Cases by Issue - Loss of Citizenship

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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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

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.

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Argument of Joseph J. Connolly

Chief Justice Warren E. Burger: Mr. Connolly, you may proceed whenever you're ready on 179, Roger's against Bellei.

Mr. Joseph J. Connolly: Mr. Chief Justice and may it please the Court.

This case calls into question the constitutionality on an act of Congress.

The statute involved as part of Section 301 of the Immigration and Nationality Act.

This statute is set forth on page 45 and 46 of our brief.

Section 301 (a) (7) includes among those who are declared to be citizens of United States at birth.

Persons who are born abroad of one alien parent and of one citizen parent who has resided for a specified time in the United States.

Section 301 (b) provides that such persons that is person foreign born persons who derive their American Citizenship from one American parent, must come to the United States prior to their 23rd birthday and remain here continuously for five years, prior to reaching age 28 in order to retain their American citizenship.

Another Section of the code provides that absences from the United States of less than 12 months in the aggregate will not break the required continuity of the physical presence in the United States.

The facts in this case were stipulated and can be stated quite briefly.

The appellee, Aldo Mario Bellei was born in Italy in December 1939.

His father is a native and citizen of Italy, although Bellei became an Italian citizen at birth and is an Italian citizen today.

He also acquired American citizenship at birth under the predecessor of Section 301 (a) (7), because his mother had been born and raised in the United States and was an American citizen.

Appellee resided in Italy from the time of his birth until recently, when he moved from Italy to England.

Prior to his 23rd birthday, he made four brief visits to United States, the longest of these being four months in duration.

On several occasions, when he applied for renewals of his United States passport, he was advised by American consul officials that he must satisfy the requirement of the period of continuous presence in the United States.

When the appellee did not heed these warnings and remained in Italy past his 24th birthday, his passport was canceled on the ground that he was no longer an American citizen.

Thereafter, the appellee instituted this suit for declaratory and injunctive relief premised on the contention of Section 301 (b) is unconstitutional.

A three-judge District Court sustained the appellee's claim to American citizenship, holding section 301 (b) unconstitutional on the authority of this Court's decisions in Schneider versus Rusk and Afroyim versus Rusk.

The government has appealed directly to this Court.

We argue in this case that the type of citizenship involved here is of an entirely different type than that involved in Schneider and Afroyim, that it owes it's existence entirely to legislative judgment and that the provision for it's termination is a reasonable exercise of the same authority by which appellee citizenship was created.

We contend further that a decision sustaining this statute would not undermine the principles on which this Court's previous decisions rested.

We build our argument on the following points.

First, there is no claim that Section 301 (b) is a penal law, either in its intent or in its effect.

Residents abroad is not a criminal or reprehensible act declared by the American government or by the American people.

The loss of citizenship is in no way intended to punish such absence from the United States.

Therefore, the principals which underlay this Court's decision in Mendoza Martinez are not applicable here.

Second, the laws of nationality under Section--

Justice William J. Brennan: Mr. Connolly, if the constitutional stand would have be that one can't lose citizenship without voluntarily giving it up, I take it this argument wouldn't hold, would it?

Mr. Joseph J. Connolly: Our case would be much more difficult, I would not --

Justice William J. Brennan: Well could you win it, if that were the case?

Mr. Joseph J. Connolly: I think we could make a contention that absence abroad of extremely long duration may indicate of voluntary relinquishment of American citizenship.

But then we would be struck with a counter argument, premised on Schneider that we would be distinguishing between this class of American -- unreasonably distinguishing between this class of American citizens and other citizens who require their citizenship --

Justice William J. Brennan: So that if a voluntary relinquishment were the standard you would probably --

Mr. Joseph J. Connolly: I think that that's right Mr. Justice.

Justice William J. Brennan: Yeah.

Mr. Joseph J. Connolly: And we're contending quite forcefully in this case that voluntary relinquishment is not necessarily the standard because of the like Fourteenth Amendment foundation.

Our second point is that the laws of nationality under Section 301 unlike the statute involved in Trote versus Dallas, does not create the risk of statelessness, which concerned Chief Justice Warren in that case.

The legislative history set out in our brief shows the Congress was concerned with the problem of dual nationality and the protection of persons abroad who held American citizenship for owing primary and permanent allegiance to another country.

To such persons, the laws of American citizenship does not result in statelessness.

They simply retain the citizenship of the country to which they have shown their principal attachment.

In this case, the appellee is, and always has been, a citizen of Italy.

Our third point, and this is a critical point of distinction between this case and the Court's recent precedence in the area is that the type of citizenship involved here does not derive any constitutional protection from the Fourteenth Amendment.

The majority of the Court in the Afroyim versus Rusk, found in first Section of the first sentence of the Fourteenth Amendment, a protection against involuntary expatriation for those persons whose citizenship was declared by that sentence.

The process by which the first sentence of the Fourteenth Amendment was held to include certain substantive guarantees and the type and scope of these guarantees are matters which I confess are not entirely clear to me.

But it does seem clear that whatever those rights may be, they are in guaranteed only to those persons whose citizenship is declared by the first sentence of the Fourteenth Amendment.

The first sentence of the Fourteenth Amendment reads, “All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and other state wherein they reside.”

The appellee of course was not born in the United States.

There may be some questions whether he acquired his citizenship by naturalization although it is not pressed that contention.

We doubt whether Section 301 (a) (7) can be considered in naturalization statute as that term is used in the Fourteenth Amendment.

We can find no authority that the reconstruction Congress view the statutory acquisition of citizenship at birth as part of the naturalization process.

But even of it is assumed --

Justice William J. Brennan: But how -- what then should constitutional authority of Congress to make him an American citizen?

Mr. Joseph J. Connolly: Mr. Justice, that is not entirely clear.

The court below passed over the point in its opinion and in our brief we agreed that there was constitutional authority to grant this type of citizenship.

We suggest that that have might be premised on the naturalization clause and it might be premised upon the Congress' inherent powers, the legislative body of a sovereign to declare the classes of persons who will be considered as citizens.

My own research in the area leads me to conclude that the creation of this class of citizenship is in the exercise of an inherent power rather than the--

Justice William J. Brennan: Of course under that power could the Congress make every resident of Canada or every Canadian an American citizen really by legislation?

Mr. Joseph J. Connolly: It perhaps could.

The basis for my conclusion is that the Congress -- according to the English precedent where the use solely was the fundamental law of citizenship, but as I'll show later, was amended by the parliament in 1350 to provide for a limited grant of citizenship to children born of British nationals overseas.

That the English authorities viewed that as of the same order of creation of citizenship as the natural law of use solely, and that it wasn't considered to be part of the naturalization process which proceeded separately by separate statutes.

I believe that that was the approach which the founding fathers had in the Constitution that is to the extent that this power is existing in Congress, it exists as a natural incident of the sovereignty and there is very limited authority to cite for that.

The very first statute --

Justice William J. Brennan: That to suggest that instead of the first sentence of the Fourteenth Amendment, Congress might have enacted a statute which overruled the Dread Scott?

Mr. Joseph J. Connolly: I think so, the Civil Rights Act.

Chief Justice Warren E. Burger: Going back to your earlier quotation of the first sentence of the Fourteenth Amendment, do I understand your position to be that one who derives his citizenship, achieves his citizenship by being born in Italy as here with two American parents then residing in Italy has less in a way of protection than an Italian national who came over here and became a citizen by naturalization?

Mr. Joseph J. Connolly: Well, his citizenship would not be derived.

It would gain no protection from the first sentence of the Fourteenth Amendment.

Chief Justice Warren E. Burger: Well, then it follows from that, that it does have less rights?

Mr. Joseph J. Connolly: It does follow from that, that the --

Chief Justice Warren E. Burger: Does that seem rather anomalous?

Mr. Joseph J. Connolly: No Mr. Chief Justice, because the first section of the Fourteenth Amendment was designed to take care of a particular problem in the United States at that time in securing of the right of citizenship to the newly freed slaves and it since had been interpreted more broadly to have rights involving rights associated with the preservation of citizenship.

But insofar as the citizenship is to be created by the Congress in the exercise of its power to define citizens of the United States, then it must be admitted that that power has -- that included within that power is the authority to impose reasonable conditions upon that citizenship.

That power in Afroyim holds, perhaps was taken away in respect to the Fourteenth Amendment citizens by the Fourteenth Amendment but insofar as our constitutional principles are concerned, we argue that where the citizenship is created entirely by statute and in exercise of Congressional judgment, that reasonable conditions may be imposed.

Justice John M. Harlan: I'd like to go back to Mr. Justice Brennan's question of the constitutional source.

If there is now a constitutional authority for the issue on your case, would that warrant you?

Mr. Joseph J. Connolly: That's right.

We don't make that argument.

We do not argue that Congress lacks the authority to make adverse citizens of the United States, those who were born abroad.

Mr. Justice Brennan, just to complete my answer to your question, some limited authority for my proposition comes from the very first law containing this provision providing for grant of citizenship to children born abroad.

In that law, which was passed by the First Congress in 1790, it says that, “And the children of citizens of the United States, that maybe born beyond sea or out of the limits of the United States, shall be considered as natural born citizens.”

We suggest there was in the exercise of its naturalization authority under the Constitution.

Justice William J. Brennan: Were there any traditional challenges to that kind of legislation, before the adaption of the Fourteenth Amendment?

Mr. Joseph J. Connolly: I'm not aware of any Mr. Justice.

We take the position that even if it is assumed, that the appellee acquired his citizenship by naturalization, it still would not come within the Fourteenth Amendment.

This is so because he was neither naturalized in the Unites States nor was he subject to the jurisdiction of the United States when he acquired his citizenship.

The history of the amendment confirms when its language unmistakably contemplates that it was directed to events occurring in the United States.

This was well settled by what Mr. Justice Douglas has called, the historic decision in the United States versus Wong Kim Ark and I would like to quote certain passages from the opinion, this is 169 U.S., at 687.

“And from 1795, the provision of those Acts which granted citizenship to foreign born children of American parents, describes such children as born out of the limits and jurisdiction of the United States.”

Thus Congress, when dealing with the question of citizenship in that aspect, treated aliens residing in this country as “under the jurisdiction of the United States” an American parents residing abroad as “out of the jurisdiction of the United States.”

Passing onto page 688, this sentence of the Fourteenth Amendment is declaratory of existing rights, it's the first sentence of the Fourteenth Amendment and affirmative of existing law, as to each of the qualifications therein expressed, born in the United States, naturalized in the United States and subject to the jurisdiction thereof.

In short, as to everything relating to the acquisition of citizenship, by facts occurring within the limits of the United States, but it has not touched the acquisition of citizenship by being born abroad of American parents and has left that subject to be regulated as it had always been by Congress.

In the exercise of the power, conferred by the Constitution to establish a uniform rule of naturalization, so there is contrary suggestion by --

Justice William J. Brennan: So, it was thought that that was just a little support?

Mr. Joseph J. Connolly: There is support for the other proposition.

I expressed earlier as my own conclusion.

Justice William J. Brennan: Yes.

Justice Potter Stewart: Until the Fourteenth Amendment or put this away apart from the Fourteenth Amendment, there is nothing in the Constitution, is there, that purports to define citizenship of the United States?

Mr. Joseph J. Connolly: No, Mr. Justice.

Justice Potter Stewart: Or to explicitly confer power of the Congress?

Mr. Joseph J. Connolly: No, it is not exclusive --

Justice Potter Stewart: Not to rely on such power --

Mr. Joseph J. Connolly: -- except for the naturalization.

The citation from Wong Kim Ark leads to our fourth point.

That lacking any constitutional protection, the citizenship which appellee enjoyed is dependent entirely for its existence and its rights on congressional enactments.

Justice Hugo L. Black: On what?

Mr. Joseph J. Connolly: On congressional enactments.

This was established more than a hundred years ago by Mr. Horace Benny, in his study which is thrice been cited by this Court with approval, it appears in 2 American Law Register.

At common law, the foreign-born child of English citizens did not inherit the right of English citizenship and such a child was treated as an alien in England.

The first statute to remedy this was passed in 1350, the 25th year of the reign of Edward III.

That statute which granted citizenship at birth to a child born abroad of two English parents, and subsequent statutes on the same subject were construed strictly by the English courts.

This Court's decision is Montana versus Kennedy, decided nine years ago, puts to rest any notions that the rights of children born abroad to American parents are greater than what Congress has provided in its citizenship laws.

The petitioner in that case was born in Italy to an Italian father and an American mother in 1906, when the law provided for citizenship by inheritance only from American fathers.

Shortly after his birth, he was brought to the United States where he resided continuously for 50 years without ever been naturalized.

When the government sought to deport him as an alien, be brought an action for a declaratory judgment of the citizenship.

Eight justices of this Court held that he was not a citizen of theUnited States because he did not come literally within the grant of citizenship in the statute.

Surely, a federal common law where the Constitution afforded any rights of citizenship to the foreign born, they would have been exercised in favor of this man who had resided in this country for more than 50 years.

On the basis of the foregoing points, the primary question presented in our view is whether the Congress in the exercise of this power to grant citizenship to the foreign born children of American citizens, they condition that grant on the child's coming to live in the United States for a certain period.

Justice William J. Brennan: Well, Mr. Connolly, on that point, if you were right constitutionally in these situations, the congressional regulation, then what is the left of the argument of voluntary relinquishment in this situation?

Mr. Joseph J. Connolly: The voluntary relinquishment Mr. Justice in our view is inapplicable here.

That is not a test --

Justice William J. Brennan: And if that standard isn't a standard at all, it would apply on the constitutionally conferred citizenship?

Mr. Joseph J. Connolly: That is correct.

The legislative history of the requirement of five years continuous presence in the United States shows the Congress was concerned with the unsatisfactory status of persons abroad, having both American citizenship and citizenship in another country.

This was and it is today a legitimate concern.

The presence of American citizens abroad imposes on our government a duty to assure proper treatment of their persons and property.

The carrying out of this duty inevitably results in international conflicts with the other nation which also regards the individual as its citizens.

An examination of any of the several textbooks on nationality will reveal that there are many types of conflicts which may develop on matters such as reparations, protests, and claims for lawsuits, and it also would reveal that the fact that the law has not settled on the resolution of many of these conflicts.

These conflicts are to bar the language of Mr. Justice Brennan, serious problems, inevitably implicating nationality.

To continue with Mr. Justice Brennan's concurring opinion in Mendoza Martinez, “we have recognized the entanglements which may stem from dual allegiance, and have twice sustained statutes which provide for the loss of American citizenship upon the deliberate assumption of a foreign attachment.”

The Congress recognized that an unconditional granting of American citizenship solely because that one of the individual's parents was an American citizen, meant that our government would risk involvement in such international disputes on behalf of persons who had no attachment or allegiance to the United States.

This much, the court below also recognized.

It said, “There is an undeniable danger that children born and raised abroad, in a foreign home where English may never be spoken, school where English is not thought, celebrating foreign holidays with the family of the non-American parent, will have no meaningful connection with the United States, its culture or heritage.

It is a legitimate concern of Congress that those who bear American citizenship and receive its benefits have some nexus to the United States.”

Plus, the Congress decided that in continuing the grant of American citizenship, to foreign born persons to which the Fourteenth Amendment does not apply, it was desirable to reduce the risk that there would be class of citizens living permanently abroad having no attachment to the United States.

It sought to achieve this goal as it had done under the naturalization laws by requiring a period of residence in this country.

In light of the considerations which prompted in, we think that this requirement is entirely reasonable.

Chief Justice Warren E. Burger: What is the period of residence for an alien, is it five years?

Mr. Joseph J. Connolly: I believe it is five years, for naturalization.

Chief Justice Warren E. Burger: In other words, you're saying that it isn't too much to ask if an American citizen who is claiming derivative citizenship because he was born of an American parents in Europe or in somewhere else, ask him to do the same things that an alien must do?

Mr. Joseph J. Connolly: Yes, Mr. Chief Justice, something along that line.

It says that the same considerations which prompted Congress to require a period of residence in the United States for aliens, to make sure that they have some association with life in the Unites States, are the same considerations which prompted the Congress to enact this particular requirement and in this case, coupled with the fact that the presence of such people abroad imposes versions of the United States in it's diplomatic representations.

The final question then is whether Congress may constitutionally, make a residence requirement, a condition of the continuation of this statutory citizenship rather than the acquisition of the citizenship.

The Congress of course could have provided that children born abroad of one American parent shall become citizens after a period of residence in this country.

But this would have had unfortunate consequences during the child's minority when the American parent could not be rely on American diplomatic protection for his or her child.

It also would have created novel problems of status and rights when the child returned to this country in order to fulfill his residence requirement.

So the Congress would like to declare the minor child as citizen, but to condition the grant of lifetime citizenship, when the child's coming to the United States and residing here for a period of time.

This too we think was a reasonable decision by the Congress.

It did not violate the due process rights of the appellee and others affected by the statute.

Appellee had American diplomatic protection during his minority when he was dependent on his parents.

There was no contention that he suffered any disability or any prejudice by reason of being an American citizen during his minority.

When he came of age, the Congress in effect asked him the question that it properly could ask in granting citizenship to such persons.

Is your sole allegiance to the United States or is your allegiance to Italy where you were born and raised, where you went to school, where you worked and married?

The Congress asked only that he come to this country and be part of it's life for five years.

There is no reason apparent for the appellee's failure to do so other than that he was too deeply involved in activities in his homeland.

For us, there is no apparent reason why he should be able to command United States citizenship for the rest of his life.

May I reserve the remaining time for rebuttal?

Chief Justice Warren E. Burger: Very well, Mr. Connolly.

Argument of O. John Rogge

Mr. O. John Rogge: Mr. Chief Justice and may it please the Court.

In addition to the usual documents of this case, the Court should also have before it the briefs, amici curiae in one of which the American Bar Association has joined.

May I spend just a brief a moment on the facts?

Aldo Mario Bellei's mother was born and raised in Philadelphia where she stayed until she was 24 when she married Aldo Mario Bellei's father and moved within the Italy.

Her parents have remained in Philadelphia.

On five different occasions, Aldo Mario Bellei came to this country to visit his grandparents.

On the first two such occasions, he came on his mother's passport.

And on the second two such occasions, he came on his own passport.

The fifth occasion, our state department denied him a passport, this is when he wanted to come here with his bride to visit his grandparents and he did, but he did that on an Italian passport.

Aldo Mario Bellei has had his own United States passport as an American citizen for a period of 12 years.

He first got it as you will see from page 6 of the appendix on June 27, 1952, if you'll turn to page 11, you will find that it was renewed from time to time until February 11, 1964.

Now, the government comes along with the conditions subsequently imposed and seeks to take this way and I think this case presents the simple question, whether the Congress has the power with reference to an American citizen at birth to take away that citizenship without his voluntary renunciation and can do that consistent with the due process cause of the Fifth Amendment, that's what I think the issue is on this case.

And in answer to the question that you put, Mr. Chief Justice Burger, I think it is the government's position that two aliens coming over here, having a child born here and returning to their own country or the case of a person's naturalized over here with a minor child, that those children have greater rights than a person like Aldo Mario Bellei, who by Section 1993 of Revised Statutes and as amended by the Nationality Act of 1934 was given American citizenship at birth.

I think as a matter of act that Schneider against Ruck is precisely in point because Angelika Schneider never went through naturalization proceedings.

Her parents came over and were naturalized at an Act of Congress then said that she was an American citizen.

I cannot see what Schneider against Rusk is directly in point.

And then in that case, it was held at the fact that Angelika Schneider who had citizenship by statute, she could go abroad to Germany and stay there and the three-year residence requirement was declared unconstitutional.

I submit the same reasoning that in Schneider against Rusk compelled that provision to be held unconstitutional compels the Section that was attacked and held unconstitutional below which is the provision of the immigration of Nationality Act of 1952, is likewise unconstitutional.

The provision at the time that Aldo Mario Bellei was born, required that he come here for five years, immediately previous to his 18th birthday and unless within six months after the child's 21st birthday, he or she shall take both of allegiance to the United States of America.

Now, that Section was repealed by the Nationality Act of 1940, but that repeal had in it this proviso that the repeal shall not terminate nationality heretofore lawfully acquired.

So you have someone who has American citizenship at birth and Congress comes along in a condition subsequently enacted and says, he doesn't have it anymore.

Now, the government says, well, this thing about coming here for five years is really a small thing, it doesn't mean anything, it's a great hardship.

A child living with his parents, it would mean, if they wanted to give him an education, they would have to have quite a few thousand dollars to send him over here at that period of his life in order to acquire it.

It would draw a distinction between those who can afford to do this and those who can't.

Now, the government also takes the position that such a person has no meaningful connection with the United States.

Well, I submit that this country has changed in the past 40 years, where Americans living abroad have increased 20-fold from some hundred thousand a year to two million a year.

Chief Justice Warren E. Burger: Are those permanent residents you mean?

Mr. O. John Rogge: They're residing abroad, I mean they're not just travelers.

As a matter of fact, Mr. Dallas wrote a piece in which he was taking about the million in Europe to which they're added a million tourists, I'm not talking about tourists.

I'm not saying when you say permanently, Mr. Chief Justice, I mean they're residing there.

This is--

Chief Justice Warren E. Burger: Non-tourists?

Mr. O. John Rogge: They're non-tourists, yes.

In most of the big cities of the world, you have large chunks of America today.

Chief Justice Warren E. Burger: How many of those were military, does this record show?

Mr. O. John Rogge: I think about half are military, yes, half of the two million.

As a matter of fact, rather than worrying about having a meaningful connection with the United States, Europeans are worrying that we're Americanizing Europe.

A study was done, 25 families with American wives, all but two fathers spoke English.

There were 47 children there.

26 spoke English as the primary language or English and French with equal of fluency, only five spoke French.

I submit that we should regard these international children as a valuable asset of this country.

Justice William J. Brennan: Does this statute apply to the children -- of our military stations there?

Mr. O. John Rogge: This is another thing.

If a child is born of two American parents, then there is no problem, but if this Court should hold that this statute is constitutional, then another Congress can come along and say, “Children born of two American parents, we're going to take that citizenship away too” and I submit --

Justice William J. Brennan: Well, the answer of my question is “Yes, it does,” that this statute would on the proper facts applied, the children born to our military stations abroad?

Mr. O. John Rogge: If there were two American parents, I mean if the military abroad --

Justice William J. Brennan: Now take this situation.

Mr. O. John Rogge: In this situation --

Justice William J. Brennan: Where the American is in our military?

Justice William O. Douglas: An alien can be in our military?

Mr. O. John Rogge: It would have to be ultimately, the Immigration and Nationality Act as almost as complicated as Income Tax Laws.

I know this specific Section with which I'm dealing and I do know that the child born of two American parents, there is no problem.

It's the child born of one American parent of which there's a problem and in the provisions with which I'm familiar.

Justice William J. Brennan: What I was interested in talking about is if this statute is applicable and the one American parent is in our military and the child is born abroad, does this statute apply to affect that child's American citizenship, that's my question?

Mr. O. John Rogge: I almost feel like consulting the opposition.

I don't know [Laughter] Well, let me take Mr. Charles Gordon over here who does this all the time.

I almost say to Mr. Charles Gordon, does he know of an exception for that situation.

I don't.

But in connection with Your Honor's question, I do want to emphasize that if this statute is held constitutional then Congress has the follow some future session that come along and take away the American citizenship of a child born abroad of two American parents, on the government's interpretation here.

That's my point, that in today's world of United Nations and I haven't emphasized this but I think it is important that we should regard these children as an asset.

I mean, we now have diplomatic relations with over 100 foreign countries where members of more than 70 international organizations, we give military and economic assistance to over 50 foreign countries.

Our business enterprises have more than a hundred billion dollars invested abroad.

Justice John M. Harlan: Don't you think those are arguments that are a little bit strong that this policy arguments that they are unconstitutional?

Mr. O. John Rogge: On a due process question, I'd say yes Mr. Justice Harlan, but I also say this, I'm trying to meet the argument of the government where they think that these children are not an asset, that they're burden we should get rid off and they talk about no meaningful connection to the United States.

And I would like to counter that by saying that this is an asset that this country should welcome rather than say that they are burden.

Justice John M. Harlan: Well I didn't understand the government to be arguing that there.

Their argument is that this is irrational thing to do.

They might disagree on lots of times as I understand it is that depending on their mistakes is their argument is in their power?

Mr. O. John Rogge: Well, I'd say on that I don't think it's a rational thing for Congress to do, with reference to someone who has American citizenship at birth to come along with condition subsequently imposed.

In other words, the Aldo Mario Bellei got American citizenship in 1939 and he had it, at l east he had it until 1952 when the Immigration and Nationality Act came along and said that “Well, now you have got to come here and be here for five years between the ages of 14 and 28.”

And those early years are the years if he's in his own family context unless you're a child of wealthy parents, they can't afford to send him over here for education during that period.

This is a year when he goes to college.

The year when goes to college.

Chief Justice Warren E. Burger: Well is Congress entitled to think that it would be important for the person to go to college or spend those impressionable years in this country in order to lay a foundation for being a good citizen?

Mr. O. John Rogge: Well, I'd say that if that's what they have in mind, Congress has mistaken in today's world because --

Chief Justice Warren E. Burger: There might be as Justice Harlan's said, that's they have the right to make their own mistakes, but can we correct it assuming it's a mistake?

Mr. O. John Rogge: Under the Due Process Clause of the Fifth Amendment, yes. Because this is an unreasonable requirement, it's an unreasonable classification.

