. Wolfson: But I don't have just legislative history--

Mr. McCortney: Two committees in one House.

Mr. Wolfson: --I think it is important also to note that in IRCA Congress also wrote into law authorization of increased resources for enforcement of Federal labor laws by the Department of Labor by the Wage and Hour Division and the Office of Federal Contract Compliance.

Mr. McCortney: Did that include... did it include the National Labor Relations Board?

Mr. Wolfson: It did not refer to the National Labor Relations Board, but the point is, Congress knew that the Department of Labor was enforcing and should enforce Federal labor laws at the behest of and for the benefit of illegal aliens to obtain back pay for them.

Mr. McCortney: They wanted to be sure that aliens who had no right to be here, had no right to be earning any money--

Mr. Wolfson: Well--

Mr. McCortney: --should get paid for periods that they didn't work?

It's not a matter of their having worked and provided the employer with a benefit, which you're then reimbursing them for, but they haven't worked.

Mr. Wolfson: --It is... it's not just periods for which they have worked, which might arguably distinguish the Fair Labor Standards Act--

Mr. McCortney: Right.

Right.

Mr. Wolfson: --minimum... you know, maximum hours and minimum wage.

It's also the Office of Federal Contract Compliance, which enforces antidiscrimination provisions, routinely seeks back pay for aliens and others who have been terminated in violation of executive orders.

Another--

Mr. McCortney: Even though it's unlawful for them to receive that money?

Mr. Wolfson: --Even though... yes, even though it is.

Mr. McCortney: That's extraordinary.

I--

Mr. Wolfson: It's a very--

Mr. McCortney: --Let me--

Mr. Wolfson: --fundamental part of the Fair Labor Standard Act.

Excuse me.

Mr. McCortney: --In most back pay situations where the employer has committed an unfair labor practice and dismisses an employee improperly, the amount he's going to be stuck with for back pay is limited by the fact that the person unlawfully fired has to mitigate.

He has to find another job.

If he could have gotten another job easily and doesn't do so, the employer doesn't have to pay.

Now, how is this unlawful alien supposed to mitigate?

Mr. Wolfson: Well--

Mr. McCortney: Mitigation is quite impossible, isn't it?

Mr. Wolfson: --I'm not sure I agree with that exactly, Justice Scalia.

Here's... I wouldn't say that the undocumented alien has a duty to mitigate.

I have to emphasize that the board is not--

Mr. McCortney: He does not have a duty to mitigate?

Mr. Wolfson: --I will agree with that.

I have to say the board has not examined this issue in detail, but first of all, of course, anything that he does obtain in the matter of interim wages will be deducted from his back pay--

Mr. McCortney: Oh.

Oh.

Mr. Wolfson: --and that is quite consistent with--

Mr. McCortney: If he unlawfully obtains another job, that will be deducted?

Mr. Wolfson: --And... yes, and that is quite consistent--

Mr. McCortney: But if he's smart, he need not do that.

Mr. Wolfson: --Not--

Mr. McCortney: If he's smart he'd say, how can I mitigate, it's unlawful for me to get another job.

Mr. Wolfson: --Justice Scalia--

Mr. McCortney: I can just sit home and eat chocolates and get my back pay.

Mr. Wolfson: --I don't agree that the board would have to accept such a representation.

That is, the board might permissibly conclude that an undocumented alien should not be any better off than an authorized worker by virtue of his undocumented status, so if an employer could say, well, if a person with the same credentials, background, education, and so forth, would have made a job search and would have obtained employment and would have obtained thus-and-such wages, this undocumented alien worker would have--

Mr. McCortney: Should have done so.

Mr. Wolfson: --Should have done... or should have--

Mr. McCortney: Should have violated the law.

Mr. Wolfson: --Or should not benefit from the fact that he is an undocumented alien and being relieved of... and getting more back pay than the similarly situated authorized worker.

Now, the board was faced with the task here of reconciling two important Federal statutory schemes, the Federal labor laws and the immigration laws, consistent--

Mr. McCortney: I would think that the... does the board have to reconcile the Fair Labor Standards Act and the Office of Contract Compliance?

I would think that it's responsible as the National Labor Relations Act and the Immigration Act in this case.

Mr. Wolfson: --That is correct, Mr. Chief Justice, but I... but the board did look to IRCA and the Court can look to IRCA, which includes these other provisions in the Department of Labor, to determine what Congress is attempting to achieve in IRCA, and those are, I think, reasonable indicators of what Congress' objectives were and how far it intended to go along with the legislative history of the--

Mr. McCortney: Well, when the board makes its calculus and when the Government made its calculus, did it give any consideration to the fact that a union ought not as a matter of policy to use illegal aliens for organizing activity, or do you think the union can do that?

Mr. Wolfson: --Well--

Mr. McCortney: Is it consistent with the labor laws of the United States for the union to say it knowingly uses an alien for organizing activity?

Mr. Wolfson: --I don't know that the board has addressed the point of knowingly using illegal aliens.

I do know that the board has concluded that undocumented aliens may be included within the bargaining unit, and indeed, in both Sure-Tan... in Sure-Tan itself I believe they were included in the bargaining unit.

Mr. McCortney: And that doesn't induce illegal immigration?

Mr. Wolfson: Well--

Mr. McCortney: It seems to me that's a far more direct link than the very tenuous idea that you have that there's going to be more illegal immigration because they know they're going to get back pay.

Here, what you're saying is that a union can, I suppose even knowingly, use illegal aliens on the workforce to organize the employer, knowing that by doing that the alien will still be entitled to back pay.

That seems to me completely missing from any calculus, from any equitable calculus in your brief.

I just... and since it's a more direct link, I'm quite puzzled by it.

Mr. Wolfson: --Well, I don't know... I would suggest that the more powerful inducement towards illegal migration is the availability of the job, union or no.

That is, even if the union is willing to include undocumented workers in its bargaining unit, there still has to be a job for that worker, and it is the employer who is fundamentally in control of that matter, and it is the employer--

Mr. McCortney: Mr. Wolfson, in these cases we're only talking about a situation where the employer, and presumably the union, too, doesn't know, because if the employer knows, then the employer's obligation is to dismiss that person, as I assume it would be the union's, too, but in all these cases the issue comes up only because the employer didn't know of the illegality, isn't that so?

Mr. Wolfson: --Well, in this case the employer did not know.

Now, there are cases, I have to say, where the employer does know, such as the APRA Fuel Corporation that was referred to, and in that case what the board has done is, it has said that the board... the board has ordered reinstatement on condition that the undocumented alien put himself into a situation where he can obtain reinstatement legally.

That is, under no circumstances does the board order reinstatement of an employee who everybody knows is undocumented.

Mr. McCortney: But not back pay.

Mr. Wolfson: It does order back pay up to the point where either the employee is reinstated, or it terminates at a reasonable... if the employee fails to put himself in compliance with the immigration laws and become qualified, the board cuts off back pay as of the end of a reasonable period.

That is consistent--

Mr. McCortney: Even though the employer... I thought that the rule was, as soon as the employer knows of the illegality we're not going to allow any back pay from then on.

Mr. Wolfson: --Well, that is because in a case like this, what the board is doing is affording the employer the benefit of its general, after-acquired evidence rule.

Mr. McCortney: If he knows about illegality from the very beginning, then we will--

Mr. Wolfson: Well, in a situation--

Mr. McCortney: --We will order back pay?

Mr. Wolfson: --Yes, because in a situation like that the employee... the employer is not well-situated to claim the benefit of the after-acquired evidence rule, because it cannot claim that it wouldn't have hired the alien anyway.

To use an example--

Mr. McCortney: So you have two people violating the law, instead of one.

Mr. Wolfson: --Well, there are two people violating the law here, Justice Scalia.

I mean, the board... I mean, there aren't two people violating the immigration laws, but the employer did violate the National Labor Relations Act, and the board is quite properly--

Mr. McCortney: From the time of his initial hiring up until his violation.

I mean, but what you're saying is when both the employer and the employee are violating the law, we're going to... you're asking the courts to give their benediction to this stark violation of United States law by awarding money that hasn't even been worked for.

I... it's just something courts don't do.

Mr. Wolfson: --Well, the board is charged with the responsibility of developing a workable implementation of the National Labor Relations Act pursuant to its authority under section 10(c).

In doing so, it of course must take into consideration the policies of the immigration law, but there is no--

Mr. McCortney: What it's doing, though, really is kind of odd, because the result is that back pay awards to illegal workers are likely to be greater than to legal ones under this board's policy, and that's so odd, and it gives the illegal alien an incentive to try to phony up more documents and to extend for the longest possible time the charade that the worker is here lawfully, and that's surely strongly against the policies of the immigration act at the very least.

Mr. Wolfson: --The problem, Justice O'Connor, is that the immigration act, the policies come down on both sides.

I mean, yes, they obviously discourage illegal immigration and obtaining of jobs by illegal immigrants, but they also very strongly operate on the employer, and the fundamental premise on which Congress enacted IRCA was that it was the employer's... the employer had a very strong and natural economic and competitive incentive to hire illegal workers, and it is that... it is... the board's concern, in this case I think quite properly, is that if back pay were removed from the equation the--

Mr. McCortney: Well, but you--

Mr. Wolfson: --Congress's attempt to... excuse me.

I'm sorry.

Mr. McCortney: --You say it comes down on both sides, and it makes certain acts by illegal immigrants illegal, the entry, and it makes certain acts by the employer illegal.

Here, the worker, the alien was violating the law.

The employer was not violating the law.

So you say it comes down on both sides.

If both were violating the law I could see your point, but the employer was not violating the law.

Mr. Wolfson: That is correct, Mr. Chief Justice, but the board is attempting to fashion... the board doesn't know in advance which employer will violate the law by hiring undocumented aliens knowingly and which will not, or which employer will, you know--

Mr. McCortney: So you say this is a prophylactic rule?

Mr. Wolfson: --I think that the board is fashioning a rule that is implementing Congress' policy objective in IRCA across the board.

Mr. McCortney: But shouldn't remedies be looked at after the fact, let's find out who violated what and then fashion the appropriate remedy?

Mr. Wolfson: Well, the Court has not said that the board has to only fashion its remedies in a case in which the precise situation... you know, in the precise situation into which it's dedicated.

In a case called NLRB v., I think, 7-Up Bottling Company the Court explained that the board can make its back pay calculations for the purpose of across-the-board rules rather than just the employer to which... that is before the board itself, and the point is, even though this employer, even though there's no evidence that this employer violated IRCA when it... nonetheless the board, I think, could quite reasonably say, well, if... or if there is a flat rule that employees will never get back pay when they are terminated in violation of the National Labor Relations Act, employers then will pick up on that rule and they will say, okay, now I can get away with it because there's not going to be any remedy for any employee, and this is a very large--

Mr. McCortney: They won't get away with it.

They're subject to prosecution for... if they know that it's an illegal--

Mr. Wolfson: --It's not just the problem of their knowing that they're illegal hiring.

There also is the paperwork obligations, the verification systems, and I think there is a very real concern that an employer who knows that there's not really any monetary price to being lax in hiring, in checking whether illegal aliens are hired would say, well, on the one hand I just have the civil violations for violating the paperwork concerns.

On the other hand, the labor of undocumented aliens is in a very real sense much--

Mr. McCortney: --But it's just not reasonable--

--Why should the board be responsible for making sure that the employer documents his material about illegal aliens?

Mr. Wolfson: --I don't think that... it's not that the board is implementing IRCA, Mr. Chief Justice.

It is that its policy here is consistent with the policies that I've been discussing.

Mr. McCortney: Well, here's the thing.

When an employer reviews documents and concludes that they're valid and the person is lawfully here, then the employer isn't going to get some advantage of hiring some illegal alien because the worker will have to be paid and given benefits as though the worker were legally here, so there's no incentive for the employer under those circumstances to give a bum deal to the employee.

None at all.

But there is an incentive, it seems to me, for the employee to continue to conceal the facts, the facts that he's here illegally and has no right to work, and that the documents are false, and the board's rule fosters both those--

Mr. Wolfson: But one does have to take into account I think what would be the consequence of an opposite rule, that is, no back pay for an undocumented alien, and there is, I think, a very serious consequence that a flat rule that said something like, 7 million undocumented workers just simply get no back pay at all if they are in this country illegally and not employed.

That is a very large class of people to basically say, you are just without a remedy under the National Labor Relations Act, and there may be implications for other Federal labor laws as well, and--

Mr. McCortney: --But why should they be used to organize a bargaining unit--

Mr. Wolfson: --Because it--

Mr. McCortney: --if they're illegal employees?

I'm baffled by that.

Mr. Wolfson: --Because it... well, because the labor laws benefit everybody, and it's not just... I mean, they are... when I say they're organizing a bargaining unit, obviously they are... there may be... in this case there were other citizens and authorized aliens who are interested in organizing for the purpose of vindicating their rights under section 7 of the labor relations act.

The Court pointed this out in Sure-Tan, where it said it is appropriate to include illegal aliens within the definition of employees, because all the workers are in it together.

Mr. McCortney: I would have thought, Mr. Wolfson, that when you said, you know, there are 7 million illegal aliens in this country, that what you would follow that with is not, that's an awful lot of people not to give back pay to.

I would have thought you would follow it with, we have to do something to reduce this massive number of 7 million illegal aliens.

Mr. Wolfson: And what--

Mr. McCortney: And what you don't want to do to reduce it is to give them back pay.

Mr. Wolfson: --Now, there is no question that there is a serious problem of illegal immigration, and the INS and the Attorney General dedicate substantial resources to attempting to resolve that problem.

On the other hand, Congress without question recognized when it enacted IRCA that this was a many-faceted problem, and one aspect of the problem was that there was a natural magnet in drawing illegal, undocumented workers here in the wage differential, and that employers were willing to give jobs, and that it should not be cheaper for an employer to hire an undocumented alien than it is to hire--

Mr. McCortney: Okay, but the argument, Mr. Wolfson... every time... and I understand that argument.

Every time you make that argument, it seems to me the answer comes back, there are other ways to go against the employer.

You can fine the employer, you can bring criminal actions against the employer, and so on, so that the answer always is the effort to discourage employers from hiring illegal aliens doesn't depend upon the back pay.

I thought the board's position was strongest to counter that when the board says, there's kind of the gray area in which it's not clear that we can prosecute.

The evidence of what the employer knew at the relevant time is not leaping out at us, and so what we are trying to do is to fashion a remedy for those cases in which it's not practical to prosecute, but which we know perfectly well in the real world employers are winking at the likelihood that they're employing illegal aliens.

That's the group that we want to provide the inducement for by forcing back pay.

Is... am I giving the board too much credit?

Mr. Wolfson: --I wouldn't say that the board has limited... it certainly hasn't limited its remedy to that situation--

Mr. McCortney: Well, why then, in the question... why in the question... because I have exactly the same question.

That's exactly what I thought.

In the question that the Government presented it says, whether an order to pay back pay to an employee who was discriminatorily laid off, but only up to the date on which petitioner discovered that the employee was an undocumented alien, whether that kind of order is lawful.

That's how you saw the question presented.

Now are you telling me that what I'm supposed to decide is a case I really didn't think I had to decide, which is, what happens if the board awards back pay to others, such as those whom the employer has always known were illegal?

Mr. Wolfson: --We are not suggesting that the Court has to decide that case here.

Indeed, in our brief in opposition to the cert petition we pointed out that that was a different set of cases, the set of cases under the APRA--

Mr. McCortney: Well, if it's a narrow question, just what Justice Souter said I had taken to be the precise rationale for the narrow set of cases we're supposed to decide.

Now, maybe that's all not so.

That, I think, is what he was saying, and I'm seconding it.

Clearly you haven't missed your opportunity.

[Laughter]

Mr. Wolfson: --Justice Breyer, my point is that the board in a case... the board did rely on its APRA Fuel decision in this case, but what it held in this case was that an employer, once an employer learns that an alien is undocumented and therefore he cannot be hired, and in addition that the board accepts that that employer would not have hired that alien and would have discharged the alien when it found out that he was undocumented, then the employer should surely get the benefit of the after-acquired evidence rule that is applied in many, many kinds of Federal labor laws, including the Age Discrimination Act, for example.

Mr. McCortney: Once you adopt that rule, however, it seems to me that the asserted benefit to the immigration laws that you're claiming this rule has disappears.

It is no disincentive to any employer, because the only employer who would get the benefit of the rule that you don't get any back pay would be the perfectly innocent employer who hires someone not knowing that the person is an unlawful alien.

How are you possibly deterring anybody?

You're trying to deter the employer who hires an immigrant, apparently with this in the back of his mind: I know this guy's an immigrant and I can commit an unfair labor practice upon him.

I'm rather skeptical whether that's high in the mind of any employer, but assuming it is, you still have to assume, if he's going to be deterred, that he knows that the person is an illegal immigrant, but this rule only applies to people who don't know.

Mr. Wolfson: Well, whether or not... he may not know in the face of having clear, irrefutable evidence before him.

On the other hand, he may be induced to be somewhat lax in his compliance with the obligations of the verification system, because--

Mr. McCortney: Well, get him for that, then.

Get him for that, then.

Mr. Wolfson: --Well, that... of course, that's not--

Mr. McCortney: But your... isn't another way to describe the class you're dealing with is, he may not know in the sense that the Government can prove that he knew, but there is a class of employees as to whom the evidence is not clear, and it is that class that we want to provide the negative inducement for.

Isn't that the answer?

Mr. Wolfson: --I think at a, I would say at a minimum that is the answer, and the board cannot know in advance--

Mr. McCortney: Why should the board take over responsibility for those provisions that are basically immigration law provisions?

Mr. Wolfson: --Mr. Chief Justice, the board does not view itself as enforcing the immigration laws.

I think the question is, is this particular order inconsistent with the immigration laws, or is it consistent, and for some of the reasons that are being expressed here, all that we are saying is that it does not... it is consistent with them.

Surely there is no direct conflict with the immigration laws.

The board--

Mr. McCortney: What you just agreed to in your colloquy with Justice Souter does contradict the immigration... I remember when this statute was passed about what the responsibility of the employer was.

It was a clear provision of the statute that all the employer has to do is check the papers.

It isn't the responsibility of the employer to look behind the papers and see whether it's forged.

Now you're saying, ah, but there are some employers that maybe, yeah, you know, they complied with the provision of the law, they looked at the card, which is what the... there was a big fight over that.

How much is... investigatory responsibility is going to be placed on the employer, and the answer was basically none, just look at the documentation, and now you're saying, but some employers, we think they should have known better, and we're going to impose on this class of employers and, as it turns out, on a lot of others, liability which they shouldn't have.

Mr. Wolfson: --They don't have any liability under IRCA.

I mean, nobody is suggesting that the board can impose a liability under IRCA, but there is a concern, I think, that if en employer is totally exempted from back pay, a back pay remedy under another Federal labor law, that that does... that does work an inducement on the part of the employer to hire illegal aliens.

Mr. McCortney: Do no more than what the statute requires.

Check the documentation.

If the documentation is there, and valid on its face, he's entitled to proceed.

That's what the fight was about, and that's how the immigration law came out.

Mr. Wolfson: I do want to touch a bit on Sure-Tan, which I haven't had much of a chance to discuss.

Our... we have submitted in our brief that we think that the facts of the Sure... of the situation in Sure-Tan really make it quite distinguishable from this particular case.

In Sure-Tan, first of all I do want to point out that the condition that the Court explained and put on a reinstatement and back pay remedy, those did originate in the Seventh Circuit, and no party to this Court challenged that condition, that reinstatement and back pay had to be conditioned on the employee showing that he was legally authorized to be present and employed in the United States.

Now, the Court perceived that what happened in Sure-Tan was essentially the employer was being forced to say to the employee, you have a guaranteed job and a paycheck waiting for you right now, so come back to the United States right now and pick it up.

I mean, that obviously is a very powerful lure to an employee to migrate back to the United States if there is no condition that the employee show that he is authorized.

We submit that the incentives work quite differently in a case like this where the employee does remain in the United States.

Congress did enact IRCA on the assumption that illegal, undocumented alien employees in the United States were at the very bottom of the wage scale, they were likely to remain here as long as they could get any job that was available, and as against that, we submit that the inducement to violate the immigration laws that petitioner suggests by the prospect of waiting around after years of litigation for the prospect of some kind of back pay award at the end of the day is quite minimal, and all the courts that have looked at this under other Federal law such as title VII and the FLSA have agreed that it is not the prospect of a back pay award that induces illegal migration or illegal stay in the United States, it is the prospect of any job at any wage that is available, and so the incentives do operate quite differently here than they did in Sure-Tan.

Mr. McCortney: Mr. Wolfson, do you think a State court could enforce a contract for employment by an illegal alien?

Mr. Wolfson: I do not think that a State court could--

Mr. McCortney: You know, an illegal--

Mr. Wolfson: --Right.

Mr. McCortney: --makes a contract with an employer, then it is... he sues because the employer doesn't go ahead with it, and... could a State court say, well, you made the contract, you should be liable for damages?

Mr. Wolfson: I think a State court could award damages, and State courts have done so.

It could not order specific performance, because that would order... it could not order specific performance in ordering the employer to employ the person because that would be employment in violation of IRCA, but there, there would be a direct conflict with IRCA, but State courts have--

Mr. McCortney: There's no doctrine that conflicts in violation of the law are unenforceable?

Mr. Wolfson: --They're not necessarily completely void.

I mean, not just contracts, but State courts have awarded tort damages for lost wages.

It is universally the rule that undocumented aliens are entitled to Worker's Compensation.

I think only two States have gone the other way, and all of the State courts that have looked at that have said, yes, it is true, when the employee is just... you know, is injured and claims Worker's Compensation he is claiming a measure of compensation that is related to the employment he would have had, but nonetheless, the vast majority of State courts have held that illegal aliens can proceed under the Worker's Compensation rules, and the same is true of tort and contract damages as well.

Mr. McCortney: But all of that is for work done--

Mr. Wolfson: No--

Mr. McCortney: --or injury suffered, not to enforce a contract which has not been executed, which is what's going on here.

Mr. Wolfson: --Well, there may... perhaps there is a difference between tort and contract damages, but it is not just for work done.

If it is for injury suffered, it is for injury suffered as measured against that the work would have been done, or work that would have been done.

I mean, surely that's the case in tort damages or Worker's Compensation, where the employee says, I would have worked and you owe me this money.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Wolfson.

The case is submitted.

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Featured:

Ins v. Pangilinan - Oral Argument

Wed, 13 Apr 2011 20:10:49 +0000

Case:

Ins v. Pangilinan

Media File:

86-1992_19880224-argument.mp3

Related Transcript:

86-1992_19880224-argument.xml

Transcript:

ORAL ARGUMENT OF ROBERT H. KLONOFF, ESQ. ON BEHALF OF THE PETITIONER

Chief Justice William H. Rehnquist: We will hear arguments next in Number 86-1992, Immigration and Naturalization Service against Antolin Punsalan Pangilinan, and consolidated case.

Mr. Klonoff, you may proceed whenever you are ready.

Mr. Klonoff: Mr Chief Justice, and may it please the Court, the issue in this case is whether the Ninth Circuit was correct in ordering citizenship for the 16 respondents, all Philippine veterans of World War Two, under a statute that expired in 1946.

We submit that this Court has already answered that question in 1973 in INS versus Hibi.

The Court in Hibi held that the Attorney General's action in withdrawing the vice consul from the Philippines and the government's failure to publicize the program did not give rise to an equitable basis for disregarding the December 31st, 1946, cutoff, and as I will explain during this argument, respondent's argument is nothing more than a change of label.

The substantive argument made in this case is identical to that rejected in Hibi.

We further submit that Hibi was correctly decided and that there is no basis for this Court to overrule it.

To begin with, the relief ordered by the Ninth Circuit in this case is foreclosed by four naturalization statutes in addition to the 1946 cutoff in Hibi, and as I will explain, those statutes prohibit a court from ordering citizenship under the expired and repealed 1940 Act even as to those situations in which there was a timely application under the 1940 Act that was still pending and had not been ruled upon, and we submit that these naturalization statutes are dispositive for two reasons.

First, as this Court made clear in Fedorenko and indeed as early as the Ginsberg case, a court has no equitable authority to disregard statutory requirements for citizenship and more generally the Court of Appeals' invocation of its equitable authority in violation of statutory mandate is in fact an abuse of equitable authority.

We submit it is well established that a court of equity may not order relief that is contrary to the legislative intent.

In addition, it is our position that the underlying premise of the Court of Appeals opinion is false.

In our view the Attorney General's actions were entirely lawful and were within his discretion under the 1940 Act, and as I will explain, that is true for three reasons.

First, Section 705 of the Act left it to the Attorney General to decide where to place examiners, when to place them, and for how long.

In addition, the decision in this case, the revocation of the vice consul's authority was based on bona fide foreign policy concerns, and as this Court has made clear in numerous cases cited in the government's briefs, a high degree of judicial deference must be given in the context of executive foreign policy decisions, and that applies a fortiori, when a Court is reviewing those decisions four decades later.

In addition, there is added discretion in this case because there is no evidence whatsoever that Congress disagreed with what the Attorney General did.

In fact, as we have explained, all of the statutory enactments since the 1940 Act only confirm that the Attorney General acted lawfully in what he did.

Unidentified Justice: And you say that despite the language of the statute.

Mr. Klonoff: The language of the '40 Act, you mean?

Absolutely.

First of all, as we have explained in our brief, it is anything but clear whether that statute was intended to apply to individuals who enlisted or were inducted in the Philippines, and the Attorney General had to answer a number of difficult issues before he even determined that it applied there, particularly in the context of the Philippine Commonwealth Army.

It is anything but clear that Congress intended to authorize the naturalization of some quarter of a million individuals who are serving in their own army.

Unidentified Justice: We have naturalized a lot of them, though, over there, didn't we?

Mr. Klonoff: We did, that's true, and in fact that serves to undermine respondent's argument that there was something invideous about what was being done.

That only confirms that the decision was made for legitimate foreign policy reasons, but going beyond that, Justice Blackmun, the statute as described by the eight dissenting justices below is completely open ended.

There is no mandate that the Attorney General place an examiner in any particular location or for any particular period of time.

It is left up to his discretion, and as we have pointed out in our brief, the three-month period in which an examiner was actually placed in the Philippines before his authority was revoked compares quite favorably and is perhaps comparable to the post to post rotation system that was employed elsewhere in the world.

So ultimately it may be in fact that these respondents and others similarly situated had as much access to an examiner as soldiers elsewhere in the world, so we don't think there is anything in the statute that compelled the Attorney General to leave an examiner there, and indeed we submit it was entirely within his discretion to do what he did.

And again, I would point out that the subsequent Congressional statutes only confirm that.

We have in 1946, while the statute was still in effect, we have Congress passing a statute indicating that membership in the Philippine Commonwealth Army does not constitute membership in the United States armed forces.

That directly contradicts the Ninth Circuit's assumption that the plain reading of the statute compelled the Attorney General to apply the program in the Philippines.

We have the 1948 statute which made clear that enlisting or being inducted in the Philippines does not entitled the individual to citizenship unless that person is later a lawful, permanent resident of the United States.

The same provision in 1952.

There is simply no evidence whatsoever that this program was intended to apply in the Philippines, and we challenged respondents to cite anything in the legislative history either to show that the program was initially intended to apply in the Philippines or some recognition on the part of Congress that the Attorney General had erred or engaged in misconduct, and they have not cited any, so we would submit in light of that complete absence of anything by Congress to contradict what the Attorney General did and given the foreign policy concerns that were the basis for the decision, it would be particularly inappropriate to second guess that decision 40 years later.

Unidentified Justice: Maybe I don't really understand your argument.

You said they didn't intend it to apply in the Philippines at all?

Mr. Klonoff: We are saying at the time the statute was enacted--

Unidentified Justice: Which was when?

Mr. Klonoff: --1942.

Unidentified Justice: And what was going on in the international world at that time?

Mr. Klonoff: We would concede that there were battles--

Unidentified Justice: Wasn't the main fighting by the American forces at Bataan at that time?

Mr. Klonoff: --There was significant fighting there, but one--

Unidentified Justice: Significant?

I mean, wasn't that the part of the war we were most interested in at that time?

Mr. Klonoff: --That is correct, but it is simply... there is no reflection in the legislative history that we have found or that respondents have found that Congress was acting to reward those individuals the 250,000 people.

Unidentified Justice: Well, who were they rewarding?

Mr. Klonoff: They were rewarding, there were some 80,000 people who were naturalized around the world, in Iceland, England, members of the--

Unidentified Justice: You think they are the people Congress was thinking about in early 1942?

Mr. Klonoff: --We think so.

We think the fact that in 1946 Congress specifically said that membership in the Commonwealth Army does not constitute membership in the armed forces for purposes of government benefits would support it.

All we are saying, we don't know what Congress intended.

Congress wasn't clear.

They were clear in the World War One statute.

They specifically mentioned the Philippines.

They weren't clear in the World War Two statute.

All we are saying is, you have a statute that on its face has a 1946 cutoff, and as this Court said in Hibi, the public policy underlying that cutoff is clear and must be recognized, and that has to be balanced against what at most is an uncertain Congressional intent as to whether the statute was meant to apply to the Philippines at all.

Unidentified Justice: Well, what if we disagree and think it was intended to apply to the Philippines?

Mr. Klonoff: Then we still think for several reasons that that is not dispositive.

In fact, let me take it at several different levels.

The Second Circuit in Olegario, the reasoning of which we agree with on the statute, assumed for purposes of the decision that the statute was intended to apply to the Philippines, but what the Court said was, that is only the beginning of the question, because the President in revoking his authority had discretion to do so under Section 705 of the statute, and more particularly as a result of the foreign affairs concerns that were the basis for the revocation.

So it would be our submission that even if Congress had been clear that the statute was intended to apply to the Philippines, that in light of the foreign policy issue that faced the executive and in light of the very reasonable and tailored response of the Attonrey General, that was within his authority under the 1940 Act.

Furthermore, even if the conduct is considered to be erroneous, in other words, if the Attorney General had acted under a misperception, we think that Hibi still forecloses the claim because it is not enough to simply err.

As the court indicated, there was no affirmative misconduct there and accordingly no basis for ordering equitable relief four decades later, so we think that Hibi would be dispositive regardless of whether or not this Court agrees with us on the interpretation of the statute.

We bring that out about whether the program was intended to apply in the Philippines only to reinforce our position that this Court has to weigh on the one hand a clear Congressional intent expressed over the years from the 1940 statute itself through 1961 and repeated statutes of the public policy that the '40 Act expires, it is revoked, and that all petitions have to be considered under current law, and the Court has to balance that against a rather vague, at best, intention on the part of Congress.

And as we indicated, if Congress was so concerned about the individuals in the Commonwealth Army obtaining citizenship it would have been astonishing for Congress to come along in 1948 and explicitly made clear that enlistment or induction in the Philippines does not qualify someone for citizenship unless he later becomes a lawful permanent resident.

Unidentified Justice: That is a different Congress, of course.

You are are talking as though Congress is one Congress out there.

Mr. Klonoff: That is true but it is very close in time, Justice Scalia.

In fact, the cutoff date, 1946 cutoff date was established in 1945 as an amendment, and then we are talking about a Congress three years later.

We are actually talking about a Congress one year later, because the recision Act which said that the statute, the Commonwealth Army is not to be treated as the United States Army, that was 1946, one year later, and I would note furthermore, as explained to the Court in Olegario, the Congress in 1945 that passed the cutoff amendment, during the course of its deliberations Senator Hayden made the remark that it was his understanding of current law that Philippine veterans or soldiers were not eligible for citizenship unless they later came to the United States, and as the Olegario court points out, no one in Congress expressed any disagreement with that observation.

Again, our analysis our our submission in no way depends on that, as I have explained to Justice O'Connor.

We just think it is important to point out that the Ninth Circuit, which based its opinion on what it called "the expressed intent of Congress" is not expressed at all.

It is at most implied, and it really requires a good degree of reading to--

Unidentified Justice: Maybe you will touch it, but why was the '46 law passed?

Mr. Klonoff: --The '46 law?

Unidentified Justice: Yes.

Mr. Klonoff: In part it was passed, Justice Marshall, because of a concern by Congress about various kinds of monetary benefits going to--

Unidentified Justice: They didn't want the Philippinos to get it.

Mr. Klonoff: --They didn't want the--

Unidentified Justice: So it was aimed at to get rid of them.

Mr. Klonoff: --No, I don't think so.

I think what the concern was is that the Congress hadn't really focused on the fact that--

Unidentified Justice: That just in case they might get it, they are going to make sure they don't get it.

That's what Congress did.

Mr. Klonoff: --But what Congress was focusing on, Justice Marshall, was the fact that their enactments were premised on membership in the United States armed forces.

The Commonwealth became... was brought into the service of the United States Army only by executive order, and it really hadn't been focused by Congress on the fact that you were bringing in a quarter of a million people who were therefore going to be eligible to all these benefits.

But let me say, Justice Marshall, one thing that is extremely interesting is that in the course of passing the 1946 legislation, actually it was a statement afterwards and we have quoted it at length in our brief, Senator Hayden, who was one of the co-sponsors of that bill, pointed out that one of the intents behind it was to make clear that members of the Commonwealth Army were not entitled to citizenship, that those people were fighting primarily to serve the independence of their own country, and that in fact it would be no service to these individuals to bring them here where they were--

Unidentified Justice: Let's not discuss Senator Hayden, please.

Mr. Klonoff: --Let's not--

Unidentified Justice: Let's not discuss it here.

I mean, I know some of his reasons for this.

Mr. Klonoff: --I am not sure what Your Honor is--

Unidentified Justice: Right.

Find out.

Mr. Klonoff: --I was responding--

Unidentified Justice: You were answering my question.

Mr. Klonoff: --Yes, I was responding as to what was behind--

Unidentified Justice: And I am trying to tell you that that won't help me.

Mr. Klonoff: --Let me--

Unidentified Justice: Let me ask you this, Mr. Klonoff.

Isn't it correct that the '46 Act was to make sure that the Philippinos were not eligible under the GI Bill of Rights?

Isn't that basically what it was?

Mr. Klonoff: --That was in large part, but what I am saying is--

Unidentified Justice: I mean, it would have been very, very expensive to add this additional group of veterans to that entitlement.

Mr. Klonoff: --Well, the statute was worded in a very open-ended fashion.

It said that subject to--

Unidentified Justice: I mean, wasn't that the central purpose of it?

Mr. Klonoff: --That was, and all I am pointing out is that a later remark about one of the purposes of the statute being to make clear that for purposes of the citizenship program members of the Commonwealth Army were not to be treated as in the armed forces.

If I could turn back just briefly to the Hibi point, the veteran in Hibi made essentially a two-part argument in the Court of Appeals and in this Court.

His argument was, Number One, that the Attorney General deliberately violated the 1940 Act, and that Number Two, present day citizenship was therefore appropriate as an equitable remedy.

Now, the Ninth Circuit in Hibi adopted this two-part analysis, and we submit that if the case caption of the name and the references to parties were removed, the Ninth Circuit's opinion in Hibi is virtually a carbon copy of its current opinion.

There is really no analytical distinction.

The Court first said that the Attorney General violated the will of Congress, and secondly that citizenship was appropriate as an equitable remedy.

Now, this Court summarily reversed and held that the conduct of the Attorney General at issue was not affirmative misconduct and therefore could not have stopped the enforcement of the statutory cutoff date, and in the conclusion of its opinion the Court stated in no uncertain terms the respondent's effort to claim citizenship under a statute which by its terms had expired more than 20 years before he filed his lawsuit must therefore fail.

And now we have somebody coming in with the same identical arguments, the same two-part analysis, and arguing for citizenship, and we think that Hibi is controlling, and we agree with the dissenting judges below that there is simply no meaningful difference between saying that the government is equitably estopped from raising a statutory cutoff and disregarding the cutoff as a matter of equity.

Furthermore, we would submit Hibi is not only dispositive of the statutory arguments, but is dispositive of the constitutional arguments.

Now, let me say at the outset that it is important to emphasize that the Court of Appeals did not reach the constitutional issues, so it simply makes no sense to distinguish Hibi on the around that these parties are raising constitutional issues.

That would only be a distinction as a way of defending the Court of Appeals case if the Court of Appeals had in fact decided the case on constitutional grounds.

But in any event, as we point out, the constitutional argument is in essence the same argument that was made before, simply new labels being attached to old argument, and the policies in Hibi about why a court should not on that occasion 20 years later now 40 years later ignore the public policy of a cutoff apply equally well whether you label the claim equitable estoppel, equitable relief, or due process.

And in fact numerous of this Court's decisions dealing with equitable estoppel would confirm that.

For example, in Immigration and Naturalization Service versus Miranda, where the Court held that the government was not equitably estopped because of its delay in processing an application for adjustment of status, it would be rather odd if the alien in that case could come back in and say that that delay violated his constitutional rights and he is therefore entitled to adjustment of status.

Based on the same allegation, the same thing would be true in Schleicker versus Hansen.

The erroneous advice leading an individual not to get benefits for a period of time, the Court held there was no equitable estoppel there, it would be rather odd if the person could come right back in, put the label due process on, and suddenly be eligible for all these... for all these benefits.

If I could, if there are no questions on the Hibi point, turn to the equitable issues, and it is important to emphasize in all of these statutes that I am discussing the reason we are discussing them is because this Court in numerous of its foreign affairs decisions has looked to the Congressional response, Congressional acquiescence in determining whether or not the Attorney General did something that violated the will of Congress.

And as we have pointed out, you have an array of statutes, most compellingly the '48 statute, which states in no uncertain terms that even individuals who had applied under the 1940 Act and who had their applications pending, that those applications were to be decided under the 1948 Act.

Now, if Congress was willing to see individuals who had made timely applications have their rights or benefits, rather, dealt with under the '48 statute, it could not have intended that individuals such as those here would be eligible for citizenship 40 years later.

It is important to emphasize--

Unidentified Justice: Mr. Klonoff, then it is your submission that the 1948 act cut off the claims of some people who had made application to the earlier act and would have qualified under the earlier Act?

Mr. Klonoff: --That is exactly our submission.

That is clear from the face of the 1948 Act, that individuals who had applied under Section 701 before the December 31st cutoff, those applications were to be treated not under the '40 Act but under the '48 Act.

And our submission is that it is an a fortiori.

If individuals who had met the cutoff had their benefits cut off under the '40 Act, it could not be that individuals such as respondent who, Number One, didn't apply during the period, and Number Two, didn't even know about overseas naturalization, Congress could not have intended that those individuals be eligible 40 years later.

It is important to emphasize we are dealing with what has now come to be called Category Two.

These phrases were coined by a district judge in the '68 Philippinos case.

Category Two are individuals who made no efforts whatsoever prior to the cutoff to obtain citizenship, and in fact it is clear from the record in this case that not a single one of the 16 respondents even knew about the program, and in fact one of our submissions here in this Court is, it is difficult to understand how the respondents can claim they were injured when they didn't even know about the program.

Had there been an examiner there, we do not understand how they can claim injury when they did not even know about the program.

The subsequent statutes are as clear as the 1948 Act.

The '52 Act specifically lists the territories that are included within the concept of the United States and its territories, and it excludes the Philippine islands.

So once again, and again, just like the '48 statute, that applies to applications that were pending under the 1948 Act.

Congress explicitly stated in the '52 statute that applications under the '40 Act that were pending but had not been ruled upon were to be decided under the '52 statute, and again you have the same a fortiori.

If the pending applications were to be treated under the '52 Act, it could not be the case that Congress anticipated applications that had not even been filed until decades later should be treated under the '40 Act rather than the '52 Act.

And then perhaps the most compelling statute of all in some sense because it is in essence an overall umbrella of these other statutes is the 1961 statute, where Congress said that all applications for naturalization have to be considered under the 1952 Act.

That was Section 310(e) of the '52 Act in 1961.

So, the Court of Appeals in order to order equitable relief in this case not only had to ignore the 1940 Act, the '46 cutoff, but it had to ignore all of these other statutes as well, and we share the concern of the dissenting judges below that there is something wrong if a court just by putting on a hat that says equity can order a remedy that violates a whole series of statutes that could not be more explicit.

Let me turn to the issue now of whether in fact the Attorney General violated the 1940 Act.

The Ninth Circuit had little problem concluding there was such a violation, but as the dissenting judges noted and as the Court in Olegario noted, the statute gave the Attorney General considerable discretion in deciding where to place the examiners.

There is nothing in the statute that said examiners had to be placed at specific locations for specific periods of time.

You then have the added layer of the foreign policy decision that was involved here, and the contemporaneous historical documents are quite clear as to what happened.

The Attorney General initially made a decision even though the statute did not require it after consultation with his subordinates that he would apply the statute in the Philippines under a generous and reasonable interpretation of the statute.

It was only when the foreign policy issue arose that the decision was made to revoke the examiner.

There is a document which is quoted in a number of the court decisions in this area from September 1945 to Attorney General Tom Clark indicating that the Philippine government had expressed its concern that if the naturalization program were carried out, as many as a quarter of a million people the best young men for the Philippines, would suddenly leave that newly emerging country for the United States, and you would have a country that would not have a nucleus of its own, an army of its own.

And it was only upon obtaining this memorandum that the Attorney General initialed the memorandum and made the decision that he would revoke the naturalization authority.

After Congress made clear that being in the Commonwealth Army did not qualify an individual for the benefits of being in the United States armed forces, the Attorney General again reinstituted the authority of the naturalization examiner in the Philippines, because at that point since it was then being applied to members of the Scouts rather than the Commonwealth, which was a much smaller number, the concerns that had initially been raised by the Philippine government were no longer a problem.

So we would urge the Court then to follow the reasoning of the decision in Olegario and to hold that the Attorney General's conduct was permissible under the '40 Act, and if I could just briefly touch upon the Court's Miranda decision, since that was relied upon quite heavily by the Court of Appeals, we strongly agree with the dissenting judges below that the Court could not have intended in a decision that did not raise any question involving Philippine veterans to in effect decide that citizenship was now going to be available for thousands of Philippine veterans.

It was simply not an issue in the case.

And we would urge the Court that, but we have offered an explanation of the language in Miranda.

The Court in Miranda in saying that the action was error was referring not only to Hibi but also to the Court's Montana decision, and a reading of the Montana decision leaves grave doubt as to whether or not there was any error.

That was a situation the Court may recall where a consular official indicated to a woman that she should not travel in her condition.

She was pregnant at the time.

And there was a question of whether or not that was inappropriate advice.

But it is anything but clear, as the Court itself indicated in Miranda, whether this was error or was simply well-intended advice that she shouldn't travel in that condition.

So Montana itself confirms that the Court did not mean to necessarily declare that there was error, and we would submit that the point being made in Miranda was simply to emphasize that in Miranda you simply had delay or negligence whereas there were deliberate acts involved in Hibi.

So we don't think this Court intended in a context where the issue is not even before it to resolve these difficult questions.

Finally, I would not briefly one of our submissions that in this kind of situation where you are awarding equitable relief the Court of Appeals seemed to believe that once it had decided there was a wrong it had to find a remedy, and we submit that that is simply an erroneous understanding of the role of an equitable court.

A court in effect has to balance the equities, and one thing that could not be stronger against the position of the respondents is that they did not assert their claimed entitlement to citizenship until 40 years later, or 30 years later at the least.

And as we have explained, individuals who knew about the program back in the 1940s are guilty of laches for waiting so long, and the individuals who did not even learn about the program until the 1970s or '80s can hardly claim that they were prejudiced or injured as a result of the decision.

In fact, we have cited some Law Review articles that analyze this Court's Hibi decision as at bottom a balancing of the equities.

But the Court of Appeals apparently was of the view that once it decided there was a wrong it didn't have to balance the equities, so we would urge the Court if it reaches that issue, and we submit there is no reason to get to the issue of remedies, but if the Court reaches that issue, we urge the Court to hold that at this late date, given the potential disruption of the immigration system, the delay in asserting the claimed of citizenship, and so forth, that there is no basis for equitable relief.

I would reserve the balance for rebuttal, unless there are any questions.

Chief Justice William H. Rehnquist: Thank you, Mr. Klonoff.

We will hear now from you, Mr. Ungar.

ORAL ARGUMENT OF DONALD L. UNGAR, ESQ. ON BEHALF OF THE RESPONDENTS

Mr. Ungar: Mr. Chief Justice, and may it please the Court, there are three things I hope you will do when you decide these cases.

The first of these is to tell the government you really meant it when you said the Attorney General's error was clear when he made it impossible for qualified World War Two veterans to be naturalized in the Philippines in 1945.

The second is to take a closer look at just what the error was, and to recognize that it was more than the ordinary neglect or oversight that the majority opinion described it as in the Hibi case.

Rather, it was an intentional, deliberate decision by the Attorney General of the United States to keep the offer of citizenship away from qualified veterans.

It was a decision, in other words, to prevent the enforcement of the law as Congress had written it.

Unidentified Justice: Are you asking us to overrule a part of Hibi?

Mr. Ungar: I am asking you to take another look at the facts in Hibi.

I think in Hibi the majority opinion looked at the facts in a more traditional equitable estoppel context.

In a typical equitable estoppel argument against the government an applicant is suggesting that he was misled to his indetriment by some erroneous advice that a government official may have given him.

Mr. Hibi couldn't make that kind of argument because there was no misleading of him.

No immigration officer or federal official went out to him and said to him erroneously that you are not eligible for naturalization, and so the court or the majority in that case seemed to conclude that because there was no affirmative act which misled Mr. Hibi, that there was no estoppel.

It could give rise to no estoppel.

Unidentified Justice: It not only seemed to conclude, it did conclude.

Mr. Ungar: Well, that is not the way the majority characterized what happened.

The majority characterized what happened as a mere failure to publicize the availability of this wartime naturalization law and a mere failure to station an examiner in the Philippines during all of the time that veterans like Mr. Hibi were eligible to apply.

But it wasn't just a mere failure, and if the majority was saying a mere failure does not give rise to an estoppel, it certainly did not consider the issue of whether a deliberate decision to disregard the law would give rise to estoppel.

In that sense, I think you can look back at Hibi and come to a different conclusion.

Unidentified Justice: But our opinion in Hibi concludes as the Solicitor General has reminded us saying that the respondent's claim must fail, and yet the Ninth Circuit has gone back and said, no, it need not fail.

Mr. Ungar: Well, in Hibi the majority said it must fail because there was nothing more than neglect, and it was obvious from the opinion that the majority considered it nothing but a matter of neglect because the Hibi decision was based upon the old Utah Power and Light case.

Unidentified Justice: Do you think it is open to a lower court to recanvass facts that have been characterized by this Court in a particular way?

Mr. Ungar: I don't think this Court characterized that in the way that the court below saw it.

The court below saw it as a deliberate violation of a statutory obligation by the Attorney General.

This Court didn't--

Unidentified Justice: Were there new facts presented to the Ninth Circuit that had not been presented earlier?

Mr. Ungar: --No, the facts are identical.

Mr. Hibi's facts and the facts presented by the respondent is identical.

But the analysis that was applied by this Court was not the analysis provided by the court below and it was not inconsistent with--

Unidentified Justice: Yes, but ordinarily when the Ninth Circuit analyzes a case one way and we analyze it another, we prevail.

But apparently that isn't the case here.

Mr. Ungar: --Well, I think it is important how perception of what happened determines how one analyzes the case, and the majority in Hibi perceived the case as nothing but mere neglect, whereas the true facts were much more than mere neglect.

In any event, I hope you won't consider Hibi to be dispositive, because the veterans in this case have raised a different legal issue.

That is, they have raised the due process issues that Mr. Hibi did not raise and were not considered in his particular case.

Unidentified Justice: Is the Solicitor General correct or incorrect in saying that the Ninth Circuit did not pass on these constitutional issues?

Mr. Ungar: No, he is correct.

The Ningh Circuit did not pass on it, and as we have indicated in our briefs, we believe that this Court may pass on those issues if it so chooses, or remand it for consideration of those issues if it comes to that conclusion.

Let me turn first to the question of error.

The Solicitor General suggests that the Attorney General did have the authority to halt the naturalization program in the Philippines in 1945.

I think the place to start first of all is with the fact that what Congress had done here was to enact a statute in the exercise of its exclusive naturalization authority.

Congress and only Congress can determine who is to be naturalized.

That is not the function of the Attorney General of the United States.

And in this particular place, if we look at the language and the purpose of the statute and the means that Congress chose to implement that statute, it seems to me that it is quite clear that the Attorney General did have the obligation to carry out that law by naturalizing any qualified veteran.

The language of the statute is clear.

It says that any qualified veteran may be naturalized.

The purpose of the statute was to provide naturalization for qualified veterans in exchange for the service that they provided to the United States armed forces during the war.

And the means to make sure that soldiers and sailors overseas would have the opportunity to apply, the statute Section 705 specifically called upon the Attorney General and the Commissioner of Immigration to take whatever action is appropriate to make appropriate rules and regulations for the purpose of carrying the law into effect, not to frustrate the purpose of the law.

That is the mandate that Congress provided in the 1942 amendments to the 1940 Act, and I think it is clear from what happened that during the war itself, from 1942 onward throughout the war the Attorney General recognized that that was his obligation.

The Commissioner of Immigration sent representatives all over the world during the war to naturalize qualified veterans.

Unidentified Justice: Or that he was authorized to do it.

Mr. Ungar: I beg your pardon?

Unidentified Justice: All that that necessarily acknowledged was that he had the authority to do it, not that he was obliged to do it.

Mr. Ungar: I think it is more than just--

Unidentified Justice: It doesn't necessarily prove that he was obliged to do it.

Mr. Ungar: --Well, he looked upon it that way, and I think certainly the language of the statute said he is authorized to do this, but in the context of the statute, the purpose being to naturalize veterans overseas, Congress certainly made that intention clear, and since they set up this mechanism for doing it, it seems to me it was apparent that he had to follow and implement the statute by following that mechanism.

Unidentified Justice: Other things being equal.

There are a lot of reasons why, if he didn't have enough money to send them to all countries, he would have to select some countries, and what he is saying here is that there is another factor that came into account, some foreign affairs factor.

Mr. Ungar: Right.

Well, I think--

Unidentified Justice: But the statute was not mandatory.

It didn't say, he shall station these examiners.

It just authorized it.

Mr. Ungar: --I think there is a difference between saying that he didn't have to send an examiner to a particular country because he didn't have the fund or he didn't have the manpower or because of the exigencies of war he couldn't send people to certain parts of the world.

I think there is a big difference between that and a situation where he says I have the manpower, there is a vice consul on the scene, the law says that these people are entitled to be naturalized, but I am going to take it away from them to prevent the offer from being accepted.

Unidentified Justice: Mr. Ungar, I dropped a stitch somewhere.

Did your veterans serve in the armed forces of the United States?

Mr. Ungar: Yes.

Unidentified Justice: Well, the Solicitor General constantly refers to the Commonwealth Army of the Philippines.

What is the difference?

Mr. Ungar: Well, there are two segments of the armed forces insofar as it applied to Philippinos who were residing in the Philippines.

One was a unit called the Philippine Scouts, which was a direct part of the United States Army from the very beginning.

Unidentified Justice: Were your veterans in the Philippine Scouts?

Mr. Ungar: Some were and some weren't.

Some were also in the Philippines Commonwealth Army, which was an army raised by the Commonwealth of the Philippines prior to its independence.

Now, what happened was that under the Philippines Independence Act of 1934, the President of the United States was given the authority in time of emergency to take the armed forces of the Philippines commonwealth and make it a part of the United States armed forces, which he did.

President Roosevelt in 1941 issued an executive order taking the Philippines Commonwealth Army and bringing it into the armed forces of the United States.

They all served under the same flag.

They all wore the same uniform once the war started.

And they were all considered part of the armed forces of the United States, and I think it has been suggested here in 1946 the purpose of the 1946 Act was to save money.

Congress realized at that point perhaps that it would cost them a lot of money to provide GI Bill and other benefits for the commonwealth soldiers among others, and so it wrote into the law that legislation which barred them from being considered for certain monetary benefits that other soldiers and sailers were entitled to.

Unidentified Justice: It was argued in Hibi, was it not, although it doesn't appear in our opinion, the argument was made that it was unlawful for the Attorney General not to station these officers in the Philippines?

Indeed, that--

Mr. Ungar: The argument was made that it was unlawful for him to withdraw the officer--

Unidentified Justice: --Right.

Mr. Ungar: --for the avowed purpose of preventing people who were entitled to be naturalized, for the avowed purpose of preventing them from being naturalized.

Unidentified Justice: And that was the basis for the Ninth Circuit's holding that time around.

Mr. Ungar: That was the Ninth Circuit's... in addition the Ninth Circuit's--

Unidentified Justice: So it is not a new legal point you are bringing up.

You just want to recharacterize it as not estoppel now but what, we can remedy it by our equitable powers.

Mr. Ungar: --Well, you can also remedy it--

Unidentified Justice: Is there any new legal issue that is before us in this case?

Mr. Ungar: --I am sorry, I missed the last--

Unidentified Justice: Is there any new legal issue that is before us in this case other than the difference between estoppel and equitable discretion?

Mr. Ungar: --I think there is a difference between estoppel and equitable discretion perhaps on the one hand and due process arguments on the other.

Unidentified Justice: The due process argument.

Right, I agree.

Mr. Ungar: I think there is a difference there, and I think that is an important difference, because if you are considering the due process violation, this issue of affirmative misconduct is irrelevant.

One doesn't have to find affirmative misconduct on the part of federal officials in order to find a constitutional violation.

The error is enough.

I think it is important in that respect.

And also the due process argument is also important because of subsequent post-war legislation, because the Congress cannot legislate away, so to speak, a constitutional injury to these people.

So that would also be important for that reason.

Getting back to the issue of error, whether the Attorney General had the authority to withdraw the examiner from the Philippines during that time, the government says, first of all, that perhaps the Philippinos who were serving there were not entitled to naturalization in the first place.

I think what Mr. Klonoff is forgetting is that the Attorney General made that determination in 1945 that Philippinos, like these respondents, were eligible for naturalization.

That is not really an issue before the Court any more.

They were determined to be within the scope of this particular statute.

As to the foreign affairs authority, it is true that the executive department has great authority in the field of foreign affairs, but here we have a statute under which Congress, exercising its naturalization powers, said these people shall be naturalized.

There is no case which says that the executive branch can take action in the field of foreign affairs, despite an Act of Congress which provides an opposite intent.

I don't think the foreign affairs powers really goes that far.

As to the fact that Congress did not discuss specifically the issue of what it would want to do in the event of objections by the Philippines government as part of the foreign affairs issue, so to speak, it seems to me that it is hard to believe that Congress would have wanted to take away the offer of citizenship from Philippinos in the Philippines for such reasons, because when Congress enacted this law it made it specifically applicable to persons who were residing in the United States or its territories or possessions, and of course at that time the Philippines was the largest of the United States' possessions.

They used language in the law that a person who served in the armed forces and who was not a citizen, rather than using the term "alien" is significant that Congress meant to include Philippinos, because Philippinos were then by far the largest number of people who were neither citizens nor aliens, but non-citizen nationals.

The use of that language certainly indicates an intent to include Philippinos who were residing in the Philippines within the scope of this statute.

As Justice Stevens has pointed out, this law was enacted at the very moment that the battles of Bataan and Coregedor were making headlines all across the country.

Congress must have known that the Philippines was going to become independent at some future date.

It must have known that President Roosevelt had brought all of these people into the Army.

To suggest that Congress did not want these particular people to be naturalized seems to be inconsistent with all those particular ideas, and that if Congress really had wanted to exclude those Philippinos under these circumstances it would have made that intention explicit.

It certainly didn't do that.

I think I have touched on the idea already about whether the Attorney General had an implied delegation of authority to withhold the benefits of the naturalization law from people in the Philippines.

Section 705, as I have indicated, did delegate a certain amount of authority to the Attorney General and the Commissioner of Immigration to place representatives in various parts of the world.

As I pointed out before, there is a big difference between the authority to do that, the obvious discretion that he would have to have in light of scheduling and manpower problems and what was going on in the war, there is a big difference between that and deliberately removing an examiner who is already there for the purpose, the express purpose of taking away the offer of citizenship that Congress had made to them.

It seems to me if the Attorney General felt that there were reasons not to grant citizenship to Philippinos in the Philippines in 1945 it was for Congress to make that decision, because only Congress can determine who is to be naturalized, and that when the Attorney General made his decision, he really crossed the constitutional line between his role as a person who is supposed to faithfully execute the law with Congress's role to make the laws, particularly in the area of naturalization.

Unidentified Justice: Mr. Ungar, would you comment on your opponent's argument that they could not have been prejudiced if none of them even knew about the program?

Mr. Ungar: Well, the government suggests that none of these people were injured because we don't know whether they ever would have found out about their opportunity to apply had the examiner remained on duty in the Philippines during that particular period of time.

Well, of course, none of us will ever know that, but it seems to me that that sort of argument is putting these respondents in an impossible position.

It is the government that is responsible for that.

The government is saying, how can you tell us that you would have heard about this law when we, the government, have taken away the only way, the means that you could have applied.

The only way that you could have learned presumably would be if we had left an examiner there.

It is possible that word of mouth would have reached these people.

Unidentified Justice: Well, didn't the government have a duty to tell them?

Mr. Ungar: I think so, and I think there was an obligation to do that.

Unidentified Justice: So that is like the guy that was charged with murdering his parents and pleading he was an orphan.

That is the argument that the government is making.

We didn't tell you about it, so you didn't apply, so now you are out.

Mr. Ungar: Yes, I think it is significant there, too, because other soldiers elsewhere were notified of the opportunity of applying.

There was a War Department circular that called upon--

Unidentified Justice: That is a pretty hard argument to make in light of Hibi, isn't it?

Mr. Ungar: --It is a hard argument under that... I agree with you in that respect.

I think in all fairness it is difficult, too, because... for another reason, and that is that these people, these men who were in the Philippine Scouts and the Philippine Army, and they were captured after the fall of Bataan and Coregedor and spent time in prison camps were stranded in the Philippine Islands during the war.

It would have been difficult to get notice to them, and when they came back--

Unidentified Justice: They were on a march across the island.

Mr. Ungar: --I beg your pardon?

Unidentified Justice: They were on a march clean across the island.

Mr. Ungar: That's correct.

Unidentified Justice: No food, no anything.

Mr. Ungar: They certainly were.

So I think that underscores the injustice of what was done here.

They were people that put their lives on the line for the United States at a very critical time in the war.

They were promised American citizenship in exchange for that service, and when the war ended, for reasons which the Attorney General seemed to think were okay, we simply said, well, it is too bad, the war is over, we will forget about your opportunity to apply for naturalization.

Unidentified Justice: But, Mr. Ungar, Congress itself changed its mind in 1948, didn't it?

Mr. Ungar: That is true.

Unidentified Justice: It is not as if this had always been on the books.

This was a statute that was in effect for a very short time and then Congress, which is the source of authority, changed its mind.

Mr. Ungar: Well, first of all, that was another Congress, and secondly, this was 1948, and I think there is no evidence in this record to show that Congress knew that the Attorney General had violated his duty under the 1942 Act.

I think the 1948 Act, the enactment of that bill, one can presuppose that Congress assumed that everybody who was covered under the 1942 Act would have had a fair chance to apply, and here the war is--

Unidentified Justice: Well, but if the Solicitor General is correct, I would think maybe that isn't right because I understood him to say that those whose applications were pending and qualified, some of them were cut off under the 1948 Act.

Mr. Ungar: --That is true, and it is interesting also, Your Honor, that Mr. Klonoff refers to the Category Two veterans and Category One veterans.

Category One veterans are those who learned about the opportunity to apply during the war and made an effort to apply but were told that they were ineligible to do so.

Now, the government is acquiescing in their naturalization even today on the theory that they made an effort to do it and there was some sort of... as an equitable matter they should be naturalized today.

If one followed Mr. Klonoff's argument to its logical conclusion they shouldn't be naturalized either because the 1948 Act would have cut them off, but I think the main point is that 1948 was two years after Philippine independence.

Congress could have looked at the situation and said, look, we gave you people an opportunity to apply for naturalization during the war and right after the war.

You had a fair chance to do that, and if you chose not to accept American citizenship, we are just not going to extend it any more.

There is no indication here that Congress knew that these people were deprived of their opportunity to apply in 1945 and 1946.

Had they known that maybe there would have been a different result, but I don't think it's fair to suggest that because there was an enactment in 1948, that Congress really meant to cut off the rights of someone who was injured by governmental conduct prior to that time.

Unidentified Justice: Of course, the whole thing might have been a mistake from the beginning.

We don't really know for sure that when Congress said the military or naval forces of the United States it meant to include the Commonwealth Army.

Mr. Ungar: One could have made that interpretation, I suppose, and if they had made that interpretation I guess we wouldn't be here today, but the fact is that that was the interpretation that the Attorney General made in 1945.

Unidentified Justice: I understand, but it makes the injustice, if that is what it was, seem a little less acute when it was a dicey question whether that language would have been interpreted to include Philippinos in any event.

Mr. Ungar: Well, that question has never really--

Unidentified Justice: To... one group of people on the basis of race and denied them something, I don't know what else you can call it.

Mr. Ungar: --I think that is also true.

That is a separate issue.

Only Philippinos as a class were discriminated against in the operation of this particular law.

Unidentified Justice: Yoi can't make it... paint it over.

Well, it wouldn't be on the basis of race.

It would be on the basis of what army they served in.

whether they served in the Army of the United States or an army that was not an army.

That is how the statute--

Mr. Ungar: I don't think that is true at all.

They were barred from becoming citizens because they were Philippinos, and we didn't want them coming to the United States for whatever reason at that time.

Unidentified Justice: --These people all served under General McArthur, didn't they?

Mr. Ungar: Yes, they did.

Just to get back to Justice Stevens' question about the injury, again, I think it is really asking the respondents to prove the impossible to say that they would have heard about this law had the examiner remained on duty in the Philippines in 1945.

And I hope the outcome of this case is not going to turn on that particular question.

We will never know what could have happened if the examiner had stayed there.

But it seems to me that is... the reason we don't know is the government's own error, and that shouldn't prejudice these respondents in that particular light, and I think it is also important to remember in that context that these veterans were cut off during the war from all opportunity to learn about the law.

All this happened as the war was drawing to a close and they were scattered throughout the Philippines.

There was only one examiner in Manila who was doing this and there was no official notice to these people as there was to others, and the fact is that some people did find out about it.

The Category One people that we have referred to did find out about their opportunity, and they must have found out about it through word of mouth, so it seems to me logical to assume that had the offer remained there there certainly was a better chance that these people would have found out about their opportunity to be naturalized and would have taken whatever steps were appropriate to apply.

Unidentified Justice: May I ask, is there any evidence as to whether there is any publicity in newspapers, even in Army papers, you know, the GI... I can't remember the name of it now, but this program wasn't discussed?

Mr. Ungar: There is no evidence at all that I could find to show that these people in the Philippines were notified about their opportunity to apply for naturalization.

Mr. Klonoff refers to the Fedorenko and the Ginsberg cases as suggesting that a court is not allowed to look beyond what the statute provides with respect to naturalization.

It seems to me there is a difference between those cases in determining... there is a difference, in other words, in determining whether an individual is eligible for naturalization, in which case obviously a court has to look at the naturalization statute as Congress provided.

What happened here was different.

It wasn't a question of whether these Philippino veterans were eligible for naturalization.

Rather, it was a decision to bar them from even applying.

I think there is a big difference which allows the Court to provide a remedy whether on a constitutional or an equitable basis.

Unidentified Justice: May, I ask one other question that goes to the remedy matter?

Do we know how many people have an interest in the outcome of this case?

Mr. Ungar: No, we really don't know.

I think the government has been arguing large numbers from the very beginning in the Hibi case when they filed their petition for certiorari in the Hibi case... he was a Scout, by the way, in the much smaller unit, and at that time the government was suggesting that as many as 30,000 Philippino Scouts were still alive and would apply and 80,000 dependents would apply, and that is only the Scouts.

Now, here it is 20 years later, since... the reason that many of these people found out about the law in later years was the Hibi litigation and the '68 veteran litigation.

All this has been going on for 20 years, and at most we have a couple of thousand people who have come forward now to make application so it seems to me the numbers involved are very small.

I don't know what the exact numbers are.

There are certain petitions pending in various courts around the country.

But clearly they are small in terms of overall immigration.

We invite as many as 800,000 people a year into the country legally.

It is small in terms of the two million or so people we have invited to come in and apply for amnesty.

Common sense tells us that it has to be a small number because these are an aging group of people.

I mean, in this particular case the youngest man is 64.

The oldest is in his eighties.

There aren't that many more who are going to be able to come here.

I think one has to start out with--

Unidentified Justice: I assume that is irrelevant to our decision, of course.

Mr. Ungar: --Well, I think it is relevant perhaps in the sense of balance.

Unidentified Justice: I mean, whether we will provide justice to a lot of people or just a few people.

Mr. Ungar: I beg your pardon?

Unidentified Justice: I am not sure it is, when you weigh the equities in a case like this, I think one might consider the public consequences.

I am not sure it is totally irrelevant.

Mr. Ungar: That is the point I was going to make.

Unidentified Justice: On the remedy issue.

Mr. Ungar: It may be relevant in a balancing of equities situation.

What I am trying to suggest is the weight to that particular argument ought to be very small because there can't be very many who are going to benefit--

Unidentified Justice: What about the children?

Mr. Ungar: --The children are not going to benefit.

These are men in their sixties, seventies, and eighties.

The only kinds of children who would benefit under our immigration laws would be unmarried minor children who would come here to the United States outside of the quota system.

The present quota system from the Philippines is so oversubscribed that any adult child of an Amerncan citizen has to wait ten years or more to come here.

Unidentified Justice: I suppose, but if they had had a chance to qualify and be naturalized way back when, then the children would have--

Mr. Ungar: They would have been born in this country and they would be natural born citizens.

That is true.

Unidentified Justice: --Yes.

Well, how come equity wouldn't reach them?

Mr. Ungar: Persons who were born in the United States?

I am not sure I follow your--

Unidentified Justice: Persons... children of these aging men who if they had been naturalized way back when would have been citizens of the United States.

Mr. Ungar: --That is probably true.

Unidentified Justice: Why won't equity protect them?

Mr. Ungar: Well, it is another step forward, and I think it would be a much harder argument.

Unidentified Justice: That would be the next case.

You mean they can only come to this country without their children?

Mr. Ungar: Well, they could only come to this country--

Unidentified Justice: You are going to tell them you can leave the Philippines so long as you leave your family there?

Mr. Ungar: --At that time, if they were still young enough and these people were naturalized they could have come.

the fact is, if you are weighing the equities and balancing the equities, you have to do it as of today, and as of today there aren't going to be very many children of these veterans, if any, who are going to come to the United States under--

Unidentified Justice: Well, as of today the law is expired.

Mr. Ungar: --I think the law may have expired, but for the reasons I have indicated, the Court has the authority to remedy the wrong that was done to these people either on constitutional or equitable principles.

I think the bottom line in this case, I have always felt, is that Congress made a promise to these people back in 1942 that they could become American citizens if they served in the armed forces.

These people did serve in the armed forces of the United States.

They were entitled under the law to be naturalized.

The Attorney General did not give them the authority to... did not allow them to do that.

He violated his authority under that law, which was contrary to the intent of Congress, and since he had no authority to do that, I think the Court has the authority to provide a remedy despite the many considerations that Mr. Klonoff has referred to in terms of subsequent legislation, and so on.

Thank you very much.

Chief Justice William H. Rehnquist: Thank you, Mr. Ungar.

Mr. Klonoff, you have one minute remaining.

ORAL ARGUMENT OF ROBERT H. KLONOFF, ESQ. ON BEHALF OF THE PETITIONER -- REBUTTAL

Mr. Klonoff: Very briefly, on the Hibi point I would just refer the Court to Page 3 of our reply brief, in which it is quite clear that the arguments made in Hibi by the respondent in the memorandum in opposition, which was the pleading before the Court since it was summarily reversed are identical to the arguments made here, the characterization of the case.

Unidentified Justice: Mr. Klonoff, on the equitable discretion point, how did these Class One veterans who had applied but not yet been naturalized, how did they get in if there is no equitable power to ignore the subsequent repealer of the law?

Mr. Klonoff: That is a very good question.

The decision on Category One was made as a policy matter, and quite frankly, that is a policy decision that, depending on how the Court analyzes the issue, is going to have to be reconsidered in the future.

Unidentified Justice: You mean the executive has that equitable power but the courts don't?

Mr. Klonoff: Well, the executive doesn't rule on naturalization.

The executive makes a recommendation, and all that was happening is that the executive wasn't affirmatively opposing naturalization.

It is a decision that is made by the courts.

Thank you.

Chief Justice William H. Rehnquist: Thank you, Mr. Klonoff.

The case is submitted.

Unidentified Justice: The honorable court is now adjourned until Monday next at ten o'clock.

Attribution:

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Featured:

Reagan v. Abourezk - Oral Argument

Wed, 13 Apr 2011 20:11:29 +0000

Case:

Reagan v. Abourezk

Media File:

86-656_19871005-argument.mp3

Related Transcript:

86-656_19871005-argument.xml

Transcript:

ORAL ARGUMENT OF LAWRENCE G. WALLACE ON BEHALF OF PETITIONERS

Chief Justice William H. Rehnquist: We will hear arguments, first this afternoon, in Number 86-656, Ronald Reagan versus James Abourezk, and you may proceed whenever you are ready, Mr. Wallace.

Mr. Wallace: Thank you, Mr. Chief Justice, and may it please the Court, these cases, which were consolidated in the District Court, present questions concerning the denial, on foreign policy grounds, of non-immigrant visas to aliens invited by persons or groups in this country to participate in public or academic discussions.

The denials were based on a provision that appears on page 2 of our brief, Subsection 27, of a list of provisions in Section 1182 of Title VIII, which are provisions or bases for excluding aliens from the issuances of visas.

And, in this instance, they were denied as prejudicial to the public interest or endangering the welfare, safety, or security of the United States.

The Court of Appeals held, and it is not contested in this Court, that foreign policy concerns can be a proper basis for a denial under Subsection 27; that something detrimental to our foreign policy interests would be within the broad formulation of prejudicial to the public interest or endangering the welfare of the United States.

And the statutory issues that remain in the case, are whether that denial can be based on detriment to our foreign policy that flows from the very presence or entry of the alien into this country?

Or whether it must be based strictly on something detrimental about the particular activities in which he plans to engage?

And whether, if that question is answered favorably, to the Government, the authority that we would then have to deny the visas, under Subsection 27, has been abrogated by what is commonly called the McGovern Amendment, which amended another provision of Section 1182, Subsection 28.

Before--

Unidentified Justice: May I ask, Mr. Wallace?

I gather you have to persuade us that to engage in activities, is virtually meaningless, do you not?

Mr. Wallace: --Well, I would not characterize my burden that way, Mr. Justice.

Obviously--

Unidentified Justice: Well, what does it mean, do you think?

Mr. Wallace: --Well, there are two ways of looking at it, that support our position.

The one that has been more commonly used in this litigation is to say that presence or entry into the United States are, themselves, activities.

That is a little difficult to reconcile with the words, "to engage", in activities, but it is not beyond the pale, in light of the legislative history.

Another way, which I think may be more helpful, is to say that, yes, they are admitted to engage in activities.

And that those activities, while not detrimental to the public interest if engaged in by somebody else, would be detrimental to the public interest, if engaged in by this individual, because it would involve his presence or entry into the United States, to engage in those activities.

Unidentified Justice: Well, in this case, as I understand it, there is no evidence, whatever, that they had any intention of engaging in any activities.

This rests, does it not, entirely on the fact that they are members of what, the Communist Party?

Mr. Wallace: Yes.

Various organizations.

In one instance, the Government of Nicaragua; in the other instance, the Federation of Cuban Women; and in the third instance, a group called the World Peace Council, which was found to be--

Unidentified Justice: And by reason of their association of one or the other or more of those organizations, that they were said to be excludable under the Statute?

Mr. Wallace: --It was by reason of that, coupled with the State Department's determination that these organizations are instruments of a particular foreign government; and that it would be disadvantageous to our conduct of foreign policy, to admit someone for the purpose of carrying on that organization's program, in the activities in which they want to engage in the United States.

It would be detrimental to our foreign policy just to extend our hospitality to these individuals, by the issuance of a non-immigrant visa to engage in these activities.

Unidentified Justice: Mr. Wallace, it was charged that they were going to engage in those activities in this country?

Mr. Wallace: That is correct.

I mean, they wished to enter the country to engage in activities.

I mean, anyone who wants to enter the country wants to engage in activities.

Unidentified Justice: Like what?

Making a speech?

Mr. Wallace: That is correct, and to participate in discussions.

Unidentified Justice: Freedom of speech?

Mr. Wallace: Undoubtedly, when engaged in by someone properly present.

Unidentified Justice: There is nothing other than speech involved?

Mr. Wallace: Our position is there need not be any misconduct in the activities, themselves, for Subsection 27 to apply.

The activities might even be constitutionally protected activities.

But Subsection 27, nonetheless applies, if the presence or entry of the individual to engage in those activities would be detrimental to our foreign policy interests.

And that I--

Unidentified Justice: Is it critical to your position that the activities be activities that could be attributed to the organizations with which the three people were associated?

Mr. Wallace: --Well, it--

Unidentified Justice: You seem to suggest that on an earlier statement?

Mr. Wallace: --It is a part of our position.

Unidentified Justice: Well, then, it is not a case of mere presence or mere entry?

Your proof is that these people are engaging in activities on behalf of some organization.

Mr. Wallace: That is correct.

Unidentified Justice: That is a different theory than the dissent below, I think.

Mr. Wallace: Well, the dissent authorizes in its theory, a broader use of Subsection 27, then we are actually making of it.

Unidentified Justice: So you are not espousing the theory of the dissent?

Mr. Wallace: Well, I am not disassociating myself from it, but we do not have to go as far as some of the implications of the dissenting opinion.

Unidentified Justice: Well, you are not arguing that mere presence and mere entry is an activity, within the meaning of Subsection 27?

Or are you?

Mr. Wallace: Well, that is one of our alternative contentions, yes.

We have the authority to decide that mere entry or mere presence is an activity, that within itself, is detrimental to our foreign policy interests.

But in administering the statute, the fact of the matter is, we look at the activities in which they propose to engage, before making the determination of whether entry or presence would be detrimental to our foreign policy.

But we do so in a very limited way.

In other words, we allow individuals to enter, even though we might deny them entry for this purpose, but we would allow them to enter and we have allowed some of these same individuals to enter... including Olga Finlay... to attend meetings of an international body, such as the United Nations.

We would allow them to enter for limited purposes.

We would allow them to--

Unidentified Justice: Is there a finding here, that it was the activities in which they intended to engage that explain the reason for their exclusion?

Mr. Wallace: --There were affidavits submitted--

Unidentified Justice: No, I said, was there a finding to that effect?

Mr. Wallace: --The finding by the District Judge, is that we had facially valid foreign policy reasons for denying their entry, which under this Court's decision, in Kleindienst v. Mandel, he has no right to look behind and make a finding with respect to--

Unidentified Justice: I still ask is the facially valid reason the fact that their mere presence or mere entry would be detrimental, or is it, that the activities in which they would engage would be detrimental?

What is the finding?

Mr. Wallace: --I cannot say that the District Judge's finding is articulated so as to draw that distinction, as I recall it.

It would be a--

Unidentified Justice: It would make a difference in this.

Mr. Wallace: --I am looking at Page 80-A of the Joint Appendix, where the District Court merely says, it has concluded that,

"Facially legitimate reasons exist for denying visas to the four individuals, whose entry is being sought in these actions. "

"And they were not denied entry because of the content of the expected speeches, but because of their personal status as officials of governments or organizations which are hostile to the United States. "

But the affidavits, on which he relies, do state, as part of the reasons why their entry would be detrimental to our foreign policy interests, is because it is entry to function as representatives of... in Mr. Borge's case, in the case of the Cuban women... of organizations controlled by the Nicaraguan or Cuban governments; and in Mr. Pasti's case, to further the program of an organization controlled by the Soviet Union.

That is necessarily related to the kinds of activities that they propose to engage in.

But the distinction that we make, with respect to activities, is not that someone submits the speech that he is planning to give, and a board of censors sits at the State Department and reads the speech and decides whether giving that speech is detrimental to our foreign policy interests.

It is a distinction between entry for the limited purposes I started to describe to you... to attend an international meeting of a body that meets in the United States; to conduct bi-lateral discussions with representatives of the United States; humanitarian entry, such as to get medical treatment; to attend a family funeral.

We would allow people in for those purposes, but not extend our general hospitality to them of providing them with a non-immigrant visa, because, as the affidavits explain, in the case of--

Unidentified Justice: Mr. Wallace, the thing that troubles me is that you are telling me what the affidavits say, but the finding just relates to the personal status of the three people.

I would think that it would apply going to a funeral, that they were not denied because of the content of their expected speeches, but because of their personal status, as officials of governments or organizations, which are hostile to the United States.

I would think that would apply if they wanted to come in and have lunch.

Mr. Wallace: --But the finding was made based on affidavits that explain the reasons--

Unidentified Justice: Well, let me just ask you, is it necessary for us to support your position to go behind the finding, and rely on what is in the affidavits, instead of what the finding says?

Mr. Wallace: --I think that--

Unidentified Justice: That is your whole argument, is it not?

Mr. Wallace: --I would say that it is necessary to read the finding in light of the affidavits on which the finding is based, because the finding is very succinctly stated.

The finding is very responsive to this Court's holding in Kleindienst v. Mandel, that the Courts are not to go behind facially legitimate reasons that have been given.

And he is relying on the affidavits as the facially legitimate reasons, and in a sense, the finding incorporates the affidavits, if I may say so.

I do not think that the District Court's decision can be read without reference to the affidavits.

Unidentified Justice: We have the affidavits.

Mr. Wallace: They are in the Joint Appendix, and the classified ones that he refers to, are in the Appendix to the Petition for Certiorari because they were declassified and reprinted there.

Unidentified Justice: Mr. Wallace, when you speak about a finding in this case, actually the District Court granted summary judgment for the Government, did it not?

Mr. Wallace: That is correct.

Unidentified Justice: So you are not talking about finding, in the ordinary sense, of a finding of fact at a bench trial?

Mr. Wallace: That is correct.

It granted summary judgment.

It concluded that there were no material issues of fact that it had to resolve in light of the facially legitimate reasons given by the Government in this series of affidavits, for the exclusion.

Unidentified Justice: Mr. Wallace, may I ask whether you agree with the dissent in the Court below, that Kleindienst v. Mandel, necessarily upheld the constitutionality of the exclusion of communists based on their political beliefs?

Was that, do you agree that that was the necessary holding of Mandel?

Mr. Wallace: I do not read Kleindienst v. Mandel as necessarily holding that.

It said that there was a facially legitimate reason for that particular exclusion, because Professor Mandel had violated restrictions on his visa, in past entries.

And that that was a sufficient basis to uphold the denial of the visa, here, and to override any First Amendment claim that was implicated on behalf of those who invited him.

So, I cannot say that we can read Kleindienst v. Mandel as having resolved that question so definitively, with respect, I have to say that is slightly overstated in that dissenting opinion.

The reasons given in these affidavits do relate to specific foreign policy concerns and we have summarized them briefly, in our brief.

Let me say that with respect to those who would be entering here, as representatives of an organization and to further the purposes of an organization, controlled by the Cuban government, the reference was to our country's policy of trying to diminish the disruptive influence of the Cuban government in Latin America, that is detrimental to the conduct of our foreign policy.

And that extending hospitality to representatives of that government for purposes of participating in discussions in the United States, would contribute to giving that government an aura of legitimacy, that would enhance that government's ability to undermine our foreign policy objectives, in Central America.

Unidentified Justice: But do you need our Courts for that purpose... to enforce public policy in foreign governments and to prevent foreign governments?

Mr. Wallace: We did not need the Court and we were not the one who invoked the Court's jurisdiction.

We were sued in this case, Mr. Justice.

We simply denied visas.

Unidentified Justice: You want us to say that the Court can approve the denial of an entry of somebody who is going to make a speech, because the State Department does not like the country or the person.

Mr. Wallace: Because the State Department thinks that it is detrimental, has concluded that it would be detrimental to our foreign policy to extend our hospitality to that person, with a non-immigrant visa.

And that that was within the authority of the Department of State to do.

With respect to the Interior Minister of Nicaragua, rather similar reasons were given, having to do with the undermining of our efforts to achieve a peaceful settlement of hostilities in Central America, should we, at the time, extend our hospitality to the Interior Minister, of that state, to which we were, to some extent, in an adversarial relationship.

With respect to Mr. Pasti, an active member of the World Peace Council, which the State Department had determined to be a Soviet-controlled organization, at the time, he was coming, that organization was engaged in a vigorous campaign to undermine support within Western Europe for the deployment of American missiles... partly through a campaign of disinformation, that is elaborated upon in an Attachment to one of Undersecretary Eagleburger's affidavits.

And he was an active member, coming to further the purposes of that campaign which was aimed at achieving unilateral disarmament, to the extent of not deploying those particular missile systems in Europe.

And, obviously, extending our hospitality to him, for that purpose, would have a tendency to encourage that organization's efforts and contribute to its esprit for that purpose.

These matters change over time, and these are now missiles that are currently the subject of negotiation between the Soviet Union and ourselves, for the possibility of some mutual withdrawal of the missiles.

But these determinations have to be made in the context of the times, in which they actually occur.

I think some further insight into the problems of this case, can be had by looking at the statistics that we collected on page 6 of our brief, in the footnote, which are also based on affidavit in this record.

And that show, in the 20-year period... and this is footnote 2, on page 6... from 1963 to 1983, Consular officers issued nearly 70 million non-immigrant visas, and denied on either foreign policy or internal security grounds, under Subsection 27, only 519 applications.

And in the most recent times, 1981 through 1983, 6 to 7 million per year have been granted, an average of less than 30 have been denied.

This, in itself, is reflective of the consistent dominant thrust of our foreign policy, which is to encourage in all countries... including our own because reciprocity is a very important consideration in foreign policy... to encourage freedom of travel, through non-immigrant visas, and indeed, even to encourage freedom of immigration.

It is a policy that not only reflects our ideals about free interchange of persons and ideas, but it is further supported from the likelihood of re-examination by the very practical consideration that, in our country, there is already a much greater diversity of views being expressed than is true in many countries.

And it would not be to our ultimate advantage, overall, to be opposing travel by persons who might express diverse views, because we tend to benefit much more from additional views being expressed in other countries through travel, than that it would be at all practical to hope to monitor the expression of views in our country.

We do not know what these 70 million people might say when they arrive here.

There were only a very minute number of people that we had reason to keep out because of foreign policy concerns of the type I mention, with respect to these particular applicants.

We have, in the Joint Appendix, some other examples.

This is on pages 111 to 114, and the earliest examples that became known of the use of denials for foreign policy reasons... most of these do not become known because there is a statutory inhibition on public disclosure of them... but these were three examples that, indeed, had come to the attention of Congress.

One was a denial of a visa to a Mr. Liao, a proponent of an independent Formosa.

And another was a denial to Mr. Otto Skorzeny, a former Nazi SS Officer.

And the objection to him was based on the detrimental foreign policy ramifications of granting our hospitality to him regardless of any particular activities that he might be planning to engage in.

The other mentioned, is Madame Nhu.

The problems that the State Department is faced with, have to do with factions in exile; of factions that may be engaged in armed resistance to governments; deposed former heads of state--

Unidentified Justice: Mr. Wallace, about the Nazi who was... Skorzeny, I think that you referred to?

Mr. Wallace: --Certainly.

Unidentified Justice: That was back in 1959, and is it not true that a few years later, they amended the statute to provide a new section that covered the people of that status?

Mr. Wallace: People who were associated with the Nazi Regime, during the thirties and World War II, but it does not cover people who engaged in brutality while in office, in other countries at other times, and there are many such people.

Unidentified Justice: No, but I was just wondering, if you are correctly interpreting 27, and you gave us an example, this Skorzeny, why did they need to enact 33?

They could have used 27?

Mr. Wallace: Perhaps it was done for emphasis.

They did not necessarily mean that Congress thought that 27 was misapplied with respect to Mr. Skorzeny, and we have taken the position right along, that we can apply it with respect to others who have engaged in physical brutality, which are not embraced while in office, which were not embraced within Subsection 33.

There have been deposed governments in many countries... I do not want to create international incidents by mentioning some of them... where we might very well deny, on foreign policy grounds, the entry of these persons.

And this has not been disputed by the other side, nor do they deny our basic proposition that it is not necessary for the activities to be, in themselves, misconduct, because they point to the case of a Libyan, young person denied entry to study aircraft maintenance and engineering, as a proper example of the use of Subsection 27.

But there is nothing inherently wrong about studying that and certainly having a willing student attends one's class is a part of academic freedom... the First Amendment interests are implicated in such a case.

The problem is the detrimental consequences to our foreign policy.

In a case like that, where you are dealing with a non-prominent person, the particular nature of the activities looms as a larger consideration.

But in the case of prominent people, such as are involved in our case, what really looms large on the foreign policy call, is whether extending our hospitality to them, at all, is going to be detrimental to our foreign policy?

Let me say that once it is concluded, as we submit, that Subsection 27 authorizes us to exclude persons on these grounds, it seems clear to us, that the McGovern Amendment is not meant to take that away.

It says, on its face, that it applies only to persons otherwise admissible to the United States.

And the legislative history we have recounted, particularly in connection with an Amendment to the McGovern Amendment, shows that it has always been understood not to diminish the authority that we had under Subsection 27, specifically, the Chairman of the House Foreign Relations Committee made that point, as we recounted in our brief.

I would like to reserve the balance of my time.

Chief Justice William H. Rehnquist: Thank you, Mr. Wallace.

And now, we will hear from you, Mr. Shapiro.

ORAL ARGUMENT OF STEVEN R. SHAPIRO ORAL ARGUMENT ON BEHALF OF RESPONDENT

Mr. Shapiro: Mr. Chief Justice, may it please the Court, I think that it is obvious from the Government's argument that the issues raised in this case are critical ones in a constitutional democracy... whether and to what extent, the government may bar foreign speakers from addressing American audiences in the United States, on issues of obvious and substantial public concern?

As the Government points out and I just want to reiterate, because I think that it is important to an analysis of the case, there are two separate but related statutory questions before the Court today.

One is, whether (a)(27) Section 212(a)(27), applies in the absence of any allegation by the government that the excluded foreign speaker is likely to engage in prejudicial activities, if admitted to the United States?

The second question, which the government barely reached in its argument, is whether the Executive may circumvent the Congressional restrictions embodied in the McGovern Amendment, by using an alien's organizational membership as the basis for exclusion under (a)(27)?

I must say that I am somewhat flabbergasted by Mr. Wallace's argument, today, which apparently abandons the principle legal contention that the government has advanced in this case from day one.

And that is, until 30 minutes ago, the government's position in this case, was that an alien could be excluded, a foreign speaker could be excluded from the United States, based on the contention that his or her mere entry or presence in the United States were prejudicial to the public interest.

That was the government's phrase not ours, but that the alien's mere entry or presence in the United States would be prejudicial to the public interest.

That argument, as the Court of Appeals found, as the government now apparently concedes, is simply impossible to square with either the language or the history of (a)(27).

Indeed, the extent to which the government has, at least until today, construed its authority under (a)(27), is illustrated by the example of Nino Pasti.

Pasti is a former NATO General, a former Italian Senator, and he worked in the Pentagon for three years as a liaison between the Italian Armed Services and the United States Armed Services.

In 1983, he was invited to address a disarmament rally on Boston Commons by an American peace group and he was denied the visa on the grounds that the government feared that he would spread disinformation, if permitted to enter the United States, and give his views on the propriety of American missiles in Europe.

The statute that we are dealing with, (a)(27), quite plainly speaks to the requirement of activities.

Unidentified Justice: The government has abandoned its prior position in favor of what?

Just how do you understand its argument?

Mr. Shapiro: The way that I understand its argument, now, Your Honor, and I must say that there were seeds of this in its brief, is that its previous argument was that it did not need to allege any activities, and indeed, it has not alleged any activities.

Not only is there no finding of prejudicial activities, but by any of the Courts who have ruled on this question below, if you, in fact, look at the affidavits submitted by the government... either their original public affidavits, or their original classified and now declassified affidavits... you will not see any reference to prejudicial activities.

What you will see is a conclusion that the alien's mere entry or presence in the United States is prejudicial.

What I now understand the government to be saying is, that a claim of mere entry or presence is not sufficient under (a)(27), but we have more, and they say this in their brief, since after all any alien who enters the country necessarily engages in some activity.

And the activities that they cite in their brief, as an illustration of that legal contention are: every alien eats, sleeps, travels in the United States.

Those are activities sufficient to invoke (a)(27).

I think that is equally a fallacious ruling of (a)(27) since (a)(27) does not require some activities, it requires activities prejudicial to the public interest.

And the government has not claimed that the sleeping or eating is prejudicial to the public interest, it is just another way or restating a position, which I think that the government now understands they cannot sustain and that is--

Unidentified Justice: Well, I understood the government's position, particularly with respect to someone like Mr. Borge, as being just a highly placed official of the Sandinista government and anything that he did in this country would be prejudicial, just his presence here, would be.

Mr. Shapiro: --Just his presence here would be, you are right, that is exactly their position, Your Honor.

That what he does is--

Unidentified Justice: What is your answer to that?

Mr. Shapiro: --That what he does is irrelevant.

That merely his presence in the United States is prejudicial.

My answer to that is, a visa denial based on that allegation was never authorized or contemplated by Congress when they adopted Section 212 (a)(27), because Section 212 (a)(27) provides that an alien may be excluded if there is reason to believe that they will engage in prejudicial activities, not if there is reason to believe that their presence in the United States may be prejudicial to the United States' foreign policy.

Unidentified Justice: Then you are saying that there cannot be someone of sufficiently bad omen of our foreign policy that anything that he does in this country would be prejudicial?

Mr. Shapiro: I am saying that that is not a (27) exclusion.

As we said, in the Court below, and we continue to believe, there are other provisions of the Immigration and Nationality Act, including Section 212(f) of the Immigration and Nationality Act, which may well permit the government under-certain circumstances to exclude somebody because their mere presence in the United States is prejudicial to foreign policy interests.

But those other Sections of the Act are hinged in by other procedural protections that Congress has provided, namely in the case of 212(f), the requirement of a Presidential finding to make sure that our government is not excluding foreign speakers based merely on a bureaucratic judgment that their speeches in the United States are likely to create problems for American foreign policy interests.

And I think that if you look at the affidavits--

Unidentified Justice: Of course, I do not understand the government's version of why it excluded Borge.

To be his speeches might create problems... just that anything he did here, his mere presence here would create problems.

Mr. Shapiro: --I think that the government, in the case of Borge, the government's position is, that his mere presence in the United States will create problems for us.

And our answer to that, and the answer of the Court of Appeals to that, is that is not what Section 212(a)(27) provides, and that is the only statutory authority that the government has cited in this case.

With regard to Pasti, if you look at the affidavits concerning Pasti, either the public or classified affidavits, it is perfectly clear that the government's allegation, in that case, was that his presence in the United States would create problems because they did not like what they expected him to say on the Boston Commons about American Pershing Missiles in Europe and he was a person who came to that setting with great credibility, because he was formerly the Chief Nuclear Strategist for NATO.

And they would prefer not to have him in this country, at that time, delivering that message, because it made it more complicated for them to put their missiles in Europe.

I do not think that there is any indication that (a)(27) permits a visa denial on those grounds.

And in terms of the entry or presence, versus activities claim, as the Court of Appeals likewise pointed out, the government's interpretation of (a)(27) is inconsistent with the statutory scheme of the Immigration Act for a variety of reasons.

One reason being that there are 33 categories of excludable aliens, listed in Section 212 of the Immigration Act.

Congress, by and large, has traded, has categories of exclusion based on status and categories of exclusion based on conduct.

And 212(a)(28), which is the exclusionary provision at issue in Mandel, which says that communists cannot come into the country unless they get a waiver, that is a status exclusion.

And 212(a)(27), with its reference to prejudicial activities, is a conduct exclusion and the burden on the government is to show some evidence of prejudicial conduct in the United States and there was absolutely nothing in the record to sustain that burden.

As Justice Brennan also pointed out, the word, activities, is introduced by a phrase, that says, seeks to enter to engage in activities.

The word, to engage, not only in the abstract is an active verb, it does not make sense to read the language and say that an alien seeks to enter to engage in entry.

That simply does not make sense as a grammatical proposition, but within the Immigration Act, itself, the phrase "to engage" is a phrase that Congress used when it meant to justify, permit an exclusion based on anticipated conduct in the United States.

So, that the Immigration Act, for example, permits the exclusion of an alien who seeks to enter to engage in espionage; seeks to enter to engage in sabotage; seeks to enter to engage in immoral sexual activities.

That is the phraseology that Congress used over and over and over again, in the Immigration Act, and does not support a reading of (a)(27) that an alien seeks to enter to engage in the act of being present in the United States.

It simply does not make sense.

Let me say something as well about the administrative practice that the government cites.

The government makes a variety of claims with regard to past administrative practice.

One being, that over the last 20 years, 70 million people have been issued non-immigrant visas and only 500 or 600 have been denied admission under (a)(27).

With all due respect, that is not an argument that I understand, because to the extent that those 500 or 600 may have been improper, they remain improper regardless of the fact that 60 or 70 million other people may have properly been granted visas.

In terms of concrete illustrations, concrete illustrations, and the government was questioned quite precisely about this in the Court of Appeals... how many times have you denied entry to an alien under (a)(27) based on the alien's entry or presence in the United States... the claim that their entry or presence would be prejudicial to American foreign policy interests?

The government came up with three examples in the Court of Appeals.

We, by the way, have had no opportunity for discovery, so that we have no idea of what contrary examples may be in the administrative record.

But the government came up with three examples that Mr. Wallace has, again, referred to today.

The example of Mr. Liao; the example of Madame Nhu; the example of Otto Skorzeny.

And aside from the fact that all of them are at least 25 years old, Mr. Liao and Madame Nhu as the Court of Appeals points out... the majority opinion in the Court of Appeals... were, in fact, excluded based upon anticipated activities and that is what the correspondence submitted by the government to the District Court established.

In terms of Otto Skorzeny, the former Nazi General, he may well have been excluded based on his status as a former Nazi, but aside from the fact that one exclusion 30 years ago, is not, I do not think probative of anything, let alone a consistent administrative practice... as Justice Scalia pointed out, in 1978, Congress amended the Immigration Act, to add Section 212(a)(33) that expressly provides for the exclusion, now of former Nazis.

And when they did so, both the Congressional sponsors and the Justice Department, itself, in a supporting letter submitted to Congress... and these can both be found attached to the House Report... referred to the fact that the Nazi exclusion provision that was added in 1978, was added to fill an existing loophole in the law, that previously the administration did not have the authority to keep people out of that sort, or at least Congress did not think that they did.

And Congress wanted to fill the loophole and so they passed the Nazi Amendment.

Unidentified Justice: Would you say, Mr. Shapiro, suppose that the claim is that Section 27 permits the exclusion of an alien, where his mere presence, for the purpose of making speeches, would endanger our foreign policy, would you think that Section 27 would permit that?

Mr. Shapiro: I do not think that Section 27 permits... well, several things.

I do not think it is what the government has alleged here.

I do not think that it is what--

Unidentified Justice: Well, that is not what I asked you.

Mr. Shapiro: --I do not think that it is what 27 now says, and to the degree that it is what 27 says, then I think that you would be smack up against a significant First Amendment problem.

And I do not think that there is any need to confront that problem.

Unidentified Justice: Well, let us just stick to the statute.

If the government says, well, look, his presence here, for the purpose of making speeches, no matter what he says, if our allies think that we are permitting him in this country to be privy to go around and make speeches, that is just offends them.

Is that outside the reach of the statute, do you think?

Mr. Shapiro: I think that that is outside of the reach of the statute, because I do not think that the statute, with its reference to prejudicial activity was discussing speech making in the United States, as Justice Marshall suggested.

And I think that is for very good reason that the government has refrained from taking that position, all throughout this litigation.

The government has never come in, from day one and--

Unidentified Justice: Well, they were pretty close to it, in this argument today, saying that they may consider... what they are here for, they are here for making speeches.

Mr. Shapiro: --Well, to the extent, as I said, to the extent that the government's position now is that these people can be excluded because they are here to make speeches, and here to make speeches which the government openly admits, by the way, that it is not a viewpoint neutral judgment... if your question, Justice White, is meant to suggest that the government does not care what these people are saying, that it is the act of making a speech, while present in the United States, circa (a)(27), first of all, the record, itself, does not support that.

If you look at the classified affidavits submitted by Undersecretary Eagleburger with regard to Nino Pasti, for example, it is quite clear that the State Department's objection is, that at the time that we were engaged in the critical negotiations about the deployment of the American Pershing Missiles in Europe, they anticipated that Nino Pasti would come to the United States and tell people that those missiles were not necessary or appropriate.

To the degree that the government's position is that it is that anticipated speech that justifies their exclusion under (a)(27), I do not think that (a)(27) provides that and if (a)(27) provides that, I do not think that the Constitution permits that.

And one of the--

Unidentified Justice: Well, suppose that we disagree with you on your construction of (27), that the government may deny a visa to a person whose presence here, for the purpose of making speeches, would really cause the government trouble?

Suppose the Section covers that?

Are we foreclosed from reaching that ground here?

Mr. Shapiro: --Well, I think, Your Honor, I think that--

Unidentified Justice: On what basis did the District Court decide the case?

Mr. Shapiro: --Well, that is a hard question for us to answer, as I will explain in a moment.

Unidentified Justice: Well, it is hard for us too, and I want you to--

Mr. Shapiro: Well, let me give you the background on what happened, having been there since the case--

Unidentified Justice: --Well, what does his opinion say?

Mr. Shapiro: --What Judge Green's opinion says, is that the government may not deny visas for content-based reasons.

Unidentified Justice: Right.

Mr. Shapiro: And having read the public affidavits, submitted by Undersecretary Eagleburger, which in conclusory fashion, simply recited the language of the statute.

It said, I denied these visas, because I determined that their admission would be prejudicial to the public interest.

He said, he read the public affidavits.

They do not satisfy me, and I do not know what they mean.

He then entertained the government's classified affidavits, in camera, ex parte, without sharing them with us, and he wrote in his opinion... because these were still ex parte classified affidavits... that I have read the affidavits and I am convinced that the government had legitimate and bona fide reasons which he, then, did not explain, because at that point they were still classified.

That is the difficulty in understanding the District Court's--

Unidentified Justice: Well, do you read his opinion as accepting the government's position that mere presence is enough?

Mr. Shapiro: --I think that he accepted the government's position that mere presence is enough.

I do not think that the Court of Appeals accepted the position that mere presence is enough.

Unidentified Justice: Oh, I know that.

Mr. Shapiro: And one of the things, the Court of Appeals remanded on two grounds.

And one of the Court of Appeals' remands was to determine exactly--

Unidentified Justice: That is right.

Mr. Shapiro: --their position was, that entry or presence is not enough.

It looks to us, from your affidavits, that that is why you kept these people out but since we are sending it back for some other reasons, you might want a better opportunity to explain to the District Court if you had some reasons other than entry or presence, because the Court of Appeals likewise read the current state of the record, as supporting an exclusion based only on entry or presence.

The other difficulty with reading (a)(27), to permit exclusions based on entry or presence, is that it really then does run smack up into the McGovern Amendment, which I want to just discuss for a moment.

There are vastly greater numbers, or there historically have been vastly greater numbers of aliens kept out of the United States under Section (a)(28) rather than (a)(27).

And (a)(28) being the statute that was at issue in Manuel, which basically says, if you are a member of a communist organization or if you advocate the doctrines of communism, you shall be excluded from the United States, unless the Attorney General grants you a waiver.

In 1977, Congress adopted the McGovern Amendment, to promote the principles of the Helsinki Accords as it states in its preambles.

And what the McGovern Amendment essentially says is, we no longer want to keep people out based on this notion of guilt by association.

And so, notwithstanding the fact that aliens may belong to communist organizations, or be affiliated with communist organizations, our presumption is they will now be admitted to the United States, unless the government executive is are prepared to certify that both houses of Congress that national security interests are at stake.

Even if you put the best gloss possible on the government's affidavits, what you will find, at least with regard to Nino Pasti and the two Cuban women, is that the government's position is that Pasti is a Member of the World Peace Council and the World Peace Council is affiliated with the Soviet Union.

The Soviet Union is engaged in a propaganda campaign and therefore, Pasti must also be engaged in a propaganda campaign.

There is no specific allegation with regard to Nino Pasti that is independent of an assumption that the government made based on his organizational affiliation.

He is connected to this group and this group is doing bad things, and therefore, we presume that if we allow him into the country, he will do similar bad things.

That is precisely our position, at least is, that is precisely the kind of leap, the kind of presumption, the kind of guilt by association, that Congress meant to prohibit by the McGovern Amendment.

And one of the reasons that I believe that these speakers were excluded under (a)(27), rather than (a)(28), where they would have more naturally belonged, is precisely because the government did not want to have to deal with the rigors of the McGovern Amendment, because the government was not prepared, in fact, to certify to both houses of Congress, that national security would be jeopardized if Nino Pasti were allowed in the United States and permitted to give the speech that he wants to give on the Boston Commons.

Unidentified Justice: Well, in terms of the last argument of yours, Mr. Shapiro, is it possible that Pasti's case could come out one way and Borge's case come out another?

Mr. Shapiro: I think that there are two answers to that.

And this is where there are two statutory issues before the Court.

If the Court agrees with our interpretation of (a)(27), that it requires activities and not mere entry or presence, then I think that all of these visa denials fall, Borge's included.

If the Court concludes that entry or presence is encompassed within (a)(27), then I think that we still have to deal with the McGovern Amendment.

We would still say that the prejudice, flowing from entry or presence, has to really be tied to the individual not based on organizational membership and at that point, it may be that Borge would be in a different situation than Pasti is and the two Cuban women.

I mean, Borge, there is no doubt that he is a member of the Sandinista Junta.

He is an official of the Nicaraguan government.

Nobody disputes that.

At the very least the allegations connected to him, are connected to him personally.

The allegations connected to Pasti and to Finlay and to Lezcano, are connected to them because of the organizations to which they belong, and that is, we think, forbidden by the McGovern Amendment, regardless of how you decide the other (a)(27) question about entry or presence.

And let me come back to the entry or presence issue for one more moment, then, just debunk this reliance on legislative history.

The government makes a passing nod to the doctrine of plain language that any analysis of the statute has to begin with the language which the Congress has drafted, and it then, for very understandable reasons, wants to get off that language as quickly as possible, because, it, in fact, speaks to activities and not entries or presence.

And where it winds up is in the legislative history.

And the government's position with regard to the legislative history and it was a position that was echoed by Judge Bork, in dissent, below, is that over the 40 or 50 years that this statute has been developing, there are five or six references in committee reports, to the words, entry or presence, and therefore, that supports the claim that when Congress referred to activities, it really meant to include entry and presence within the term, activities.

As we point out, in our brief, if you in fact, look at the full passages cited by the government and not the isolated phrases that I believe the government takes out of context, you will see that every reference to entry or presence is followed by a reference in the next clause, or the next sentence, to prejudicial activities within the United States.

And that, on the basis of a full and fair reading of the legislative history, it seems quite clear, that what Congress has been consistently concerned about, in (a)(27) and its predecessor statutes, was entry and presence to engage in prejudicial activities.

And (27), if it is linked to anything, it is more closely linked to (29).

That talks about entry to engage in sabotage or espionage.

And that what Congress understood, I think, is that there are some activities that may not rise to the level of sabotage or espionage, but nonetheless are prejudicial activities.

It is a very big leap to go from there to the claim that either no activities are required at all, under (27) despite its language, or that the kinds of activities that Congress meant to prohibit or meant to justify a ban under (27), included speech making.

And when you look at the statements that Senator McCarren made on the floor of the Congress when he introduced the predecessor provision in 1950... in 1952, when Section 212(a)(27) was enacted, there was very little colloquy or conference language about the provision.

And there was more in 1950 when its predecessor's provision, the Internal Security Act was adopted and what Senator McCarren, quite clearly says, and we cite it in our brief, is that his concern, the concern of Congress, was with aliens who seek to enter or engage after entry, in activities prejudicial to the public interest, and he, in fact, referred to the requirement of overt acts.

And as I have said, previously, this record is totally barren of any allegation that even comes close to that.

Let me raise just a few other points with you.

In terms of... to come back to administrative practice, for a second... the government does not make very much mention of the contemporaneous administrative record, which under standard doctrine of statutory construction is, if anything, more relevant than current interpretations.

In terms of contemporaneous interpretations of (a)(27), there are two things worth noting.

One is a Board of Immigration Appeals decision in 1953, in which the government attempted to exclude a pacifist from the United States and the Board of Immigration Appeals one year after (a)(27) was adopted, said, no, you cannot do that.

You are keeping him out on the basis of status.

And (a)(27) requires activities.

He was, I think, engaged in a speech making tour, Justice Rehnquist.

The BIA in 1953 said that that is not enough, under (a)(27).

The other thing that I want to bring to the Court's attention, and I say this with regret, but it does not appear in either side's brief, or in the opinion by the Court of Appeals, are some 1952 regulations by the State Department on (a)(27), which disappeared in 1954.

Since 1954, the State Department has had no substantive regulations interpreting this Section.

But from 1952 until 1954, and this appears at 17 Federal Register, page 11590, and December 19th, 1952.

The Section on (a)(27) says, the provision of Section 212(a)(27) that the Act shall be considered to relate to the ineligibility of aliens to receive visas, because of their purpose, plan, intention or design, whether solely, principally, or incidentally to engage in activities after arrival in the U.S., which would be prejudicial to the public interest, or would endanger the welfare, safety or security of the United States.

Once again, the emphasis on activities after admission, not somebody whose mere entry or presence, because of their status, would create difficulties for the government.

Let me just wind up by making a brief comment about the First Amendment issue in this case.

We raised the First Amendment claim-in the District Court.

It was not reached by the Court of Appeals because of its interpretation of the statutory language.

It is not before this Court, in any real and concrete way.

It was not raised by the government in its cert petition.

But I think it undeniable, that the interpretation and application of these statutes, in these cases,--

Unidentified Justice: Well, the government would not be expected to raise it in its petition, would it?

The government does not want to claim that it violates the First Amendment.

Mr. Shapiro: --No, what the government did, Your Honor, what the government did, in their petition, in fact, was to drop a footnote on the final page of their brief on the merits, saying that even though, we have not raised the First Amendment question in our questions presented, it was reached by dissent below, it was alleged by the Plaintiffs, and therefore, this Court has jurisdiction, and should reach out to decide it.

What I am saying is that I do not think that it is necessary for this Court to decide the First Amendment question, but I do think that the presence of significant First Amendment claims has to affect the interpretation of the statute.

And that the statute can, and should be interpreted, in a way that minimizes its First Amendment difficulties, and that is not the case, if the statute is interpreted to permit exclusions from the United States, based on a claim that an alien's substantive speeches within the United States, create prejudice to American foreign policy interests.

And I do not believe, as Justice O'Connor's question indicated and I was delighted to hear the government's response, I do not believe this Court, by any means, foreclosed the First Amendment issue in Mandel.

Mandel was a case, in which the excluded foreign speaker was kept out of the United States, because he had violated the terms of a past visa, by engaging in activities that were not permitted under that visa.

Nothing in the holding of Mandel, I do not believe, even remotely suggests that if the government keeps somebody out of the country, because it does not like the speeches, they are likely to give in this country, that that is a facially legitimate and bona fide reason.

And I think that those First Amendment considerations have to necessarily at least be part of the process, of interpreting the statute to conform, not only with constitutional requirements, but to conform with, what I believe, is the clear and obvious intent of Congress, as reflected in the plain language of the statute, and a fairly consistent legislative history.

Thank you, very much.

Chief Justice William H. Rehnquist: Thank you, Mr. Shapiro.

Mr. Wallace, you have two minutes remaining.

REBUTTAL ARGUMENT OF LAWRENCE G. WALLACE ON BEHALF OF PETITIONERS

Mr. Wallace: The Court of Appeals referred to the legislative history of Subsection 27 as interchangeably using references to entry and activities as the basis of concern, and that is, entirely consistent with Judge Harold Green's saying that it is a distinction without a difference in this context.

And, that, as I tried to relate it to the text, that the thing that can be prejudicial about the activities, is the entry... of the proposed activities, is the entry or presence of the individual who is seeking the visa.

That is the thing that can be prejudicial rather than anything that is malum and say, about the activities that is our reading of our Subsection 27 and the way to reconcile it with the repeated entries, repeated reference to entry or presence in the legislative history of that provision and its predecessors.

The affidavits, in this case, and I refer the Court to Joint Appendix pages 59, 62, and 89, repeatedly say that no one is excluded from this country solely because his views are critical of our foreign policy views or in any way to deny the expression of points of view to the American people.

The reason that one looks to the proposed activities, is to see whether they come within the narrow class for which we would admit someone without extending our general hospitality... the narrow classes that I tried to describe to you... to attend a meeting of the UN; to engage in bilateral negotiations; to get hospital treatment, etcetera.

We can allow people in for limited purposes, but not to extend our general hospitality to them.

My time has expired.

Chief Justice William H. Rehnquist: Thank you, Mr. Wallace, the case is submitted.

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Kungys v. United States - Oral Reargument

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Kungys v. United States

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ORAL ARGUMENT OF DONALD J. WILLIAMSON ON BEHALF OF PETITIONER

Chief Justice William H. Rehnquist: The oral argument first this morning in No. 86-228, Kungys against the United States.

Mr. Williamson, you may proceed whenever you are ready.

Mr. Williamson: Mr. Chief Justice, and may it please the Court:

This is the reargument of a denaturalization case involving whether a final judgment of a federal court granting naturalized citizen to an immigrant can be vacated on the grounds he misrepresented in his immigration papers that he was two years old, and that he was born in a city instead of a town.

At the time the Petitioner was granted his citizenship in 1954, Section 340 A of the Immigration and Nationality Act of 1952, which is 8 USC 1451(a), provided, in pertinent part, shall be the duty of the United States attorneys to institute proceedings for the purposes of revoking and setting aside the order admitting such person to citizenship, and cancelling a Certificate of Naturalization on the ground that such order and Certificate of Naturalization were procured by concealment of a material fact or by willful misrepresentation.

The District Court expressly found that the Petitioner, had he given the correct information on his visa application form, his visa nevertheless would have been issued, and that there is nothing to suggest that his having been born on September 21, 1915, in Reistru, would have had any effect whatsoever.

The Court of Appeals agreed with that finding, and, indeed, it did not declare that any of the findings of the District Court were clearly erroneous as was required by Rule 52(a).

Nevertheless, the Court of Appeals reversed the judgment of the District Court and by construing the alternative approach to materiality in Chaunt, as permitting proof that disclosure of Petitioner's true date and town of birth would have resulted in an investigation notwithstanding the fact that the District Court expressly found that the government's own proofs indicated that no investigation would have resulted.

Nevertheless, the Court of Appeals, in effect, drew an inference in favor of the government that the disclosure of the truth of his correct date and place of birth would have led to residency records in Germany, and from those residency records you could draw a further inference that he was not a victim of Nazi persecution.

A former vice counsel, but one who had not processed the Petitioner's papers, had testified that that was an ultimate disqualifying fact.

In other words, if you are not a victim of Nazi persecution, you are not eligible for a nonpreference "immigration visa".

However, as indicated by the statement at oral argument by the government, there was no such statute.

There was no such regulation, and therefore there is no ultimate fact.

So the posture of the case at this point is that the government has no proof of any ultimate disqualifying fact.

And their argument, therefore, is that Chaunt does not require proof of an ultimate disqualifying fact.

And their further argument is that any misrepresentation, irrespective of materiality, is sufficient to have constituted a legal procurement, because the words 1451 by an amendment in 1965, which was seven years after Mr. Kungys or the Petitioner was granted his citizenship.

The short argument to the fact that a nonmaterial misrepresentation cannot be the basis for denaturalization is that the statute, Section 1451, explicitly requires that the misrepresentation or concealment be as to a material fact.

Unidentified Justice: Well, Mr. Williamson, you say in effect then that the part of 1451 that talks about misrepresentation covers the waterfront so far as denaturalization is concerned, and that you can't bring other forms of misrepresentation in under the head of illegally procured?

Mr. Williamson: Yes, what I argue, and in fact what I think is reasonable clear is that when Congress sets forth that the basis for denaturalization when it comes explicitly to a misrepresentation must, in effect, be procured by a concealment of a material fact, that is clear language; clear in the sense that it certainly the requirement of materiality is clear.

To argue, in effect, because there are nonmisrepresentational forms of conduct that can in effect constitute illegal procurement irrespective of whether there is a misrepresentation, i.e., such as if a person has contracted a dangerously contagious disease and is unaware of, they could still be denaturalized; i.e., if a person engaged in rape and if there was no such question asking whether you, in effect, had engaged in rape; or whether or not you had aided the illegal entry of other aliens, those are the examples which were used in the legislative history in 1961 to indicate the reason for the change.

But that doesn't mean in point of fact that when you attempt to use illegal procurement as the arguments made by the government in the case of Fedorenko, and there is an interesting statement in the brief on page 18 of solicitor general, whether Petitioner's citizenship is considered to be illegally procured, or procured by misrepresentation, the primary basis for its revocation, Petitioner's false representations concerning his whereabouts during World War II.

Accordingly, we agree that Petitioner's wartime activities, specifically his guard duty at Triblinka must be shown to be material facts within the meaning of 8 USC 1451(a).

That was the case... the government argued that in Fedorenko in its brief.

This is the brief of the United States in that case.

And, indeed, that particular portion of the brief, I believe, was the basis when Justice Marshall speaking for the majority in Fedorenko indicated that notwithstanding the fact that the petitioner there had misrepresented his country of birth on his visa, but that did not end the judicial inquiry.

Justice Marshall speaking for the majority court said,

"We agree with the government that that does not end the judicial inquiry, because the test is still materiality. "

Indeed, the question there was still materiality as to whether or not the status of being a concentration camp guard, in effect, was a predicate for denaturalization.

And, indeed, that particular case was an illegal procurement case.

Unidentified Justice: Mr. Williamson.

Mr. Williamson: Yes.

Unidentified Justice: Even if you are correct that there is a requirement of materiality, ordinarily a material fact is one that is important to the decision-maker, rather than one that is necessarily decisive.

Isn't there a difference there?

You seem to be arguing that materiality means it has to be a fact that is decisive rather than something merely important to making the decision.

Mr. Williamson: Yes.

I think it's an academic discussion on behalf of the client I represent, because I don't think the misrepresentations that he made in his petition for naturalization or his visa application were even important.

However--

Unidentified Justice: Well, certainly that's debatable.

Mr. Williamson: --Yes.

However, not important in the sense that it obviously could not have affected the decisions to whether the visa, and it certainly doesn't affect the ability to grant the citizenship.

But I would also state--

Unidentified Justice: But it might be important to the decision whether to grant it.

Mr. Williamson: --Well, once the decision is made to grant the visa, the vice counsel loses his jurisdiction.

At that point in time its a judicial determination, and the determination of what is important or not important goes to the question of whether, (a) he was eligible in the first instance, or (b) whether he was in the categories that are excludable.

And this traces all the way back, and it's very interesting because I traced the history as to whether or not even with respect to a visa, it had to be a material fact and one which is beyond important, i.e., that is really is decisive because that is the alternative dictionary meaning.

Having great consequences is one of the definitions which I saw in a dictionary.

Unidentified Justice: Well, what if we think it means just important to the decision?

Mr. Williamson: Well, then I would argue, in effect, that in light of the nature of the misrepresentations which were made in preceding cases, that none of these misrepresentations rise to the dignity of those particular cases.

Unidentified Justice: Mr. Williamson, suppose these lies were told expressly with the intention of getting a benefit under the immigration laws?

Mr. Williamson: Well--

Unidentified Justice: Would that not be a material misrepresentation?

And if he succeeded and he got the visa because the lies he told were believed, and whoever the immigration officer was consequently accommodated him and gave him the visa.

Mr. Williamson: --Well, let me say this.

If in fact it was not a false perception, in other words, if indeed he perceived that these lies were significant, then merely the question of intent--

Unidentified Justice: I am just wondering whether or not he did.

If in fact they were told, for the purpose of getting something from the immigration officer, and he succeeded, wouldn't that end the inquiry?

Mr. Williamson: --Well, according to Judge Learned Hand, it would not.

The cases trace back all the way to the case of United States v. Iorio Day.

There is a case in which the petitioner there, or the person who sought to obtain the visa, denied that he had ever been in prison.

Obviously, he perceived that denying that he had ever been in prison was significant and that his perception would naturally be that that would influence the vice counsel.

What Judge Learned Hand said in Iorio v. Day was it's true that the relator is bound to tell the truth.

But if what he suppressed was irrelevant to his admission, its mere suppression would not debar him.

So the first question comes down to at most whether the facts, had he disclosed them, would have been enough to justify the refusal of a visa or exclusion upon entry.

The appellant did not suppress from the vice counsel facts which would have justified in refusing a visa had he disclosed it.

So that in other words--

Unidentified Justice: Was this speaking of 1101, or was it 1451?

Mr. Williamson: --No, this was speaking in terms of what is the predicate necessary to deport an alien.

In that particular instance, what Judge Learned Hand was addressing himself was the 1924 Act.

The 1924 Act is the same act under which this Petitioner was brought in.

And he was not addressing himself to 1001.

What he was addressing himself to was, in effect, whether or not this particular immigrant could be, or alien could be deported because his visa wasn't valid.

Unidentified Justice: Well, he may be quite correct in what he says there as far as 1451(a) is concerned.

Mr. Williamson: Right.

Unidentified Justice: I thought we were talking here about a materiality requirement for 1101(f)(6).

Mr. Williamson: Well, 1101(f)(6), in my judgment, does not come into play, because, in effect, 1101(f)(6) is simply the means of determining whether or not a person is qualified for naturalization.

And this court as far back as Scheiderman has always distinguished between naturalization and denaturalization.

Here, in effect, we're not talking about the burden that the applicant has to bear in order to be naturalized.

We're talking about the burden that the government has to bear in order to vacate a judgment of a court.

And that's why, of course, the evidence has to be clear, convincing, unequivocable.

Unidentified Justice: Shifting the burden doesn't... shifting the burden of who has to prove it doesn't change what has to be proven.

Mr. Williamson: No, I think that the distinction covers more than shifting of the burden.

The distinction goes to the very nature of the right that is at stake.

And I believe that, as Justice Blackman indicated in his concurring opinion in the Fedorenko case, that once we discuss the question of citizenship already granted, in order to vacate it the only section of the statute which applies is 1451(a).

But in any event, each of the courts that have addressed this issue--

Unidentified Justice: Textually, how do you get to that?

Mr. Williamson: --Well, textually the way that I get to it is that 1451 states the requirements for denaturalization.

And it states that it must be procured by the misrepresentation of a material fact.

When it comes to illegal procurement, as Justice Brennan indicated in the Costello case, the reason for the inclusion of the language of misrepresentation of material fact was to distinguish between intrinsic fraud and extrinsic fraud, but clearly it was not the situation given a lucid definition of misrepresentation.

There is nothing in the legislative history to suggest that.

There is nothing in the legislative history to suggest the incorporation of 1101, or 1101(f)(6).

So that I would suggest that the distinction goes beyond the mere burden of proof.

But in any event, getting back to Justice O'Connor's question if I may, I think that it's more than simply the mere dictionary meaning.

When we look at Black's Law Dictionary, Black's Law Dictionary addresses I think a more pertinent aspect of it, because it goes to the question of material fact in the context of the law, in the context of a contract, and the contracts of insurance policies, in the context of a pleading, in a context, for example, of a Motion for Summary Judgment.

In those particular instances the cause and effect relationship of materiality, it's without which the particular contract wouldn't have been granted.

The insurance policy wouldn't have issued.

So in this particular instance, it has to be more than simply important.

It is a but for requirement, and I believe the language of the statute indicates that pretty clearly, because it doesn't simply say material fact in the abstract.

It says procured by, not capable of being procured by, not could have been procured by, but procured by... very strong word.

And again as indicated by Justice Douglas, it was referred to in the other opinions, fraud and misrepresentations are strong words.

Strong words require a vigorous burden of proof.

They require a vigorous application before we vacate a judgment of a court.

And what the government is seeking is a soft definition of a harsh term.

So to merely say it's important, I would suggest, does not do justice to the rights that are at stake here.

These consequences of denaturalization are far more serious than fine and imprisonment.

And I don't mean to trivialize fine and imprisonment, and I don't mean to trivialize the fact of lying.

Obviously, lying is not to be encouraged.

On the other hand, anytime that a person "lies" it doesn't necessarily mean that under any of the statutes the mere fact of lying results in consequences.

Unidentified Justice: I don't know.

This was all about 1947, was it?

Mr. Williamson: Yes.

Unidentified Justice: Most of these visas were?

Mr. Williamson: Yes.

Unidentified Justice: And we had a great many immigration officers, I gather, handling these applications, did we not?

Mr. Williamson: There was clearly a policy that because of the pressures in Europe, because of so many displaced persons that were there, that there was all efforts were to be made to bring these immigrants in.

Unidentified Justice: Well, suppose, however, there were an administrative practice at that time that if anyone admitted that he had lied, as Kungys did, that automatically he would be denied a visa.

Mr. Williamson: But there wasn't any such administrative practice, and indeed--

Unidentified Justice: I'm just asking what if there had been.

Mr. Williamson: --Well, if there had been, then the question really would be, in effect, is would that have been totally--

Unidentified Justice: In other words, if he didn't confess that he had lied, that as soon as they detected that he had he would automatically be denied as a matter of administrative practice.

Mr. Williamson: --Lying as to anything?

Unidentified Justice: Yes.

Mr. Williamson: If he lied as to anything, then I would suggest that the vice counsel is not the final determinant.

The final determinant at that time would have been the counsel, attorney counsel for the State Department.

And in turn, that would be reviewed by a court.

When those situations at that time were reviewed by the court such as in the Tepper case, Judge Irving Kaufman indicated in that case the question is not whether or not the vice counsel would have decided that he lied, and therefore would have in effect denied the visa.

The question is whether or not he had done so on a ground specifically excludable by law.

And the fact of the matter is that the regulation then in effect specifically stated that the grounds of exclusion are those grounds which are specifically listed in the application for the visa, and any law is not set forth there.

What is set forth in the visa application refers to misrepresentation as to a material fact.

The test has always been a material fact.

Indeed, getting back to Justice Scalia's question about whether or not you could bring in other statutes.

The fact of the matter is that the courts have never held that any lie even in those statutes.

They have, in effect, engrafted a judge made interpretation of even 1001, but notwithstanding the language "any misstatement".

It means, in effect, any material misstatement, so it excludes innocuous lies.

In addition to which the courts have even accepted the question of the exculpatory no, because, for example, on this visa application what you had was the specific question, 18(c) I believe it was, have you ever in effect made any misrepresentations in order to gain benefits under the act.

The simple answer is no.

The courts have engrafted into similar language under 1001, the defense that's not covered by it because otherwise in effect you would be violating the privilege against self-incrimination and other particular policy considerations.

So we have always looked to the question of materiality.

Unidentified Justice: Well, Mr. Williamson, don't we have to go through... isn't it necessary to go through the same sort of an inquiry at the naturalization stage?

Something might be immaterial at the visa stage and quite material at the naturalization stage.

Mr. Williamson: Yes, I agree that you must go through the inquiry at the naturalization stage.

But, again, for example by virtue... in Fedorenko.

In Fedorenko, Fedorenko indicated to the examiner at the time that he had lied with respect to his country of birth.

And the examiner at that time said that's of no concern to us.

So in point of fact, it really comes down to whether at that stage, and again it's not any lie, but whether or not they could have legitimately denied naturalization.

And the question would be the significance of a lie.

Let me give an illustration.

Suppose, for example, we had a--

Unidentified Justice: Well, at the naturalization stage if he had said, yes, I lied on my visa application.

Mr. Williamson: --Yes.

Unidentified Justice: Then there would have been an inquiry what did you lie about.

Mr. Williamson: Correct.

Unidentified Justice: And you would have gotten into where he lived and what he did at the critical time, wouldn't you?

Mr. Williamson: Well, what you have gotten into is the truth.

And the question is what is the consequence of the truth, and that's what we have said that the test was in Chaunt.

Unidentified Justice: Well, living in this particular... living in this particular city might have... at that time might have meant something different to the person presiding over the naturalization than--

Mr. Williamson: Not in this case.

Unidentified Justice: --over the visa.

Mr. Williamson: Not in this case.

The District Court specifically held, relying upon the evidence of the government of vice counsel, the residence in Kedainiai was of no effect whatsoever.

Unidentified Justice: I know that's at the visa stage.

Mr. Williamson: Even at--

Unidentified Justice: That's at the visa stage, and the reason is that probably nobody knew there were any events that had happened at that time.

Mr. Williamson: --There was no knowledge that any events happened in 1954 when he was granted his citizenship either.

Unidentified Justice: Well, everybody knew that.

Everybody knew what had gone on at that time.

Mr. Williamson: In 1954, there was no indication with respect to Kedainiai that had any significance whatsoever.

But let me turn around the other way.

What he said was--

Unidentified Justice: Well, at least there was no... nobody expressly expressed that in the District Court or the Court of Appeals.

Mr. Williamson: --The reason for it is--

Unidentified Justice: Did they?

Mr. Williamson: --They did not address whether in 1954, but what said in effect no investigation would have resulted as a result of the disclosure of the truth.

But let me put it the other way.

If in point of fact there was concern about Lithuania at that time, he indicated he was born in Kaunas.

A greater number atrocities occurred in Kaunas than elsewhere.

And let me also say that his application was processed at the same time as his wife.

She indicated she lived in Kedainiai.

In addition to which we have other people who testified, such as Juozas, who indicated they lived in Kedainiai.

Kedainiai was of no significant to the grant of the petitions for naturalization either.

Unidentified Justice: Well, that's your version of the record.

Mr. Williamson: Well, I don't know of any other version, with all due respect.

Unidentified Justice: Well, it isn't a version of any court that I know of.

Mr. Williamson: Well, the Court of Appeals was fairly strong in its language.

Unidentified Justice: Well, the Court of Appeals ruled against you.

Mr. Williamson: Well, not on that particular issue.

Unidentified Justice: Exactly, but on the materiality ground they did.

Mr. Williamson: Well, when it came to that particular issue, they indicated that there was no evidence that the government had knowledge.

In any event, I don't have the exact--

Unidentified Justice: That's all right.

Go ahead, go ahead.

Mr. Williamson: --page of it, but I would suggest, Mr. Justice, that indeed the Third Circuit Court of Appeals on that particular issue said with respect to the residence in Kedainiai, we agree with the District Court that that finding was not material.

Unidentified Justice: But it didn't address at the naturalization stage either.

Mr. Williamson: They addressed it, I believe, in its totality when they had to come to the conclusion that the disclosure of the truth of the residence in Kedainiai would not have been material.

It would not have been material in the context of the case either to the visa application or to the grant of citizenship since those are both of the issues.

And, indeed, since we're attempting to fall back the naturalization representations back at the visa stage to go to the question of illegal procurement, I would suggest to you that that finding by the District Court and, in effect, the indication not only by the Court of Appeals that it wasn't clearly erroneous, but that they agreed with it indicted that my version of it I think is supported by the record.

I have noticed that my light is on.

I would like to reserve the balance of my time for rebuttal.

Chief Justice William H. Rehnquist: Thank you, Mr. Williamson.

We will hear now from you, Mr. Klonoff.

ORAL ARGUMENT OF ROBERT H. KLONOFF ON BEHALF OF THE RESPONDENT

Mr. Klonoff: Mr. Chief Justice, and may it please the Court:

The denaturalization laws are quite clear.

There are two separate grounds for denaturalizing someone.

Number one, a material misrepresentation ground, and number two, illegal procurement.

And Mr. Williamson has never responded to our textual argument that illegal procurement is a separate and distinct form of denaturalization.

Unidentified Justice: But, Mr. Klonoff, ordinarily when you are construing a statute such as 1451, the section we're talking about, where it covers quite elaborately the ground of misrepresentation as the basis for denaturalization, and then something else is there, illegal procurement, you would not think that illegal procurement embraced also misrepresentation which is elaborately covered in virtually the next sentence.

Mr. Klonoff: Well, I have two answers for that, Mr. Chief Justice.

First of all, as we have explained, the requirements for false testimony under illegal procurement are quite different than the requirements for material misrepresentation.

And there are category of cases in which the government could prove illegal procurement, but not material misrepresentation and vice-versa, and I'll get to that in a minute.

The second point, however, is that that is simply not the way the legislative history suggests Congress was focusing on this.

The illegal procurement legislative history in 1961 reveals that Congress' purpose was to bring in all of the 1101(f).

Now Mr. Williamson says that this court should pick and choose.

But Congress said that 1101(f) defines who does not have good moral character, and Congress made clear in 1961 that individuals who lacked good moral character could be denaturalized under an illegal procurement theory.

Now if it were correct that Congress did not want to bring--

Unidentified Justice: Simply because they lacked it, they had to do nothing but lack it at the time?

I mean, let's suppose they made no misrepresentations concerning the fact that they had been convicted of a murder which is one of the bases of bad moral character.

Mr. Klonoff: --Well, textually that's a different... the statute 1101(f)(6) does not refer to false testimony about the other subsections of (f).

It talks about any false testimony given for the purpose of obtaining immigration benefits.

Unidentified Justice: No, but let me finish my question.

The fact is that this individual had been convicted of a murder, didn't misrepresent anything about it.

It is later found that he had been convicted of a murder.

And you say that the illegally procured language in 1451 then enables the government to back, because it made a mistake when he was naturalized, to denaturalize him.

Mr. Klonoff: That's correct.

And in fact that--

Unidentified Justice: Any mistake in the original naturalization can form the basis for denaturalization under 1451.

Mr. Klonoff: --Well, not any mistake.

It has to... if somebody was naturalized when they did not meet the requirements for naturalization can be denaturalized.

This court has been clear on that in cases going back to Ginsberg in which--

Unidentified Justice: You're really hanging on a thin string if you have been naturalized now, aren't you?

Does that mean... I wanted to follow up on that if you don't mind, Judge Scalia.

Does that mean a habitual drunkenness is a basis for not being of good moral character?

That would me, I understand then, that the government would always be open to review the past history of any naturalized citizen to find if at the time he was naturalized he was in fact sufficiently alcoholic to fit into that category.

Mr. Klonoff: --We think that's exactly what Congress intended.

We would urge the court to examine the 1961 legislative history.

Unidentified Justice: And any other ground that would show a lack of good moral character at the time remains a permanent form of jeopardy for the naturalized citizen.

Mr. Klonoff: That's what we believe Congress intended.

Congress in fact pointed out that, for example, Mr.--

Unidentified Justice: Well, in that situation... let me take it one step further.

Supposing a person realizes that although he inadvertently did disclose some disqualifying circumstance after he has been here for 20 years living a blameless life, he realizes that there is this blot on his record.

Is there any way he can correct the record?

Can he come in and say, look, I made this mistake.

I didn't do any... you know, is there any way he can protect himself from that risk by making appropriate disclosures 20 years later?

Mr. Klonoff: --Certainly one ground would be in a form of prosecutorial discretion not to bring a denaturalization--

Unidentified Justice: Well, but I thought the statute was mandatory on 1451(a).

Mr. Klonoff: --Well, I was going to follow up with that.

That is... the statute does seem to suggest that the U.S. Attorney shall bring--

Unidentified Justice: It says so in so many words.