Chief Justice Warren E. Burger: Then we don't correct it, “because it's a mistake.”

We deal with it because it offends the Constitution?

Mr. O. John Rogge: Yes.

And my position is that this does violate the Due Process Clause of the Fifth Amendment and I think that Angelika Schneider against Rusk is directly in point and I think the Courts approach in Afroyim against Rusk is also important.

But as to the arguments that are made in the government brief that these children are a liability.

I think on the contrary, on the context of today's world where we make supersonic flights to Europe now for about six hours, and you may have colonies on Mars in the future century where you are -- where we are interdependent nations, I think we should regard these children as an asset.

Justice Byron R. White: Well Mr. Rogge, you said -- under your argument, would you reach the same result if Congress had said that children of American -- of one American parent born abroad will become a citizen, but only upon residing in this country for five years.

Mr. O. John Rogge: You put me a different case when you put it as a condition preceding, that's not this case.

In other words, if the Congress had said, Congress didn't say that, but if the Congress had said “These steps must be taken before you can become a citizen”, that's one thing.

Justice Byron R. White: So we could say you can't become a citizen until unless you come here for five years between the ages of 14 and 28?

Mr. O. John Rogge: I'd have more trouble with that case.

That would be a -- if were put as a condition preceding, I could concede it --

Justice Byron R. White: That wouldn't be irrational?

Mr. O. John Rogge: It wouldn't be irrational maybe, but that's not what Congress has done.

Justice Byron R. White: Well I know, but you're making the argument about rationality and I just, I have some troubles seeing differences between the cases in terms of rationality?

Chief Justice Warren E. Burger: This is what we require to the foreign born alien, isn't it?

The residents here for five years, except we don't pinpoint it as to age.

Mr. O. John Rogge: That's right.

Chief Justice Warren E. Burger: But is there a distinction because of the age factor on Justice White's question?

Mr. O. John Rogge: No, I think it's whether as condition to preceding or a condition subsequent.

The Congress had said that these children, and I may say Congress has long said that a Child born of an American father is a citizen at birth.

There hadn't been any problem about that or was ever questioned one way of the other and then when the statute was broadened to include American mothers, it was then that you got these conditions in here.

Chief Justice Warren E. Burger: But if there's any problem -- if you have any problem in answering Justice White's question on the constitutional side, then there is a problem which requiring foreign born nationals or aliens of another country to reside here five years before getting citizenship, is that --

Mr. O. John Rogge: I've said, I distinguished the two cases and Mr. Justice White was saying that -- by answer -- I thought I understood it that way, Mr. Justice White, but there was no distinction between the condition preceding on the condition subsequent, I think there is.

And I think, the Congress could very well, I mean I could go along with part of the premise, the Congress might have the power to say that a child born abroad of an American parent will not get citizenship unless they come here for five years as a condition precedent, but that is what Congress did here.

The Congress gave the citizenship, they were some conditions subsequent but even those were repealed.

Justice Byron R. White: But even if there isn't any difference between the two cases, you haven't lost their case yet?

I mean, let's assume it's wholly rational, it's still a question of summary power?

Mr. O. John Rogge: Yes, yes.

That's a simple question in this case and Congress consistent with the due process clause of the Fifth Amendment expatriate without consent.

Justice Potter Stewart: I see, but your argument is purely a due process argument, is it not?

Mr. O. John Rogge: Under the Fifth Amendment, yes.

Justice Potter Stewart: And it's therefore one of the rationality or --

Mr. O. John Rogge: Yes, it has to be the --

Justice Potter Stewart: Fundamental fairness?

Mr. O. John Rogge: Yes.

Justice Potter Stewart: That's it, fundamental fairness.

Mr. O. John Rogge: Mr. Justice Stewart, I have a great feeling for the concept of due process as fundamental fairness.

I know that Mr. Justice Black has had a problem with that, but the due process as Mr. Justice Frankfurter expounded it, as Mr. Justice Harlan would now expound it that it has to be consistent with fundamental fairness or the conscience of the time and to my mind --

Justice Hugo L. Black: Well, that is fundamental fairness according to five members of this Court?

Mr. O. John Rogge: Yes, yes [Laughter] if Your Honor please.

And as far as I'm concerned, I am prepared to take the judgment of what I think is one of the great institutions of the world to take the minds, the trained minds of the members of this body, sitting down at any particular time at a problem and coming to a conclusion and I'll be glad to abide, but I'll go one step further.

With that same concept, and the concept of this country as a maturing society, let us take for instance capital punishment, I have every confidence that someday in the future, if the world survived that this body is going to say that capital punishment violates due process.

Justice Hugo L. Black: But why do they have to say it if it does?

If capital punishment just violates, why do you hope that this Court would say it does someday, why don't you hope that that the Constitution will be amended in the normal constitutional way?

Mr. O. John Rogge: My concept of due process Mr. Justice Black, which I think goes back to the law of the land at Magna Carta and to Bracton who said that the King was under God and the Law, this concept which is an evolving concept, I think the majority of this Court can determine at any time and place what that due process cause means.

Justice Hugo L. Black: In other words, anything that they think fundamentally unfair is unconstitutional?

Mr. O. John Rogge: Yes.

Justice Hugo L. Black: What do you need with any other Constitution with that?

Mr. O. John Rogge: Well, this Court has done very well, under this Constitution and for my part, my admiration goes with it.

I am prepared to abide with what the majority of this Court says.

Comports with fundamental fairness, which in our Constitution in two clauses in the Fifth Amendment and in the Fourteenth is called due process.

Justice John M. Harlan: Is that a way to see what we decide [Laughter]

Mr. O. John Rogge: I'll still abide by that Mr. Justice Harlan.

Justice William J. Brennan: May I ask Mr. Rogge, do you rely to all on the first sentence of the Fourteenth Amendment?

Mr. O. John Rogge: No.

I'd have to say no.

I pitch mine on the Fifth Amendment, but I say this.

I think that --

Justice William J. Brennan: But what about I take it or doesn't, let me ask you, do you think that the question of voluntary relinquishment -- where do you get this, if you don't get it under the first sentence of the Fourteenth Amendment?

I gather this -- the basic constitutional authority here is the power of the Congress, to enact uniform naturalization laws.

Mr. O. John Rogge: Well, it's either that or you have one there on foreign relations.

I haven't gone into this because no body has challenged the constitutionality of the statute giving American citizens at birth to the child born abroad with an American parent.

Justice Byron R. White: Did you just say in your early argument is that the restriction is irrational and it's void?

Mr. O. John Rogge: Yes, under the Due Process Clause.

Justice William J. Brennan: Well, I thought you opened by saying something to us about “He could loose it except by voluntary relinquishment”?

Mr. O. John Rogge: Yes, yes.

Congress cannot expect--

Justice William J. Brennan: You don't make that argument based on the first sentence of the Fourteenth Amendment but just as part of your irrationality argument, is that it?

Mr. O. John Rogge: Due Process Clause of the Fifth Amendment.

Justice William J. Brennan: I see.

Mr. O. John Rogge: And I would add this.

I think that Angelika Schneider was just as much as statutory citizen as Aldo Mario Bellei, because she didn't go through any naturalization proceeding.

There was a statute which said, because her parents were naturalized, she was a citizen and what's the difference between that statute and the one which declared Aldo Mario Bellei a citizen at birth.

I think Schneider against Rusk is directly in point in this case.

Chief Justice Warren E. Burger: One difference was in the residence of the parents isn't there?

Schneider's parents were here?

Mr. O. John Rogge: Schneider's parents were here, yes, but there is also a provision with referenced to Aldo Mario Bellei's mother that she had to be here for ten years, at least five of which were after the age of 14.

There is also a residence requirement in 1993 as amended and it's 10 years.

Chief Justice Warren E. Burger: Thank you Mr. Rogge.

Mr. Connolly, do you have some more for us?

Rebuttal of Joseph J. Connolly

Mr. Joseph J. Connolly: Yes, Mr. Chief Justice.

Justice William J. Brennan: Mr. Connolly, would this reach a situation of the American parents who is in the military abroad?

Mr. Joseph J. Connolly: Mr. Gordon advices that the statute is applicable to the child of an American service men or women overseas, married to an alien?

Justice William J. Brennan: We must have a lot of situations like that I guess.

Mr. Joseph J. Connolly: Yes, there are those --

Justice William J. Brennan: A lot of American military men are marrying German girls and Koreans, everyone?

Mr. Joseph J. Connolly: But those situations provide no difficulty under this statute because in the ordinary course of the marriage and the development of the child, serviceman is rotated back to the United States, there's usually no intention in those cases to relinquish American residency as it was in this case.

Justice William O. Douglas: Some of them were discharged abroad and reside there.

Mr. Joseph J. Connolly: Yes, that's entirely possible but in the great majority of cases, they return back to the United States, the child is born and raised in the United States.

Chief Justice Warren E. Burger: You have about three minutes left Mr. Connolly.

Mr. Joseph J. Connolly: Sir?

Chief Justice Warren E. Burger: You have about three minutes left.

Mr. Joseph J. Connolly: Thank you sir.

Mr. Rogge I believe, certainly unintentionally left the impression that the requirement of presence in the United States was imposed on Mr. Bellei after a conferral of American citizenship on him at birth.

That is not quite accurate.

He received his American citizenship pursuant to Section 1993 of the Revised statutes as amended in 1934 and that's as the statute set forth in page 44 of our brief, and it does provide for a period of residence in the United States.

Indeed a more onerous period of residence in United States in present law under which Mr. Bellei's situation was tested because it must be accomplished by the age of 13 I believe.

Now, Mr. Rogge also misinterprets the government's position, if I may say, on the moral word, if you will, that he children who were born overseas and who are subject to the requirement of the statute.

We make no claim that these children cannot be good Americans, but we think that there is something much more to performing the duties of an American citizenship from watching American movies and American television overseas, and eating hotdogs and bubble gums.

And what Congress was looking for and what Congress had provided for by the period of residence in the United States was the assurance that these children, these young adults, wherever they reside for the rest of their lives and they could go back overseas and have no restrictions on them or whatsoever, would be persons who had some meaningful relationship to the United States, some ability, some personal understanding of how the institutions and people of the United States operate.

And some ability if necessary to contribute to the development of those institutions, a personal stake, in other words in the institutions and people of the United States.

Another point that I would like to make in the very few minutes that I have left, is that Mr. Rogge invoked considerations of a shrinking world, expanding notions of nationality, but these notions were encountered due to a developing trade and international law, which I'm not entirely familiar, but I've done some research on, which shows that because of the problem of duo nationality, international lawyers are struggling with the concept similar to that in our domestic conflict of laws of effective nationality as recognizing the persons may have citizenship in a number of states or usually two countries.

Where the rights of the citizens are to be asserted, the test is where the real and effective citizenship of the individual is and one exercise in this development is the article of the convention of the conflict of nationality laws in 1930 which I will not take time to read.

Another example is the decision of the Court of International Justice, in the Natobong case in 1955.

For those reasons Mr. Chief Justice, we submit that the judgment of the District Court should be reversed.

Chief Justice Warren E. Burger: Thank you Mr. Connolly.

The case is submitted.

Thank you Mr. Rogge.

Featured:

Afroyim v. Rusk - Oral Argument

Thu, 23 Aug 2012 18:14:18 +0000

Case:

Afroyim v. Rusk

Media File:

456_19670220-argument.mp3

Related Transcript:

456_19670220-argument

Transcript:

Argument of Edward J. Ennis

Chief Justice Earl Warren: Number 456, Afroyim, Petitioner, versus Dean Rusk, the Secretary of State.

Mr. Ennis.

Mr. Edward J. Ennis: May it please the Court.

This case is here on a writ of certiorari to the United States Court of Appeals of the Second Circuit, which unanimously affirmed a summary judgment of the United States District Court for the Southern District of New York, holding that the petitioner had expatriated himself pursuant to the authority of 401 (e) of the Nationality Act of 1940 by the act of voting in an election in the State of Israel in 1951 for the legislature of the State of Israel.

This case was to be argued by the general counsel for the New York Civil Liberties Union Nanette Dembitz-Berman, who wrote the briefs in the case and it is Mrs. Berman's appointment as a judge of the family court of the City of New York that brings me here today.

She is very disappointed that she missed this opportunity to address the Court on this subject.

The facts are very simple and are stated in a stipulation of facts which appears in the record and -- at page 11 and are simply that the petitioner who was born in Poland in 1893, immigrated to the United States in 1912, was naturalized in 1926 and went to Israel in 1949, a year after that state was established in 1948.

And in 1951, he voted for the second Knesset, which was the second election of the legislature of Israel.

At that time indeed, when there was no Israeli citizenship at all and that everyone who voted in that election, voted on the basis of their residence in Israel.

Indeed, it was that legislature which a year later adopted the first Israeli law of nationality and established Israeli nationality.

The District Court, in the basis of the stipulation of facts in which it appeared that the petitioner voluntarily voted in that political election, stated that it was bound by the decision of this court in the Perez case in 1958 and held that he had lost his citizenship as indeed when he applied for a United States passport in 1960 to return to the United States, the consul in Israel so determined and the State Department approved that loss of citizenship and when he did return, he obtained a full hearing, which is part of the record, before the Passport Review Board which affirmed this loss of nationality and then he brought this -- this action.

The record does indicate that the man's profession, he was an artist by profession, a painter and sculptor, and indeed in this country, he has some of his paintings which are products of the WPA Art Program in some of our high schools and hospitals.

The case presents squarely the constitutionality of this Section 401 (e) of the Nationality Act of 1940, which is repeated in haec verba in Sections 349 of the present Immigration and Nationality Act.

Justice John M. Harlan: Wouldn't the -- what you're asking is to overrule Perez?

Mr. Edward J. Ennis: Over -- yes, overruled Perez, which is now.

Mr. Justice Harlan, when I -- I recognize the -- from the facts of the reargument that was ordered in Perez, the 100 pages of opinions on that -- in that case and the Trop case, the 75 of pages of opinion in the Mendoza case which followed a year -- few years later, in which again the court ordered rearguments.

When I read the opinions of the Court in those cases and read the records in the briefs, I must say I was nonplussed as to what I've read to the consideration of the Court of this -- again of this issue, which has been obviously so painstakingly considered by the Court.

In the short time that is available to me, I felt it would be bootless and of no assistance to the Court to try to review here the formulations of the applicable constitutional doctrine.

Most of the justices are sitting here have expressed themselves on the constitutional doctrine.

It occurred to me that in my short time, I might assist the Court by examining very briefly the two factual propositions which are, I submit, accepted by the majority of the Court in the present case and which I believe are factually false.

One of those propositions in which the Solicitor General bases his argument, one of those propositions is that for an American citizen to vote in a foreign election is an indication of some diminution of his allegiance to the United States and some adherence to a foreign allegiance.

The other proposition is that for an American citizen to so vote in a foreign election, in some way embroils the United States in foreign affairs or in some way exacerbates or makes more difficult the handling of foreign affairs.

I would submit to Your Honors very briefly that both of those propositions are factually inaccurate.

Now, as to the first proposition, that voting in the --

Justice John M. Harlan: Can I interrupt you --

Mr. Edward J. Ennis: Certainly.

Justice John M. Harlan: Would you agree that the -- taking those two propositions that the constitutional question is this, whether Congress has the power to reasonably or rationally so conclude irrespective of what we or some others might think as the wisdom of the legislation.

Mr. Edward J. Ennis: I agree -- subject to my basic constitutional position that where we're dealing with citizenship granted by the Fourteenth Amendment, a Congress has much less authority and indeed, my final proposition is that Congress has no authority, under the Constitution to remove United States citizenship that this can only be done by the voluntary act of the United States citizen and all that the power of Congress is, is to regulate the manner in which this voluntary expatriation shall be expressed.

Obviously, a man cannot put a note of expatriation on his desk floor and take it out when he wants to.

Congress can say that if you wish to adjure allegiance to the United States, if you're abroad, you must do it before a consul.

If you are in the United States, you must do it on the forms supplied by the Attorney General of the United States.

The limit of Congress' power is to regulate voluntary conduct or conduct which in most instances or in common experience is voluntary.

Justice John M. Harlan: What provision of the Constitution which do you derive that annotation?

Mr. Edward J. Ennis: From the Fourteenth Amendment which provides that every person born in the United States or naturalized alien is a citizen of the United States and the state in which he resides.

And from the opinions expressed by some of the justices that this sets up a relationship between the United States and its citizens, which the Congress does not have the power to terminate, that the relationship of citizenship can only be terminated by the act of the individual and that Congress is therefore limited to regulating those voluntary acts.

Justice Byron R. White: So there's no -- you -- you go so far as to say that there's just no behavior by the citizen which may -- which Congress may recognize as a -- in effect in expatriation --

Mr. Edward J. Ennis: None at all.

I believe that -- I believe that it's plain that a naturalization in the foreign state is --

Justice Potter Stewart: Now, why --

Mr. Edward J. Ennis: -- the clearest indication of --

Justice Potter Stewart: That may be a clear indication but what if the citizen says, “Now, look, I don't intend to lose my United States citizenship at all.

I'm becoming a citizen of another country but there are a lot of dual citizenships in the world.

So why should you take this to be an expatriation?

I say I'm still a citizen.”

Now, how come Congress can recognize that event?

Mr. Edward J. Ennis: Well, my -- my -- my personally belief that Congress may take conduct which normally connotes a putting off of your United States allegiance and taking on a foreign allegiance and may nominate that may -- as a control of voluntary conduct may say that that is expatriation.

Even though the individual says that, “I denied what I'm doing,” has a natural effect --

Justice Byron R. White: So Congress can say that that there's some -- there's some events which will result in involuntary expatriation.

Mr. Edward J. Ennis: No, I -- well -- we're standing on a very narrow ground, Your Honor, of whether conduct which in common experience is considered voluntary, whether the particular individual who was acting voluntarily and becoming as I said that I don't want this to have the result which the law says it shall have.

Now, I say that that's voluntary conduct and all that the Congress is doing and all that it can do constitutionally is recognized this effect --

Justice Potter Stewart: What about the voting?

What about voting, if --

Mr. Edward J. Ennis: That's what I -- that's what I want to come to.

Justice Potter Stewart: If Congress says voting shall result expatriation and the persons who knows that, he goes and votes.

Is that voluntary?

Mr. Edward J. Ennis: But the trouble with that is, Your Honor, is that voting as a factual matter does not indicate a maybe voluntary conduct but it's not voluntary conduct that indicates a lack of allegiance to the United States or the adherence to a foreign state.

Now, let me very briefly just state one page of history on this matter.

This came into the law in 1940.

Our courts, from the founding of the Republic until 1868, in many opinions of this Court and other courts, had considered the whole problem of expatriation and indeed a very strong opinion was held that the common law applied and that allegiance was permanent and there could be no expatriation.

This was debated in the courts.

There were cases on voting for example.

There were three cases, a federal case, a main case, and Iowa case in which the individuals had voted in Canadian elections.

The courts unanimously held that voting was not an indication of loss of United States allegiance.

These cases are quoted in Borchard's Diplomatic Protection Abroad and cited in our brief.

Justice John M. Harlan: Suppose you didn't have the Fourteenth Amendment, would your argument be the same?

Mr. Edward J. Ennis: Would my argument be the same without the Fourteenth Amendment?

Yes, I would -- my argument --

Justice John M. Harlan: Where did you derive this connotation as congressional power and that's it?

Mr. Edward J. Ennis: I would derive it upon the nature of the relation to count -- the relationship between the Government and its citizens under our Constitution.

I would say that the one thing that Congress in achieving its statutory objectives that one sanction that is not available to it unless the Constitution gave to it expressly was the termination of citizenship, the termination of the relation between the state and one of its -- one of its members.

Justice John M. Harlan: We have to overrule the decision of this Court in Perez to the statutes.

Mr. Edward J. Ennis: Are you -- is Your Honor referring to Mackenzie in --

Justice John M. Harlan: Among others, yes.

Mr. Edward J. Ennis: Well, Your Honor, the opinions of the Court have discussed Mackenzie as a suspension of citizenship during coverture because of the special relationship of the wife as part of the husband.

I think that deals with that case so far as Savorgnan case is concerned that this is the case that really I was discussing with Mr. Justice White where a woman becomes naturalized in the foreign state.

And although she signed the papers and becomes naturalized and abjures allegiance to the United States, she said “I did it because my husband, the United States -- the Italian consul in St. Louis asked me to do it.

I really don't want to lose my citizenship.”

I am content to take the position that conduct, which is considered normally as voluntary conduct that merely by -- say so, the individual may not say that it doesn't have the result that law said it does.

Justice Tom C. Clark: Mr. Ennis, what was the evil that Congress was trying to prevent?

Mr. Edward J. Ennis: Well, if Your Honor pleases, an examination of this history indicates that there was no evil that Congress was trying to prevent.

Let me try or range you directly, Mr. Justice Clark this way.

And on the second factual proposition that our foreign relations might be affected, the truth of the matter is, that voting in foreign elections, there's not the slightest indication that voting in a foreign election had in a -- legally, at the invitation of the foreign government in effect, has any effect on our foreign relations.

Let's examine --

Justice Tom C. Clark: That was the basis, wasn't it?

The main --

Mr. Edward J. Ennis: This was -- this was recited Your Honor, in one short statement which I will refer to.

Justice Tom C. Clark: And it appears to me it is true, it real permits, non-residents, non-foreigners to vote.

Mr. Edward J. Ennis: The voting at that time, Your Honor, was based entirely on residence.

There was no Israeli nationality.

Justice Tom C. Clark: You did not have to be a nation --

Mr. Edward J. Ennis: You did not have to be -- no, you did not have to be foreign national.

Justice Tom C. Clark: It couldn't have any effect on the foreign relations with Israel.

Mr. Edward J. Ennis: Yes, but let me tell -- let me suggest two other instances Your Honor, which perhaps point out your question.

This 1940 law is on the books for only one reason.

The Chairman of the Immigration of the Judiciary Committee, Immigration Subcommittee, Mr. Dickstein of New York, was exercised by the fact that German aliens, resident aliens and naturalized Germans went back to the czar in 1935 and voted that the czar should be German rather than French.

This didn't bother the French government.

It didn't bother the German government, it didn't bother the State Department but it certainly bothered Mr. Dickstein and he proposed to the President of the United States that he set up a commission to examine the nationality laws and to codify it.

In the course of that codification, a new section which we're dealing with crept into the codification which the -- which was transmitted to the president for the very modest letter by the Secretary of State and the Attorney General to the effect that these are only suggestions for the consideration of Congress.

One of these suggestions was voting in a political election in a foreign state or participating in an election of plebiscite to determine the sovereignty of a foreign territory.

The entire support for that proposal is in two short paragraphs.

In the rest of this report, the other proposals are supported by judicial decisions, by diplomatic decisions, the correspondence between the Secretary of State and foreign governments.

This course which we're dealing with has two sentences in it.

Along the line, Your Honor, suggested without any factual support whatever and here's what they are.

This section is clear, applicable on any case on American votes in a political election in a foreign state whether or not he's a national thereof.

Taking an active part in the political affairs of a foreign state by voting in a political election therein is believed to involve a political attachment and practical allegiance thereto, which is in consistent with continued allegiance to the United States whether or not the person in question has acquired the nationality of the foreign state.

There was not one iota of factual support for the statement prepared by the State Department, I think by the Assistant Solicitor, Mr. Flournoy, who was the State Department expert for many years on nationality questions.

At the suggestion of the -- Mr. Dickstein, the Chairman of the House Immigration Committee, there is -- not only no support for that statement but the factual evidence in the diplomatic history of the United States was at that time that voting in a foreign election was not an indication of throwing offered or any diminution of allegiance to the United States for taking on allegiance to a foreign state.

As I've indicated to the Court, the judicial decisions which are the contrary, the diplomatic correspondence which discussed that great length how you could lose United States nationality was limited entirely to naturalization abroad, and residing abroad as part of that naturalization, or adjuring allegiance to the United States.

There was no support whatever for that statement.

Justice Tom C. Clark: Does Mexico require their voters to be nationals of Mexico?

Mr. Edward J. Ennis: When Mr. Perez was born in El Paso, voted in a Mexican election for president, I do not know, Your Honor, whether the Mexican law required him to be a --

Justice Tom C. Clark: I thought perhaps you might distinguish the fact that --

Mr. Edward J. Ennis: Yes.

Justice Tom C. Clark: -- if Perez represented, he was a Mexican which he did at that time --

Mr. Edward J. Ennis: Yes.

Justice Tom C. Clark: -- while your petitioner in his application or in his brochure that if he files that he was a citizen of the United States, you might distinguish between them rather than saying that you were obliged to overrule Perez.

Mr. Edward J. Ennis: Well, let me give you one, a bit of factual information.

The first page of the record contains Mr. Afroyim's identification booklet which he had a hand in when he voted.

That lists him as a citizen of the United States.

I mean there wasn't any question that he was a citizen of the United States and only of the United States and that he disclosed this and voted as a citizen.

Now, if Your Honor's suggestion is that this case might be distinguished on this basis from the matter of a person who was a citizen of the foreign state, all I can say that the statute as drawn will not support such a distinction and indeed, my last argument and the one that appeal to Mr. Justice Whittaker in the -- in the Perez case, was that in any event the statute that's drawn was too broad because it covered a person, an American citizen who voted in the foreign election whether or not the circumstances indicated any diminution of U.S. allegiance or any taking on of a foreign allegiance.