Mr. Klonoff: --We think that when Congress in '61 restored illegal procurement, they were talking about individuals who got in who had committed murders, for example, but were never asked, did you commit a murder.

And Congress was frustrated at the fact that in those cases where somebody never qualified for naturalization the government was powerless to act.

It must be remembered we're only talking about a category of people who were not entitled to citizenship in the first place.

We're not talking about bringing--

Unidentified Justice: Yes, but don't you think illegally procured means something different from received without proper qualification?

Don't you think there is some more active connotation to illegally procured?

Mr. Klonoff: --That's not the view that this court has taken.

I was going back, for example, to the Ginsberg case where the court said that where somebody didn't meet the qualification of citizen because a proceeding was held in chambers rather than open court, the court said this person lacked a statutory requirement for citizenship, and therefore it was illegally procured.

All I can suggest is that the court examine the legislative history in '61, because we would submit it's fully consistent with the position we are taking.

Unidentified Justice: Let me ask one other question.

I hadn't reexamined the Fedorenko case, but your opponent seemed to say you shifted your position.

Is that correct?

Mr. Klonoff: We did not, Mr. Justice Stevens.

In counsel's reading of our brief, he failed to note an important fact.

Namely, the government did not argue 1101(f)(6) to this court in Fedorenko.

We were not addressing that issue at all.

Unidentified Justice: But what he read seemed to suggest that you in effect conceded that it would not apply.

Mr. Klonoff: We conceded--

Unidentified Justice: Or at least impose any higher standard.

Mr. Klonoff: --We conceded with respect to Section 10 of the Displaced Persons Act that there was a materiality requirement as to that statute.

And as we explained in our supplemental brief, we think the purposes of the Displaced Persons Act were quite different than the purposes of good moral character statute, 1101(f)(6), and that it was appropriate, we felt, for a court to read materiality into Section 10.

We in no way addressed whether there was a materiality requirement under 1101(f)(6).

Unidentified Justice: So any position you advanced in Fedorenko would still be your position.

Mr. Klonoff: Absolutely.

We have no--

Unidentified Justice: We can rely on that.

Mr. Klonoff: --question, number one, as to the material misrepresentation aspect.

The statute speaks in terms of concealment of a material fact or willful misrepresentation.

We don't retrace our concession that the misrepresentation must be material also.

That's under the material misrep part of 1451(a).

We similarly have conceded, and still do that there is a materiality requirement under Section 10 of the DP Act.

But this is quite a bit different for two reasons.

Number one, neither one of those statutes in any way addressed someone's good moral character.

And as we have explained, someone who deliberately lies under oath for the purpose of obtaining immigration benefits, we submit, does not possess good moral character.

So the purposes are quite different, we would submit.

And, therefore--

Unidentified Justice: So if you deliberately lie under oath for the purpose of obtaining naturalization, you do not possess good moral character even though the misrepresentation may not be material.

Mr. Klonoff: --That's our position, and on the other hand the government has to show that the person's intent was to obtain immigration benefits.

And as we have explained, that's a difficult burden.

And ordinarily if a lie has absolutely nothing to do with any of the issues of immigration, it's going to be exceedingly difficult for the government to show that the person's intent in lying was to obtain immigration benefits.

Unidentified Justice: Indeed, there is not a whole lot of difference between that and a materiality requirement, is there?

Mr. Klonoff: Well, there is a difference.

Unidentified Justice: You have to assume that the person is stupid; that is that although he thinks this fact does not have any significant bearing upon whether he will be naturalized or not, he nonetheless lies about it.

Mr. Klonoff: I don't think you have to... you have to assume that someone is misinformed.

Let me just give an example that may illustrate the point.

An individual is applying for a government benefit, let's say naturalization or a visa, and his wife is present.

And he is under the mistaken impression that age is relevant to the decision that the government is making.

And so in order to obtain the government benefit he deliberately lies about his age.

Now we think that's the type of case that fits into the good moral character provision.

The person with the intent to--

Unidentified Justice: --no materiality?

Mr. Klonoff: --Well, if he is mistaken that age has nothing to do... I'm assuming no materiality just for purposes of the hypothetical.

That person clearly lacks good moral character, we would submit, regardless of whether age is material.

Unidentified Justice: Do you think a young man who lies about his age to get into the Marines never could have good moral character?

Mr. Klonoff: I'm not sure.

It really would--

Unidentified Justice: Under your argument, I would think he's conclusively presumed to have bad moral character.

Mr. Klonoff: --We think that Congress made that conclusive presumption.

This isn't something that we're inventing.

We are construing the statutory language.

Let me just round the situation out.

Let's say that age is fundamentally important to the decision that's being made, but the person doesn't know this.

He lies about his age not because he's trying to obtain immigration benefit, but because his wife is sitting there next to him and throughout their marriage he has lied about his age and he doesn't want to tell the truth.

Now, that type of lie is willful.

He clearly was lying deliberately, but he wasn't lying to obtain immigration benefits.

That is where the material misrep provision fits in.

He has made a material misrepresentation and it's willful, but he doesn't fit within the good moral character provisions.

So we would submit that the two statutes really do reach out to different types of people, and that that is precisely what Congress intended.

Unidentified Justice: Mr. Klonoff, did the District Court in this case ever determine the purpose for which the Petitioner lied?

Mr. Klonoff: He did, Justice O'Connor.

And counsel--

Unidentified Justice: Was it determined that it was for the purpose of obtaining immigration benefits?

Mr. Klonoff: --He did.

I would refer the court to page 120(a) of Petitioner's appendix.

The District Court, in describing the visa documents, stated that the documents were false in that they stated the defendant had not previously given false testimony to obtain benefits under the Immigration and Naturalization Laws.

Unidentified Justice: You are reading from 120(a) of?

Mr. Klonoff: 120(a) of the Petitioner's appendix.

The paragraph beginning, 3, 1953> ["].

It's the second half of the second sentence.

The court necessarily had to have found in making the observation that Petitioner lied on his visa papers that the reason for his lying was to obtain immigration benefits.

Otherwise, he would have been telling the truth.

Unidentified Justice: Well, now you are relying on the sentence that says,

"The documents were false as to defendant's date and place of birth. "

Mr. Klonoff: Right.

Unidentified Justice: "And in that stated that defendant had not previously given false testimony to obtain benefits under the Immigration and Naturalization Laws. "

Mr. Klonoff: That's correct.

If the District Court believed that the purpose of the lie was not to obtain immigration benefit, he could not have made that finding.

Unidentified Justice: But it's a rather opaque finding, isn't it?

Mr. Klonoff: Well, it isn't--

Unidentified Justice: It's certainly not explicit.

Mr. Klonoff: --Well, we think that if... I mean, there is no other explanation for that statement other than that the court concluded that the purpose of the lies was for immigration benefits.

It's consistent, by the way, with the rest of the District Court's opinion, because the District Court concluded that the government didn't qualify in 1101(f)(6) grounds for one reason; namely, his conclusion that 1101(f)(6) required materiality.

Had the District Court felt that the statements were not given for the purpose of obtaining immigration benefits, one would have assumed, given this thorough opinion, that the District Court would have rejected the government's argument not only because of the materiality point, but also because of the purpose of the lies.

We think that when that statement is read in conjunction with the court's finding that the government didn't qualify under 1101(f)(6) only because of the materiality which the court read into the statute, we think it is reasonably clear.

I would agree that the court did not state affirmatively, I hereby find, but we think that that's--

Unidentified Justice: Well, not only that.

We don't really know from... it's not only secondhanded sort, but it's also that we don't know what test the court was using with respect to the language for the purpose of obtaining benefits.

Mr. Klonoff: --Well, Justice Scalia--

Unidentified Justice: We don't know that that court, that the District Court had in mind the same theory about the two kinds of lies about age that you have just given us.

Mr. Klonoff: --Well, Judge Scalia, certainly the court would not require before the government could rely on a District Court finding of fact that the District Court couple it with an exhaustive legal analysis.

I mean, of course we don't know exactly--

Unidentified Justice: No, all I require is that I know what the District Court is talking about, and I don't really know what the District Court means here by false testimony to obtain benefits.

I just have to take on faith that it means what you say that phrase means, which doesn't... you know, that's not an obvious meaning.

Mr. Klonoff: --Well, certainly there is absolutely nothing in the opinion to suggest to the contrary, we would submit.

I mean, the District Court certainly didn't say that that was not its purpose.

The District Court wondered why somebody would lie about these things, but we think that this is the closest thing there is to a finding, but let me follow up on that because this relates to points we made both in our opening and our supplemental briefs.

However that intent requirement is proven, it would be difficult for the government to prove it in a situation where you have one lie that's inconsequential, that doesn't relate to issues of immigration or naturalization.

However, when you have a pattern of lies, it becomes inescapable that the person's intent was to obtain immigration benefits.

Here, for example, what's quite powerful, we would submit, is that the individual not only lied at the visa stage but at the naturalization stage.

He has given a number of explanations.

He was trying to evade the Germans, trying to avoid conscription.

Those explanations are meaningless at the naturalization stage.

There was absolutely no reason for someone to perpetuate those lies many years later when the person was safely in the United States.

So we would submit that that pattern of false testimony at every purpose extending, by the way, to testimony in 1975 before an immigration--

Unidentified Justice: But at the naturalization stage could he have acknowledged that he had lied in order to obtain benefits under the Act; namely, a visa and so forth, and still been eligible for citizenship?

Mr. Klonoff: --Well, we doubt that he would have acknowledged--

Unidentified Justice: No, but if he had acknowledged, would he have been eligible for citizenship?

Mr. Klonoff: --He may not have.

He probably would not have.

Unidentified Justice: He would not have under your theory.

Mr. Klonoff: He probably would not have.

There are many, many--

Unidentified Justice: Then how do you... I mean, if once he has made a lie, he's hooked.

He's got to stick to his story or he will never get in.

Isn't that--

Mr. Klonoff: --Well, that's certainly not a reason for this court to sanction it.

Unidentified Justice: --No, no, I'm not.

But I don't see how the second lie really compounds the first.

You can rely just... you are emphasizing how bad he was by saying he didn't straighten it out at the naturalization stage.

But he couldn't have.

Mr. Klonoff: Well, because it goes to his intent.

If his real intent was not to obtain immigration benefits, then he would have straightened it out.

The question that I was asked had to do with his intent, and we would submit that if his intent was to obtain immigration benefits, he would perpetuate the lie.

If his lie was given for another reason, then he could straighten it out and he would be entitled--

Unidentified Justice: Well, maybe the lie was given for another reason.

Maybe the lie was given for another reason, but he knew that if he didn't make it he wouldn't get in, because he can't.

Once he has lied... having committed one lie, he's through.

Mr. Klonoff: --I would respectfully--

Unidentified Justice: And one lie for the purpose of getting some benefit.

He think he will be better off if he describes himself as born in a different city, and that's not true.

Mr. Klonoff: --With all respect, Justice Stevens, I would submit if somebody had an intent other than to obtain immigration benefits, and he explained that to the naturalization examiner, here is why I lied, it was not to obtain immigration benefits.

It was because I afraid of being conscripted.

He would still be eligible for citizenship.

Unidentified Justice: No, no, no.

I'm assuming with you the first lie was when he thought he had to misrepresent his age; it would be advantageous to him.

He's dead.

Mr. Klonoff: That's correct, that as he would be if he was able to get into the country having successfully concealed that he had been convicted of a murder, or one of the other good moral character requirements.

We don't think there is anything anomalous about that.

In fact, we would submit that if there is any anomaly there, it's for Congress to correct.

These kinds of extreme--

Unidentified Justice: Do we take it that one has an intent to procure it falsely if one merely has an intent to procure what he believes he is entitled to more promptly than would otherwise occur; is that an intent to procure it falsely?

I mean, what he says here is that he lied about his age and his place of birth because some of the documents that he had that had been prepared by the Germans had those things on them.

And in order to facilitate the process, he was worried if he came up with different places it would take a lot longer.

But in his mind he didn't think it would make any difference where he was born really, or whether was a couple of years younger or older.

He just didn't want the process to take longer than it otherwise would.

Now is that intending to procure it falsely, or simply to facilitate the proper procurement of it.

Mr. Klonoff: --Let me respond to that in two ways.

First of all, in the facts of this case that explanation doesn't withstand scrutiny.

He had in his possession documents that bore his true date and place of birth.

So he did not... that explanation is simply without merit.

Unidentified Justice: Is there a finding to that effect that that couldn't be the basis of--

Mr. Klonoff: The District Court--

Unidentified Justice: --I mean it depends on what the District Court means by--

Mr. Klonoff: --He never argued--

Unidentified Justice: --to obtain benefits which you and I agree it never said what it means by it.

Mr. Klonoff: --That argument was made for the first time in this court at oral argument.

There is no finding.

His argument throughout this case is that the reason he lied was to avoid conscription in the German Army.

Unidentified Justice: Do we know that the District Court did not mean that by to obtain benefits when it said had not previously given false testimony to obtain benefits under the immigration... do we know that that's not what the District Court was talking about?

Mr. Klonoff: Well, as I said, we don't know exactly what the District Court was talking about.

It isn't as clear as it could have been in the sense of elaboration.

We submit that it's sufficient for a finding, but let me respond further to your question.

Somebody who lies in order to get ahead of the pack or to push the process along absolutely fits within what the government is arguing here, because the court has to remember, this is a quota system, and the quota is going to run out.

And if somebody lies to get ahead of the pack, he's going to get a visa that otherwise would have gone to someone else who went through the honest process of getting correct identification documents.

So we would submit that someone like that also lacks good moral character if his purpose is to jump ahead of the pack and get immigration benefits.

If I could--

Unidentified Justice: You know, there are a lot of people that came to this country who were given different names at Ellis Island.

The immigration officer couldn't pronounce the name, and they said, well, Sam, is that okay?

Yeah, that's my name Sam.

Now his name wasn't Sam.

Did he give that name to procure the visa, or to procure admission to the United States, falsely to procure?

Mr. Klonoff: --That's a factual question in each case, we would submit.

Unidentified Justice: He just wants to facilitate the thing.

The guy will never learn how to spell Salvator, or whatever the name is, and the officer... it's happened very often.

Mr. Klonoff: It has to be a question of fact.

If the person had adopted a false I.D. many, many years earlier for a totally different purpose--

Unidentified Justice: No, no, there is no evil purpose except to facilitate getting in.

I don't want to be here, you know, trying to straighten out what the proper spelling of my name is.

He says Sam, what do I care; Sam is fine.

Mr. Klonoff: --If he adopted a false identity to facilitate getting in and jumped ahead of the pack--

Unidentified Justice: Do you consider that facilitating getting in?

Mr. Klonoff: --We would.

Unidentified Justice: Just to facilitate... to make it quicker so the fellow doesn't have to figure out how to spell Salvator.

Mr. Klonoff: That would be our position.

That's consistent with the statutory--

Unidentified Justice: Wow, that's a tough position, and I think there are probably a lot of people that are excludable.

Mr. Klonoff: --Well, let me say that whether or not there are people excludable under what Congress defined, that shouldn't necessarily bear on the statutory construction issue.

It's for Congress to decide whether or not that is a correct policy of excluding people who made those kinds of laws.

I would refer this court to two recent cases in the deportation context: Hector and Phinpathya.

Phinpathya, it was available to the alien to make all kinds of absurd arguments that a brief absence from the United States would totally disqualify somebody for claiming suspension of deportation.

And this court held correctly that the plain language of the suspension statute required that any absence broke that continuity of physical presence, and that it was for Congress to change the law.

Unidentified Justice: But here you are not dealing with anything quite as clear as the plain language.

What you are talking about is the phrase 1451 in 1961.

And you have to go back to make legislative history arguments to say that you don't construe 1451, as amended, the way you normally would.

Mr. Klonoff: Well, we don't think that... our argument does not depend on legislative history.

We think that Congress restoring the words "illegal procurement" is quite clear that somebody who lacked a qualification for citizenship could be denaturalized.

That's the text of the statute.

You go on and look at the '61 legislative history, and that fully corroborates the government.

We would submit that in an analysis of statutory construction the burden should have been on the petitioner to come in and show through legislative history that Congress meant something else.

The legislative history bolsters our argument, but it is no way essential to it.

We think that the text is dispositive.

Let me move briefly if I could to the issue of materiality unless there are any more questions on the 1105(f)(6) point.

We would agree with the observation made by Justice O'Connor, and in fact that's central to our argument of materiality.

That in no other area of the law, and Petitioner has cited none, has materiality been construed to require a dispositive fact.

Now the government has argued for a criminal standard of materiality.

It has also construed Chaunt as a would/might test as I have explained previously the last time the case was argued, and as we have explained at length in our brief.

But whether or not the court goes with the would/might test, or the criminal test, or some other test, for example, the TSC test, the important point that the government is making here is that this court should not require proof of a dispositive fact.

In that regard, let me just note counsel's heavy reliance on one case, the Day case from 1929, the Second Circuit case.

It has nothing to do with the issues here for several reasons.

It wasn't a construction of 1451, and furthermore, I would urge the court to look at Landon v. Clark which we cite in our brief, the First Circuit case from 1956, which traces the law subsequent to Day, and indicates that even in the Second Circuit the court had backed away from any requirement of a dispositive fact.

And we would submit the law is quite clear as we have laid out in our brief, both before and after Chaunt, that the courts have not required a dispositive fact in order to establish materiality.

We would submit that there are several reasons why this court should reject the argument of the dispositive fact.

First of all, our interpretation is more consistent with the text of the statute.

If you were to require a dispositive fact under the material misrepresentation clause, that would essentially render that ground for denaturalization meaningless, because the government would have demonstrated illegal procurement in every case, and it would be entirely irrelevant whether the person lied or told the truth.

Unidentified Justice: But, of course, that's only true if we buy that part of your first argument.

I mean, we have not yet read illegal procurement quite as broadly as that, I think.

Mr. Klonoff: Well, we would submit that in Ginsberg, even in Fedorenko itself, the court has read illegal procurement to mean somebody who obtained citizenship without possessing the statutory qualifications.

If the court is going to retreat from those cases, then it's an open issue.

But we would submit that Fedorenko traces the law from Ginsberg to that decision.

We would submit that that is the law; that illegal procurement dealt with someone who didn't possess the requirements.

But that is true, our argument depends on that link.

Secondly, and I'll only briefly touch upon this, a standard that requires a dispositive fact gives the alien every incentive to lie, as Justice White pointed out in his dissenting opinion in Fedorenko.

The burden of proof shifts at the denaturalization stage, and it will be more difficult for the government later on to uncover disqualifying facts.

Related to that point--

Unidentified Justice: Of course, it is an incentive, it is perjury, isn't it if it... and so the incentive is to be willing to commit a crime?

Mr. Klonoff: --Well, except that a person who is trying to get over here, a person in another country who is faced with the situation where if he's denied a visa it's essentially unreviewable, he's not thinking about whether he is going to be prosecuted for perjury or not.

Unidentified Justice: Well, at the naturalization stage though.

Mr. Klonoff: The naturalization stage, there is some--

Unidentified Justice: Some deterrent.

Mr. Klonoff: --There is some deterrent with the perjury law, we would acknowledge, but we don't think it's a sufficient deterrent where somebody is seeking something like naturalization and where the fact it's being hidden is really buried in his past, and one could safely hope that he could get past the short statute of limitations for a perjury conviction.

Related to those points, we would submit that if individuals are given a license to lie, it makes it very, very difficult for the immigration officials to do their job properly.

As the material is revealed, there are very few vice counsels to process these applications.

They don't have big staffs to go out and investigate every case, and they rely very heavily on the truthfulness of the applicants.

And if they are going to--

Unidentified Justice: Mr. Klonoff, excuse me for interrupting, but your time... I do want one piece of information that I don't know about which you may not get to.

Do we know in this crucial phrase of the District Court saying that the defendant... his documents were false in that they stated that defendant had not previously given false testimony to obtain benefits, we have already gone around on whether it knew what it meant by "to obtain benefits".

Did it know what it meant by "false testimony"?

Do we know that the District Court was interpreting the phrase "false testimony" as you concede in your brief it should be interpreted to refer only to oral testimony, and not to statements in writing, oral testimony under oath?

Mr. Klonoff: --We don't know that.

Unidentified Justice: We don't know that.

Mr. Klonoff: We don't know that.

Let me say further though, we have argued throughout, and we are quite clear in our supplemental brief that testimony has its limited definition.

Petitioner has never quarreled with the government that he had given testimony.

That's quite clear from the joint appendix, page 157, for example, dealing with the naturalization stage.

The testimony of the naturalization examiner is that the preliminary examiner would check off each question that was asked of the applicant under oath.

So we would submit that on that issue of whether there is testimony, there really hasn't been any dispute.

Plus, the record is overwhelming.

We don't know, and again I would submit that I know of no case in which a court has required before it will accept the finding of fact that a district judge lay out in detail its understanding of testimony.

We think testimony is a well established term in the case law.

We think the District Court's finding was supported by the evidence, and consequently, the court should not require that the district judge have given an analysis of what it means by testimony.

We don't think a remand on that issue would be necessary, particularly since there really has been no dispute on that point.

Finally, let me make this point in terms of the standard of proof of materiality.

Much of Petitioner's argument has rested on the theory that somehow if the court adopts that standard it's going to lead to unfairness in the immigration process that Justice Scalia's question seemed to references that people are going to be denaturalized for inconsequential lies, and that somehow there is going to be an unfairness in the system.

Let me point out, however, that since 1952 when the misrepresentation clause was enacted, 1451(a), the courts have almost unanimously interpreted materiality the way the government has urged, and after Chaunt, with the exception of the Tenth Circuit, they have continued to do so.

So the test of materiality that the government has urged has been the law for over three decades, and we would submit--

Unidentified Justice: It's not materiality that we are worried about; illegally procured.

It's the 1101 provision that is drawn into 1451 by the phrase "illegally procured" that's the problem.

Mr. Klonoff: --Well, certainly... I see my time is up.

Thank you.

Chief Justice William H. Rehnquist: You can answer the question.

Mr. Klonoff: If the court is not worried about the government's test of materiality, that's all the better from our position.

Counsel was worried in his briefs, and I was responding to the concerns he had raised.

Chief Justice William H. Rehnquist: Thank you, Mr. Klonoff.

Mr. Williamson, you have four minutes remaining.

ORAL ARGUMENT BY DONALD J. WILLIAMSON ON BEHALF OF THE PETITIONER -- REBUTTAL

Mr. Williamson: Thank you, Your Honor.

Addressing the question which Justice Stevens raised as to whether or not I had overstated what the government had conceded in the brief in Fedorenko, I was interpreting Section 10 of the Displaced Persons Act.

The key language which they say implied in that brief a coterminous requirement of materiality in illegal procurement was the phrase "to gain admission".

I submit that there is no difference in kind between the phrase 1101(f)(6).

So although the government wasn't addressing 1106 at that time, it was because of the fact that they recognized that the displaced person argument to gain admission equaled material.

It follows a fortiori that that would also be material.

Unidentified Justice: What force do you think that a statement in a brief by a former solicitor general years ago has on this case?

Mr. Williamson: I think that you gave it that force, Mr. Justice Marshall, when you speak for the majority in Fedorenko said, we agree with the government that Section 10 requires materiality.

Unidentified Justice: But then if you had written the opinion.

Mr. Williamson: Yes, I think it's the opinion of the Supreme Court that gave it that force.

Unidentified Justice: I write them.

I don't explain them.

[Laughter]

Mr. Williamson: I would also argue that a fortiori, the reason the government didn't raise the argument at that time because they did not perceive that it would be persuasive.

But getting back to Justice Scalia's question as to whether or not the court made a finding when it simply was, in effect, addressing itself to the question of the check mark on to gain admission, I think that the court in context was simply indicating that the same misrepresentation was repeated in the petition, because that was contained on page 120 of the Appendix C.

But if you go back to page 118, the court makes a finding.

It says,

"I cannot understand what benefit defendant expected to achieve by placing his birth in Kaunas rather than Reistru, by dating his birth October 4, 1913 rather than September 21, 1915. "

And the finding that had defendant given the correct information, his visa would have nevertheless been issued.

Later on in the opinion at page 123, the court simply reasserts that the government asserts that he lacked the prerequisite of good moral character because he gave false testimony for purpose of gaining benefits under the Act.

That's not a finding of fact.

That's a conclusion of law.

It's an erroneous conclusion of law, because of the fact of the requirement materiality as perceived in Fedorenko.

In any event, there is no testimony presented by the government at the District Court level as to what the Petitioner's intent was at the time he made the misrepresentation.

There is, however, testimony as to why the Petitioner in German gave the documents that he did.

That is to say, why did he make everything consistent with his internal Lithuanian passport, and everything consistent with, and I'd point to the joint appendix, and the joint appendix is on page 29, Exhibit 1(s).

That's the Lithuanian ex-political prison's certificate dated June 18, 1946, and the significance of that certificate was explained in the testimony at the District Court level that the purpose why the Lithuanian committee in the camps were giving these certificates is because the Soviet representatives on the committee were screening applicants for purposes of expatriation to the Soviet Union, or taking them out of the camps.

And this further exhibit on page 69, Exhibit 53(d), in which it confirms that.

This is the letter of the War Department, Special Staff, Civil Division, and it refers to,

"an intensive screening program initiated in mid-June 1946. "

the exact time that he received that certification.

So obviously he'd want to be in a position of having to indicate to a Soviet representative in the camp that his internal Lithuanian passport--

Chief Justice William H. Rehnquist: Your time has expired, Mr. Williamson.

The case is submitted.

Attribution:

The Oyez Project

Kungys v. United States - Oral Argument

Tue, 13 Jul 2010 01:15:30 +0000

Case:

Kungys v. United States

Media File:

86-228_19870427-argument.mp3

Related Transcript:

86-228_19870427-argument.xml

Transcript:

IN THE SUPREME COURT OF THE UNITED STATES

JUOZAS KUNGYS, Petitioner v. UNITED STATES

No. 86-228

April 27, 1987

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:57 o'clock a.m.

APPEARANCES:

DONALD J. WILLIAMSON, Newark, N.J.; on behalf of Petitioner

ROBERT H. KLONOFF, Washington, D.C.; Assistant to the Sol. Gen. Department of Justice on behalf of Respondent

DONALD J. WILLIAMSON, Newark, N.J.; on behalf of Petitioner - Rebuttal

PROCEEDINGS

CHIEF JUSTICE REHNQUIST: Mr. Williamson, you may proceed whenever you're ready.

ORAL ARGUMENT OF DONALD J. WILLIAMSON ON BEHALF OF PETITIONER

MR. WILLIAMSON: Mr. Chief Justice, and may it please the Court:

This denaturalization case raises the issue as to how to determine the materiality, or lack of materiality of a misrepresentation in a visa application and a petition for naturalization when the truth would not have resulted in the ineligibility of the naturalized citizen for either a visa or for citizenship.

Here the Third Circuit transformed the immaterial misrepresentations of date and town of birth by applying evidentiary standard less than and inconsistent with that required by the long-standing requirement of Schneiderman of an evidentiary standard of proof that is doubt free. And it applied that diluted standard to reach a non-existent ultimate disqualifying fact.

QUESTION: You say a standard that is doubt free, Mr. Williamson?

MR. WILLIAMSON: Doubt free.

QUESTION: Is that beyond a reasonable doubt?

MR. WILLIAMSON: It is at least, according to this Court in (inaudible) the equivalent of the criminal beyond a reasonable doubt.

QUESTION: I don't think of beyond a reasonable doubt as being doubt free.

MR. WILLIAMSON: The language of clear, convincing and unequivocal which does not leave any issue in doubt, I would characterize as doubt free.

QUESTION: Well, clear and convincing has been thought of a standard between a preponderance and beyond a reasonable doubt.

MR. WILLIAMSON: But, this Court went further in Schneiderman to indicate that it not only has to be clear, convincing and unequivocal, but it will leave no issue in doubt and any inference of fact or law as far as reasonably as possible it should be drawn in favor of the citizen.

But, I would argue in terms of the application to this case that doubt free is more of a short end expression in my having to completely repeat each time that language of the Court.

But nevertheless, if we're to take literally the Chaunt second prong of the second expression of the second prong then this Court is likewise free to take literally the language in Schneiderman which is doubt free and which in the concurring opinions is fairly clear that this Court was trying to avoid any potentiality of having two classes of citizenship and therefore did in fact make the standard of proof as vigorous as possible.

When the applications of the fact to this particular case the District Court was able to apply all of the formulations of Chaunt and Fedorenko, taken in combination, and under none of those standards did it find the misrepresentations to be material.

What happened here however is that the Third Circuit tried to get from point A, the suppressed truth by drawing an inference as to a residency permit in which correspondence indicated that it was issued without special restrictions and from that it drew a tendentious inference that that would have led to a conclusion that the naturalized citizen was not a victim of Nazi persecution.

I think we demonstrate fairly clearly that the law and the regulations at that time had no such requirement that one had to be a victim of Nazi persecution. So that the ultimate disqualifying fact to which the Third Circuit, I reach this conclusion is in essence a false premise and its logic was bound to face since it didn't exist.

But in addition to which the case illustrates that you cannot have a standard which you can characterize as it did as probability and still in effect comply with safeguarding the rights of the denaturalized citizens. Because what they did there is they turned Schneiderman upside down and instead of drawing the inferences in favor of the citizen they draw the most tenuous inference in favor of a government.

In point of fact, the inference is neutral because every person whether or not a citizen of Germany at the Third Reich at that time, or even today, who is in Germany whether it be a citizen, or displaced person, or foreigner, has to register and the registration is a simple bureaucratic act.

All it does is establish that the neutral fact that one resided in Tubingen. Now the irony is that the establishment of the residence in Poltringen rather, at that time, established that the petitioner was a displaced person who was covered by the Presidential Directive of December 22nd, 1945.

Now that was incorporated specifically on December of 1946, in the Federal Regulations incorporated the Truman Directive as part of the priority for Non-preference Immigration Quota Visas.

The Third Circuit looked at the President Truman Directive in isolation and did not take into consideration that indeed it was incorporated in the regulations. As a result of which they came to the improper conclusion that was a mere generalized statement instead of in fact a Presidential Order directing that all displaced persons would, in effect, receive a priority under a Non-preference Quota Immigration Visa standard.

This Court has never applied the second prong of Chaunt even in Chaunt. And as a result of which it is dicta and I would submit that if it is to be taken literally, it is impossible to reconcile the dicta in the second prong of Chaunt with the Schneiderman test.

What has happened is we have two formulations in Chaunt within two pages. One on Page 353 and one Page 355. The latter one picks up the word, "possibly," and the question has in effect, plagued the Courts of Appeals as to how one applies the test and where, in effect, what part of the phraseology it modifies.

Whereas it is reasonably clear that in Chaunt this Court in effect did say that you had to connect the suppressed fact, there the arrests, to an ultimate disqualifying fact, their communist affiliation, and what the Court said is that the attempted connection by the government at that time was too tenuous and in addition to which it said as part of its holding that no investigation would have been conducted because there, there was a disclosure which, in effect, that disclosure did precipitate an investigation.

Similarly here, although the petitioner did in fact misstate his date and town of birth, he disclosed his residence in Poltringen and in Tubingen in Germany prior to the end of the war. That was disclosed and it did not trigger off an investigation by the Vice Counsel to look at the records in Tubingen. But we don't know that it did not because the Vice Counsel in effect, indicates in the application for visa, police dossier available.

A police dossier meant that they went to the available public records of the jurisdiction in which the individual resided. So that presumably we would have gone to Poltringen or Tubingen and what would they have found?

Contrary to the indications of faulty review by the Third Circuit, they would have found the original document which we have in our Joint Appendix. That is the original register of Ammerbuch, which in effect is the district which controlled the residential permits there.

And there it contains the same information which is reflected in the internal passport. It contains the statement that he was born in Kaunas and born in Canniest on the incorrect date. So that in point of fact there is no connection, proper connection on the factual basis to go from point A, the truth of the true date and place of birth which the District Court properly held would not have led anywhere because that would not have created any type of suspicion.

In addition to which it could not connect to something which is the residence rather the appropriate fact was to disclose fact which connected to the residence and which is his residence in Poltringen which is on the application.

But in any event, the whole exercise is an exercise in futility if at the end the ultimate disqualifying fact doesn't exist. There was no requirement that one had to be a victim of Nazi persecution in order to get a visa.

And equally important there is no exclusion which excludes someone who's not a victim of Nazi persecution from obtaining a visa. This naturalized citizen received his visa under the 1924 Act and the Third Circuit at least says that you should determine the validity of either the visa or the citizenship petition judged by the law in effect at the time that he obtained it.

Under the 1924 Act, since he received his visa in 1948 having applied for it in February of 1947, the law at that time was that the visa shall specify the nationality, which quota the immigrant is coming into and such additional information necessary for the proper enforcement of the immigration laws.

And what they provided for is one form, but that one form was an attempt to cover many different applications. As a result of which some of the questions that are asked in the form have no relevance or in the standards here no materiality to the ultimate decision to be arrived at.

By way of illustration the form requires that you set forth your age. Of course the age is relevant if you are attempting to obtain a first preference because, excuse me, a second preference, obtain a second preference because the second preference is available to unmarried children under the age of 21 years old.

Obviously if the petitioner attempted to make himself, an alien, an unmarried alien under the age of 21 years then clearly that would have been material. But the difference of the two years from 30 to 32 years was meaningless piece of information. It was not necessary for the proper enforcement of the immigration laws at that time.

Similarly, he did not attempt, for example, it asked whether or not he's married and indeed he disclosed the fact of his marriage, but that marriage had no relevance to the Non-preference Immigration Quota Visa which he obtained.

Although it would have had relevance to a first preference, so that in point of fact information is requested in that form which is not necessary to enforcement of the laws. In addition to which the Act of --

QUESTION: Mr. Williamson?

MR. WILLIAMSON: Yes.

QUESTION: As I understand one of your points is that the Court of Appeals here engaged in improper fact finding under our Icicle Seafoods decision of last term.

MR. WILLIAMSON: Yes.

QUESTION: And are you going to discuss that in your oral argument?

MR. WILLIAMSON: I believe that as one of the bases of which to reverse I also believe that it is a relevant consideration here because it goes to the question of the District Court applying each one of the standards in Fedorenko as particularly relevant to the opinion of Justice White. (Inaudible).

QUESTION: I would find it helpful, --

MR. WILLIAMSON: All Right.

MR. WILLIAMSON: -- speaking only for myself, if you could point out factually, not with theories, just where the Court of Appeals went wrong in what you claim to be it's fact finding?

MR. WILLIAMSON: All right. The District Court found --

QUESTION: I would agree with the Chief Justice on that. I would like to have you comment.

MR. WILLIAMSON: Yes. The District Court found that no investigation would have been conducted had the truth of the suppressed facts been disclosed. And he obviously was not clearly erroneous because no suspicion would have been aroused by a man who made himself two years older, by a man who placed himself in a city rather than a town in Lithuania.

QUESTION: Well, now did the Third Circuit find that clearly erroneous?

MR. WILLIAMSON: Well the Third Circuit used the language of apply a clearly erroneous test, but that's not what they did. What they did in effect is to say that an investigation would have been conducted and the way in which they did it is they looked to the discrepancies of the documents which are ultimately discovered and they reasoned backward from the discrepancy of the document back from the truth.

But, it's not the consequence of the lie that's significant, it's the consequence of the truth. Would the truth have led to an investigation. And that's what this Court, as I read it, in Fedorenko said. Would the truth, if disclosed, have led to an investigation?

Now the reason why I argue, in effect, that the Court of Appeals made a de novo finding is that although when you apply a mixed question of law and fact, it may be that the legal standard is something which they could address themselves to.

But they cannot change the factual component unless it is clearly erroneous and here they changed the factual component of whether an investigation would have been conducted.

But if I may also follow up on the dissent, if you would, of Mr. Justice White in Fedorenko. The District Court found that since no investigation would have been conducted it would have satisfied that test.

But I would also submit that the test would likewise be satisfied because under these particular circumstances the naturalized citizen did rebut Mr. Justice White's suggestion that if you have a probability test and it establishes a presumption, that presumption is a rebuttable presumption.

But nevertheless you still have to reach an ultimate disqualifying fact. Here the petitioner did rebut the presumption as to whether or not one had to be a victim of Nazi persecution and he did it very simply.

He did in the first instance by his cross examination. The Third Circuit reached the false premise by examining only the direct examination of Former Vice Counsel Finger.

QUESTION: I was curious about that too. It seemed to me that the Court of Appeals treated his testimony as if it had to be believed. And I thought the District Court could totally disbelieve the testimony of any witness whether interested, or not.

MR. WILLIAMSON: Not only could he, but he did. Now in a very genteel way he said that the law and the regulations in effect suggest that Mr. Finger was in error, but perhaps there was an informal policy. But that's not what the immigration laws say.

As I've indicated in our Joint Appendix and also in the attachment to the reply brief. The only way in which one could refuse a visa is on grounds in the law itself or in the regulations and there they don't exist. And what we've --

QUESTION: But, of course, if it's essentially a question of a fact --

MR. WILLIAMSON: Credibility.

QUESTION: -- you don't have to prove you're right. All you have to prove is there was a dispute which the District Court was entitled to resolve either way.

MR. WILLIAMSON: And which he resolved in favor of the naturalized citizen. Once again, however, the Third Circuit, when you asked me whether or not they had made de novo findings, they obviously did on the most erroneous of fashions. That is to say they didn't look at the cross examination and they didn't look at the federal regulations, nor did they look at the Presidential Directive.

QUESTION: I'm interested in that. Was in fact no regulation in existence?

MR. WILLIAMSON: No regulations existence.

QUESTION: Even though Ambassador Finger, then Vice Counsel said he was relying on one.

MR. WILLIAMSON: He said the policy was embodied in the regulations which the government attorney showed me during my trial preparations. There was a three week recess call in which the government was given the opportunity to produce that regulation. They didn't, I did.

I produced the regulation which was the one I referred to in the Federal Register of December of 1946. Now in addition to that, since that time we have looked at every conceivable source of historical evidence including the literature at the time, including the INS monthly reviews, the contemporaneously written articles, all of those appear in the Appendix of the amici in support of the petition for certiorari.

QUESTION: So, it remains a puzzlement what it was that the government did show Mr. Finger, or whether he just --

MR. WILLIAMSON: Or if they showed him anything.

QUESTION: Or if they showed him anything.

MR. WILLIAMSON: Or, if in effect, we have merely a faulty memory, in effect, he would like to believe that that was the particular case. But obviously it didn't exist and there's no factual support for his testimony which the District Court found was in error.

QUESTION: And there was also testimony by, was it the counsel at the time, who had no recollection of any such --

MR. WILLIAMSON: Yes, the government in its --

QUESTION: Policy.

MR. WILLIAMSON: -- brief says that that's simply a telephone conversation which was in evidence, but it is in evidence because the alternative that the District Court judge gave was, either we adjourn the trial and go there and take the deposition of Mr. Schilling, or we take his deposition by telephone with me listening, or in effect you agree that the transcript goes in without cross examination.

QUESTIONS: The transcript of what?

MR. WILLIAMSON: The transcript of the telephone conversation I had with Mr. Schilling who was the individual actually processed the naturalized citizen's petition, visa petition which the government chose not to use, instead to use Mr. Finger.

Presumably the bases for not using him was Mr. Schilling was uncooperative and had no memory and in effect what we have instead is Mr. Finger who was cooperative and had a memory of something which doesn't exist and never existed and there's no support for.

In addition to which the government has not produced a refusal card. If in fact, the absence of being a victim of Nazi persecution was a disqualifying fact then there would be refusal cards which would show that as to some individuals.

QUESTION: Mr. Williamson, may I come back to the facts?

MR. WILLIAMSON: Yes.

QUESTION: Do you deny that the petitioner in this case knowingly lied every time he had the opportunity to do so?

MR. WILLIAMSON: Oh, yes.

QUESTION: You do?

MR. WILLIAMSON: I do. Because what we have here --

QUESTION: Didn't he have the correct documents in his possession and didn't he falsify the documents he filed and signed, swore to? (Inaudible).

MR. WILLIAMSON: The reason I answered your question the way in which I did, Mr. Justice Powell, is this: Your question was so broad --

QUESTION: All right. You (inaudible) --

MR. WILLIAMSON: -- that it picks up many different statements, but if you're asking me whether or not, the same misrepresentation of his date and place of birth was made throughout then the answer to your question is, yes. And if you're asking me whether --

QUESTION: May I interrupt you now?

MR. WILLIAMSON: Yes, I'm sorry.

QUESTION: And those misstatements were wilfully and knowingly made?

MR. WILLIAMSON: Those statements were intentionally made.

QUESTION: Right.

MR. WILLIAMSON: I think that willful embodies within it a concept of mens rea or a black heart and in this particular instance there's no black heart because we have --

QUESTION: He just wanted to be a United States citizen.

MR. WILLIAMSON: No. What he did is he made a misjudgment and the misjudgment that he made was that in a procrustean way he tried to conform the application to his internal Lithuanian passport which was the best record of a public record of the country to which he owed allegiance which was basically the test.

Now, the so-called other documents that you're talking about, none of them were public records and doubtful that they would have satisfied a requirement to obtain the particular visa.

Now the particular instance here, however, there's a certain irony. The reason why he had the misstated date and place of birth on the internal Lithuanian passport was to avoid conscription into the Nazi Army at a time when there was an order seeking mobilization of the Lithuanians under the most dire and harshest of repressions to the Lithuanians. Point of fact that happened four days --

QUESTION: But that wasn't the application for the visa.

MR. WILLIAMSON: Pardon?

QUESTION: I thought Justice Powell was talking about the application for the visa.

MR. WILLIAMSON: Yes, I'm saying why it wasn't

QUESTION: But, that had nothing to do with him going in the military did it?

MR. WILLIAMSON: It had nothing with him going into the military. It had the reason why --

QUESTION: He was (inaudible).

MR. KLONOFF: -- he thought, he made the misjudgment that he had to put down the same date and place of birth as he had on his passport.

QUESTION: Do you say that to tell a deliberate lie is a misjudgment?

MR. WILLIAMSON: I'm not trying to, in effect, minimize the fact that he lied.

QUESTION: Isn't it a fact that he didn't want to be found out to have murdered 4,000 people?

MR. WILLIAMSON: Well, Your Honor, that I would take severe issue with. The fact of the matter is that this individual defended himself against those kind of charges and the District Court found them unreliable and inadmissable and I respectfully suggest that if we had the most heinous crime committed in the United States of a similar type of nature no court, no responsible court would have admitted the evidence or found it to be reliable that existed in this particular court. So I would take very serious issue with that as to how this gentleman have under our system having proved --

QUESTION: (Inaudible) lie.

MR. WILLIAMSON: No, it is not in the least Your Honor. And I take serious issue with it, but what it does raise in effect, is it shows how the tremendous high (inaudible) pressure of the nature of the accusations in effect, makes it very difficult to deal with these particular issues and it does distort judgment.

And I think that what we have to do under our system of justice in order for it to work and work effectively is we have to see whether or not it's capable of handling cases like this so that the allegations if not proved don't bear upon the considerations of the other issues.

And the issues here are whether or not the misstatement as to his date and place of birth can be a sufficient grounds for, in effect, denaturalizing him.

QUESTION: Mr. Williamson, let me get it clear why you say he was misrepresenting. You say that he thought that the best documentation that he had available was his Lithuanian passport so he recited the date and place of birth that was on that?

MR. WILLIAMSON: Yes. You have, under the --

QUESTION: Why didn't he use the same reasoning when he gave testimony to the German officials for the other documents that contained the correct date and place of birth?

MR. WILLIAMSON: When you look at the actual document, the initial registration, he did the same thing to the "German authorities, " and that was the German authorities (inaudible). Now it is true on a different and subsequent page and after the allied occupation it does contain the correct date and place of birth.

QUESTION: After the allied occupation?

MR. WILLIAMSON: That's correct. After the allied occupation.

QUESTION: All the documentation that shows the correct date and place of birth is after the allied occupation?

MR. WILLIAMSON: That is correct. And that documentation was in fact, available to the Vice Counsel because of the fact he disclosed each one of those residences where it would appear. The document is very clear. The only ambiguity that arises from it is the fact that it says born in Kaunas but has to Taurage.

Taurage is a different county than Kaunas. But the Kaunas place of birth and the incorrect date of birth are, in effect, in the initial registration document. Those other documents you see are reports which are reflected off of that document, but it is not until after the allies occupy that the other correct information is reflected.

And that's a faulty review again of the Third Circuit which was picked up by the government, but it's available in the Joint Appendix for the examination of the Court. It's the fold out document that we have in there and I have in it's original form for that particular reason.

I see that I've less than five minutes. If there are no further questions, I'd like to reserve my additional time for rebuttal.

QUESTION: Thank you, Mr. Williamson.

MR. WILLIAMSON: Thank you.

QUESTION: We'll here now from you Mr. Klonoff.

ORAL ARGUMENT OF ROBERT H. KLONOFF ON BEHALF OF RESPONDENT

MR. KLONOFF: Mr. Chief Justice, and may it please the Court:

The issue in this case is how to balance two important interests, a naturalized citizens right to citizenship versus the government's need for truthful answers by applicants for visas and for citizenship. The issue arises in the context of the case involving willful and deliberate lies at every stage of the process.

And in answer to Justice Powell's question the record is clear and it's been conceded throughout that these lies were willful, and I would cite to Pages 9A and 46A of the petitioner's Appendix, the decisions of the Court of Appeals and the District Court.

The Court of Appeals is absolutely clear that these were conceded to be willful. And I will get, in detail, during the course of this argument to the nature of these lies because, in fact, a number of misstatements were given during Mr. Williamson's arguments and I want to clear up precisely what the nature of the misstatements were and how they occurred during the proceedings.

The standard of materiality urged by the government in this case requires proof by clear convincing and unequivocal evidence that there would have been an investigation and that that investigation might have uncovered disqualifying facts.

Now I think Mr. Williamson confuses two different issues here. He indicates that the use of the phrase, "might" somehow dilutes the clear, convincing and unequivocal standard. But, in fact, he's confusing two separate issues.

For example, in the criminal perjury cases the standard of proof is proof beyond a reasonable doubt. The question of materiality is whether or not there is a tendency to influence the decision-maker and the question whether there's a tendency to influence the decision-maker has to be proven by a reasonable doubt. So we submit there's no dilution of the proper standard.

QUESTION: What would, might, whatever, tell me why the listing of birth date two years earlier and a different location in the country instead of in the city of Kaunas would have provoked an investigation.

MR. KLONOFF: Well, let me say there are four separate patterns of lies. It isn't just date and place and birth. Mr. Williamson, throughout the litigation and again in this Court, ignores what the government believes to be the most crucial lie, namely where the petitioner was during the time of the atrocities.

QUESTION: Yes, but what about the date and place of birth alone?

MR. KLONOFF: Well, the Court of Appeals found date and place of birth alone to be enough, the analysis that we --

QUESTION: Well, what's your position on that?

MR. KLONOFF: We submit that that's correct. (Inaudible).

QUESTION: Well, why would that have led to an investigation as Justice Scalia asked?

MR. KLONOFF: Well, first of all and this goes also to Chief Justice Rehnquist's question about whether or not there was an error of law or an error of fact. What the District Court did is it said, let's look at a fact in isolation per se.

For example, if someone came in and said, I was born in 1915, are you disqualified based on that fact per se? If that were the analysis, then virtually no fact of identity would be material. For example, somebody could come in and give a totally fictitious name, but then when it --

QUESTION: You tell me how it would have led to investigation? Granted that it wouldn't have disqualified him and you need not show that it would have disqualified him automatically.

MR. KLONOFF: (Inaudible).

QUESTION: How would it have led to an investigation? Somebody would say, ah ha, he was not born in 1933, he was born in '31. That will set me to, why would that set anybody to investigate?

MR. KLONOFF: Well, what happens Justice Scalia, the way this process works is first the applicant provides documentation, he then fills out the application forms and he's then interviewed under oath and given the information and the testimony in terms of triggering an investigation which the Court of Appeals correctly said was undisputed is where the person, well, first provides --

QUESTION: You said the Court of Appeals said it was undisputed, but are you suggesting that the District Court doesn't have the right to disbelieve someone's testimony just because there isn't any contradictory testimony?

MR. KLONOFF: Well, we're not suggesting that. Nowhere in the record does the District Court indicate that it disbelieved (inaudible).

QUESTION: Why does the District Court have to indicate that it disbelieves? So long as it didn't make a finding in accordance with that testimony the District Court may have disbelieved it.

MR. KLONOFF: Well, --

QUESTION: I mean, I think the Finger testimony doesn't do you any good at all up here.

MR. KLONOFF: Well, what the District Court did wrong, we would submit, is not looking at discrepancies created by later lies. What Vice Counsel Finger explained is --

QUESTION: Well, but, what I'm saying is that you may be right as to the discrepancies, but I don't think you have any business relying up here on any of the explanations of Vice Counsel Finger. Because the District Court was free to disbelieve him.

MR. KLONOFF: But, with all respect, Chief Justice Rehnquist, the District Court did not reach the issue of the discrepancies at all.

QUESTION: Are you saying that the District Court was not free to disbelieve Finger?

MR. KLONOFF: The District Court certainly could have disbelieved Finger.

QUESTION: Well okay then why are you relying on what he said in your explanation. Because the District Court could have disbelieved him.

MR. KLONOFF: That's correct. What we're doing, we're reviewing the record as to the analyses undertaken by the Court of Appeals.

QUESTION: Yes, but I suggest you not rely on the Finger testimony.

MR. KLONOFF: Well, but the District Court did not specifically refuse to rely on it.

QUESTION: No, but you agree it could have disbelieved it?

MR. KLONOFF: It could have. But, what the Court of Appeals found was an error of law, in other words, that Vice Counsel Finger explained that the way the process worked is --

QUESTION: Yes, but again, you're relying on his testimony. The District Court could have found his testimony totally false.

MR. KLONOFF: Well, that's correct. And perhaps on an issue where the District Court didn't address this precise issue, perhaps one approach could be for this Court to remand for the purpose of having the District Court specifically address --

QUESTION: That's what Icicle Seafood says, doesn't it?

MR. KLONOFF: That is correct. We have taken the position that the Court of Appeals had a basis in viewing the record to be undisputed on these particular points and therefore --

QUESTION: But, what does undisputed mean?

MR. KLONOFF: Well, it means that there is no evidence to the contrary.

QUESTION: Well, but that isn't the testimony you, that isn't the way you ordinarily review a District Court finding of fact. You can say the testimony of Witness A before the District Court was undisputed. Nobody contradicted this witness, and yet if the District Court, sitting as a fact finder, says, I don't believe a word that witness says, the fact that the witness was undisputed doesn't make any difference.

MR. KLONOFF: No, I understand that. And I would just again reiterate that there was no finding that Vice Counsel Finger was not credible.

But in any event, in answer to Justice Scalia's question, the course of investigation would have been triggered by an inconsistency between the earlier lie and the later telling of the truth because at each stage of the process the individual is asked to provide this biographical information.

And having supplied false documents, if he then comes in and gives the truth an investigation would be triggered and it was required by regulation as a result of the inconsistency of this basic biographical information. The same thing is true within that organization.

QUESTION: If you believe Finger?

MR. KLONOFF: That's right. Or, Goldberg. And as to Justice Goldberg, the District Court didn't discuss the evidence at all.

QUESTION: But there was no reason for the District Court to be required to believe Justice Goldberg, was it?

MR. KLONOFF: That's correct. We don't disagree on that, Mr. Chief Justice.

QUESTION: See, I still don't understand this. You mean, since he lied the first time in the visa application, had he told the truth the second time in the naturalization application, the inconsistency between the two would have set an investigation afoot.

MR. KLONOFF: Exactly. That's a fact.

QUESTION: And that investigation would of looked into why. Why is that the man said that he was born in 1931 when he was born in 1933?

MR. KLONOFF: Exactly. But, first of all --

QUESTION: And why is it that he said he was born in Kaunas instead of, where was he born?

MR. KLONOFF: That's correct. In Taurage. And that's correct. Those are two --

QUESTION: So what? What would that investigation have led to? Absolutely nothing.

MR. KLONOFF: Well, we submit that that's not correct.

QUESTION: Those specific facts couldn't make any difference at all.

MR. KLONOFF: Well, again, first of all at the visa stage there was a requirement that people tell the truth about biographical information. This was supported by the case law at the time. And so the very discovery of the discrepancy would have disqualified the applicant from obtaining a visa.

QUESTION: Oh, you're saying any, oh, you are eliminating therefore the requirement which I thought, I thought the case has established up to now that any misrepresentation has to be not only willful, but material in order to disqualify.

MR. KLONOFF: Well, what the (inaudible) --

QUESTION: You're saying, if we find somebody making a willful misrepresentation whether it's material or not, whether it would have caused him to be disqualified from naturalization or from a visa, or not, it's enough.

MR. KLONOFF: No, that' not, it's much narrower than that. The cases deal at that time specifically with identity with information that Congress specifically required that an applicant provide as to those specific pieces of information. The case law at the time was quite clear that it was per se grounds for denial. So that's just one avenue. Let me explore your question further.

QUESTION: Wait, excuse me. It was per se grounds of denial. Any misrepresentation whether it was material, or not?

MR. KLONOFF: Well, the cases held that because identity was so fundamental to the inquiry of investigation that misstatements of identify were in essence deemed material per se. Only a small category of misstatements known as identity.

But, let me pursue it further because wholly apart from the identity point there are additional avenues, one of which is what the Court of Appeals went off on, the fact that the investigation would have revealed that the petitioner was not a victim of persecution and that this was a requirement at the time. Now, we would note in that regard first of all that we conceded hat --

QUESTION: Is that uncontested that it was required at that time?

MR. KLONOFF: Well, it was --

QUESTION: That's what Finger said.

QUESTION: That's what Finger said. Nobody else said.

QUESTION: Substantiated by a regulation which didn't exist.

MR. KLONOFF: And again, I would note to the Court that if the question has to do with whether or not this type of issue should have been dealt with first in the first instance by the District Court that that maybe the procedure to have dealt with.

But, I'm just answering, in terms of the remand, but I'm answering Justice Scalia's question about the avenues of investigation. And if we can assume for a moment that Vice Counsel Finger was correct, and if we've noted in our brief and supported historically by the actual numbers of the visas, virtually all of the visas at the time in this part of the world were going to Jews who by definition, were victims of persecution.

Petitioner himself provided the most important evidence of the existence of the requirement. He submitted a document for the very purpose of proving that he was a victim of persecution.

And finally, petitioner offered evidence at trial, a Mr. Zabarskis, who had testified that he was not a victim of persecution, but nonetheless got a visa. But as the government showed, he too represented himself to be a victim of persecution.

QUESTION: Excuse me. I still don't understand how all of this ties into the birth date and the place of birth. What does that have to do with whether he's a victim of persecution, or not?

MR. KLONOFF: Because what Vice Counsel Finger indicated is that if a discrepancy develops between a document and the other information, the first thing that will be done is to look at the police records in the city of prior residence of the individual.

That investigation, we submit, would have uncovered the documentation indicating first of all that petitioner was living without restriction in Nazi Germany. Secondly, the very identity of the false date and place of birth would of revealed to the Vice Counsel that the document --

QUESTION: Mr. Klonoff, does the government's case here depend on accepting the truth of the statements of Finger and Goldberg?

MR. KLONOFF: Yes, I mean, well --

QUESTION: The judgment ought to be reversed or vacated if you don't rely on their statements?

MR. KLONOFF: Well, if we don't, two things: First of all, if the Court is not prepared to rely on Vice Counsel Finger and Goldberg we would submit that the proper approach would be to properly define the test of materiality and then to remand so that the District Court can consider these issues in the first instance. District Court is really never considered the issue of discrepancy for example. It has never really considered --

QUESTION: (Inaudible). Is it not also critical of the government's case that not being a victim of persecution is a disqualifying fact?

MR. KLONOFF: Well, or that not necessarily is a matter of statute. We concede there's no statute of regulation --

QUESTION: And it's a fact you would have prevented him from getting a visa had it been known?

MR. KLONOFF: That's not critical since we've given several other possible grounds of investigation. One of which is, by the way, under the "would and might" standard that the investigation would have led to an investigation that might have shown the petitioner was in fact a persecutor, or committed the war crime --

QUESTION: That's what I wanted to find out. You are relying on a reading of the standard which would allow, even though it had not been proved that he was such a persecutor, what you're saying is there might be some other evidence out there that might have been discovered that might have shifted the scales on the fact issue and might have led to the conclusion that he was in fact a persecutor?

MR. KLONOFF: Well, that's correct. His --

QUESTION: Isn't that always true? I mean, in unsettled conditions in Europe there that if you use the "might" language literally it's all, once you get over the hurdle of saying you would have triggered an investigation would you not always win on the ground that they might have found something disqualifying?

MR. KLONOFF: Well, we don't think so. We think that there's considerable content to the "might" part of the test explained by the attorney general in 1961. That "might" requires some showing of a basis for ultimate disqualification. It doesn't require a preponderance of the evidence but it requires a considerable showing.

Here we have petitioner lying about the very fact of where he lived during the war. That's the fact that the District Court found for the government. That is some support although the --

QUESTION: What you're saying in effect is that they might have discovered evidence that would have corroborated evidence that was otherwise insufficient?

MR. KLONOFF: That's correct. That even the government didn't prove --

QUESTION: So, if they get a little evidence of persecution, you'd always pass that "might" hurdle, I suppose?

MR. KLONOFF: No, we don't think so. But, even though the government --

QUESTION: Well, how much evidence do you have to have on that issue of persecution?

MR. KLONOFF: Enough to raise a serious question about whether, in fact, the government could have made its case. Let me further answer though your question about --

QUESTION: Reasonable suspicion enough, or probable cause? What is the standard?

MR. KLONOFF: We would think that reasonable standard --

QUESTION: If there's reasonable suspicion that he was engaged in this kind of activity, you satisfied the "might" hurdle.

MR. KLONOFF: We would think, once we've first shown that there would have been an investigation.

QUESTION: Right. Once you say you would have triggered some kind of an investigation --

MR. KLONOFF: Let me first though if I could --

QUESTION: Found the reasonable suspicion here. What would have justified that reasonable suspicion?

MR. KLONOFF: Well again, the Vice Counsel would have found through the discrepancies that petitioner lied about the very place he was during the atrocities. The investigation as the evidence indicates, would have led the Vice Counsel to the displaced person's camp where there were --

QUESTION: Were there no atrocities in the place where he said he was? I mean, you know, you mentioned, what's the name of that city where --

MR. KLONOFF: Taurage (inaudible).

QUESTION: There were atrocities all over Lithuania.

MR. KLONOFF: Well, that's correct. But this is --

QUESTION: So, I mean, you can always say, yeah, he lied because he, you know, are you sure the city he said he was in didn't have atrocities as well?

MR. KLONOFF: Well, that's not the point. If he lied about where he was no one in the place where he claims to have been would be able to link to him to atrocities there. So no one could prove that he committed atrocities in Telsiai.

But, let me just move back briefly to the question about whether or not the case depends on Vice Counsel Finger and Vice Counsel Goldberg. We've also given an alternative analysis that doesn't depend specifically on the acceptance of that testimony and that has to do with the issue of good moral character.

And we would submit that without regard at all to the credibility findings that are made that an individual who lies repeatedly on these critical types of facts has demonstrated a lack of good moral character under the statute and that would provide a basis for disqualification. Let me --

QUESTION: Did the courts below rely on that?

MR. KLONOFF: Well, the courts dealt with it and they dealt with it, both of them rejected it.

QUESTION: Did they rely on that as a basis for denaturalization?

MR. KLONOFF: They did not. They, both the Third Circuit and the District Court rejected that argument. They held that for purposes of good moral character, the Chaunt materiality standard applies in that context. If I could very briefly --

QUESTION: What is the meaning of the materiality standard if you adopt that position? That is, the lie has to be material, but of course, anybody who lies doesn't have good moral character, so a lie doesn't have to be material.

MR. KLONOFF: Well --

QUESTION: Why would you need a materiality standard?

MR. KLONOFF: Well there's a difference and there's a question of overlap. We're not saying that any lie, regardless of its significance is enough to show that you lack good moral character.

What we're saying is, is that here in the context of lies that could have proven a basis for perjury, and we cite the Ramos case for example, that where somebody has repeatedly committed perjury that he has demonstrated a lack of good moral character.

QUESTION: Well what makes it perjury as opposed to just a lie if it isn't materiality?

MR. KLONOFF: Well, but the materiality test, again, this assumes just hypothetically, regardless of whatever the Court adopts with respect to Chaunt, the materiality test in the perjury context is well-established. And that requires only that there be a tendency to influence the decision-maker and we suggest that under that test of materiality it's clear the petitioner's lies were material for criminal purposes.

So, regardless of the Chaunt test, we would submit that somebody who is engaged in repeated acts of perjury has established a lack of good moral character.

Let me briefly, if I could, review the entire scenario of misstatements because they really are quite dramatic in the context of this case. Petitioner repeatedly lied about his identity at the very time he was telling the truth to the Germans. And it's simply not correct as petitioner would indicate that he also lied to the Nazi Germans.

And I would refer the Court to Page 117A of the petitioner's Appendix where the District Court found as a fact that all of the documents reflected the, that were submitted to the Germans, both Nazi and after, reflected his true place of birth and almost all reflected his true date of birth. So, clearly he was giving truthful information to the Germans.

It was also found as a fact that he had a identifying document on him with a true place of birth and that he didn't disclose that document to the immigration officials. Now, his explanation that he's given, namely avoiding conscription into the German Army simply makes no sense because it doesn't explain why he would tell the truth to the Germans and then lie to the American officials.

QUESTION: Why did he lie to the American officials? What's your theory about why he lied to the American officials and told them he was born --

MR. KLONOFF: Well, the theory we've had --

QUESTION: -- two years later, or earlier.

MR. KLONOFF: -- throughout this case, as is typical of many of the cases that have been brought in this area, people are trying to shade their identities so that they can not be linked with certain atrocities. And that goes hand and hand --

QUESTION: But, he wasn't born where the, you know, if he had been born where the atrocities occurred, I could understand it.

MR. KLONOFF: Well --

QUESTION: But, neither the place where he actually was born, nor the place where he said he was born was the place where the atrocities occurred.

MR. KLONOFF: No, but if, for example, someone came in later and provided testimony that the person who they saw and they knew of who committed the atrocities was the person who was born in so and so town, he can come in having lied and said, well that's not me, I was born in a different place and I have a different year of birth.

But, certainly the most critical lie, we have submitted, is his lie about his residence during the war. And his lie has been really a spectrum of lies because he told the immigration officials at the visa stage that he had not resided in Kadainiai.

For a two year period, he listed just Telsiai. He kept changing around so that by the time the investigation occurred of this case he admitted that he was there until the beginning of July, but left right before the atrocities. And the District Court specifically found that he was there until October of 1941 and, therefore, was there during the time the atrocities occurred.

And finally, he lied about his occupation, and there, there's further testimony. Vice Counsel Finger indicated that at a minimum, had an individual come in and represented that he had worked in this plant manager capacity, even of say 15 employees, that would have triggered further questioning by the Vice Counsel.

Now, if I could just discuss briefly the general considerations concerning the test of materiality. We would submit that the government's test of materiality, the test we urge is the proper one that this Court should adopt for several reasons.

First of all, petitioner's standard of materiality creates an incentive for visa and citizenship applicants to lie and then later rewards the person for his successful lies. And many of the questions that the Court is asking today, it's troublesome to know exactly what the line of investigation would have been and this is the reason why a standard of what Counsel calls doubt free materiality simply is not right, because the government was denied the opportunity back in 1947, of investigating these facts.

The government has the right to get the true identity of the person so that it can make the investigation at the time and determine at the time whether or not the person has the necessary requirements. So we submit that the government standard properly balances those two interests.

Secondly, --

QUESTION: (Inaudible).

MR. KLONOFF: -- our standard, Justice White, is what you suggested in your dissenting opinion in Fedorenko that there would have been an investigation that might have led to the discovery of disqualifying facts and that that has to be proven by clear, convincing and unequivocal evidence.

And I would say in that regard, in addition to the Attorney General opinion in 1961 endorsing that standard, virtually every court both before and after this Court's Chaunt decision has endorsed that standard. The only exception is a split decision by the 10th Circuit and some dictum by the 9th Circuit.

But, beyond that the endorsement for this point of view has been sweeping and virtually unanimous by the courts who recognize exactly what I'm arguing today this difficult problem where an individual lies about critical information, who he is, and then tries to come in later after he's gotten his citizenship through the lie and then said, well United States you can't show precisely what an investigation would have uncovered 40 years ago. That's the problem with the very standard that the petitioner urges.

QUESTION: Yeah, I know a lit of people who misrepresent their birth date and I really don't consider that they're misrepresenting who they are. That's a little --

MR. KLONOFF: There's a question, Justice Scalia, and you've raised it there that one of the requirements is that the statement be willful and that it be willful in a sense of trying to deceive the immigration officials, so somebody who's lying for vanity purposes or whatever --

QUESTION: It's a different point and it seems to me quite hyperbolic to say that someone who gives the wrong birth date, or for that matter a wrong town of birth is misrepresenting who they are.

MR. KLONOFF: Well, we think so. Let's take --

QUESTION: (Inaudible).

MR. KLONOFF: I don't know how common Mr. Kungys name is at the time, but let's take the name John Smith. If somebody lies about their date and place of birth it is absolutely meaningless to give a name John Smith.

You just cannot do any investigation of who that person is, so we would submit that the date and place of birth are crucial. Congress specified them. The very beginning of the statute that we have quoted as an Appendix to our brief.

Congress listed only a few items that they required of all applicants and date and place of birth were among them. And the courts, as we've said, have given specific attention to the identity issue. The second point in terms of --

QUESTION: (Inaudible) asking us to overrule or cut back on Chaunt?

MR. KLONOFF: Not at all. We submit that the test we're proposing is a faithful interpretation of Chaunt and in fact, the cases that we've cited post Chaunt are relying on the literal language of the second Chaunt prong.