Justice Tom C. Clark: Well, my, my -- I'm suggesting that --

Mr. Edward J. Ennis: Of course, I understand that.

Justice Tom C. Clark: -- and perhaps said that I would vote that but it appears to me that it has to be voluntary as indicated in Perez by -- if one who said “I'm a citizen of the United States and I would like to vote in your election and they said okay, I -- certainly it would not be a voluntary relinquishment of his citizenship to the United States insofar as your expression is concerned while in Perez, while he is repetitiously or rather he represented the Mexican government he wasn't (Voice Overlap) but it seems to be a volun -- more volunteer there would be in the other case.

Mr. Edward J. Ennis: Well except, Your Honor, might -- perceive, of course, the distinction Your Honor's suggesting that I do not stand on it.

This law has been held to take away the United States citizenship even if you vote in a municipal election as to whether it should be local option that forbear control or not.

This law has been -- by the people administering it by the lower trib -- administrative tribunals, they say any voting in a foreign political election or in a plebiscite takes away your United States citizenship and I do not think that Your Honor's distinction will support the constitutionality of this statute because I do not believe that a dual citizen, the voting in a foreign election and exercising his rights under his second citizenship indicates any desire to terminate his United States citizenship.

I do not think that factual supports there.

At any rate, it is curious that the instance which brought this law into being in this all instance, as I say without any diplomatic or factual or judicial support was this voting in the czar which disturbed me that our Government nor the other two governments involved, the German or the French government.

But it's suggested in this one paragraph, which is all that this Court relied on in Perez.

In any event, it is not believed that an American national should be permitted to participate in the politics, in the political affairs of a foreign state and at the same time retain his American nationality.

The two facts would seem to be inconsistent with each other.

I suggest to Your Honors that in view of the complete lack of any authority for that statement, it is purposely extremely tentative in its own terms.

It's a suggestion and curiously enough, Congress took this tentative suggestion and passed it without any debate at all and put this into the Nationality Act, which was generally a codification of the former laws and edit this provision without any debate on it.

Justice John M. Harlan: Suppose that there'd been a full congressional evidentiary record made that voting in foreign elections had indication embarrassing to the foreign relation to the United States and Congress had asked -- had acted on that kind of a record.

What would be your position?

Mr. Edward J. Ennis: Well, my position would not change for the reason that I do not believe that this extremely limited power of Congress to regulate voluntary expatriation permits Congress to achieve a purpose of the exercise of it power's namely the promotion of good foreign relations.

It doesn't put in Congress' hands the weapons of expatriation.

Justice John M. Harlan: Well, if you can establish that proposition, you don't have to argue anything else.

Mr. Edward J. Ennis: I understand that, Your Honor, but that is a -- that is perhaps a more difficult proposition than the -- than what the factual proposition is, that foreign relations are not exacerbated by voting in a foreign election which is usually at the invitation of the foreign government.

And if Your Honor will read again the majority in Perez, Mr. Justice Frankfurter, for the Court, has one citation and for the proposition that the foreign relations of the United States might be affected by voting.

He cites one article in the American Journal of International Law, Mr. Bruce's article which deals entirely with the question of private persons by propaganda in our soil or in the soil of one nation attacking a foreign government and Mr. Bruce concludes his article by saying, this is the kind of private conduct which cannot be controlled in our country.

This is only citations of the Court for the proposition that Congress might reasonably think that voting in a foreign election injured our foreign relations and was a sufficient basis for what Mr. Justice Brennan has called the “drastic and truly terrible remedy of expatriation”.

Justice Abe Fortas: Mr. Ennis, how often does this problem arise as practical matter?

Mr. Edward J. Ennis: Well, Your Honor, we have put in our supplemental brief to our petition for certiorari the number of persons who have lost their citizenship by voting in foreign elections in just the last few years and it runs to a couple of thousand questions, Your Honor.

Justice Abe Fortas: Where do they vote?

Where do these persons voting?

Mr. Edward J. Ennis: Unfortunately, I don't have the -- Ms. Dembitz has put them in this memorandum and she obtained these facts from the State Department and the fact --

Justice Abe Fortas: They don't take it -- don't take your time --

Mr. Edward J. Ennis: Yes but we -- we don't -- I don't find here, Your Honor, the particular elections that were involved or the particular statement involved.

Now, --

Justice Hugo L. Black: Suppose that it had been established as suggested beyond the shadow of a doubt that voting would in a foreign country into some extent effect the foreign relations of this county, would that answer to your argument under the Fourteenth Amendment?

Mr. Edward J. Ennis: No.

Justice Hugo L. Black: To the effect that citizenship is then granted and can only be lost by giving it up?

Mr. Edward J. Ennis: No, Your Honor, it would not.

I have wanted to refer, Your Honor, to this factual basis because frankly, it was the only thing in reading the opinions of the court and in reading all of the briefs, it was the only thing that I had -- that I thought I found that have not been completely explored in the opinions of the Court that namely, that this proposition that voting in the foreign election did indicate some diminution of allegiance or taking on a foreign list was just erroneous and also other factual proposition that our foreign relations are affected.

Now, let me give you other example and I will sit down.

In addition to this --

Justice Hugo L. Black: May I suggest this?

I'm wondering.

Mr. Edward J. Ennis: Yes.

Justice Hugo L. Black: Your interest in that voting as to what effect it would have as I understand it under your Fourteenth Amendment argument is that it is not sufficient to show a voluntary enunciation of citizenship by an American citizen to show that he voted in a foreign election.

Mr. Edward J. Ennis: Of course not, Your Honor.

It doesn't establish any such thing.

Justice Hugo L. Black: And your argument under the Fourteenth Amendment as I understand it is based on the fact that it must be a voluntary renunciation of citizenship and while there could be conduct -- could be conduct such as the shaking of the head or something that would in itself show a renunciation, that does not.

Mr. Edward J. Ennis: That's correct, Your Honor.

Justice Hugo L. Black: That under the Fourteenth Amendment, there must be a plain or a valid renunciation of citizenship --

Mr. Edward J. Ennis: That's right.

Justice Hugo L. Black: -- in order for a citizen that's been stripped of it.

Mr. Edward J. Ennis: That's correct.

Now, I sit down with calling your --

Justice John M. Harlan: Will you regard the Fourteenth Amendment as imposing enunciation of congressional power of your own statement.

Mr. Edward J. Ennis: Of course, Your Honor.

I'll sit down by calling Your Honor's attention to one other factual matter.

Congress has recognized that voting in a foreign election in effect does not diminish your relation -- your allegiance to the United States by providing -- by having to amend the Act; to provide that every American citizen who voted in Italy between 1946 and 1948 should be given their citizenship back because it was recognized that often voting of foreign relation, contrary to being against the United States citizenship may be done at the instance of officials of the United States, asking for support of a foreign government by American citizens residing in that territory who are eligible to vote.

So that the American citizens, thousands of them, who voted the Italian elections after the war from 1946 to 1948 had been given back their citizenship by Congress, recognizing, I submit, in effect that such voting is not a voluntary giving off up your citizenship.

If I have -- I think my time has expired.

Chief Justice Earl Warren: Mr. Gordon?

Argument of Charles Gordon

Mr. Charles Gordon: May it please the Court.

This is a suit seeking a declaratory judgment of citizenship.

Petitioner is a naturalized citizen who voted in a political election in Israel.

He disputes the findings of the lower courts that he thereby lost his citizenship.

The facts to some extent were recited by petitioner's counsel but there are a few more that I'd like to call to the Court's attention.

Justice Abe Fortas: Is there -- Mr. Gordon, I beg your pardon.

Is there a finding that he intended to relinquish his citizenship?

Mr. Charles Gordon: No, there's a finding that it was voluntary.

He --

Justice Abe Fortas: But his voting was voluntary?

Mr. Charles Gordon: His voting was voluntary.

He says that he did not thereby intend to give up citizenship.

The Government does not -- did not in the stipulation agree to that.

Justice Abe Fortas: Did the Government contest it?

Mr. Charles Gordon: They did not contest it.

They -- the Government says it's immaterial.

Justice Abe Fortas: And that's really the issue that we have.

In other words, the Government says that it's immaterial whether he intended to or not and he says that it is material.

Mr. Charles Gordon: Why, I believe that's one of the issues.

There are several others that were posed where Congress can impose citizen -- loss of citizenship against his will where the Congress was acting reasonably in making such a determination so forth.

Now, to some extent, the facts are reflected as has been indicated in the stipulation of the parties.

The stipulation is set forth at pages 11 to 12 of the record.

In addition, the certified passport file of the Department of State was incorporated by reference in the motion for summary judgment and was considered by the District Court and by the Court of Appeals.

The passport filed is lodged with the clerk of this Court.

Petitioner was born in Poland about 1893.

He came to the United States in 1912 at the age of 19.

He was naturalized as a citizen of the United States in 1926 when he was 33 years old.

In 1949, he left the United States with an American passport.

He then went to Israel in 1950 and remained there for 14 years.

Now, by his stipulation, petitioner concedes that he voluntary voted in the election in 1951 in Israel for the second Knesset or parliament.

It appears also from his Israeli identification booklet, which Your Honors will find at pages 1 to 2 of the record that he voted additionally in two other elections 1959 and -- 1955 and 1959 for the third and fourth Knesset.

Now, it also appears that following --

Justice Potter Stewart: This case, however, was not decided at all upon his voting in those two later elections, was it?

Mr. Charles Gordon: I'm not sure.

This was the stipulation --

Justice Potter Stewart: Well, they're decided, I thought on a stipulation of fact.

Mr. Charles Gordon: No.

The other -- the State Department record and this booklet, which is at pages 1 and 2 were before the District Court and the Court of Appeals and they did refer to the facts which appear in the State Department record.

So the courts were considering that too.

And I don't think this Court is limited to determining only on the 1951 election.

He voted in three national elections.

Justice Potter Stewart: Do I understand in the first to those elections, under the laws of Israel, it was not neces -- it was necessary only to be a resident because indeed there was no such --

Mr. Charles Gordon: That is true.

Justice Byron R. White: -- thing as Israel nationality.

Mr. Charles Gordon: That is true.

Justice Byron R. White: And that -- but in the second two elections in which it shown that he voted, there was Israel nation -- such a thing as Israel nationality.

Mr. Charles Gordon: And only Israeli -- Israeli nation --

Justice Byron R. White: That only Israelis could --

Mr. Charles Gordon: Could vote.

Justice Byron R. White: -- could vote, is that correct?

Mr. Charles Gordon: And he did vote.

Justice Byron R. White: Well now, it's an -- may be important to know on -- what basis this case was decided.

I'd understood that it's decided on the stipulation of facts which indicates that which is -- which includes only the first of those three votes.

Mr. Charles Gordon: Your Honor, the passport file of the Department of State was incorporated by reference in the motion for summary judgment and was considered in the opinion of the District Court and the opinion of the Court of Appeals.

I think that was equally before the Court and it is lodged in the files of the clerk of this Court.

I don't think the court below -- I think they found that on the basis of that voting alone, they lost but they had build the facts and I think this Court will consider.

Justice Abe Fortas: But what -- what do you mean there was a reference to those things in the opinion of the court below?

Mr. Charles Gordon: Well, they referred to that --

Justice Abe Fortas: I mean, really -- really there ought to be -- ought to be lot of ambiguity about what is and what's not part of the record should be --

Mr. Charles Gordon: I -- I agree with what --

Justice Abe Fortas: -- one of the government case.

Mr. Charles Gordon: Mr. Justice Fortas, this record is a little ambiguous.

Justice Abe Fortas: Well, that's too bad.

Mr. Charles Gordon: I agree with Your --

Justice Hugo L. Black: But the stipulation is not Mr. Gordon, is it?

Mr. Charles Gordon: I'm sorry, sir.

Justice Hugo L. Black: I think stipulation is not ambiguous and that it says that he voted in '51 in the elections in the second Knesset.

Mr. Charles Gordon: That is true.

He conceded that.

Justice Hugo L. Black: Standing about the other.

Mr. Charles Gordon: No, but they in the record and if Your Honor will look at pages 1 and 2, you'll see that the record shows that he voted in two other elections, 1955 and 1959.

Justice Hugo L. Black: They're not involved in here.

We don't have the complaint here.

Mr. Charles Gordon: The complaint is not in the record.

Justice Hugo L. Black: Does the complaint mention he other elections?

Mr. Charles Gordon: No, I don't know if it does or not.

He hasn't been very talkative about these other elections.

He restricts himself to the first election but he does not deny and it appears in the record that he did vote in the 1955 and 1959 election.

Justice Abe Fortas: What do you mean he had been very talkative?

Mr. Charles Gordon: Well, I guess he has been so talkative in some State Department but in this proceeding, he has restricted --

Justice Abe Fortas: Was he -- was -- is there any oral testimony in this record?

Mr. Charles Gordon: Yes, sir.

There is testimony before the State Department Board of Review, very full testimony.

Justice Abe Fortas: Was that part of the record of the record before us?

Mr. Charles Gordon: It is a part of the record that was before the District Court and the Court of Appeals and is lodged in the office of the clerk, yes.

Justice Abe Fortas: So this is not a case it's here on the stipulated facts?

Mr. Charles Gordon: Not in my view, sir.

Justice Abe Fortas: No, I'd like to here your brother Ennis as toward his understanding as in the record because I think it's kind of important --

Mr. Charles Gordon: I agreed for, Your Honor.

I think it's unfortunate that the record isn't filled up but these materials were before the District Court.

They were part of the record considered by the District Court and by the Court of Appeals.

Both courts have that record.

Justice Tom C. Clark: Where is the testimony?

Mr. Charles Gordon: I'm sorry, sir.

Justice Tom C. Clark: Where is the testimony?

Mr. Charles Gordon: In the transcript of State Department file which is certified by the District Court and is lodged with the clerk of this Court.

Justice Byron R. White: Well, what do you -- did you draw the thing -- a large distinction between the two situations?

Mr. Charles Gordon: I don't draw such a distinction but I want to cover both that in the event as Mr. Justice Clark has suggested that a distinction might exist in the minds of the Court.

I think it covers both situations where he was not a citizen and voted and where he was a citizen who voted.

Justice Byron R. White: Well, you say in the last two elections in which he voted, it is necessary to be a national of Israel on both the elections.

Mr. Charles Gordon: That is true, sir.

Justice Byron R. White: How did he evidence that he was national of Israel?

Mr. Charles Gordon: Well, I'll be glad to describe that to Your Honor.

Under the law of Israel, known as the “Law of Return”, all Jewish persons were welcome to Israel; they could become settlers.

That law was passed in 1950.

He went to Israel a month after that law became effective.

In 1952, Israel passed its nationality law, saying that all Jews who had settled in Israel under the Law of Return were automatically Israeli's citizens but they have a right to elect not to accept Israeli citizenship by filing a written election.

We have passport which was submitted by the petitioner which shows that Israel regarded him as an Israeli national, issued passport to him and therefore, he did not file such an election.

Justice Abe Fortas: Well, is that in the record?

Mr. Charles Gordon: Not in the record.

Justice Byron R. White: And why is it --

Mr. Charles Gordon: Unfortunately, this --

Justice Byron R. White: Why isn't it in the record?

Mr. Charles Gordon: Because --

Justice Byron R. White: Because you wanted -- you wanted to get the issue up here on the -- on that they're voting issue in this or what?

Mr. Charles Gordon: Well, Your Honor, as I was not in the case at the District Court.

As the parties then conceived the issue, it was a simple issue of the constitutionality of the statute based on a single act to voting.

But I think that in adjudging this --

Justice Byron R. White: But why shouldn't we take the case like that instead of this other evidence which apparently you didn't -- the Government could have put in the evidence if they wanted to.

Mr. Charles Gordon: Mr. Justice White, I believe that in issue of this importance is very desirable to get the record as full as possible and I think that if the record were as full as it can be, it would indicate that petitioner has demonstrated his diminution of allegiance to the United States has indicated that he regard himself as a citizen of Israel.

Indeed, he did not apply for an American passport for ten years and did apply for an Israel passport and obtained it.

Justice Byron R. White: Well, we could, on that evidence so that the Court can hold on this current statute unconstitutional and still -- and still say that he'd lost his citizenship on another ground.

Mr. Charles Gordon: Well, the only ground that is involved here is voting in the election of Israel.

Justice Byron R. White: I know.

I mean, that's -- that -- that -- that but this other evidence in the record, you might sustain lost citizenship even though you did it on the basis of voting.

Mr. Charles Gordon: Well, I -- I --

Justice Byron R. White: You might do it on the basis of becoming -- becoming a citizen of another country.

Mr. Charles Gordon: By being naturalized and by some voluntarily action as part.

That's conceivable, I believe.

But at least, insofar as voting is concerned, the decisions of this Court have indicated that in order to sustain the statute, there must be some indication of the diminished allegiance and my view is that the act of the voting in itself, indicates such a diminution.

But if it becomes important in the context of this case, I think the facts here if fully developed would demonstrate that the allegiance of the petitioner here is primarily to Israel or was at that time to --

Justice John M. Harlan: Would it be in evidence by a Fourteenth Amendment case?

Mr. Charles Gordon: I believe that would if that is considered important.

In our view of the case, we believe the statute on its face is -- is valid and we would support the statute on that basis.

Justice John M. Harlan: Who tried these cases?

Mr. Charles Gordon: It wasn't tried.

It was taken by the Court on stipulation; United States attorney in New York.

Justice John M. Harlan: United States attorney represented your case?

Mr. Charles Gordon: That is right.

Justice John M. Harlan: (Inaudible)

Mr. Charles Gordon: Well, there is an officer there who represents the Immigration Service in the United States Attorney's Office.

Chief Justice Earl Warren: So when the case was tried on stipulation of facts and decided on a motion for summary judgment, can the Court enlarge the allegations in the complaint and decided on an issue further than that is in the complaint?

Mr. Charles Gordon: But, Your Honor, the -- there's a misconception that the case was tried only on the stipulation of facts because with the motion for summary judgment, the Government incorporated by reference the passport file of the Department of State and it was considered by the District Court and the Court of Appeals.

Your Honor will notice the opinions of the District Court and the Court of Appeals contain facts which nowhere appear in the stipulation.

I myself wondered where they got those facts until I found out that the passport file of Department of State was before the Court.

Justice Tom C. Clark: Unless, the petitioner admit that he voted in the other elections.

Mr. Charles Gordon: No, there's no such admission.

Justice Tom C. Clark: I couldn't --

Mr. Charles Gordon: The only --

Justice Tom C. Clark: -- get that, then before us of that stipulation only covers one election?

Mr. Charles Gordon: But the record includes --

Justice Tom C. Clark: But he didn't have a chance to testify --

Mr. Charles Gordon: No, no.

But it cannot be ignored that this is an official Israeli identification booklet issued to the petitioner.

There's no doubt this he submitted.

And in it, it contains indications, notations by the Government that he voted in the other two elections.

Justice Tom C. Clark: In fact, to me though when you say that the case was submitted on stipulation and the stipulation only includes one election while he would be bound by that stipulation.

Mr. Charles Gordon: Well, Your Honor, I don't agree that the case was submitted on stipulation.

Justice Tom C. Clark: Well, I misunderstood u?

Mr. Charles Gordon: No, I -- I don't contend that.

My view is that the case was submitted on a stipulation and on the certified record of the Department of State, which was incorporated in the Government's motion for summary judgment.

Justice Abe Fortas: Well, I show where -- is there anything in the stipulation where can we look at?

Mr. Charles Gordon: The Department of State passport file, which is in the office of clerk of the court.

Justice Abe Fortas: I know it's in the office of the clerk but I say, what is there in the papers that had been submitted to us has any reference to it in your brief?

Mr. Charles Gordon: Not at all.

No reference to it in the brief.

Justice John M. Harlan: What's your view of that in your submission which practically would support it?

Mr. Charles Gordon: Well, my own view, Your Honor, is that this additional material is not relevant.

My own view is that the statute is constitutional in a reasonable determination by Congress that there is potential danger to the foreign relations of the United States if the person -- United States citizen votes in the political election of foreign country and if he thereby indicates his diminished allegiance to the United States.

Justice John M. Harlan: (Inaudible)

Mr. Charles Gordon: I'm well aware, Your Honor.

Justice John M. Harlan: And therefore, I would suppose that you would be trying to defend the states as well on some kind of the basis of case that you'd make it appropriate to this Court and not to have to base the case at least the decision to this Court or do that much substantive if they're not -- if they can be avoided in overruling in some other perhaps (Inaudible).

Mr. Charles Gordon: I've been well aware to that situation, Your Honor, that's why I stressed these additional facts which I think --

Justice John M. Harlan: By substantive means if you now say, you won't have to worry about what the additional record is saying, doesn't it?

Mr. Charles Gordon: I didn't quite say that, Your Honor.

I said that in my view, I don't need the additional record but I'm aware that in the view of some of the justices, these facts may be important.

My view is that the Perez case is still the law that this Court is not modifying, that it is sound and that on the basis of the Perez case, the mere fact that there was voting in a foreign political election, voluntary voting is enough to cause expatriation.

Justice Potter Stewart: Do I understand -- did I understand you correctly to say that the true facts of this case, not perhaps the facts of record but facts about this petitioner or that he has voluntarily now become a citizen of Israel and has an Israeli passport?

Mr. Charles Gordon: Yes, two Israeli passports and he -- the voluntary becoming a citizen of Israel was a sort of a nega -- negative --

Justice Potter Stewart: By declining to say he didn't want to be --

Mr. Charles Gordon: That's right.

Yes, he didn't file any specific declaration saying, “I want to become a citizen” but he didn't take advantage of the other opportunity for recollection.

I may say that in the State Department --

Justice Potter Stewart: And he has a passport of Israel now?

Mr. Charles Gordon: Yes, I have it here.

Justice Abe Fortas: And this is the first time these facts have been called of this Court's attention?

Mr. Charles Gordon: Oh!

Yes, Your Honor.

Justice Abe Fortas: What?

Mr. Charles Gordon: It is certainly so that this is not been called to the attention of the Court previously.

I discovered this in my researches.

Justice Abe Fortas: Well, as new member of this Court and I wasn't here at the time of Perez.

I had ordered considerable time to your papers.

Now, what you're telling me that there are facts and circumstances here that you contend a part of the record before us and which had not been called our attention?

Mr. Charles Gordon: Well, Your Honor, this was --

Justice Abe Fortas: Fortunately, you see I didn't have the benefit of your oral document before today.

That usually happens.

That we hear oral argument only when it's made to us so I didn't -- these facts were not called tp our attention.

Mr. Charles Gordon: Your Honor, I offer my apologies.

I think this is certainly a fault on our part.

These facts were discovered by me in my research in preparing for the case.

I deemed them to be quite important as the members of the Court do in the disposition of this case and I thought it was my duty to bring to the attention of the Court.

I think it would be unfortunate if this case were decided without a full apprehension of the facts in this case.

Justice John M. Harlan: You have a brief on these facts?

Mr. Charles Gordon: No, these facts are not briefed.

These -- the --

Justice John M. Harlan: Do I understand that --

Mr. Charles Gordon: Well, Your Honor, the -- part of them are on my brief.

Justice John M. Harlan: But you just said that's not in your brief.

Mr. Charles Gordon: Your Honor, part of them are referred to the brief.

The fact that there was voting in the two additional elections is referred to at least twice in the brief.

Justice John M. Harlan: The materials themselves do rely on your print of it --

Mr. Charles Gordon: Except for these passports.

These passports weren't submitted by petitioner to the Immigration and Naturalization Service and they are in the Immigration record.

They were never before the Court.

I mentioned them only because petitioner is seeking a declaratory judgment that he is a citizen and if these documents, which bear I think on his citizenship status are not brought before the Court.

The Court may enter a judgment declaring him to be a citizen when he actually is not.

I'm sorry the argument went off on this pageant but it seems to me that it was our duty to bring these facts to the attention of the Court.

Well, I -- I go back to the argument.

I want to emphasize the possibility that in this case and unfortunately some of these facts are not fully developed in the record.

All of them are in the record except for this passport.

The indications that petitioner intended to become a citizen of Israel.

I repeat, in 1950, he went to Israel.

He lived there for 14 years.

He did not apply for a renewal of his American passport which expired in 1950.

He did not expired -- applied for renewal for 10 years.

He did not register with the American embassy or consulate.

He did obtain this Israeli identification booklet in 1951.

In 1952, after the new nationality law became effective, he did obtain an Israeli passport.

He voted in three national elections.

It seems to me that under those circumstances, of course, he didn't asked to retain his American citizenship when the new Israeli nationality law went into effect.

It seems to me that under those circumstances, petitioner has indicated that his primary allegiance is to Israel and not to the United States.

Now, I want to --

Chief Justice Earl Warren: As to this record that you say should now be before us but hasn't --

Mr. Charles Gordon: Well, some -- most of it is before the Court, in my view.

Chief Justice Earl Warren: Well, as to this record of the State Department, was that a part of the stipulation?

Mr. Charles Gordon: No, it was a part of the motion for summary judgment incorporated by reference in the motion.

Chief Justice Earl Warren: Is there any objection by the petitioner?

Mr. Charles Gordon: No.

Chief Justice Earl Warren: To the record going in?

Mr. Charles Gordon: No, not as far as I'm aware.

Justice Byron R. White: Well, what veracity in the motion -- for the motion for summary judgment do you suppose just an incorporation by reference gives these facts?

Chief Justice Earl Warren: Well, the entire file was before the Court.

Justice Byron R. White: I don't care whether it was before the Court or not but what is this -- what is this motion for summary judgment based on?

Based on some uncontroverted facts, I suppose.

Chief Justice Earl Warren: Well --

Justice Byron R. White: I suppose everything -- every single word in that file, you expect the other side will accept without controversy?

Chief Justice Earl Warren: Well, there are parts of the file that may not relevant to this determination.

Justice Byron R. White: I don't care about the relevancy.

How about the truth?

You say that every fact in that file has been accepted by the court below?

Mr. Charles Gordon: No, I -- I wouldn't say that.

Justice Byron R. White: Well, which one?

Mr. Charles Gordon: I think that the facts --

Justice Byron R. White: The one that you want?

Mr. Charles Gordon: No, there are certain facts that relate to his status.

Justice Byron R. White: If the Government wanted to declare him with a summary judgment and attach some affidavits and give the other side the opportunity to controvert them that might have been one thing.

But here is a blanket of reference to a file.

It might have all sorts of things and even contradictory material.

Mr. Charles Gordon: Well, Mr. Justice White, this is not uncommon in immigration proceedings.

Justice Byron R. White: I don't care whether it's common or uncommon.

I just want to know about that -- about what facts you expect the Court to operate on when you -- all you do is make a broad reference to -- to some file.

Mr. Charles Gordon: Some of the facts are in the record, Your Honor.

This is the Israeli identi -- (Voice Overlap)

Justice Byron R. White: -- facts.

Mr. Charles Gordon: It's a booklet of his.

It's a -- an identification booklet relating to the petitioner.

Justice Byron R. White: Well, how do you really know that for example, he voted in the last -- in the last two elections?

Mr. Charles Gordon: Well, it is -- this is his booklet which he submitted to us.

Justice Abe Fortas: Was there any finding of fact by the District Court on this?

Mr. Charles Gordon: No, the only --

Justice Abe Fortas: You've gone way beyond any findings of fact by the District Court, haven't you?

What you're really telling us is that the District Court passed upon a hypothetical case and that what's before us now is really a hypothetical case.

That's what you're telling us.

Mr. Charles Gordon: No, Mr. Justice Fortas.

Justice Abe Fortas: Now, if you confine yourself to the findings of the District Court about two-thirds of what you've been telling us would have to be eliminated --

Mr. Charles Gordon: Mr. Justice Fortas --

Justice Abe Fortas: -- from the factual terms, isn't that right?

Mr. Charles Gordon: No.

No, I don't agree, Mr. Justice Fortas.

I believe the District Court passed on an actual case because it is conceded that petitioner voted in the election of 1951.

The District Court and the Court of Appeals found that that was enough.

And my view is, also that that is enough but some members of the Court may feel that the additional facts which I have suggested are relevant to the consideration of this case.

My view is, that on the stipulation itself is concession that he voted voluntarily in a political election in Israel that under the terms of statute and under the terms of Perez caused him to lose his citizenship.

Now if the Court agrees that this alone is sufficient, then the case is over.

There's no need to consider these additional facts.

If the Court --

Chief Justice Earl Warren: Mr. Gordon, if you're not satisfied to rest on the pleadings of this case and the facts that therein alleged but want to premise your case on something that happened years after that, why didn't you dismiss this case and start another proceeding that would have -- that have brought those into play?

Mr. Charles Gordon: Well, Your Honor, when these facts came to light in my research, this was the time I was preparing for argument.

They were not fully developed in the courts below.

The records were before the court.

The court referred to some of these facts.

Chief Justice Earl Warren: If you didn't come -- they didn't come into your purview until you're preparing for argument in this case, how can you say that they got the careful attention of the courts below?

Mr. Charles Gordon: The facts -- some of the facts were referred to in the opinions of the court.

They are not in the stipulation.

Some of these additional facts.

And I was mystified as I said, when I read the opinions of the courts of where they got these facts until I learned that the court had the benefit of the certified record of the State Department.

This booklet incidentally was not part of the stipulation.

The book, of which is on pages 1 and 2.

That was in the State Department record and was extracted from that record.

Were not adding anything to the facts which are considered by the court below.

The fact is, that these -- the certified record of the State Department should have been printed because it was considered by the court -- District Court and the Court of Appeals but those -- that record is in the office of the clerk of this Court and it was considered by the court below.

I'm not really dragging this in at the last minute.

They were considered.

They should have been briefed more fully.

Justice John M. Harlan: It wasn't a premise on the statement of about stating Perez in these facts.

Mr. Charles Gordon: That is exactly right.

Justice John M. Harlan: They didn't have to use that position, they shall be deliberately defined whether there is sufficient inquiry to include (Inaudible) or not?

Mr. Charles Gordon: That is right.

Justice John M. Harlan: That's the posture in which this case exactly, isn't it?

Mr. Charles Gordon: That is the posture in which the determination to affirm might be entered if there question of reversal and a determination that statute is unconstitutional, it seems to me that the additional facts may be relevant in the consideration of a majority that would vote that way.

Justice Abe Fortas: Well, I really -- I really don't want to be overly critical but what it sounds -- it sounds to me as if what you're telling us and you've got before us two records.

One record, if we are willing to affirm but quite another in a much more extensive record, if we are so misguided in your point of view is to reverse.

Now, that's kind of a novel concept as first concerned but may be I'm just not adequately informed as to procedure.

Mr. Charles Gordon: Well, Mr. Justice Fortas, I would say that differently.

In my view, the record in its present shape is sufficient and in my view, the record in its present shape requires an affirmance of the lower courts.

In my view, the statute as it was upheld in Perez contemplates that the mere fact of voting in a foreign political election, voluntary voting as is conceded here causes a citizen to lose his nationality.

They found correct in that, then there's nothing further in the case.

But I suggest these additional facts in the event the Court may determine their relevance.

Chief Justice Earl Warren: Are you satisfied to submit your case on the -- on the original complaint in the original stipulation?

Mr. Charles Gordon: Well, I -- I'm also satisfied to submit it on the motion for summary judgment.

I don't think we're going to exclude it.

Chief Justice Earl Warren: I know.

Does that raise the issue that you intended to bring here to this Court?

Mr. Charles Gordon: That definitely is the only issue that we thought we are bringing to this Court.

Chief Justice Earl Warren: Then you ought to be satisfied to rest on it, should you?

Mr. Charles Gordon: Well, if Your Honor feels that my duty to this Court permits me to exclude these facts, that's alright but I thought the Court would want to know these facts.

The only reason I brought them to your attention is that they may be significant in the determination of this issue.

And they were before the District Courts.

The courts did consider them and refer to them.

Justice Byron R. White: How do you know that fact?

Mr. Charles Gordon: Well --

Justice Byron R. White: We don't know courts considered it, all you know that it is part of the --

Mr. Charles Gordon: No, there -- there are some additional circumstances.

The Court mentioned some -- some of the background of this individual to which I've referred in the opinions, they were not in the stipulation.

Justice Byron R. White: But neither in the court below mentioned any voting except the voting in one year.

Mr. Charles Gordon: Because that -- that was the only issue they thought was significant.

That alone, they said, was sufficient to uphold the statute.

Justice Byron R. White: Well, I know but they have -- neither court -- certainly the District Court never found any fact with respect to these other two years.

Mr. Charles Gordon: That is perfectly right, Your Honor, but the District Court found that one fact alone.

I think the District Court indicated that it wasn't necessary to go any further; that this fact alone was sufficient to cause loss of citizenship.

Justice Byron R. White: I don't know how we're going to sit up here and say that even if we wanted to, how -- how we could say that what facts were.

We don't know whether they're facts or not.

Mr. Charles Gordon: Well, if those facts are deemed broad, in my view, they're not relevant.

In the view of the Government at that time they entered into stipulation, in the view of the District Court, in the view of the Court of Appeals, those additional facts are not relevant.

And in my view, if the Court agrees, then there's nothing further to the case.

Then the statute is constitutional and then petitioner lost his citizenship.

It seems to me that --

Chief Justice Earl Warren: A jumping a few hurdles so, isn't it?

Mr. Charles Gordon: Well, I think we can leave the other material aside if the Court agrees with me in that position.

If the Court finds that voting in a foreign political election under Section 401 (e) under the Perez case itself expatriate him then there's nothing further to consider.

Chief Justice Earl Warren: We don't need these facts then that you've been --

Mr. Charles Gordon: That is right.

Chief Justice Earl Warren: -- taking up all your time on?

Mr. Charles Gordon: Well, I'm trying to be a little predictive as to what might be relevant in the minds of some of the justices.

And, I'm trying to bring to the attention really the facts that were considered in the District Court.

Chief Justice Earl Warren: But are you trying to expound real issue here that petitioner's citizenship depends upon this one act of voting in that Israelian election?

Mr. Charles Gordon: Well --

Chief Justice Earl Warren: Are you trying to muddy the waters so that we can't decide it on that simple issue that was in the complaint only and that concerning which you have stipulation between the parties on which the case was to be tried?

Mr. Charles Gordon: Well, Your Honor, I'm not trying to muddy the waters.

I am trying to give the entire the record as it was considered by the District Court and only part of it appears in the stipulation.

This is only one part of it.

Chief Justice Earl Warren: But nobody knew about it until you finally discovered it in preparing for your argument.

Mr. Charles Gordon: No.

Your Honor, that is not so.

The District Court and the Court of Appeals knew about it.

It was before them.

No, this wasn't hidden from anybody.

The only regret I have is that they weren't printed in the record because they were before the court below.

This is not something I dreamed up.

It was considered fully in the court below.

Justice Abe Fortas: Mr. Gordon, isn't it a fact that when stipulation of fact is presented to a court and the Court rather amounts to a request to the Court to decide the case on the basis of these are the facts in stipulation.

If they were preliminary motions, a motion for summary judgment or motion to dismiss to which affidavit were attached or as you get here, you attach record.

And thereafter, a stipulation of fact is presented to the Court by the parties.

Isn't it customary for the court to decide the case on the basis of stipulation of facts without reference to the affidavits or whatever may be attached to the motion for summary judgment?

Is that the way we run law business?

Mr. Charles Gordon: Mr. Justice Fortas, I would say it would depend on the context and on the understanding of the Court.

Justice Abe Fortas: If the parties in the -- in the stipulation of fact, went to the Court also to consider the affidavits or a transcript that was involved in some of the preliminary motions, there would be a reference to that.

That would be incorporated in the stipulation of fact.

Mr. Charles Gordon: Well, I -- I agree that that's a possibility but the motion for summary judgment --

Justice Abe Fortas: And now you're here telling us -- you're here talking to us about this case in which those stipulation of facts and you're also using a phrase that was “before the Court”, some other documents that were involved in the preliminary motions.

Now, I submit to you that what lawyers do before trial courts and then appellate courts, case that's involved that's decided on the basis of stipulation of fact is to assume that the Court attended to the material included in the stipulation of fact.

And this is some other reference, some other provisions as something else is said here and you might have put there might be a nature in the file with the clerk.

But that doesn't mean that it was before the court in the sense of being a part of a factual record to which the Court devoted its attention in deciding the case.

Justice John M. Harlan: I thought what you are doing.

You are quite contented on the stipulation of this Court from the secret (Inaudible).

Mr. Charles Gordon: Mr. Justice Harlan, I fully agree.

I thought if I did not bring him --

Justice John M. Harlan: That's what I understand your position.

Mr. Charles Gordon: That is my position and my position is that knowing of these facts and knowing that they may be relevant in the minds of some of the justices, it was my obligation to bring them to the attention of the Court.

Chief Justice Earl Warren: Are you asking us to remand it?

Mr. Charles Gordon: No.

I'm standing on the statute.

I'm standing on the opinions of the courts below.

I don't believe, in my view of the statute that these facts are relevant.

In my view of the statute, the mere fact of voting is sufficient to cause expatriation.

Justice John M. Harlan: Perhaps, we have one common ground in that (Inaudible).

Mr. Charles Gordon: Well, I realized that there are some possibilities that it might not stand and I therefore feel that these facts may be significant in the minds of some of the justices.

Chief Justice Earl Warren: Very well.

Rebuttal of Edward J. Ennis

Mr. Edward J. Ennis: Mr. Chief Justice, I have no further argument but I've been a member of this Court for 30 years and I would not submit and request this Court to rule an Act of Congress unconstitutional and improper record.

What's been said here about passport is entirely out of order and in two minutes, I can make it perfectly clear to the Court that you have a proper record and a proper issue.

The --

Chief Justice Earl Warren: You may take five minutes then.

Mr. Edward J. Ennis: Your Honor, under the Nationality Act and the laws of nationality, there are some 15 grounds.

Now the way it's determined whether a person has lost it's nationality.

He goes through a passport.

He goes to the consul.

This printed form, Your Honor, Certificate of Laws and Nationality, he gives an affidavit.

It's made out.

Here's the certificate that he lost his nationality by voting in an election on July 30 of 1951 not that he used the passport there who was naturalized in some other country.

That's a precise issue.

And the Certificate of Nationality was issued.

Now, what is this business on the record?

When he got to the United States, now I learned from my friend here that he got here on Israeli passport.

Well, may be that's the only he could get here when in 1960, the United States consul said he'd lost his citizenship and that he -- and he came here to bring the suit to get it back.

Now, what happens?

When the consul issues this Certificate of Nationality, you have under the State Department regulations an appeal to the Passport Review Board.

This is a transcript of the record, 100 pages in which to Mr. Afroyim himself without counsel went before these three members of the board and there were president in addition to the three members: the chief of the foreign operations division and specialist on Israeli affairs.

Now, they talked to Mr. Afroyim for a 100 pages and they talked on one issue.

Did you lose your nationality when you voted in the one election in 1951?

Now, in the basis of the record and their affirmance of the consul's action, he brought an action in the District Court and his attorney, and he insist the United States attorney assisted by the attorney for the District Court as well the Immigration Service, do stipulation of the facts.

Now on page 11 it says that, “On November 14, 1960, the American consul in Haiti ruled he had lost his -- that he had expatriated himself on July 30 of 1951 by voting in a political election in a foreign state.

That's all that was in the case.

It was whether that vote lost his nationality.

Now, in addition to the stipulation, the Government brought in at the hearing before the district judge the administrative file offered in evidence.

It's limited to the 1950 -- to the -- 1951 issue.

We made no objection, his attorney at that time.

And this is part of the record and it's in this Court.

But still, the issue is only one simple thing.

Did you lose your citizenship by voting in 1951?

Now, my friend, Mr. Gordon called me and he said, “I found out that your client had a passport, an Israeli passport.”

I said, “Charles”, I said this, “I don't -- I didn't know that.”

I said, “This has got nothing to do with the case.”

The Nationality Act does not make having a foreign passport.

It was in -- by the way, it was in described to the '40 Act.

It was stricken out by Congress using a foreign passport.

I said, “Charles, it's not in the record.

The record is limited -- I'm perfectly happy.

I have the record included this 100 pages discussion about this 1951 loss of nationality.

I said, “These passports which you discovered from the Immigration file”, which the Solicitor General of the United States has not relied on in his brief and you want to bring this in, it can only have one purpose to prejudice this Court against this individual and I object.

And if you do it, I will tell the Court it's improper and I object”, which I'm telling the Court.

Now, I submit to Your Honor, that if this -- that this Court has a complete record here on which to rule whether Mr. Afroyim lost his nationality by his vote 1951.

If he did not lose it by his vote in 1951, the Department State of the United States is perfectly free to tell him that he lost it by having a passport, by voting in a 1952 election, by voting in a 1953 election or any other ground which they want to imply although its not expressed in the loss of nationality provisions.

This is a separate proceeding.

This isn't a matter at large to decide whether Mr. Afroyim lost his nationality by four or five of the 20 Acts set there.

It's to decide whether he lost it by voting in 1951.

And this record is 100 percent complete on that issue because it's a 100 pages of passport review testimony limited to that issue.

These passports are not in this case; they have no business in the case and they're -- here they merely confused issue and why.

Because the Government perhaps now feels that since as part of the passport record, as part of this appeal record, there was this identification document which everybody who resides in Israel gets and that has in it an indication that he voted in a municipal election and in other elections.

But the Department of State, knowing this, did not decide to wholly was expatriated for those elections.

This -- the Department of State decided and all we have here is the decision whether he lost his nationality by voting in the 1951 election, there's nothing else in the case and this record is entirely complete for this Court to decide whether Perez is a law of the United States.

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Schneider v. Rusk - Oral Argument

Wed, 16 Jan 2013 22:48:32 +0000

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Schneider v. Rusk

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368_19640402-argument

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368_19640402-argument

Transcript:

Argument of Milton V. Freeman

Chief Justice Earl Warren: Number 368, Angelika L. Schneider, Appellant, v. Dean Rusk, individually and as Secretary of State.

Mr. Freeman.

Mr. Milton V. Freeman: May it please the Court.

This case is here on appeal from a statutory Three-Judge Court, sustaining the validity of section of 321, 352 A1 of the Immigration and Nationality Act.

That Court granted a judgment on the pleadings, dismissing the complaint.

The issue is the deprivation of the appellant's citizenship under the McCarran Act, the 1952 Act mentioned.

It's a new statute, involving 1952 reaffirmation of a statute passed in 1940.

It is the sole substantive discrimination against naturalized citizens in the entire history of the United States.

It removes the appellant's citizenship because she is living abroad with her husband who is not an American citizen.

This is an act for which citizenship is not removed from native-born citizens.

We assert here that the statute is invalid for discrimination under the Fifth Amendment and on various other grounds.

The statute Section 352 A1 and A2 companion section are part of a statutory scheme, which have a conclusive and automatic termination of citizenship.

They provide, in a statute which applies not to native-born citizens but only to naturalized citizens, that a naturalized citizen who resides for three years in the country of origin or for five years in any other country, automatically loses citizenship.

This provision as stated before does not apply to native-born citizens.

There are a number of exemptions to mitigate the harshness of this rule.

Those exemptions provide that in certain circumstances, which Congress has provided as a matter of grace, a naturalized citizen may attain the same right to live, to work anywhere else in the world that he or she would have had if born in the United States.

That is, it takes the second class citizen and says if he had behaved himself well he will get the same rights as the born citizens.

Thus if he has fought in the armies of the United States during war time he then receives, as a special reward from Congress, the privilege to be treated as though he were a native-born citizen and the privilege to live abroad, it happens in this case that he may live abroad only in a country in which he was not originally a citizen and no matter how distinguished his service or how many awards, he may not live in the country from which he came, but the statute nevertheless awards by a series of exemptions for special good conduct or special circumstances warranting the mercy of Congress, an exemption from the statute and persons who are naturalized citizens living aboard may not be expatriated if they come within the special exemptions who are generally residents abroad for three years in the country of origin or five years in any other country, automatically cuts off by this statute the connection of that person with the United States and he or she is deprived of citizenship.

Justice John M. Harlan: Except for the exemption that you referred to, there is no way of getting a dispensation from the statute?

Mr. Milton V. Freeman: There is no way of getting a dispensation; the only way that it has been done in case of hardship is of course by special legislative bill in the particular case.

Chief Justice Earl Warren: Mr. Freeman where do we find those exemptions?

Are they in the --

Mr. Milton V. Freeman: They are in the law and they are printed in extenso in the appendix to our brief.

They are in section 353 and 354 of the statute and they appear at pages 76 and following pages in our principle brief.

Now, the facts of this case are enlightening as to the scope of the statute.

Angelika Shaffer, as she was then called, was born in Germany in the year 1934 in a small village in Bavaria.

In the year 1939 she came with her mother, her father, her two brothers, a half brother and a half sister, the entire family, to the United States where she was admitted for permanent residence with her whole family in the year 1939 when she was not quite five years of age.

In the year 1950 when she was 16 years of age, she was duly naturalized, derivatively through the naturalization of her mother.

She received a certificate of naturalization shortly thereafter and there is no question that she is a truly naturalized citizen, naturalized in 1950.

Between the time she came to the United States in 1939 and the time she was naturalized she went to public schools in the neighborhood of New York City, the high school and at the time of her naturalization in December 1954, in 1950 she was a freshman at Smith College in Northampton, Massachusetts.

She duly was graduated from Smith College in the year 1954.

Then a New York Institution, the New York Institute of International education offered her a scholarship to study in Bern, Switzerland at the University of Bern.

At the time all her relatives were not only residents of the United States, but American Citizens, the people with whom she came, her mother and father since being dead.

Mr. Kernic, co-counsel here is her uncle and a member of the New York Bar on the occasion of her leaving to study in Switzerland gave a farewell party for her.

To this farewell party Mr. Kernic invited a young man he had just met, a young German student who was in the United States on a Fullbright research scholarship.

He was studying at New York University, he was working with the New York Trademark firm of Langner, Parry, Card and Langner and Mr. Kernic thought he would be a nice fellow to invite.

It turned out to be a good judgment.

Angelika Shaffer met in Nutley, New Jersey her future husband.

At that time he was, just arrived in the United States intended to stay for a year, she was studying in Switzerland, they made tentative arrangements that they might meet after their various foreign tours.

(Inaudible) she went to Bern for two semesters and incidentally her only connection with Germany since the time that she had come here with her family in 1939 as a child of five was to get to Bern, Switzerland she had to go through Germany.

She did not stop.

After her two semesters at Bern she went to study at the Sorbonne.

From Bern, Switzerland going to the Sorbonne she went through Germany again and on this occasion she met Dr. Schneider who had returned from his Fullbright year in the United States.

She then frequently came to visit Mr. Schneider, to be with Mr. Schneider in Paris and while she was student at Sorbonne they became engaged.

Finishing her studies then she came back to the United States, took employment and lived in Nutley, New Jersey with her uncle until a marriage date was set.

In June 1956, she left the United States to be married, on July 4th 1956 in Cologne, Germany, and she has had her residence in Germany with her husband ever since.

She has, she had before the events which gave rise to the litigation, two children, one born in 1957 and the other in 1958.

In the year 1959, the government of United States through it's consulate in Düsseldorf stated that Mrs. Schneider was expatriated because she had resided for three years in Germany, interrupted only by a brief visit when she had her first child, she came back to the United States to show up her first born to her family, but outside of that she had resided and still resides continuously in Cologne, Germany where her husband is practicing law and is a member of a leading law firm in Cologne.

Justice John M. Harlan: How long after the expiration of the three year period did she get this notification?

Mr. Milton V. Freeman: She got it before the expiration.

What they did was they gave her a passport for a short period of time and then immediately advised her that she was not to be allowed to have the passport extended.

They kept the passport.

They crossed out her photograph and returned it to her as valid for her two children then aged two and one, who may travel as American citizens being American citizens as the children of an American citizen at the time they were born.

Justice John M. Harlan: Could she have obviated this by coming back to the New York for day?

Mr. Milton V. Freeman: She could not have obviated because the definition of residence which is set forth in the statute means the place of usual and continuous residence and does not mean absolutely continuous and uninterrupted residence.

That particular possibility was foreseen by the Congress and foreclosed.

The definition of residence appears on page four of our brief.

It's Section 101 of the McCarran Act and it says “The term residence means the place of general abode.

The place of general abode of a person means his principal actual dwelling in fact without regard to intent.”

Residence shall be considered continuous for the purposes of Section 350 and 352, and we are talking about 352 here of this title where there is a continuity of stay but not necessarily an uninterrupted physical presence in a foreign state or states outside the United States.

Justice John M. Harlan: She would have had to come back here permanently and resume her American residence.

Mr. Milton V. Freeman: Yes, in order to avoid the operation that she would have had to leave her husband or persuade her husband to give up his law practice in Cologne and come some place in the United States.

Now --

Justice John M. Harlan: Her children although they may never set foot in the United States and they live in Germany all their lives will always be American citizens?

Mr. Milton V. Freeman: No, under special rules, because they have dual nationality, father is a German citizen, the children derive German citizenship through their father, American citizenship through their mother and unless they spend five years between the ages I believe of 14 and 28 in the United States.

Justice Potter Stewart: Then they lose it yeah.

Mr. Milton V. Freeman: They lose their citizenship.

Justice William J. Brennan: But if they do between those ages then for life they retain their citizenship?

Mr. Milton V. Freeman: I believe so Your Honor.

Now when the passport was returned to her with her name stricken out and only her children left in, she was required to surrender the certificate of nationalization which was given to her in the year 1951 evidencing her naturalization.

In 1950, she surrendered it under protest, a letter from Mr. Kernic to the effect of the protest is in the record.

Thereafter she was served with a certificate of the loss of nationality of the United States issued by the state department, originally issued by the consulate in Düsseldorf and affirmed by the state department in Washington.

She brought these proceedings but in the meanwhile she had serious problems.

So long as she was an American citizen with an American passport residing in Germany with her German husband she had no problems with the German government.

Once her passport was lifted, she was then a stateless person.

The German authorities in Cologne stated that as a stateless person she had no right to remain in Germany and was required by German law to be expelled as a stateless person without any right to remain in Germany.

There were various discussions, representations were made and finally after much difficulty and trouble she obtained a piece of paper which allows her to remain in Cologne with her husband, a temporary residence permit as a stateless person in Cologne.

This piece of paper maybe extended from time-to-time and it has been extended to this date and it maybe extended.

Chief Justice Earl Warren: What would have been the consequence Mr. Freeman if it was not extended?

Mr. Milton V. Freeman: I would assume that she would be expelled from Germany, and she would have no place to go because the government of the United States would not allow her to come here as a citizen.

She might apply to return to the United States under some immigration quota if one were available, and she would be I don't know what quotas we have for stateless persons.