So, we submit that and this is entirely consistent with Justice Douglas' concern in his opinion that visa and citizenship applicants tell the truth. That truthfulness is a fundamental part of the immigration system and that a standard that gives no attention to that whatsoever is one that really is unworkable.

Now related to my first point in terms of the incentive to lie is the fact that once there is a lie, either at the visa or the citizenship stage you have deprived the government officials of the opportunity to do their job properly.

They simply cannot investigate an individual's bonafides if the standard that's endorsed is one that essentially says, which is what petitioner's standard would do, that you can give a completely false identity, because that would be the effect of endorsing the "would-would" standard.

You could give a completely false identify because no one could say 40 years later that had I given a true name, or had I given a true date of birth those facts per se would have disqualified me.

QUESTION: Why don't you use the standard that's used for the criminal statute 1001? I mean, apart from the fact that you have one vote here for "would-might" which I don't denigrate. I mean, that's --

MR. KLONOFF: Well, let me say, the "would-might" standard --

QUESTION: -- a good reason but why don't you use the one that we have a lot of case law on?

MR. KLONOFF: Well we've suggested --

QUESTION: The Federal Perjury Statute?

MR. KLONOFF: We've suggested that as an analogy, in fact, the would-might standard is more stringent than the standard in the criminal context. The criminal context only requires that there be a tendency to influence the decision-maker.

The government standard is requiring that there would have been an investigation, not only that there might have been or that there would be a tendency to. And, in fact, one case, the Sixth Circuit Kassab decision specifically endorsed a "might-might" standard which is more comparable to the criminal law.

But, let me just say we would have no objection whatsoever if this Court endorsed as the standard of materiality in this context, the standard that's applied in the perjury context and perhaps that would be a way to rid some of the confusion of this area by having a two prong standard --

QUESTION: Does the --

MR. KLONOFF: -- that would be

QUESTION: Does the record in this case tell us who made the investigations in Germany at the time? Say that, you say there would have been an investigation triggered. What would the counsel's office have done?

MR. KLONOFF: Well, the Vice Counsel testified, both he himself would investigate plus he had employees who would do it. They would interview people at displaced persons camp, they would go to the police records of the individual's prior residence, they would look at prior applications.

QUESTION: How big a staff did he have?

MR. KLONOFF: These were not large staffs and it's critical to note that these people relied on the truthfulness of the applicants. There simply were not the resources to go out and conduct a massive investigation for each applicant. And that again is a further reason --

QUESTION: But basically, the Vice Counsel himself would of gone out and checked the records and so forth?

MR. KLONOFF: He would have done some, or he had staff who assisted him in that regard. And it was sort of an ad hoc decision-making process. There's not a lot in the record on the specifics.

QUESTION: And what about it, with reference to Judge Goldberg's testimony? If he had thought an investigation was necessary what would the naturalization judge do?

MR. KLONOFF: He testified quite clearly that if he had found a discrepancy --

QUESTION: Right.

MR. KLONOFF: -- in biographical information he would have referred the case to the immigration officials for deportation proceedings. So the naturalization examiner wouldn't personally be involved, but the investigation would be a government investigation into possible prosecution of a deportation.

QUESTION: I see.

MR. KLONOFF: So that's how it would work in that context. Let me just make a couple of other points and both of these, by the way, are fully supported by a standard of materiality that endorses the criminal standard.

The standard the petitioner proposes is more onerous than in any other area of the law, criminal, civil, I would refer the Court to the TSC case for example, the tort examples. In no other context is there a requirement that you prove an ultimate disqualifying fact.

Now since Congress did not define materiality in the statute, principals of statutory construction would suggest that you would go to well-established meanings of the term such as the criminal context. You would not start from scratch and propose a definition that has absolutely no support anywhere in the law.

QUESTION: Mr. Klonoff, before you get off, one thing's troubling me about, let's assume that Finger's testimony is properly evaluated by the Court of Appeals and assume that we can't find any regulation, which you haven't been able to, that says it's only victims of Nazi persecution who would have been admitted on a visa.

MR. KLONOFF: Yes.

QUESTION: Now you say, nonetheless, it would have been a relevant misrepresentation if Finger, on his own was using that as a criteria. That would be enough to render the misrepresentation which would have shown that he was not a victim of Nazi persecution relevant --

MR. KLONOFF: If this were a well-established, --

QUESTION: Yeah.

MR. KLONOFF: -- if this were a legitimate policy --

QUESTION: Well-established. Suppose it were well-established that Finger was giving preference to blue-eyed people and was not allowing any brown-eyed people in and he writes down blue eyes on the thing.

MR. KLONOFF: Well that's not, I mean, that is not a legitimate policy carrying out the intent of the regulation. Our point is --

QUESTION: Nor was Fingers if the regulation doesn't say there's a preference or the victim is not --

MR. KLONOFF: The emphasis in the regulation, I would ask that --

QUESTION: What do you do with my hypothetical? Clearly not a relevant misrepresentation, is it?

MR. KLONOFF: That's not an effort to further the effort the concern of Congress and the President to try to get the neediest people visas. What Finger is talking about is a sub-category where you identify the most needy people and you say that these people who have been victims of persecution are going to be the one, the Court has to remember there were many, many people applying for visas. Way more than were eligible under the quota system and therefore, a decision on Meade had to be made.

And we would simply ask therefore, that the judgment of the Court of Appeals be affirmed.

QUESTION: Thank you, Mr. Klonoff. Mr. Williamson you have three minutes remaining.

REBUTTAL ARGUMENT OF DONALD J. WILLIAMSON ON BEHALF OF PETITIONER

MR. WILLIAMSON: Yes, thank you, Your Honor.

Justice Scalia, Page 53 of the Joint Appendix contains the initial entry records under the so-called Third Reich. The translation of that is on Page 56 of Block Form indicating the date of birth which is the same on the internal passport, Kaunas which is the same as the internal passport, the only differential is Terage, which is a county. It's a misstatement of the county. So I accurately stated that in fact he did give the same misinformation to the Nazi authorities.

Insofar as the statement that in 1948, that the courts in connection with whether or not to justify the refusal of a visa or the exclusion upon entry did not hold for materiality. I suggest that the government read Pages 25 and 26 of our brief.

The Second Circuit in Iorio v. Day, a 1929 case which was used as the predicate for a ruling of the attorney general says, it is true that the realtor was bound to tell the truth in his application. If what he suppressed was irrelevant to his admission, the mere suppression would not debar him.

But, I would like to speak to the test because this case gives an excellent illustration as to why the tests should be certitude tests to be consistent with Schneiderman. After the Soviet deposition of the sister-in-law was taken, she indicated that she was unaware that her sister was married.

Based upon that testimony, the government amended the complaint to allege that he misrepresented the fact of his marriage.

Now it is possible that the petitioner was not married in Lithuania. It is also possible that he was married in Lithuania. So a possibility test under those circumstances, if that was sufficient to rely on that evidence would have in effect, disqualified this individual under their test, the so-called identity, marriage being a factor and I agree with you when it didn't change his name, he didn't change his identity.

Now, as to probability Mrs. Kungys testified that she was married in Kaunas on August 24, 1943. She submits as part of the INS file of the government, her internal passport, it had stamped on it the marriage bureau of Kaunas with a number.

The government did not insist before they amended the complaint to allege a misrepresentation of a marriage that the simple fact of requiring the Soviets to produce the marriage register of that date, she gave them the date and the number.

What the Soviets did is typical of their subjugation of their concept of justice to the interests of the state. They waited until after the date that the case was scheduled for trial. It was then re-scheduled. The Soviets, seven weeks later produced the marriage register of Kaunas, same number, same date that Mrs. Kungys said.

So, in effect, what you have here is when you require a certitude test on the government, what you are doing is saying government do your job. Conduct an effective investigation because if you rely upon Soviet evidence, which is unreliable, you're going to get half truths. But if you insist upon certitude and you do your investigation accurately --

QUESTION: Mr. Williamson, your time has expired.

The case is submitted.

(Whereupon, at 11:57 a.m., oral argument in the above-entitled case was submitted).

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Toll v. Moreno - Oral Argument

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Toll v. Moreno

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Transcript:

ORAL ARGUMENT OF ROBERT A. ZARNOCH, ESQ., ON BEHALF OF THE PETITIONERS

Chief Justice Burger: We will hear arguments next in Toll against Moreno.

Mr. Zarnoch, I think you may proceed when you are ready.

Mr. Zarnoch: Mr. Chief Justice, and may it please the Court, this is the second time this case has been here, the second time this Court has been called upon to examine the constitutionality of the University of Maryland's policy of denying in-state benefits to non-immigrant aliens.

The last time this case was here, it was complicated by an unresolved issue of state law and of concerns over the University's basis for treating non-immigrant aliens differently, issues that have caused this case to be certified, the question to be certified to the court of appeals of Maryland, and ultimately the case to be remanded back down to the district court.

These questions are now behind us.

This time around, however, the case raises additional and perhaps more significant constitutional questions evidenced, I think, by the fact that for the first time in this Court's history, all 50 states are participating here as amici and unified behind a single position, namely, urging the reversal of the Fourth Circuit's decision and overruling of Vlandis versus Kline.

Of the four constitutional questions raised in this case, the foremost issue, we think, is the question of whether the University's policy denies equal protection to non-immigrant aliens.

We think that if we prevail on this ground, many of the other issues in the case could quickly fall by the wayside.

Now, the equal protection issue here, we think, calls into play the very rationale for labeling certain alien classifications suspect and for according them strict scrutiny, a rationale we say that focuses in on the burdens permanent resident aliens share with citizens, and which non-immigrant aliens as a class conspicuously lack.

Although resident aliens may be saddled with disabilities, we suggest that non-immigrant aliens, on the other hand, are blessed with privilege.

At the outset, it is important to understand what is at stake here, how many persons are affected by the University's policy, and the nature of the disadvantaged class.

First, all we are talking about here is the tuition differential.

At one time, the University did have a disparate charge with respect to certain fees, for example, dorm fees.

That is no longer the policy of the University.

Only in tuition is there a difference with respect to in-state and out-of-state students.

Secondly, we are not talking about scholarships, state scholarships, that is.

The state of Maryland does not deny state scholarships to non-immigrant aliens as a class, assuming they can show financial need.

It is also important to note how many people are affected by the University's policy.

According to the record in this case, during the years 1978 and 1979, there were anywhere from 1,000 to 1,200 permanent resident aliens attending the University of Maryland.

Unidentified Justice: Annually?

Mr. Zarnoch: Annually.

And during that period, approximately 95 percent of those permanent resident aliens qualified for the in-state... were classified in-state and received the benefit.

On the other hand, there are half as many non-immigrant aliens, as few as 497, I believe, in 1978.

Unidentified Justice: In what category?

Mr. Zarnoch: These are non-immigrant aliens who are classified as out-of-state.

In terms of potential student population, the figures... the ratio is even greater.

There are seven times as many permanent resident aliens in Maryland as there are non-immigrants.

Unidentified Justice: Well, the 497 non-resident aliens, fill that in a little bit.

Who are the--

Mr. Zarnoch: Exactly.

Unidentified Justice: --What is that group composed of?

Mr. Zarnoch: Well, the class... well, it is a much smaller... it is a much smaller universe than the class of non-immigrants generally.

The class of non-immigrants generally consists of diplomats, foreign visitors, foreign students, and employees of international organizations and their families, and--

Unidentified Justice: Well, do all of them have the non-immigrant G-4 visas?

Mr. Zarnoch: --No, all of them have a non-immigrant visa, but not a G-4 visa.

Unidentified Justice: Well, this case involves only the G-4 visa people?

Mr. Zarnoch: Well, this case involves a classification that disadvantages all non-immigrant aliens.

Unidentified Justice: I see.

Mr. Zarnoch: All holders of those particular visas.

But to answer your question, Mr. Chief Justice, all those... all those particular non-immigrant categories are not represented in the class that the University... primarily they are A visa holders and J visa holders who are foreign students or cultural exchange students.

There is also the G-4 aliens, about 70 G-4 aliens roughly in that number, and diplomats.

Unidentified Justice: Let me ask you, because I am a little puzzled, you say there are 70 G-4 aliens in the class that are paying the higher tuition?

Mr. Zarnoch: Yes, during those years in question, 1978 and 1979, roughly about 65 to 70.

Unidentified Justice: Does this case involve anything but those people?

Mr. Zarnoch: Well, the persons who brought the challenge fall into that category.

The classification challenge involves the whole category of non-immigrant aliens, and in fact both the lower court and the Fourth Circuit held that it violated... the policy violated equal protection because it disadvantaged the entire class of non-immigrant aliens.

Unidentified Justice: Do they all have the same tax exemption that the G-4 people do?

Mr. Zarnoch: No, no.

Unidentified Justice: But then your rationale doesn't apply to them.

Mr. Zarnoch: Well, Your Honor, they--

Unidentified Justice: I am puzzled.

I don't know what... now I am really--

Mr. Zarnoch: --Well, Your Honor, I think, you know, the focus here, the policy itself disadvantages a class, an entire class of non-immigrant aliens.

Now, the rationale we have offered in justification of that policy focuses in to an extent on tax contributions of that class.

Unidentified Justice: --If I understand you correctly, your justification applies to 70 people in a class of 497.

Mr. Zarnoch: No, Your Honor.

No, it doesn't.

In fact, all non-immigrant aliens are treated differently with respect to taxes other than... treated differently than citizens and resident aliens.

It so happens that G-4's can point to a particular tax exemption that hurts their case, but, for example--

Unidentified Justice: Well, does the record tell us about the tax exemption of the other 427 people?

Mr. Zarnoch: --Yes, it is basically a matter of a question of law.

For example, most non-immigrant aliens, for example, are not taxed on foreign source income.

Unidentified Justice: Is this in the briefs, all this?

Mr. Zarnoch: Yes, it is, Your Honor.

Yes, it is.

In terms of foreign source income, most non-immigrants do not pay taxes on foreign source income.

Citizens and resident aliens do, on the other hand.

There are many other categories of non-immigrants that are treated better, more advantageously with respect to taxes.

For example, a foreign student from Japan who would attend the University of Maryland has a $2,000 exemption on a portion of his compensation.

There are various treaties that confer a privileged tax status on various non-immigrants.

There is even, for example, federal law confers a tax break on all international organization employees, not just the particular banks who are in this case.

So, we contend as a general matter non-immigrant aliens are treated differently for purposes of taxation.

They do not pay their full share of taxes, the class as a whole, and G-4's in particular.

In terms of the legal protection question here, we say this Court's earlier decisions in terms of alienage have all focused in on a number of characteristics when it decided to accord strict scrutiny to the classification at issue.

It looked at taxes.

This Court has indicated a number of times that resident aliens are taxed precisely like citizens.

They pay their full share of taxes.

Non-immigrant aliens, as I have tried to suggest, do not.

There are a number of non-immigrant aliens who are simply not here long enough to contribute much in the way of taxes or anything else in terms of the state's economy.

Another--

Unidentified Justice: When you say they pay all... resident aliens pay all taxes, you mean federal and state income taxes?

Mr. Zarnoch: --That's true, Your Honor.

Unidentified Justice: And all property taxes?

Mr. Zarnoch: That's true, Your Honor.

Unidentified Justice: And sales taxes?

Mr. Zarnoch: There is absolutely no... federal law draws no distinction between resident aliens and citizens.

There is no difference.

Unidentified Justice: Is there any category that ha access, for example, to tax-free stores equivalent to our post exchanges in other countries?

Mr. Zarnoch: I'm not sure, Your Honor.

I don't know.

Unidentified Justice: None in Maryland, at any rate?

Mr. Zarnoch: Not as far as I know, Your Honor.

Unidentified Justice: No.

Mr. Zarnoch: In terms of the other criteria this Court has looked at in terms of strict scrutiny, it is also emphasized that resident aliens serve in the military.

I think you ought to note here that non-immigrant aliens are excluded from... were excluded when we had a draft, and presently are not subject to draft registration, so they are not obliged to serve in the military.

The Court has also noted on occasions that resident aliens are required to obey all of our laws.

Well, here, certain categories of non-immigrants are not completely obliged to obey all our laws.

For example, diplomats are one class that because of either diplomatic immunity or statutory immunity are not fully liable for violation of certain laws, and the same is true of employees of international organizations, who by statute have a certain immunity that relieves them from the obligations of complying with all the country's laws.

Unidentified Justice: That is by federal statute, is it?

Mr. Zarnoch: That is by federal statute.

Unidentified Justice: I take it you are going to address the pre-emption argument here, too.

Mr. Zarnoch: I certainly will, Your Honor.

Unidentified Justice: Of course, many of the things you are talking about seem to me bear on the pre-emption question, don't they?

Mr. Zarnoch: That is true, Your Honor.

Unidentified Justice: Yes.

Mr. Zarnoch: Well, at your urging, I will move on to that question.

Unidentified Justice: May I ask you a question first about this class again?

Mr. Zarnoch: Sure.

Unidentified Justice: Of these 497 people, how many of them are eligible for domicile?

Mr. Zarnoch: Well, I think so far our court of appeals has only held that G-4 aliens are capable of acquiring--

Unidentified Justice: And you still exclude non-domiciliaries independently, regardless of whether they are--

Mr. Zarnoch: --That is true, Your Honor.

We exclude non... so we exclude citizens--

Unidentified Justice: --So we don't know how many of these 497 will be excluded from the in tuition rate because they are not eligible to be domiciled?

Mr. Zarnoch: --Your Honor, the policy excludes them anyway.

The policy doesn't look into the particular domicile of any non-immigrant.

The policy simply excludes them as a class.

You know, whether or not they are capable of acquiring domicile or not, because of the cost equalization rationale that we--

Unidentified Justice: Now, that is the amended policy, is it not?

Mr. Zarnoch: --Your Honor, the policy never was amended, in terms of the operation and effect.

Unidentified Justice: Oh.

Mr. Zarnoch: There was a resolution issued in June of 1978 that--

Unidentified Justice: But there was a time when domicile was important.

That is why we sent it back, was it not?

Mr. Zarnoch: --Your Honor, this case was argued, it was argued to the district court on the grounds that, in 1976, that is, on the grounds that G-4 aliens could not acquire a domicile--

Unidentified Justice: Yes.

Mr. Zarnoch: --and therefore couldn't meet the test anyway.

We have also argued consistently since then certainly that the policy is independently supported by a rational basis of cost equalization.

In fact, the students when they were informed by the University president that they were not going to be accorded state status, were given two reasons, first, the cost equalization tax notion, and secondly the fact that they couldn't acquire domicile.

Now, that issue is no longer a question.

The court has... our court of appeals has held that G-4 aliens can be domiciled.

The rationale on that decision doesn't say what other categories of non-immigrant aliens could or might or may not be domiciled in the state of Maryland, and we don't--

Unidentified Justice: We should judge this case as though all of the group that are involved here--

Mr. Zarnoch: --Could be domiciled.

Unidentified Justice: --could acquire domicile.

Mr. Zarnoch: That's true, Your Honor.

Unidentified Justice: Yes.

Mr. Zarnoch: I think you could.

Unidentified Justice: Mr. Zarnoch, then the class includes more than the G-4 aliens.

Mr. Zarnoch: Yes, Your Honor.

I think so.

I think--

Unidentified Justice: And we are dealing with all non-immigrant aliens.

Mr. Zarnoch: --That's true, Your Honor.

Unidentified Justice: Is that right?

Mr. Zarnoch: That's true.

Unidentified Justice: And they are all excluded from these tuition... the tuition break.

Mr. Zarnoch: That's true, Your Honor.

Unidentified Justice: Regardless of whether they are domiciliaries.

Mr. Zarnoch: That's true, Your Honor.

The policy--

Unidentified Justice: Based on the fact that they don't pay state income tax.

Mr. Zarnoch: --Yes.

Well, Your Honor, that's true.

Well, it's not just state income tax.

Unidentified Justice: Is that right?

Mr. Zarnoch: It is just that that class, viewed... viewing the general characteristics of that class, they don't particularly contribute fully to the support of the University of Maryland, which, as we have indicated in our brief--

Unidentified Justice: Through the income tax.

Mr. Zarnoch: --That is the chief concern, because the University--

Unidentified Justice: Because they would be paying state sales taxes if you have them or other taxes.

Mr. Zarnoch: --Yes, that is true, Your Honor, but many of the taxes cited by the G-4's as paying, they don't particularly fund the costs of the education at the University of Maryland.

For example, property taxes don't pay for... motor vehicle taxes, none of those things pay for the University education.

Unidentified Justice: In your view, does this Court have to overrule Vlandis versus Kline to uphold Maryland's scheme?

Mr. Zarnoch: No, we have indicated in our brief at least three possible ways the Court would not have to overrule Vlandis versus Kline to uphold the policy.

One would be simply to... if the Court concludes that the policy does not violate equal protection, and finds a rational basis... finds our basis for the policy rational, that is enough to survive a due process challenge.

For example, in Vlandis versus Kline, this Court noted that aside from an interest in administrative certainty, there was no rational basis for Connecticut's treatment of non-residents.

If, for example, if the Court does find a rational basis here, it is not invalid, even for Vlandis as it existed.

Unidentified Justice: Well, what about the back tuition?

How about the refund?

Don't you have to overrule Vlandis if you--

Mr. Zarnoch: Well, Your Honor, as I am saying, if it decides, you know, as I say, and the Court can address the due process question and simply say that we have a rational basis under the policy.

That is enough to meet Vlandis as modified by Salfi or whatever else.

I think--

Unidentified Justice: --You mean, even on the refund?

Mr. Zarnoch: --Well, Your Honor, I... well--

Unidentified Justice: I thought that... Didn't the Court say your former policy was invalid?

Mr. Zarnoch: --That's true.

It said--

Unidentified Justice: Under Vlandis against Kline?

Mr. Zarnoch: --It said it was invalid from the period 1976 through 1978.

Unidentified Justice: Yes.

Well, what about that period?

Mr. Zarnoch: Your Honor, we are asking the Court to reach the due process question.

The question asked by Justice O'Connor was whether you have to overrule Vlandis versus Kline to do that.

We certainly are asking the Court to address that due process question.

One way that we say to do it is, if you find a rational basis for the policy under equal protection, it is obviously rational under due process.

Unidentified Justice: Well, I understand that.

I understand that about the prospective validity of your policy, but how about the refund for that period that the Court has already held violated Vlandis against Kline?

Mr. Zarnoch: Your Honor, it would be... the policy has not changed in effect with respect to non-immigrant aliens.

I mean, non-immigrant aliens were denied before 1978 and after 1978.

If the policy was rational now, and in terms of its operation and effect, why wouldn't it have been rational since 1976?

Why wouldn't the due process conclusion of the Court, even for that particular period, fall by the wayside?

Unidentified Justice: Well, then, so you do say--

Mr. Zarnoch: I say you have to address the issue.

You just don't have to overrule Vlandis versus Kline to do it.

I think if you find a rational basis, you know, you have sustained the policy.

Unidentified Justice: --All right.

Mr. Zarnoch: We have also argued a number of grounds for getting around Vlandis versus Kline, but we do ask the Court, and we... as all 50 states do, to overrule Vlandis versus Kline, because we do think the case is really a dead letter in the law.

To turn to the supremacy clause for a moment, there are really two separate supremacy clause arguments.

One was basically premised upon an impermissible state attempt to regulate immigration, and the lower court held the policy invalid on that ground solely because it found an invidious discrimination under the equal protection clause.

No other basis was given.

So, as a practical matter, if we... if that theory prevails, we should be... if the Court finds it okay under equal protection, it should find the policy okay under the supremacy clause, under that aspect of the supremacy clause.

There is a second supremacy clause argument made here, and that was made as an alternate ground, and this was the one that was rejected by the lower court.

That argument is made that the University... the rationale of the University's in-state policy, that rationale somehow conflicts with the rationale of the international agreements conferring a tax advantage on the bank employees.

Now, the lower court rejected this purported class of rationales as too attenuated to amount to a supremacy clause violation, and we suggest that at least in this respect the lower court was right, that what the University's policy does is simply include G-4 aliens in a group of non-immigrant aliens who, for a particular reason, and it is not just, you know, this particular treaty tax exemption or a tax exemption flowing from an international agreement, for a variety of reasons do not contribute the way citizens and permanent resident aliens do to the cost of University education.

We don't pick out an international agreement or a treaty.

In fact, in some cases we don't even focus... you know, we don't focus in on the individual tax situation of anybody.

We simply drew a line, and the G-4 aliens are on the wrong side of the line for purposes of acquiring the in-state tuition.

Unidentified Justice: May I ask one other question?

Mr. Zarnoch: Sure.

Unidentified Justice: To what extent do you pursue the argument that you can treat these people differently?

Could you deny them, say, garbage collection services, or police protection, without charging them a special fee for it, say?

Mr. Zarnoch: Your Honor, I think in terms of the cost equalization rationale, it is particularly appropriate when you are talking about a university education that is funded by primarily tax, income tax remedies.

Unidentified Justice: So are you other state services.

Mr. Zarnoch: But... well, most of them are... for example, police protection is funded by local property tax.

The garbage collection would be, too.

There really is no disability, as I understand it, from any of the... any non-immigrants from contributing their full share of property taxes.

So, what I am suggesting is that the rationale, our rational basis that we are asserting here may not hold water if you are trying to justify that kind of restriction.

Unidentified Justice: You mean, because they pay property taxes--

Mr. Zarnoch: Yes.

Unidentified Justice: --as opposed to income taxes.

Mr. Zarnoch: Yes.

For example... yes.

That is right.

Unidentified Justice: Does your budget... Your University's budget is derived entirely from income tax, is it?

Mr. Zarnoch: Well, Your Honor, it is basically from three sources.

In terms of state dollars being pumped in, it is largely income tax.

Unidentified Justice: None of the property taxes go for that purpose?

Mr. Zarnoch: No.

Local property taxes pay for primary and secondary education.

State property taxes pay state bond issues.

So property taxes really aren't at issue.

Unidentified Justice: They also use federal funds.

Mr. Zarnoch: Yes, we certainly do use federal funds, but the primary source of the revenues of the state are still the income tax and the general funds in the treasury.

Unidentified Justice: Counsel, the class includes more than the G-4 aliens.

Mr. Zarnoch: That's true, Your Honor.

Unidentified Justice: And does the federal policy concerning non-liability for income tax for the G-4's extend to the other non-immigrants?

Mr. Zarnoch: Your Honor, in terms of being treated differently for income tax purposes, yes, the federal government treats most non-immigrants differently with respect to payment of foreign source income for... payment of tax on foreign source income.

The federal government doesn't tax them on that, and the state of Maryland doesn't... the state of Maryland doesn't either.

Unidentified Justice: So we should assume that everyone in the class under the federal tax structure would not be in--

Mr. Zarnoch: Well, there may be a few, and I am going to say it is not perfect, but it doesn't have to be perfect.

There may be a few classes of non-immigrants who, for example, are... don't have a tax exemption and may be classified as a resident alien for purposes of the federal income tax, which means they are treated the same.

A few might be in that category, but we suggest, judging the class by its general characteristics, only a few.

The majority of people don't.

Unidentified Justice: --Okay, and Maryland's primary concern is the fact that these people aren't contributing--

Mr. Zarnoch: To the cost--

Unidentified Justice: --state income taxes.

Mr. Zarnoch: --To the costs of the education.

Unidentified Justice: And does that mean that we do have some kind of a supremacy clause problem of some significance because the policies appear to be in opposition?

Mr. Zarnoch: Well, Your Honor, as I indicated before, that, you know, there are a few that, for example, don't have a tax break.

They simply may be classified as a resident alien for income tax purposes, but--

Unidentified Justice: Okay, but you have just told us to ignore that.

Mr. Zarnoch: --But they are still disqualified, because they are included in the broad class of non-immigrant aliens.

We don't evaluate the individual tax situation of non-immigrant aliens.

What we do is, we are including every member of that class.

You know, they are disadvantaged by the policy, without a focus in on the particular source of their tax break, be it state law, be it federal law, be it treaty, no matter where.

That is part and parcel of the general characteristics of non-immigrant aliens, and we suggest that having drawn the line there, we are not picking out, for example, a federal treaty problem or a federal tax benefit.

For example, I don't know if there is any law that requires the state of Maryland to exempt foreign source income from... the payment of taxes on foreign source income.

That federal law does not require a tax on that, but I don't know if there is any particular requirement that the states not tax that kind of income.

But in any event, the state doesn't tax it, and that is another distinguishing characteristic of a large number of members of the class.

Unidentified Justice: General, do you have any figure on what percentage of the costs tuition is?

Mr. Zarnoch: Well, I could give you some rough figures in terms of percentages.

Unidentified Justice: Is it in the record, or not?

Mr. Zarnoch: No, it is not.

It is not in the record.

But in terms of the general funds of the... roughly the University got about $160 million in a recent year.

In terms of... roughly $30 million comes in by way of tuition and fees, and that money is appropriated back to the University by our General Assembly each year.

Unidentified Justice: Do you think the total cost of... What about an undergraduate at the University of Maryland?

You must have some figure as to what your cost of educating an undergraduate for--

Mr. Zarnoch: No, I don't... I'm sorry.

I don't have that, Your Honor.

Unidentified Justice: --But there is a substantial subsidy, is there?

Mr. Zarnoch: Oh, yes, Your Honor.

I mean, as I said, in terms of tuition--

Unidentified Justice: How about for out-of-state?

Mr. Zarnoch: --Well--

Unidentified Justice: Out-of-state tuition?

Would out-of-state tuition almost, or not quite--

Mr. Zarnoch: --No, Your Honor.

Unidentified Justice: --or not even close?

Mr. Zarnoch: Absolutely not.

In terms of the tuition receipts by the University of Maryland, roughly $30 million.

In terms of general funds being pumped back into the University, $160 million, five times as much.

Unidentified Justice: Yes.

Mr. Zarnoch: It is clearly a subsidy, you know.

It is tax subsidized.

Unidentified Justice: What is the tuition differential for a resident and a non-resident?

Mr. Zarnoch: It is... it has gone up since the time of the figures stated in the Court's opinion.

It is now $900 a semester, is the differential.

Unidentified Justice: What are the two figures?

Mr. Zarnoch: The two figures, I believe, are roughly... well, in terms of yearly figures, $700 for resident and $2,500 for non-resident.

Unidentified Justice: $1,800 a year.

Mr. Zarnoch: $1,800 a year.

Unidentified Justice: What is your income tax rate in Maryland?

Mr. Zarnoch: The income tax rate is... it is 5 percent, roughly 5 percent over--

Unidentified Justice: So somebody earning $20,000 a year would pay $1,000 in taxes?

He wouldn't pay as much as the differential, would he?

Mr. Zarnoch: --Well, Your Honor, I think, you know, focusing in on non-immigrant aliens, and particularly the C-4's, for instance, you know, all the parents of the plaintiffs, for instance, here are professional employees of World Bank, making salaries well in excess of $20,000.

Even the record indicated the salaries were in the $30,000 and $40,000 range, even when this case was argued back in 1976.

So, you know, G-4's are a particularly appropriate class to contend that, you know, they are being disadvantaged with respect to an income tax contribution rationale, but, you know, the rationale goes a little further than simply contributions during the period in question.

For example, if you stay in the state for a period of time, for example, an alien with a tax exemption, or a non-immigrant alien with a tax exemption, you are likely to stay here for a number of years, you know, just beyond the four years that a student might be in college.

For example, the G-4 aliens here, many of them stick around until retirement age, having escaped income tax on their salaries for maybe 15, 20 years.

Unidentified Justice: Does the University derive income from the state sales tax?

Mr. Zarnoch: Yes, the University does derive income or funds from the sales... the state sales tax, but in terms of--

Unidentified Justice: What percentage of the state's budget comes from income taxes as compared with sales taxes?

Mr. Zarnoch: --Well, the... in terms of total, total revenues, the total revenue picture, about a quarter comes from income tax, half as much comes from the sales tax.

There is twice... there is twice as many income tax... as much income tax revenue as there are sales tax revenues.

The sales tax in fact is not even the second biggest item.

Federal funds are the second item in terms of the top draw on the budget.

Your Honor, if I may, I would like to turn to the Vlandis versus Kline question, unless there are any further questions on the other issues.

We have set forth a number of reasons why we think Vlandis should be overruled, and the foremost of which is whether the Vlandis versus Kline doctrine represents a separate analysis any more.

Typically, when a suit is brought challenging a state policy under the irrebuttable presumption doctrine, it also is challenged under an equal protection theory, and invariably lower courts, taking its key, I think, from both Salfi and Your Honors' opinion in Usery versus Turner Elkhorn Mining Company, have concluded that it doesn't matter if the state enactment is premised in the form of a presumption, as long as its operation and effect are permissible.

For example, if under equal protection there is a rational basis that supports it, we need look no further under due process, and the lower courts, the circuit courts have simply... they treat an equal protection issue first, and then automatically it is okay under due process.

So, the question is really, is there a separate analysis there any more.

Also, there is a real question as to whether a court should be inquiring, demanding more than a rational basis on... as apparently was the case in Vlandis versus Kline.

There is also a debate among the courts as to where the irrebuttable presumption doctrine belongs.

Is it equal protection?

Is it substantive due process?

Is it procedural due process?

And frankly, is not in sync with any of those particular theories.

And lastly, I think in terms of the... it really doesn't demand the rationality of a measure any more.

The way the doctrine is presently formulated, all you really need is to articulate some particular basis, an additional basis, more than one basis for your particular policy, and order them in a sufficient fashion, whether that is primary or secondary.

It doesn't demand, at least in the way it is presently formulated, that a policy be rational, and we suggest that is what the Court should be looking for, and that is really the only inquiry a court should engage in when the issue is whether a due process violation has occurred.

Unless there are any further questions, I would like to reserve the rest of my time for rebuttal.

Chief Justice Burger: Very well.

Mr. Bieke?

ORAL ARGUMENT OF JAMES R. BIEKE, ESQ., ON BEHALF OF THE RESPONDENTS

Mr. Bieke: Mr. Chief Justice, and may it please the Court, there can be no question that the University's policy establishes a classification based on alienage, for on its face it allows citizens and immigrant aliens who are domiciled in Maryland to obtain but it totally excludes all non-immigrant aliens from doing so even if they are likewise domiciled in Maryland, and it is equally clear that this policy, this classification treats unequally only the non-immigrants who can be and are domiciled in Maryland.

Contrary to what the Assistant Attorney General said, this is not at all non-immigrants.

This Court's opinion in the Flkins case held specifically that most non-immigrants, and it listed a number of the visa categories, were precluded by the terms of their visas under the federal law from establishing domicile in this country.

Obviously, these people are not discriminated against by the University's policy, because even if they were treated like citizens and immigrants, they would fail to qualify.

The only non-immigrants treated unequally by the policy are those such as G-4's and a few other categories who are capable of being domiciled in Maryland under state and federal law.

Unidentified Justice: Were the named parties to this case all G-4's?

Mr. Bieke: Yes, indeed, Your Honor.

Unidentified Justice: Was there any objection from either party when the district court certified a broader class than G-4?

Mr. Bieke: No, the class certified, Your Honor, consisted only of G-4's.

Unidentified Justice: So that the only issue we have before us then is G-4's?

Mr. Bieke: Yes, Your Honor.

In fact... but I was trying to make a different point.

That's true.

The only issue involved in this case is G-4's.

That's the class we represent, the only class certified by the district court.

And the--

Unidentified Justice: So you disagree with the Attorney General's characterization of the class.

Mr. Bieke: --Yes, Your Honor, and that would be... it is made clear by the fact that most non-immigrants aren't hurt by the policy.

All we are--

Unidentified Justice: Well, Mr. Bieke, I am not sure your colleague said the class before the Court.

He said the class to which the University's policy applies.

Mr. Bieke: --That's true.

Unidentified Justice: You don't disagree with him on that, do you?

Mr. Bieke: Your Honor--

Unidentified Justice: I mean, on its face, it applies to all non-immigrant aliens, whether they are discriminated against or not.

Mr. Bieke: --On its face, it applies to all non-immigrants, but all non-immigrants are not treated unequally by the policy.

Unidentified Justice: I said whether or not.

That's true.

Mr. Bieke: Right.

Unidentified Justice: Right.

Mr. Bieke: That is true.

The--

Unidentified Justice: Putting it a little differently, if you win this case, only a handful of people will get a benefit, namely, the G-4's and two or three others.

Is that right?

Mr. Bieke: --That's correct.

Unidentified Justice: The rest of this 497 will still be ineligible for the lower rate because they are not eligible to be domiciled?

Mr. Bieke: That's correct.

Unidentified Justice: Yes.

Mr. Bieke: Now, this--

Unidentified Justice: Can you tell us how many people, then, you say are in the category which will be affected by this Court's determination?

Mr. Bieke: --Mr. Zarnoch correctly said that in the years around 1978, 1979, there were around 70 G-4's at the University.

The only other non-immigrant categories that we believe are capable of establishing domicile in this country are E's, who are treaty traders, and I's, who are foreign media representatives.

There is no indication that... we don't know how many of those were at the University, but not very many.

Most of them were... are people who are students who come to this country solely to go to school, and this Court in Elkins made clear that those people cannot be domiciled in this country.

Unidentified Justice: So we are really dealing only with about 70 people?

Mr. Bieke: Yes, Your Honor.

Unidentified Justice: In some of the--

Mr. Bieke: Per year.

Unidentified Justice: --All right.

Some of the amicus briefs indicate that in fact the difference of the tuition is being paid by the companies that employ these people, and the students who are constituting the class are not out of pocket anything.

If that be the case, how do they have standing?

Mr. Bieke: That is not the case, Your Honor.

We of course represent G-4, all G-4 visa holders, and these are employees of different kinds of organizations, so it is a different question for different organizations.

For the Interamerican Development Bank, their policy is to reimburse their employees one-half the tuition and fees up to $3,500, so obviously if they pay a higher rate they pay half of the higher rate.

And for the World Bank, they do have a reimbursement policy that is in the Joint Appendix, but that policy was adopted after the district court issued its initial decision and stay, and for the purpose of... the period of the stay, for the purpose of this litigation.

At the time the class was certified, the G-4 people themselves had paid the difference, and so at the time the class was certified, they represented the class, and they had been harmed.

And there are a number of organizations, and we don't know... have no reason to believe that they have any policy of reimbursement, the other... the people for the other organizations.

Now, the University's policy here, as I said, treats the non-immigrants who are domiciled in Maryland differently from citizens and immigrants domiciled, because they are the only ones, the non-immigrants are the only ones who are excluded from in-state status without reference to their domicile.

This is a classification that is based on their alienage, or more specifically, on their immigration or visa status, which is something that has been set by Congress.

In fact, the University's main justification for this discriminatory treatment, which is that they are exempt from taxes on their salaries, is also something based on a federally granted right.

In our view, this discriminatory treatment violates both the equal protection clause and the supremacy clause.

For equal protection purposes, the classification made by the universities under the Nyquist case, one based on alienage because it is directed at aliens and harms only aliens, and we believe that this classification should be subject to the same strict scrutiny that the Court has applied to other classifications based on alienage.

The reason why strict scrutiny has been established as a protective measure is that aliens are a prime example of a discreet and insular minority who have no voice in the political process and may be discriminated against by the majority unless specially protected by the courts.

Unidentified Justice: How about welfare payments?

Would they be eligible for welfare?

Mr. Bieke: Yes, Your Honor, I believe they are.

Unidentified Justice: Medicare and Medicaid, all the--

Mr. Bieke: Medicare, there is a federal statute that precludes... that draws a distinction that excludes not only non-immigrants but some permanent resident aliens, some immigrants, and that was upheld in Mathews versus Diaz on the specific ground that the federal government has power to distinguish among aliens that the states don't have.

But the non-immigrants here, that is, the rationale of strict scrutiny that I said applies equally to non-immigrants living in this country, residing this country, as it does to immigrants.

The University would have you apply to this classification, which is concededly based on alienage and singles out a class of aliens for discriminatory treatment the same lenient rational basis standard that has been applied in the economic area to classifications which don't discriminate against any particular class that has been the object of heightened judicial solicitude, but that is inconsistent with the Court's whole history of concern for aliens, and also, I should say... I will get to this latter... with the principles under the supremacy clause.

Now, Mr. Zarnoch makes a point of the fact that this Court has sometimes in prior opinions referred to certain attributes of immigrant aliens.

Generally speaking, however, those references were made in the context of applying strict scrutiny, not in determining whether strict scrutiny should be applied, but in any case.

But in any case, the non-immigrants who are disadvantaged, the non-immigrants who are treated unequally by this policy, as I said, are those who are domiciled in the state, and these are not very different from immigrant aliens.

They live in the state for many years.

They must obey all their laws, all the state's laws, and I might say, incidentally, they do not have diplomatic immunity, as Mr. Zarnoch implied.

They are assimilated into their communities.

They participate in their communities, and they pay all taxes except those on which they have a specific exemption established by international agreement, over which they have no control, and these taxes include not only sales taxes and property taxes, but income taxes on al other income except those salaries.

If their spouses work, full income taxes on their spouses' salaries.

If they get any other income from investments and so on, they pay full income taxes on that.

These people have made the state their home.

That is the meaning of domicile.

They are not going to return to some foreign country some time.

They live here, and they intend to live here permanently.

And at least when the state is treating such a class of its own domiciliaries differently from its other domiciliaries, solely on the ground that they are a particular kind of alien, that classification should be subject to the same scrutiny that this Court has applied to classifications harming immigrant aliens.

Now, the University makes a great deal of the fact that these people don't pay the full range of taxes, but as I said, that is not a reason for lowering--

Unidentified Justice: --Counsel--

Mr. Bieke: --Sorry.

Unidentified Justice: --if we were to determine that the non-immigrant aliens were not entitled to strict scrutiny, would you concede that the Maryland policy would meet the rational basis test?

Mr. Bieke: No, Your Honor.

The... Even if the Court would decide that strict scrutiny did not apply, nevertheless there is no getting around the fact that this is a classification which singles out aliens for discriminatory treatment, and shouldn't be subject to the same rational basis test that has been applied to, say, social security classifications.

At least some form of heightened scrutiny should be required, and we don't think that could be met.

Unidentified Justice: No, but get back to my question.

Assume for purposes of answering this question only that we do not apply any kind of heightened scrutiny to this class.

Then how do you have your rational basis?

Mr. Bieke: Well, there is one other thing I have to say.

Unidentified Justice: And do you have to rely on Vlandis versus Kline to do that?

Mr. Bieke: No.

We can rely on the supremacy clause.

Even if the Court should decide--

Unidentified Justice: Well, that is a whole different--

Mr. Bieke: --It is a whole different thing.

Yes.

But it requires that there... when there is a classification, a discrimination against aliens who are lawfully admitted to this country when the state is imposing discriminatory burdens on them, the supremacy clause, too, requires something more than rational basis, but... and we have argued in our brief that even apart from all of that, even apart from any strict scrutiny or any heightened scrutiny, and apart from the supremacy clause, the classification is not rational.

Now, that is a hard argument, and we don't think we would have to reach it, because of all the reasons I gave for why the scrutiny should be stronger.

But still, it is not rational.

In fact, these people do pay all taxes except those on which they have the exemption.

They pay sales taxes, property taxes, and income taxes on any other income, and over the course of the years, then, they may have made substantial contributions to that state.

Unidentified Justice: --What if the federal government as a matter of statutory law provided that G-4's should not have to pay any federal or state taxes, and the University of Maryland accordingly adopted the policy it has?

Would you say that that policy couldn't survive rational scrutiny, rational basis?

Mr. Bieke: If the federal government's policy was, they didn't have to pay any taxes?

Unidentified Justice: Yes.

Mr. Bieke: Well, that would be harder for a rational basis.

It would be better for the supremacy clause.

Unidentified Justice: Yes.

I am just asking about rational basis.

Mr. Bieke: That would be a... it is not our case.

It would be a harder question.

But there is still the fact that the University does not apply this cost equalization tax payment justification to citizens and immigrants.

There is still that aspect of irrationality, and there are a number--

Unidentified Justice: Well, but they presumably pay some taxes.

Your people have a very good deal in that regard.

Mr. Bieke: --Not all of them.

There can be... there are a number of sources of state income that go to citizens or immigrants on which... which are exempt from state taxes.

For example, immigrant visa holders working for these same international organizations, and there are hundreds of them, are likewise exempt from taxes on their salaries, and yet they are entitled to in-state status upon a showing of domicile.

Unidentified Justice: Are the immigrant visa holders exempt by virtue of the place where they work?

Mr. Bieke: By virtue of the international agreements establishing the organizations for which they work.

That's right.

Unidentified Justice: Mr. Bieke, which... is the supremacy issue here?

It is, isn't it?

Mr. Bieke: Yes, indeed.

Unidentified Justice: Which... if you were going to win, which ground would you prefer?

Mr. Bieke: Your Honor, I think that they are both entirely sufficient to win.

Unidentified Justice: Yes, I think they may be sufficient, but there are certainly different consequences, I suppose.

Mr. Bieke: There are some different consequences.

Unidentified Justice: So I ask you again, which would you prefer?

Mr. Bieke: I think that I can only say that I--

Unidentified Justice: Which is better?

Which is best for your clients?

Mr. Bieke: --They both have exactly the same results.

Our clients who are... as I say, all we are seeking here is equal treatment with citizens and immigrants.

Unidentified Justice: Well, suppose we decide on the supremacy clause basis, and then Congress, instead of saying the aliens should be exempt from further taxes, say that, and furthermore, the states may charge non-immigrants out-of-state tuition?

Mr. Bieke: If Congress said that, then we would... the supremacy clause ground would be gone, of course.

Unidentified Justice: Yes, and so... but if we decide it on equal protection grounds, like you suggest, Congress couldn't say that.

Mr. Bieke: Congress could not say that, but Congress could say that they could no longer... they could reach the same result by saying that they could change the domicile point and say that we are now going to treat them just like most non-immigrants, say they can't be domiciled.

Unidentified Justice: Well, I know, but Congress couldn't... Congress then, they might say, get rid of the supremacy clause, but they couldn't get rid of the equal protection problem.

Mr. Bieke: Yes, they could, in the way I said.

The supremacy clause only requires that people be equally treated.

Most non-immigrants are not being treated unequally by this because they can't be domiciled here under federal law.

Congress could say that these non-immigrants--

Unidentified Justice: Well, that is--

Mr. Bieke: --could not be domiciled here under federal law either.

Unidentified Justice: --Yes.

Yes.

Mr. Bieke: They haven't done that, and they haven't done anything like what you suggest for supremacy clause.

Unidentified Justice: Yes.

Mr. Bieke: I think that both--

Unidentified Justice: Well, of course, there are 50 states in here.

Mr. Bieke: --Yes, there are.

Unidentified Justice: Fifty states, and this judgment is going to control not just the few handful of people that you suggest who live in Maryland, but all over the country, I suppose.

Mr. Bieke: This judgment is going to control only those non-immigrants who are capable--

Unidentified Justice: Yes, yes.

Mr. Bieke: --of being domiciled in this country--

Unidentified Justice: Yes, but there are more--

Mr. Bieke: --and there aren't very many of them.

There... most of the G-4's live in... around Washington and New York, because that is where the international organizations are.

There aren't a lot of people throughout the country and the states.

Unidentified Justice: --Well, there are going to be more than live in Maryland, though.

Mr. Bieke: Yes, that's true.

Unidentified Justice: Yes.

Mr. Bieke: Now, let me--

Unidentified Justice: This will embrace all of the UN personnel and the subsidiary agencies, will it not?

Mr. Bieke: --Yes.

Yes, Your Honor, and they live mostly around New York.

Now, let me address the supremacy clause issue.

Under this Court's decisions in the cases of Takahashi, Graham against Richardson, DeCanas against Bica, it is established that it is up to the federal government to decide the terms and conditions upon which aliens will be admitted to this country and will reside in this country, and once it has done so, the states may not impose additional discriminatory burdens on them... excuse me... not contemplated by Congress, and they especially may not do so on account of their immigration status assigned by Congress.

Here, Congress has assigned the various classes of immigrants and non-immigrants, and has decided on the restrictions applicable to them, and as this Court held in Flkins, Congress has deliberately decided that the G-4 visa holders and a few other categories are entitled to be domiciled in this country, unlike most non-immigrants.

In this situation, the states may not rely on their immigration status to impose 45 restrictions not imposed on other domiciliaries of the state.

To do that is to impose on their residents in this country discriminatory burdens not contemplated by Congress.

This may be justified, but only in the most exceptional circumstances, such as, for example, where the state is regulating in the area of traditional state sovereignty, defining qualifications for voting or for holding elective offices.

There that... there may be a good reason for what the state has done, but nothing like that is involved here.

Here, Congress has decided that these non-immigrants can be domiciled here, as a matter of federal immigration law.

And but for their status under the federal immigration law, they would be entitled to these benefits.

In this situation, the state cannot on account of their immigration status deny them the benefits that it grants to all other domiciliaries.

That is inconsistent with Congress's decision in admitting them.

That is an encroachment on the exclusive federal authority over immigration, and is in violation of the supremacy clause.

Unidentified Justice: I don't know that I follow that argument completely.

I mean, isn't the state entitled to take the factual situation which confronts it as 46 brought about by the Act of Congress and deal with that accordingly?

Mr. Bieke: Certainly there are situations in which the state may rely on the federal decision.

For example, here, the federal decision is that most categories of non-immigrants can't be domiciled in this country, and there is nothing wrong with the states relying on that to exclude them from in-state status, assuming that citizens and immigrants were treated on the basis of domicile, but here, the only difference between these non-immigrants and immigrants is their immigration status, and--

Unidentified Justice: Well, also the fact they don't pay state income tax, I take it.

Mr. Bieke: --Your Honor, that is true, but that is also based on a federally granted right.

Unidentified Justice: Right, and the state isn't trying to collect state income tax.

It is just saying that for people who don't pay state income tax, we are going to treat them differently than people who do.

That doesn't strike me as anything very arbitrary.

Mr. Bieke: That... well, it is not... it is not saying that completely.

That is, it is not applying that cost equalization justification to immigrants and citizens.

As I said, some immigrants and citizens are 47 exempt from taxes, and yet the University is allowing them to obtain in-state status upon a showing of domicile.

The real crucial difference between these people, non-immigrants domiciled in the state and immigrants domiciled in the state, and citizens, is their immigration, their visa status, and that, the University cannot rely on because it is imposing additional discriminatory burdens not contemplated by Congress.

But even if the University says no, that is not why we are treating them differently, we are treating them differently because they don't pay taxes, that is no good either.

That is a violation of the supremacy clause as well, because for most G-4's, those employed by the organizations listed in our Addendum A to our brief, they have been granted by the international agreements which have established them--

Unidentified Justice: What if Maryland were to conduct a lottery, and the only way you could get into the lottery was by filing a receipt for your income tax return last year, so that in effect the lottery was limited to people who paid Maryland income tax.

Now, these people obviously couldn't participate in the lottery.

Would you--

Mr. Bieke: --Most of them could if they... because most of them pay income tax, on other than their salary.

Unidentified Justice: --Well, take the example of those few who don't pay an income tax on their salary, or whose salary is their only income, so that they would be disqualified.

Would you say that the lottery violates the supremacy clause?

Mr. Bieke: Well, I don't know.

That would be an interesting question.

The principle... but the principle is... I would have to think about that for a minute.

Let me... The principle is that the state, even... there need not be a direct conflict between the language of the policy and the language of the international agreements.

It is established that the state may not penalize them on account of something granted by... an exemption granted by federal law, and I think they might have an argument in that case.

Certainly they have an argument here that the objective of the international agreements is that these people are supposed to have an income tax exemption, and that carries with it the implication that they are not to be penalized by the state, not to be subjected to burdens by the state on account of their federally granted income tax exemption.

Unidentified Justice: Mr. Bieke, until now, at least, this Court has not applied a supremacy clause analysis to cases involving aliens, has it?

Mr. Bieke: Oh, yes, Your Honor, in many cases, starting with--

Unidentified Justice: Relying on the supremacy ground, in your view?

Mr. Bieke: --The Graham against Richardson relied on both grounds.

The Takahashi case also both grounds.

Unidentified Justice: There is some language in it to that effect, but do you think we can really say they were based on that argument?

Mr. Bieke: Well, they were... certainly appeared to be independent grounds, and the DeCanas case, DeCanas against Bica, was a case that upheld a classification that harmed illegal aliens, but that case made clear the principles, and that was only a supremacy clause case, and said specifically that it is up to Congress to decide the conditions on which aliens will be admitted to this country, and that states may not impose additional discriminatory burdens not contemplated by Congress, and we believe that principle applies here.

Unidentified Justice: Has the Court applied, in your view, heightened scrutiny to cases of non-immigrant 50 aliens?

Mr. Bieke: No, the cases in fact that this Court has decided to date have all applied strict scrutiny, but none have involved only non-immigrants.

Unidentified Justice: Right.

Mr. Bieke: They have involved either all aliens or permanent resident aliens.

But as I said, these people are not very different from permanent resident aliens.

Unidentified Justice: I suppose your position would be the same with respect to a non-resident hunting license, for example.

Mr. Bieke: It would depend on--

Unidentified Justice: Suppose they charge $50 to go duck hunting in Maryland, but $100 for non-residents.

Mr. Bieke: --That would be okay, if they treated citizens and immigrants the same as non-immigrants.

Unidentified Justice: No, citizen, $50, your category, your class of people $100.

Mr. Bieke: Citizens of the United States resident in Virginia pay $50, and so do immigrants.

Non-immigrants resident of Virginia, even if domiciled there, pay $100.

I think that there would be a strong argument in that case that they would not be treating them equally.

It would depend on the justification in that case.

If it was that they didn't pay taxes, we would have a problem.

Now, there is a case--

Unidentified Justice: What if Maryland had a rule that people who don't pay the income tax shall pay a slightly higher property tax?

Mr. Bieke: --I think that would be penalizing them on account of something granted by the federal government.

Now, there is a good case not cited in our brief on this point, a case called Perez against Campbell.

It is in 402 of the United States Reports.

That case involved the Federal Bankruptcy Act, which allowed people to obtain full discharges in bankruptcy, and the Court, there held that it was a violation of the supremacy clause for the state to have a statute which required suspension of their driver's licenses for non-payment of judgments arising from auto accidents, even when there had been a discharge in bankruptcy, and the reason was that that penalized them on account of something granted by federal law.

Unidentified Justice: You mean, penalized them as compared with other people.

Mr. Bieke: Yes, indeed, penalized them as compared to other people.

Unidentified Justice: So you don't... if Maryland said, well, we will just start taxing these people on their foreign source income?

Mr. Bieke: That wouldn't be... that wouldn't be penalizing them if that was true of other people as well.

Unidentified Justice: Well, I know, but wouldn't... say they just, people who are not, who are exempt from federal income tax, we are going to start charging, taxing their foreign source income.

Mr. Bieke: I think that it would be... if they were being treated differently than citizens and immigrants, and on account of the fact that they had a federal tax exemption, then that would not be something that would be consistent with the federal tax exemption.

Congress--

Unidentified Justice: But if they taxed the foreign source income of all aliens.

Of course, they do tax foreign source income of citizens now, I suppose.

Mr. Bieke: --They do in most situations.

Unidentified Justice: Yes.

Yes.

But if they taxed the foreign source income of all aliens, you wouldn't have much of a beef.

Mr. Bieke: Well, they might have a classification there that would be treating all aliens differently, which we know is subject to strict 53 scrutiny.

But the--

Unidentified Justice: As compared to whom?

Mr. Bieke: --As compared to citizens.

Unidentified Justice: Well, they are getting a--

Mr. Bieke: If citizens were being taxed--

Unidentified Justice: --We are going to... well, citizens do pay taxes.

Mr. Bieke: --Well, then, they would not--

Unidentified Justice: On foreign source income.

Mr. Bieke: --Then we would have no beef.

Unidentified Justice: Yes.

Mr. Bieke: Now, it is not... we don't know exactly which ground the university ultimately relies on.

It appears to say that these G-4 visa holders domiciled in Maryland are treated differently from other domiciliaries because of their immigration status.

It not that it just appears to be so.

That is what the policy says.

The only difference between them is their immigration status, and that is something that is treating them differently on account of their visa status, which is assigned by Congress, and that they can't do.

They cannot impose discriminatory burdens on them on account of that.

And if their reliance is on the tax ground, the fact that they don't pay full taxes on the salaries, then that must fall, too, for the 54 same reason.

They are being penalized on account of their tax exemption.

Here, the University's discriminatory treatment of G-4 visa holders who are domiciled in Maryland is inconsistent with the federal judgment that they are entitled both to be domiciled in this country and to have a tax exemption.

All we are seeking, in other words, is equal treatment with citizens and immigrants, and the University's failure to provide that violates the equal protection clause and the supremacy clause.

Thank you.

ORAL ARGUMENT OF ROBERT A. ZARNOCH, ESQ., ON BEHALF OF THE PETITIONERS -- REBUTTAL

Mr. Zarnoch: Your Honor, I will just be very, very brief.

First--

Chief Justice Burger: You have four minutes remaining.

Mr. Zarnoch: --Four minutes, Your Honor?

Your Honor, in terms of the assertion that most spouses of G-4 aliens pay some tax, the record... the only record references to the actual payment of tax would show that two out of the three parents of the named plaintiffs do not have spouses earning income tax.

The record would rebut that contention.

Your Honor, in terms of the class affected, the question here that we are only dealing with a small number of non-immigrant aliens, first, diplomats, A visa holders, aren't any different than G visa holders.

There are 72 of them at the University of Maryland during the period in question.

So you would add another 72 on.

There are additional classes that really aren't terribly different than G-4's in terms of not having a federal disability.

Moreover, the question of whether any of the categories of non-immigrant aliens can be domiciled in Maryland is a question for the Maryland courts to decide, as this Court indicated itself in Elkins versus Moreno the first time this case was here.

The courts across the country differ widely on visa categories, whether they are able to acquire domicile in a jurisdiction for a particular purpose.

There is absolutely no consistency, no guarantee that the court of appeals wouldn't find every category of non-immigrant capable of being domiciled in the state of Maryland.

Moreover, the class struck down by the Fourth Circuit and by the lower court included all non-immigrant aliens.

If you judge the class--

Unidentified Justice: Well, but the part of the submission here is that... on the supremacy clause ground is that Maryland may not deny them domicile.

Mr. Zarnoch: --Your Honor, if all Maryland does is--

Unidentified Justice: I mean, isn't that their submission, part of it?

Mr. Zarnoch: --May not deny them domicile?

Unidentified Justice: Yes.

The federal government--

Mr. Zarnoch: Well--

Unidentified Justice: --The federal government says they may be domiciled in this country.

Mr. Zarnoch: --But in terms of their... their position is they can't be denied the benefit, rather than domicile.

But even if you assume all categories of non-immigrant aliens can be domiciled here, you know, we suggest that the cost equalization rationale cuts across that line.

We don't pick out G-4 aliens, their treaty benefits.

We focus on simply the status of being non-immigrant, and we think that is justifiable.

Thank you, Your Honor.

Unidentified Justice: May I ask one--

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Plyler v. Doe - Oral Argument

Fri, 09 Jan 2009 14:47:36 +0000

Case:

Plyler v. Doe

Media File:

80-1538_19811201-lq-argument.mp3

Related Transcript:

1981_80_1538_argument.xml

Transcript:

ORAL ARGUMENT OF RICHARD L. ARNETT, ESQ., ON BEHALF OF THE APPELLANTS

Chief Justice Burger: We will hear arguments first this morning in Number 80-1538, Plyer, Superintendent of School District, against Doe and the consolidated cases.

Counsel, you may proceed whenever you are ready.

Mr. Arnett: Mr. Chief Justice, and may it please the Court, the questions before this Court today may and indeed based on the last year's experience will dramatically affect the future of the state of Texas and some of its school districts.

Texas sits geographically right on top of the hub of Mexico's population, in contrast to California, where the bordering state of Mexico has a population... had a population of one million in 1970.

The four Mexican states bordering Texas had populations of six million.

It is approximately one-third as far to Brownsville from Mexico City as it is to San Diego.

When one considers the problem of familial migration into this country, it seems reasonably clear that Texas is indeed the state which will be most dramatically impacted by this type of illegal migration.

When one considers the fact that Mexico's population is doubling approximately every 20 years, and that approximately four and a half million children of school age are out of school in Mexico right now because of lack of adequate facilities, it doesn't take a great deal of imagination to understand the Texas legislature's concerns for the future.

With the federal government doing very little to control the problem other than to deny its largess to illegal aliens, and I use that term because it does describe the people that Texas seeks to exclude from its schools, persons who are illegally present in the country, but as I say, with the federal government doing very little, nothing at all realistically, to help the impacted school districts in providing a basic program of education to their residents, be them legal or illegal presently, the Texas legislature enacted Section 21031 of the Texas Education Code in 1975 to curtail the drain of the state's educational resources and those of its districts, which drain only promised to increase in the future.

Now, Section 21031 basically codifies two distinct provisions.

One denies state funding on the basis of the attendance of pupils who are not lawfully admitted into the state.

The other exempts from the requirement for tuition-free admission that is imposed upon the districts those children who are not lawfully admitted into the United States.

Those two provisions conceivably could differ in result in this case.

The latter, not requiring school districts to admit them, in essence leaves it at the discretion of local districts to review their circumstances.

Now, we have raised the issue, and it has been invited certainly by the decisions of this Court, the consistent language of the decisions of this Court, concerning whether illegal aliens are in fact protected by the equal protection clause of the Fourteenth Amendment.

Our concerns rest more with the manner of the application of the equal protection clause than they do the application alone.

Texas has no interest in legislating in an irrational manner.

However, Texas is very interested in having their legitimate interests recognized by this Court, and in the event that they are, we see no problems with that.

It largely... the application of the equal protection clause largely presents a policy issue.

We don't really have too much to add to what we have put in our brief on that point, and with the limited time we have here today, we would like to address the manner of any application, as well as the underlying state interests at issue here.

Unidentified Justice: Let me ask one question, counsel.

If the equal protection clause is not protective of undocumented aliens, could the state of Texas impose harsher criminal penalties upon them?

Mr. Arnett: Well, you may have Eighth Amendment problems, it would seem to me, Your Honor.

Certainly were the equal protection clause not applicable, and I might add that we have restricted our argument in that respect to governmental services; it seems to us that that is the one area which may do the most... may cause the most judicial interference with political decisions in this area.

Unidentified Justice: There can't be any question, can there, that an alien, documented or undocumented, brought before a criminal court is entitled to the same due process as any other person in the United States?

Mr. Arnett: No, Your Honor, it is not, and it may well be that the due process clause in that respect may be read to answer the problem that Justice Blackmun posed as well as that which is also posed by the Fifth Circuit.

But in addressing the application of the equal protection clause, the first thing I think we need to look at is the nature of the class at issue.

One of the intimations and accusations in this case that I would like to dispel immediately is that this statute embodies any racial animus.

This whole case originated in 1975, when a district on the border, Eagle Pass, which has a 95-percent Mexican American population, decided to enact a policy precluding illegal aliens from admission into their schools.

The Attorney General of Texas was asked for his opinion as to the legality of that.

The response was that under our statutes existing at that time, all residents of any classification, of any status had a right to go to school.

Within a month, a Brownsville legislature... legislator, and Brownsville has a 90-percent Mexican American student population, offered an amendment to a pending bill which resulted in Section 21031.

Brownsville and the Valley districts are the only districts to have filed amicus briefs in this case.

They have representatives here today.

They have also suffered a 700-percent increase in the last year in illegal alien enrollment.

The purpose of this statute is to protect the Mexican American population's education in Texas.

It is not to discriminate against them.

When one looks at the class, and indeed, when one looks at the entire area of equal protection as applied to illegal aliens, the first thing we see is the DeCanas case.

Now, admittedly, equal protection was not directly before the Court, but I think several commentators have noticed that the language of the court in talking about the state's interest as well as the rights of illegal aliens in that context are very easily transferrable into equal protection terms, and indeed, when one compares DeCanas with Truax versus Raich, it reaches entirely the opposite result.

Truax didn't even involve the total denial of employment.

DeCanas seemingly allows that.

At the same time that Truax was decided, the doctrine at that time was that the governments, the state governments could protect their resources from legal aliens.

That has been obviously substantially altered by the decisions of this Court, but the dichotomy between employment in Truax and the government resources in Truax would seem to make our case much stronger here than that of California in DeCanas.

In determining what class we are looking at, it is interesting to note that the trial court in Texas versus Certain Named and Unnamed Undocumented Alien Children defined the class to be all children who are or will be excluded from Texas schools.

He thus included in that class numerous, in fact, who knows how many... we feel that it may be a disastrous number in the future... children that lived... were currently and are currently living in Mexico.

The effect of the lower court's decision is that all they have to do is cross the border, and this is not a border like going through customs, when you come into the United States on an airplane.

This is a border that is very easily walked across, and all you have to do is walk in and you will have your rights.

Unidentified Justice: Mr. Arnett--

--You mean walk across the Rio Grande?

Mr. Arnett: Yes, Your Honor.

There are areas where the river is shallow enough that indeed people walk across the river.

Unidentified Justice: There are small places.

Mr. Arnett: Well, sir, if you stood there and watched, I understand that you can see quite a flow.

Indeed, the border is largely unregulated.

Unidentified Justice: But the river is there.

The river is the boundary.

Mr. Arnett: Yes, sir.

Unidentified Justice: And you have to cross the river.

Mr. Arnett: No question.

Unidentified Justice: General Arnett, if you are dealing with commuters, people who reside outside the district and come across just to go to school, couldn't you handle that problem by just saying you must be a resident of the district in order to attend the school?

Mr. Arnett: We do have that qualification.

Unidentified Justice: Well, then, you don't need it to deal with the problem of people who live in Mexico and come back and forth, do you?

Mr. Arnett: That's right.

The problem would be people moving into the United States.

Unidentified Justice: So you are really not trying to persuade us that it is a problem dealing with people who commute every day?

Mr. Arnett: No, Your Honor, although the problems in enforcing that... that provision of the code, which is 21031(d), are profound for the border districts, and certainly it aids in the enforcement of that regulation as well, these other sections that are at issue here, but we do have a statutory prohibition that technically covers that.