Now she has travelled and she has been able to travel as a stateless person, of course as a stateless person before she leaves Germany she came here with her husband in 1960 after these proceedings were begun, she came as a stateless person, when you travel as a stateless person -- before she left Germany she had to be sure that when she came back Germany would readmit her, get a stamp on the piece of paper which would be permission to go out and to come back.

She had to get permissions, special permission from the United States government which is not otherwise necessary if you come from great many other countries to come to the United States.

She intends to come here again in June which is the 10th reunion of her college class.

She has two subsequent children, children born after the beginning of these proceedings and after the termination of her citizenship or the purported termination of her citizenship and these two children have a citizenship which is dependant upon the outcome of this case.

If this case is successful they are like their brothers dual nationals carrying American citizenship under the conditions we have mentioned and if we are unsuccessful they are only German nationals and they do not have the same rights as their brothers.

Justice William J. Brennan: Did you say Mr. Freeman whether she might obtain a German citizenship again?

Mr. Milton V. Freeman: Under the laws of Germany women who are married to German citizens may apply for and receive German citizenship by a process of naturalization similar to ours but on an expedited basis.

Justice William J. Brennan: Although she was German born.

Mr. Milton V. Freeman: She was German born but she lost her German citizenship.

Justice William J. Brennan: American national --

Mr. Milton V. Freeman: -- when she became an American national, there's some discussion in the government's brief that it tends to guess it out on that, but there is no question about it and the finding of the court below is that she is stateless.

Justice William J. Brennan: Well if she may (Inaudible) get again a German citizenship is what really have to take care of a citizenship, possible American citizenship of these two native born children?

Mr. Milton V. Freeman: No, in her own American citizenship.

Justice William J. Brennan: (Inaudible) I'm speaking practically.

Mr. Milton V. Freeman: Practically her own American citizenship is the vital importance.

The government says it doesn't make any difference to you, whether you have an American passport and it's perfectly alright if you are taking German --

Justice William J. Brennan: So she could come into the United States (Inaudible) could she not with children.

Mr. Milton V. Freeman: Only on special permission.

Justice Potter Stewart: And she has.

Mr. Milton V. Freeman: She has been able to do that and the question --

Justice Tom C. Clark: (Inaudible) permanent residence.

Mr. Milton V. Freeman: If properly admitted as an alien for a permanent residence.

Justice Tom C. Clark: Yes, the American children (Inaudible)

Mr. Milton V. Freeman: Well it might or might not Your Honor, she has two children who --

Justice William J. Brennan: Well, that's what I'm wondering but not really.

Mr. Milton V. Freeman: No the other --

Justice William J. Brennan: Other issues, other rights to stay here but perhaps two (Inaudible) children --

Mr. Milton V. Freeman: Well I think basically if I may say what I think Mr. Schneider has said in the record, I put that question to her and why do you want to be an American citizen if you are not going to live here and you are going to live with your husband in Germany and she says, “I wouldn't feel myself, I would feel silly with a German passport.”

Now she has restated that in the record in more elegant terms.

She says, “I feel myself an American, America is the only country that I have any devotion to, that I have any interest, I have no interest in Germany, I will live with my husband wherever he may be.”

Justice William J. Brennan: (Inaudible) she came here.

Mr. Milton V. Freeman: She came just -- when she was just under five, so she came here as a child of five and she has spent all her formative years in the United States, she went to American school, she is an American girl.

Justice Arthur J. Goldberg: I assume there are thousands (Inaudible) husband.

Mr. Milton V. Freeman: That's right, there are great many.

Justice Arthur J. Goldberg: Who are eligible for foreign citizenship (Inaudible)

Mr. Milton V. Freeman: Will never apply for it, they don't want it anymore than Mrs. Schneider does and Mrs. Schneider has of course every opportunity to get --

Justice William J. Brennan: Well of course they don't lose.

Mr. Milton V. Freeman: They don't lose their citizenship because --

Justice William J. Brennan: Only a naturalized American girl.

Mr. Milton V. Freeman: It's only the naturalized American girl who is faced with this choice of accepting some other citizenship that she doesn't want or remaining stateless.

Now Mrs. Schneider was faced with that choice.

She said one, I will not give up either my country or my husband, I will be stateless rather than except German citizenship, because German citizenship, I cannot consciously take an oath of allegiance to the German government, I have my allegiance exclusively to the government of the United States.

The fact that she is in Germany is an accident of the place where the man she married happens to live and to practice his profession, he is a German lawyer, he is a skilled German lawyer, he is able to practice his profession in that place, he cannot any place else and she should not be forced to abandon him for that reason.

Justice John M. Harlan: Where do they live in Germany?

Mr. Milton V. Freeman: Cologne, Germany.

He is a member of the Cologne firm whose name, the name is in the record.

Now there were two things that are not in issue in this case, which are absolutely clear.

The two things that are not in issue are the good faith of the nationalization originally in her actual loyalty to the United States.

The statute makes no distinction.

It takes away the citizenship of a person who was naturalized in good faith and accepted citizenship in the United States in good faith and it applies no matter how much after the naturalization and no matter how long after and under what different circumstances and it applies independently of the actual loyalty of the person to the United States.

It's perfectly clear that in the year 1950 when Angelika Schneider as a freshman at Smith college was naturalized that she had no idea or intention of marrying D.D. Schneider who was then a student from some German University, she met him only 10 years later.

So her naturalization was accepted wholeheartedly and without any condition and qualifications and it is not subject to attack.

If it were subject to attack it would be a different story, there are many grounds for attacking naturalization obtained with reservation and I shall come to those later, but it's perfectly clear her naturalization was accepted in good faith and if he intended to stay in the United States and complete her education and do whatever else a young girl would do.

Also, not in issue was her actual loyalty to the United States.

She has proclaimed it in her affidavits here which are un-contradicted.

She has also proven it by the fact that she has not accepted what has been suggested, it is an easy way, why don't you accept some other citizenship, German citizenship is easy to obtain, she has refused it.

Now, both the government and the majority opinion of the District Court below have some doubts about this judgment, for the majority below raises a question that there is nothing in the record to show that Mrs. Schneider has performed any of the duties of American citizenship.

Now there is no specification of what duties of American citizenship she was supposed to have performed.

There is no indication that there is any basis any charge.

The statute makes this irrelevant.

If the government were to charge that Mrs. Schneider had failed in any responsibility to the government of the United States it will of course be necessary for them to present specifications and to give her an opportunity to meet them.

We asset that the record is clear that she has met every obligation of an American citizen and that there is no obligationship of American citizenship which cannot be imposed upon her and which she cannot be compelled to perform merely because she happens to be residing outside the physical limits of the United States.

Allegiance to the United States is not something which requires physical presence on our soil, subjection to our laws, also that's not required, physical presence on our soil.

If there are any tax obligations, military obligations of any kind they may of course be imposed on American citizens residing abroad and as this Court knows from the facts in the Court case, we have a induction center in Frankfurt, Germany.

Now, what is the right which is attacked here?

What has the government done because Mrs. Schneider is living with her husband?

They have taken away her right to be a citizen.

I don't think we have to elaborate too much on that right.

This Court has talked about it in many terms.

The Trop case held that taking away that right was cruel and unusual punishment.

They have been described as the total destruction of the individual status in organized society.

It has pointed out as the questions he has that the plaintiffs very existence is at the sufferance of the country which she happens to find herself.

Well, any country may (Inaudible) rights, as has been indicated, no country needs to do so, because she is stateless and it has been characterized as a truly terrifying remedy, a drastic measure and the statement that is one of the most valuable rights and has grave practical consequences.

I say, every member of this Court has associated himself with some or all of those remarks.

Now that right cannot be treated we say the way a right of lesser consequence can be treated.

The Court below thought the cafeteria workers case against McElroy was relevant.

They said if you can classify between various people and say these people can come work in the cafeteria in the Navy yard, and these people cannot then it's alright to say that these people can be citizens and other people cannot.

We say that whatever the conclusions of the various members of the Court maybe on that case we say this is a different matter.

This is a much more important right.

It's much more basic and it is not subject to simple classifications to say that, well, naturalized citizens put them in one bin and classify them as though they were potatoes or well we were dealing with a right of a lesser consequence.

The classification here also as I shall point out later is of course on the basis of origin and ancestry.

It is as the Court said, classification in Hirabayashi which is odious to three people.

We say that whatever the circumstances in which such a classification maybe apply they do not apply here.

Now, we say that the power over citizenship, the right to take away citizenship requires some action which is related allegiance to this country.

We say you cannot take away citizenship unless the person in question, the citizen has indicated that he has abandoned his allegiance to the United States.

Unknown Speaker: (Inaudible)

Mr. Milton V. Freeman: No Your Honor, I think we accept Perez, we accept Savorgnan we accept Perez.

We say that it does not depend on the subjective intent exclusively.

We accept Savorgnan.

We say that, well Mrs. Savorgnan said, I hereby apply to be a subject of the King of Italy that the government of the United States could say we don't care about what your subjective intent was.

The objective effect of your act was a reputation of American Citizenship and acceptance of a foreign citizenship.

They could say that Mrs. MacKenzie whether that is still a law or not, when you under the state of the Law at that time become a British subject the United States is a jealous mistress, we will not share your loyalty by becoming a British subject, you have lost your American citizenship.

In Perez, the majority pointed out that it was necessary to find something less than complete and unswerving allegiance to the United States and elements of an allegiance in some measure at least inconsistent with the American citizenship.

The Trop case emphasized that there was no dilution of allegiance in that case and if Your Honor please the dissenters in the Mendoza case indicated that at least so far and we hope it will remain that way and we believe the Constitution so requires it, and I quote, “Our previous decisions involve conduct inconstant with undiluted allegiance to this country.”

And when the four dissenters and that's part of the provision on which all the four dissenting justices in Mendoza agreed, it's not part of the separate one about the presumption, that when those four dissenting justices said that, they enunciated true doctrine, that when you are dealing with citizenship you have to talk about allegiance.

That citizenship is a relationship between the government and the citizen and the government has a right to expect allegiance of the citizen and the citizen provided, he gives allegiance, is entitled to membership in the society.

Unknown Speaker: (Inaudible)

Mr. Milton V. Freeman: As I read the case the difference between the members of this Court in Perez as to whether this act of voting could or could not reasonably be regarded as giving up American citizenship and involving the person with the Government of Mexico.

In other words, it's the same problem as we regard Perez as merely an extension of subordinate as a case in which this Court said the majority of us believes that the act of voting is just like the act of applying to become a citizen of another country, that Congress could reasonably say that it had the same effect and that it does affect allegiance.

Whereas in this case there is no political involvement, no basis for a congressional judgment that Mrs. Schneider for the vast -- number of citizens who are living aboard are involved with foreign powers and have given up their allegiance to the country of which they are citizens.

Chief Justice Earl Warren: You recognize the rule in Perez as been the rule why this case should be decided, or you only distinguish it on the facts of this case, is that correct?

Mr. Milton V. Freeman: Well I'm not sure that in the light of Mr. Justice Harlan's question whether the Court reads Perez the way I do, I read --

Chief Justice Earl Warren: (Inaudible) do you agree with the rule in Perez?

Do you think that's the rule that this case should be decided by or rely on the distinction between the facts of this case and the facts of that case?

Mr. Milton V. Freeman: Well I may say this Your Honor.

We have argued this case on the assumption that Perez was the law.

If Perez were not the law and the views of the some of the justices in that case were to be accepted of course this would be a very, very easy case.

We say that even under Perez this is an --

Chief Justice Earl Warren: (Inaudible) your cased decided under the Perez rule?

Mr. Milton V. Freeman: Pardon me.

Chief Justice Earl Warren: You are agreeable to having this case decided under the Perez rule?

Mr. Milton V. Freeman: Well no Your Honor, I don't believe I can do that.

I'm agreeable to having case decided in favor of my client in anyway that this Court will agree to it.[Laughter]

Justice William J. Brennan: Mr. Freeman, in any event I gather to the extent that you say you accept Perez, you accept Perez as you've just told us you read it.

Mr. Milton V. Freeman: That's right Your Honor.

Justice William J. Brennan: That's dangerous.[Laughter]

Mr. Milton V. Freeman: Well Your Honor makes better position of a judge than I am.

Justice William J. Brennan: I couldn't possibly read it that way that's (Inaudible) –-

Mr. Milton V. Freeman: Well –-

Justice William J. Brennan: Turning on the distinction of ascribing the particular conduct thereby is something which will in effect were annunciated in allegiance --

Mr. Milton V. Freeman: No I'm not saying that.

I'm saying that Perez at most says that you can ascribe to this punishment or this consequence of loss of citizenship only through conduct which is inconsistent with American citizenship, which dilutes allegiance and I say that, that is language which has appeared in the opinion of every justices of this Court and since there seems to be a question about it, I would like to read again if I may, the language of Perez.

Perez says it's a consequence that the act involved here involves something less than complete and unswerving allegiance to United States and elements of an allegiance to another country in some measure at least inconsistent with American citizenship, that's Mr. Justice Frankford's opinion in Perez.

Justice John M. Harlan: (Inaudible)

Mr. Milton V. Freeman: Yes, Your Honor.

Justice John M. Harlan: (Inaudible)

Mr. Milton V. Freeman: It means there was irrational exercise of that power to take away citizenship, because it was only rational to take away citizenship if the citizen had done something inconsistent with allegiance with the United States and consistent with allegiance.

Justice William J. Brennan: Well if that's right –- that's right – (Inaudible)

Mr. Milton V. Freeman: Well I hope you will -- pardon me.

I hope Your Honor will arrive at that conclusion and I say citing from the dissenters in Mendoza the language that our previous decisions involved conduct inconsistent with undiluted allegiance to this country, so that I'm saying that even the dissenters in Mendoza construed Perez the way I'm suggesting it should be construed.

Justice John M. Harlan: There is another question I hope you are going to argue (Inaudible)

Mr. Milton V. Freeman: I intend to Your Honor, right now.

The basis upon which --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Milton V. Freeman: That's absolutely right Your Honor.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Milton V. Freeman: That's right Your Honor.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Milton V. Freeman: That's right Your Honor.

Now one argument that is made here and the basic argument of the government that they have been driven to another one that the government has general power over its citizenry as an inherent matter, I think that doesn't deserve much intension, we dispose of it in our briefs and it's inconsistent with what this Court has said in the other denaturalization cases.

But the argument here is made that that this is necessary for the conduct of foreign affairs and that this is an exercise of the foreign affairs power.

Now if you look in the legislative history of this act, you will find no basis for it, in the Perez case, unlike this, there was an actual problem which was presented to Congress.

Congressman Dickstein was very much exercised over the fact that a great many American citizens had gone to Germany or to Tsar Land and voted in the (Inaudible), Americans of German origin had voted in the (Inaudible) to return to Tsar Land from France to Germany.

And that particular foreign affairs problem was the occasion for the foreign voting provision in the Perez case.

In the present case there is no problem of foreign affairs.

The government has gone back to try except in the sense in which I shall talk and be regarded as foreign affairs, the government has gone back to the middle of the last century to try to try to show that there are problems, that there were problems relating to the impressments of American citizens by foreign countries.

The fact of the matter of course was as their own brief shows that all of these problems had been resolved by the middle of the 19th Century by the so-called bank Bancroft Treaties.

The government of the United States had fought hard to obtain for its naturalized citizens the right to live abroad including the countries from which they originally came.

They --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Milton V. Freeman: Well that is another example of the point that I'm about to make that this statute deals not with military impressments because military impressment is something that arises immediately the former citizens come back, comes back to his country, they don't wait two or three or four years and Congress was not dealing with that problem.

That problem was generally regulated whatever problems there might be with tourists.

This is not a statute that deals with a problem of the tourists.

This is the statute that deals with a problem if any of the long time residents in the foreign country.

Now what happened was that having obtained for our citizens, naturalized as well as born citizens, the right to reside abroad without molestation by foreign governments, we faced another problem.

It is in fact that some citizens like Mrs. Schneider retain their American loyalty and that some citizens when they go either to the land from which they came or to another land or born citizens decide that they like it better where they are and give up American citizenship in fact and Congress and the state department were very much concerned with that problem.

And that was the problem that arose after the turn of the century and it was before the state department and Congress in 1906 and 1907.

And their problem was what shall we do about that?

We do not believe that it's appropriate for the government of the United States to extend protection to people who are only, as they stated, nominal citizens and people who are really Turks or Greeks or whatever else and are not really Americans.

So they adopted one statute, they adopted a statute in 1906.

Now from the beginning of our republic it has been the law that you have to remain in the United States five years before you are naturalized.

So that anybody who is naturalized in the United States in the normal case has invested five years in his life in living in the United States.

In 1906, to avoid a possibility that somebody might come here for five years and then go away, a statute was adopted which provided that anybody who left the United States within five years of naturalization would have to explain why there was a rebuttable presumption that if you left the United States within five years of your naturalization that you had intended at the time you were naturalized not to stay in the United States and that the promises you made at that time were false and that your naturalization would be revoked and this was an attack on false naturalization.

This court in the Luria case sustained that presumption and said that's fine of course as you get close to the five years, you have to have more conclusive proof but this is an individual matter and as a presumption it will stand.

So that now, in 1906 when that statue was passed it was clear that a naturalized citizen at least was pretty well taken care of, he had five years that he had to invest before he became a citizen and five years afterwards where his naturalization was subject to question, but that wasn't only question.

The question is what happens if you have somebody who has been a citizen for a long time, born or naturalized, who may even naturalize here and lives here 30 or 40 years and goes away.

What do you do in that case?

Now the state department thought this was a problem which applied to both born citizens and naturalized citizens.

In connection with the statute which was the five year presumption statute, a study was requested by the state department and the state department suggested a rebuttable presumption applicable to both born and naturalized citizens that long time residents aboard should be the subject of a presumption of intention to give a citizenship and should be subject to rebuttal.

In the course of consideration of this proposal by the state department in 1907, the Congress -- the statute came out applicable only to naturalized citizens.

And it provided that a naturalized citizen who lives two years in the country of his origin or five years in another country, should be presumed to have lost his citizenship and that this was rebuttable.

This statute was construed, one as not taking away citizenship but only as governing diplomatic protection although the language seems talking in terms of citizenship, the attorney general in the court said, “Of course Congress was considering only which citizen should be entitled to diplomatic protection and not actual citizenship.”

In addition to which as this court said in the Gay case, it was a presumption easily rebuttable.

In substance it was a census provision.

We've said we have a great many citizens living abroad born and naturalized, in this case naturalized, we want them to announce themselves every so often as to whether they intend to remain citizens and if they announce themselves -- in the Gay case all the gentleman had to do was to appear at the Swiss consulate say here I am and I want to remain an American citizen and that was it.

Now nothing happened from 1906 until 1941.

The state department came before the Congress and said, we are having a lot of trouble with these cases.

We present you 13 typical cases.

We don't know how to decide whether a fellow is or is not entitled to diplomatic protection.

It involves great difficulties and we wish you the Congress would relieve of these responsibilities and adopt an absolute rule, an absolute rule that if somebody is a resident, three years in the country of origin or five years in another country and he is a naturalized citizen, he loses his citizenship absolutely and then we don't have to bother about them anymore.

They said we know that of course we can make determinations in individual cases, but they said, if we make determinations in individual cases, the court proceedings that will be burdensome, cumbersome, time consuming and expensive.

And we want you the Congress of the United States to relieve us of the burden and expense of individual determination.

And the Congress obliged.

We say that the Congress had no right to do that, that the constitution prohibits dealing with a basic right like citizenship.

On a basis which is an absolute presumption, the presumption in fact here are disloyalty, of lack of allegiance, just because it would be as the official indicated burdensome and expensive for them to find out whether in individual cases this was just or unjust --

Justice William J. Brennan: Is that the same experiment that -- what this record demonstrates is that the only reason for this provision was administrative convenience.

Mr. Milton V. Freeman: That's right.

Justice William J. Brennan: You have to say it's not a sufficient -- it doesn't set up a rationale connection with anything, is that it?

Mr. Milton V. Freeman: That's right, Your Honor, that's what we say and that's what Judge Fahy in his dissent indicated.

It's very clear and the actual cases before the Congress has reasons why they should pass this statute do not have anything to do with any problems with the foreign government, they created no problems with foreign affairs.

The only problems they created was that the government officials would have to sit on decide these questions and they didn't want to decide whether -- now what happened -- another thing that this statute did in 1940 and now in the 1952 act it not only made presumption, the rebuttable presumption of the 1970 statue conclusive, it also applied not just a diplomatic protection but the citizenship so that if as some of the 13 cases were, a citizen who is subject to the statute and excluded by wanted to come back to the United States he could not, under the 1907 statute at any time you could come back.

But this statute made a conclusive presumption and said you could never come back except as any foreigner.

Now we say that you can't do that to naturalized citizens.

We say that when the Court has permitted such a group determination of disloyalty it was only under extreme war time conditions, in the Japanese exclusion case, and I would like to read the circumstances under which that was justified in the Korematsu case, the majority Court, that was another Japanese exclusion case, and it said there was evidence of disloyalty on the part of some.

The military authorities considered that the need for action was great and time was short.

Now there is no such situation here.

Time is not short.

There is adequate opportunity for the government of the United States to make individual determinations.

There is no imminent threat of invasion.

Military authorities are not involved, and we say that the government of the United States must give individual justice, that it cannot give discriminatory justice, that it cannot attribute to naturalize citizens' loyalty or disloyalty to the United States which it does not attribute to born citizens in similar cases.

I'd like to reserve the rest of my time.

Chief Justice Earl Warren: Mr. Terris.

Argument of Bruce J. Terris

Mr. Bruce J. Terris: Mr. Chief Justice may it please the Court.

I would like to dispose at the outset of the appellant's contention which counsel did not reach in oral argument and which is contained in our brief, that this case is governed by the Court's decision last term in Kennedy versus Mendoza-Martinez.

That is that this statute is a penal statute and therefore it violates the Fifth and Sixth Amendments and the Eighth Amendment.

The short answer to this is -- this statute is not a penal statute.

There is not the slightest indication of a legislative history, not even a -- not a word or a sentence to indicate that it is a criminal statute or that it was intended to deter or to have retribution or to have any of the other attributes of a criminal statute and aside from the legislative history, we believe that it is unbelievable to think that Congress would have imposed criminal penalties on a neutral act such as mere residence abroad which is not criminal and is not immoral and is not reprehensible in any way.

I would now like to turn to what are admittedly the serious constitutional questions which are involved in this case.

As we see it there are two.

First, whether Congress has the power to expatriate American citizens because of prolonged residence in the country of their origin on the basis of Congress' power over foreign affairs.

And the second question is whether it is a denial of equal protection of the laws insofar as this principle applies to the federal government through the due process clause of the Fifth Amendment, to provide that expatriation of naturalized citizens without providing for the expatriation of native born citizens.

Before I consider the legal arguments on these two questions I would like to turn to the history underlined Section 352 (a) (1).

To be frank I do not recognize the history as it is described by the appellant's counsel.

This history extends back to English common law and I think it's also relevant as this Court has indicated in the previous case to look to the experience of other countries.

Therefore we'll just summarize the materials which are described in considerable greater -- considerably greater detail in our brief and which even the brief is only a summary of the really overwhelming evidence that foreign problems, foreign affairs problems underlay this statute.

In English common law, a citizen had no right to renounce his citizenship at all.

This was the so called principle or perpetual allegiance, but this principle was not reciprocal.

Not only were conditions often placed in grants of citizenship, but England had statutes which provided for expatriation for various conduct, including for prolonged residence abroad.

Now these principles were partially refracted in the American Constitution.

As in England, the political rights of naturalized citizens are limited in the American Constitution.

No naturalized citizen may ever be President of the United States and he may not sit in the House of Representatives or in the Senate for seven and nine years respectively after naturalization.

While Madison and Hamilton opposed these provisions at the constitutional convention, they did so on the ground that the provisions were unnecessary.

They said, in Madison's words, Congress has the right of regulating naturalization and can by virtue thereof fix different periods of residence as conditions of enjoying different privileges of citizenship.

In the first Congress, in debate on whether residence should be required prior to naturalization, Congressman White said that if this requirement were omitted naturalized citizens should be expatriated who left the country and stayed abroad for a given length of time.

When another congressman challenged the constitutionality of this proposal, Madison responded it maybe a question of some nicety, how far we can make our law to admit an alien to the right of citizenship step-by-step, but there is no doubt we may and ought to require residence as an essential, and despite appellant's contentions to the contrary in a reply brief, I think a reading by this Court of that entire 10 or 15-page discussion in the first Congress will show that Madison was discussing residence after naturalization.

In the conflict between the Hamiltonians and Jeffersonians in the 1790s over the right of citizens to renounce their citizenship, the Jeffersonians argued that immigration and resulting residence abroad dissolved the ties binding a citizen to his government and when this issue again became crucial during the war of 1812, the Madison administration published a pamphlet saying that immigration with intent to reside abroad permanently ipso facto constituted expatriation.

During the 19th Century a new problem arose in this area.

Naturalized citizens residing in their native lands became sources of conflict in American foreign relations, when foreign countries treated them as their own citizens with regard to military service, to taxation, to political loyalty and the like.

As a result despite the traditional American doctrine of extending protection to natural born and naturalized citizens alike, the Department of State as early as 1818 tried to meet this problem by refusing to give protection to naturalized citizens domiciled in their former homelands.

After the civil war the problem became even more acute, as pressure began to conscript American citizens into it's armies and England charged American citizens with complicity in the Fenian Revolt after they had returned to their native Ireland.

Consequently the American government tried three new methods to meet this problem.

First, Congress in 1868 passed a statute which provided that naturalized citizens and native born citizens would be given protection and the like in the hopes that foreign countries could be induced not to make demands on any American citizens.

Also in 1868 the Department of State began to enter into the so called Bancroft Treaties, which provided that if a -- that a naturalize citizen was expatriated, if he returned to his former homeland without an intent to return to his adopted country and that an intent not to return would be presumed after two years residence.

Today these Bancroft Treaties are enforced with 21 different nations, not including Germany, although one -- the first treaty was with Germany since at the time the treaty expired.

And the third method of dealing with this problem was that late in the 19th Century the Department of State started to inform naturalized citizens residing in their native lands with which no Bancroft Treaty existed that they had expatriated themselves.

When President Grant pulled his cabinet as to whether naturalized citizens resided in their native countries with no intent to return to this country had expatriated themselves, a majority of the cabinet answered in the affirmative including Secretary of State Fish, and this principle was also followed by several international mixed claims commissions.

As this Court described the situation in Perez, the historical situation at the end of the 19th Century, no one seems to have questioned the necessity of having the Department of State pass on the validity of claims to American citizenship, but this method was regarded as unsatisfactory since no clear standard existed and expatriation depended on executive discretion.

Consequently demands grew for Congress to act.

As early as 1863, President Lincoln suggested to Congress that it fix a limit beyond which no citizen of the United States residing abroad may claim the interposition of the government.

In 1874, President Grant told Congress that a statute defining expatriation was necessary because the representatives of the United States in foreign countries are continually called upon to lend their aid in the protection of the United States to persons concerning whose citizenship there is at least a great question.

However, Congress did not act promptly.

It was not until the start of the 20th century the Congress first passed legislation in this field.

They first passed in 1906, the statute which Mr. Freedman has alluded to providing for -- providing a presumption of loss, fraudulent naturalization for leaving the country within five years of naturalization, but that same year Congress suggested that a thorough study be made to the entire field of citizenship.

As a result, Secretary of State Root appointed three high state department officials to study the question.

This Citizenship Board as it was called founded the class of Americans who live within the jurisdiction of foreign countries is becoming larger each year and the question of their protection causes increasing embarrassment to this government in its relations with foreign powers.

The Board said the denial of diplomatic protection was not sufficient since they left too much to the uncertainty or fluctuations of executive policy.

As a result of the Board's recommendation, Congress passed the Nationality Act 1907 which provided that if a naturalized citizen resided in the foreign state of his origin for two years or any other foreign state for five years that he be presumed to have lost his American citizenship.

In explaining this provision, the House Committee which reported the bill said, perhaps the most important provision of the bill was desired by the state department, a guard against complications in which this country has become involved.

Many foreigners come here become naturalized and then return to their own countries or migrate to other parts of the world without any intention of returning to this country.

Such a provision as this would be a great assistance to the Department of State, would avoid possibilities of international complications and will prevent those who are not entitled to its protection from dishonestly hiding under the American flag.

However, the 1907 statute did not worth well in practice.

The 1933, President Roosevelt appointed a committee composed of the Secretary of State, the Secretary of Labor, and the Attorney General to review all the nationality laws.

After five years of intensive study by experts they concluded that the 1907 statute was unsatisfactory for two reasons because it had been interpreted to cause loss of protection and not loss of citizenship and to provide only a presumption and not a definite rule.

The committee went on to state that the problem presented by naturalized citizens of the United States residing in the foreign countries in which they were born or of which they were formerly nationals of whom there are thousands at the present day has been a cause of difficulty and embarrassment to the government of United States in the effort to stand protection to other naturalized citizens in meritorious cases.

A definite provision for the termination of American nationality will have the affect of persuading foreign states to recognize the American nationality of the persons concerned when they return to their countries of origin for legitimate objects and for residence of a temporary character.

There are several other statements of the similar kind which I will not go on to quote.

They are contained in the government brief.

On the basis of the committee's report, Congress provided in the Nationality Act of 1940 that the expatriation of the naturalized citizens after two years residence in the country of their origin if they whereby reacquire their former nationality, three years residence in the country of their origin if they did not reacquired their former nationality and after five years residence in any other country.

The same provisions were contained -- were retained by the Congress in the 1952 Act except that the two year provision was omitted and the definition of the residence was tightened to make sure that evasion could not occur by brief trips to the United States.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Bruce J. Terris: Your Honor that's, I think that's a much more difficult question.

It's a question that is not involved in this case.

I think, to be frank I don't think that there is a great deal more likelihood of embarrassment than for a native born citizen in that situation.

I think what is different from a native born citizen is that Congress thought that likelihood of alien nation of allegiance is greater for a naturalized citizen than a native born citizen even when he is in a third country.

However, I do want to emphasize that is not this case.

That provision was upheld by the Court of Appeals in the District of Columbia in the (Inaudible) case, a certiorari was denied by the Supreme Court a number of years ago.

The 1952 provisions were subjected to extensive criticism in Congress in the congressional hearings including of the five year provision in Section 352 a (2).

However, we have found no criticism of Section 352 a (1) which is I have indicated is the only provision which is involved here.

I think the experience of other countries including of the other great democracies is also instructed.

Justice William J. Brennan: Before you get that Mr. Terris, history this bill referred to selling out that the presumption didn't work because they didn't even arrest or whatever it was, embarrassment, indicate what the embarrassment were the facts that suffered under the presumption.

Mr. Bruce J. Terris: Well, the kind of the kind of embarrassments Your Honor the actual situations which were discussed by the presidentially appointed committee that reported in 1938 they gave 13 illustrations.

Now as appellant's counsel indicates as to 12 of them.

The embarrassments are indicated.

As to the 13th Embarrassment was that the property of this person was confiscated and the United States apparently was in the position of trying to intervene on his behalf.

However, there is a long history of embarrassments particularly over military service and in addition over the attempts of American citizens to leave various countries because there was a very major controversy with Poland after World War II in which American citizens were not allowed to leave Poland and some of them were incarcerated apparently because of doubts as to their political loyalty.

Justice William J. Brennan: Poland made no distinction between the American naturalized and the American native born.

Mr. Bruce J. Terris: I think, I am not certain of that Your Honor I think they did, I think these were formally Polish citizens and that's why they exercised, they claimed to have jurisdiction over them.

A very few foreign countries attempt to exercise dominion or jurisdiction over native born American citizens in the absence of an affirmative act such as a crime of some sort --

Justice William J. Brennan: Well, I gather this agreement leading to the (Inaudible) was that it's only administrative convenience --

Mr. Bruce J. Terris: Well, Your Honor I --

Justice William J. Brennan: (Inaudible) obviously is not at the time but were actual embarrassment --

Mr. Bruce J. Terris: That's right Your Honor.

Justice William J. Brennan: Under the presumption, it was approved to some workability and therefore trying to (Inaudible)

Mr. Bruce J. Terris: Well, let me address myself directly to the question of administrative convenience.

Administrative convenience entered into it, what the department of state found was that it could end the Embarrassments without having a statute which it could minister.

Now, to that extent the administrative convenience entered in.

Justice William J. Brennan: Well, would the government be defending the statute constitutionally if there were absolutely nothing except that it was easier to do it with the definite rule and with a presumption.

Mr. Bruce J. Terris: No, Your Honor that's certainly not this case.

As I've indicated, we think there is 100 years of history of very definite embarrassments.

Now, the number of embarrassments in the 19th Century, Moore's book International Law Digest has I think it approximately 70 pages of one situation after another involving variations on these problem different factual situations.

So I don't think there is any question that Embarrassments are potentially possible and that they do arise.

Justice Byron R. White: With any of the --

Mr. Bruce J. Terris: The potentiality with any American citizen but history has shown that is most likely with naturalized Americans citizens.

As I have indicated very few countries attempt to assert jurisdiction over native born Americans citizens.

They don't feel that they can claim anything as to them, they may expel them.

Justice Byron R. White: Then again I suppose that if they are native born Americans -- rather naturalized American citizens but native born from some other country, from the country in which they are in, does the government treat them any differently?

Is it only, in other words, is it only it's only native form who are now naturalized Americans?

Mr. Bruce J. Terris: Yes, yes its --

Justice Byron R. White: (Inaudible)

Mr. Bruce J. Terris: That's the basis for my response to Mr. Justice Goldberg that the foreign affairs difficulties are markedly less in regards to Section 3 52 a (2).

All the -- Mr. Justice White, all the history which I have set forth has involved naturalized citizens.

All the statements by the Department of State, all the underlying embarrassments have all involved naturalized citizens.

Justice Byron R. White: (Inaudible) maybe foreign citizens, I mean ones you said that indicate they were not similar --

Mr. Bruce J. Terris: They are -- not nearly to the same extent, not nearly to the same extent but there is, certainly have been embarrassments by native born citizens.

Justice Tom C. Clark: (Inaudible)

Mr. Bruce J. Terris: Well Congress has the full power to decide who can become a citizen.

Now there certainly cannot I -- the government is not contending that it can impose any restriction on --

Justice Tom C. Clark: I was wondering whether they could make any condition in that position that any person who became naturalized (Inaudible) remain in United States?

Mr. Bruce J. Terris: I think they could Your Honor.

Justice Tom C. Clark: If they have not stayed United States well for years.

Mr. Bruce J. Terris: Your Honor I --

Justice Tom C. Clark: (Inaudible)

Mr. Bruce J. Terris: Your Honor I think you can -- I think that is exactly what Madison said that that Congress did have that power.

Justice Tom C. Clark: (Inaudible)

Mr. Bruce J. Terris: No it would not.

Justice Tom C. Clark: (Inaudible)

Mr. Bruce J. Terris: It would let Mrs. Schneider on under the wire because this provision is identical to that under the 1940 statute and in fact we do suggest that in our brief that she became a citizen with this condition attached.

Justice Byron R. White: Mr. Terris what's -- what would be wrong with -- would the embarrassment be solved, or the government probably solved if this section read that a foreign born citizen, foreign born person who became naturalized did not go back to his hometown and lived there more than three years without consent of the Secretary of the State?

Mr. Bruce J. Terris: I think that, I think that would beat the problem.

I don't -- I am not at all sure why that would be preferable as a matter of constitutional law though.

I think that would raise the same difficulties as this case and in addition it might raise the difficulty which Mr. Justice Black suggested in his opinion in the Trop case about executive discretion.

So I think probably we just have one additional constitutional argument if that were the --

Justice Byron R. White: It was a better statute (Inaudible) service to military case?

Mr. Bruce J. Terris: Well that -- I think there is some possibility of that.

Justice William J. Brennan: What about the old (Inaudible) that consul withheld -- there used to be statutes which if you remained abroad for a period but within that time you went for a consul and said I retain my American citizenship that -- you retain it, what was, what was wrong with that approach rather than this?

Mr. Bruce J. Terris: Well Your Honor that would not, that kind of a statute in no way solves the problem which I have, which I have been discussing.

It indicates, it does solve one problem or at least it tends to solve it, it indicates the person is not giving up all allegiance to the United States by coming -- by telling the consul that he still wishes to be an American citizen, but the possibility of embarrassment with foreign countries remains the same.

They don't care whether this person claims to be an American citizen, they know that.

They claim that the person is still their citizen or has reacquired their citizenship and this is the problem in the 19th Century which is so clear, of two different states asserting jurisdiction over the same person.

And so --

Chief Justice Earl Warren: Perhaps I will ask in regard to Mr. Justice White question, doesn't this act give the Secretary of State most unlimited discretion to determine who can go to -- to the country of his birth and --

Mr. Bruce J. Terris: He doesn't have any discretion Your Honor.

Chief Justice Earl Warren: I beg your pardon.

Mr. Bruce J. Terris: He doesn't any discretion.

Chief Justice Earl Warren: I thought that this Section 352 A which says that this is not applicable as to certain persons, it says that not applicable to any person who is veteran of the Spanish American War, World War I or World War II.

I am reading from 79 of the brief for the appellant.

Mr. Bruce J. Terris: Yes.

Chief Justice Earl Warren: Any veteran of Spanish American War, World War I and World War II, or the Korean hostilities having served in army on an active duty status so forth it's a very long, long section and then, then it says or who has established to the satisfaction of the Secretary of State as evidenced by possession of a valid unexpired United States passport or other valid document, that he is temporarily outside of the United States for the purpose of (a) carrying on a commercial enterprise which in the opinion of the Secretary of the State will directly and substantially benefit American trade or commerce, or (b) any scientific research and so forth or (c) engaging in such work or activities under such unique and unusual circumstances as maybe determined by the Secretary of State to be directly and substantially beneficial to the interest of the United States.

Now I can imagine --

Mr. Bruce J. Terris: Well Your Honor one, there is a short answer to this.

One of the, one of the quickest answer I think that except for one exception this provision doesn't apply to the statute with which we are dealing, it involves -- it has application of 352 A (2) again the statute that I was discussing with Mr. Justice Goldberg.

Chief Justice Earl Warren: And what is that one?

Mr. Bruce J. Terris: That's the five year provision which does not apply to the appellant.

Chief Justice Earl Warren: It's in this same area that we are talking about, it does put them, does give a very (Inaudible) instruction.

Mr. Bruce J. Terris: Your Honor the Secretary of State may have -- I would debate that he does not have unlimited discretion under that, but I without trying to discuss that problem, the short answer is that that this provision in no way covers the appellant.

It cannot first of all of course she did not serve any armed forces obviously and second of all, it simple --

Chief Justice Earl Warren: No, but isn't it discriminatory if you do let veterans live abroad that way or if you do let anybody whom the Secretary of State thinks is furthering the interest of the United States or that he thinks he is engaging in an appropriate business or professional activity abroad.

Mr. Bruce J. Terris: Which -- Your Honor I must insist that that is not this case, there is nothing from statute.

Chief Justice Earl Warren: There is nothing to do with it?

Mr. Bruce J. Terris: No, it has nothing to do with it.

There was a provision in this statute saying that not only each provision is separable, but every application is separable.

The only thing that's been --

Chief Justice Earl Warren: (Inaudible) probably we wait for Mr. Freeman to answer, then he would give us --

Mr. Bruce J. Terris: Well I just -- would like to make this particular your point what is before the Court is not even the entire confines of this provision, what is before the court is its application to this appellant under Section 406 of the act.

Now turning to the experience of other countries which some members of the Court indicated was of importance in the Marcus' case, 30 countries provide for the expatriation of citizens based on residents abroad are from two to ten years.

In 25 of these countries, including the United Kingdom and seven commonwealth countries, these provisions do not apply to native born citizens.

And I think this is a general recognition in the world that the problem is markedly different between native born citizens and naturalized citizens.

The government submits that the history which I've just described very briefly (Inaudible) how much there is, but this history is conclusive.

This Court has repeatedly relied on history and especially in the views of the framers of the Constitution such as Madison to determine whether governmental action violates personal rights protected by the Constitution.

For example, in recent terms such history was relied on the prior cases.

Here the history from the earliest days of this republic shows a prolonged residence abroad has been considered as justifying expatriation and that a distinction has been consistently made between naturalized and native born citizens.

Madison himself plainly stated that naturalized citizens maybe required to maintain residence in the United States.

The power of Congress to expatriate under the section we believe is also supported by the Perez case not on the problem of the distinction between naturalized and native born citizens, but the basic power to expatriate because of residence abroad.

In Perez, this Court sustained a statute providing for expatriation because of voting in a formal election on the ground that it might embroil the United States and foreign difficulties.

We submit that the history of this section is far more clear, far stronger, has far more evidence than that involved in Perez.

Just since World War II, problems have arisen with Poland, Belgium, Greece, France, Iran, Israel, Switzerland and Turkey and we submit that there is no basis for saying that this is just an administrative problem.

This is a genuine current problem in international relations.

Chief Justice Earl Warren: Mr. Terris, are there any exceptions or exemptions to this act?

Mr. Bruce J. Terris: Yes.

Chief Justice Earl Warren: Where?

Mr. Bruce J. Terris: Section 353 Your Honor.

Chief Justice Earl Warren: Where do I find them?

Mr. Bruce J. Terris: They are in the -- I think page two or three of the government's brief and there are so in the appendix to appellant's brief on pages 76, 78.

Chief Justice Earl Warren: Well that's what I was reading, what I read to you.

Mr. Bruce J. Terris: No you were reading from section 354 Your Honor.

Chief Justice Earl Warren: I'm reading on page 78.

Mr. Bruce J. Terris: That's right and that's section 354.

Chief Justice Earl Warren: Yeah, all the rest of them are --

Mr. Bruce J. Terris: The ones on pages 76 to the top of 78.

Chief Justice Earl Warren: To the top of 78, yes.

Mr. Bruce J. Terris: Apply to section which we're dealing with.

Chief Justice Earl Warren: Don't waste anymore of your time I'll read it.

Mr. Bruce J. Terris: In Perez this Court also noted that voting in foreign elections suggested a transfer of allegiance from the United States to a foreign country.

Now the Court has said that this was not without significance.

It did not say that this was crucial to the decision as the appellant contends, but even if it were crucial to the decision in Perez, even if we assume that, surely prolonged residence in one's former homeland signifies far more clearly a transfer of allegiance, than the brief single act of voting.

Therefore, the factor of residence has been considered crucial in determining citizenship by the international court, by text writers on international law as well as by the many foreign countries which I have noted.

I think the relevance of a prolonged stay in one's homeland to transfer of allegiance, to dilution of allegiance is well expressed by the cabinet committee appointed by President Roosevelt.

Needless to say naturalized citizens who resume residence in the foreign lands from which they came are apt to renew old associations and ways of living and thinking and thus become merged in the native population, losing to a great degree, if not completely their American character and feeling.

This makes it all the more desirable that American nationality and not merely the right to diplomatic protection of this government shall be terminated.

Now turning to the appellant's principle contention, I think the most serious contention in this case, the distinction between naturalized and native born citizens, the appellant relies on statements in Osborn versus The National Bank and other cases by this Court, all which I think are dictum but which I think were seriously considered, where this Court has said that naturalized and native born citizens stand on the same footing.

The government has two answers to appellant's contention.

First, the Constitution itself shows that naturalized citizens have more limited political rights than native born citizens and in addition the statement by Madison upon which I rely before shows that residence was considered so interrelated with naturalization, that it could be made a requirement of citizenship.

Therefore, while we believe that the statement in Osborn is generally true, that the Constitution and history demonstrate that it has certain narrow exceptions vitally related to the question of naturalization itself.

Now the second reason that we think that appellant errs is that even though all American citizens must be treated equally, Congress of course can make reasonable distinctions between various classes of citizens.

For example, rich citizens and poor citizens stand on the same footing, bankers and workers stand on the same footing, but this does not prevent Congress from making rational distinctions between them.

Therefore, we submit that the crucial question in this case is whether the distinction between naturalized and native born citizens was a rational one.

I may say at this point that this is not a question of -- as in the Japanese cases of putting a label on particular people, of saying that some people are better than others, there is no contention, that Mr. Schneider or anybody else was disloyal or treasonable or the like.

This is a regulation of foreign affairs.

What we do say is that Mrs. Schneider and other people similarly situated cause serious problems in American foreign relations.

Now I have stressed before that it's long been recognized that there is a distinction between native born and naturalized citizens, both in relation to conflict with foreign governments and in relation to the possibility of the transfer of their allegiance to foreign governments.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Bruce J. Terris: The distinction between naturalized and native born?

Justice Arthur J. Goldberg: (Inaudible)

Mr. Bruce J. Terris: With the exception of the foreign statute and the 1907 statute.

No there has never been a statute, but their unbroken executive policy in the 19th century made this distinction.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Bruce J. Terris: That's right.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Bruce J. Terris: That's right.

No --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Bruce J. Terris: No the first statute is in 1907, we think that executive -- the history starting with the exercise of executive discretion is equally relevant, since this was discretion exercised by the agency which conducts American foreign relations.

Therefore we submit that Section 352 (a) (1) deals with the most acute problems of foreign relations and transfers of allegiance, we believe there can be very little doubt that Congress has the power of legislating where the problem is most serious without legislating where a lesser danger is presented.

In fact, I cannot see how anything very basic would be protected by extending this statute to native born citizens.

Justice William J. Brennan: Well I would say Congress has already done that and (Inaudible)

Mr. Bruce J. Terris: It is done what Your Honor?

Justice William J. Brennan: Made a distinction that between naturalized -- if you go back to the place of your birth as I understand it's three years isn't it?

Mr. Bruce J. Terris: That's right.

Justice William J. Brennan: If you don't come back within three years you lose it.

Mr. Bruce J. Terris: That's right.

Justice William J. Brennan: If you don't come back to the place of your birth go to some other nation you have in five years.

Mr. Bruce J. Terris: That's right.

Justice William J. Brennan: So there is a distinction that Congress has already drawn.

Mr. Bruce J. Terris: And that Congress has made other distinctions too.

Justice William J. Brennan: And what is the reason for that, is that if an American naturalized citizens goes to some other nation outside of his birth he is not as much of a problem or nor perhaps any problem.

Mr. Bruce J. Terris: That's right Your Honor, I think probably the major reason for the five-year provision is the question of retransfer of allegiance and it was thought by Congress that the likelihood of retransfer of allegiance is less in a third country than it is in your native country.

Justice William J. Brennan: I see, it become citizen of a third nation, is that it?

Mr. Bruce J. Terris: It's not a matter --

Justice William J. Brennan: (Inaudible) in Germany of naturalized American, he now goes to Switzerland.

Mr. Bruce J. Terris: Your Honor, I don't think it's a matter any of this being solicited to some other countries, I think it's the question of being solicited to this country.

Justice William J. Brennan: Well I'm trying to find out what the problem is for this country, if the naturalized American citizen born in Germany goes to live in Switzerland or the Philippines or somewhere else.

Mr. Bruce J. Terris: Your Honors I suggested to Mr. Justice Goldberg, I think it's -- a government would have a very difficult burden of trying to show foreign relations embarrassments from that provision which is not involved in this case --

Justice William J. Brennan: The five year provision?

Mr. Bruce J. Terris: The five year provision, but I again emphasize that 352 (a) (1) --

Justice William J. Brennan: I suppose you'd say a fortiori you couldn't find it as to native born American foreign relations.

Mr. Bruce J. Terris: That's right Your Honor, precisely.

I may say --

Justice William J. Brennan: That's the ground on which you say this clarification is reasonable.

Mr. Bruce J. Terris: That's right.

I may say something further about the five year provision.

It was adopted not at the behest, originally it was not adopted at the behest of the cabinet committee, the 1933 Cabinet Committee.

Congress went beyond the recommendations of the Cabinet Committee and passed the five-year provision.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Bruce J. Terris: These are native born Americans, you are talking about now?

Justice Arthur J. Goldberg: (Inaudible)

Mr. Bruce J. Terris: If needed --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Bruce J. Terris: That's right Your Honor, that they can -- that the -- first Congress has the power to take away citizenship from native born or American citizens -- or naturalized citizens, if there was a showing of strong likelihood of embarrassment in American foreign affairs.

Now as I've indicated Mr. Justice Brennan, I'm not sure we can make that showing as to native born citizens.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Bruce J. Terris: That's right.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Bruce J. Terris: Your Honor's question suggest some, a problem that face Congress, if we had, if Congress had passed a statute providing that all citizens lost their citizenship upon three years residence abroad then it would have been subject to attack, whenever a native born citizen was expatriated on the ground that we could not make a sufficient showing of embarrassment and embroiling the United States in foreign conflict.

Congress didn't do that.

It said, well we will deal with the heart of the problem.

So it dealt with naturalized citizens.

Now, we are faced with the contention that Congress should have passed the statute across the board because it cannot make a distinction between native born and naturalized citizens.

It seems to me that, what that argument means is, the Congress cannot deal with the problem and the problem essentially involves naturalized citizens.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Bruce J. Terris: All I could, Your Honor all I can say about that is that a 100 years of history show that that doesn't work.

The Department of State, numerous Secretaries of State, numerous experts studying the problem have said, have found and that people like I think they were harsh in their attitudes towards American citizenship have found that this doesn't work and I think it doesn't work for one extremely important reason and that is just as it was stated in Perez, the way to deal with the problem is to say that these aren't our citizens anymore.

As long as we are, they are citizens we've got a problem, we cannot just completely wash our hands of them, what if they want to return to the United States, certainly every citizen has that right.

Revocation of diplomatic protection certainly couldn't extend to our saying to a still, a person who is still a citizen that we won't try to get you back to the United States, this was the problem in Poland.

It's the problem in Iran, and Israel at the present time.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Bruce J. Terris: I think mainly Your Honor they say that you can't travel to those countries and that maybe one of the reasons if they say it is they don't want to be involved in problems once the person is there even having warned may not be enough to prevent the conflict.

Chief Justice Earl Warren: And Mr. Terris on the question of how much effect we should give to the concern of Congress over the effect of living in another country might have on people who were born in that country.

I remember that in the election case we had I think it was the Parish case here to go, we discovered that in this country aliens were permitted even to vote for President of the United States for all that 100 years, if you say there that might concern not only up to 1907 but for 20 years after that they voted, voted for President of the United States here without regard to what their loyalties were, they were here and they were permitted to vote.

Now those seems don't seems very consistent, doesn't it, if that is the -- if that is the main purpose of this statute.