Our problems stem from the fact that all parties agree that about 90 percent of the illegal aliens in this country don't bring their families, but with Mexico so close to Texas, and with Mexico's situation as we see it deteriorating, we are very much afraid that cases like this involving the right particularly to education, which is... we agree wholeheartedly that education is extremely important, important to our residents as well, and we feel like that the trend may well be reversed in Texas, that in fact many more may bring their children in.

I think--

Unidentified Justice: Mr. Arnett, I would like to ask you, please, whether Texas interprets the statute as applying to exclude only students not capable of establishing domicile under Texas law.

Mr. Arnett: --That question somewhat is analogous to the question in Toll versus Moreno, and I think that one could take the Texas legislature's decision in this regard as being a judgment that one legally not present in the state is not entitled to establish a domicile.

Unidentified Justice: Is that Texas's interpretation of its statute?

Mr. Arnett: I don't believe that we have had that interpretation addressed by our courts, so for purposes of argument here, I am not really in a position to give the Court an authoritative construction of Texas law, because it hasn't been made by our courts.

Unidentified Justice: Assuming that the equal protection clause applies to these students, would you tell me how you would then analyze it, assuming a rational basis test were applied?

What is the permissible state objective?

Mr. Arnett: Well, there really is one overriding state objective, and that is the preservation of the educational resources of the state as well as those of the districts.

Certainly there are... the problem is localized within Texas.

Brownsville has an extremely much more difficult problem than El Paso does, due to the differing nature of the border city in Mexico.

As I say, Brownsville has had a 700-percent increase in one year.

Unidentified Justice: Do the undocumented aliens in Texas pay taxes, the property taxes, for example, that are used to support the schools?

Mr. Arnett: Well, there are various references in the record to that in our briefs.

Certainly they are subject... the property they live in is subject to taxation.

Now, whether they in fact add to the taxable resources of the school district, we don't think they do.

Unidentified Justice: Does Texas have an income tax, a state income tax?

Mr. Arnett: No, Your Honor.

Unidentified Justice: You are relying on property taxes and the ad valorem taxes?

Mr. Arnett: Sales taxes, but our sales tax exempts necessaries, so as I note in our brief, it really involves a great deal of questions upon which there is very little evidence in terms of trying to determine whether there is a... what the correlation is between taxes and benefits.

Concerning our interests, the one interest that Texas asserts here which we have predictably met with opposition on as to whether that is permissible is that as a subsidiary to protecting our resources, we would like to reduce the incentive for illegal immigration, particularly of families and of school aged children.

It has been said that we don't have a permissible interest in that regard.

It seems to me that the Court's language in Meyer versus Roe, that the state has legitimate demographic concerns about the rate of its population growth, and that such concerns are basic to the future of the state, dispels with that.

It also seems to me that the Court's opinion in Sosna versus Iowa, which talked about the interests of Iowa and not having an invasion for a divorce mill type of effect supports that.

Hines versus Davidowitz, citing Thomas Jefferson, to the effect that the states, whatever concerns the states alone was left to them; what concerns the nation as a whole was left to the nation.

In our case, this problem concerns Texas far disproportionately to any other state in the country.

We have two Senators in this nation.

We have not been able to get much done about it.

Unidentified Justice: General Arnett, this may be sort of a stupid question, but I have some trouble understanding the facts.

If you know who all the illegal alien children in the schools are, does the state take any steps to identify their parents and suggest to the federal authorities that they should be removed from the state?

Mr. Arnett: Your Honor, the testimony in this trial was that the federal authorities get vastly more references, vastly more complaints of illegal aliens than they are able to handle, and the purpose of--

Unidentified Justice: It seems to me that if you can identify 10,000 or 11,000 children who are going to school every day, and you know they are residents, it seems to me a particularly easy enforcement problem if you were desirous of getting them excluded, if you know who they are, and I presume you must, if you are going to throw them out of class.

Mr. Arnett: --Well, what you do... what we did do is require documentation for admission.

Unidentified Justice: I see.

Mr. Arnett: And we used those persons that came in after the court's order when we talk about the 10,000 figure, and incidentally, those 10,000 may well not have been here at the time of the court's order.

One month is plenty of time for a lot of people to cross the border.

As far as whether we could reasonably expect INS to deport them, we think not.

The evidence in this record is that INS gets complaints from citizens all the time that they don't follow, including addresses.

Unidentified Justice: But this is not citizens.

This is a state government.

Mr. Arnett: Your Honor--

Unidentified Justice: Isn't that your question?

This is the state government.

Yes, it is kind of a puzzling set of facts.

You mean INS just paid no attention to a state complaint?

Mr. Arnett: --Your Honor, INS apparently doesn't pay much... INS is so underfunded, it is not INS's problem.

Unidentified Justice: Well, does that mean that you assume... the other side argues this, and I didn't know what your position was... that these children will remain in the school district because it is just too much of an administrative burden to get them deported, so they are going to be part of the community anyway, and you would rather have them uneducated than educated?

Mr. Arnett: No, Your Honor, that is not what we feel.

We feel like it is clear that this statute being on the books prevents a substantial number of these children from coming in.

Houston has increased 60 percent in one year; as I have noted before, Brownsville 700 percent; another district it is 100 percent.

It is clear that children are coming in to take advantage of the education.

That is the problem.

The problem is not the kids that are here.

The problem is the future.

Unidentified Justice: I thought you said 90 percent of the illegal immigration are individuals who do not have children.

Mr. Arnett: No, they don't bring their families, Your Honor.

It is not that they don't have them.

They have them in Mexico.

Unidentified Justice: I see.

Mr. Arnett: About half of them are married.

Unidentified Justice: May I ask this question?

I understand you to say the problem was not the children who are already there.

I thought I read somewhere in the briefs that so many of these come and go.

I think I read somewhere that it was estimated that 90 percent of the illegals are not there permanently.

They just come and go.

What about that?

Mr. Arnett: That poses problems, Your Honor.

There is no question about it.

There are problems.

Don't get me wrong.

There are problems resulting from the children enrolled a month after the order, and Mr. Hardy will address some of those problems in the perspective of the school district.

But the real serious problem from the state's point of view is the ease with which people can cross the border and the incentive that this causes for further migration, and as we say, if the standard of review was that we had to prove that this offered an incentive, we can prove it now.

After a year, we can show the increase.

And the problem is one in looking toward the future.

We have to plan for a long ways in the future as a state, and it is not the 10,000 that are here that are... it was not the 182 that enrolled in Brownsville one month after the decision.

It is the 1,300, 1,500 that are there now that are causing serious problems.

That is my point.

Unidentified Justice: Mr. Arnett, returning to the questions with respect to whether the school district should assist the federal government in the deportation of these people, do I... I have the impression that your friends on the other side take the position that this is purely a federal matter, and the states and local districts have no jurisdiction, no responsibility for identifying deportable aliens.

Mr. Arnett: Well, in fact, Your Honor, if you accept the arguments of the other side, that we are infringing upon a fundamental right, or this is a suspect class, or that the state has no interest whatsoever in this matter, then how could a statute or a rule which required us to have the districts ask for documentation and turn them over to the INS be constitutional?

That statute would promote exactly the same interests that this statute promotes.

It would be a lot less effective.

Chief Justice Burger: Mr. Hardy?

ORAL ARGUMENT OF JOHN C. HARDY, ESQ., ON BEHALF OF THE APPELLANTS

Mr. Hardy: Mr. Chief Justice.

Unidentified Justice: Mr. Hardy, before you commence, what is the process for documentation?

The briefs are full of reference to undocumented aliens.

How does one become documented?

And who does it?

Mr. Hardy: Locally, within the Tyler Independent School District, where this case originated, in the Doe v. Tyler case, we had a local policy that was enacted by the school board to hopefully follow up to the state statute.

The state statute requiring... I am going to argue, hopefully, in a minute, on the residency-non-residency status, but the local policy was that if anyone that wanted to attend the Tyler Independent School District or the local school district on a tuition-free basis, all they had to show was legal residence within our district, then that could be done even if they could show any entitlement or that they were seeking entitlement to be admitted to this country legally, a letter to the Immigration and Naturalization Service that they were applying, any document, not that they had actually received that status, but they were at least attempting to receive that legal status.

In our case, I think it is important to note that every one of these students and their parents, they came across the border illegally.

They were illegal from the first time they walked across the river.

They did not overstay a green card or a work permit.

Unidentified Justice: If you say they are illegal, how could Texas determine that they are legal?

You say they are illegal when they come across, they stay there for six months or whatever, and you document them as being legal residents?

Mr. Hardy: Yes, if they have either authorization papers from the Immigration and Naturalization Service--

Unidentified Justice: They have to have something from the immigration authorities before you document them?

Mr. Hardy: --No, sir, they could have a birth certificate.

Unidentified Justice: From in the United States.

Mr. Hardy: From the United States.

Surely.

Unidentified Justice: So if they are still without evidence from the federal government or a birth certificate, they remain illegal and not eligible for the schools?

Mr. Hardy: That's correct.

Unidentified Justice: Well, if a parent has a green work card, does that satisfy it?

Mr. Hardy: No, sir.

It does not.

But my point--

Unidentified Justice: What is the evidence from INS that satisfies your rule?

Mr. Hardy: --If the people that have come across are residing here on a work permit, a permit that would allow--

Unidentified Justice: A work permit issued by whom?

Mr. Hardy: --INS.

Unidentified Justice: Right.

That is one.

Mr. Hardy: Yes.

Unidentified Justice: What are the others?

Mr. Hardy: Any legal status, any documentation.

We have I think it's an I-20 that it's called that the federal government has for a student permit to--

Unidentified Justice: Is that also issued by INS?

Mr. Hardy: --Yes.

Unidentified Justice: What is the green card?

Mr. Hardy: A green card is a work permit.

An orange card--

Unidentified Justice: Who issues that?

Mr. Hardy: --INS.

Unidentified Justice: Isn't that sufficient?

A green card is a commuter permit, isn't it?

Mr. Hardy: A green card is a commuter.

An orange card is a work permit.

Unidentified Justice: A green card is not sufficient?

Is that right?

If all you have is a green card, that is only a commuter card.

Mr. Hardy: No, sir, that is not sufficient.

That is basically a three-day pass that you are coming across into the country for a shopping trip or something of that nature.

Unidentified Justice: How about a work permit?

How about a work permit?

Mr. Hardy: If they have a work permit and they are residing in this country, that would allow them to attend the schools.

Unidentified Justice: Who are they?

You mean the parents?

Mr. Hardy: The parents' children.

If the parents--

Unidentified Justice: They may bring their children with them, if they have a work permit?

Mr. Hardy: --We allow them and would allow them with a work permit to have their children in the school free of charge.

I would like--

Unidentified Justice: Mr. Hardy, under Texas law, is it possible for an undocumented alien to become a legal domiciliary of Texas?

Mr. Hardy: --An illegal alien become a legal domiciliary?

I--

Unidentified Justice: To become a domiciliary?

Mr. Hardy: --I believe it is not.

And I will turn--

Unidentified Justice: Are there any Texas cases dealing with that question, do you know?

Mr. Hardy: --Justice O'Connor, if there are, I haven't found them, and I know of none.

Unidentified Justice: Well, certainly you can't become a legal resident of the United States without some evidence from the federal authorities.

Mr. Hardy: I agree.

Unidentified Justice: Isn't that right?

Mr. Hardy: That's correct.

Unidentified Justice: And so you are telling me that without some documentation it doesn't make any difference how long an undocumented child is present in Texas.

You do not recognize them as entitled to go to school or have the privileges of domiciliaries or residents.

Mr. Hardy: That's correct, because if they do not have legal resident status or domiciliary status legally, it is our argument and our position that they cannot attain the resident status requiring them to attend... or allowing them to attend school free of charge.

I think that the key issue in this point is the classification in the statute.

It is not alienage or citizenship; it is between a legal resident and a non-legal resident, or a residency statute and a non-residency statute.

The statute provides that non-resident citizens and non-resident aliens are both required to pay tuition.

The state classification was based upon a judgment that the state and the school district would provide a free education for those who are legal residents, and I submit to the Court that legal residents is more than mere presence within the boundaries.

The Court has continuously held, and I think that it is an appropriate holding, that in higher education branches, that a non-resident of the state can be charged a different tuition than a resident of the state, and we are talking about a resident within the country or a non-resident on legal status, and I think that that is a distinction that has to be to carry it out there.

Unidentified Justice: What do you make out of the United States position in this case.

The United States suggests that its immigration policy does not pre-empt some efforts of Texas to do what it is doing.

At least it suggests that this provision that is at issue here is not invalid because of federal pre-emption.

Do you understand that that is what their position is?

Mr. Hardy: Yes, that if we were to try... Texas does not have the right or authority... I think that we are pre-empted from making something along the lines of what is the legal... how they can come into the country.

Unidentified Justice: Do you make out of that that the United States is also suggesting that you could treat these illegal residents or these people who... you could treat them as legal residents?

Mr. Hardy: I don't think that we can treat them as legal residents.

Unidentified Justice: The United States says that you can do... at least you can do some things without worrying about the federal law.

Mr. Hardy: I disagree with that analogy.

I don't--

Unidentified Justice: Isn't it true that before the statute was passed you received federal funds based in part on the enrollment which included illegal, undocumented children?

Mr. Hardy: --Federal funds, locally our funds are broken down 2 percent federal funds, 40--

Unidentified Justice: Well, whatever the percentage, you did get some federal money which was more because of the larger enrollment attributable to these people, didn't you?

Mr. Hardy: --Yes.

Unidentified Justice: So it is pretty hard to say that the federal government has some rule against them being there when it actually paid you money because they were there.

Mr. Hardy: Well, I would think that you would have to go back and look at the fact that the federal government has a rule that it is against federal law to--

Unidentified Justice: For the family to be there.

Correct.

Mr. Hardy: --Or for them just to walk... to come into the country without some documentation.

Otherwise, the entire Immigration and Naturalization Service laws and the laws that have been upheld by this Court would have no merit.

Unidentified Justice: Does Texas permit illegal aliens to own real property?

Mr. Hardy: Yes.

I would question the word "permit".

Unidentified Justice: Well, do you recognize their titles when they come across and manage to remain undiscovered, or even if they are discovered, if nothing is done about them?

Suppose you say--

Mr. Hardy: Well, in our case--

Unidentified Justice: --Suppose you say to INS, here are a dozen illegal aliens, why don't you deport them and have them take their children with them?

And they say, sorry, we are too busy.

And those dozen people buy property.

And I suppose there are a good many illegal aliens who aren't destitute.

Mr. Hardy: --That's correct.

There are some in this case that own, you know, own property.

Unidentified Justice: Yes, they own a good deal of real estate.

You don't prevent them from doing that.

Mr. Hardy: Absolutely not.

Unidentified Justice: Although it is your law that... with respect to property, I suppose.

Do you give them driver's licenses?

Mr. Hardy: Some of them have driver's licenses.

Unidentified Justice: Can they lawfully obtain a driver's license from Texas?

In Texas.

Mr. Hardy: I do not know the answer to that.

Unidentified Justice: And they certainly can buy cars, though, can't they?

Mr. Hardy: Yes.

Unidentified Justice: Could Texas deny them fire protection?

Mr. Hardy: Deny them fire protection?

Unidentified Justice: Yes, sir.

F-i-r-e.

Mr. Hardy: Okay.

If their home is on fire, their home is going to be protected with the local fire services just--

Unidentified Justice: Could Texas pass a law and say they cannot be protected?

Mr. Hardy: --I don't believe so.

Unidentified Justice: Why not?

If they could do this, why couldn't they do that?

Mr. Hardy: Because... I am going to take the position that that is an entitlement of the... Justice Marshal, let me think a second.

You... that is... I don't know.

That is a tough question.

Unidentified Justice: Somebody's house is more important than his child.

Aren't they here at their peril?

Mr. Hardy: I am sorry?

Unidentified Justice: Aren't they here at their peril?

They take all the risks, no protection from the government, if they want to come here illegally?

Mr. Hardy: No.

I think that they are afforded all the due process procedures and the other problems that are attributable to that.

We are not talking about denying them all rights.

I am talking and attempting to talk about the resident and non-resident--

Unidentified Justice: You are talking about denying them all rights that every other similarly situated person has, such as fire protection, police protection, garbage collection, things like that.

You could take all those things away, it seems to me, under the state's argument.

Mr. Hardy: --I don't believe so.

That is not our position.

Unidentified Justice: Let me suggest this.

If a Virginian went to Texas to spend a year, but had no intention of becoming a domiciliary of Texas, would you allow him or her to attend a Texas public school for free?

Mr. Hardy: You are placing a one-year requirement on me?

Unidentified Justice: No, let's say six months.

Let's say six months.

Mr. Hardy: I know the court's rule on a one-year requirement.

Unidentified Justice: Let's say six months.

To make it realistic, let's say six months, for one term.

Would you allow the Virginian to go to the University of Texas tuition-free?

Mr. Hardy: I think we would have to look to the merits of that individual case, on the basis of, did they actually set up a legal residence here.

They have a right to set up a legal residence here.

Unidentified Justice: You don't have a one-year rule such as Virginia does, for example?

Mr. Hardy: No.

Unidentified Justice: Would you hazard a guess as to whether if one came to Virginia from Texas, and his house was on fire three days after he arrived, that Virginia would have any obligation to put the fire out?

Mr. Hardy: The difference here is that Texas has oil wells for its university and Virginia doesn't.

0 [Generallaughter.]

Unidentified Justice: Doesn't Texas have a non-resident tuition?

Mr. Hardy: Yes.

Unidentified Justice: What is a non-resident?

Mr. Hardy: It is the same--

Unidentified Justice: Somebody who... if somebody can acquire a residence in a day, whenever they come to the university, they become a resident immediately, don't they?

Mr. Hardy: --That's possible.

Unidentified Justice: Is it possible or not?

If there is a non-resident tuition, it means that it is not enough just to be there.

You are going to have to pay tuition as a non-resident.

Mr. Hardy: Yes, Your Honor.

If I might save the rest of my time for rebuttal.

Unidentified Justice: Mr. Hardy, before you sit down, please, how do you compare the children of the undocumented or illegal alien with the illegitimate children that the Court considered in Lalli?

The children themselves have a status over which they have no control, the children of these illegal aliens.

Does the Texas statute then punish these children for something over which they have absolutely no control?

Mr. Hardy: At a certain age, I would have to argue that, yes, that the children... I am realistic enough to know that they don't have either the know-how or the knowledge to go through the process at INS.

But I believe that one of the key issues is that the federal government has the law that provides that these people are illegal.

They have violated those laws.

They cannot attain a resident status.

They cannot become a legal resident or a local domiciliary of this country or the state of Texas, and getting away from the equal protection argument and going to the resident, non-resident status and the difference on the basis of tuition charging on that basis I think is appropriate.

Unidentified Justice: Well, if the Court were to find that equal protection clause applies to these children, then how do we deal with the question of these children with relation to children such as illegitimate children?

Do we have to apply then a heightened... standard if equal protection applies?

Mr. Hardy: With all due respect, may I ask that the state address that question in our rebuttal?

Thank you.

Unidentified Justice: Could I ask you a question before you sit down?

It is unfair to you, I suppose, but it demonstrates the interest of the Court.

We don't charge the question time to your time, counsel, so you can proceed on that theory.

Mr. Hardy: Thank you.

Unidentified Justice: I think that we tend to confuse the situation when we ask about university tuition charges.

Suppose we have Mr. Justice Powell's Virginian going down to the University of Texas as a visiting professor, but he has three elementary school children.

He is going to be there for six months.

Do you let them into your public schools?

Mr. Hardy: Absolutely.

Unidentified Justice: Do you charge them for it?

Mr. Hardy: No.

Unidentified Justice: Why not?

Mr. Hardy: The father and family has a legal right, a legal residence, and a legal domicile within our borders.

Unidentified Justice: Well, he doesn't intend to stay there.

Mr. Hardy: But I don't think that that is the test on the domicile of someone that has the right to be within the borders.

Unidentified Justice: You are not making the distinction between the American citizen from Virginia and the Mexican American... or the Mexican citizen.

Mr. Hardy: To me the analogy is such that a Virginian or someone from Washington, D. C., coming to the state of Texas has that right.

They are legal residents of this country, and they can be domiciled under the Constitution wherever they want to be.

They have a status that cannot be gained by the people coming across the border from Mexico without some--

Unidentified Justice: So if he were a visiting professor from the University of Mexico in Mexico City, you would have no problem?

Mr. Hardy: --No, because I believe that the professor would have the proper authority and the proper identification to be here legally.

He would be here either on a work permit, a temporary resident status, or some other indication that would allow him to be here in the country.

Under some color or title or interest in law, he would be coming here as an invitee.

Unidentified Justice: Does your argument come down to the proposition of whether the person is legally or illegally in the state?

Is it not that simple?

Mr. Hardy: I think that it is that simple, but for some reason I haven't been able to boil it down that simple, that the resident and the non-resident status, I believe, is the key issue before the Court.

Unidentified Justice: Well, the states under a long line of decisions are prohibited under all but the most narrow circumstances from prohibiting migration from one state to another within the United States, so that Texas can't fence off its borders to Louisianans or... whether they be aliens or citizens or anything else.

You are saying, aren't you, that the difference is that this is a foreign country.

Mr. Hardy: Absolutely.

I think that being a... we are talking about a federal law.

Being a U. S. citizen grants certain rights regarding your movement within this country of any of the 50 states.

Unidentified Justice: Mr. Hardy, one last question so far as I am concerned.

Mr. Hardy: Yes, sir.

Unidentified Justice: Could Texas pass a law denying admission to the schools of children of convicts?

How about escaped convicts?

Mr. Hardy: I am sure they could pass a law.

I don't know--

Unidentified Justice: Would it be constitutional?

Mr. Hardy: --No, it would not.

I don't see a rational basis.

You are talking about all kinds of constitutional problems.

Unidentified Justice: We are dealing with children.

I mean here is a child that is the son of a murderer, but he can go to school, but the child that is the son of an unfortunate alien cannot?

Mr. Hardy: Basically--

Unidentified Justice: Who even pays his taxes.

The aliens, you know, they pay taxes, too.

Mr. Hardy: --I don't want to move too far... I can answer that question, but one thing that would concern me, I realize it is only a federal misdemeanor crime--

Unidentified Justice: Isn't your point the alien point only?

Isn't that it?

Mr. Hardy: --I think that, yes, sir, that is one of the main points.

Unidentified Justice: Very well.

Mr. Hardy: Thank you.

Chief Justice Burger: Mr. Schey?

ORAL ARGUMENT OF PETER A. SCHEY, ESQ., ON BEHALF OF THE APPELLEES

Mr. Schey: Mr. Chief Justice, and may it please the Court, I would like to follow up on some of the issues that the Court has already raised, and perhaps also clarify some factual questions.

Firstly, the state of Texas seems to argue that it is in a highly unique situation, and they downplay the importance of this problem to states like California, et cetera.

This Court should note that it is a matter of public record... Immigration and Naturalization Service keeps statistics on these kinds of matters... that in fact the state of California has a much larger non-citizen community than does the state of Texas.

Unidentified Justice: I have great problems with who has got accurate figures as to aliens.

I mean, do aliens register?

No.

Mr. Schey: This is a difficult--

Unidentified Justice: Are they known?

No.

What is this, a guess?

Mr. Schey: --It is a difficult figure to measure.

However, according to, Number One, apprehension statistics, which are gathered by the Immigration Service, and Number Two, numerous, in excess of hundreds of demographic studies which have been conducted both by the Department of Labor, the Department of Justice, the Department of State, they are able to ascertain where the majority of people are moving to, where the majority of people are living, where the majority of people are paying taxes, et cetera.

Unidentified Justice: Well, don't most Texas school districts, when you come for your kindergarten or first grade or whatever it is, ask you to fill out a simple form asking where you were born and what country you are a citizen of?

Mr. Schey: Yes, they do, and contrary to the position taken by counsel for Texas, the District Court specifically noted that those kinds of questions, the District Court opinion at Page 574, that those kinds of questions to produce proof of legal citizenship in this country are directly targeted against Spanish surnamed students in the schools.

Unidentified Justice: Well, you are not arguing in the District Court now.

This is the Supreme Court.

Mr. Schey: I understand that, Your Honor, but just as a finding of fact and in terms of what the proof was, I merely raise it for that reason.

I think it is important to note that not only did the state of Texas seek federal funding for both bilingual and migrant education prior to 1975, when they enacted this statute, but they have continued to do it since 1975.

In fact, the unequivocal testimony and conceded in their reply brief is that to this day they send out so-called migrant recruiters, who go out into the Mexican communities, not just by counting these people for purposes of the census count, but they actually send out what they call migrant recruiters into the Mexican communities, where they knock on doors, they go to the... they knock on residential homes, and they recruit undocumented children, which means they fill out little pieces of paper which they then send to the federal government, and pursuing this way, they not only gain a windfall by taxing the parents of these children and then not educating the children, but they gain a further windfall by submitting these pieces of paper to the federal government and by getting $250 million per year.

One quarter of the total national allocation for migrant and bilingual education goes to the state of Texas.

Unidentified Justice: Is that true of the Tyler School District?

Mr. Schey: That is true of all the school districts.

Unidentified Justice: That isn't a border--

Mr. Schey: That is true of all the school districts in the state of Texas.

Unidentified Justice: --Are you suggesting they get these slips filled out and use them to get federal funds but do not admit those children?

Mr. Schey: Precisely.

That is the finding of the District Court.

There are three or four witnesses who testified to that, including the people themselves who are going out--

Unidentified Justice: And that is true in the school district or districts involved here?

Mr. Schey: --That is correct.

Including... people testified in our trial who went out and were knocking on these doors to fill out these applications.

Some little church set up a little school where they had maybe 50 undocumented children in one big room, and these recruiters would come around and fill out little pieces of paper.

Unidentified Justice: What do you mean by recruiters?

Mr. Schey: That is just what they call them.

They call them migrant recruiters.

They are employees of the state--

Unidentified Justice: Recruiters for what?

Mr. Schey: --Excuse me?

Unidentified Justice: Recruiters for what?

Mr. Schey: They are simply recruiting these little pieces of paper, is what they are really doing.

That is the title given to them by the state of Texas.

They go out and they complete little forms which measure the total number of migrant children and the total number of children needing bilingual education in the state.

They submit this to the federal government, and the state of Texas alone ends up with one-quarter of the national federal moneys.

Unidentified Justice: Was there testimony that any of these recruiters were from the Tyler School District?

Mr. Schey: I am not sure if there was.

We had about five or six different school districts that were involved in the consolidated case.

I think that the particular recruiter who testified in our case was from the Dallas Independent School District, and we called that person, but also a statewide official testified from the Texas Education Agency.

Unidentified Justice: Dallas is a considerable distance from Tyler.

Mr. Schey: I am sorry?

Unidentified Justice: Dallas is a considerable distance from Tyler.

There must be several school districts in between.

Mr. Schey: That's correct, but... that's correct, but this is a state program, and what I am saying is that a statewide official testified that this was happening.

Unidentified Justice: But I mean there must be several school districts in between.

Mr. Schey: That's correct, and it apparently is happening in every school district in between, because it is a statewide program.

It is the Texas Education Agency that is doing this.

I would also like to point out that the residency question has raised many, many questions here.

The state has a residency law, as they have pointed out.

That residency law worked fine.

That residency law worked until 1975.

Under that residency law, people who attempted to just come across the border solely for the purpose of going to school, there is a special provision within their residency law that prevents people from simply coming across the border for the sole purpose of going to school, and a federal challenge to that statute was just completed in the Fifth Circuit, and that statute was upheld, so that a child cannot... the name of the case is Arredondo versus Brockette, and there is a petition for cert pending.

So, children cannot simply willy-nilly come into the school, stay there for a few days, solely for the purpose, leave their parents behind, and attend school in Texas.

The state of Texas defines undocumented people as residents for numerous purposes, trusts, wills, some criminal proceedings, for the payment of property taxes, so they have had no trouble... neither has the federal government, for that matter, had trouble defining people who are in a questionable immigration status, not a lawful, permanent status with the green card.

Unidentified Justice: I am having difficulty seeing what your observations have to do with this case.

The issue before the Court is whether a person illegally in the state of Texas and in the United States is... must be granted these services.

What they do in these other areas has nothing to do with this case.

Mr. Schey: Well, Your Honor, the problem with that characterization of the issue of the case, which is the way the state of Texas characterizes it--

Unidentified Justice: Well, how would you characterize it?

Mr. Schey: --illegal aliens, the problem with that is that that is a term, that is a term that you can certainly read every day of the week on the front page of the Washington Post.

It is not a term that you will find on any page of the Immigration and Nationality Act.

In other words, the problem is, and this Court addressed fully this problem in DeCanas versus Bica... let me just explain.

In DeCanas versus Bica, the state of California didn't beat the federal government to the punch.

The state of California only excluded from employment those people who the federal government had already determined could not work in the state, and even with that this Court was not satisfied, and remanded the case for a finding of potential conflict with federal law.

But here, you have a statute that every district court judge that has looked at it carefully and that has examined the Immigration and Nationality Act, that the state is going to incorporate a federal concept.

They have to do it somewhat carefully.

That is the notion of pre-emption.

And it also ties into the rationality of the statute.

Who precisely are they keeping out of school?

Well, in this particular case they keep out of school "illegal aliens".

Well, that term isn't used anywhere in the Immigration or Nationality Act.

Under the Immigration and Nationality Act, the legality of a person's presence in this country is measured against deportation statutes.

The statute says you cannot go to school if you did not enter the country legally, but there are thousands upon thousands of children who did not enter the country legally, yet they are entitled to remain in the United States.

There are numerous statutes, there are numerous regulations, and these are all covered in our brief, there are numerous policies, there are operation instructions which allow people to remain here even though they did not enter "legally" as the District Court held.

Upon looking at this carefully, this particular statute, and its implementation, has been a monument to ambiguity.

They really don't know who they are keeping out of school.

Let me give you one example.

We had a witness testify in our case, not a plaintiff... and none of our plaintiffs are under order of deportation; they all entered illegally, but every single one of them is documentable under federal immigration laws... aside from the plaintiffs, we had a witness testify.

This witness entered the United States at the age of four months.

Her father is a United States citizen born in Texas.

Her mother is a lawful permanent resident.

She has been in the United States for nine years.

She has attended school in two states.

This also gets to your question, Justice Rehnquist, about putting up a wall between other states.

She didn't come to Texas from Mexico.

She came to Texas from, I believe, Missouri, or New Jersey, where she attended school for two years.

This child will never be deportable from this country.

Maybe the New York Times would call her an illegal alien, but no immigration judge would ever call her an illegal alien.

No court would ever authorize her deportation.

Unidentified Justice: You refer to her as documentable.

What does that mean?

Mr. Schey: That means, Your Honor, that when she gathers the necessary documents, when she gathers her mother's birth certificate... her mother was born in the Yucatan, and she is represented by an immigration counsel, and her immigration counsel testified that he had been working for two years trying to get the mother's birth certificate from the Yucatan.

Then they had to get the father's birth certificate from Texas.

When they finally gather all that preliminary documentation, they can go down to the Immigration Service and begin the process of documenting that child.

We had the ex-commissioner--

Unidentified Justice: Had this been done at the time of trial?

Mr. Schey: --They were in the... for two years they had been in the process of gathering the preliminary documentation.

Now, once they go down to the Immigration Service, the Immigration Service doesn't do anything.

They have a thousand people show up every morning filing these kinds of applications.

They will only give you the kind of letter that counsel for the state of Texas keeps talking about.

Well, we will let these children in once they get a letter saying they are legally here.

The Immigration Service doesn't give out those kind of letters.

What they will do is, once they have processed the child's documentation, they will give that child a green card, or they may even decide that this particular witness is a derivative citizen, and they will then give her citizenship papers.

The ex-commissioner of the Immigration and Naturalization Service testified in our trial.

That process can take anywhere from two to seven years, given current backlogs.

He testified and an immigration judge testified subsequent to this little child testifying that the chances of this child ever being deported were simply zero.

So, we can say, well, who does this case involve?

Doesn't it simply involve legal versus illegal aliens?

Unfortunately, it is not that simple.

Here is a little child who had been for two years in a row, she had gone and tried to enroll in the Texas public schools.

She was not allowed to enroll, even though she had an immigration counselor go down to the school with her.

They wouldn't let her enroll.

She is the child of a U. S. citizen.

This immigration counselor testified he had approximately 200 open cases just like hers in Houston alone.

Children of United States citizens who could not attend the public schools in the state of Texas.

Unidentified Justice: Your time is running.

Isn't your basic position that in any event, however here, even though admitted illegally, these children are persons under the Fourteenth Amendment, entitled to protection of the equal protection clause, and that that has been denied them, and that this statute doesn't satisfy whatever the standard may be of state interest?

Isn't that your position?

Mr. Schey: That is our basic position.

Unidentified Justice: Well, are you going to argue it?

I haven't heard a word on that.

Mr. Schey: That is our basic position.

Our basic position is that regardless of a child's deportability or non-deportability, in fact, none of these children have been established to be deportable, the state has not established any rational basis for excluding these children from the Texas schools.

Unidentified Justice: Mr. Schey, would you concede that it would be possible, assuming the equal protection clause applied, that it would be possible for a state to provide its public school education only to domiciliaries of the state.

Mr. Schey: Yes, and that is precisely what happened in Texas until 1975.

In 1975, let us assume that a child--

Unidentified Justice: All right.

You would concede that that is possible.

Mr. Schey: --I think it is possible.

In other words--

Unidentified Justice: All right.

Can a child of an alien who has no authority to be in the United States of any kind, and the child is not born here, can that child become a domiciliary?

Mr. Schey: --Yes, and I believe Texas law provides for that.

Texas--

Unidentified Justice: Under Texas law.

Mr. Schey: --Under Texas law.

Unidentified Justice: How?

Mr. Schey: The Attorney General of Texas wrote a memorandum, which is in evidence in our trial, to that effect in 1975, and counsel has indicated it was in response to that memo, partly in response to that memo, that they enacted this statute.

In other words, I think that is essentially a matter of state law.

Unidentified Justice: Could a state legitimately have laws that would prevent such a person from becoming a domiciliary of the state?

Mr. Schey: I would, as a constitutional matter, I think that that is conceivable.

I think that a state law which was carefully tailored to track federal immigration laws and policies as opposed to this law where they conceded at trial they hadn't even been in touch with the immigration service for five years, to update themselves on policy, but conceivably if they were to carefully track immigration laws, regulations, and policies, and let me give you an example that I could conceive of.

A child is under a final non-appealable order of deportation.

The federal government has made a judgment on that child or that child's parents' ability to reside in this country.

I could... I am not suggesting that from a... I am not saying that that would be wise legislation, but I think conceivably it would be rational legislation.

That is what California has done.

California has a welfare and institutions code, 11-104, Which--

Unidentified Justice: You are now getting into your colleague's time, counsel.

Mr. Schey: --Thank you very much.

Chief Justice Burger: Mr. Roos?

ORAL ARGUMENT OF PETER D. ROOS, ESQ., ON BEHALF OF THE APPELLEES

Mr. Roos: Mr. Chief Justice, Members of the Court, as Mr. Schey has articulated, it is our view that the nub of this case is that undocumented children are similarly situated to their permanent resident and citizen classmates.

I would like to highlight some of those facts, and then get into the legal discussion that the Chief Justice asked about concerning... and Justice Brennan, because the issues are on the table.

With respect to the residency situation, I think it is highlighted by the fact that the plaintiffs in the Doe trial have been here for a number of years.

Indeed, the Doe family has been here since 1964.

They own property in Tyler.

They pay taxes on that property.

Their children attended schools for five or six years before they were excluded from those schools.

Unidentified Justice: But they are not legal residents or legally authorized aliens in this country?

Mr. Roos: They are unlawful aliens in this country, they came to this country unlawfully, but they have been here for 15 years.

They have paid taxes.

Their educational needs are the same as other children.

Indeed, these children... there is a lot of discussion in the briefs about the unique educational needs of undocumented children.

Indeed, undocumented children are like other children.

Some, like the Doe children, have been here for 15 years, have no English language problems, have no particular problems whatsoever.

Others are new immigrants, and as the testimony shows, like new immigrants, like all new immigrants, they may have language needs, may have various other needs, but indeed, to fence out a class of undocumented children is to fence out a class of children.

Unidentified Justice: What is your explanation for the parents' continued stay in the country unmolested by the federal government?

Mr. Roos: The testimony in both the Doe trials and in the other trial was that indeed the Immigration and Naturalization Service has very limited resources.

They do not go after families except in a rare instance.

That is in the record.

The district--

Unidentified Justice: Are you suggesting that there is a tacit or unexpressed federal policy that these people should remain in the country undisturbed?

Mr. Roos: --I think the one--

Unidentified Justice: Is there something in the record to support that?

Mr. Roos: --There certainly is something in the record.

Unidentified Justice: Is there any finding by the courts or not?

Mr. Roos: The... yes, in the In Re Alien Children case there was such a finding.

Unidentified Justice: In what case?

Mr. Roos: We have two consolidated cases that--

Unidentified Justice: Just tell me the number.

Mr. Roos: --The In Re Alien Children number is 1934.

Unidentified Justice: 1934?

Mr. Roos: 1934, Your Honor, and that finding is based upon testimony of Leon L. Castillo.

Unidentified Justice: What is the finding?

Mr. Roos: The finding is that there is a de facto amnesty policy in the United States.

Unidentified Justice: So they are de facto legally resident in the United States?

Mr. Roos: That is correct, Your Honor.

Unidentified Justice: You think that is the finding?

Mr. Roos: Yes, and that was the testimony of Mr. Castillo's.

That is not the official policy, but that is the de facto policy.

When you have--

Unidentified Justice: But can any person who is here in violation of an Act of Congress be a de facto legal resident if the Act of Congress says he is not a legal resident?

Mr. Roos: --I suppose without getting into... I think when the term was used by the former commissioner of the Immigration and Naturalization Service, he was not using it as a term of art, he was using it to describe the situation.

These children are here.

They are going to remain here.

And that testimony was repeatedly... repeatedly repeated by his subordinates, the director of the Immigration and Naturaliation Service in Dallas and the director in Houston, that indeed they do not find families.

Families generally are not reported to the Immigration and Naturalization Service, and thus in fact will remain here.

Mr. Castillo also in making the statement observed that, as others observed in the record, that indeed there are something like 250 INS border patrol agents for 2,000 20 miles of Texas border, a number that is substantially fewer than the number of police in Dallas, Texas.

Those statistics, I think, tell us something about the commitment to manning the border, and certainly tell us the likelihood of these children ever being identified and deported.

Unidentified Justice: May I ask you, would it be contrary to federal law if state authorities when they found aliens who were illegally in the country to escort them to the border and tell them to go home?

Is that contrary to federal law?

Mr. Roos: I believe it would, Your Honor, under--

Unidentified Justice: Well, is there some case that says that?

Mr. Roos: --Well, Hines versus Davidowitz, and the line of cases under pre-emption.

Those cases make clear that regulating the ebb and flow of a national border is exclusively a federal--

Unidentified Justice: Of course, that was a state law.

That was a state law.

But suppose just as a self-help matter, the state escorted people to the border.

Do you think that is contrary to... they would have no authority to do that?

Mr. Roos: --I would certainly argue that they would not, and the policy reasons that underline Hines and those cases would militate against permitting such a policy.

Unidentified Justice: What about a posse comitatus, where a judge is theoretically, he may have difficulty doing it, but he is entitled to call upon bystanders to enforce an order of a court.

Wouldn't the people escorting these people to the border be much like a posse comitatus?

They are not officially endowed with status, but they are helping to enforce a federal statute?

Mr. Roos: I would think, Your Honor, if there were an express policy of the federal government permitting states to engage in this sort of activity, that the policy implications of Hines and other cases would not be... would not be implicated, but absent essentially a deputizing of state officials--

Unidentified Justice: Well, what about DeCanas?

Mr. Roos: --What about?

Unidentified Justice: What about our employment case?

Mr. Roos: DeCanas, Your Honor.

I suppose it is notable for purposes of this case that of course DeCanas was not an equal protection case.

Unidentified Justice: Well, I was Just talking pre-emption.

That is all you were talking just a moment ago.

Mr. Roos: Yes.

Well, as I read DeCanas, it allows states to enact laws that have purposes other than regulating the border, and if those purposes have--

Unidentified Justice: What if the purpose is to deter coming to this country?

What about DeCanas?

Mr. Roos: --Your Honor, we believe that such a purpose ought to be declared impermissible under the equal protection clause, putting aside any implications it may have under pre-emption, that under this Court's rulings, that for a state to go about regulating the border, to have as a--

Unidentified Justice: So you think if the state of Texas passed a law that said aliens illegally in the country may not be employed, that it would be unconstitutional?

Mr. Roos: --Your Honor, we have given that matter considerable thought.

Unidentified Justice: I would think you would.

Mr. Roos: It seems to us that this Court's alienage decisions, equal protection decisions have always kept one eye on what the federal government has done, and in this particular area, when we are talking about employment, the federal government has essentially prohibited the employment of undocumented aliens.

Now, it is our belief that indeed, that not only is this legislation irrational, but indeed ought to be measured under a compelling state interest test.

Unidentified Justice: But suppose it isn't.

Mr. Roos: Even supposing it isn't, Your Honor, we believe that where there is an express federal purpose, such as barring undocumented people from work, that if a state passes a law to essentially implement that express federal purpose, then this Court ought to look at that with the deference it gives to Congressional--

Unidentified Justice: Well, the federal government has a law against illegally entering the country, a criminally law, illegally entering the country.

And they budget a lot of money to keep people out.

Now, a state says, we would like to held the federal government do that, just like... just in the same way you said they could supplement the federal with respect to employment.

Mr. Roos: --First, I suppose there are two level of response, Your Honor.

The first level is that--

Unidentified Justice: Mr. Roos, why don't you use the Fourteenth Amendment in one of your responses?

Well, I am asking him about pre-emption.

I am not asking about the Fourteenth Amendment--

--I haven't heard the Fourteenth Amendment or whether or not this is a person yet, and this is about five minutes from the end of the argument.

Mr. Roos: --I will address that.

Unidentified Justice: Two minutes.

Two minutes.

Mr. Roos: Yes, Your Honor.

Unidentified Justice: I think some time we ought to get an argument on whether or not these children are persons within the Fourteenth Amendment.

Mr. Roos: Your Honor, if you would address your question again.

Unidentified Justice: You are on your own.

0 [Generallaughter.]

Mr. Roos: Let me address Justice Marshal's question briefly.

It obviously is a central--

Unidentified Justice: It is not mine.

I bet you even money some others are interested in that point.

Mr. Roos: --The equal protection clause speaks in terms of coverage of persons, and it is to be contrasted historically with the clause that immediately precedes the equal protection and due process clause, which grants privileges and immunities to citizens.

This Court has looked to the due process and equal protection clause, or to the due process clause and have said that persons are undocumented... include undocumented persons, because they are indeed persons.

The legislative history which we have set forth in our brief tells us really two things.

It first of all tells us that the primary framers of the Fourteenth Amendment clearly thought of, at least in terms of coverage, of the due process clause and the equal protection clause as protecting the same group of people.

In our brief, we cite to Representative Bingham, who was commonly acknowledged to be the author of Section One of the Fourteenth Amendment, and he spoke of the due process and equal protection clauses alike as protecting the citizen and the stranger.

Unidentified Justice: Do you think Representative Bingham's comments throughout those debates were consistent with one another?

Mr. Roos: Were--

Unidentified Justice: Consistent with one another?

Mr. Roos: --Certainly with respect to coverage.

We have found, and there is not cited in any opposing brief, and there are, as the Court is aware, any number of opposing briefs--

Unidentified Justice: Well, there is the Congressional vote, too.

Mr. Roos: --Certainly.

We found nothing that would indicate that insofar as coverage is concerned, that Representative Bingham said anything inconsistent with that.

Likewise, on the floor of the Senate, the floor manager was Senator Howard, and Senator Howard spoke of the two clauses in terms of coverage in the same words, and spoke of them together, and when he spoke of them, he spoke of them as protecting whomever should be within the country.

So, I believe on the basis of the clear language of those provisions, the history, and indeed the logic which has been pointed out earlier, absent the right of coverage under the equal protection clause, the state could do, could treat undocumented people arbitrarily and irrationally.

What would be the limitations upon a state should there not be the minimal protection of the equal protection clause?

So, as well as the clear language and history of that clause, we believe that logic compels a similar finding.

Unidentified Justice: If Texas is giving... is required to give free bilingual education to all the illegals who want to come to the United States from Mexico, which they apparently can do almost without any limit or hindrance, does that tend to encourage or discourage the continuance of this illegal migration north?

Mr. Roos: The evidence quite clearly reflects that education is a minimal pull factor in terms of illegal immigration.

Unidentified Justice: What evidence?

Mr. Roos: That is repeatedly--

Unidentified Justice: What evidence are you referring to?

Mr. Roos: --I am referring to testimony by the state's own witnesses.

We would, for example, refer to Shane Davies, who said, as an attractive factor, no, it is not.

We would refer to the testimony of the director of the Immigration and Naturalization Service in Dallas, a Mr. Heston, who said, no, indeed, immigration, unlawful immigration has little to do with... or education has little to do with unlawful immigration.

I would also point this Court to, with respect to undocumented people returning to Mexico after the statute, the evidence by, again, the state's own witness, the superintendent of Brownsville, said, no matter what, these children will remain here.

So, I think that the fact is, they will remain here, that indeed education is a minimal pull factor, and the preclusion of education will not appreciably deal with the unlawful immigration problem.

Unidentified Justice: Mr. Roos--

--Mr. Roos--

--After you, Justice Brennan.

After you.

Go on.

Is the question of domicile a matter of state law?

Mr. Roos: Your Honor, I am aware of cases that have gone up and down on Elkins--

Unidentified Justice: What did this Court hold in Elkins against Moreno?

Mr. Roos: --This is not certainly a domicile law.

As we have pointed out, some--

Unidentified Justice: My question is, is it a question of state law?

Mr. Roos: --It is... it would certainly be my view that one could not use domicile as a proxy for alienage.

For example, well, that if undocumented persons are indeed persons under the equal protection clause, and thus a state legislation must treat them minimally rationally, and indeed we believe insofar as they are denied... innocent children are denied an education with heightened scrutiny, that that indeed... it could not then turn around and say, we have got a domiciliary law, aliens cannot become domiciliaries, and then keep all these innocent children out of school.

That would seem to be contrary to any sort of basic notions of justice or of the Fourteenth Amendment.

Unidentified Justice: Mr. Roos, are you arguing that even if this statute were to be regarded as implementing a federal policy to exclude illegal aliens, even so regarded, that nevertheless, you are entitled to a holding that the equal protection clause renders the statute unconstitutional, even if it is implementing of a federal policy?

Mr. Roos: If there were an express federal policy excluding--

Unidentified Justice: I know.

Take my hypothetical.

Not if there were.

Assume that there is an express federal policy, and that this statute implements that policy.

Mr. Roos: --If there were an express federal policy saying undocumented children should not attend school, then it would be our position that Texas might well be able to--

Unidentified Justice: That is not my question, Mr. Roos.

My question is, if the Federal policy is to exclude illegal aliens from the United States, and this statute is to be regarded as implementing that federal policy, are you arguing that nevertheless the statute violates the equal protection clause?

Mr. Roos: --We are arguing that, and indeed, as indicated, this has minimal impact on keeping undocumented people out of the country.

Unidentified Justice: Mr. Roos, this is why I have been trying to get in here.

It seems to me that, or else I am confused, that just what Mr. Justice Brennan has asked you is driving you from any pre-emption argument into the equal protection argument.

Aren't you confronted flatly with the DeCanas case?

Mr. Roos: We are--

Unidentified Justice: How can you avoid it?

Mr. Roos: --With respect to equal protection... as the Court has recognized, indeed, the primary thrust of this case is an equal protection case.

We do not argue pursuant to DeCanas that this statute, because it has an incidental effect on immigration, is thus pre-empted.

Now, we do make other pre-emption arguments that the Court should be aware of.

Indeed, it is our position that federal education policy as found primarily in the Elementary and Secondary Education Act expresses a federal policy that all children, especially those children who are most in need, and in many instances those are undocumented children, should be provided with education if they are to be here.

Unidentified Justice: And would you distinguish DeCanas then by restricting it to the employment field?

Mr. Roos: I would restrict DeCanas to dealing with the employment field and the incidental effect on unlawful immigration.

Unidentified Justice: And on that basis, you are not to be driven off your pre-emption argument?

Mr. Roos: No, the pre-emption argument is predicated upon a different federal statute or set of statutes, the Elementary and Secondary Education Act, which in our view mandate that all children, especially those in need, receive free public education, and we would point out, as we do in our brief, that there are a number of federal titles to the elementary and secondary education act which would have been... would invited openings by Congress if it had been so inclined.

For example, there is the Federal Bilingual Education Act, Title VII of the Elementary and Secondary Education Act.

And in that Act, one of the definitions of who is entitled to a program are people born in another country.

They have never said anything about undocumented aliens.

There is obviously a common assumption that undocumented aliens frequently are migrant children.

There is a Title I migrant program.

Never has Congress said, we exclude from inclusion in the Title I migrant programs undocumented children.

Unidentified Justice: Mr. Roos, let me interrupt you to ask a refinement of Justice Brennan's question.

You answered, when he said, supposing that the state statute implements the federal policy of keeping aliens, unlawfully admitted aliens out, you said you would nevertheless make the equal protection claim.

Would you make the same argument if you... if it were demonstrated that the state statute substantially implements the federal policy, not just theoretically or minimally, but if it could be shown that there is a substantial deterrent as a result of a state statute?

Mr. Roos: The distinction that we draw, and I tried to draw with Justice Brennan, is that where the federal policy is expressed with respect to this particular service, education in this case--

Unidentified Justice: Well, but the policy that I think... at least I understood Justice Brennan to refer to is the policy to keep aliens out unless they are lawfully admitted, which is clearly a valid federal policy.

Mr. Roos: --We argue that it would be offensive to the principles of Hines and this Court's long line of cases that this would be... that for a state to set about to regulate the border, even if it were in pursuance of a state policy--

Unidentified Justice: I am not talking about... If this statute, just denying them an education, substantially furthered that federal policy, would you say that still was a violation of equal protection?

You can just say yes or no.

Mr. Roos: --Yes.

Unidentified Justice: All right.

I take it then you would say that if Congress passed a law saying, pursuant to our power to control immigration and naturalization, we hereby forbid states to offer education to illegal alien persons, people who are here illegally, would you say that would violate equal protection?

Would it be the equal protection component of the Fifth Amendment, or not?

Mr. Roos: Obviously--

Unidentified Justice: That can be yes or no, too.

Mr. Roos: --I am not certain that it can, but it is... I mean, each case has to be decided on its own.

Unidentified Justice: Well, how about that one?

0 [Generallaughter.]

Mr. Roos: It would be our view that if there indeed were an express federal policy excluding undocumented children from school, that if the state passed a law--

Unidentified Justice: Not if a state.

The federal government passes a law that says no illegal aliens shall be educated by the states.

Would that violate equal protection?

Mr. Roos: --I would certainly feel that there are reasons for holding that it would violate equal protection, but I understand this Court has traditionally given deference to Congressional alienage classifications.

Unidentified Justice: You spoke a while ago of a 15-year-old who came to the country when he was six.

Is Texas required to grant him admission to all its state universities and graduate schools as a resident, or could they charge him non-resident tuition?

Mr. Roos: It would certainly be--

Unidentified Justice: Illegal, now.

Mr. Roos: --Yes.

Unidentified Justice: He is illegally in the country.

Mr. Roos: There are distinctions--

Unidentified Justice: That is a yes or no, too, isn't it?

Mr. Roos: --There may be distinctions between elementary and secondary education--

Unidentified Justice: I am just asking about university, undergraduate and graduate schools.

If they charge non-residents of Texas three times as much as residents of Texas to make the stakes high, must they admit this illegal on a Texas residence rate?

Mr. Roos: --I would suggest that the answer is not a yes or no, that indeed one would have to look at the state purpose and--

Unidentified Justice: The state purpose is already there.

Many states charge non-residents, have a resident tuition fee and another.

Mr. Roos: --What they would do, I believe, under your hypothetical, would be using alienage to define resident.

If the--

Unidentified Justice: Or is it using illegal alienage?

Mr. Roos: --Well, using illegal alienage.

Unidentified Justice: This is not an alienage case.

It is an illegal presence case.

Mr. Roos: Your Honor, this Court has at various times noted that subclasses of aliens are still protected by the alienage analysis of this Court's ruling.

Unidentified Justice: Prior protection.

Due process.

We are just talking... my question is, narrowly, tuition at the University of Texas and the Texas Medical School.

Must the state of Texas give him or her residence tuition instead of three times, if that were the statute.

Mr. Roos: I think that the analysis would generally be no, Your Honor.

I think that the conclusion would generally be no, but of course each case ought to be looked at on its own.

You would be dealing with people above the age of majority so the innocent factor that was referred to earlier, certainly, the argument for compelling interest is not the same, and indeed the analysis under a rational basis would be somewhat different.

Unidentified Justice: Mr. Roos, isn't Texas somewhat caught in a bind here between the federal education policy which affords funding for bilingual education and the federal immigration policy which renders these people illegally present in the United States, and therefore in Texas, as one of the states?

What is Texas supposed to do?

Mr. Roos: Well, I suppose the answer is that 49 other states admit these children because they feel that they are here and it is their obligation to educate people who are in their boundaries and who in fact need education.

Texas alone among the states poses this terrible dilemma, and I think it is important to emphasize, as Mr. Schey mentioned earlier, that indeed California, for example, the testimony reflects likely has twice as many undocumented persons as does Texas, yet the Court will note that an amicus curiae brief was filed by the California State Board of Education.

No, I think that the Texas dilemma is something that has been suggested as--

Unidentified Justice: Well, but Texas and California are free to follow two different policies on the matter, are they not, unless they violate an Act of Congress or a provision of the federal Constitution?

Mr. Roos: --They certainly are, and it is our position here, of course, that this violates the federal Constitution.

Chief Justice Burger: Mr. Arnett?

ORAL ARGUMENT OF RICHARD L. ARNETT, ESQ., ON BEHALF OF THE APPELLANTS -- REBUTTAL

Mr. Arnett: I don't have time to answer all the misrepresentations and if not direct, implied, concerning the record.

The... Texas gets 25 percent of the migrant funds.

Texas gets far more than 25 percent of the migrant pupils, legal pupils in the state.

Unidentified Justice: Mr. Arnett, would you concede that there are children who were not legally admitted to the United States but which later obtain a status that would entitle them to remain as residents, and that the Texas statute would preclude those children from being in school tuition-free?

Mr. Arnett: Your Honor, I certainly would agree that they can gain the status at a later date.

When they gain that status, they will be entitled to go to school.

Furthermore--

Unidentified Justice: But the Texas statute as it is written applies to exclude those who are--

Mr. Arnett: --That has been construed to mean legally present.

The school districts construe that to mean, if they are legally living here.

And I might note that the example of the particular children involved, those children never went through the hearing process of the state board of education to determine their entitlement, notwithstanding any lack of documentation they may have if they were in the process of application.

Unidentified Justice: --Is this just a matter of application in the school districts, or do we have a Texas decision?

Mr. Arnett: We were proposing regulations on it at the time we were enjoined from--

Unidentified Justice: Are there any adopted now?

Mr. Arnett: --No, Your Honor, but they can be adopted very easily, as soon as we are not enjoined and it becomes meaningful.

I would like to address the point you asked about the innocent children, and I would like to point out that in Dandridge, in Lalli, in Matthews versus Lucas, all of those cases affected the right of children on the basis of the parents' conduct.

In fact, this case is much less reprehensible, if you want to use that term, than those, because here the parents' conduct is now.

The parents are free to effect the conduct in question at this time.

They were not free in Lalli once they were deceased.

They were not free once they were deceased in Matthews versus Lucas.

It is clear... and indeed, if you take the innocent children line of reasoning, all children are a suspect class or heightened scrutiny for purposes of residency, whether they be illegal aliens or not.

Our society is somewhat based on the control of parents over children, and that differentiates it from trying to control the acts of parents as to themselves with the illegitimacy through restriction on their children.

The other thing that has come up is domicile versus residency, and the reason that has been somewhat confused is, Texas does not require strict domicile to go to school.

We do not require an indefinite intent to remain.

We require sort of quasi-domicile, and I think that we call it residence under the statutes.

It has been interpreted by our courts, and there are several decisions on this point, that it is not as much as domicile, but it is more than simply staying overnight, you know.

Unidentified Justice: I take it your policy is that until you are documented or have some basis for being here legally, that no one can acquire either domicile or this quasi-residence.

Mr. Arnett: That is exactly right, and my answer to Justice O'Connor's question earlier that there was no state court decision on it, that is in the domicile area.

In the area of residency, both the legislature and the Texas Supreme Court by denying the writ in Hernandez and upholding the statute have made the decision that residency for school purposes cannot be illegal, it must be legal, and so to that extent I would say, yes, state law does make that determination.

I would also like to point out as to incentive, if it is not an incentive, why has Brownsville grown from 182 undocumented alien children one month after the order to over 1,300, 1,400 this year?

I would point out that the findings of the--

Unidentified Justice: But constitutional rights are individual rights and are not permitted to depend on intuition or anything else.

Mr. Arnett: --Your Honor, Vance versus Bradley says it is not the--

Unidentified Justice: Well, McKay versus Santa Fe and Topeka Railroad 40 or 50 years ago said just that.

Mr. Arnett: --I agree, Your Honor.

Unidentified Justice: And that is still the law.

It is an individual right.

Mr. Arnett: I would point out that Vance versus Bradley says it is not the office of findings of fact to make conclusions against the legislative judgment, and that is exactly what was done at the lower level here, and furthermore, all the evidence that they are referring to about it not being incentive have to do with adults.

It is clearly an incentive for children.

Unidentified Justice: General Arnett, I didn't understand one thing you said.

You said that as a matter of state construction of its own statutes, state law, that a person not lawfully here was not a resident within the meaning of the laws governing school attendance.

If that were so, why did they need this 1975 statute?

Mr. Arnett: Well, all I am saying is that the statute makes that determination from a legislative point of view, and that has been established by the court.

Unidentified Justice: You mean just the statute in issue here.

Mr. Arnett: Yes, Your Honor.

Unidentified Justice: Oh, I see.

Mr. Arnett: I think that is a legislative definition.

I think it clearly is.

Unidentified Justice: It intended... it was a reaction to the Attorney General's opinion, was it?

Mr. Arnett: I think it's pretty clear that it was.

Unidentified Justice: Yes.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Fedorenko v. United States - Oral Argument

Wed, 18 Feb 2009 06:13:12 +0000

Case:

Fedorenko v. United States

Media File:

79-5602_19801015-argument.mp3

Related Transcript:

79-5602_19801015-argument_transcript.xml

Transcript:

ORAL ARGUMENT OF BRIAN M. GILDEA ON BEHALF OF THE PETITIONER

Chief Justice Burger: We'll hear arguments next in Fedorenko v. United States.

Mr. Gildea, you may proceed whenever you are ready.

Mr. Gildea: Mr. Chief Justice, and may it please the Court:

The case of Feodor Fedorenko v. United States, which is now before this Court, is an appeal from the 5th Circuit Court of Appeals, which reversed the judgment of the District Court for the Southern District of Florida in a denaturalization proceeding on grounds that the District Court erred in its interpretation of 8 United States Code 1451(a), and because that court also erred in finding an equitable alternative basis for its holding in that lower court decision.

Although three challenges were raised by the Government in its appeal before the 5th Circuit, the 5th Circuit decision was limited to whether or not the court erred in its interpretation and application of the second standard in Chaunt, which comes out of 8 United States Code 1451(a), and whether that court had no basis for an equitable holding, which it did find.

Precedent for this case arises out of the 1969 Supreme Court decision of Chaunt v. United States.

In that case the Supreme Court was asked to interpret the meaning of the materiality standard as imposed by the statute.

The District Court, in following the precedent, and the Supreme Court's determination of what was a materiality question, held that the Government in the lower court failed to prove by clear, unequivocal, and convincing evidence that the petitioner's visa was illegally procured by material misrepresentation under 8 U.S.C. 1451(a).

The Court of Appeals disagreed with the lower court as to its meaning of Chaunt, and held that the Government did in fact meet its burden of proof under the second materiality standard set forth in Chaunt.

The Court of Appeals agreed with the District Court in its finding in holding that the Government had not met its burden in the first materiality standard test.

The Court of Appeals also disagreed with the District Court in that there was no precedent for the District Court to hold that it could consider equitable grounds as an alternative holding in its case.

The Court of Appeals then reversed and remanded the appeal back to the District Court.

Unidentified Justice: Counsel, just as a matter of practical information, if Mr. Fedorenko loses this appeal or this review, what happens to him?

Is he deportable?

Mr. Gildea: Your Honor, if his citizenship is taken away, he would be subject to further proceedings under the Deportation Section of the Immigration and Naturalization Act, which would require further proceedings.

He just simply loses his citizenship at this juncture, if the Supreme Court so holds that the appellate court was correct.

By way of background, the petitioner in this action, Mr. Feodor Fedorenko, was born in 1907 in Sivasch, Ukraine, subject of the USSR, and received a third grade education.

In 1941 he was mobilized into the Russian army along with his truck and while serving in the Russian army, his group was overrun by the German forces--

Unidentified Justice: Within three weeks of his induction?

Mr. Gildea: --That's correct, Your Honor.

--and taken prisoner by the Germans.

Subsequently he was transported to five different camps, which are cited in the brief.

And in those camps he was starved, he was beaten, and he was forced to work or die.

He was then trained at Travnicki to serve as a guard and was given a uniform, boots, and trained to operate and handle a weapon.

That was a rifle.

He was then sent to the Treblinka Camp, where he served involuntarily as a guard for 10 months.

After the uprising in Treblinka in August, 1943, he was assigned back to Travnicki, then to Poelitz, and then to Hamburg, all while under the control of the German army.

Unidentified Justice: Mr. Gildea, just so I can follow this correctly, are you telling us what the District Court found or what your client testified to?

Are these undisputed facts?

As I understand it, there is some controversy about the facts.

Mr. Gildea: These are facts that I'm stating to the Court are not only the testimony of my client but the finding of the lower court that he did in fact serve involuntarily and that he did, in fact, go to these various camps.

Unidentified Justice: Why is that relevant now, here?

Mr. Gildea: Your Honor, it's only relevant in the sense--

Unidentified Justice: The question here is whether he concealed relevant information, is it not?

Mr. Gildea: --That is correct, Your Honor.

The reason why I bring this fact out to Your Honors is that in his xx he was transferred not only to Treblinka but also to Poelitz, which was a labor camp.

That fact was ultimately revealed to the immigration authorities, although Treblinka was concealed.

And that becomes an important issue in this case, as I will get to.

When the war ended the petitioner worked for the British forces until 1949 and thereafter applied for immigration into the United States through the vice consular office in Germany, was accepted, and came to the United States in 1949.

From that point on he resided in Waterbury, Connecticut, up until the time of his retirement from his place of employment and in 1970 he received his naturalization after his application filed in 1969, and in 1977 the Government commenced these proceedings against Mr. Fedorenko, seeking to strip him of his naturalization, claiming that he had made a material misrepresentation in procuring his visa to the United States, that he had committed atrocities at the Treblinka death camp, and that he had been in service in the German army.

After a trial which was conducted in part in Waterbury, Connecticut, and then in Fort Lauderdale, Florida, the District Court in a 54-page decision rendered judgment for the petitioner.

The District Court rejected the testimony of Treblinka survivors, who testified at that trial regarding Mr. Fedorenko and his activities at the Treblinka death camp.

Mr. Fedorenko, in marked contrast to the testimony of the witnesses who testified who came over from Israel, denied all of the allegations and denied all of the testimony against him with the exception of the fact that he was indeed a guard in Death Camp No. 1, but only a perimeter guard and had nothing to do with the actual operation of the gas chambers.

The Court also found, in its 54-page decision, that the petitioner served involuntarily as a guard under a threat of death, and that his misrepresentations were not material under either of the tests in Chaunt v. United States.

The District Court also found an alternative holding for its decision on equitable grounds.

The Government appealed, claiming the District Court erred in rejecting testimony of witnesses, and in applying the materiality standard, and in using equitable considerations as an alternative holding.

The 5th Circuit Court of Appeals did not rule on the District Court's rejection of the testimony of the Treblinka witnesses.

It simply ruled only on the grounds as to whether or not the Government had met its burden of proof as to the second materiality standard and whether the District Court had authority to enter an alternative holding on equitable grounds.

It was, indeed, critical to the Government's appeal before the 5th Circuit to convince that court that the testimony of one Kempton Jenkins established the clear, unequivocal and convincing standard required by Chaunt.

The testimony of Mr. Jenkins was the only testimony offered by the Government in an attempt to satisfy that standard.

The District Court rejected a substantial portion of Mr. Jenkins' testimony because it was circumstantial, inaccurate, and not clear, unequivocal, and convincing to prove a material misrepresentation under either of the Chaunt standards.

As in Chaunt, the Government here was given one fact and that was the petitioner's presence at Poelitz, which was a known labor camp.

And that fact should have, according to the testimony of Mr. Jenkins, triggered an investigation into Mr. Fedorenko's background.

Either it did not or the investigation which was conducted did not disqualify the petitioner.

The record is unclear as to what specifically happened with Mr. Fedorenko at the time that he filed his petition for visa to the United States in 1949, because the Government did not produce as an essential witness in this case Mr. Ralph G. Clark, the vice consul who processed his visa.

Unidentified Justice: Now, as I understand it, Mr Gildea, Jenkins was also a vice consul, was he not?

Mr. Gildea: That is correct, Your Honor.

Unidentified Justice: And he testified, did he not, that a guard who served in a concentration camp was ineligible as a of law for a visa, did he not?