Mr. Bruce J. Terris: Your Honor I am sorry I don't entirely follow.

Chief Justice Earl Warren: If they don't -- if they don't want the foreign influence as to, to be brought to bear on our people and our government and it has been concerning them for 100 years it seems a little strange to me that we would permit foreigners to come over here and vote for President of the United States.

Mr. Bruce J. Terris: Your Honor the concern is not about foreign influences, the concern is about demands that are placed in our citizens by foreign governments.

This may mean locking them up, it may mean throwing them to the army.

Chief Justice Earl Warren: Right I understood you to say that living over there could cause them to accept the home ways, the old home ways again and affect their loyalty in an adverse way and that that was the thing that it caused them for a 100 years to be concerned about naturalized citizen living abroad.

Mr. Bruce J. Terris: Your Honor I may say that I think you are dealing -- you are discussing State legislation not Federal Legislation and the states apparently those states no longer exist today, those states apparently regarded aliens who lived a while in this country is having been influenced by American ways.

Now I --

Chief Justice Earl Warren: But the point is, as I'm concerned over and some jurisdiction it seems to me over election for President of the United States.

Mr. Bruce J. Terris: Yes Your Honor I think actually this is maybe support more broad position.

Chief Justice Earl Warren: All right, I agree that.

Mr. Bruce J. Terris: The reason, I suggest that is apparently the states' believe that an alien who lived in this country for a while took on enough American ways so he could be trusted to vote in American elections.

We think that an American citizen who lives long enough in a foreign country also assumes enough of the ways of that country so they should no longer be considered an American citizen.

I like to point out that Section 352 a (1), if discrimination against naturalized citizens is a very, very limited one in its terms, in terms it applies only to the country of origin of the naturalized citizen.

Now, there is no country of origin of native born citizens.

Now, passing that question of discrimination in its terms looking to its effect, Section 352 a (1) says that a naturalized citizen cannot live more than three years in one country in the world, the country from which he originally came.

And it makes broad exceptions from this in Section 353, where Congress felt that the particular problems which I've discussed did not exist and we submit that this is a far smaller discrimination than this Court upheld in Mackenzie and Hare.

There this Court upheld a statute which suspended citizenship, took it away for a period of time which might be life because an American women married a foreigner while not taking away citizenship from American men who married foreign women.

I'd like also to point out that Section 352 a (1) has much less effect, the expatriation of people covered by 352 a (1) is far less severe than it would be on native born citizens.

This provision applies only the persons who returned to their former homelands and reside their for over three years.

They are likely to be either dual nationals or as in this case able to reacquire citizenship extremely easily.

I mean to say that there is a substantial question whether is not a dual national.

The main reason Germany describes her as stateless because she wants to be labeled as stateless and in our view under German Law she did not, probably did not lose her citizenship because either she nor her mother ever applied to the government or to a Court in Germany at the time that she acquired American citizenship, but even passing that, that isn't crucial to the case, passing that she can easily reacquire German citizenship, she is not in the situation of a person who is going to be stateless in the real sense.

She wants American citizenship.

It's a valuable right, I wouldn't deny it, but she is not in a situation of having no right as a citizen of any country.

Unknown Speaker: (Inaudible)

Mr. Bruce J. Terris: Yes Your Honor.

I know about how many become expatriated a year under this Section, the 1940 Act and the Bancroft Treaties which also take away citizenship on substantially the same basis and probably would be effected by an adverse decision to the government in this case.

It's approximately a 1000 citizens a year, under 352 a (1), about 900 to 1100 or 1200 a year.

Justice William J. Brennan: It's been that on the average since 1940 or --?

Mr. Bruce J. Terris: My figures don't go back quite to 1940 but that's --

Justice William J. Brennan: How long it been running about, 70 years?

Mr. Bruce J. Terris: I think the statistics for a decade show that it's about 1000 a year.

Justice Tom C. Clark: (Inaudible)

Mr. Bruce J. Terris: Yes, Your Honor.

Now, I would like to emphasize that this Court in Bolling and Sharpe implied that the due process clause of the Fifth Amendment does not contain all the content which the equal protection clause of the Fourteenth Amendment applies to the states, but even if it did it bars only unreasonable classifications and I think history establishes beyond any doubt that this classification has been considered reasonable and is still reasonable.

I now like to turn to the particular facts of this case because as I have indicated I think that what is involved here when reduced to its core is whether Congress had the power to provide for the appellant's expatriation in the view of section 406.

Appellant has made clear that she has no that she has the intention of remaining in Germany indefinitely.

Her husband has a law practice there, he apparently is going to stay, she naturally is going to stay with him and that she has no intent of ever residing in the United States except that she expects that she will make visits here as she has made in the past.

Therefore, her case falls within the Bancroft Treaties.

It falls within the situations which were governed by the discretion of the Secretary of State at the end of the 19th Century.

In other words, her situation falls within the narrow core of cases which raise most acutely the foreign affairs problems and the problems of transfer of allegiance.

Looking at the other side of the coin, looking at the effect of expatriation on her, assuming that that is relevant, appellant -- all that appellant looses here other than that she wants to have the good feeling that she is an American citizen, she wants American diplomatic protection, she wants to travel to United States without a visa, and at if some unforeseen adversity occurs she wants to be able to come here at will.

Justice William J. Brennan: (Inaudible)

Mr. Bruce J. Terris: Bancroft was the Minister to the North German Confederation.

Justice William J. Brennan: Where?

Mr. Bruce J. Terris: From the United States.

Justice William J. Brennan: How many nations were party to the --

Mr. Bruce J. Terris: There are now 21 nations, it is – varied some -- but there are still 21 now nations --

Justice William J. Brennan: Why that he has a distinction of giving these names here?

Mr. Bruce J. Terris: Because the first treaty was with the North German Confederation and I suppose he must have had something to do with it.

Justice William J. Brennan: How far back?

Mr. Bruce J. Terris: 1868.

Justice William J. Brennan: 1868?

Mr. Bruce J. Terris: 1868.

Justice William J. Brennan: Now wonder (Inaudible) [Laughter]

Mr. Bruce J. Terris: Therefore in the government's view what the appellant wants is that she wants the benefits of citizenship while remaining to practical purposes a foreigner and we don't think that Congress was constitutionally required to let her retain her citizenship in these circumstances considering the likelihood of foreign policy embarrassments.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Bruce J. Terris: Well we could impose, we could impose burdens on them Your Honor and we do.

The point that I am making is not that she is, obviously she hasn't failed to serve in the armed forced and I assume that she has paid whatever taxes she is supposed to pay whether there are any or not on the, on any income, but that --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Bruce J. Terris: I didn't suggest Your Honor that she has failed in any of her obligations to American -- to her American nationality.

All I have -- I don't consider her disloyal, I don't think the Congress considered her disloyal.

What I do say is that she left the country, she has put herself in a position where she can cause severe foreign policy problems that in these circumstances the possibility of the amount of time from her expatriation in relatively little and on the other hand the problems that she creates are the most severe of people in her general category.

I'd finally like to turn --

Chief Justice Earl Warren: Would she would be restored for citizenship by the Congress –

Mr. Bruce J. Terris: Yes Your Honor.

Chief Justice Earl Warren: -- by a special bill?

Mr. Bruce J. Terris: I see no reason why she could not be Your Honor.

I think Congress has –

Chief Justice Earl Warren: Make this by special bill.

Mr. Bruce J. Terris: Yeah, I don't – I see – I maybe wrong but I see no reason why that could not be accomplished.

I may say that despite appealing facts –-

Chief Justice Earl Warren: And is it within the power, the Congress to say we will declare all persons who live abroad for a certain time to be expatriated except those who might choose in our wisdom no standards of any kind to restore to citizenship, if that's what we want?

Mr. Bruce J. Terris: Your Honor, your suggestion would cut very, very deeply into all kinds areas.

It would make deportation statute all of them I suppose unconstitutional.

Chief Justice Earl Warren: This -- it goes pretty deep too, when you take a man's citizenship even --

Mr. Bruce J. Terris: Well, but I think the point of what I was trying to say was that, Congress I think has been recognized probably since the beginning as having the right as a matter of grace, it can confer benefits on isolated individuals.

Now I quite agree a serious problem would be raised if they then went out and did this carte blanche all kinds of people and then Mrs. Schneider wasn't included among them; that might raise an equal protection problem insofar as it applies to Congress.

That isn't the situation, occasionally --

Chief Justice Earl Warren: If you have a friend in Congress you can get a special bill this time through and nobody cares very much about it and they don't fight these kind of –

Mr. Bruce J. Terris: Your Honor if that –

Chief Justice Earl Warren: -- but a person with no friends or no money can't do that.

Mr. Bruce J. Terris: Your Honor, if there is something wrong with that, it is in the person who gets the private bill, that person has been, has gotten a benefit which is unfairly conferred upon him.

It does not -- certainly one benefit cannot mean that everybody else who doesn't get that benefit thereby has a right to be put in the same place.

I think that if there was, if – a contrary doctrine to what I've stated were applied to the law, it would be devastating in its effect.

It would mean one person who wasn't prosecuted for particular crime that means nobody else could be prosecuted.

They've gotten the benefits in the prosecutor and I don't think that that, that that proposition can stand in view of the way the equal protection clause has been interpreted.

Chief Justice Earl Warren: I thought you said that Congress didn't do this as a prosecutor if there was no penal –

Mr. Bruce J. Terris: Your Honor I only –

Chief Justice Earl Warren: -- behind this.

Mr. Bruce J. Terris: I brought up, perhaps shouldn't -- I brought up the prosecutor only that many, many times, in many, many different areas, government agencies exercise discretion to give benefits to particular people.

Now maybe they do that unfairly but that certainly can't mean that every other person has the right to be treated in the way that the most favorably treated person can, has been treated.

I think that such a proposition would undermine not just – the law, criminal law but deportation law, and all kinds of other situations, administrative law, all kinds of situations.

Now the -- in the last couple of minutes that I have I would like to turn to the appellant's argument that Section 352, after saying that 352 was too narrow because it doesn't apply to native born citizens, defendant also argues that its too broad because Congress could have met this problem by passing a more limited statute.

However, we think the short answer to this is Mcculloch and Maryland.

This Court held in its repeated determination numerous times that it's up to the Congress and not up to the courts to determine which among the rationale alternatives should be adopted.

And this principle was specifically applied to area of expatriation in Perez against Brownell.

Indeed the government thinks that it is particularly applicable in the field of foreign relations, since this Court recognized less than two weeks ago in the Sabatino case that foreign relations are peculiarly committed to the discretions of the political branches of the government.

Now, the history as I've indicated before of Section 352 –

Chief Justice Earl Warren: Basically is it foreign relations to take American citizenship (Inaudible)

Mr. Bruce J. Terris: Yes Your Honor, when the purpose of Congress is to deal with the serious question in American foreign relations, I think it is.

The means may have to do with something in the United States but the purpose and the field being regulated is foreign relations.

I think that -- I think the Perez and Brownell stands for this proposition, I think MacKenzie and Hare does in terms.

As I've indicated diplomatic protections has been tried, has been found wanting.

Ad Hoc executive discretion has been tried, it has been found wanting.

Therefore Congress finally after years and years of experience by the Department of State turned to the method which is now in the 1952 Act, we think that this was a perfect rationale decision, first because a clear rule is necessary to dissuade other countries from interfering with American citizens.

As a result, American citizens are better protected and foreign conflict is reduced.

In addition we think it's -- from the point of view of the individual citizen it's important that he have a clear standard of what acts will expatriate him.

If ad hoc executive discretion were used, as the appellant contends, I think the appellant would have a far better constitutional argument than she actually has because she would say then that she couldn't tell what would expatriate her, this way she was on notice, as the appellant's counsel says she knew before she expatriated herself what would be the effect of her continued residence in Germany, she deliberately stayed in Germany and took the consequences.

And then there is the --

Chief Justice Earl Warren: You mean that when she was married she deliberately made that choice?

Mr. Bruce J. Terris: Your Honor, it's of course a perfectly natural thing that she would stay with her husband, but it still was a voluntary choice, that's right.

Chief Justice Earl Warren: How do you know what her purpose was when she was married as to whether they -- whether she or either of them would live – continue to live in Germany?

Mr. Bruce J. Terris: Your Honor, all I can take is the record, she says she is going to -- she makes quite clear she is going to stay in Germany.

Chief Justice Earl Warren: Because she is going to stay with her husband, that's the only reason, isn't it?

Mr. Bruce J. Terris: That's quite right Your Honor, but the point is that she is going to continue to reside abroad and that is the point that -- that is the very thing that embroils United States in foreign difficulties.

Chief Justice Earl Warren: Mr. Freeman, would you mind at the outset telling me what relevance this Section 353 that you quote in your brief has to this case?

Rebuttal of Milton V. Freeman

Mr. Milton V. Freeman: Yes Your Honor, it establishes the discrimination between born and naturalized citizens, by showing that there are a series of exemptions which are in the nature of rewards for naturalized citizens and if they come within them by good conduct of some kind such as serving in our armed forces or pursing some activity of which the Secretary of State approves in his discretion, then they will obtain from the Government of the United States the right to be just as good as a naturalized citizen and if they don't do that then they are not just as good as a naturalized citizen and they don't get the right to stay either in the country of their origin or in any foreign country.

Justice William J. Brennan: Naturalized and native born.

Mr. Milton V. Freeman: Native born citizens, that they get the rights and these are in the nature of rewards for naturalized citizens which if you meet these exemptions you are then equated with a born citizen in your rights to reside abroad.

Chief Justice Earl Warren: Well what I want to know is this, does this Section of 354 have any direct bearing on this case, that portion of the sub division one which says engaging in such work or activities under such unique or unusual circumstances as maybe determined by the Secretary of State to be directly and substantially beneficial to the interest of the United States.

Mr. Milton V. Freeman: That provision as Mr. Terris said, applies to people who reside not in the country of their origin and it says they -- if the Secretary of State says I approve of what you are doing then you may reside more than five years in Libya or wherever else if you didn't come from Libya and it says you then have the right, let's say if you are a petroleum engineer, you have the same right to live in Libya for ten years and to make a contract that a born American citizen has without the permission of the Secretary of State, there are no discretionary provisions as to the right to live in the country where you originally came.

Chief Justice Earl Warren: Three years?

Mr. Milton V. Freeman: But as to those there are exemptions which say that if you are working for the Government of the United States and we won't take your citizenship away and so on, if you reside in that country or if you are working for an American firm but you may not take an offer from a foreign firm if you are living there.

So that is now -- in that connection I would like to put the relationship of these two statues, Mr. Terris has of course tried to limit the issue to only the statute that is applicable to Mrs. Schneider.

These statutes have been together from the beginning.

The fact that they had been together is we are dealing with people who are residing not only in the country of their origin, but in other countries, shows that Congress was not concerned with the nature of foreign affairs problem, but I think I quote Mr. Terris correctly if I say that solicitors of this country, they are concerned with the problem of retransfer of allegiance.

In other words, this is a kind of rough attempt by the Congress to find out if American citizens are loyal by lumping them in groups.

They lump naturalized citizens why they are loyal you don't have to check on them and born citizens you don't have to check on them, they are loyal of course.

A naturalized citizen is suspect.

If he lives abroad for five years in another country then the one he came from, why then he is suspect, if he goes back to the country where the came from originally no matter how much later, why he is suspect in a shorter period of time, this is a question of allegiance.

Now I think Congress has the right to deal with people who have compromised their allegiance in some way by some act, but they don't have the right to do it on the basis of grouping all of these people as naturalized citizens and saying everybody in that category is in the same --

Justice Tom C. Clark: (Inaudible)

Mr. Milton V. Freeman: No I do not unless it's conditioned on something relating to loyalty that can be applied to born and naturalized citizen alike.

I think that's the teaching of the rulings of this Court that say that when a naturalized citizen becomes a citizen he is taken up in the body politics with all the rights of the born citizens and I think --

Unknown Speaker: (Inaudible)

Mr. Milton V. Freeman: That's the only distinction which is permissible, the one that the constitution makes.

Justice Tom C. Clark: I thought the constitution says makes that Congress has tried to make the rule --

Mr. Milton V. Freeman: Well, what our brief shows, our reply brief show that, that means that you can make conditions only before he becomes a citizen and not after --

Justice Tom C. Clark: I meant before.

Mr. Milton V. Freeman: But the condition should not apply to his conduct after he becomes a citizen, that is once he is naturalized in good faith, assuming there is good faith naturalization of course, then he is the same as a born citizen, that's what the Constitution means, that's what the history of the debates that we have discussed in our brief and in our brief we think it establishes clearly that the Chief Justice Marshall was correct and the other decisions of this Court were also correct.

Justice Tom C. Clark: (Inaudible)

Mr. Milton V. Freeman: No indeed I don't think you can have two classes of citizenship, we argued that, the government had raised --

Justice Tom C. Clark: In fact I just thought (Inaudible)

Mr. Milton V. Freeman: Yes sir.

That is extensively brief Your Honor and we believe that there is no right to condition citizenship and require one class of citizens is something that you do not require of another class of citizens.

That's I think the most basic point we make.

Now there are a few little things I would like to pick up as I've noted.

Now Mr. Terris stated with respect to -- and he pays great attention to the 1906 citizenship board and he says the 1907 statute was a result of the board's recommendation.

Now what he omits to state was the board in that case recommended that as far as people living abroad were concerned that you had to deal with born and naturalized citizens on the same basis.

I think there's an interesting and more detailed history, more detailed than in any brief that is filed in the Cornell Law Quarterly we have cited in our reply brief but I like specifically to note it, 49 Cornell Law Quarterly Page 52, it's a 1963 decision.

Now as far as the Bankcroft treaties which were mentioned, I think one thing that's consequential, we've mentioned that in our reply brief on page ten, the Bancroft don't deal with taking away citizenship at all.

They deal with diplomatic protection.

It's so stated, there is a decision of the Immigration Naturalization Board, the State Department itself urges it before the International Court of Justice that it had nothing to do with taking away citizenship that people could always come back, it's like the 1907 Statute, it's a question of diplomatic protection.

Justice Byron R. White: Are those (Inaudible)

Mr. Milton V. Freeman: They cited in our brief on page 10 of our reply where yes they discussed the main reason on page 10 of our reply brief is the evidence to the effect --

Justice Byron R. White: (Inaudible)

Mr. Milton V. Freeman: Well, we say in footnote seven on page ten that the State Department took the position as recently as 1958 that's what they meant in a proceeding before an Italian United States conciliation commission.

Justice Byron R. White: (Inaudible)

Mr. Milton V. Freeman: Well, I don't know Your Honor, I haven't checked that recently.

Justice Byron R. White: Well do you know what they say?

Mr. Milton V. Freeman: Not at he moment, Your Honor.

Now as far as the subject of the relevancy of the aliens voting in the United States is being sufficiently involved in our citizenship to be able to vote, the rules that we are applicable which were mentioned in the Perez case said that United States citizens who -- I mean aliens who are residing in the united States, who had filed an intention to become citizens of the United States could vote.

Now Mr. Schneider has not filed any intention to become a citizen of Germany and has no evidence as they were.

In other words we accepted these foreign persons as entitled to be involved in our political life and to vote before 1928 because they had committed themselves to become United States citizens and so declared their intention.

Now as far as Mrs. Schneider status of course she is stateless the government moved the judgment on the pleadings on a complaint was said she was stateless, the Court of Law said she was stateless, I have the greatest respect Mr. Terris' expertise in German Law, but no point was made of that below and it's just wrong, our experts on German Law say something different, the case is here on a clear pleading, Mrs. Schneider is stateless she has been treated as stateless by the German government.

I recited to Your Honors the difficulty she has had in even obtaining a piece of paper --

Justice Byron R. White: (Inaudible)

Mr. Milton V. Freeman: No I don't believe so, but it would be -- it's an attempt as there are a great many attempts to indicate that maybe there is something wrong with Mrs. Schneider's individual loyalty, although there -- it's accompanied with repeated statements that nothing reprehensible involved and there is nothing involved which indicates here disloyalty, but we arguing about retransferring of allegiance and we say that can be done only by individuals non-discriminatory determinations.

Thank you.

Featured:

Costello v. Immigration Service - Oral Argument

Wed, 16 Jan 2013 22:49:10 +0000

Case:

Costello v. Immigration Service

Media File:

83_19631212-argument

Related Transcript:

83_19631212-argument

Transcript:

Argument of Edward Bennett Williams

Chief Justice Earl Warren: Number 83, Frank Costello, Petitioner, versus Immigration and Naturalization Service.

Mr. Williams.

Mr. Edward Bennett Williams: Mr. Chief Justice, may it please the Court.

I think that I can perhaps best help the Court at the outset if I review in a cursory way, the factual backdrop against which the legal issue in this case is framed.

The petitioner was born 73 years ago in Cosenza, Italy.

He was brought to the United States by his parents in 1895 at the age of four.

50 years ago, he married his present wife who is a native-born American citizen.

In the year 1925, he became naturalized, and 36 years later, by order, a final order of denaturalization, he became stateless.

Deportation proceedings were instituted against him almost forthwith --

Justice Potter Stewart: What was his status before (Inaudible) in Italy --

Mr. Edward Bennett Williams: Because he had forsworn Your Honor, allegiance to Victoria Emmanuel and as far as Italy was concerned and he is concerned, it does not recognize him as an Italian citizen.

Deportation proceedings were instituted against him almost forthwith and after hearing an order was entered by the hearing examiner, an order of deportation.

This was affirmed by the Board of Immigration and Naturalization Appeals and a petition to the United States Court of Appeals for the Second Circuit was dismissed in December of last year.

The case is here, of course on writ of certiorari.

Now the basis of deportation which was first ordered and subsequently sustained by the lower court is found in Section 241 (a) of the Immigration and Nationality Act of 1952, where it is provided that an alien is deportable who was convicted of two crimes involving moral turpitude after entry.

Fact of the matter is the as the record shows in the year 1954, the petitioner was convicted in a case in the southern district of New York of two counts of income tax evasion, for the years 1948 and 1949.

It was a dual conviction in one case because there were multiple counts in the indictment.

Now the theory of the government's case, in the income tax evasion case as shown in this record was the Net Worth Expenditure Theory and I underscore this at this point because it becomes germane to our position as it's developed.

The legal issue in this case –

Justice Arthur J. Goldberg: Why was it germane (Inaudible)

Mr. Edward Bennett Williams: It becomes germane, if the Court please, because of prejudice that inured to the petitioner as the result of the government's instruction and the lower court's instruction of 241 (a) (4), which I shall show you in just a moment.

Now the legal issue here I think is needle-sharp.

It is our contention that an alien under the statute is not deportable for a conviction or convictions during the time when he enjoyed the status of citizenship.

It is our position that there must be chronological coincidence between alienage and conviction under the language of the statute.

The service controverts this, says this is insult, but in any event even if he be right in construing the statute, even if the statute lends itself to misconstruction, they say nonetheless by virtue of skill, another section of the same statute, namely 348, that in any event, a denaturalization decree is retroactive in effect to the date of naturalization and citizenship becomes void ab initio, and therefore, there was concurrence chronologically of the status of alienage and conviction.

We can say this and argue to the Court as we show that no court finally passing on this question has ever held that the denaturalization is retroactive or retrospective in application for deportation purposes.

And we say further that if the government's construction of the statute is the correct, then there is a violation of the petitioner's rights constitutional under the Fifth Amendment requiring that he not be deprived of his liberty without due process of law.

Now I shall like in normal sequence to discuss first of all, the language of the statute per se, the language of the statute with which we're concerned which is Section 241 (a) (4).

Now that statute provides in 241 (a) for deportation for some 18 categories of aliens, they are listed seriatim in paragraphs 1 through 18.

In paragraph 4, the specific language is that an alien is deportable anytime after entry is convicted of two crimes.

Now it's our contention that that language requires that the convictions take place during the status of alienage.

The Congress used the present copulative and where that is used there must be a concurrence time wise between the subject and the predicate, and the Congress recognized this because in every instance that is pertinent here, in every other paragraph 1 through 18 where the Congress set out to make a category of aliens deportable, it used both the present and the perfect tense, saying an alien who is or at any time has been since entry.

For example, in paragraph six, the Congress says, an alien who is or at any time has been after entry, member of the following classes and then it lists a long category of subversive failures.

And then in paragraph seven, it says, an alien is deportable who is engaged or at any time after entry has engaged and then it lists various types of subversive activity.

In Paragraph 11 it says, is or at any time after entry has been a narcotic addict.

In paragraph 12 it says, is or at any time after entry has been the manager of a place of prostitution.

Paragraph 14 is, or shall have been convicted of possessing a sawed-off shotgun.

15 and 16 is or shall have been convicted of the Alien Registration Act and finally, in 18, has been convicted of that section of the statute which outlaws the importation of aliens illegally.

Now if that were not conclusive as to the meaning of the Congress, I think Section 241 (b) closes the issue because 241 (b) is made pertinent only to paragraph 4 of 241 (a), which happens to be the very paragraph with which we're concerned in this case and 241 (b) which is an indispensable part of the statutory scheme provides that an alien who is convicted may ask the sentencing court to recommend against deportation, and if the sentencing court does recommend against deportation, he shall not be deported.

This is the only, 241 (a) (4) is the only paragraph to which 241 (b) is relevant, showing that the Congress intended that the convicted person be de facto alien at the time of his conviction, otherwise of course, this relief would be meaningless to the convicted defendant.