Mr. Gildea: That is correct, Your Honor.

Unidentified Justice: And that's what he testified.

I know that the district judge did not accept... he testified as an expert, as I recall, wasn't it?

And the... that was not accepted, or made a finding of fact by the district judge.

But had it been Jenkins' testimony to that effect, would that not be the end of the case?

Wouldn't that satisfy the first Chaunt test?

Mr. Gildea: I believe it would.

If I may direct a comment to your question, Justice Brennan, in reference to that It should be noted that Mr. Jenkins' testimony with reference to voluntariness, that is, whether or not Mr. Fedorenko's service was voluntary, was based upon his opinion from hearsay evidence or conversation that he had with other vice consuls, and because of only a very limited contact with three other guards, whether they were personal contacts or contacts with the other consuls, I'm not sure.

But he did not at any time ever interview or refuse admittance by way of visa for any guard who served at the Treblinka camp.

Furthermore, the District Court rejected his interpretation of voluntary because to accept his opinion of voluntary status would mean that those survivors of Treblinka who have found their way to the United States would have been rejected by his standard, because they in some way served at the Treblinka death camp and processed other Jews and Christians to their death.

Now if one accepts the fact that the kapos that were at the Treblinka camp and that the laborers who were forced to perform mechanical tasks in processing these people into the gas chambers, according to Jenkins' standards, committed voluntary acts or acquiesced in the German efforts to annihilate people because of their religion, that is, the Jews; to annihilate people because of their inferior background, that is, the Ukrainians, the Poles, the Eastern Europeans; then they would not be admitted to the United States.

Their service would have been considered voluntary and not involuntary.

And the District Court felt that involuntary was a very crucial key to this case, and ruled, after listening to the testimony of Mr. Jenkins and after listening to the testimony of all the survivors of Treblinka, and Mr. Fedorenko, that his definition of voluntary should be rejected.

Unidentified Justice: Well, didn't the 5th Circuit hold, though, that,

"We have held that the defendant obtained his citizenship by misrepresentation, concealment of his whereabouts during the war years, and his service as a concentration camp guard? "

Mr. Gildea: Excuse me, I'm sorry; I didn't--

Unidentified Justice: Didn't the 5th Circuit hold at page 118 of the Appendix,

"We have held, however, that the defendant obtained his citizenship by misrepresentation and concealment of his whereabouts during the war years, and his service as a concentration camp guard? "

Mr. Gildea: --That is correct, Your Honor.

That was the holding of the 5th Circuit Court of Appeals but not the District Court.

Unidentified Justice: Well, isn't that the only issue here now?

Mr. Gildea: That's correct, Your Honor.

The issue--

Unidentified Justice: The concealment.

The concealment.

Mr. Gildea: --That's correct.

And the issue is whether or not the concealment of his whereabouts during World War II, that is, his presence at the Treblinka concentration camp, was a fact that would have denied him admission under either the first or the second test.

Now, the Government claims that the nondisclosed fact, that is, Treblinka or his presence at Treblinka as a guard would have triggered an investigation resulting in the denial of his visa.

This case is distinguishable from the Chaunt case in some minor respects.

And one of the respects I wish to point out is this.

In the Chaunt case the Supreme Court had ruled that the nondisclosed membership of Mr. Chaunt in the Communist Party was a fact in and of itself that should have denied citizenship, whereas this petitioner's nondisclosed guard duty at Treblinka was found by the District Court as nondisqualifying, that that fact in and of itself would not have denied him admission to the United States.

In Chaunt the Supreme Court also considered additional facts to see whether the second test had been satisfied.

In Chaunt the Supreme Court considered whether the nondisclosure of an arrest record was a material misrepresentation under the second test of Chaunt.

It ruled, no, because the ultimate facts, that is, the cause for the basis for arrest, although involving convictions of minor crimes, was of an extremely slight consequence.

The District Court also looked into the background of Mr. Fedorenko, the petitioner, in this matter, and in the evidence that was offered by the Government, evidence to establish those ultimate facts... that is, his presence at Treblinka, the voluntariness of his services, and the commission of atrocities, were ultimate facts that the court ruled upon... worked in favor of the petitioner, and the court concluded that the petitioner had not committed atrocities, had not served voluntarily, and that these facts would not have denied him a visa, and therefore no material misrepresentation had been committed.

It is interesting to note that the 5th Circuit Court of Appeals dropped from its decision the essential term that had been contained in the Supreme Court's decision of Chaunt, and that was the term, "unequivocal".

The Supreme Court had held in Chaunt that the Government must prove by clear, unequivocal, and convincing evidence, that there was a material misrepresentation.

The District Court used the full meaning of Chaunt in its application to the facts in this case, whereas the 5th Circuit Court of Appeals slightly modified the meaning of Chaunt, not only by dropping that term from the standard that the Government must establish in its proof, but also modified some of the words in the Chaunt decision.

The Court of Appeals in its interpretation of Chaunt said that

"the test of Chaunt, including, had the petitioner disclosed his presence at Treblinka, would have conducted an inquiry that might have resulted in a denial of a visa. "

The Supreme Court in the last few words of its second standard in Chaunt did not use the term "might", but used the term "would".

Thus the 5th Circuit Court of Appeals really disagreed with the District Court by saying, the Government need only prove or establish that there is a possibility of an investigation and that possibility--

Unidentified Justice: Mr. Gildea, I fell off the wagon in your last comment.

I have Chaunt in front of me.

"We only conclude that in the circumstances of this case the Government has failed to show by clear, unequivocal, and convincing evidence either (1) or (2), that their disclosure might have been useful. "

Did you say that they said it would have been useful?

Mr. Gildea: --That is, the 5th Circuit Court of Appeals said that the Government

"would have conducted an inquiry that might have resulted in a denial of a visa. "

So, in other words, the 5th Circuit Court of Appeals creates a burden of saying that fact, nondisclosure, absolutely would have caused an investigation.

Instead of saying the term "might" or "possibly", it said it would have.

Unidentified Justice: That's a test more favorable to you, isn't it?

Mr. Gildea: The first half of it is, Your Honor.

Unidentified Justice: Yes.

Mr. Gildea: That's correct, but the second half isn't.

That is, where it says, it

"might have resulted in a denial of a visa. "

whereas the Supreme Court--

Unidentified Justice: What's the difference between that, and "possibly leading #"--

Mr. Gildea: --All right.

Unidentified Justice: "# to the discovery of other facts? "

Mr. Gildea: But the last few words of the Supreme Court's decision says that it

"would have justified denial of citizenship or that the facts would have warranted denial of citizenship. "

Those are--

Unidentified Justice: Yes... now, that's from what?

Mr. Gildea: --That is from Chaunt, Your Honor, the second standard in Chaunt.

The Supreme Court commented on--

Unidentified Justice: Well, I'll read (2) again, that

"their disclosure might have been useful. "

Reading on--

Mr. Gildea: --Excuse me, Your Honor.

Are you reading from the first section of Chaunt or from the conclusions of Chaunt?

Unidentified Justice: --I'm reading from the next to the last paragraph of the majority opinion.

Mr. Gildea: All right.

Earlier in the decision of the Supreme Court, it also talked in terms of the two standards of Chaunt and it used this word... that would be the third page of its opinion... and it said,

"True facts might have led to the disclosure of other facts which would justify denial of citizenship. "

And then in its--

Unidentified Justice: Well then, you're saying that the Court's opinion is somewhat ambiguous.

This is not the first time but--

Mr. Gildea: --That apparently has resulted in the choice of words in that decision and because there did seem to be a change in the opinion as you go along, that caused some of the confusion that exists between the District Court's interpretation and the interpretation given by the 5th Circuit Court of Appeals.

Unidentified Justice: --Mr. Gildea, let me see if I understand what your interpretation of Chaunt is.

If I understand what you're saying, it is that there might have... had the fact been disclosed there might have been an investigation, but the Government has the burden of proving that had the investigation been thorough and successful and all the rest, there were facts in existence which would have warranted the denial of citizenship, so the "might" goes to whether there would have been any... There are two doubtful facts... One, there may or may not have been an investigation; two they may or may not have discovered the facts.

But you say, if I understand you correctly, had everything been done properly there were facts to be discovered, which would have warranted the denial of citizenship.

They had to prove that.

Mr. Gildea: That's correct.

That was their burden, they would have to prove that.

And because, as in Chaunt, what was the reason or the purpose for the Supreme Court to look into Mr. Chaunt's background?

Why did the Supreme Court examine his arrest record?

To determine that those ultimate facts would not have denied him his citizenship.

Unidentified Justice: And the reason that the proof failed in Chaunt was that when you get to the whole bottom of the story the Government failed to establish any fact which... he failed to establish membership in the Communist Party, which would have been a fact warranting denial of citizenship.

Mr. Gildea: That would have satisfied the first test but as to the second test, the Government failed to prove that the ultimate fact, that is the basis, the reason for his arrests would have led the Government to information about his activities and involvement in the Communist Party.

Unidentified Justice: And that those activities would have justified a denial of citizenship.

Mr. Gildea: Absolutely.

Unidentified Justice: I take it then you think a court dealing with a case like this must decide whether or not the facts about your client, if they had been revealed or if an investigation had revealed all the facts, the true facts, the courts would have to decide whether those facts would warrant the denial of citizenship.

Mr. Gildea: That's correct, sir.

Unidentified Justice: But if you look at it the other way, Mr. Gildea, if the test is that it would have triggered an investigation that might have led to the discovery of facts, whether or not it in fact did, that's all the Government's burden is.

That's very different, isn't it, from what you insist on?

You put the "would" at the place I suggested maybe should be read "might".

Mr. Gildea: I feel that the District Court's opinion, its interpretation of Chaunt, and the argument that I'm trying to make before this Court, is a middle road argument.

I don't feel it's an extreme argument, whereas I think the Government's argument that says--

Unidentified Justice: You do wind up, that the investigation must uncover facts the Government must prove, that the investigation would have uncovered facts which would have resulted in the denial of naturalization.

Isn't that your position?

Mr. Gildea: --I would think that--

Unidentified Justice: Whereas, it's a lesser burden for the Government if all they have to prove is that it would have triggered an investigation that might have led to facts.

Mr. Gildea: --That's right.

Unidentified Justice: Well, isn't that what the difference between you and the Government is?

Mr. Gildea: I think so.

Unidentified Justice: But pursuing my question, assume you're right on what the standard is, is it clear that his service as a guard would not have disqualified him for citizenship as a matter of law?

Mr. Gildea: That was the opinion of the District Court.

Unidentified Justice: And one which the Court of Appeals didn't have to reach, I take it?

Mr. Gildea: Well, the Court of Appeals found facts concerning Mr. Jenkins' testimony which were rejected by the District Court.

It read more into his testimony.

It felt that his testimony was entirely supported--

Unidentified Justice: So did the Court of Appeals find facts which it decided would have denied him citizenship?

Mr. Gildea: --That's correct.

Unidentified Justice: Well, then--

Mr. Gildea: That was, the Court of Appeals substituted its judgment for that of the District Court, which sat there listening to all the witnesses.

Unidentified Justice: --Well, and suppose the Court of Appeals, we accept that, then, then the difference between you and the Government is sort of irrelevant as to what the standard is because the Court of Appeals found some new facts, but it also found that those facts would have denied him citizenship?

Is that what they did?

Mr. Gildea: No, I don't think so, I think that--

Unidentified Justice: Well, you just said it was.

Mr. Gildea: --Well, maybe I misstated it.

I'm sorry, Justice.

In effect... I want to point out that the 5th Circuit Court of Appeals expressed the same confusion that may have resulted in the reading of Chaunt itself, because the 5th Circuit Court of Appeals in its own decision on the same page interposed the terms "might" and "would".

Unidentified Justice: So you... you're suggesting, then, that the Court of Appeals didn't reach the question of whether the facts as found by them would have?

Mr. Gildea: That's correct, I think the District Court simply ruled that there was a possibility--

Unidentified Justice: The Court of Appeals.

Mr. Gildea: --The Court of Appeals; correct.

The Court of Appeals ruled that there was a possibility, and certainly that's all the government had to prove, just the possibility.

Unidentified Justice: No, but did it... it found some facts.

Did it say that on these facts, which we think the record reveals, these facts would have resulted in his denial of citizenship?

Mr. Gildea: Yes, I think they did come to that conclusion.

Unidentified Justice: When you're talking about something that would have triggered an investigation 30 years ago or 40 years ago or 20 years ago and say that the standard is that the Government must prove that the investigation would have resulted in the denial of naturalization, you're really going way back into the cases of missing witnesses and difficult information to come by, aren't you?

Mr. Gildea: That's correct, Your Honor.

The burden is two fold, the burden of the petitioner not being able to offer the witnesses that would support his claim of involuntary service.

Those were witnesses that were in the Soviet Union, and which the District Court moved were not essential in its decision in this case.

And the burden of the Government in establishing witnesses that were present at the time, being able to give evidence to the Court as to the circumstances then and there existing.

Chief Justice Burger: Mr. Attorney General.

ORAL ARGUMENT OF ATTORNEY GENERAL BENJAMIN R. CIVILETTI ON BEHALF OF THE RESPONDENT

Mr. Civiletti: Mr. Chief Justice, and may it please the Court:

Although the facts in this case stretch back ten years, 35 years, those facts, and the issues presented in the case, have been relevant throughout that time, are important today, and I suggest are important for the future.

Over 150,000 people were naturalized in the United States in 1980 and in the decade between 1970 and 1,500,000 people were naturalized.

The question as to fraud in procurement of citizenship rights, and the process by which the Government is permitted or allowed to determine that fraud, and the standard under which misrepresentations or concealments are determined to be material are relevant and important to the underlying facts of this case, of course, but to the entire operation of questions dealing with entry, resident alienship status, and denaturalization as well as deportation.

It is true, as Justice Murphy speaking for the Court said, today perhaps more than in 1943 when he stated it in Schneiderman, that

"Many regard citizenship of the United States as the highest hope for civilized man. "

And for that reason we exercise great care in the review, the application, of the law and the standards by which we are to deprive someone of that great privilege.

I wish to discuss and address two points in my argument.

One, the meaning of materiality as applied in Chaunt and derived from the Immigration and Nationality Act of 1952 in Section 1451(a), as applied to either a willful misrepresentation or concealment of a material fact, the grounds in this case on denaturalization was ordered by the 5th Circuit.

And the second point I wish to address will go to whether or not the Government in the District Court by clear, unequivocal and convincing evidence proved even evidence sufficient to meet and satisfactorily meet the first test in Chaunt.

With regard to the first point, the issue as I see it before the Court is whether 1451 and materiality applied to it requires the Government to prove that the facts if known, facts which were concealed or misrepresented, if known, warranted denial of citizenship, an ultimate fact or test; or whether the second and alternative test in Chaunt, which I refer to as the investigative or investigation test, allows the Government to prove materiality by showing that if the facts, if known, would have been useful in an investigation which might discover grounds or facts warranting denial of citizenship.

Unidentified Justice: General Civiletti, when you say the facts would have been useful, is that the equivalent of meaning that they would have triggered an investigation?

Mr. Civiletti: I think so, Your Honor.

Unidentified Justice: But the second half, Mr. Attorney General, is "might", not "would", have discovered fact which would have led to the denial of citizenship.

Mr. Civiletti: I think that the Court stated in Chaunt the second investigative test in two separate ways which, I think, have the same meaning.

It said, early in the opinion, in the first statement of the test, language to the effect: the facts, if known, which would be useful in an investigation to determine whether or not there were grounds for denial of citizenship.

In the second part of the test, the second statement, a restatement, I think it dropped the "useful" language and said: facts which, if known, might possibly lead to... in an investigation... lead to the discovery of facts warranting denial of an investigation.

I think both statements assume or presume an investigation, a concealment of facts sufficient that, if known, they would trigger an investigation, and then pose the scope or focus of the investigation to be, in order to be relevant and material, to the eligibility, the possibility, or that might disclose facts, other facts, different from the concealed facts--

Unidentified Justice: As I understand the Government's position, it is not that the Government has to prove that the investigation would have turned up facts that would have required the denial of citizenship, but rather that it might have required a denial of citizenship after an investigation.

Mr. Civiletti: --That's exactly right, Justice Brennan.

The Government feels that the thrust, purpose, and intent of 1451 is to prevent fraud, to prevent material misrepresentations, to allow the Government to rely on the accuracy and truth of the statements, and that therefore if the concealment thwarts an investigation, that had the facts revealed it, then the Government has a right to denaturalize the person if it further shows that within the focus of the investigation there were facts which might have warranted denial of citizenship or eligibility.

And that's exactly--

Unidentified Justice: While I have you interrupted, Mr. Attorney General, if Jenkins' testimony had been believed, namely, that had it been known at the time a visa was applied for that this chap had been a guard at the camp, he would not have been given a visa.

If that had been found as a fact, is it the Government's position that the first part of the Chaunt test would have been satisfied?

Mr. Civiletti: --Yes, and I think--

Unidentified Justice: Are you urging here that this Court turn this case on that testimony?

Mr. Civiletti: --I will urge in my second point that the District Court erred in substituting its judgment as to what would have happened back in 1950 under the application and interpretation of the law then and practice then, as testified to by Jenkins, that a guard at an extermination camp would not have been found to have been eligible under the Displaced Persons Act; yes.

Unidentified Justice: Mr. Attorney General, as I listen to your statement of the test for which the Government contends on the second half of Chaunt, I think it is this... and you tell me if I'm wrong.

The test is whether the falsification by misleading the examining officer forestalled an investigation which might have resulted in the defeat of petitioner's application for naturalization.

Mr. Civiletti: Substantially.

Unidentified Justice: That is the test for which Justice Clark in dissent in Chaunt contended should apply.

And it was his view that the majority squarely rejected that test.

Mr. Civiletti: I do not think that they rejected the test.

I think that they applied the test in finding that the concealed facts of arrest in Chaunt were so unrelated to the possible discovery of the membership in the Communist Party that they were too remote and too tenuous, even if there had been an investigation and been discovered, to provide any probability that they would have formed a basis for discovering facts which would have warranted denial of citizenship... particularly in light of the fact that facts closer to the bone, the membership in the communist front organization, were revealed in the papers... and that therefore there was an insufficient proof of the two elements necessary in the second investigative test in Chaunt.

One, there was an insufficient proof that there would have been an investigation, since the revelation of the communist front organization participation did not trigger an investigation.

And secondly, had there been an investigation, the elements of the facts in the arrest were insufficient to have been within the scope of the focus of the investigation to lead the Government into a discovery of the Communist membership.

Unidentified Justice: Is it your view that Justice Clark in dissent and the majority in Chaunt were applying the same test?

Mr. Civiletti: No.

I think probably Justice Clark in the dissent was reading the Chaunt test closely or narrowly and quarreling with it by restating and reciting the test that he felt was rejected by the second investigative test stated in Chaunt.

But I don't think that in the discussion by Justice Douglas of the connection, the relationship between the investigation... the concealed facts and potential ultimate facts... can suggest at all that what was meant by the second investigative test, that the Government had to in effect prove by clear, unequivocal, convincing evidence other, ultimate facts indicated a denial of citizenship.

Because, if that were the case, there's no need for two tests.

If the Government must prove that there were existent "facts"--

Unidentified Justice: There'd still be a difference because the first test is very simple: if the concealed fact itself would result in denial, that's it.

The second test would be, there are somewhere in the background facts not specifically called for by the application but which might have been discovered, and would have warranted a denial, but there's doubt as to whether they would have been discovered.

And then the test would be whether the concealed fact would have triggered investigation which might have led to the discovery of a disqualifying circumstance; that's a different test.

Now, I know you don't agree with it but at least it's a different test than the first test.

Mr. Civiletti: --Oh, I don't think so.

If the Government actually has to prove ultimate disqualifying facts in its case, what relationship back does it have to concealment?

It has none.

If it can find those facts or develop those facts under the test advocated by the petitioner which bears little relationship to concealment--

Unidentified Justice: Is there a statutory authority for denaturalizing a person on the ground that even though his application was completely true, there was at the time of the application a fact in existence which if known would have disqualified him?

Mr. Civiletti: --I think so; yes.

Illegal procurement.

Unidentified Justice: Well, that was not the basis, in any event, on which this person was denaturalized.

Mr. Civiletti: That's right.

Unidentified Justice: This petitioner was denaturalized for concealment of material facts or deliberate misrepresentation, was he not?

Mr. Civiletti: That's correct.

Deliberate misrepresentation with regard to his birthplace, with regard to the place of his education, with regard to his--

Unidentified Justice: But in the statutory language he was denaturalized on the grounds that I stated, was he not?

Mr. Civiletti: --On the grounds, what, Your Honor?

Unidentified Justice: That I stated; denaturalized.

Mr. Civiletti: Yes, Your Honor, he was.

He was denaturalized on the grounds of the concealment of material facts.

Unidentified Justice: Well, Mr. Attorney General, the Court of Appeals for the 5th Circuit said that

"the evidence before the District Court clearly and convincingly proved that had the defendant disclosed his guard service the American authorities would have conducted an inquiry that might have resulted in denial of a visa. "

Now, you must believe and must urge that that is consistent with the majority in the Chaunt case.

Mr. Civiletti: It is perfectly consistent with it--

Unidentified Justice: Even though Justice Clark suggested that the majority had rejected a very similar test.

Mr. Civiletti: --Yes.

Stated in different language and from a different... advocating a different standard.

Unidentified Justice: But in any event this test that the Court of Appeals applied wouldn't require actual proof of facts that would have resulted in denial of citizenship but it would require the Government to prove that they might have found facts, and the burden of the Court of Appeals argument as I understand it is that the Government must need some protection from the disappearance of facts.

Mr. Civiletti: Certainly many of these cases, both this case and many other cases in the field, are cases brought six, eight, ten, 15, 20 years or more after the operative facts, particularly if the concealment and misrepresentation takes place and is not only perpetuated in the naturalization but takes place at the time of entry or the time of establishing eligibility under Displaced Persons Act or under immigration quotas or other facts.

And the Government can't be denied, it seems to me, and the petitioner or the defrauder permitted the opportunity to benefit to the extent he would benefit under the petitioner's point of view for 10 or 20 or 30 years, based on his fraud, and then be in no less position than he would have been in had he not committed fraud, since the Government still has this very onerous burden of proof and proper burden of proof, and the petitioner has enjoyed 10 or 20 years of residence and some of citizenship in the United States, and in the process has shifted the burden of proving eligibility and establishing eligibility to the Government because the Government bears the full burden in a denaturalization case, of course, to prove by the standard of proof that either there are facts which it establishes, which show denial of citizenship, or a material misrepresentation or concealment by facts which, if known, would have triggered an investigation which might have or possibly have shown facts warranting a denial of citizenship.

The Government must go further than simply say that there might be facts out there somewhere from which a denial of citizenship could be gathered.

The Government must show--

Unidentified Justice: Well, first of all the Government has to show that there was concealment, doesn't it?

Mr. Civiletti: --Exactly.

Unidentified Justice: Now, this isn't a case... and I don't know if there is a statute which says that regardless of how honest the applicant was, if there were in fact circumstances that would have made him ineligible for citizenship he can be denaturalized.

This is not such a case?

Mr. Civiletti: This is not such a case.

Unidentified Justice: This case is based upon his concealment.

Mr. Civiletti: Yes.

This is not an illegal procurement case.

It is a fraud case, and that's what we're guarding against and protecting against and which we think the statutory provisions of 1451(a) call for and require the Government to do.

Unidentified Justice: Mr. Attorney General, one other minor question.

Under your view of the facts, did the applicant commit a crime at the time he filled out his application?

Is this a criminal penalty?

Is this a criminal offense?

Mr. Civiletti: Yes, he did commit a crime at the time he filled out and made his statements under oath in 1949 to the Commissioner of Displaced Persons.

Unidentified Justice: And is there a statute of limitations on that offense, do you happen to know?

Mr. Civiletti: I'm certain there must be.

Unidentified Justice: But there's no statute of limitations on the right to denaturalize?

Mr. Civiletti: There is no statute of limitations on the right to denaturalize; that's correct.

Unidentified Justice: Mr. Attorney General, Justice Clark was not alone in dissent Chaunt, was he?

Mr. Civiletti: No.

Unidentified Justice: I think I'm the only survivor.

But there were three.

Mr. Civiletti: Let me move to the second point, which is essentially that the lower court found facts and the 5th Circuit affirmed those facts without articulating it, which in and of themselves were proved by clear and convincing evidence, which would have amounted to or warranted a denial of citizenship.

And that essentially is the argument, that the guard service... armed guard service, in a hat and shirt and jacket with epaulets and with stripes, with a black tie, with boots, with a pistol, and with a rifle... was of... in an extermination or death camp, as opposed to all other varieties of camps... was such conduct that under the Displaced Persons Act definitions, adopting the International Refugee Organization definitions in Appendix 1 of its constitution, that it amounted to assistance of the enemy in the persecution of a civilian population.

Jenkins' testimony was uncontradicted and unequivocal and based on over 5,000 applications, the interviews of many survivors, the exchange of information among other like vice consuls... and there were some 30 or 40 of them operating in Europe at the time... that no death guard, no armed death guard would have been granted eligibility under the Displaced Persons Act by a vice consul.

Unidentified Justice: General Civiletti, I refer you to page 117 of the Appendix which is a part of the 5th Circuit's opinion, and it's difficult for me to tell whether the Government is arguing that the 5th Circuit found the District Court's findings were clearly erroneous or whether they simply took part of them and rejected another part of them; particularly if you look at that footnote there.

Mr. Civiletti: On 117?

Unidentified Justice: On Jenkins' testimony about what would have triggered an investigation, on page 117 of the Appendix.

Mr. Civiletti: At that point--

Unidentified Justice: Because the District Court didn't credit all of Jenkins' testimony.

Mr. Civiletti: --Yes.

The testimony there cited, the Q & A there cited, related to establishing Jenkins' testimony at the time, establishing that there would have been an investigation and then further question and answer was:

"And what if the investigation had shown that he had been a guard at an extermination camp or death camp? "

And the answer then was:

"Displaced person eligibility or a visa would have been denied. "

The lower court found that part of, expressly found that that part of Jenkins' testimony with regard to the finding that if he had been a guard the process would have been stopped and that there would have been an investigation... was credible, gave it full weight, found that fact; which satisfies test 2 of Chaunt as far as the Government's proof of clear and convincing evidence.

The District Court went further, though, and found... and this is where I think the 5th Circuit Court of Appeals did not alter the finding, it simply found it unnecessary to determine.

The District Court found that as a matter of either fact or misapplication of law by Jenkins, that the testimony of Fedorenko was such that the service as an armed guard in an extermination camp was so involuntary on Fedorenko's part that it would not have disqualified him from eligibility as a displaced person.

That's what the District Court found.

It in fact interpreted or substituted its view of the definition of voluntariness and the definition within, assisting the persecution of civil population, at the trial; and with Fedorenko's testimony to come to the conclusion that the application by Jenkins of the Displaced Persons Act with the fact and the conduct and all the relevant evidence and knowledge that he had as to the nature of the armed guard participation at a death camp, was... his conclusion that that was sufficient alone to deny a visa or eligibility as a displaced person, was incorrect and not credible or not believable.

I suggest that that was at least a mixed question of law and facts; that the evidence was uncontroverted on the point, from Jenkins; that the voluntary testimony, or the testimony with regard to involuntariness by Fedorenko, was insufficient to establish or to change what would have happened; and the only evidence as to what would have happened with regard, and properly happened with regard to a denial of a visa in 1949.

Unidentified Justice: Mr. Attorney General, can I ask you a question about the the first theory.

In the Chaunt case we were concerned with misrepresentation in an application for naturalization, and the question whether it was a fact in existence would have resulted in denial of citizenship.

Here, as I understand it, we're concerned with a misrepresentation in an application for a visa.

There is no claim of misrepresentation in the application for naturalization, as I understand it.

Mr. Civiletti: Oh, sure.

It was part and parcel of it.

It was perpetuated in the papers, in the underlying documents in the representations to the immigration officer who did the interview for the naturalization.

Unidentified Justice: But let me just finish my point.

The point is that the concealed fact, assuming... is one which would have resulted in a denial of his visa?

Mr. Civiletti: Initially--

Unidentified Justice: And isn't it true that any--

Mr. Civiletti: --and then would have resulted in the denial of his naturalization if it had been revealed at the time of his application for naturalization.

Unidentified Justice: --Well, he would never have been in a position to apply for naturalization.

Supposing for example that at the time he applied for a visa they were only issuing visas to college graduates or married persons or something like that, and he had concealed his marital status or his educational status, and therefore got a visa; then came over and lived here for 20 or 30 years, and then filed the same kind of application for naturalization he did here.

Would the Government be entitled to denaturalize that person?

Mr. Civiletti: Depending on whether or not the--

Unidentified Justice: It was a material fact because it would have prevented his getting the visa.

Mr. Civiletti: --It depended on whether or not that continued until the present time and there was no change or no modification.

Unidentified Justice: But it was never revealed.

The same thing continued.

Mr. Civiletti: I think the answer to that question is the Government feels that fraud conducted at that time, which ties and relates to the ground for his lawfully being in the United States for five years... which is a condition for naturalization, we can reach back and denaturalize him for that fraud and that that is the scheme and structure of the statute in 12... 1451.

Unidentified Justice: So the test in the denaturalization proceeding is whether the concealed fact in the application for visa would have resulted in the denial of the visa.

It doesn't have to be a fact which would result in the denial of citizenship in and of itself.

Mr. Civiletti: I think it would relate if you are unlawfully here because your visa is unlawful, that is--

Unidentified Justice: Right; you didn't admit you were married--

Mr. Civiletti: --a precondition to, and one of the criteria for naturalization.

And therefore it relates to naturalization and it would produce a failure warranting a denial of naturalization.

So it's not totally unrelated.

Now, that's not this case, because there was a perpetuation of the concealment and of the misrepresentation directly and specifically throughout not only the visa circumstances in 1949 and 1950 but then on into and through 1969 and 1970.

Unidentified Justice: --Well, I assume that in my case.

The man never has admitted that he was married or whatever it was.

Mr. Civiletti: Thank you, Your Honors.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.

Attribution:

The OYEZ Project

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Transcript:

Argument of Judith A. Gordon

Chief Justice Warren E. Burger: We will hear arguments next in 76-208, Nyquist V. Mauclet.

Mrs. Gordon, you may proceed when you are ready, if you would like to go over the lectern, you may do so readily, on the crank on the side.

Ms Judith A. Gordon: Mr. Chief Justice, and may it please the Court.

New York offers grants and subsidized loans to undergraduate and graduate students among its Higher Education Assistance Programs.

Only grants are directly in issue on this appeal, particularly region's college scholarships which are awarded competitively on the basis of performance on an examination and to Tuition Assistance Awards known as TAP which are available to any qualified student.

The question presented is whether New York may, consistently with the Equal Protection Clause offer these grants to state residents who are citizens, to aliens willing to become citizens and to certain alien refugees.

Necessarily excluding other aliens including aliens like appellees here in, who are permanent residents who had refused to become an American citizens.

The Mauclet case was instituted in the Western district of New York in February 1975.

The Rabinovitch action was instituted in the Eastern district of New York in August of 1974.

Both cases were determined by a Three Judge District Court in the Eastern District which ended in a judgment from which this appeal is taken.

Now appellee Mauclet is a French citizen and he has been a permanent resident alien in the United States since 1969.

He was a graduate student at the State University of New York at Buffalo at the time the judgment below was entered and he had been denied a Tuition Assistance Award as a graduate student, for the 1974-1975 academic year on the basis of the State Statute involved section 661 because in essence he refused to become an American citizen.

Appellee Rabinovitch is Canadian, he has been a permanent resident in New York and in the United States since 1964, he was an undergraduate student at Brooklyn College in the city of New York when the judgment was entered and he was not a Regions College scholarship for the same academic years involved in the Mauclet case because again he refused to apply for American citizenship.

Indeed as he states in his affidavit filed below, he has no intention of applying for American citizenship.

Unknown Speaker: Miss Gordon how much are we talking about in dollars, do you have any idea?

Ms Judith A. Gordon: Yes Your Honor, we do, we have the exact real figures as a matter of fact.

The direct Student Aid Program which is involved, and with specific reference to Regions College scholarships and to Tuition Assistance is $208 million in the State of New York for this present fiscal period, Your Honor.

Unknown Speaker: Well how many aliens are there who would eligible if the judgment of this court is upheld, how much are we talking in dollars in that point.

Ms Judith A. Gordon: Your Honor, frankly I can't respond on that, it's not is that we did not try to get the statistics but because we have a program which has foreclosed some aliens.

We do not know what opening that program would mean and indeed a statistics that would be more potentially relevant namely an age category of permanent resident aliens in New York were not available from the Immigration and Naturalization Service, the ones that were, were completely unrealistic.

Unknown Speaker: Of course not, the question I asked, is how much are we litigating about in this lawsuit?

Ms Judith A. Gordon: Oh, I am sorry, I mean what would be the difference in cost?

Unfortunately, Your Honor we cannot project that.

Unknown Speaker: So we may not be speaking about very much?

Ms Judith A. Gordon: That's correct Your Honor.

We may not be speaking about very much however this, given the quality of this scholarship program as a selection program it does have an extension in terms of other scholarships which are necessarily equally selection programs and then they have involving much greater public cost.

Now region scholarships share.

Unknown Speaker: But this is what I suppose, it isn't strictly a question of cost anyway, if these people are eligible that excludes others who might otherwise get?

Ms Judith A. Gordon: Exactly Your Honor?

Unknown Speaker: It is the question of who will get the piece of the pie?

Ms Judith A. Gordon: Of course Your Honor, it's the basis of any selection program that involves a public benefit is of course, ultimately a finite resource and of course the question then becomes, who has the better demand on that resource, the people who are included or all people who are now excluded.

Unknown Speaker: Now, the kind of grants you are talking about here are not ultimately repayable, I tell you, they are not loans.

Ms Judith A. Gordon: That is exactly right Your Honor, the Region Scholarships and the TAP awards are pure grants-in-aids, they are gifts.

Now, a separate issue is in fact raised in this case with respect to student loans which by definition are repayable.

Now, the statute, the state statute, in issue Section 661 covers student loans and appellee Rabinovitch has attempted to place the regulation of that statute, these are the student loans in issue in this case.

We contested his standing to do that below and the issue was determined against us, we have re-raised it on this appeal and it raises some very significant questions, however I think it's sufficient at this point to point out to you, that to the extent that loans are in fact subsidized by public money, they are to that extent gifts and can be fairly analogized to the grant program.

Unknown Speaker: Well, except, I would think for you would have an argument available to you in the loan situation that you don't have in the grant situation, that someone who insists on remaining a national, a national of Portugal is much more apt to be avoid service of process, that New York tries to compel repayment of a loan, 20 years from now, than someone who is a resident of the United States.

Ms Judith A. Gordon: That's exactly right Your Honor and it's our position on this appeal even putting aside the standing question, that remand would need to be had on the loan issue to raise indeed the issue just mentioned namely whether there was a basis to infer that there was this additional rationale that the alien unwilling to become a citizen would be more likely to leave the jurisdiction and not return than the alien who is willing to become a citizen, we do seek remand or we believe that unless 661 can be sustained under the Equal Protection Clause but to invalidate the statute would be quite because we would want to raise that additional issue including some other additional issues that pertain specifically to loans because they are partially federally subsidized.

The grants-in-aid, the TAP awards and the Regions College Scholarships are not in fact in any way federally subsidized, they are completely state?

Unknown Speaker: Miss Gordon, I am not sure, it would make at least for me, make any difference whether it was a $100,000 a year or $10 million a year but if the District Court is correct, is it unreasonable to speculate that this might bring an influx of graduate students from countries all over the world who would be pass to our door.

Ms Judith A. Gordon: Absolutely, that's exactly the problem or the question you pose, is exactly the problem that arises when any program that was formally closed is now open and we tend to calculate what would happen.

Now, obviously, if any alien knew that by his mere presence in the state, either as an immigrant or possibly as a non-immigrant, he could get aid to education, well, presumably he would want to come here.

Now if...

Unknown Speaker: Do you say, our government is paralytic to keep the aliens from coming?

Ms Judith A. Gordon: Do I think the government is paralytic to keep the aliens from coming?

You mean the State government or the Federal government.

Unknown Speaker: Federal government.

Ms Judith A. Gordon: Of course not Your Honor, of course not.

Unknown Speaker: So, I don't understand about this great inflow, if we could stop that easily.

Ms Judith A. Gordon: Well, I don't how whether they could stop me from whether or would it even be realistic to assume Your Honor that they could stop him from settling in New York state, once they were admitted to the United Sates, However I should point.

Unknown Speaker: What about United State citizens who are say, native Californians, who come to New York and stay there temporarily, are they eligible?

Ms Judith A. Gordon: There is a durational residence requirement for TAP awards and for college scholarships, Your Honor.

Unknown Speaker: Would the influx problem be any different for worrying about people coming from California than from France?

Ms Judith A. Gordon: Well, I think there would be different at least to this extent Your Honor, California the example, you took happens to have one of the most major public university systems in the United States and probably has a durational residence requirement incident to a system which could be met by an individual going from New York within a fairly brief period of time to California.

Now the same, the same principle, I don't think?

Unknown Speaker: Well let's assume there is a state, are there are any states that have less desirable programs than New York does?

Ms Judith A. Gordon: I believe so Your Honor.

Unknown Speaker: Let me take such a state for my hypothetical example.

Ms Judith A. Gordon: Pardon me Your Honor.

Unknown Speaker: Then take such a state, would your influx problem be any different for people who live in such a state as compared to people who live in a foreign country with a less desirable program.

I suppose it's probably a greater possibility they come from neighboring states, than they come to know about it, one thing or another.

We are just worrying about the influx problem.

Ms Judith A. Gordon: Yeah, well, I think it's obvious Your Honor, that New York, California and indeed there are many states in the union which offer enhanced benefit programs and possibly for that reason have been a population centers in the United States within, in other words, they have attracted people to the United States, certainly that was too historically in terms of the North being more attracted to some individuals than the South.

However, I think there are couple of points that need to be emphasized.

First of all, with respect to Canada for example, Canada states very plainly in its information offered through its consulate that it provides no grants-in-aid of any kind to undergraduate students.

Now, I do not have the law nor although I do have its booklet now.

Obviously, appellee Rabinovitch is getting in the United States, what the American student who went to his homeland could not get in Canada.

Now the situation, we attempted to check out the situation with France Your Honor, but the information was frankly not available to us.

Unknown Speaker: Miss Gordon, what would you regard as the primary purpose of the statute, I think, I have sensed a few that you have in remarks, but tell me what do you think are the primary purpose of the statute?

Ms Judith A. Gordon: Your Honor, the statute operates in terms of its purposes and in our view, in a very close nexus with the type of classification that's involved.

Now we have indicated, we have argued and we believe that the legislative history directly supports this, that the statute has a specific purpose in enhancing the educational level of the individuals in New York State who are willing to become identified with that state, namely those individuals who undertake the responsibilities of citizenship.

Unknown Speaker: Isn't that a federal concern rather than a state concern, number one and number two how do you defeat what Mr. Justice Stevens has been talking about, of having a great influx from other states, you can say New Jersey and Connecticut if you want rather than go away across the country, who might think they can get a better deal in New York, and we're willing to be there for few years.

Now, how do you defeat that, you admit them to your program, don't you?

Putting another way, isn't this the same argument that was made here in In re Griffiths and all the other alien cases.

Ms Judith A. Gordon: To take the last point first, no Your Honor.

First of all the influx problem, I think we should proceed it this way.

The statute, the classification involved does ask the alien to declare his intent to become a citizen or to apply for it, that is some evidence of his willingness to stay in New York.

The interstate resident who comes into New York to live and needs the durational residence requirement is already a citizen Your Honor.

He is fully eligible, by virtue of his birth and naturalization and his prior place of abode to participate.

Unknown Speaker: But precisely, that's my point you see.

Ms Judith A. Gordon: The point is that once the citizen satisfies the durational residence requirement, he is able to participate in the state community to the same extent, as the state resident who is already here, the alien cannot accept and he refuses that kind of responsibility, until the point in time when he becomes naturalize?

Unknown Speaker: Cannot participate in one sense, voting?

Ms Judith A. Gordon: He cannot vote, he cannot be an office holder, he cannot be a jeweler, he cannot be a policeman and indeed with respect to?

Unknown Speaker: Well some of those issues are under consideration, here right now.

I don't think you can assume them.

Ms Judith A. Gordon: I am sorry, Your Honor, Perkins v. Smith was affirmed by this Court and that's the state jury case, Your Honor.

There is certainly quite plain language in Dougall v. Sugarman, in other opinions of this Court, that within a office holding categories, the state may indeed use citizenship as a criteria for those types of positions, in the case, I believe, you mentioned that's before you now for disposition, here as Foley v. Connelie, which in the Southern district sustained its citizenship limitation for police officers.

Unknown Speaker: Would you follow them from admittance to the state universities.

Ms Judith A. Gordon: No, Your Honor, I am glad to raise because that's one of the points and issue.

Unknown Speaker: And the difference is?

Ms Judith A. Gordon: The difference, first of all, the financial difference is very substantial.

The direct student aid budget, a portion of which I gave you before, as I said, was $208 million.

One-and-a-quarter billion dollars is spent by the state of New York sponsoring its state public university and in providing contributions to City Universities.

Now, the whole purpose and some independent colleges.

The whole purpose of that program is to provide reduced tuition rates, now those reduced tuition rates are available to aliens with very minor exceptions, not here relevant and to citizens unlike terms.

Now, as you indicated Your Honor, there is a difference, why should New York then say with respect to this particular limited category of awards.

We are going to exclude some aliens, I think the answer Your Honor must be that this is a limited program, seeking a limited purpose namely.

Unknown Speaker: You said, all the money is just given away, do not require to you say.

I understand you to say that you could exclude him...

Ms Judith A. Gordon: From reduced tuition, Your Honor?

Unknown Speaker: From admission.

Ms Judith A. Gordon: From admission to New York state?

Unknown Speaker: New York State University.

They have got a million dollars and they pay in their own way, could you exclude them because they are aliens?

Ms Judith A. Gordon: Well, Your Honor I don't obviously the question is not clearly presented by this case, I would think certainly that an exclusion like that with parallel cases like Graham v. Richardson, with parallel cases like Sugarman v. Dougall, where the foreclosure on the access of the alien to a substantial program which is very meaningful to him, would indeed probably burden his access or burden his ability to enter and abide in the United States inconsistently with the Truax doctrine.

Unknown Speaker: Could you charge the alien with non resident tuition equal top what you charge non-resident students and who are shifted to United States?

Ms Judith A. Gordon: Your Honor, that issue was considered in a recent lower court case and held that all aliens could not be classified in terms of -- as non residents for reduced tuition purposes and I think that example again, that's a much more substantial barrier?

Unknown Speaker: Do you confine your loan and scholarship programs to residents in New York?

Ms Judith A. Gordon: Yes we do Your Honor.

Unknown Speaker: Hence that they are residents or citizens of New York?

Ms Judith A. Gordon: No, no Your Honor merely to be a resident of New York is not be a citizen.

Unknown Speaker: When do you get to be a citizen?

Ms Judith A. Gordon: Well, a citizen of New York.

Unknown Speaker: I mean, say I move to New York from New Jersey and I am going to reside there, you mean I am not a citizen?

Ms Judith A. Gordon: No, as an American, as a...

Unknown Speaker: Well that's what I am asking you, if I become a resident of New York, moving from another state, am I a citizen?

Ms Judith A. Gordon: Yes you are Your Honor, he become a citizen...

Unknown Speaker: So you confine your loan and scholarship programs to citizens?

Ms Judith A. Gordon: No Your Honor, we confine our loans and scholarship programs to citizens who are residents of the state for a particular period of time and we also provide the loans and scholarships?

Unknown Speaker: I am not -- you cannot, it cannot effect of your program, whether I am a citizen -- even though I am a citizen of United States.

I cannot participate in your loan program, unless I am a citizen in New York.

Ms Judith A. Gordon: That is correct, unless you?

Unknown Speaker: You said I have to be a resident?

Ms Judith A. Gordon: Yes Your Honor.

Unknown Speaker: Alright so we are not really treating your alien very much, any much differently he still has to be a citizen?

Ms Judith A. Gordon: Well, exactly except that the program is somewhat broader than that and so far as the alien can get the benefit of the statute, without in fact becoming a citizen, he can get it in effect if he has a certain refugee status and he can get it in a process of becoming a citizen, that's why it's somewhat?

Unknown Speaker: Or if there is some barrier to his becoming a citizenship and you can control...

Ms Judith A. Gordon: Exactly yes, if he cannot presently become a citizen, he is allowed to declare his intent, and that your point Your Honor distinguishes this case, I think very materially from prior cases that we have had, that the court has recently reviewed, in two ways, first of all the classifications in Graham and Sugarman, in de Otero were in fact classifications based on alienage the status of alienage.

Now, we have argued that this not such a classification and I believe it's incumbent upon us to show you that it is not such a classification either in logic or as a matter of reality.

It is not such a classification because the mere offer of the statement alienage under this statute, gets you nowhere.

The statute inquires alienage and something else, we have said that is the statement by the alien who is to the extent that he is willing to identify with what we believe are the interests served by the statute and he gets the money in reality, he gets the money for the entire duration of his alien status assuming he makes the commitment that is requested by the statute.

The statute is also very different from Graham and these other cases, in this respect, in Graham and the cases noted.

The alien was barred from access to as we noted very substantial programs by governmental bar.

The foreclosure was, as a specific result of the governmental action, there was nothing that the alien could do to get the benefit of that program.

In this situation, the statute places its decision making upon the alien, he may or may not wish to make the commitment that the statute offers to him, but if he in fact makes it, he gets the benefit of the program immediately.

Now, as I indicated, there are certain specific and we believe substantial interests involved in the program and they are..

Unknown Speaker: Not a large differences between this case and the others to which reference has been made, maybe you touched on, and I didn't understand it, is that this involves a system of state largess giving money away.

Ms Judith A. Gordon: Yes, exactly and I think we should ask what the consequence of that type of system is, as compared to the consequence of denying an alien, for example, welfare benefits.

Unknown Speaker: Or a job opportunity or turn them into something you achieve statutorily in time...

Ms Judith A. Gordon: Those can fairly be said I believe to burden his right to enter and abide.

However, if we give some group of individuals simply a gift, I do not think that we can fairly say that we are burdening or penalizing the individuals who do not receive the gift.

For example, I do not think that the in-state limitation, the in-state residence limitation, that is next to this type of program.

A residence limitation essentially approved by this Court in Vlandis v. Kline can realistically say that we are burdening New Jersey residents who do not get the benefit of this program.

This Court affirmed the opinion of Spatt v. New York which involves specifically, the use of Region College Scholarship.

Now in Spatt, the individual who brought the claim wanted to take his Regions College Scholarship and use in New Jersey, now we don't permit that the college scholarship has to be used in New York and he argued that it's -- our preclusion of this use of that scholarship in New Jersey penalized him and this court affirmed a decision which said that there was indeed no penalty involved.

Now in contrast of the Tuition Assistance Program, I indicated to you previously the total amount of money that was involved but whereas the Tuition Assistance Program, in our view potentially involves a foreclosure of access, the program here involved is as I say, limited in the terms of gross amount involved and very limited in terms of the amount of benefits that any individual receives, namely under...

Unknown Speaker: The state also quote, use the word largess but what about the amount of money that's put into the university, what is that?

That's a huge amount.

Ms Judith A. Gordon: It certainly is Your Honor.

Unknown Speaker: But you can't bar him from that, but your point is you cant bar him from that but you bar him from this extra, is there are a better way, I put?

Ms Judith A. Gordon: I think, I do not think that the issue of whether you could bar aliens from reduced Tuitions has been finally resolved.

As I indicated to you, there is one lower court opinion on point.

I do believe that the issue of barring an individual from an access to a publicly sponsored education when, for example, in California the state system is the pre-eminent system within that territory, places a much more substantial foreclosure on the alien than denying him a gift and here as I was about to indicate, the dimension of that gift, in terms of a region scholarship is now $250 annually.

The dimension of the Tuition Assistance Award is between $100 and $1500 depending on the income level of the individual, however, the first $200 of such awards are necessarily exempt, and there is an income sealing with respect to the eligibility of the candidate to receive the award.

So we are not talking about in the legislative history certainly does not purport to say, but this is a program which is intended to subsidize the complete cost of education.

The major subsidy comes at the end of the comes in the reduced tuition, thank you Your Honor.

Chief Justice Warren E. Burger: We will resume there at one o'clock, Miss. Gordon.

Mr. Davidson.

Argument of Michael Davidson

Mr. Michael Davidson: Mr. Chief Justice, may it please the Court.

Jean-Marie Mauclet is the husband of a citizen, he and his wife have a citizen child.

He is an immigrant to this country and he is entitled by the Congress of the Untied States to make this his permanent home.

If the judgment.

Unknown Speaker: Would it make any difference, if he didn't have an American wife or an American child?

Mr. Michael Davidson: Yes, I think it would make a difference in that, the fact that he has an American wife and an American child makes his residency in this country at the heart of The Immigration and Naturalization Act.

It's the central function of the Immigration and Naturalization Act.

As it now has been amended in 1965 and is recently at the last session of Congress, is to facilitate the unification of families, families of citizens and immigrants or families of immigrants and this is evident in a number of ways, the immediate relative of the United State citizen maybe admitted to this country without regard to numerical limitation.

Although this country has felt it important to place limits on the number of immigrants since 1921.

Unknown Speaker: Your argument goes to any legally present resident alien?

Mr. Michael Davidson: Yes, it goes to any, but I think it should be recognized that 74% of the preferences in the Immigration and Naturalization Act apply to members of families, families of citizens, families of resident aliens.

I think it's also significant because it is far more than the alien who is injured here, it is his citizen wife and his citizen child who are injured when he is deprived of an equal access to an education which would enable him to support that family unit.

Unknown Speaker: Does the record give any indication as to what percentage of permanent aliens actually are permanent in the sense that they never returned to their native homelands?

Mr. Michael Davidson: No, there is no such part of this record.

The only statistics in that we have our statistics in our brief which indicate that we are really talking about a very small percentage of people in the state university system in New York less than three tenth of 1%.

Unknown Speaker: Does the record show why your client does not wish to apply for American citizenship?

Mr. Michael Davidson: No it does not.

It simply contains his statement that he did not wish when asked by the state to apply for citizenship at that time.

The state neither answered or complained nor answered our affidavit, it simply accepted those statements contained in those documents treated this matter as having really no disputable issues of fact and proceeded to move as we did to summary judgment.

To affirm the judgment below would not mean that there would be a massive influx of students to this country, who might obtain the benefits of New York assistance.

New York has a residency requirement, non-immigrant students, a very large group of foreign students who come to study here annually are precluded from obtaining New York residency.

They are precluded by state regulation, in fact they are precluded by the Immigration And Naturalization Act.

That act requires that they have some residence somewhere else in the world and they would be subject deportation if they claim to the state of New York that they were residents of that state.

Now, the history of this act, the state act involved also indicates that we are really talking about a very small number of people and the state understands that to be true.

Unknown Speaker: Well again, what is the difference does that make in constitutional sense?

Mr. Michael Davidson: Well, I think it even makes the state action far more capricious than I would argue it, it is.

In 1961, when this program was established, there was no citizenship requirement and for a period of eight years, immigrant and citizen in New York state were entitled on equal terms to access the state tuition assistance.

In 1969, the state enacted the citizenship requirement which is now under review.

The only indication of legislative history, legislative policy involved is an estimate by the staff of the appropriate legislative committee, that there might be 50 students in the state who would be excluded by this provision and a sum of $10,000 say -- that figure incidentally disappeared from all further accountings and it could very well be the state anticipated no savings because if they are right, if it functions as an inducement for people to petition for citizenship, then the net result might be more citizens and no savings in funds.

I think that requires us to put aside any possible suggestion that the state of New York might be bankrupted by a judgment which requires them to treat immigrants and citizens alike.

Unknown Speaker: You mean more bankrupt?

Mr. Michael Davidson: More bankrupt.

Unknown Speaker: What would you say, hypothetically to a hypothetical statute of this time.

New York legislature after conducting hearings determines that they are lacking 3000-4000 positions who are needed or the projections are that within five years they will need 4000 more physicians.

So they develop a grand program to pay the entire tuition for New York residents for any Accredited Medical School in New York and aliens, the citizenship in the United States and residents in New York being required, what would you say to that?

Mr. Michael Davidson: I would say that would be invalid Statute as the matter of fact, the District Court in New York has invalidated the State's citizenship requirements for doctors following this Courts decision in regard to engineers and attorneys.

Unknown Speaker: That's a little different from -- I am talking about a program whose aim is to induce some people to become physicians in New York.

Mr. Michael Davidson: Yes, and if an immigrant is entitled equally with a citizen to become a doctor then our argument would be that he is entitled to the opportunity to become a doctor.

Unknown Speaker: Well then, let me add another clause to the Statute that to secure this grant, you must make a pledge to remain in the practice of medicine in the State of New York for not less than ten years and failing to do so, you would be required to pay one-tenth of the total cost of the grant of the scholarship for each year that you fail to stay in New York.

Mr. Michael Davidson: I believe that will be a permissible Statute, because it would require the same commitment by the citizens as it would require of immigrants.

In fact, the State of New York and other jurisdictions have such Statutes in which medical students pledge to work in designated areas, in return for assistance.

The program is more than a program of largesse.

It is the judgment of the State of New York that this assistance is necessary to achieve post secondary education, in these times.

It is not our task nor do we think it's a burden of the court to decide for itself whether this assistance is necessary, that is fact has been the determination of the State of New York.

I think that we are entitled to take the State at its word in that respect.

I think we are also entitled to take the State at its word that if it's assistance is unavailable, a large group of people will not receive the adequate and sufficient training to deal in a technical and difficult society.

This program involves more than Colleges and Universities, although people are certainly assisted in large numbers there.

It involves assistance to re-granting trade in technical schools, nursing programs, registered business schools.

The means of entries that people have following secondary education to an opportunity to earn a decent livelihood.

Unknown Speaker: One of the conditions generally upon these three programs are, three sources of money are available.

There is the Region Scholarship and that's a comparative merit.

Mr. Michael Davidson: That's right, for a limited number of people.

Unknown Speaker: For a limited number of people on the basis of an examination or an oral examination or an interview?

Mr. Michael Davidson: A Written examination.

Unknown Speaker: Then, there is a TAT, which is a grant of $250 each, is that available to any body who is admitted by State University?

Mr. Michael Davidson: Well that tuition assistance program.

Unknown Speaker: Depending upon the need of course.

Mr. Michael Davidson: It is applies to all schools, whether that be the State University or Private Schools.

Unknown Speaker: All schools of higher education.

Mr. Michael Davidson: All schools of post secondary education.

Unknown Speaker: Post High school.

Mr. Michael Davidson: The grants run from a $100 to $1500 all based on needs.

If there is no need, there is no grant for undergraduate students, $600 for graduate students.

But, the only requirements.

Unknown Speaker: If there is need there is a grant for anybody who has been admitted or whose is in a college or University.

Mr. Michael Davidson: Exactly, it is considered to be an entitlement program, admission to an approved institution in need are the sole requirements for the receipt of the grants.

Unknown Speaker: From the TAT?

Mr. Michael Davidson: That's right.

Unknown Speaker: How about -- the loan is similar to TAT, so far as conditions of?

Mr. Michael Davidson: Well the loan programs are different.

Mauclet has not complained of the denial of a loan, neither has he complained of the denial of the Region Scholarship, both of those programs are different.

His focus is entirely on Tuition Assistance Program.

There is an addition, a maximum amount based upon the amount of tuition, no person may received more than a tuition for the program in which he is eligible.

So, this is not a sum of money which he may use for any different and individual purpose.

May, I just return one moment to the importance which Immigration and Naturalization Act places on the unification of these families.

There is a requirement in the act that certain categories of the immigrants receive certificates from the Secretary of Labor, before they may be admitted which would establish that they would not disadvantage citizen workers.

Displace them at their work, force reduction in wages or working conditions.

The act specifically exempts all immediate relatives, all relatives is in fact, because it is so important to the Congress of the United States that these people have an opportunity to reside permanently in this country, to maintain the integrity of their family units which must be also the integrity of it as an economic unit.

Unknown Speaker: How far in the family -- what is the degree of relationship?

Mr. Michael Davidson: Well, in terms of intermediate relatives, it's spouses, children, and parents and then the system of preferences moves progressively beyond that ultimately to brothers and sisters.

Unknown Speaker: Grand children.

Mr. Michael Davidson: I do not believe so, Your Honor.

If the Congress has to make that judgment that it is so significant as a matter of National policy, no matter what the effect on present residents of the United States may be, we think that it is a conflict to that congressional scheme, for the State of New York to impose its own judgment on the matter and to say that these immigrant families are less worthy of its assistance.

Also, the State makes the argument, well, there are other ways in which person may finance the education.

Well, let's choose citizens as well.

These are integrated programs.

The Federal Government has its programs, the State of New York has its programs, they are worked together by rule and regulation to provide a composite.

The State of New York says to a student, to an immigrant student that he may not receive this assistance, he does -- the State places in, in extreme jeopardy that person's opportunity for an education.

Let me conclude this section by indicating that the objectives of the States of New York which it proclaims in this suit that of encouraging people to become citizens.

It is an objectives which is properly the objective of the national government and this is another aspect of the State's scheme which conflicts with the general national regulation of immigration.

Mauclet has not excluded the possibility of the becoming a citizen.

He was simply not ready to do so, when the State in essence commanded him to do as the cost of his education.

He may become a citizen later on.

The Naturalization Act places no maximum time limit on a person, they petition to citizenship.

It only places in a minimum period of time.

Unknown Speaker: Could the State of New York, constitutionally in your view, have this provision that we were discussing before that he would pledge to remain a resident of New York for at least five years after he completed the graduate work?

Mr. Michael Davidson: I think he could, it if it also require that pledge of its other residents.

Unknown Speaker: What's the different between that course and then the kind that is exerted on him now, except that -- say it isn't applied across the Board, is there any other?

Mr. Michael Davidson: The essence of this proceedings, this action is a equality.

The equality as required by Immigration and Naturalization Act between the citizen and immigrant or a equality as required by the Equal Protection Clause.

If the State of New York treats its immigrants and citizens alike then we would have no objection to that, thank you.

Chief Justice Warren E. Burger: Very well.

Mr. Greenberg.

Argument of Gary J. Greenberg

Mr. Gary J. Greenberg: Mr. Chief Justice, and may it please the Court.

I would like to begin by focusing on Mr. Justice Stewart's reference to New York dispensing its largess to certain students that institutions to post secondary education.

We think it can hardly be classified as a gift, when what the New York State Legislature is doing, is taking the tax dollars which aliens of course, contribute equally with citizens and determining to dispense them in a particular program.

Now, we do not ask this court and we did not ask the District Court to substitute its judgment, for the judgment of the New York State Legislature.

Let me read to you, that judgment is articulated in 1961 when the program was really a put in to high gear and the Tuition Assistance Awards first came into being.

The New York State Legislature said, 'Higher education is no longer a luxury, it is the necessity for strength, fulfillment and survival.'

Now, the New York State Legislature has determined that this type of program is vital, it is essential to the well being of those people who reside in the State.

Unknown Speaker: Where are you reading?

Mr. Gary J. Greenberg: That comes from the laws of the 1961, Chapter 389, Section 1(a).

Unknown Speaker: It is written in the Appendix or it is in your brief?

Mr. Gary J. Greenberg: I believe actually that is quoted in full in brief of the State and as a further indication of the statutory purpose and this is something that we have quoted in our brief, the Page 21, in 1969, when the program was somewhat revised again, the Governor Rockefeller in his memorandum indicated, this is the Memorandum of Approval of the Bill, that the new revisions would do much to further New York State's goal that no young man or woman with the capacity and desired to seek a college education should be prevented from doing so, for lack of financial resources.

No reference to citizen, simply recognition?

Unknown Speaker: The same Legislature that excluded the aliens.

Mr. Gary J. Greenberg: That's the same Legislature that?

Unknown Speaker: You have details about all?

Mr. Gary J. Greenberg: Well I don't really, we don't really know why the Legislature or excluded the aliens.

We have no Legislative history and aliens have been excluded in one fashion or another but no in a consistent manner, since, approximately 1917, yet the New York State Legislature has never told us why they opted to exclude aliens, to the extent the Legislative history gives any guide, it is one; administrative convenience and two; the saving of $10,000.

The jurist prudence of this Court makes it clear that those purposes clearly can not satisfy New York's burden, when it invokes this types of invidious classification.

Unknown Speaker: Could the New York Legislature give the resident aliens of this category, the right to vote in New York elections?

Could they do it under their constitution?

Mr. Gary J. Greenberg: Under the present constitution, they could do not do it.

In fact, at one point, I think until 1825, New York in fact allowed, resident aliens to vote, as I think virtually every State did at that point in our history.

I think, it's clear that this court has determined that New York can exclude resident aliens from voting, it can exclude them from holding elective office, it can exclude them from high policy making office and the issue before this Court, maybe in the next case would be whether that includes the State police officer.

Unknown Speaker: Are there any statistics in the record that would indicate whether the parents of the aliens who apply for this sort of grant are themselves residents of New York or residents of United States or are on the contrary residents of some other country?

Mr. Gary J. Greenberg: There are no such statistics.

The facts in this case indicate that Mr. Rabinovitch, his entire family is resident in New York and has been since 1964.

There are no statistics as to in general.

Unknown Speaker: Percentages.

Mr. Gary J. Greenberg: No, we do not have that and I do not know if such statistics are maintained anywhere frankly.

The State argues and perhaps there was some suggestion that this issue troubled the court, and I refer to specifically to Justice White's question, that we really do not have the discrimination against aliens here, that the Statutory distinction is something different.

The State argues, we are not discriminating between citizens and alien, that what this Statute does, is it discriminates within the class of aliens.

We think that reasoning as the District court put it, simply defines logic.

Indeed, in preparing for this argument, I had occasion to look at your decision last term in Mathews v. Lucas that involved the social security, dependency allowance to legitimate children with certain presumptions as to dependency for legitimates and certain presumptions within the category of illegitimates and apparently the Solicitor General argued, this was not a discrimination between the legitimate and the illegitimates, and in a Footnote 11, this Court says, that's nonsense just because you have distinctions within the class of illegitimates, you cannot argue logically that therefore this is not a distinction between the legitimate and illegitimate children.

We have here a Statute which on its face says, 'Citizens and those aliens who are willing to apply for citizenship will receive a certain benefit'.

Unknown Speaker: Didn't Mathews v. Diaz, last year though, contained language contrary to that, which you just suggest that it is permissible to distinguish within classes of aliens when the Federal Government does it?

Mr. Gary J. Greenberg: Yes, when the Federal government does it, that kind of distinction is permissible and the fourth part of the Mathew's opinion makes the very clear distinction that while it is the normal every day constitutional function of the Federal government to distinguish within the class of aliens and between citizens and aliens, entirely different considerations are involved when a State makes that kind of discrimination.

Unknown Speaker: But then it does not make any sense to say that these are really not discriminations or that they really are discriminations.

What you are really saying is that one level of government has the right to make them and the other doesn't, not that when one makes the thing that the other does, there are discriminations in that and in the other case they are not?

Mr. Gary J. Greenberg: Oh, No, absolutely they are clearly classifications of discriminations and the what Mathews holds is the Federal government has the power and reading Hampton together with Mathews, at least the President and the Congress have the power to make such discriminations.

What Mathews, I think quite clearly holds in the Fourth part of the opinion, is that the State governments do not have the similar power, unless and I have heard very little today about the unless part, unless the discrimination satisfies some legitimate and substantial State interests.

We look to see what the State interest is, in this particular statutory classification.

Frankly, the argument put forth by the Stat, we think is nothing but a convenient but false post-talk rationalization.

The State tells us that they are seeking to encourage in essence, voter registration and office holdings.

Now, how does the Statue which simply provides tuition assistance, region scholarship or student loans encourage voter registration or office holding?

Indeed, when confronted with this particular statutory purpose, the District court said not only can the State satisfy a substantial interest here, there isn't even a rational relationship between this asserted purpose and the Statute under consideration.

We search a link to seek a method by which this Statue will some how further these goals and indeed it is interesting to know as the brief for Mauclet points out in detail.

New York has a variety, a whole host of these, habitual reflexive discriminations against the aliens and they are in court on many of these cases right now.

In every one of these cases, the same rationalization is used.

We are told that requiring citizenship for the licensing of physicians promotes the New York political community.

The State argued, believe it or not that the same political community rationale justified their requirement that physical therapist be citizens of United States.

It is a ubiquitous argument trodded out on every occasion by the New York Attorney General presumably seeking to find support in the Sugarman caveat as what would be a substantial State interest.

In this particular case, we don't see the how the Statute even approaches anything which we could be consider to be a substantial interest.

We don't see how the Statute is narrowly and precisely drawn to promote the interest.

Indeed, we think it's clear and we think Legislative Memorandum Number 8 focusing on the $10,000 saving.

We think it's clear that what New York was doing was out of habit, focusing on a traditionally discriminated class and seeking to save a few dollars of their expense and doing it in a situation where the New York Legislature has already determined the significance and the importance of this program to the individual.

Now, the fact that total foreclosure is not the consequence of this program, should make we think, no difference.

Unknown Speaker: That is you mean, the fact that some aliens are eligible?

Mr. Gary J. Greenberg: The fact that some aliens are eligible, the fact that aliens can go to the universities if they can fund the particular cost themselves without any student assistance, what the state argues...

Unknown Speaker: Well, there is student assistance, there generally is, institutions of higher learning today, students don't pay the full cost.

Even it they pay the full fees, that's not the full cost.

Mr. Gary J. Greenberg: Oh! Absolutely.

Unknown Speaker: It's generally about 50-60% of it, and if the most.

Mr. Gary J. Greenberg: That's right, but in case for example, Mr. Rabinovitch, he now, has $925 annual tuition cost.

If he were a citizen and in his case, he would have to do have more than the clear intention, he would have to actually because he is eligible, he would via the Region Scholarship which he won on a competitive examination and via tuition assistance, that full amount covered.

In his economic circumstances, this imposes an enormous burden upon him and his family, because he gets no assistance, none whatsoever.

Now, I should like to make two additional points before closing.

With reference to the loan program, the state made some reference to a requirement or a request for remand, I frankly don't understand what they are talking about -- the State had a full opportunity to try this case below, the State moved for summary judgment, the State didn't seek to introduce an additional evidence.

The considerations on the loan program are quite frankly exactly the same.

Unknown Speaker: Did you apply to ask for a loan?

Mr. Gary J. Greenberg: My client indicated that he might, for purposes of graduate school, require a loan.

He has never actually applied for a loan.

Unknown Speaker: How does he have standing to raise the loan question?

Mr. Gary J. Greenberg: We think because we have a single Statutory prescription, that is to say 661 (3) covers all three programs, because he has been injured in connection with two of the programs, because the State has admitted and admitted in the argument below and it's reflected in the opinion that if he applies for a loan, he will automatically be denied assistance.

Unknown Speaker: The standing is done based on how the qualifier has numbered the Sections of the Statutes?

Mr. Gary J. Greenberg: Well, I don't think it's based on simply the numbering but we do have a single Statutory program here and it would make very little sense to require Rabinovitch to go back, file his application, have it denied and come right back up on issues that would be virtually identical.

So, we see that there is no -- the remand in this case can serve no purpose, and indeed the State has never asked for it, and never sought to introduce any evidence or deal with the loan program in anyway differently until this moment.

Finally, we would point to the supremacy.

Unknown Speaker: Except, I thought the State had always taken position that your client does not have standing to raise.

Mr. Gary J. Greenberg: Yes, the standing point, they have raised from the beginning.

Unknown Speaker: That's what, I thought.

Mr. Gary J. Greenberg: Finally, with the regard to the Supremacy argument, I think it is very important to recognize that the United States government has allowed the appellees in this case, to enter and reside in the United State and they have done so, without requiring any declaration of intention to become a citizen at any time.

Second of all, there is a Statutory provision, 42 U. S.C 1981, which this Court has relied upon in Takahashi and Graham, which indicates that resident aliens have a right to enter and abide within all of the United States.

And in equality, legal privilege and right, and that when New York enacts its program, it is clearly interfering with the general plan and program articulated by the Federal government in the Immigration and Nationality Act.

Indeed -- I am sorry, I see my time is up.

Chief Justice Warren E. Burger: You may finish your sentence.

Mr. Gary J. Greenberg: Indeed, the enactment of the Parole Refugee provision is simply New York's recognition, that by keeping out of the program, people whom the Federal government has allowed into the United States, they are burdening the residence of these people and they are imposing upon them burdens not contemplated when the Federal government allowed them entry and residence in this country.

Thank You.

Chief Justice Warren E. Burger: Thank you Mr. Greenberg, do you have any further Miss Gordon?

Rebuttal of Judith A. Gordon

Ms Judith A. Gordon: Yes Your Honor, I have a few minutes.

The future progress of the State and Nation and the general welfare of the people depend upon the individual development of the maximum number of citizen leaders to provide a broad range of leadership.

It is in the vital interest of the people of the State to develop fully this reservoir of talent and future leadership.

That is a quotation from the same Legislative history that Mr. Greenberg quoted a few moments ago.

It appears in part of pages 12 and 13 of our brief, and it appears in the main volume of the McKinney in the pertinence of education law Sections, where it is a set forth in full.

So much for Post Hoc Rationalisation and indeed however, if the State were to infer any purpose from the face of a given Statute, absent any prior Legislative history, there would be absolutely nothing wrong with that inference under a strict scrutiny standard or under a reasonable relation standard.

Now, the citizenship and national affinity requirements with respect to real programs in issue have a 57 year history in the State of New York.

They were started in 1920, when the regions with respect to region scholarships.

They were expanded gradually throughout the years until they re-substantially -- their present form in 1962 and indeed as you can you see the programs themselves were expanded.

A loans coming shortly after Region Scholarships in 1957 and Scholar Incentive Awards coming shortly after that in 1961.

Now, appellees refer you, both appellees refer you to a figure $10,000 in 50 students.

They come to that figure by starting their legislative research in 1961 with the birth of the Scholar Incentives Program, putting aside the 40 years of customary history that attached to the Region Scholarship Program.

Now, appellees' say and there is a difficulty here but it is easily resolved at the birth of the Scholar Incentive Program that bill was in the same package of bills, that occasionally revisions to the Region Scholarship Program.

One of the revisions of the Region Scholarship Program was a reference to the Board of the Region to establish an appropriate rule regarding citizenship and affinity for Region Scholarship.

Accordingly, the Scholar Incentive Program, as I indicated, enacted at exactly the same time, didn't have a rule but the Legislative History that I just read you, was enacted with respect to that program.

Appellants have submitted it was the purpose of the Legislature at that point to have the regions make a rule for both programs.

Appellee Mauclet comes in and he says, no, impossible, the Board of Regions didn't have the power, it only had the power to make rules with respect to Region Scholarships not with respect to Scholar Incentive.

The answer to that question is quite simple, the power is found in Section 603 of the Education Law, as it appears in the main volume of the McKinney which was in fact aided to include border regions power over scholarship incentives, in 1961 when that program was created.

Now, the $10,000, as it turned out, over the period of time when scholar incentives were first enforced and this reference to the Board of Regions was enforced, the Board of Regions, in fact made a rule for Region Scholarships, it did not in fact make a rule for scholar incentives.

As a result, in 1969 the Legislature in essence adopted the Board of Regions rules for scholarships and codified them in the Statutes for both program.

Now, in that re-enactment, in effect of this rule, there are two legislative documents that the appellees' refer to, first is report A) which started at the beginning apparently the beginning of 1969 Legislative session, it's says in effect, we want to put the Citizenship requirement back and there is an indication in that bill that the savings will be $10,000.

That results to an indication in that bill that other items would have certain savings and there is an indication in every New York State Bill about the what fiscal ramifications of the given piece of Legislation are.

Notably, the very next report and indeed the one before, the Legislature apparently, Active Report 9, deletes the reference to $10,000 in 50 students, why does it do that?

I think because it was obviously gross error.

The question of where this $10,000 figure came from is never explained and the question of the where 50 students came from is never explained, and indeed there is as appellees' themselves indicate in this immediately following report, the reference was itself deleted.

Accordingly, I don't think that we can infer anything from that, what we can infer is that this particular -- that Section 661 in its present form is a matter of customary history in the State of New York over a very substantial period of time.

Now, I would just like to take a few moments with respect to point raised by Justice Rehnquist.

It is true that Section 661(3) now regulates three programs.

It is equally true that these three programs are separate and they are found in different portions of the Statute and they have different types of criteria incited to them.

The one appellant's position with respect to Rabinovitch is standing or is not a merely formality that he didn't obtain a final adjudication or final administrative determination of his rights.

Although, I certainly think that would be sufficient in itself, the point is, he never alleged a present need for the loan and there is absolutely no evidence in the record that he would have a deficiency between his anticipated expenses and his income would warrant a loan.

He says in his brief in response here, that, well, he wouldn't ask for an interest free loan which is one of the subsidies provided by the program.

Of course, the additional subsidy provided by the program.

Unknown Speaker: Does the application for the loan have a blank that says whether he is a citizen or not?

Ms Judith A. Gordon: Yes it does your honor.

Unknown Speaker: Well, what could be the sense of him filing?

Ms Judith A. Gordon: Well, first of all, he didn't file and we don't, first of all they talk about.

Unknown Speaker: What could be the sense?

Ms Judith A. Gordon: In reality, Your Honor, the loan application usually goes first to the bank and the lender under this program, is not the State of New York or the New York State Higher Education Services Corporation but a bank and it goes to a bank for the obvious purpose, that all loan applications go to a bank to see if the individual who wants to borrow the money, needs the money.

Now, grant it, there is a provision about citizenship but we don't know how this application would have been disposed, and we certainly don't know whether he needs the money within any definition of the program.

Unknown Speaker: I assume that if the New York official paid money to a non-resident alien who said he didn't ever intend to be an alien, would be proper?

Ms Judith A. Gordon: You mean, if he paid it out of violation of the Statute?

Unknown Speaker: Could he do that?

Ms Judith A. Gordon: Obviously, not Your Honor.

Unknown Speaker: Well why should he have to go through that?

When there is no way he could get it.

Ms Judith A. Gordon: Your Honor, the same New York official who in fact as I just pointed out, does not pay out the money would equally in violation of law or certainly be exercising extraordinarily poor judgment, if he paid out the money to somebody who didn't need it.

I mean, indeed that's the whole point, Your Honor.

First of all, the claim is premature and it's effect is speculative.

I would just like to close, it appears I have to close.

Thank you, Your Honor.

Unknown Speaker: Can I ask you before you close, what's your understanding on the power of New York to impose a residency requirement for the disbursement of these loans?

Ms Judith A. Gordon: I think that New York has unquestioned power under the (Inaudible).

Unknown Speaker: What's your understanding of the State's power to impose one year residence requirement?

Ms Judith A. Gordon: I think it has that power Your Honor.

Unknown Speaker: New York apparently thinks that is not sufficient for its purposes.

Ms Judith A. Gordon: Your Honor, the Statute asks exactly the same commitment from citizens and aliens.

A commitment to the United States is possessed by any United States citizens by virtue of his status.

Unknown Speaker: So, your answer is...

Unknown Speaker: No, New York, does not think that's adequately.

Ms Judith A. Gordon: The answer is no, New York does not think that's adequate that the citizen and the alien both are treated identically under the Statute and that the result is a benign classification.

Thank you, Your Honor.

Chief Justice Warren E. Burger: Thank you.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Mathews v. Diaz - Oral Argument

Thu, 23 Aug 2012 18:25:32 +0000

Case:

Mathews v. Diaz

Media File:

73-1046_19750113-argument.mp3

Related Transcript:

73-1046_19750113-argument

Transcript:

Argument of Harriet S. Shapiro

Chief Justice Warren E. Burger: We'll hear arguments next in 73-1046, Weinberger against Diaz.

Mrs. Shapiro you may proceed whenever you're ready.

Ms Harriet S. Shapiro: Mr. Chief Justice, may it please the Court?

This case is here on direct appeal by the Government from a decision of a three-judge district court in Florida.

Like the previous case, it involves the challenge to the Federal Government's power to classify on the basis of alienage.

The appellees are three aliens who wish to enroll in a subsidized federal medical insurance program for the elderly.

This program is part of the overall Social Security Insurance System for people over 65.

That system consists of three parts.

First, there is the basic retirement insurance which is old age and survivors insurance.

Eligibility for that insurance is based on age and work in covered employment.

Citizenship or alienage has almost nothing to do with it and almost all employment in this country is covered.

Second, there's hospital -- hospitalization insurance which is referred to us Medicare Part A and eligibility is based primarily on entitlement to the basic retirement insurance.

The third category is the one involved in this litigation and that is Medicare Part B, supplemental medical insurance.

Part B is a voluntary program.

Those who enroll who currently pay $6.70 a month which the Government matches.

The fund created by these contributions pays 80% of covered medical expenses and they're mainly doctor's fees and medication.

Appellees are all over 65.

They want to enroll in Medicare sub Part B but they were refused because Part B insurance is available only to persons who are eligible for Part A insurance to citizens or to aliens admitted for permanent residence who have actually been residents for five years.

All three named appellees entered this country in 1971.

So they don't need the five-year residence requirement.

In addition, two of the appellees were admitted under the special Cuban refugee program and not for permanent residents.

So on that ground also, they're ineligible for Medicare Part B.

The Cuban program does not -- does permit a retroactive adjustment of status.

So that by the time these two appellees have been here for five years, they probably will be eligible for Medicare Part B since their status will have been adjusted to that of permanent resident aliens.

This is a class action and the court below defined the class as all immigrants denied enrollment in sub Part B because they're not lawfully admitted for permanent residents and have not met the five-year residency requirement.

It also established a Sub Class represented by single appellee, Espinosa of those denied benefits solely because they could not meet the durational residence requirement.

The Court held that the durational residence requirement denied appellees equal protection because it did -- it was not rationally related to any valid congressional purpose.

It also held that the durational residence requirement was not separable from the requirement that the alien be lawfully admitted for permanent residence.

And therefore, it struck all the aliage provisions from the Medicare Sub Part B eligibility provisions.

We've discussed the separability issue in our brief and I don't propose to discuss that further this afternoon.

It is our contention here as it was in the preceding case that equal protection analysis is simply inappropriate when considering federal statutes dealing with alienage in view of the basis and extent of Congress' broad powers over immigration.

Solicitor general presented that view this morning and I don't propose to go into that again.

I do want to point out that the Medicare eligibility provision at issue here is closely related to immigration policy.

As a matter of fact, the court below rather surprisingly indicated that it had doubts about the constitutionality of the admitted for permanent residence requirement for part of the statute precisely because it was so closely related to the policy expressed in the Immigration Act.

The Immigration Act provides that one of the qualifications for admission as an immigrant is that the applicant not be likely to become a public charge.

Now the practical effect of that requirement particularly for people over 60, are the only ones that are affected by this Medicare provision is that they must either be economically independent or have someone in this country who is willing to assume responsibility for their support.

The Medicare limitation simply defines the extent of the support obligation.

The effect of the immigration statute and the Medicare statute taken together is the same as if Congress had explicitly provided in the Immigration Act that elderly immigrants must undertake to provide for their own medical needs for five years after they enter either by private insurance or by having the financial capability of doing it independently of insurance.

Congress could certainly have done -- made that provision directly in the Immigration Act.

We submit that Congress has an equal right to do it indirectly through the Medicare Act.

It's the essence of congressional power over immigration to decide which groups it will encourage to immigrate, and which discourage and also to decide how much encouragement it will offer.

An elderly person considering immigration will normally consider the cost of living in this country.

Part of that cost is the cost medical care.

If subsidized government insurance is available, the cost will be lower than if it is not and if it's available after five years, the cost is less than if it's not available at all.

Immigration is thus encouraged by making the insurance available, but it's not encouraged as much as it would be if the insurance was available immediately on entry.

Congressional judgments concerning immigration policy are entitled to great judicial deference.

This Medicare eligibility provision is an expression of congressional immigration policy and as such it's entitled to great judicial deference.

For that reason, even if this judgment is subject to review on equal protection grounds, the Court need do no more than assure itself that there's a rational justification for the restrictions on alien eligibility and there is such a justification in this case.

The Part B Medicare program is part of the overall Social Security Insurance Program.

That program is not basically a welfare program in which payments are based on current needs.

There's no means test for eligibility.

Instead, the insurance is available to those to whom Congress has determined that the country owes an obligation.

This Court has in fact recognized that that sense of obligation is the basis of the original Social Security Program which is of course the root stock of the whole Federal Social Insurance Program particularly for the elderly.

If I may quote from Flemming v. Nestor, the program is based on a legislative judgment that those who in their productive years were functioning members of the economy may just call on that economy in their later years for protection from the rigors of the poor house.

In setting up the Part B eligibility provisions, Congress went somewhat further.

It extended the benefits to all citizens and to aliens with a substantial relation to this country but the theory remained the same.

Congress simply recognized that resident aliens like citizens pay taxes are subject to military service and contribute in myriad other ways to our national community.

Citizens, who in the overwhelming majority of cases make these contributions throughout their lives, may not enroll in Sub Part B until they're 65.

An alien, who makes his myriad contributions in his country of origin during his working life may retire and come here and after only five years of contributing to this community, he's eligible to enroll in Medicare Sub Part B on the same basis as a citizen.

That's not certainly an unreasonable discrimination against the alien.

In fact, the only person is more favorably treated would be a US citizen who had never lived in this country and then returned in his old age and was immediately eligible for the Medicare Sub Part B and that I submit is such a small group that its really diminimous.

Justice Potter Stewart: Well, wouldn't it also -- wouldn't an American citizen who hadn't been under the Social Security Act to the railroad retirement program and who reached 65 be more favorably treated?

Ms Harriet S. Shapiro: No, because the principle there is that he has been a participating member of his community.

Justice Potter Stewart: But not of any social security program?

Ms Harriet S. Shapiro: Not of a social security program, but my point is that he has been living here and he has been --

Justice Potter Stewart: Well, maybe he --

Ms Harriet S. Shapiro: -- subject --

Justice Potter Stewart: -- but we don't know if he's been a net asset or a net liability to American society?

Ms Harriet S. Shapiro: Well, with the theory of the act is that --

Justice Potter Stewart: He's been living here and that's maybe --

Ms Harriet S. Shapiro: He has been living here, he has been contributing as a member of the community.

Congress decided that five years of participation in the national community is enough for eligibility for Medicare Part B.

It could have made the period longer or it could have made it shorter that drew the line at five years.

Under traditional equal protection analysis, this Court should not decide whether that was the best place to draw the line.

The line is however, consistent with the Immigration Act which also uses five years as the period in which the alien is in some way is here on probation.

His native country remains more responsible for him during that period than it is after five years.

For example, he ordinarily can't be -- can be deported for indigency within five years or for a single crime which involves interpretive committed within that time.

Of course too, he may not ordinarily be naturalized until he has been here for five years.

So that until that time, there can't be no full assumption of the rights of citizenship nor total disillusion of the bond with his native country.

We submit therefore that the distinction between citizens and aliens in the Medicare program is not unreasonable.

It also serves the rational fiscal purpose of reducing the amount of the federal subsidy required for the program.

Court below thought that the Government did not benefit financially from postponing the eligibility of aliens except to the extent that they die.

It made two assumptions not supported by the record.

First, it assumed that no elderly aliens returned to their native country before five years are up.

And second, that they postponed needed care which it further assumed made the eventual cost to the Government of the insurance as great as if they were eligible immediately.

The immigration service does not have records of how many elderly immigrants leave the country within five years and the second assumption is pure speculation.

Of course if it's true, it's equally irrational to deny benefits to those have not yet reached 65 because they too will postpone necessary care which could have been provided more cheaply before they reach 65.

Anyway, we submit that these are certainly legislative judgments.

This is a novel program which has been under constant legislative review and it is up to Congress to evaluate all these factors and decide whether and how much to liberalize eligibility for Medicare.

I like to reserve the remainder of my time.

Chief Justice Warren E. Burger: Very well.

Mr. Feinberg.

Argument of Alfred Feinberg

Mr. Alfred Feinberg: Mr. Chief Justice and members of the Court.

It seems to me that Mrs. Shapiro's argument rests primarily on Mr. Bork's original argument which was that the Fifth Amendment notions of equal protection do not apply to aliens or if that is true and that is what this Court holds, then I think this case falls for my clients, I think the case argued previously falls.

But I don't believe that that is true because that is such an overwhelmingly inconsistent and novel argument that implicit within it are the following.

That a classification which this Court has now held three times explicitly ones but implicitly two other times and many other Courts have followed, that is a classification of aliens is not inherently suspect when that classification is made by the Federal Government rather than the states.

Two, that the normal test of whether a classification is justified or not justified, a classification involving individual work as opposed to classifications involving economics and taxes and that's what we're dealing here with individual worth.

The normal test, which has to deal with the relationship of the classification to the objective of the statute is inapplicable and in fact, this wasn't even spoken about here.

The reason it wasn't spoken about is because of the submission by the Government to this Court.

Now, twice now this morning that the Federal Government can discriminate against aliens as aliens in any way they see fit.

Chief Justice Warren E. Burger: Well I don't think the argument went quite that far?

Mr. Alfred Feinberg: Well, I think Mr. Bork's argument did in the brief that was filed by the Government in this case.

The argument that repeated at least four times was that the Government has made the discrimination in this case against aliens, has made the classification in this case against aliens and indeed in virtually all of those statutes which are listed in the appendix attached to the one brief.

The Government's one brief because the aliens have not shown a “substantial and enduring connection with the United States efficient for the United States Government to grant them the benefits that are granted to citizens under each of those particular provisions,” the one we're talking about here are Medicare B provisions.

Well, the substantial and enduring connection with the United States is really saying aliens when you compare aliens with citizens, citizens have an absolute and enduring connection with the United States.

So those who do not have relatives to citizens, those who do not have a substantial and enduring connection with the United Sates are aliens.

Now, if that's the basis of the discrimination and it is asserted repeatedly, in fact that is headed as the theme of the discrimination.

The theme of a classifications in each of these cases is that the underlying theme, I think the words are used, are that they do not have a substantial and enduring connection with the United States.

Well this is advancing a new test of legislation which creates classifications because the test, the traditional test and I'm not talking about the test now that is used for suspect classifications or with or fundamental interest involved or any special circumstances.

Just the traditional test is the one articulated in a case which did not involve a suspect classification.

It involved the question of whether a conscientious objector could receive the same benefits as a veteran after having finished his conscientious objector service.

And he said that he was discriminated against because he serves his country just as veterans who had fought in the war.

This Court upheld that discrimination and that classification in that case but the Court went on to say that our analysis of the classification proceeds on the basis that although an individual's right to equal protection of the law does not deny the power to treat different classes of persons in different ways, it denied the power to legislate that different treatment be accorded to persons, placed by statute into different classes on the basis of criteria wholly unrelated to the objective of the statute.

A classification must be reasonable, not arbitrary and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation so that all persons similarly circumstanced shall be treated alike.

Now, here we are told that there is a new test.

We do not look at the object of the statute.

Medicare, the object of the statute is to take care of retirement age individuals, medical problems.

In this case Medicare Part B, it's related to physician services generally, arguably some argue with the all home health care services, dietary services, out patient services, those kind of services are the kind of services that are involved in Medicare Part B.

There are some more of them, but you can get the idea of those services.

To distinguish from Part A really which it deals with hospitalization benefit, Part B usually talks about medical benefits which are doctor services.

Justice Potter Stewart: Most part A and part B are available only to people over 65 years old?

Mr. Alfred Feinberg: That is correct but there is substantial difference in the way they are funded which is very interesting.

Part B is funded from the general revenues of the treasury of the United States, that is the tax dollar.

That is the money that comes from income taxes and however else the revenues of the United States receive its moneys.

It does not come from social security tax.

Justice Potter Stewart: And those are matching fund in part B, right?

Mr. Alfred Feinberg: Matched, yes.

Justice Potter Stewart: 50-50.

Mr. Alfred Feinberg: Because every applicant for Part B must pay a premium which is matched by the treasury of the United States --

Justice Potter Stewart: From the general fund.

Mr. Alfred Feinberg: From the general revenue funds, that is correct.

And so, while it as us true that Part B and it is natural that part B should fall upon Part A and it is called the Medicare program and it is within the preview of the Social Security Act which is all of Title 42 is called a social security provision.

In reality, social security has very little to deal with it, that is social security to the man in the street.

It has to do with somebody's choosing to participate, it's a voluntary program.

Somebody who is 65 years old choosing to seek insurance that is available pursuant to congressional enactment for which a premium is paid by the applicant and a like premium or an equal or part of the premium is paid by the tax payers.

Those tax payers not only include aliens, but the children of aliens and anybody related to aliens who are living in the United States.

So the argument that an alien is here only for five years and is contributing only five years, it's a specious argument, particularly when we will look at -- and the problem in this case really arose definitionally.

The classification here that we're talking about is an alien lawfully admitted for permanent residence who has resided in the United States continuously during the five years immediately proceeding the month in which he applies for the benefits.

So we have two residency requirements here, a durational residency requirement and a status residency requirement.

The status being that of permanent resident and forgetting for a moment about the durational residency requirement which was declared unconstitutional by the District Court in this case and going to the question of the status residency requirement for moment, it is to be noted that the problem arises because of the nature or the manner in which Cuban refugees were allowed to come in to the United States.

Indeed allowed is very conservative word.

Those of us who have lived in this country for the last 10 years know that President Eisenhower made a speech in which he beseeched the Cubans who wanted to escape from Castro's Cuba, Castro taking over in Cuba in 1959, this speech was made I believe in 1961 to come in to the United States, inducing them to come in to the United States, so the point where we started sending planes during the 1960's to pick up anybody who Castro would allow onto those planes to bring them into the United States.

So here we begged these people to come in to the United States and thousands and thousands and thousands of them came.

Indeed it is estimated that approximately 600 to 700,000 came.

And of those numbers approximately 250,000 to 300,000, the figures were inaccurate, they were coming in such great numbers that they were overwhelming the agencies that were taking care of them and the coming from Miami, Florida I am quite familiar with the chaos that was caused by this enormous numbers of Cubans coming in to the community, the bureaucratic problems of counting them for example and analyzing what their status was and figuring out how to allow them into the United States under the then current laws of the United States was a very serious problem.

At the beginning when they were trickling in, they came in as non-immigrants and when their non-immigrant visa run out, they were then subject to deportation proceedings.

During the deportation proceedings, they claimed political asylum and it was granted to them. This was a very cumbersome process.

When they claimed political asylum, they became immigrants.

Once they became immigrants, they qualified for the Medicare Part B provision because the definition of immigrant is a person admitted for permanent residence.

So those who were fortunate enough to be defined as immigrants which was just fortuitous, depended on when and how they came in to this country are qualified for Medicare Part B, but as the numbers increased and they became -- they started coming in by the thousands, a more efficient way had to be found to allow them to come in.

And the more efficient way was to choose to allow them to come in under the parole powers of the Attorney General of the United States which are -- which gave the Attorney General the power to allow virtually any foreign who enter the United States, any alien into the United States under any conditions.

This power is given to him by Congress and it is very, very wide and broad power, a wide and broad power.

And so approximately 250 to 300,000 people came in.

Now the problem with those people coming in is what brings us before this Court because they came in as their classification was parolee and a parolee as we point out in our brief is neither an immigrant nor a non-immigrant.

He is in a special status of parolee and the term which is used referring now to the status term.

Resident -- an alien lawfully admitted for permanent residence does not cover parolee, at the historical development of the definition of that term, does not cover parolees.

So now we have -- it's estimated by the lower court and my calculations are about the same on the basis of these sketchy figures that we have, we have somewhere in the neighborhood of 20,000 individuals who are parolees.

Justice Thurgood Marshall: Is your real complaint that, he is designated as the parolee rather than resident alien?

Mr. Alfred Feinberg: That is one of the complaints.

If he was designated as a resident, they --

Justice Thurgood Marshall: What good is that complaint when certainly Congress has a right on this immigration laws to decide which is which, isn't that one of Congress' rights?

Mr. Alfred Feinberg: To detriment --

Justice Thurgood Marshall: That you either admit them as the resident alien or parolee, that's the right of immigration and naturalization?

Mr. Alfred Feinberg: My answer to that is that I have a two-fold answer to that.

Number one, that you must -- when that classification is used --

Justice Thurgood Marshall: You admit that your complaint is that he is a parolee rather than a resident alien?

Mr. Alfred Feinberg: No.

My complaint is that the classification is used to exclude him from Medicare Part B, that's my complaint.

Justice Thurgood Marshall: If he was a resident alien, he would be alright.

Justice Potter Stewart: That is one a law.

Mr. Alfred Feinberg: That's one part of it.

Justice Potter Stewart: One place as for permanent resident.

Mr. Alfred Feinberg: Right.

Justice Thurgood Marshall: Right.

Mr. Alfred Feinberg: That's right.

The complaint is --

Justice Thurgood Marshall: So your complaint is that when he was admitted, he was given the wrong status?

Mr. Alfred Feinberg: Not the wrong status, he could be admitted --

Justice Thurgood Marshall: Well in that position I think you're in a whole lot of problem?

Mr. Alfred Feinberg: No, that's not the wrong status.

He could have been in neither under any status.

The question is what they did with that status after he was admitted and I'm submitting to the Court that the status of parolee does not fit within the objective and purpose of Medicare Part B which is the task of the classification.

Now, I have no argument with him being a parolee.

My argument is utilizing that parolee classification to deny him the benefits of Medicare Part B.

What is the relationship between taking care of a retirement age -- retirement age alien who resides in the United States and the fact that he is a parolee.

There is no relationship.

The only relationship is that he is an alien and their argument is a circular argument.

Their argument is he is an alien and we can do whatever we want with aliens regardless of the relationship between the objective of the statute which excludes him and the fact that he is an alien.

Those two are facts, one that a person whose an alien or is a parolee or it has any condition of alienage and two that the object of the statute is to take care of individual's medical problems when they are -- reach retirement age are totally unrelated and this is why this is not discussed in the Government's brief because the if the true test of determining whether a class is a proper classification, a classification that can be sustained constitutionally is whether it's related to the objective of the statute, we find that the classifying aliens are totally unrelated to the objective of the statute.

The objective of the statute is set out in the statute.

It's taking care of people's medicals problem when they're 65 years old.

What does that have to do if whether somebody is a citizen or an alien?

That's not discussed by the Government because there is no argument that can be made relating the objective of the statute to the classification that's created.

What I am saying is that the problem that has brought me to the Court is the fact they have utilized the parolee.

The Government has utilized the parolee status of these people to exclude them irrationally and arbitrarily from a program which has nothing to do with their status as parolee that's like excluding garbage man or policeman or plumbers.

There -- it's an arbitrary exclusions from the statute and the --

Chief Justice Warren E. Burger: Are you suggesting the there's some plenary power in Congress to deal with garbage man and plumbers to take your illustrations that's comparable to that of immigration?

Mr. Alfred Feinberg: I was using that example to talk about the arbitrariness.

What I'm saying is that the so-called plenary power of Congress that has to do with the aliens must be related in this argument that has already been made already, must be related to naturalization, deportation, admittances to the United States even citizenship.

Chief Justice Warren E. Burger: Do you agree with the somewhat provisional concession that Mr. Steinman made in the previous case?

Mr. Alfred Feinberg: Yes sir.

Chief Justice Warren E. Burger: United States could simply exclude all aliens and say no one can come in this country?

Mr. Alfred Feinberg: I don't think that that would -- I don't think would be provisional.

I think Mr. Steinman would agree with that.

Chief Justice Warren E. Burger: I said provisional claims.

Mr. Alfred Feinberg: No I think he would agree with that completely.

Chief Justice Warren E. Burger: Because he withdrew it, he gave it with his right hand and took it back with his left, he said when that case came up, it would take the other position.

Mr. Alfred Feinberg: If Your Honor please, I think what he said was that if you allowed aliens to come in under certain conditions that he might question those conditions, but I don't think he would challenge a statement that Your Honor has just made and that is that the United States simply can close its doors to aliens.

Justice Potter Stewart: In any event, you don't challenge it?

Mr. Alfred Feinberg: I don't challenge it at all, I think United States certainly can close its doors to aliens but it hasn't and it hasn't tied these conditions to naturalization or admittance or deportation.

Justice William J. Brennan: Suppose it has -- suppose that Congress could do that, what would be your view?

Mr. Alfred Feinberg: I would give the same provisional agreement that Mr. Steinman gave.

I think the cases that have been before this Court where such as Flemming versus Nestor for example which was mentioned by my worthy opponent where you tie -- I picked that case, very controversial case and I think that's a four to three decision which -- the validity of which has been questioned through the years, but there is a case in which seemingly very arbitrary exclusion from -- or deportation took place and this Court upheld that.

Well that's because that was tied to deportation and that's where the plenary power of Congress comes in, deportation, immigration in terms of naturalization.

Justice William J. Brennan: I thought Flemming and Nestor was suspension of social security benefits --

Justice Potter Stewart: For deportee?

Mr. Alfred Feinberg: For -- incidents deportation.

Justice William J. Brennan: Some membership in --

Justice Potter Stewart: Right.

Mr. Alfred Feinberg: That is correct.

Justice Potter Stewart: But he had to be a deportee.

Mr. Alfred Feinberg: Yes, that he was a deportee and they said when he got deported to another country, he would lose his social security benefits, but it was tied to deportation and there is not one case, not one of all of these cases and I've read them all carefully that is cited by the appellants in this case which justifies the proposition, are imposing conditions upon aliens within this country that are unconnected with naturalization or deportation or related matters such as national sovereignty, powers of citizenship.

Justice Byron R. White: What about the provisions against becoming an indigent?

Mr. Alfred Feinberg: The -- that's tied to naturalization, yes sir.

They say that if you come into this country as an indigent then you have violated the naturalization, you've committed a fraud because you can't come in to this country as indigent unless you post a bond but that's a condition on naturalization.

I am agreeing with that if you tie to a condition --

Justice Byron R. White: Well again, the Government makes -- makes the argument here -- Government makes the argument that the provision in the social security clause is tantamount to as the same -- it's just as though they had made it that condition of entry in to the country, and you say it isn't?

Mr. Alfred Feinberg: But the fact to the matter is that it isn't.

They have not --

Justice Byron R. White: It isn't the --

Mr. Alfred Feinberg: There is nothing, nothing -- not only as it not yet there in literal words of the statute which were in the Social Security Act, but it is not even there or mentioned in the legislative history.

They don't talk about the question of naturalization or admittance into this country or anything related to that in the passage of this provision or indeed in the passage of most of the acts which are listed in the appendix to the Government's one brief.

Justice Byron R. White: So this prohibition against sharing in the scheduled than it is, this is unconstitutional because it's in the Social Security Act rather than in the immigration law.

Mr. Alfred Feinberg: I would give my provisional agreement to that, that's not the question before this Court.

The test of the constitutionality again are relate -- the test of the constitutionality of a classification is related to the object of the benefit conferred by the legislation.

That's been the traditional test that this Court has used time and time again. Unrelated to the fact that a classification maybe inherently suspect which we have here, unrelated to the fact that a fundamental right is involved here such as Medical Care.

Unrelated to any of those matters.

The traditional and consistent test has been whether or not the classification is related to the object or purpose of the statute from which the class is denied benefits.

And that is not the test that the Government would urge this Court to use in this case.

The test that the Government urges this Court to use is simply to say that since these people are aliens, the Government has a right to exclude them from any benefits conferred on citizens.

Justice Thurgood Marshall: Mr. Feinberg would your argument cover a person with a temporary visa?

Mr. Alfred Feinberg: No it would not for the simple reason that the class -- that this case covers.

Justice Thurgood Marshall: He's an alien?

Mr. Alfred Feinberg: But he is a nonimmigrant alien and this case covers only immigrant aliens, conditional entrance.

Justice Thurgood Marshall: Not without the immigrant aliens.

Mr. Alfred Feinberg: I'm sorry that's what the lower court did when they created a class that's affected by this case.

Justice Thurgood Marshall: I am not talking about the law, I am talking about your position.

Mr. Alfred Feinberg: Excuse me sir?

Justice Thurgood Marshall: Your position is that these immigrant aliens are the same as resident aliens?

Mr. Alfred Feinberg: No, my position is that you cannot use alienage as a basis for discriminating against aliens who come to this country and welcome --

Justice Thurgood Marshall: Have they made any effort to change the status to resident aliens?

Mr. Alfred Feinberg: Excuse me sir?

Justice Thurgood Marshall: Have they made any effort to change these people status to resident aliens?

Mr. Alfred Feinberg: These people are not in a position because of the Laws of the United States to seek that change until they have been here in theory for two years, in practice for four years and they have not been here for that length of time.

Justice Thurgood Marshall: So it isn't close to the visiting visas?

Mr. Alfred Feinberg: No, on the contrary there's a whole section in my brief which addresses itself to that question.

It is much closer to an immigrant.

For several reasons.

I'll direct the Court's attention to --

Justice Thurgood Marshall: I am misled by your argument by all those who came in, in President Eisenhower's time?

Mr. Alfred Feinberg: Right.

Justice Thurgood Marshall: I find now, you are arguing about those who came in last week.

Am I right?

Mr. Alfred Feinberg: My argument is directed at those -- about 250,000 who came in between 1965 and the present.

Those are the people who are --

Justice Thurgood Marshall: Couldn't they have had their status adjusted by now?

Mr. Alfred Feinberg: Some could have -- the particular plaintiffs in this case could not until next year.

Justice Thurgood Marshall: Because they haven't been here long enough, because this is just --

Mr. Alfred Feinberg: Just -- no, they've been here since 1971, but it takes four years before they can qualify to become immigrants which is permanent resident.

Justice Thurgood Marshall: What is all this argument about President Eisenhower got to do it with them?

Mr. Alfred Feinberg: Because -- but for the fact that all of these Cubans were invited into this country and are here now the provisions of Medicare Part B would not affect that many people.

Chief Justice Warren E. Burger: Well does it make any difference, how many are affected?

From your --

Mr. Alfred Feinberg: It fits to Congress and that's the point because Congress in a related provision and yes I saw a statute.

So forget the question of the alien who comes in as a parolee and here we're talking about indigents whereas in the case before the Court we're not necessarily talking about indigents.

And what Congress did was they said the following, this is an Act of Congress that I'm reading from.

Congress has authorized welfare payments to the indigent blind, aged and disabled individual who is “either (1) a citizen or (2) an alien lawfully admitted for permanent residence or otherwise permanently residing in the United States under color of law,” continuing the statute, “including any alien who is lawfully present in the United States as a result of the provisions of Section 1153 (a) 7 which is conditional entrance,” which is in the class that's included by the lower court in this case or “Section 1182 (d) 5 which is parolee.”

So in other words what Congress has done here is included in the SSI provisions of the Social Security Act coverage for the persons who are excluded from the Medicare B provisions of the Social Security Act.

And no doubt it was an inadvertent failure on the part of Congress to do that but we are submitting that it is possible for this Court to construe the admittance for permanent residency requirements as covering Cuban parolees because of the fact that they are covered here, because of the fact that since 1971 they must not only have registered for the military service but are subject to induction in the military service as our citizens and because of the fact that they are entitled to retroactive adjustment of status which non-immigrants are not entitled to generally with some exceptions or after two years presence in the United States, they can make an application fro retroactive adjustment of status to become immigrants.

Actually it takes four years to get that retroactive adjustment and that's why I said my clients could not receive it.

They came in 1971 and we haven't -- the four years hasn't elapsed yet.

Justice Potter Stewart: Your clients are residents, are they not?

Mr. Alfred Feinberg: My clients are --

Justice Potter Stewart: They are not visitors.

Mr. Alfred Feinberg: That is correct, not only that.

Justice Potter Stewart: I mean how about even in the contemplation of law, what is the definition of a parolee?

Is he a resident in the United States or not?

Mr. Alfred Feinberg: Well, the problem is that we have two definitions now.

On the contemplation of law prior to the Act -- the provision that I just read, he would be considered a nonresident of the United States, a legal fiction as you will.

Justice Potter Stewart: He's here and he's here for an indefinite period, but in contemplation of law, he's not a resident.

Mr. Alfred Feinberg: Right, but here we have an Act of Congress which talks about them and talks about in these terms.

An alien mostly admitted for permanent residents, that's not -- that's not our point.

Justice Potter Stewart: [Inaudible]

Mr. Alfred Feinberg: Or otherwise permanently residing in the United States under color of law and then it goes on to specifically say that it includes parolee.

Justice Potter Stewart: That that was the --

Mr. Alfred Feinberg: So I am saying that the Congressional definition now has changed what has been the traditional definition and we now have people who are parolees, who in contemplation of law enacted by Congress, an another statute admittedly but a parallel statute, within the Social Security Act by the way, supplemental security income, are permanently residing in the United States under color of law, that's that language, that's the statutory language that's used and that's on page 42 of the brief.

Justice Thurgood Marshall: And it also said that he shall not legally within the United States.

Mr. Alfred Feinberg: Excuse me sir?

Justice Thurgood Marshall: It does not ordinarily place him “legally” within the United States, that what your lower court decision says.

Mr. Alfred Feinberg: That is the traditional definition of parolee.

I -- what I'm saying is that Congress has changed that.

Justice Harry A. Blackmun: Mr. Feinberg before you sit down, this is probably totally unimportant, but I'm interested in the compliance of the three-judge court statute.

Originally Judge Cohen was designated as the receiving judge and then was replaced by Judge King.

Do you know the reason for that?

Mr. Alfred Feinberg: Not only do I know the reason for that, I don't even recall that happening sir.

Justice Harry A. Blackmun: Well it's very definitely in the appendix and the --

Mr. Alfred Feinberg: Judge Fulton is the chief judge.

My guess would be that he just simply assigned that the judge came, now it just be --

Justice Harry A. Blackmun: Well the statute is pretty specific, you see?

Mr. Alfred Feinberg: I'm sorry I cannot illuminate the Court in that subject.

Justice William H. Rehnquist: Was this heard after Judge Cohen moved up to West Palm?

Mr. Alfred Feinberg: My guess is yes but I cannot be absolutely sure that could have been the reason.

Chief Justice Warren E. Burger: Thank you Mr. Feinberg.

Do you have any further Mrs. Shapiro?

Justice William J. Brennan: Do you know the answer Mrs. Shapiro?

Rebuttal of Harriet S. Shapiro

Ms Harriet S. Shapiro: I'm sorry I don't.

All I wanted to emphasize once that Congress has drawn lots of lines in establishing immigration policy.

The Cuban parolees are parolees general, are admitted on a temporary basis and they are not considered to establish permanent residence.

The Medicare provisions which included this immigration policy went into affect in 1966 and these aliens came in, in 1971.

On the basis of the policy that was established in 1966 so that when they entered and they entered under the conditions that had -- were in effect then in Medicare Act as well in the Immigration Act.

Chief Justice Warren E. Burger: Mr. Feinberg called this a fundamental right, that is the right to have Medical Care.

From what you say I take it, your response to that would be that it's a right only as defined by the Congress.

Ms Harriet S. Shapiro: This is certainly it's a -- what's involved here is subject by the --

Chief Justice Warren E. Burger: The five-year residency is one of the conditions.

Ms Harriet S. Shapiro: Is one of the conditions under which these people were admitted, and after five years they would be entitled.

Chief Justice Warren E. Burger: Because they're getting substantial subsidy from the treasury of the United States.

Ms Harriet S. Shapiro: Yes.

Chief Justice Warren E. Burger: 50% contribution.

Ms Harriet S. Shapiro: Well the basic principle is that after they've been for five years, they have made the contribution or as -- as they've been here for long enough so that it's rational to assume that they have that kind of a connection that it's appropriate for them to be entitled to this insurance.

Chief Justice Warren E. Burger: Thank you.

Justice Harry A. Blackmun: Mr. Feinberg, I think it's important to find out the reason for these substitution of judge King for Judge Fulton, would you ascertain that and let the Court inform by a letter?

Rebuttal of Alfred Feinberg

Mr. Alfred Feinberg: I certainly will and I will inform the Court.

Chief Justice Warren E. Burger: Can you send a copy to Mrs. Shapiro and the Solicitor General's office.

Mr. Alfred Feinberg: Yes sir.

Chief Justice Warren E. Burger: Very well, thank you.

The case is submitted.

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Mathews v. Diaz - Oral Reargument

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Mathews v. Diaz

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United States v. Campos-Serrano - Oral Argument

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United States v. Campos-Serrano

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Argument of Griswold

Chief Justice Warren E. Burger: The arguments next in number 46, United States against Campos-Serrano.

Mr. Solicitor General.

Mr. Griswold: Mr. Chief Justice and may it pleas the court.

I move the admission pro hac vice of Mr. W. Bradford Reynolds who is of my staff for the purpose of arguing this case.

I may say that his three years expires on Saturday and if the case had gone over till Monday, it would not have been necessary to make this motion.

Chief Justice Warren E. Burger: Perhaps, we are happy to grant your motion and we will be happy to welcome Mr. Reynolds on a more prominent basis.

Argument of William Bradford Reynolds

Mr. William Bradford Reynolds: Mr. Chief Justice and may it please the Court.

This case is here on writ of certiorari to the United States Court of Appeals for the Seventh Circuit to review the decision of that Court, reversing a judgment of conviction of the District Court.

It presents important questions relating to the manner in which immigration investigators can without infringing on the individual right against self-incrimination under the Fifth Amendment, carry out their statutory of responsibility to determine whether aliens or persons believed to be aliens are lawfully in the United States.

The facts were essentially these.

On the morning of November 19, 1968, approximately eight agents of the immigration and Naturalization Service conducted an investigation of employees as a rule on manufacturing company in Chicago, Illinois where it was expected that aliens unlawfully in the United States were working.

Some 15 or 16 aliens were arrested for being in the country in violation of the immigration law, including Juan Miguel Rico.

All were place in Agent’s Automobile and as is customary practice, they were driven to their respective residences to gather their personal belongings.

Upon arriving at Rico’s residence at approximately 8:45 am, Rico and two INS investigators, Jacobs and Beryl, went to the door of his apartment.

Rico knocked and respondent opened the door and admitted the three men.

The Agents identified themselves and explained to respondent in Spanish that Rico had been arrested and that they were there to collect his personal belongings.

No search was made of the premises.

Agent Beryl accompanied Rico into his room, Agent Jacobs remained in the living room with the respondent.

Jacob who is an INS investigator is authorized by statute to interrogate without warrant, any alien or person believed to be an alien as to his right to be or remain in the United States.

He inquired in Spanish as to respondent's citizenship.

Respondent replied that he was Mexican and when asked about his alien status, he stated that he was a resident alien.

Jacobs then asked for proof and respondent produced his Alien Registration receipt card which is the identification card that is issued by the immigration service to all the aliens who have been locally admitted into the country in a permanent resident status.

Unknown Speaker: Is that what they call the Blue Card?

Mr. William Bradford Reynolds: The Green Card, Your Honor.

Unknown Speaker: Green Card.

Now here is the requirement have that on at all times.

Mr. William Bradford Reynolds: At all times, yes Your Honor by the statute.

Unknown Speaker: Under this layer?

Mr. William Bradford Reynolds: The statute does not require that he display it.

The statute requires that he retain it in his possession at all times and the statute does permit interrogation of the alien to satisfy the investigators.

It authorizes under request and to display but the statute did not require that he display that as a batch.

Justice Harry A. Blackmun: When you say in his possession, do you mean on his person?

Mr. William Bradford Reynolds: On his person, yes Your Honor.

Justice Harry A. Blackmun: Just like the draft card?

Mr. William Bradford Reynolds: Exactly, it is like the draft card.

Unknown Speaker: It could be proved is out of the some other way than by displaying the card?

Mr. William Bradford Reynolds: Well, he could proved his status in another way, although not in as direct way for hatch.

Unknown Speaker: I suppose under the broad interpretation the best evidence rule to apply would be the best connotation evidence of his status.

Mr. William Bradford Reynolds: Well, he has the -- he has -- he is required by law to register at the time that he had admitted into the country and his status is on the registration form, that is information that is in the government's possession and he -- if he had the passport for instance and can show that he is in the country, has a valid passport and give his name, you can determined his status from the alien registration form which is on file with the government, but the card is I think the most direct way to establish it.

Chief Justice Warren E. Burger: As you know, how long would it take as a practical matter to execute that, carry out that exercise?

Mr. William Bradford Reynolds: I would assume relatively short time.

I do not know of great length of time.

I think it could be ascertained, perhaps if I am an Agent calling, making a phone call I believe it could be determined relatively, in relatively short period of time.

Justice Thurgood Marshall: He had found in that he did not have the card and admitted that he was illegally there, would the government had done anything other than deport him?

Mr. William Bradford Reynolds: The government could have done something other than deport him.

Justice Thurgood Marshall: Would they have done anything else as a matter of quality, what is the policy?

Mr. William Bradford Reynolds: I think it is the matter of policy that they would have done nothing other than the court.

There is a -- it is a misdemeanor to be in the country illegally and there is that possibility, but as a matter of policy, the government would have deported him.

In fact that is what the government did with Rico in this case.

They deported him.

He was in the country unlawfully.

Justice Thurgood Marshall: They did not in this case?

Mr. William Bradford Reynolds: In this case, this man was indicted, but he was indicted for possession of a false alien registration receipt form.

Justice Potter Stewart: He was indicted for registration of a false document required for entry into the United States, is that not issue in this, (Voice Overlap) covers an alien registration?

Mr. William Bradford Reynolds: That is correct. Jacobs inspected the alien’s registration receipt card and also he found a social security card which had been produced on request and he showed both the cards to Agent Beryl.

The lighting conditions were extremely poor and on this viewing, the Agents found nothing in it.

They returned the documents to respondent and then left the apartment with Rico who had by then collected his personal effects.

Now, respondent raises no objection to this initial inquiry and the Court of Appeals found that it did not violate respondent's Fifth Amendment privilege.

This initial inquiry occurred in what the Court of Appeals characterized as “the normal immigration inquiry situation and that is what permissible, the court concluded, since the card served the non-criminal purpose of an enabling the government to be aware of a number of aliens in the country and their status.

When the Agents returned with Rico to the car, a third investigator, Agent White, motioned toward another individual approaching them and suggested that he had been acting -- he had acted suspiciously on seeing the Agent and should be questioned.

Agent Beryl spoke to this individual, Jose Rodriguez Ortiz and inquired as to his citizenship.

Ortiz produced an alien registration receipt card which upon examination both Beryl and White found to be altered.

Ortiz was then placed under arrest.

He was put in Jacob’s car and given Miranda warning in Spanish by Jacobs.

He was asked if he wanted to obtain any personal belongings.

He stated that he did and indicated that he lived in the same apartment building from which the agent had just emerged with Rico.

Agents White and Beryl then went with Ortiz.

Unexpectedly, he led them to the same apartment that was occupied by Rico and respondent.

Ortiz opened the door with a key and as the three agents -- and as the three men entered, respondent came out of the back room into the living room.

While Agent White accompanied Ortiz into his room to collect his clothes, Agent Beryl spoke with respondent in the living room.

He explained to respondent in Spanish that Ortiz was under arrest and was being permitted to collect his clothes.

Then Agent Beryl thinking that if Ortiz’s card was altered, there was a possibility that respondent's card too was altered and recalling that its earlier inspect -- earlier inspection of respondent’s card had been in the dimly living room.

He asked to see respondent’s registration card, alien registration receipt card again.

Respondent gave him the card and Beryl examined it a second time.

The card was shown to Agent White and both agents inspected it under a flashlight.

Unknown Speaker: Who was that (Inaudible) I think you have already answered it, I just want to be sure.

The agents could compel him to exhibit the card?

Mr. William Bradford Reynolds: No, Your Honor.

The agent could not compel --

Unknown Speaker: But could have (Inaudible) the card?

Mr. William Bradford Reynolds: The agent could have appropriately asked for the card and in this case, he produced the card, but the agents had no authority to compel him --

Unknown Speaker: So, respondent might or could refuse to exhibit it?

Mr. William Bradford Reynolds: He might.

Unknown Speaker: Nothing could follow from that, there was a huge --

Mr. William Bradford Reynolds: Not directly.

No, Your Honor.

Nothing could follow and in these circumstances nothing would follow.

Chief Justice Warren E. Burger: I suppose the agent would draw some inferences but might be to the disadvantage of the subject?

Mr. William Bradford Reynolds: That I suppose could well be, Your Honor, and might a warrant of some further investigation on the part of the agents as to this subject, but in terms of what they could do at that time, they were in -- they had no authority to do anything more.

Justice Thurgood Marshall: Do they have authority to arrest?

Mr. William Bradford Reynolds: No, Your Honor, they did not have authority to arrest.

Now --

Justice Thurgood Marshall: Well, they arrested the other man who did not have a card (Voice Overlap)

Mr. William Bradford Reynolds: Well, Your Honor, the agent’s authority to arrest under the statute arises, an immigration, agent’s authority, arises where he has reason to believe that the agent is in the country unlawfully and that the agent might try to escape or flee.

Unknown Speaker: The alien.

Mr. William Bradford Reynolds: I am sorry, the alien.

Justice Thurgood Marshall: So he could arrest him?

Mr. William Bradford Reynolds: Your honor, in these circumstances, we submit that there was, if we are now positing that the card had not been produced, there was not reason to believe in these circumstances that respondent was in the country unlawfully.

Nor was there is any reason to believe that he would try to escape.

Justice Thurgood Marshall: Then my last question on that point is, does this man, whatever his name is Serrano, did he know that the agents could arrest him.

One did he know he did not have to show the card?

Perhaps he said there was indeed there was nobody.

The man just gotten in and said I got Ortiz, I just arrested Ortiz, I am going to take him away.

Now, let me see your card.

Do not you think that that man assumed that he had a probable arrest or assumed --

Mr. William Bradford Reynolds: Your Honor --

Justice Thurgood Marshall: -- that he was under his duty to show it?

Mr. William Bradford Reynolds: As to what respondent felt the record is silent on that.

I do not think it is unreasonable to assume as you suggest that he might have thought that, but our position is that is not the test in terms of whether you need to give Miranda warnings which I believe is the question you are directing your remarks to.

Justice William J. Brennan: Well, Mr. Reynolds does this all add up to the government taking a position that he is not in custody (Inaudible)

Mr. William Bradford Reynolds: Yes, Your Honor, I believe, that is right.

Justice William J. Brennan: And that he was not in custody that is the end of the statement or --

Mr. William Bradford Reynolds: Well, that -- yes, Your Honor.

Justice Byron R. White: The circumstances are called toward the Miranda warning is required?

Mr. William Bradford Reynolds: That is our position, Your Honor.

Justice Byron R. White: And really it does not make any difference whether the document was legal on the public record or protected by the decision of the Fifth Amendment or anything else?

Mr. William Bradford Reynolds: Well, I believe that if the document is a public record, it does not make any difference whether Miranda warning, whether the situation was custody or not custody.

Justice Byron R. White: Well, if that, if you cannot take this and turn it over.

Mr. William Bradford Reynolds: Because --

Justice Byron R. White: Because the point would be whether the document is protected, but whether he his coerced to turn it over.

In Miranda would be your (Inaudible) with the situation?

Mr. William Bradford Reynolds: But Your honor, if it is a public record then you are not -- if it is a required record, even if in the circumstances here you would say that there was custody and therefore would force him to turn it over.

You would not be forcing him to incriminate himself under the Fifth Amendment.

Justice Byron R. White: Do you think, let us assume that he was in the custody, did you ask him, do you have an alien card?

Mr. William Bradford Reynolds: Yes.

Justice Byron R. White: Is it forged?

Mr. William Bradford Reynolds: Yes.

Justice Byron R. White: And then ask to (Inaudible)?

Mr. William Bradford Reynolds: And you --

Justice Byron R. White: Without warning?

Mr. William Bradford Reynolds: If your question is you have been custody --

Justice Byron R. White: The circumstances of testifying required; you ask him, do you have a card yet?

Do you have -- is it forged?

Yes.

Is that answer (Inaudible) without warning?

Mr. William Bradford Reynolds: It is a -- I think, Your Honor, that if he went ahead and answered, I do not think he needs to answer the second question.

Justice Byron R. White: Well, I know, but let us say, Miranda would include it and let us say it is improper warning. Do you think that situation is different if you say do you have a card yet?

Show it to me please and you go get on his property (Inaudible)

Mr. William Bradford Reynolds: Well, I think that is a different situation then if he does show the card and the card is a document which is a required record such as a driver’s license or --

Justice Byron R. White: Not if he does not have to turn it over so he study it under note the quality form and turned it over.

You have to turnover at least your driver’s license?

Mr. William Bradford Reynolds: Your Honor, I do not think that the -- I think it is turns on the state statue as to whether or not you have to show him on the request that you have to turnover the driver’s license (Voice Overlap) but I think in most, in most states today --

Justice Byron R. White: But you said that refuse that they did not account to -- let us say your alien card?

Mr. William Bradford Reynolds: That is correct, Your Honor.

Justice Byron R. White: And there is no provision in the law that you have to after a request to display your card?

Mr. William Bradford Reynolds: That is right.

And if you --

Chief Justice Warren E. Burger: Well is not this alien in the same position that I am, if an immigration our officer that comes to me and says let me see your alien card and I say, “I have no alien card and I am not an alien and if I did have one, I would not show it to you.”

He does not know that if the man is an alien by looking at him, does he?

Mr. William Bradford Reynolds: Actually, he would not know.

Chief Justice Warren E. Burger: So that a request for an alien card is not something which officers has throw around (Inaudible) I would assume?

Mr. William Bradford Reynolds: No, but our point -- the proposition of Mr. Justice White is it that the man is in a custodial situation as I understand here.

Justice Byron R. White: But the assumption that he were -- that he was in a custodial situation.

May he -- if he then asked to display his card, what he does (Inaudible) form who is the evidence before the --

Mr. William Bradford Reynolds: If the card is a required reference --

Justice Byron R. White: Yes.

I am assuming that it is.

Mr. William Bradford Reynolds: Then I think it would be admissible --

Justice Byron R. White: Even though if you asked him if his card is forged, (Inaudible)

Mr. William Bradford Reynolds: Yes.

Justice Byron R. White: He would not show it?

Mr. William Bradford Reynolds: I think that is correct as to the question because we are not talking, if we had a required reference, we are not in a Fifth Amendment area that we are in, in terms of interrogation that you were positing when you said, “do you ask the question?”

Justice William J. Brennan: Mr. Reynolds, I tell you what confuses me is your position today I suppose may be (Inaudible) particularly in your brief.

I am reading from page 5 of your brief, “it is rather a public document like a driver’s license or a collective service card which must be maintained by the individual,” you said that, so that, “and to produce it upon request by appropriate governmental agency under the required reference law.”

Mr. William Bradford Reynolds: That is the -- applied that was the refusal (Inaudible)

Justice Byron R. White: Do you intend that the (Inaudible) I have heard, may be I have never (Inaudible)

Justice William J. Brennan: Well, that is may be I have (Inaudible)[Laughter]

Mr. William Bradford Reynolds: It maybe requested legitimately under the law properly by the lawful authority, but if there is nothing in the law which requires that he produced it, at the time of that request, but Shapiro, Your Honor I believe, suggested that if you have a record which is required to be kept and it is a required record, that then if an officer asked for the record that you -- the law would assume that it should be produced under the required reference law.

Justice Byron R. White: Then you say he asked that there is a public record then he must produce it?

Mr. William Bradford Reynolds: Yes, Your Honor.

Justice Thurgood Marshall: Mr. Reynolds.

Mr. William Bradford Reynolds: And there is an obligation in the law to produce it?

Mr. William Bradford Reynolds: To the -- yes, Your Honor, well, in that respect, yes.

I assume you were asking whether there is an obligation on the statute to produce it and our position is that, if they required reference and it is asked, then there is an obligation to produce it without the protection of the Fifth Amendment.

Justice William J. Brennan: Well, I know and I understand your position, in which case then that obviates the application of Miranda or in any event, he was not in custody that was in the requirement of Miranda and on that ground Miranda was enacted, that is your position?

Justice Thurgood Marshall: Mr. Reynolds, my problem is that assuming that you did not have any Miranda problem, if I can go and ask the man, are you an alien or not, solely because of the statute which puts -- which gives the Agent the right over alien, right?

If you are still in that, does it automatically follow that the same alien and the same officer, is in the identical position of no Miranda ruling when the purpose is to find evidence to convict of a crime.

Again, I come back to the difference between deportation and criminal conviction?

Mr. William Bradford Reynolds: Your Honor, I believe that the answer to that is that when you were talking in the Miranda area, you’re talking apparently, I think that in this respect --

Justice Thurgood Marshall: Well, is it not -- is not an alien always in the custody of a immigration officer?

Mr. William Bradford Reynolds: Not in the Miranda sense, Your Honor

Justice Thurgood Marshall: Well, can he stop him at any time and ask him anything he wants to ask him under any circumstances?

Mr. William Bradford Reynolds: He may stop him I believe at time and interrogate him as to whether he is lawfully in the United States.

Justice Thurgood Marshall: Alright, that is close to custody.

Mr. William Bradford Reynolds: Well, Your Honor, I do not believe that Miranda defines custody as meaning focus.

I think that what Miranda said quite explicitly is that focus in the Escobedo sense under the Sixth Amendment question that focus means custody that that custody does not mean focus.

Now, our position is that in the first instance when he first was in the room and asked the initial time, that was not in custodial situation and we submit that there is nothing at the second -- on the second occasion, if you look at the surrounding circumstances of the second request, that would have changed what was a clearly non-custodial situation into a custodial situation.

Now, it maybe that there was heighten suspicion on the part of the agent, not probable cause -- but --

Justice Thurgood Marshall: (Inaudible)

Mr. William Bradford Reynolds: The alien -- the alien was -- well, he was --

Unknown Speaker: He was home, was he not?

Mr. William Bradford Reynolds: He was in -- in the home.

The agent went --

Justice Thurgood Marshall: (Voice Overlap) he leave home, like people sometimes do?

Mr. William Bradford Reynolds: Yes, Your Honor.

I would have to submit that he would have been -- but he was not deprived from freedom of action in any significant way which I believe is a Miranda test.

The agent, after they were given the card went into the kitchen and left the respondent alone in the living room while they examined the card.

So I think in that respect --

Justice Thurgood Marshall: You said (Inaudible), is that what you are saying?

Mr. William Bradford Reynolds: I am not saying that.

What I am saying is that I believe that if you have a non-custodial situation in the first in the instance that what the agent was doing even though there was heighten suspicion in the second which was, they were making the routine request, I mean, a routine interrogation as to whether this alien was lawfully in the country.

It was no less no routine because they might have been a little more suspicious that he had a forged card, he was still trying to determine whether this alien was lawfully in the country and in our view they are very --

Unknown Speaker: Not this order but it is (Inaudible)

Mr. William Bradford Reynolds: That is the result -- the end result I think.

Unknown Speaker: (Inaudible)

Mr. William Bradford Reynolds: I think that is right but --

Justice Thurgood Marshall: (Inaudible) Why do you have to recommend a deal before you deport him, you are going to deport him when he gets done (Inaudible)

Mr. William Bradford Reynolds: Well, Your Honor that --

Justice Thurgood Marshall: Are they not?

Mr. William Bradford Reynolds: That is a determination I would not (Voice Overlap).

Justice Thurgood Marshall: But would you not assume so?

Mr. William Bradford Reynolds: I am not the -- but I think that when you are trying to determine whether there was custody in the Miranda situation that is not determined by what subsequently the decision might be as to whether you deport this alien or you prosecute a criminal.

Chief Justice Warren E. Burger: I suppose that a man has asked for his card asked to exhibit it, whether in his home or on the street, he might much rather prefer to do that than being directly to report to the Immigration Office on the following day at 10 o’clock in the morning.

That is a greater inconvenience to himself.

Is that not a reasonable assumption?

Mr. William Bradford Reynolds: I think that is a reasonable assumption.

I agree with that.

Chief Justice Warren E. Burger: And if he did not, if he refused to exhibit the card would that be the start of the remedy that the immigration officer would pursue, is that one of the alternatives?

Mr. William Bradford Reynolds: Well, Your Honor, I think that that is a possibility whether or not that was the request for him to report would have to await further investigation to determine, if there was anything on file that indicated that he had lawfully registered that those intervening circumstances may have occurred, but I think that that might possibly be one of --

Chief Justice Warren E. Burger: Is it not a fairly common thing for the holders of these cards to be requested by writing or otherwise to report to the Immigration Office without knowing at the time what they are reporting for?

I thought that was a matter of common knowledge.

Mr. William Bradford Reynolds: I think that that does -- that that is a practice.

I would like to say just a word about the -- the public of the required record document.

Our view is if it is a public record and it is a record that is required by law to be kept in the possession of the alien for very legitimate regulatory purposes and in that sense it is in the most traditional sense within the required records document.

It is a record of public or again it is one that contains information that is public in nature, that is information, it is already in the possession of his Government.

It had only information as to identity, name, sex, date of birth, his alien status, his registration number, his photograph.

It is issued pursuant to or into -- the part be maintained as into a very legitimate regulatory purpose that it controlling immigration in the United States.

Now, because it is --

Justice William J. Brennan: I think Mr. Reynolds, I gather, you said the first time he tried to require recognition as something which by law one is required to maintain, but is there also an element of that doctrine, in addition to maintaining the but (Inaudible) you must also produce it upon the request of the appropriate government agent?

Mr. William Bradford Reynolds: Well, I believe that the Shapiro case indicated that where one is required by law to maintain a record (Voice Overlap)

Justice William J. Brennan: And must also produce it or has a duty to produce it?

Mr. William Bradford Reynolds: He has a duty to produce it.

Justice Byron R. White: But Shapiro was a subpoena or was it a --

Mr. William Bradford Reynolds: I believe that there was a subpoena.

I believe -- I am not, do not remember that is on the request.

I believe it was a subpoena and actually it was a request for sales record of a whole seller.

The element in Shapiro that is not present here is that Shapiro was addressed to what are essentially private records.

And here we ask what are in a most traditional sense a public record and for that reason the additional factor that was suggest in Shapiro and appeared again in Marchetti and Grosso that is if the record be as a kind customarily checked.

It is one that in our view has no relevance here, is that --

Justice Byron R. White: Would you say that if in this case he lawfully said would you please show me your alien cards and he says, no I will not do so.

The obligation to the law is to keep the card, to produce it upon request.

He says sorry I am not going to do it and then (inaudible) is that the time of the requirement to produce that should you talking about?

Mr. William Bradford Reynolds: Well, that of course raises Fourth Amendment question that I think that the David case would indicate that that was essentially the paper requirement that we are talking about.

Whether or not they could have at that point searched them or whether they would have been legal process, but that is the type of requirement.

Davis indicates that in those circumstances where you are dealing with a public record, the police officer may well, on the Fourth Amendment ground be able to go a little further than he would normally be able to go in terms of obtaining the document.

But I think that is essentially probably to do really are --

Justice William O. Douglas: It is hard for me to understand, how a forged document could be a required document?

Mr. William Bradford Reynolds: Well, Your Honor, that I think is what was troubling the Court of Appeals.

The required record document turns on the record-keeping requirement, possession of a card and if that card, under the statute and that possession of keeping requirement is one that is not aimed at a highly selective group, inherently suspected of criminal activity which we maintain is the case here.

Here you deal with all aliens.

Then the fact that -- in this particular instance we are dealing with a forged card, is not enough to state that this particular case has the required record document.

You have to look at the scheme, statutory scheme and see where the scheme, the statutory scheme is directed -- is at criminal activity alone.

I believe that was the threat to the plurality opinion in California v. Fires last term and I think that the scheme itself is important and if in this particular instance the respondent is maintaining that he alone because he acted in an unlawful manner, he would have to incriminate himself by producing it.

That does not take the doctrine out the required record.

Chief Justice Warren E. Burger: Suppose everything that is “required,” the only thing that required is to produce of his own desire to pass it off as a valid doctrine, is that not so?

Unknown Speaker: He was trying to (Voice Overlap)

Mr. William Bradford Reynolds: I believe that in the document that that is so, I think, Your Honor.

Justice Potter Stewart: But he is volunteering in response to a request?

Mr. William Bradford Reynolds: It was in response to a request.

Justice Potter Stewart: Mr. Reynolds, your time has run out.

There is another quite separate issue that has been brought over this case by the respondent, by the appellee, by the respondent having to do with (Inaudible) whether or not this indictment charges for an offense under the statute, 18 U.S.C. 1546, you dealt with that in your reply brief?

Mr. William Bradford Reynolds: We did deal with it in some detail in our reply brief that that turns, Your Honor I believe on the history of the statute, the legislative history and the background of this particular legislation.

Justice Potter Stewart: At least one Court has held that does not charge an offense that an alien registration card is not the kind of document covered by that section of the code that, am I correct?

Mr. William Bradford Reynolds: That is correct.

Justice Potter Stewart: Any other?

Mr. William Bradford Reynolds: That is the only one that I am aware of.

I do not know if -- of any other course as to defense.

And we for the reasons set forth in the reply brief, we disagree with that decision.

And as to the other issues that were also raised initially in their answering brief, we have dealt with them in our reply brief, I was relying on -- thank you.

Chief Justice Warren E. Burger: Thank you, Mr. Reynolds.

Mr. Cleary.

Argument of John J. Cleary

Mr. John J. Cleary: Mr. Chief Justice and may it please the Court.

In response to one of the questions earlier put the requirement, I would like to point out to the Court, in 1896 Code Section 1357 (a) (1).

It deals with the right of an immigration officer to interrogate any person, any alien, or any person believed to be an alien concerning his citizenship.

There is not the next step to the next as said, because there is another statute requiring this individual to carry his alien registration with the card that he might been produce the card.

There are three separate statutory sections, on the problems confronting the defendant in this case which of course, he felt, was not need to be raised, it is possibly to discriminatory inherent defect within the statute which means to say that anyone could be inquired or interrogated in this fashion.

In this case, the defendant contends that the interrogation conducted in this case, under these circumstances call for the application of Fifth Amendment.

He would even contend that it is even stronger than Miranda because of the circumstances involved in the nature of the interrogation.

Justice Potter Stewart: Now what Miranda does is it prevents the introduction of the evidence at the interogee’s subsequent criminal trial.

Mr. John J. Cleary: Yes, Your Honor.

Justice Potter Stewart: What was the evidence introduced against your client in this -- just the false card, was it not?

Mr. John J. Cleary: Government's exhibit one, for identification was hos forged card.

I think they used a social security card, I am not sure.

They also introduced a statement of Mrs. Diana Barbette Garcia, concerning her statement requesting another card because she lost the card in a court, we have asserted that this is taken (Inaudible) in the violation of his confrontation, introduced the statements of another person.

Those two items were an essence to (Inaudible)

Justice Potter Stewart: Yes, of his conviction, but what evidence specifically was introduced that was secured in violation under your submission of the Miranda rule?

Mr. John J. Cleary: Several; first the actual knowledgeable possession and that was manifested by, show me proof of citizenship or upon the second interrogation, produce your card.

It was no longer a proof was the term he asked the first time, second time, produce your card.

So by producing a card he would then portray a verbal act that he had knowledgeable possession of that card.

One of the elements of the offense is his knowledgeable possession.

Two; the card itself, in the result the actual production of the card, turning over the card was introduced in evidence against, those were the items that incriminated.

In other words, there was a combination of both a physical and a verbal act.

There was also a statement on this man that he was and acknowledged the card and there was one confession I was able to knock out on the ground that volunteer Mr. McMeller (ph) rule and the District Court did grant that, but they let in another one, an earlier statement to the authority.

At this time was neither the Court, I would like to ask permission to be able to cite two additional authorities concerning my case.

The first one deals with, a Court of Military Appeals and that is, U.S. versus Nowling, 9 United States Court of Military Appeals, 100, 1958, and the other Court case I would like to cite and that is on the issues one and two dealing with Fifth Amendment and the production of the card, an item, 4 (c), requirement of defense counsel be allowed to interview witnesses before they are deported as affective assistance to counsel, I would cite to the Court an -- it was not in the F 2nd reporter yet, U.S. versus Linda Rodriguez, Ninth Circuit, Number 71, 1238, dated, 13, July 1971.

The --

Justice Potter Stewart: Hold it, where is the citation you have pointed out from the Court of Military Appeals?

Mr. John J. Cleary: U.S. versus Nowling and --

Justice Potter Stewart: (Inaudible) of the case?

Mr. John J. Cleary: 9 U.S.C.M.A. 100.

That case dealt with almost head on with this type of situation that we have here in the sense that and the Courts below, the Lower Court certainly not binding on this Court, it was where an Air Force policeman thought that an Airman did not have a proper pass, a required document possibly by the Military Service.

He went up and he -- thinking that he might possibly not have an appropriate pass, he said, produce your pass.

The man produced the pass and the Court held that this was in violation of Article 31 of Uniform Code of Military Justice which is the precursor through the Miranda position on the warning it must given to servicemen.

Chief Justice Warren E. Burger: Are the decisions of that court reviewable anywhere?

Mr. John J. Cleary: Well, that is a question that I would not be able to really respond to Your Honor.

The question of the interrogation in this case, one has to take a look at the total circumstances.

This was task force group of the Immigration and naturalization Service.

This is a sweep type of a procedure whereby they apprehend certain aliens.

It is brought out in the transcript that they knew of people that they had planned to apprehend.

They apprehended them and then extended to them the courtesy of securing their own their clothes.

In this case, there was an entry made into the apartment the first time.

That time the authority of the officer was present and it was, demanded up to defendant and say, produce proof of your citizenship.

He complied, a certain production was made at that time.

Thereafter they left.

When they left they arrested another one on the street, another alien as they determined because this man now had a forged card.

The other had none.

With this knowledge the agents most candidly stated for the record that I now thought that the other man when he entered the apartment had a forged card.

He had that knowledge.

He then, going back into the apartment, entered the apartment again for the alleged purpose of securing clothes of their prisoner.

But it is our contention of course, and it is stated in the brief that this one is beyond the legitimate ambit of their entry into the apartment and then interrogated this defendant with the express design of producing that which would incriminate.

The Court of Appeals felt that this was the equivalent of making a man produce varied evidence of his guilt which in fact was not clearly demonstrated in this case.

These are the circumstances that was trigger, if at all, the application of the Fifth Amendment privilege.

It is our contention that the required records document as really initiated and formulated in Shapiro deals with the quite different situation.

In that case, there was business record.

In this case we have a personal card belonging to the individual.

The Shapiro case was further refined in the language of Justice Harlan in Marchetti and he sets out certain requirements.

The third one is the key requirement and that is the requirements dealing with the Albertson Rule and that is to say, when it focuses in on certain suspect class.

Our contention is not even a class, it is an individual, one defendant and when that class cannot be penalized, and here the penalty is most obvious.

In Miranda, the man only gave a statement of complicity.

In Miranda he did give evidence of his guilt or his statement leading to evidence.

In this case it was the whole act was the admission of guilt.

If there is some relationship in the intensity that would require for the interplay of the Fifth Amendment especially when here the status of the agent is greatly enhanced.

For example, if they were suspecting of him some ordinary criminal offense, he could not so interrogate him.

With this case they cannot ask if he has the the citizenship.

They can ask anyone and it is a more a possibly a danger when you have a man who is from a foreign land, does not speak our language, would not necessarily be in the likeness to our laws or as to his right to resist if at all.

Justice Thurgood Marshall: Is there anything in the record that shows what he was arrested for?

Was he arrested for illegal entry or arrested by having a forged card?

Mr. John J. Cleary: Your Honor, you are touching upon a matter that was just briefly hit upon on the record and since I served as defense counsel at trial, I have done my utmost to secure a deportation order for the defendant and in the nature of plea bargaining had foreclosed the charge with the court in presence of the US Attorney and almost literally begged for a misdemeanor violation under 8 U.S.C. 1325.

The immigration was adamant.

Their general contention was yet fooled in IFS and as agent on the first time, by the first go around and hence they would import what I felt was draconian penalty.

Justice Thurgood Marshall: (Voice Overlap) when he was arrested?

Mr. John J. Cleary: He was arrested for a forged card.

However --

Justice Thurgood Marshall: Does that appear in the record?

Mr. John J. Cleary: Yes, it appears in the characterization of Judge Lynch, where Judge Lynch said at the time you arrested him, you did have him for the forged card, was the violation of Title XVIII and their contention was, the immigration contention was, well, we had him for that, but really we do not have to do anything with the Minor Rule 5 of the Federal Rules of criminal procedure because we have him administratively and we do not need to bring him before a magistrate.

Judge Lynch discounted that and said no, when you have him for a federal crime you must comply the Rule 5 and bring him before a magistrate.

He was not brought before a magistrate but was held a month until counsel was appointed and one of the arguments we have laid before in the Trial Court and Court of Appeals and again before this Court, is the delay in the appointment of counsel.

The nature of the interrogation here was unique.

It was in the man’s home.

The status of the investigator has been clearly demonstrated by the counsel for the -- Solicitor General has indicated that they stated their purpose while they were in there.

They readily had apprehended two of his roommates and it demonstrated their power to seize and apprehend persons.

The critical point that we try to raise is that trying to understand what the Fifth Amendment was trying to do and that is the spirit.

Here, we have light years of different between an alien from a different country, on foreign soil, unfamiliar with the laws, unfamiliar with the language dealing with the federal investigator’s experience bi-lingual, knowledgeable on his own home ground.

There was no place that was safe from this immigration examination or question.

And somewhere along the line, the Fifth Amendment protects this type of conduct.

We contend that the circumstances here are far more coercive and far more detrimental than those existing in Miranda.

If anything, we would try to draw upon the analogy in Orozco versus Texas indicates that the Fifth Amendment should be applied not in terms of a geographical study but in terms of a right or privacy of the individual.

If there is some zone or right of the individual to be protected and that right to be protected against self incrimination should not depend upon whether he is in a jail house or in his flat.

But a fortiori that being in his own flat, he was entitled to some deference by the immigration agents.

Chief Justice Warren E. Burger: It carries a right of privacy so far as (Inaudible) to the same constitution or require an alien, carry an alien card?

Mr. John J. Cleary: No sir.

That --

Chief Justice Warren E. Burger: What is the purpose of the card then if no one can look at it?

Mr. John J. Cleary: The purpose of the card, Your Honor is that, it is a form of identification in several respects.

It can --

Chief Justice Warren E. Burger: For his benefit?

Mr. John J. Cleary: I would have to say that it is for a mutual benefit that of the Government and that of the individual.

For example, if the man was an alien, and asked to produce some evidence, they only show may be a passport or birth certificate, that is not legitimate authority to have it here in the United State lawfully.

So hence, he would have to maybe check with the INS or something like this.

The card would give him that advantage.

The benefit of the Government of course is to regulate the aliens which was the very basis of the act when it was passed, I believe in 1941.

Chief Justice Warren E. Burger: Is that their primary purpose?

Mr. John J. Cleary: Primary purpose is to really identify and provide a means of authority.

The contention of the defendant would be that Congress have to fulcrum on his head and the question is the card is there, that Congress felt that it was appropriate for them to produce the card and I think it should have made a legislation to that effect.

There is no such legislation.

In fact in the same way that the man could have produced other evidence, I am sure that would have been satisfactory, but this is a convenient form to show a person’s legitimate data.

I think the point made by Justice Douglas and that is considered by the defendant such is upon the matters that when the inquiry went into the second time what it was dealing with was a legitimate alien registration receipt card.

It was dealing with a piece of, for lack for a better term, contraband or evidence that would be able to prove guilt.

At that time, this assignment was required to produce that evidence.

And it was no longer using which we go along with and we did argue with the Court of Appeals, now we assert in this Court that the Government could not make general interrogation.

Sullivan versus the United States attacked the right to make general neutral inquiry.

I think it is totally permissible, and I think that is wholly within -- inconsistent with the Fifth Amendment but to focus in on this type of defendant, I think it transcends that and the Government should not be able to do as a bootstrap, statutory right to make interrogations in justifying the constitution.

Justice Harry A. Blackmun: You have given a great emphasis to the fact that at both times in the alien's home, do I detect from that that you would not be here had this all taken place at the manufacturing establishment where he was working?

Mr. John J. Cleary: Your Honor, that I cannot -- that argument was not reached in the Court of Appeals.

The contention was duel.

We had made the contention that interrogation had gone beyond the legitimate scope of the entry, that is one of the additional argument in support of our position and my contention is that the basic inquiry, even conducted out in the street, given these circumstances, the agent walking up, thinking that the man has a forged card and then he asked him to produce it under the semblance of his authority, I still feel would violate the Fifth Amendment.

However, it is our contention that this circumstance is greatly aggravated by the fact that it took place within the man’s own apartment.

Chief Justice Warren E. Burger: That is very -- suppose instead of in his own apartment, he was questioned for exhibiting his the second time and saying, well, the agent had said, can you produce your card to the immigration office tomorrow morning at 10 o’clock, here is the address, here is my card.

So at 10 o’clock the following morning this gentleman came in and the first request was do you have your card with you?

Yes.

Can we see it?

Yes.

Then all the events transpired as it has here, what would you say about that?

Mr. John J. Cleary: That most difficult situation be --

Chief Justice Warren E. Burger: Well, if he is in a much more, he is on a custodial atmosphere as compared to being in his hometown, at home, and try to (Inaudible).

Mr. John J. Cleary: The -- I think one has to look at the nature of the intrusion if --

Chief Justice Warren E. Burger: Intrusion, which is the intrusion?

Mr. John J. Cleary: The intrusion is into his apartment concerning the way he gave --

Chief Justice Warren E. Burger: No, (Voice Overlap) No, it was downtown in the immigration office?

Mr. John J. Cleary: One would --

Chief Justice Warren E. Burger: Asking for a routine check on his card?

Mr. John J. Cleary: The -- no matter how one might try characterize a, so to speak little chat with the immigration officer, I would dare say that it would be somewhat coercive, the only case I can think of is California Supreme Court decision, where a woman was asked to come down and speak to a friendly DA about the case and the Court held that that was coercive.

Chief Justice Warren E. Burger: Yes, but the DA is apparently a prosecutor, the immigration officer, what is the category, they are required to report there from time to time, are they not?

Mr. John J. Cleary: Well, Your Honor I would dare say that my experience of the immigration, I find them to be more of the most fiercest and enthusiastic enforcement of the law (Voice Overlap)

Chief Justice Warren E. Burger: Your testimony on that is not relevant Mr. Cleary.

What about this gentleman in the immigration office routinely exhibiting his card.

Do you think that is a violation of the Fifth Amendment?

Mr. John J. Cleary: Your Honor, I would have to say yes in the absence of a statute that requires compulsory production.

I think the answer lies here very simply that the agents thought that they had probable cause that he had a bad card, they could have seized him having probable cause for a valid arrest and then taken the card from him and then they would have had him.

On the other ground, even in the office I feel that absent a statute or absent some regulatory scheme to require a production that the Fifth Amendment would protect him from the situation.

Justice Thurgood Marshall: Your real argument is that anybody with a forged one has protection that a guy with a legitimate one does not have, is that not your argument?

Mr. John J. Cleary: No, Your Honor.

The man with the legitimate card has the same exact right because there is no statute.

However, if he was interrogated, as the Chief Justice pointed as a matter of convenience, he might wish to show the card and thereby end the interrogation as authorized under the statute.

Justice Thurgood Marshall: Well, if he had a forgery (Inaudible)

Mr. John J. Cleary: Well, that is something that we do not know, but that in some circumstances, if it was a voluntary situation, if it was one where a man could be shown that he had, so to speak, knowingly and understandingly try to perpetrate some type of fraud on the Government agent then I think we might run into some probable waiver of Fifth Amendment.

No such evidence is present in this record.

All we have is a demand of the agent and a demand for the card.

Justice Thurgood Marshall: What is the purpose of the card?

Mr. John J. Cleary: The purpose of the card is to identify those in the United States who are aliens, lawfully admitted as immigrants, that is to say on a more public relations (Voice Overlap).

Justice Thurgood Marshall: What is the reason to identify this (Inaudible)

Mr. John J. Cleary: The reasons where it got far --

Justice Thurgood Marshall: Because if they are not legal aliens, resident aliens, they are illegal aliens, is that not the reason?

Mr. John J. Cleary: There is also other reasons.

I would have to say that there are cases where a man might not even have an alien registration receipt card, but might have some lawful status within the United States.

Justice Thurgood Marshall: Is it not the real reason to be sure that he can at all raise and establish the fact that he is a legitimate alien?

Mr. John J. Cleary: In that respect (Voice Overlap).

Justice Thurgood Marshall: It creates benefit, is it not?

Mr. John J. Cleary: Well, I think it is also for the Government’s benefit.

Justice Thurgood Marshall: But it is his benefit do?

Mr. John J. Cleary: Yes sir.

Justice Thurgood Marshall: What -- witness says okay, so when he shows the forged one when the guys left?

Mr. John J. Cleary: Yes sir.

Justice Thurgood Marshall: That was his benefit and he does not have to show it unless he wants to?

Mr. John J. Cleary: He does have to show it unless he wants to.

Justice Byron R. White: (Inaudible)

Mr. John J. Cleary: The required record, yes, that there will no Fifth Amendment claim.

I believe Justice Frankfurter covered the point far more adequately than I thought in his dissenting opinion and also one comment thereby another one of the dissenting Judge, I think it was in Wilson, which I cited in my brief which pointed out that, I think it was --

Unknown Speaker: Inaudible)

Mr. John J. Cleary: No sir.

I am just saying that there was a concurring or dissenting opinion in Shapiro where the Judge said that this case now applies to business records.

However, it can be put to its extreme in our experience that given the type of opportunities on statutes.

It can be pushed to its limits.

What I am saying in this case is it has been pushed to the limit that it is far beyond the business record designed to be ensure --

Justice William J. Brennan: Well, I thought that you have taken the position anyway, are you not, that because it was forged, it cannot fall within the required record statute?

Mr. John J. Cleary: Well, I would take yes, definitely, that difference, I think I have made a statement earlier that this is not the regular inquiry for a card.

That we are dealing with a contraband item in that --

Unknown Speaker: (Voice Overlap) It was not a public record so there was not a kind of (Inaudible) the law that requires to proceed?

Mr. John J. Cleary: What is that --?

Unknown Speaker: That the law does require him to keep forged card?

Mr. John J. Cleary: That is right.

Again the logical extreme.

If I could comment briefly on the contentions we made concerning an equal important point, but a jurisdictional point, touched upon by Justice Stewart and that is the application of 18 U.S.C. 1546 to an alien’s registration receipt card.

The card here serves as some type of entry document, but the document is a re-entry document.

On the card there was a back portion where aliens living the country and re-enter with the alien registration receipt card.

The contention made here is that the statute does not cover this particular card.

The first one is that entry is distinguishable from re-entry and to the Court we cite the precedent of this Court in (Inaudible) case as interpreted by the McFarland, a Second Circuit’s opinion.

Second point that we make is the regulatory characterization of the card by the immigration authority.

There was a two categorization, registration card and evidence of registration.

This card is secured within 30 days after entry into the United States, not at entry.

That is our contention that the ambit and scope of 1546 was directed at those who would put forward some type of legal documentation to indicate lawful status in the United States.

That is to say, false birth certificates or other items to give him the aura of legitimacy within the United States that this was not the intent of Congress.

Further it can be easily reviewed by taking a look at the regulatory scheme, as Justice Marshall first defined it early and that is that there is a scheme of removal of those unlawfully in the United States who misconstrue the, so to speak, poem on the Statute of Liberty, who look for a better land as in this case, this defendant.

And that at first is a voluntary return, no deportation necessary, a person can be returned with Government funds or without Government funds to Mexico.

Two, deportation, three, unlawful entry under 8 U.S.C. 1325, first offense, $500.00, six months, second offense, two years, $1,000.00, next step will be 9 1326.

The person who has been deported unlawfully returns, two years, $2,000.00.

Then moving on, to the more serious ones, 1546 and we have the five years and then 1306 (c) and that is the one who counterfeits the alien registration receipt card.

The further point is that within the statute we have a patent in consideration and that is that in the second paragraph of 1546, there are set forth a statute to deal with the counterfeiting of documents required, for instance, in 1306 of Title VIII (d), there is also a like provision dealing with counterfeiting but this time specifically dealing with alien registration receipt card.

This counterfeiting provision does not meet our situation where we have only possession, but it is submitted by the defendant that if a specific statute deals with alien registration receipt card as others in the document required for entry and that both of this statutes were enacted as part of the same package legislation, Immigration Nationality Act, therefore, given affect for both statutory sections there is an inconsistency.

Applying the principle of legacy , I think the only answer is that that this type of violation and it is treated that way in most ordinary cases even aggravated cases is no more than a misdemeanor under 8 U.S.C. 1325.

The other arguments contended by respondent in this case dealt with the cert and that was the aggravating statute upon the entry into the premise under the excerpts of the United States, the Fourth Amendment protection is not complete.

And that here, there can be no showing that the defendant who consented to this type of interrogation even though the agent might have the right to conduct that interrogation on the street or at their office, their going into his own home, there is no showing of that.

They gained access by the use of the other of his other prisoners to pick your clothing that did not give him, the agent the right to conduct this type of criminal inquiry.

The hearsay rule was a statement of Ms. Diana Varga.

We do not take, so to speak, opposition to the public record exception which the Solicitor General wishes to contend.

We contend that if the statement by the selective service file or other public documents made by the public official, they can come in as a traditional exception for the hearsay rule.

However, what we do take exception with is, when there is a statement of a witness which is made and then becomes a part of the file and then the file is introduced, not much the whole file, but that statement is introduced and there is no showing of unavailability of the witness, we contend that that denies the right of confrontation.

Further, the question of defense counsel, we were -- I was appointed in this case, I think approximately four days after the two witnesses, the last as to which has been deported back to Mexico beyond the reach of any type of subpoena.

In my motion to dismiss the indictment, I alleged this prejudicial delay because here counsel was unable to effectively prepare this case by interrogating two key witnesses who would have very definite information as to the circumstances surrounding their consent to the INS agents to enter the apartment.

The Government cite, U.S. versus Coleman in the reply brief which I reviewed on the Tuesday, but in reading that case, one can see that it is totally distinguishable because counsel in that case was appointed or re-countered his appearance in August, the man was not deported until the following January.

In this case, my appointment followed the deportation.

Two, in the Coleman case their was no showing that the prosecution was aware of the transportation.

Here, the prosecutor was present in Court when the Court ordered remanded Linda Mendez for the INS for deportation.

But I say that in this case, it was prejudicial, it was not speculative because it deals as one of the essential issues here in a sense.

Justice Potter Stewart: You were appointed because this man was indigent.

I am a little curious why should not an Illinois District Court appoint a man from San Diego, California?

Mr. John J. Cleary: Your Honor, I served as a member of the Federal Defendant Panel in Chicago.

I was then the Deputy Director of Federal Defenders Project.

I am now Director of the Federal Defenders, San Diego and this Court was kind enough to allow me continue to any point. (Voice Overlap)

Justice Potter Stewart: MI know.

Chief Justice Warren E. Burger: This very -- has been moved in the interim, Mr. Cleary as you have, (Inaudible) you were appointed by the Court.

You came here at our request and we thank you for your assistance to the Court and your assistance of course to the man you represent.

Mr. Solicitor General, we will not ask you to decide your argument between Thursday and next Monday so we will let you begin afresh next Monday morning.

Featured:

Astrup v. Immigration Service - Oral Argument

Thu, 23 Aug 2012 18:31:19 +0000

Case:

Astrup v. Immigration Service

Media File:

840_19710420-argument.mp3

Related Transcript:

840_19710420-argument

Transcript:

Argument of Paul N. Halvonik

Chief Justice Warren E. Burger: 840, Astrup versus the Immigration and Naturalization Service.

Mr. Halvonik, you may proceed whenever you’re ready.

Mr. Paul N. Halvonik: Thank you. Mr. Chief Justice, Members of the Court.

Actually, this case is quite simple, the principle facts occurring in the years 1950-1952.

The petitioner here lawfully entered the United States for the purpose of permanent residency in the year 1950.

In the summer of that year, he registered for the draft.

He was, later that summer, drafted, but he didn’t submit to an induction.

He signed an exemption from military service which was provided by the 1948 selective service law.

That exemption provided that neutral aliens or permanent residents would be exempted from the draft if they executed the form.

In exchange, they would be relieved of liability for service in the armed forces.

The following year, in 1951, Congress amended the draft law to provide that permanent resident aliens could be drafted, thus, removing the exemption, part of the bargain in the favor of the petitioner.

As we point out in our brief, this was a drastic departure from prior law.

Never before did neutral aliens been drafted by this Country if they chose not to be.

Petitioner was drafted again.

This time he went down to submit to induction, but he was rejected because he did not-- he was not physically fit for service.

The next significant date is 1952 when Congress adopted Section 315 of the Immigration and Nationality Act, the section which petitioner contends controls here.

Section 315 provides what this Court has characterized as a two-pronged test where an alien who has sought exemption from military service is seeking citizenship.

It provides that the alien must (1) have sought the exemption and (2) been relieved from military service prior to that 1952 law which required exemption because, the execution of the exemption, because that also grants release from liability.

But Congress, evidently, because of the intervening law taking away this release from liability for aliens who had signed the exemption now provided the two events had t occur, and we contend that the petitioner was not relieved from liability since he was drafted and that, therefore, he should be admitted to citizenship.

Now, the government, at least below and I assume, still takes the position that had petitioner actually served in the armed forces, he would be eligible for citizenship.

Now, we contend that that’s a misreading of the statute.

It says liability from military service, not service in the armed forces, not actual service.

That if Congress meant actual service, it would have said so.

It merely said those who were not relieved from liability are eligible for citizenship, and petitioner was not relieved from liability.

Moreover, it wouldn’t make much sense to make a distinction between those who were physically fit and could actually serve and those who would flump the physical.

The Congressional scheme makes a good deal of sense.

Now the government, in its reply brief in this case, has raised a new argument that was not raised before, and that is that this section that has been the focus of all the litigation up to now, Section 315, isn’t applicable to the case.

The government and both Courts below thought it was applicable and did both Courts below.

But, the government contends that the Saving Clause, which is Section 406 (a), of the Immigration and National-- Naturalization Act keeps petitioner’s status the same as it was in the year that he signed the exemption.

There are a number of problems with the argument.

First of all, it’s inconsistent with the government’s general position that if petitioner had served, he would be eligible for citizenship because the Section 315 Act doesn’t apply to people who signed the exemption before 1952.

Justice Potter Stewart: Mr. Halvonik.

Mr. Paul N. Halvonik: Yes?

Justice Potter Stewart: The government has filed only one brief, didn’t it?

Mr. Paul N. Halvonik: That’s correct.

Justice Potter Stewart: Because you talked about a reply brief.

Mr. Paul N. Halvonik: Their reply brief, right.

That’s the only brief they filed. The filed other briefs in the Courts below, but I was referring to-- they have filed, but the one brief in-- the brief essentially relies on this point.

I want to emphasize that that’s inconsistent with their general theory that if he’d served, he would be eligible for citizenship because if that Savings Clause saved all the disabilities of everybody, then it would save those who also served in the armed forces, and-- thus, Congress, in trying to create this new status in 1952 for people who was drafting, would be unsuccessful.

Now-- but, the inconsistency, I think, in the government’s position points out their misreading of Section 406 (a) in relation to Section 315, because Section 315 is an exception to the Savings Clause in Section 406 (a).

Section 315 is meant to change status.

That’s what it’s there for.

It’s meant to change the series of invents that result in ineligibility for citizenship and add a new condition before one becomes ineligible.

That’s precisely what it’s for and it, therefore, is a specific exception to the Savings Clause.

It begins with the language “notwithstanding anything contained in Section 405 (b),” which is another Savings Clause that deals with the petitions for naturalization that are pending.

And, the government takes the position that since there’s this “notwithstanding Section 405 (b)” language, therefore, Congress meant to leave Section 405 (a) as a continuing status controlling all of these cases.

Well, that’s inconsistent with the case relied on by the government, Shomberg.

Shomberg also started out with “notwithstanding Section 405 (b)” language, didn’t refer specifically to Section 405 (a) but this Court said “well, it may well be that the ransom could’ve been more exact, but there was no question that since, in that case, Section 318 was designed specifically for this problem, it’s designed specifically to change status, that it was an exception to the Savings Clause” and, here, all you need to do is look at the language of Section 315 to see that it is supposed to have retroactive effect.

It refers to the past tense. It refers to those who have applied, in the past, for exemption.

Moreover, I think, probably, Section 315 doesn’t have that much perspective impact.

Its main impact is retrospective.

There are a very few people under the change of the laws who could properly receive this exemption than they’ll ever be in a position to apply for citizenship or to acquire permanent residence.

I think Section 315 is principally designed for cases such as that one here.

It’s principally designed for retrospective application.

I won’t dwell too much longer on Section 315.

We have, in our brief, gone into some great length about the history of this exemption, about the history extending back to the Civil War of telling aliens “you can either accept the burdens of citizenship or not” and you make your decision and that’s that.

You’re released from the obligations of citizenship and you don’t get the benefits.

What 315 is designed to do is to take care of the people who did have the obligation imposed on them, of the citizen obligation of military service after they had signed the exemption.

That’s also relevant to our second contention in this case.

We contend in the brief there that petition didn’t make a knowing waiver of his eligibility for citizenship because he wasn’t apprised properly of the nature of the bargain he was making.

We rely there on the Moser case.

In Moser it was held that though the alien had signed the exemption form, he would not be bound to it because he had been officially told by both the United States Government in this ligation that it didn’t really mean that he couldn’t become a citizen, and the Court here didn’t rely on the estoppel theory to say there wasn’t a knowing waiver of the eligibility because he wasn’t properly appraised of the consequences.

But, we say the same thing happened here.

He wasn’t given any real choice because the choice was illusory.

He wasn’t told really what was going to happen.

He was told “if you take this exemption, you will receive this benefit.”

Justice Harry A. Blackmun: When you say he wasn’t told what was really going to happen, precisely what are you alluding to?

Mr. Paul N. Halvonik: I’m alluding to the fact that he was told that he wouldn’t be able to become a citizen but he was also told that he would be released from liability for service in the armed forces, and best he made his choice looking at these two alternatives, but those alternatives, it turns out, weren’t real.

He wasn’t really getting that.

He wasn’t getting that release from liability.

Now, the government says “well, it’s just a change in law, and that sort of happens.

When you enter into a bargain, you have to perhaps anticipate that somebody will change the law."

And, that may be a good argument where it’s a private contract but, here, the party that he made the agreement with was the government and it was that government that told him that he would not have to serve.

He’d be released from liability for military service.

It was then the government, the very institution with which he made the agreement, that went back on the promise because the consideration was initially illusory and he was not given a fair opportunity to make a choice between the exemption of service.

I think it’s significant in Moser where this was referred to as a rule of elementary fairness, that the Court cited Johnson v. United States which is in 318 Unites States Reports.

And, what happened in Johnson was this.

It was a matter that arose during a criminal trial.

The defendant had taken the stand and was testifying, and then tried to invoke the privilege against self-incrimination, and the judge permitted him to invoke that, although it was clear, at least in retrospect, then that, on appeal, he ruled improperly and shouldn’t have allowed the defendant to exercise any privilege against self-incrimination.

Nevertheless, the defendant did exercise his privilege, but then the Court permitted the prosecutor to comment upon it, and that was held error in the violation of the rule of elementary fairness for this reason.

Because he-- although he did get what he was told he would get, that is he was allowed to forgo testifying, he wasn’t told that the prosecutor would comment upon it.

And, the Court said in Johnson, if he’d been told that this was going to happen, he might have acted very differently.

He would’ve then been presented with different sorts of alternatives.

He might have made a different sort of judgment, and we can’t lead somebody out and not tell him all the facts then consistent with elementary fairness-- elemental fairness, hold him to his original position.

Justice Harry A. Blackmun: You’re talking about the rule of elementary fairness.

Is that a constitutional rule or what?

Mr. Paul N. Halvonik: Well, I assume from both Moser and Johnson that it’s a rule of-- that this Court would enforce if there weren’t any other objection to it, any constitutional objection the other way.

I don’t know-- I don’t look upon it as necessarily a constitutional rule, no.

Justice Harry A. Blackmun: So, it’s just anything that the majority of this Court thinks is elementary fair or unfair?

Mr. Paul N. Halvonik: Well, I think when you’re resolving situations such as deciding in Moser whether a man intelligently waived his right to become a citizen, which is also the question here, or you’re deciding in a question like Johnson whether a man intelligently exercised the privilege against self-incrimination, one necessarily looks to see what’s fair and if he’s been misled by the government, it’s hardly fair to make him suffer the consequences of his original position.

Justice William J. Brennan: That’s illegal or unconstitutional?

That’s a way to decide, isn’t it, not whether or not it’s fair or unfair in our subject of opinion?

Mr. Paul N. Halvonik: Well, we’re here, I suppose, to decide two things.

First of all, whether there was an intelligent waiver, and that’s where Johnson and Moser are relevant.

And, in deciding whether there’s an intelligent waiver, the question goes back into one of what’s a fair arrangement when you offer somebody something and then take it away, and that goes to the intelligent waiver.

The second point, I suppose, goes to one of statutory construction in trying to determine what Congress meant to do with Section 315.

Now, it’s our contention that Congress realized that what it had done wasn’t fair and was trying, by the amendment in 1952, to take care of those cases where they removed the consideration.

Justice Potter Stewart: This case does involve a matter of statutory construction?

Mr. Paul N. Halvonik: It does.

Justice Potter Stewart: Not a constitutional issue.

Mr. Paul N. Halvonik: Well, it doesn’t involve the constitutional issue, except to the extent that one would think considerations that were relevant to this Court in reaching constitutional determinations would also be relevant to Congress when they’re trying to construct the statute.

It’s to that extent that we’ve raised issues.

We’re relying on the Greene v. McElroy rationality that unless Congress has explicitly exercised its power in a way that will conflict generally with fundamental liberties, it will be assumed that Congress would accord these guarantees the same sort of respect that this Court would.

And, it does seem to me also, Mr. Justice Stewart, and in talking about fairness when there might be an ambiguity in the statute or there can be some reasonable difference between people about what the statute means that, looking to--

Justice Potter Stewart: I see you have, in your brief, made constitutional arguments including an Eighth Amendment argument.

Mr. Paul N. Halvonik: Yes, our constitutional arguments, as I say, are, it seems to me, inconceivable that the Court would declare Section 315 unconstitutional on the basis of the arguments that we have made.

What we have said is that if Section 315 were interpreted as the government wants it interpreted, we have a number of strange things.

We have a man not becoming a citizen because he can’t pass an armed force physical, which is very peculiar.

This has no relation to being a good citizen.

Additionally, it seems to be a forfeiture because of an illness.

Now, we raised those to point out that Congress didn’t intend that at all.

When Congress said liability, it referred to liability, not actual service, in the armed forces and that, therefore, the statute, consistent with constitutional principles, ought to be interpreted to, well, interpret it in such a way that the result was that petitioner was eligible for citizenship and that Congress would have these things in mind too.

That’s why it used the language it did.

Fairness again to come back to what may be relevant too in wondering about the government’s distinction between people who actually served and people who had not served.

This petitioner, everybody agrees, would make a fine citizen.

He’s lived in this country 20 years.

He’s a vital member of the community.

We, in San Francisco, refer to as the East Bay.

He’s of good moral character.

He’s attached the principles of the constitution.

It’s quite understandable, he’s execution of that exemption back in 1950.

He just arrived in the country.

He was looking around.

He hadn’t made a decision one way or the other.

He’d just done 14 months to earn duty with the Danish Navy.

He was a young man.

He didn’t want again to go into a service in a country he wasn’t sure now that he was going to take in place of his native land where he’d already served.

He had come here from Denmark in 1950.

He wasn’t after all leaving from an area of famine or political oppression to come to this country.

He was just looking around a bit of time.

After he’d been here a while--

Justice Potter Stewart: How old was he?

Mr. Paul N. Halvonik: He was 23 at that time period.

Chief Justice Warren E. Burger: You have emphasized, I think exclusively, the change in the law.

Is there any other change factor here that enters into this equation of the “bad bargain,” the change in his physical status?

Mr. Paul N. Halvonik: Yes, there was a change-- there may have been a change in his physical status.

I don’t know if he--

Chief Justice Warren E. Burger: If he’d known at the beginning, if he’d known at the outset that he would never pass the physical examination, would he have signed this-- entered into this engagement, waiving the right to become a citizen?

Mr. Paul N. Halvonik: If I understand your question, Mr. Chief Justice, if he knew he could avoid service through another way, would he have executed the exemption?

Chief Justice Warren E. Burger: Yes.

Mr. Paul N. Halvonik: I would think--

Chief Justice Warren E. Burger: Suppose, for example, that he had his right leg off of the knee at the outset, he just would’ve stood by and waited until they called him up and then demonstrated his lack of physical fitness then--

Mr. Paul N. Halvonik: Well, that’s pretty-- I imagine that’s true.

It would be a very unusual to go out--

Chief Justice Warren E. Burger: Here, the physical condition-- his acceptability for military service altered during this span of time didn’t.

At least they found him A1 physically at the early stage, and later they rejected him.

Now, is that rejection which plays a very important part, the rejection for physical disability plays a very important part, doesn’t it?

Mr. Paul N. Halvonik: Yes, it does.

He would’ve served had he not been rejected for the physical disability.

I don’t think we know necessarily whether it was an intervening disability.

I mean, it may well be that it was there back in 1950 also.

These examinations, in my experience, are not always that thorough when something might be picked up one time and not the next.

So, it’s entirely possible that he had a disability in 1950 and had he actually reported for induction, it would have been discovered at that time.

Justice Harry A. Blackmun: Mr. Halvonik, what is the chronology?

Initially, did he not apply for exemption after he had been accepted physically and had passed his physical exam?

Mr. Paul N. Halvonik: Yes, he passed the pre-induction physical.

Justice Harry A. Blackmun: And the second examination was how long after that, a year-and-a half or so?

Mr. Paul N. Halvonik: About that, yes, a year-and-a half to-- no, about a year later, I guess.

Justice Harry A. Blackmun: It wasn’t very long.

Mr. Paul N. Halvonik: No, it wasn’t very long.

Justice Harry A. Blackmun: Is there any question at all about the integrity of his disability?

I take it--

Mr. Paul N. Halvonik: It must be conceded that there’s no question about it because the government admits that he’s a man of good moral character and I assume that any man who malingered or came up with a fraudulent illness in order to avoid military service wouldn’t be deemed by the government a man of good moral character.

Justice Harry A. Blackmun: What was the cause of the-- his not passing the physical?

Was it bursitis?

Mr. Paul N. Halvonik: It was bursitis, yes.

Justice Harry A. Blackmun: Well, this doesn’t last very long.

Mr. Paul N. Halvonik: No, it doesn’t.

What happens here was that he was then-- he became over-aged after he had not passed his physical and he was then later on classified as over the age of liability.

Unknown Speaker: Mr. Halvonik, what is the ground in which you distinguish Ceballos?

Mr. Paul N. Halvonik: Well, Ceballos didn’t qualify into the 1952 statute.

This Court said, there, it was a 1951 and, thus, he didn’t have the advantage of the two-pronged tests.

Ceballos raises some other points, it seems to me, that may be relevant.

I should distinguish it in relation to Moser argument, this idea of the government entering into a bargain and then not keeping its part and whether that’s pertinent here.

Ceballos is a little different case because it isn’t the government.

It wasn’t any action of the government that took away from him the bargain.

Well, this country’s status changed and that’s something I suppose you have to expect when you take advantage of a neutral alien status that your country may become co-belligerent.

But-- so, it was events that changed the bargain there, a fence on the outside, but here what changed the bargain was the government’s taking away its part of the consideration, the government itself.

Justice William J. Brennan: Mr. Halvonik, had he-- the second time around, had he served, do I understand that the government would not oppose the petition for naturalization?

Mr. Paul N. Halvonik: I believe that’s the case.

You will have to ask the government, but that has been the government’s position in the Courts below.

Justice William J. Brennan: And there had been holdings to this effect in the Second Circuit and another?

Mr. Paul N. Halvonik: And the Ninth Circuit, the Lacher case in the Ninth Circuit.

Justice William J. Brennan: So that your position then focuses on the fact of his not passing the physical examination?

Mr. Paul N. Halvonik: That’s right.

That seems to be the significant factor here.

The passage of time, of course, that relate back to this question about his physical change, the passage of time whenever you defer your military service, certain interesting things are likely to occur in between them.

It makes this kind of service you do different than it would’ve been.

Now, these may be in your favor or they may not be in your favor at all.

Lacher, for example, was a case that the government has sup-- says it was decided correctly in the Ninth Circuit, a man who applied for the exemption but actually served and got advantage of the two-pronged test.

But, Lacher, it’s interesting to note, by postponing his induction was able to avoid the Korean War, which made life somewhat simpler for him, I should suppose. He didn’t go in when it was really a shooting war.

Now this petition, on the other hand, had he passed the physical, would’ve been enduring the Korean War and he didn’t know he wasn’t going to pass his physical.

He wrapped up his life and it went down and tried to get into service, tried to recognize the obligation that was imposed by the order to report for induction.

When a man actually serves after being-- after signing this exemption and being told that he won’t have to, the unfairness, the lack of the bargain here, the government’s not meeting its end of the bargain is obvious, just vividly.

But, I can’t see where it’s any different when a man doesn’t serve because he can’t pass the physical.

He’s done everything in his power that he can possibly do to accept the obligation and to manifest his recognition of the obligations that he’s assumed now.

It happens, in both cases, that the man does everything possible.

One man just physically isn’t able to enter the armed forces, and that can’t be a distinction between whether a man becomes a citizen or not, and the language of the statute doesn’t say that.

I submit that if Congress wanted only those people to be admitted to citizenship, who had entered the armed forces, it would’ve said “applied for the exemption and actually did not serve in the armed forces,” that those were people who were ineligible for citizenship, but it doesn’t say that.

It says “people who are ineligible for citizenship or people who want to sign the exemption until relieved from military liability,” and military liability is what petitioner had.

He wasn’t relieved from that, and that’s the language of the statute and that’s the language that should control here.

Justice William J. Brennan: But, in this case, it comes down, does it, I’m over simplifying it, to his eligible for citizenship if he passes his physical examination.

Mr. Paul N. Halvonik: That, as I understand it, it’s the government’s position and I think that’s in Kemble, and it isn’t supported at all by the language of the statute which, again I emphasize, refers to liability and in any case when we’re talking about liability for military service, we’re talking about having to submit to induction, and that’s not actually serving in the armed forces.

In every area of the law, by “liability” we mean that there’s a classified in 1A, ordered to report for induction, that you become liable.

You don’t recognize your obligation, you’re prosecuted, but the liability is demonstrated when that order to report for induction comes, not if you pass the physical examination.

Chief Justice Warren E. Burger: Thank you, Mr. Halvonik.

Mr. Paul N. Halvonik: Thank you.

Chief Justice Warren E. Burger: Mr. Stone.

Argument of Richard B. Stone

Mr. Richard B. Stone: Mr. Chief Justice and may it please the Court.

In the government’s view, this case raises essentially two questions.

One, whether petitioner’s eligibility for citizenship is in fact governed by the Selective Service Act of 1948 or by the Immigration and Nationality Act of 1952 and, two, assuming that the 1952 Act applies, whether petitioner is nonetheless eligible for United States citizenship now by virtue of his having apply for and obtain an alien’s exemption from the draft in 1950.

I think both of these questions raise rather related and difficult issues of statutory interpretation of the 1952 Act and, without reiterating material that has already been gone over or that is familiar to this Court, I think it might be helpful right now if I very briefly place the 1952 statute in its context.

Under the Selective Service Act of 1948, as under the predecessor statute of 1940, an alien who applied for exemption from the draft on grounds of alienage was thereby permanently debarred from seeking citizenship.

Thus, when petitioner asked to have sought and obtained an alien’s exemption shortly before his scheduled induction in 1950 after having passed the physical examination for the draft, the sole test in the military service area of an alien’s eligibility for United States citizenship was in fact whether that alien had submitted a valid application for an exemption on grounds of alienage.

Now, I take it that all agree that if the 1948 Act is applicable to this case, Mr. Astrup is clearly ineligible for citizenship and I guess there can be no dispute of this point.

In view of this Court’s holding in Ceballos v. Shaughnessy in which a unanimous Court and an opinion by Mr. Justice Brennan held that, under the 1948 Act, an alien-- exempt alien who subsequently loses his exemption, but like the petitioner here fails to pass a physical examination, continues to be ineligible for citizenship.

Well then in June of 1951, as the Korean War grew in intensity, Congress did what it had done several times before during war time.

It put increasing pressure on aliens residing in the United States to participate in the war effort.

In the case of permanent resident aliens, such as petitioner, Congress simply amended the Selective Service Act of 1948 to provide that permanent resident aliens were no longer eligible for draft exemptions on grounds of alienage, and this law affected both those aliens who had already sought and obtained alien’s exemptions and those who had not done so.

But, what about the citizenship status of those aliens who had in fact obtained alien’s exemptions which were no longer valid and who were now eligible theoretically, at least with respect to their alienage, to be called for military service?

It certainly would have been possible, though by no means necessary, for Congress to have provided in the 1951 amendment for some sort of adjustment to the ineligibility for citizenship of those persons like petitioner who were no longer exempt by virtue of that amendment.

And I guess, in any event, it would’ve been logical for Congress to have said something, one way or the other, in the 1950 statute directly about the citizenship eligibility of those persons whose exemptions had been taken away by that statute.

But, Congress said nothing, that is nothing more than that permanent resident aliens were no longer exempt by virtue of their alienage, and I take it also that one day after that statute became effective and for at least the next year-and-a half until the effective date of the 1952 Immigration and Nationality Act, no one doubted that the Selective Service Act of 1948 continued to govern the citizenship eligibility of those persons like petitioner and that, consequently those who had applied for alien’s exemptions continue to be debarred from seeking citizenship.

Then finally, in 1952, Congress passed the Immigration and Nationality Act of 1952 which is the statute that gives rise to the problems of this case and which, for the first time, incorporated the rules governing citizenship eligibility of aliens in a context other than the Selective Service Act, that is, the citizenship eligibility in its relationship to military service.

Now, as we know, the 1952 Act set out a somewhat different test of citizenship eligibility.

In the words of this Court in Ceballos v. Shaughnessy, a two-pronged test and that is the formulation that has been used ever since though it has never been clearly elaborated what exactly that test meant.

And, by that two-pronged test, an alien was debarred from seeking citizenship if he both applied for an alien’s exemption and “is or was relieved from service on such ground.”

Now, again, it would certainly been possible for Congress at that time to have settled the question of citizenship eligibility for those whose exemptions had been removed by the 1951 amendment by specifying that the two-pronged test set out in the 1950 Act would be applied to those persons.

But, again, Congress did not specifically referred at all to that class of persons, like petitioner, who had applied for alien’s exemptions prior to the passage of the 1952 Act-- of the 1951 amendment that took that exemption away.

Instead, what Congress did was to put a Savings Clause in the 1952 Act which is Section 405 (a) of the Act.

Printed now is a note to 8 USC 1101 which said that “unless otherwise specifically provided,” all preexisting conditions, rights, Acts, things, liabilities, obligations, or matters arising under prior law shall continue in effect.

Justice Byron R. White: Mr. Stones, what class of aliens would have been entitled to take advantage of Section 315 (a) under the “or” has applied the language?

Mr. Richard B. Stone: That-- I want to get to that, Mr. Justice White.

That is a somewhat difficult question to answer precisely.

If we take the assumption that is-- that applies or has applied, it must be parsed word for word, then it is difficult for me to think of anyone who, at the time the 1952 Act was enacted, had already applied, we would not come under the rule in this case, but this Court in--

Justice Byron R. White: Under your Savings argument, no one who had applied before--

Mr. Richard B. Stone: Would be s--

Justice Byron R. White: Would be subject--

Mr. Richard B. Stone: Would be subject--

Justice Byron R. White: Would be entitled to take advantage of the two-pronged--

Mr. Richard B. Stone: That’s right, and--

Justice Byron R. White: That Section 315 would go on being applicable in the future.

Mr. Richard B. Stone: That’s right, to the-- it would-- and there was still a considerable class of aliens to whom it would--

Justice Byron R. White: Who, at some date in the future, could have said “has applied.”

Mr. Richard B. Stone: I think it is not unusual for Congress to place a statute like that both in the present and the past tense simply to be all inclusive and to make it unambiguous that it’s all inclusive at any time that it’s read.

I think there’s an implication that it means to be retroactive with the respect-- with respect to the time that it’s enacted, but it isn’t necessarily so and, in Ceballos v. Shaughnessy, this question was raised and this Court did, indeed, specifically say that the Savings Clause was preserved intact and that the general language is or has applied did not apply to the petitioner in Ceballos v. Shaughnessy who is in an identical position, as I shall shortly elaborate, to the petitioner here.

The scheme is that, unless it is otherwise specifically provided, petitioner is debarred from citizenship arising under the Selective Service Act of 1948 and that, of course, that debarment is clearly a preexisting liability under Section 405 (a) of the Act.

It simply continues in effect and is unaffected by the test set out in Section 315, and this Court has held that the Savings Clause we are dealing with here is a very broad inclusive clause which has gotten around only with great difficulty.

In fact, as Mr. Justice Clark described Section 405 (a) in the Menasche case at 348 US, in which this Court very carefully examined the history of the Savings Clause is contained in the Immigration Act, and now I’m quoting from 348 US 535.

“The consistent broadening of the savings provision, particularly in its general terminology, indicates that this policy of preservation was intended to apply to matters both within and without the specific contemplation of Congress.

And, the implication of that Menasche case seems to be quite clearly that the Savings Clause of Section 405 (a) is applicable unless Congress makes a deliberate and specific statement of its intention to eliminate a preexisting right or liability, and Congress did not do that in Section 315 in our view.

Appropriately, for our purposes here, what Congress did was to say that the Section 315 shall apply notwithstanding the provisions of Section 405 (b).

Section 405 (b) is also a Savings Clause contained in the 1952 Act and it is significant to us, though not necessarily dispositive in light of other overwhelming evidence as this Court held in Shomberg, that Section 315 (a) does specifically accept 405 (b) but not 405 (a).

With respect to 405 (a), we have only the general language of Section 315 which covers an alien who applies or has applied for an alien’s exemption and I think that the Ceballos case really closes considering that clause sufficiently, in general language, to override the Savings Clause.

As I say, the petitioner in Ceballos and Shaughnessy was virtually in a position virtually identical to that of petitioner for these purposes.

He had filed his application for exemption before the date of the 1952 Act.

The only difference here is that, in Ceballos, the procedural posture of the case was slightly different.

It involved a review of an order of deportation rather than a naturalization petition, so that another clause of Section 405 (a) involving proceedings to suspend deportation was brought into play.

But, the crucial issue in Ceballos, as here, was the citizenship eligibility of an alien who applied for an exemption, was later exposed to the draft, and was subsequently found physically unfit for the service.

And, the Court found that the general language of Section 315 was simply not a specific exemption to the Savings Clause of Section 405 (a).

Now, on the assumption that Section 315 of the 1952 Act does redefine the citizenship eligibility of petitioner and others in his situation, in what way-- the question is now, in what way does that statute, that is the 1952 Act, change petitioner’s eligibility for citizenship?

The committee report of the Senate Committee on the Judiciary which made a comprehensive preliminary study of the many provisions of the 1952 Act makes very little reference to Section 315 and, what little there is, implies to us that the Committee thought it was incorporating the ineligibility test set forth in the prior Selective Service laws.

I guess that language can’t have very strong effect because, after all, the language of Section 315, as this Court has held, does make a significant addition to the test of ineligibility 7in that it requires that an alien both apply for an exemption and that he’d be “relieved from service on such ground,” that is on--

Justice Thurgood Marshall: This doesn’t actually involve the case, but do women aliens have to do this too?

Mr. Richard B. Stone: No, they don’t.

Justice Thurgood Marshall: I’m worried about this day and age.

Mr. Richard B. Stone: They don’t, Mr. Justice Marshall.

They’re not affected by this because we don’t draft--

Justice Thurgood Marshall: But the statute says any person.

Mr. Richard B. Stone: Well, I assume that--

Justice Thurgood Marshall: As a matter of practice.

Mr. Richard B. Stone: As a matter of practice.

I assume that no Court would interpret that to include women since United States-- the idea, after all, the statute is that aliens, in order to obtain citizenship, should subject themselves to the burdens of American citizens and American female citizens, at this point and time, don’t have the burden of military service.

Justice Thurgood Marshall: This is an argument that I pass from the merits of it, but that if he had served, he’d be in a different category.

Mr. Richard B. Stone: Well, that’s right.

This is what we consider to be the essential result of the language of Section 315 in several Courts of Appeal and as the government now agrees, aliens who are subsequently drafted under Section 315 and actually served in the armed forces are no longer ineligible for citizenship.

In other words, “relieved from service” means effectively and permanently relieved from service, but--

Justice Harry A. Blackmun: Mr. Stone, you agree with that result in the Second and Ninth Circuits?

Mr. Richard B. Stone: It’s the Second, Third, and Ninth Circuits.

Yes, Mr. Justice Blackmun, I think that I-- the government had-- did argue those cases and contest those cases.

I think it now agrees with the position taken.

I think it is a somewhat-- in the statutory language, it’s somewhat a difficult position, but it’s so-- I suppose it seems repugnant to many that those who actually end up serving and incurring that obligation and performing the duty of military service were-- really should be relieved from their initial choice.

Justice Harry A. Blackmun: Well, what bothers me mildly is that then you’re in a position of making eligibility depend on a successfully physical examination.

Mr. Richard B. Stone: Well, I think, Mr. Justice Blackmun, that that is on the surface when you first think about it, rather troublesome, and it did-- we do find that there are aspects of our application of 3-- Section 315 that are somewhat harsh, as I-- we’ve pointed out in our brief and as I want to get to, but I don’t think it’s that specific aspect because I-- if you think about it, what is-- after all, what is at stake here is service.

The distinction made is with respect to whether an alien has or has not served, and if he has not served he can’t get out of his initial choice regardless of what the-- what ground ultimately relieved him when he lost his exemption.

The fact that it is his failure to pass the physical examination which ultimately leads to his not serving on the second-- on his second chance is really an incidental aspect of the fact that we make actual service of the test.

Once a person has declared that he’s an alien and wants to avail himself of the alien’s exemption and chooses not to become a citizen, we make it-- we make service the test and the fact that the physical exam comes in to play is a rather incidental effect of that.

After all, there are many benefits which Congress has conferred upon veterans and people who have served in the armed forces that it doesn’t bestow upon American citizens who wanted to serve but were unable to do so, ineligible to do so for one reason or another, including failure to pass a physical examination.

Justice Byron R. White: Mr. Stone, would the government say the same result would be reached if there hadn’t been an amendment in 1952 where the man had actually been called to serve?

Mr. Richard B. Stone: Well, in all those cases, Mr. Justice White, it has been stipulated, and I’m afraid the government has not been totally consistent after the-- in the aftermath of Ceballos and Shaughnessy in arguing whether the 1952 Act or the 1948 Act apply.

It has been stipulated that we would construe this under the 1952 Act and the only reason I could really think of for this is that it-- the language of the 1948 Act seems clearly to make it irrelevant whether a person served ultimately or not, but that position is just rather difficult to stomach in some way.

Justice Byron R. White: But, the-- under your applicability argument or your Savings Clause argument, I suppose you make the same argument with respect to whether the 315-- is that before--

Mr. Richard B. Stone: I’d rather not face that, but I suppose we would make the same argument that, under the 1948 Act, actual service didn’t matter and, in one case, that was argued and held that actual service did not matter under the 1948 Act.

Justice Byron R. White: And actual service wouldn’t make any difference in terms of the applicability of 315.

Mr. Richard B. Stone: That’s right.

Justice Thurgood Marshall: Mr. Stone, in your comparison with the man that actually applies who is not an alien and doesn’t pass the physical, am I correct that, here, if he passes the physical and is taken in and is subsequently dis-- honorably discharged, he would be covered?

Mr. Richard B. Stone: I suppose he would be, Mr. Justice Marshall.

I suppose that, under these cases which hold that service itself-- well, I-- that--

Justice Thurgood Marshall: I know.

Mr. Richard B. Stone: That, actually, if he were dishonorably discharged, actually I suppose it could be argued depending on what time it was in his service.

It could be argued that he had not-- that he had been effectively relieved because he hadn’t really served.

He had--

Justice Thurgood Marshall: My trouble is being subject to the draft and actually being drafted.

That’s my problem.

He was subject to the draft.

Mr. Richard B. Stone: He was theoretically subject to the draft.

Justice Thurgood Marshall: He was subjected.

He took the physical.

Mr. Richard B. Stone: He took the physical.

Justice Thurgood Marshall: One step.

Mr. Richard B. Stone: And, unlike the first time he took the physical-- he failed it, yes.

Now, let me just elaborate--

Justice Harry A. Blackmun: Mr. Stone, I’ll ask you one more question following through with Mr. Justice White.

Suppose, under the old statute, he had reconsidered and had passed and served, still ineligible in the government’s theory?

Mr. Richard B. Stone: That theory is not involved in this case, Mr. Justice Blackmun, and we haven’t argued that position with respect to the 1948 statute.

We’ve asked in the opinions with respect to the 1952 statute, but I suppose, theoretically, the answer to that question is yes.

Now, I think it is very important to see exactly what language we’re dealing with in terms of this distinction between a person who has physically-- who has been relieved from physical service and a person who has actually served.

Petitioner proposes that even though an alien who applies for an exemption on grounds of alienage is effectively and permanently relieved from service, that is he never serves in the armed forces.

He is not ineligible for citizenship if any other ground for exemption ultimately comes into play and contributes in any way that he’s permanently relieved from service.

In other words, though he doesn’t explicitly say this, he would read the phrase “relieved from service on such ground” as meaning relieved from service exclusively on grounds of alienage.

This would’ve been, of course, a rather radical departure from the 1948 statute which, arguably, wouldn’t even have saved him if he had served, but Congress certainly could’ve chosen to adopt this more generous position and to relieve from the consequences of their initial choice not to become citizens all citizens who applied for exemptions but were later exposed to theoretical liability for the draft.

As we have pointed out in our brief, it may be considered somewhat harsh, in fact, that Congress did not do so, though not for the reasons suggested by petitioner that the distinction is one of passing a physical examination because we consider that quite incidental.

But, we do feel that there is, perhaps, something harsh in the fact that petitioner did, after all, originally make his election not to serve in the armed forces and not to become a citizen on the assumption that he would continue to enjoy the assurance of an alien’s exemption from the draft and he was, by no means, entitled to presume that Congress would not-- was foreclosed from removing his exemption.

There’s no evidence that anyone told him Congress was so foreclosed but, nonetheless, he probably did assume, vaguely or otherwise, that because of his alienage he would not have to think about liability for military service anymore.

Chief Justice Warren E. Burger: Didn’t he assume something else too?

That he had remained physically eligible?

Mr. Richard B. Stone: I guess he would have assumed that, Mr. Chief Justice.

Chief Justice Warren E. Burger: But--

Mr. Richard B. Stone: He would assume that he would stay in the same condition he was in prior to 1952.

Chief Justice Warren E. Burger: Could there be any--

Mr. Richard B. Stone: And, for that reason, we consider petitioner in a much less harsh application of the statute than, perhaps, others similarly situated of who might not have had a change in their physical status between the time that they sought the first exemption and the time they the exemption--

Chief Justice Warren E. Burger: Well I wonder, the laymen, as this man was, not a lawyer, thinking in technical terms, if he really sat down and had a debate with himself about all the elements that he ought to waive, surely he would’ve given priority to the continued physical condition that would render him eligible and would be far less likely to be trying to predict whether Congress was going to change or not change the law.

I think that would be true, wouldn’t it?

Mr. Richard B. Stone: I’m afraid I don’t quite see the--

Chief Justice Warren E. Burger: Well, if he sat down trying to evaluate what were the problems, what he should consider in his choice.

He’d certainly, immediately stop and consider “well, am I going to be able to get out of this military service on the grounds of physical disability?”

Mr. Richard B. Stone: That’s right, and--

Chief Justice Warren E. Burger: And if he knew, suppose he were consulting the doctor at the time and the doctor said “you’ve got an incipient diabetic condition,” he probably then wouldn’t have tried to rest on the other ground.

Mr. Richard B. Stone: Would not apply for an alien’s exemption, that’s precisely the point.

That’s why I think that though we really have to take into account whether Congress-- since Section 315 is not after all crystal clear whether Congress intended to hold all aliens to their end of this so-called bargain, arrangement, those certainly with the contract.

I don’t think that, really, the harshness of our interpretation of Section 315, such as it is, would apply in a case where an alien had passed his physical examination originally and only decided to chose his alien’s exemption after the fact of knowing he was physically fit for the draft.

In fact, several Courts of Appeals have made related arguments.

Every Court of Appeals that has decided this precise issue has, in fact, decided in the government’s favor and several have pointed out, in connection with this issue, that many things can happen.

An alien can assess his chances of getting an exemption on some other ground that would not debar him from citizenship before he chooses to claim his alien’s exemption, and then he may later loose that exemption.

But, in the interim period, many things that could happen that would change his draft status.

Things like marriage at one point, occupational defermance or illness.

Any of those things can happen during the period when he holds his exemption from the draft which might provide him with permanent relief from the draft that he would not have had but for his original choice of an alien’s exemption.

With respect to this petitioner, even if this Court were to take, let’s say, an intermediate position with respect to Section 315 that the alien doesn’t have to have been relieved exclusively on grounds of alienage but that, somehow, the government must show that alienage was the substantial or even the major factor contributing to his ultimate relief.

Petitioner can’t withstand that test either, I don’t think.

In any event, we, on balance, feel that the language of Section 315 is quite badly strained by a construction that his release from alienage must rest exclusively on grounds of alienage.

We feel that a more normal reading of that language which refers to an alien who is or was relieved from service, not from liability but from service, on grounds of alienage is that, as long as the alien’s exemption was one of the grounds contributing to his effective and permanent relief from service, he has been relieved on such ground within the meaning of Section 315.

We think this reading is far more in line with Congress’ attitude as expressed in the prior legislation, and we think that that prior legislation, the basic concepts of that legislation, were meant to be retained in the 1952 Act.

And, for that reason, we ask that this Court affirm the judgment of the Ninth Circuit.

Chief Justice Warren E. Burger: Thank you, Mr. Stone.

Mr. Halvonik, you have five minutes left.

Rebuttal of Paul N. Halvonik

Mr. Paul N. Halvonik: Thank you, Mr. Chief Justice.

Let me just go to the last point that was raised there on what happens with this interim period if you’ve got to postponement of the period for induction in the services.

That obviously can cut both ways.

If you take a-- if you have an opportunity to postpone your induction and you do it during peace time then find yourself called two years later and there’s a war, obviously it’s a less congenial setting for entering into the armed services.

But, this man didn’t set out to postpone anything.

The arraignment he was given was that he wasn’t going to be drafted and said he was relieved from liability.

He wasn’t going to consider whether his physical state was going to change and 231 doesn’t expect, in the next couple of years, to be physically unfit for service anyway, but that didn’t enter into his thinking at all.

The arraignment was you’re never going to be a citizen.

On the other hand, you’ll never have this obligation of citizenship.

Never have the obligation, not that it’s postponed, but that it’s extinguished, that that’s a job for citizens and you’re not going to be one, and he didn’t have any theoretical liability.

He was actually called.

He had to change his life, wrap up his business, go down.

He was all prepared to serve.

And, in doing that action, he demonstrated as much as he was possible to demonstrate that he was willing to assume that obligation.

He demonstrated it to the same extent as those who passed physical.

Now, one other point raised by Mr. Stone was whether the Section 405 (a) Savings Clause is applicable to Section 315 by virtue of the Ceballos decision.

He’s referring to footnote 17 in Ceballos.

Ceballos, as I noted before, was a 1951 case.

The 1952 statute was held applicable to his case.

There’s also a note that says that this-- the procedures initiated against him for deportation were saved by the clause and, therefore, even if he’d come afterwards he probably wouldn’t be able to stop the deportation.

It’s a Shomberg case, and that’s what the reference is to.

It’s true, there’s nothing in Section 315 that specifically changes any procedures that would be going against you at the time.

There is no procedural specific exception to the prior law, so that if a procedure had been begun against the petitioner, for example, for deportation, it would be beside the point that he had a new status after 1952 because he couldn’t take advantage of it because the proceedings for deportation would go pursuant to the 1948 law, but what Section 315 does do specifically is change the status.

It doesn’t change procedures, but it changes status, and it makes eligible for citizenship those who were not eligible before.

And, we submit, that the reason Congress did that was because it was not living up to its prior bargain and now it tried to meet its obligation, and it has retroactive language.

It seems the most reasonable thing in the world for Congress to do.

It seems the fairest thing for Congress to do and it’s very hard to explain the language as applied, as Mr. Justice White pointed out, without applying this thing retroactively.

Finally, I again point out, as Mr. Justice White did, the government’s position is totally inconsistent as to those who actually served.

Either 1952 applies retroactively or it doesn’t.

It can’t apply retroactively to people who passed physicals and not apply retroactively to people who flunk physicals.

Thank you.

Chief Justice Warren E. Burger: Thank you, Mr. Halvonik.

Thank you, Mr. Stone.

The case is submitted.

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