Now of course, at the time the petitioner was convicted in 1954 this relief was not available to him because at that time, he had the status, de facto of citizenship.

Now fortunately we have had a court that has fairly passed upon this issue because it has been framed precisely heretofore for the Ninth Circuit in the case of Gubbels against Hoy.

Now in Gubbels against Hoy, if the Court please, there was an alien.

Gubbels was a member of the armed forces. Gubbels was convicted of two felonies by a military tribunal, court-martial.

Thereafter deportation proceedings were instituted against him and he was ordered deported.

He sought the review.

The case went to the Ninth Circuit and he claimed that he was not deportable for convictions before a military tribunal because the relief proffered to convicted aliens by 241 (b) was not available to him because he couldn't get that kind of relief from an ad hoc tribunal.

The government at that time did not quarrel with Gubbels position that 241 (b) was an indispensable, integral part of the congressional scheme for deportation.

Rather it said, Gubbels should have asked, should have asked the military tribunal to grant him this relief and he failed to do so.

When the Ninth Circuit came to grips with this problem in 1958, reported in 261 Fed 2nd at 952, just to say, this language appears at Page 2, the 21 of our brief.

It seems plain that the qualifying provisions of subsection b are in an important part of a legislative scheme expressed in subsection (a) (4).

While that section makes the conviction they are referred to ground for deportation, it is qualified in an important manner by the provision of subsection (b) (2), that if the court sentencing the alien makes the recommendation mentioned, then the provisions of subsection (a) (4) do not apply.

This extends to the alien, an important right of privilege.

No doubt in most cases, counsel for a convicted alien would by motion, call this provision to the attention of the court where the judgment was imposed.

It also seems plain that if a military court is so constituted or its procedures are such as to make this privilege extended by subsection (b) (2) not readily available to a convicted alien, then it would be a fair conclusion that convictions in a military court were not contemplated by subsection (a) (4).

The requisite changes being made of course.

The language could well say that if the provisions of subsection (b) (2) were not readily available to a convicted alien, by virtue of the fact that he was not a de facto alien at the time that he was convicted and could not avail himself of this procedure then of course, it must be contemplated that Congress did not intend 241 (a) (4) to apply to any other then de facto aliens convicted after entry.

Now if the Court please, in its brief--

Justice Potter Stewart: Do you think 241 (b) (2) means when it talks about such crimes, you mean the first one or the second one?

Your case, you -- Mr. Costello has been deported because he was convicted of two crimes?

Mr. Edward Bennett Williams: Yes sir.

Justice Potter Stewart: If (Inaudible) convicted of one crime within five years?

Mr. Edward Bennett Williams: That isn't an issue.

Justice Potter Stewart: And that's not an issue, this is two crimes?

Mr. Edward Bennett Williams: Two crimes.

Justice Potter Stewart: Then in that kind of a case.

What's such crime mean and be, first crime or the second crime?

Mr. Edward Bennett Williams: I think it's the crime which makes him deportable because obviously he wouldn't ask for the recommendation in the first crime because he wouldn't be deportable for the first crime, but the second --

Justice Potter Stewart: But as for the -- .

Mr. Edward Bennett Williams: Sorry?

Justice Potter Stewart: You go ahead.

Mr. Edward Bennett Williams: But in the second crime, when it appeared to him from the statute as an alien that he would be deportable, he would ask the court to recommend of course, against deportation, and if the court would pass upon it, it would only be in the frame of reference of the second.

Justice Potter Stewart: Of the second, second.

Mr. Edward Bennett Williams: Yes.

Now --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Edward Bennett Williams: Yes.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Edward Bennett Williams: We don't argue Your Honor that he should profit from his own fraud.

We don't argue, Your Honor that he should profit from a fraud, but we do argue that no penalty may be constitutionally imposed upon him for a fraud, the penalty of banishment or exile without notice and it is our contention that the construction that the government contends for brings about that precise result for these reasons.

The government, if the Court please, as I read its brief, does not argue that our construction is a possible and a reasonable construction.

I don't want to put words into the solicitor's brief that aren't there, but I think this a fair reading of what he says.

He says at Page 9, “We do not contend that the question can be answered merely by a parsing of the words of the statute or by bare assertions that one reading or another is self-evident and the statute permits no other.

The process of interpretation does not stop with the words of the statute read in isolation.”

What is wrong with petitioner's interpretation is not so much that the words cannot be made to perform the service the petitioner demands of.

Now this Court in the case of Fong Haw Tan against Phelan decided in 1948 had much the same kind of problem before it.

In that case, Fong Haw Tan had committed two murders. He was tried in the same case with two murders on two counts and he was convicted and he was given two terms of life imprisonment and then deportation proceedings were instituted against him on the ground that he was an alien who fell within Section 19 (a) of the Immigration and Naturalization Act of 1970, the forerunner of the one with which we are concerned, which provided at that time that an alien who was imprisoned for more than a year more than -- who was sentenced to imprisonment for more than a year, more than once shall be deportable.

Fong Haw Tan said, “I wasn't sentenced more than once.

I was only sentenced once because I went before the court once and he told me I had to serve two life terms.”

And the service said, “Ridiculous! Of course, he got two sentences for two murders.

He got two sentences of life imprisonment and therefore, you are deportable.”

The Court in resolving the statute in favor of the alien said this, “We give expression to that view by reading this provision of the statute to authorize deportation only where an alien having committed a crime involving moral turpitude and having been convicted and sentenced, once again, commits the crime of that nature and is convicted and sentenced for it.

We resolve the doubts in favor of that construction because deportation is a drastic measure and at times equivalent of banishment or exile, citing Delgadillo against Carmichael.

It is the forfeiture for misconduct of a residence in this country.

Such a forfeiture is a penalty.

To construe this statutory provision less generously to the alien might find support in logic, but since the states are considerable for the individual, we will not assume that Congress meant to trench on his freedom beyond that which is required by the narrowest of several possible meanings of the words used.”

Court said precisely the same thing in Delgadillo which is referred to there in Brown against Wixon and in Ng Fung Ho against White, Mr. Justice Brandeis speaking for the Court called deportation, “The loss of both property and life of all that makes life worth living.

Against the danger of such deprivation, the Fifth Amendment affords in its guarantee of due process of law.”

Now it's our contention, if the Court please that the construction which the service puts upon the statute vis-à-vis this petitioner would deprive him of his constitutional rights under the Fifth Amendment that section which safeguards his right to liberty and says “You shall not be deprived of it without due process of law.”

Certainly, it's of the very matrix of due process of law that one be apprised of the consequences, the penal consequences of his conduct.

This I think is an indispensable part of the basic proposition relating to due process of law.

Now the government, I contend doesn't say that our construction of the statute is not a reasonable one and since it doesn't say that ours is not a reasonable one then I think the statute must be held up against the principle, engaged against the principle, void for vagueness.

This court in Jordan against De George applied the void for vagueness principle to the deportation statute in 1951 and said that it was applicable to deportation cases.

Again, last year in Rosenberg against Fleuti, once again, this court, in its grant of certiorari was going to test the statue there involved against the void for vagueness problem.

Ultimately, it decided the case on a different ground avoiding the constitutional question on well-established principles, but in this case, the construction that the service argues for would deprive the petitioner of very basic rights because he was prejudiced as a result of the ambiguity of the statute.

Had the petitioner been an alien at the time he was convicted, had he known that he was an alien that the statue made him an alien then he had several courses open to him to avoid the horrible consequence of exile.

Number 1, he could have offered to plead guilty to one count of an indictment.

We all know, I don't think it's inappropriate to say that this Court might judicially notice that cases across the length and breadth of this nation are settled in the federal courts everyday by pleas of guilty to one felony count with nolle prosequi of the other counts in the indictment.

If he had known that he faced banishment or exile, he could have pled guilty to one count and avoided the consequences of a dual conviction, or if the government had been obdurate and said, “No, we insist upon multiple count pleas in your case”, then he had another course upon to him and here's where, Mr. Justice Goldberg, the question that you pose becomes germane.

This was a net worth expenditure case.

In a net worth expenditure case, as the Court well know as the government doesn't attempt to show precisely how much income was made each year because it usually is unable to show that. Rather it shows that its expenditure has exceeded its reported income over period of years and it seeks conviction on that theory.

The defendant, had he realized and recognized that banishment or exile faced him for duality of conviction, might well have waived his rights under the Fifth Amendment, taken a witness stand and conceded that all of the unreported income contended for by the government had been earned in one year and that the expenditures had been made in subsequent years and thereby obviated the possibility of a dual conviction and ensured his conviction for one count or if the Court please, he might, had he been an alien, availed himself of the provisions of 241 (b), when he was found guilty of two counts and asked the sentencing judge as an alien to eliminate the possibility of exile for him.

The judge, in the case, as the record shows, imposed concurrent sentences, and so far as imprisonment was concerned and it might well have been that he would have regarded exile or banishment as a cruel punishment and an unusual punishment in this particular case, but this opportunity was not available to the defendant.

It was not available to the defendant in the tax case, not available to the petitioner and therefore, he was prejudiced.

Prejudiced, I say, constitutionally because he had not been apprised to the fact by the language of the statute that this penal consequence flowed from his conduct.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Edward Bennett Williams: I think you'll find them, Mr. Justice Goldberg, in pages 32 and 33 where we discussed Jordan v. De George and some of the cases that I have just talked about.

Now, the pertinent case law does not support the service's position.

They place great emphasis on the case of Eichenlaub against Shaughnessy and say that, that decision by this Court is authority for the construction which they put upon the statute.

The facts in the Eichenlaub case were simple.

Eichenlaub was born in Germany in 1905.

He came to the United States in 1930.

In 1936, he was naturalized and in 1937 he returned to Germany, to the fatherland and then made a re-entry the same year.

In 1941 he was convicted of violation of the Foreign Agents Registration Act.

Thereafter, he was denaturalized and deportation proceedings were instituted against him.

It's very significant I suggest to the Court that the service did not attempt to use the general deportation statute to deport him.

It never asserted that as a basis for deportation the statute with which we are concerned although that statute said then as it does now that an alien is deportable if he commits a crime within five years after entry.

His crime was committed and was convicted for within four years after entry because he came in, in 1937, was convicted in 1941 nonetheless it didn't urge this as a basis for deportation because I suggested it recognized that the language of that statute was couched in the present tense and required concurrence of alienage de facto with conviction.

Rather it went to a specific statute, a statute passed in 1920 with specific language, which was aimed at aliens, German aliens who had violated wartime security of statute during World War I.

Now, what did that statute say?

The statute in the Eichenlaub case said an alien is deportable, if after hearing he is found to be an undesirable citizen by the Secretary of Labor who was then empowered to make these decisions to which, aliens who have been or may hereafter be convicted.

And the Supreme Court speaking of that language said the statutory language which says that aliens who since August 1, 1914 and then it Italicizes have been or may hereafter be convicted, referred to the requirement of the deportations be applicable to all persons who had been convicted of certain enumerated offenses since about the beginning of World War I whether these convictions were had before or after May 10, 1920.

These crimes listed were not crimes in which the conviction is dependant upon the citizenship or lack a citizenship of their perpetuators.

The Court divided four to three in that case.

Now, with the statute of course which used the perfect tense talking about aliens who have been, it didn't use the present tense as the statute with which we're concerned did, yet the Court was troubled to the extent of a division of four to three.

Now more recently we have a case fortunately which I suggest to the Court is on all force with the case at bar, the case of Mangaoang against Boyd, a case that came out of the Ninth Circuit in which certiorari was denied.

In the Mangaoang case, Mangaoang was born in the Philippine Islands.

He came to the United States in 1926.

In 1934, the Philippine Independence Act was passed.

The Philippine Independence Act granted independence to the Islands in 1946, but made all Philippine nationals living in the United States aliens for the purposes of the immigration, naturalization, expulsion and exclusion laws.

In 1938-1939 Mangaoang was a member of the Communist Party.

Thereafter, deportation proceedings were instituted against him under the Internal Security Sct of 1950 on the ground that Mangaoang is an alien who was a member of the Communist Party.

Now the statutory language of the deportation section relevant there was as follows.

“Aliens who, at any time, shall be or shall have been members of any of the following classes and it lists the classes seriatim (C), Aliens who are members of the Communist Party of the United States.

Now, in Mangaoang, the Court distinguishes this case from the Eichenlaub case.

It says, we do not think that the Eichenlaub case controls here for the reason that the statutory language there construed read quite differently than does the present act.

In that case, the class of persons was described as all aliens who since August 1, 1914 have been or may hereafter be convicted of any violation or conspiracy.

We think the language here under consideration, namely aliens who are members of the Communist Party, was intended to refer to persons who are the same time both aliens and members of the Communist Party.

We think it was not sufficient to prove that the appellant was an alien at the time of his arrest and that he was a member of the communist party at some prior date on which he was not shown to have been an alien.

So the Court in the Mangaoang case, number one, said that where the language is in presenting, there must be a chronological concurrence, so the alienage and the status which makes them deportable, says number two that ambiguities in language of deportation statutes must under well established principles be decided favorably to the alien and it says number three that it will not accept the relation back theory for purposes of deportation because there of course there was a contention that alienage is related back to 1934 by virtue of the statutory language which says that Philippine nationals living in the United States shall be regarded as aliens for purposes of the expulsion laws from the year 1934.

Now, if the Court please, the Ninth Circuit immediately after the Mangaoang case had had still another case before it, Resurreccion-Talavera against Barber.

In that case, there was an entry in 1934 by a Philippine.

He was convicted in 1942.

He made a trip to Mexico in 1952 and when he came back, the service sought to deport him on the ground that he was excludable at the time of his entry because he was an alien who was convicted prior to entry of a crime involving moral turpitude, and this is what the Court said, talking again about the tense of the statute.

The fact that Talavera was a national of the United States, not an alien at the time of his conviction of the crime involving moral turpitude is irrelevant.

The case of Mangaoang v. Boyd relied upon by appellant is indistinguishable.

Mangaoang was ordered deported under the provisions of The Internal Security Act of 1950 which authorized deportation of aliens who are members of the Communist Party.

This Court held that the statute in that case required that the deportee be simultaneously an alien and a member.

The statute under which Talavera was ordered deportee does not include a requirement that the deportee be an alien at the time of his conviction.

Now what does the government say to this, to the construction of the statute which we say is the reasonable and logical construction of the statute from the whole statutory scheme and from the very language of the statute itself which is couched in the present tense.

It says well, Well even if you are right, even if you are right the language of the statute can be construed this way you still lose because Section 340 (a) of the Immigration and Nationality Act of 1952 says that if you're denaturalized, the denaturalization decree relates back to the date of naturalization and your citizenship is void ab initio and therefore there was says the service a chronological co-incidence or concurrence of alienage with conviction.

To that, we say this.

No court finally passing on this question has ever related denaturalization back for purposes of deportation.

This Court was invited to do just that in the Eichenlaub case and refrained from doing it.

In Mangaoang against Boyd, the Ninth Circuit expressly refused to relate back denaturalization for deportation.

Fortunately, there is a case again on all force with the case at bar, the case of Brancato against Lehmann, which was decided in the Sixth Circuit in 1956.

In that case, Brancato came to the United States in the year 1914.

He was naturalized in 1929 and then he went back to Italy.

He reentered in 1930.

He was convicted of perjury in 1932.

In 1937, he was denaturalized and thereafter deportation proceedings were instituted against him on the ground that he was an alien who was convicted of a crime within five years after entry, the service taking the 1930 entry as being the entry relevant to the deportation case.

Now the service argued that alienage related back so that when he was denaturalized in 1937, it related back in 1929 when he was naturalized, but he was never a citizen, that his citizenship was void ab initio, so he went back to the fatherland he was an alien.

When he came back he was just another alien seeking entry and when he was convicted two years later he was an alien who had been convicted two years after his return to the country.

What does the Court say to this?

The government's contention would require that we give the statute a relation back construction.

We have no difficulty in giving a retroactive effect to the denaturalization order in view of the authority supporting such a ruling, but the government has cited no case from the Supreme Court or the United States Courts of Appeal which has gone the additional step and given such relation back constructions to the deportation statute.

It was urged upon the Supreme Court in United States ex rel. Eichenlaub v. Shaughnessy where the Court found that a ruling on the question was unnecessary for disposition of the case.

We think that the Court's later rulings, the supreme court's later ruling in Barber v. Gonsalves, 347 U.S 637, indicates disapproval of a relation back construction.

The ruling, ordering deportation in United States ex rel. Eichenlaub v. Shaughnessy, was based upon the statute of May 10, 1920 which was a special statute dealing with sabotage and espionage during the First World War and applicable to some 1650 aliens then in custody.

We do not believe that the construction given to the different wording of that statute is applicable to the general deportation statute with which we're now concerned.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Edward Bennett Williams: I was saying he wouldn't be here today for a different reason.

He wouldn't be here today because I think he –

Justice Arthur J. Goldberg: (Inaudible)

Mr. Edward Bennett Williams: I think he wouldn't be here today, to tell you possibly he wouldn't be here today because the question wouldn't have arisen because number one, he could have taken steps to avoid his deportability in 1954 before the sentencing court.

If he had been apprised of the statue -- if he had been apprised of the fact by the statute then he was going to be made deportable.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Edward Bennett Williams: If he'd been convicted two times and –

Justice Arthur J. Goldberg: Or not given him relief --

Mr. Edward Bennett Williams: -- not given him relief.

Justice Arthur J. Goldberg: He would be deported?

Mr. Edward Bennett Williams: Well, there would be still – there would still be the question with respect to – oh! If he had never been naturalized at all, you say?

Justice Arthur J. Goldberg: Yes.

Mr. Edward Bennett Williams: Alright.

Justice Arthur J. Goldberg: (Inaudible) nevertheless he could still, if (Inaudible)

Mr. Edward Bennett Williams: Yes sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Edward Bennett Williams: Yes sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Edward Bennett Williams: Your Honor, my position as I can show you does not different really from the government's position with respect of the very questions which you're posing and I want to show you what their position is.

If you'll just turn to the Solicitor's brief at page 38, there the service speaking through the Solicitor General says this.

“We do not argue, we wish to emphasize, that an alien who naturalization has been revoked under 340 (a) is in exactly the same position for all purposes as one that would never been naturalized.

The relation back provision obviously cannot be so mechanically applied without regard to its purposes or the consequence is produced.

It will be plainly absurd, for example, to charge a person who traveled on an American passport while he held the Certificate of Naturalization with having re-entered the country without the proper documents to avoid an entry fees as an alien because his naturalization was later revoked, citing a case.

A closure question is whether a person who travels abroad and returns while holding a naturalization certificate, should, because of his later denaturalization begin to have made an entry at that time for purposes of establishing deportability on the basis of a conviction for a single crime committed within five years of entry on the basis of pre-entry conduct.

Then just going down two sentences, we come to the heart of the matter, to the middle of the page.

That being so, there is plainly an element of unfairness, says the government, in holding that a person who traveled abroad in reliance upon an outstanding Naturalization Certificate and that thought could be without consequence, in fact, made a new entry which placed in greater jeopardy his right to remain in the country.

Since an alien not holding a naturalization certificate might well have refrained from leaving the country rather than risk of consequences of a new entry, such an application to the relation-back principle would not merely prevent the alien from benefiting from his fraud.

It would in his sense make him worse off than he would have been had he never be naturalized for these reasons.

The decision came Brancato against Lehmann, called the attention of the Court, saw which petitioners still heavily relies on, holding that coming into the country by a naturalized citizen is not made an entry, while it's denaturalization seems to worth entirely reasonable one.

So I say, if the Court please, just changing the language of the government's position to fit this chase, if we started here and we said at the bottom of Page 39 since a alien not holding a Naturalization Certificate might well have plead guilty to one count in a felony indictment charging him with multiple counts of income tax evasion, rather than risk the consequences of exile, such an application of the relation-back principle would not merely prevent the alien from benefiting from this fraud, it would in a sense make him worse off by reason of this fraud.

Or since the petitioner might well have taken the witness stand and waved his Fifth Amendment Rights and conceded that unreported income was garnered in one year rather than risk exile or banishment, certainly he is worse off under the construction advanced by the Solicitor then he would be had he been an alien.

And the same argument of course, Mr. Justice Goldberg can be made with respect to 241 (b).

Since he has been an alien at least he would have been apprised to the fact that he could have asked the Court to recommend against deportation and undoubtedly he would have done that, he is worse off by the fact that he was naturalized and we don't say for one moment for this Court that he should profit or benefit by reason of his adjudicated fraud, we take the position of the Solicitor that he shouldn't be worse off to this extent, we say that a penalty of banishment or exile should not be imposed upon him and for this fraud without notice because it violates the basic tenets of the Fifth Amendment as the Deprivation of Liberty without due process of law.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Edward Bennett Williams: The statute seems to me quite clear Your Honor that either the application must be made within 30 days by an alien.

Unknown Speaker: (Inaudible)r

Mr. Edward Bennett Williams: I am quite sure as it a District Court Judge would say, I have no jurisdiction in obtainment application because the statute (Inaudible) that may obtained only an application made within 30 days after conviction by an alien.

Now through your alien now, Mr. Defendant coming here, but you're too late.

30 days is long since gone, and this has been held by the Second Circuit and I will furnish the Court with the name of the case after the recess.

Unknown Speaker: (Inaudible)

Mr. Edward Bennett Williams: Yes sir so that this relief was not opened to him.

So it seems to me to be -- I don't use or want to use the overstatement but it seems absurd to say, that the service can carve out of this statute, a meaning which says, that if the petitioner happened to have gone Italy, if this petitioner had gone to Italy, and come back in 1952 and then convicted in 1954, the service would say well, it would be unreasonable and unfair to deport him for that conviction because he might not have left the country if he known that that was (Inaudible) face, that's what they carve on the statute, and to say that the statute lends itself to the construction which they urging recently this petitioner, because exactly the same philosophical, legal and logical principles of day, if this petitioner had been apprised to the fact that he was being regarded as an alien in 1954, he had these myriad of courses open to him which he could have taken, which would have obligated banishment or exile to him in his present situation of statements.

For these reasons I respectfully urge the Court to reverse the holding the lower court and to strike down the order of deportation.

Justice Byron R. White: Mr. Williams, is it evident at all why congress passed this relation-back amendment?

Mr. Edward Bennett Williams: I think it is Justice White.

It may take just a minute to say what my feeling is on it.

Prior to 1952 it had been judicially enunciated several times that a Denaturalization Order procured by reason of fraud made citizenship void ab initio.

In 1952, the Congress changed the language of the Denaturalization Statute.

Prior to 1952 it had been that a person could be denaturalized if he illegally or fraudulently procured his citizenship.

In 1952 under the new act, the language of the statute is that he is denaturalized, if he obtains his citizenship by willful misrepresentation, or by concealing a material fact.

So in 1952 for the first time, the Congress says, now if he obtains his citizenship by willful misrepresentation, or concealment, it's retroactive in application, then it goes on to delineate very carefully what the effect at least as I read the statute of this retroactive application is, there had been a great bit of confusion as to what effect the void ab initio concept had on derivative citizenship?

How it affected wives and children of those persons who were denaturalized?

And in the 1952 Act, the Congress was very methodical, they cleared up.

It said this.

It said if the denaturalization order is based on fraud, derivative citizenship falls.

It says that if the if the denaturalization order is based upon the fact that the naturalized person became a member of the Communist Party or various subversive organizations within five years after naturalization and the proof is that he was at the time he was naturalized or alternatively if the naturalized person returned to the old country for permanent residence within five years after his naturalization showing that he had no real intent to stay here, then derivative citizenship falls for wives and children not living in the United States, but does not fall for wives and children then residing in the United States.

Justice Byron R. White: Is there any evidence that he had this precise situation in mind, the prime situation?

Mr. Edward Bennett Williams: No.

Justice Byron R. White: No evidence?

Mr. Edward Bennett Williams: No evidence with respect to the relation back theory.

There is not a line in the statutory history, legislative history of this act which suggests that he had that in mind.

Justice Byron R. White: But that is easier you amend the (Inaudible) and it has been.

Mr. Edward Bennett Williams: Yes sir.

Unknown Speaker: How long was that (Inaudible)

Mr. Edward Bennett Williams: Eichenlaub came down in 1950, the year 1950, this was in 1952.

Now, I want to make sure that I am right about the date.

Eichenlaub came down in January of 1950.

The Immigration and Nationality Act was enacted in 1952.

Chief Justice Earl Warren: Mr. Barnett?

Argument of Wayne G. Barnett

Mr. Wayne G. Barnett: Mr. Chief Justice may it please the Court.

An alien is convicted of two crimes involving moral turpitude.

He is deportable regardless of how long he has lived in this country.

Well, that maybe a harsh application of the deportation statute, but the validity of that is not in question.

The only question as Justice Goldberg noted is whether the petitioner, for the statute should be less harshly applied to the petitioner because he not only committed two crimes but also committed a fraud to obtain a naturalization certificate which has been revoked for that reason.

There are two branches to our argument.

First is, the deportation provision, Section 241 (a) (4), does not require that the person to be deported have been an alien at the time of his convictions.

Second branch is that even if it does, Section 340 (a) of the naturalization provision provides that the denaturalization shall relate back to the date of the naturalization so that for this purpose at least he must be deemed now to have been an alien at the time of the convictions.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Wayne G. Barnett: Yes sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Wayne G. Barnett: I am not certain of 241 (a) (6).

Let me say that we agree that many of the other grounds for deportation are cast in different language; has been, shall have been, have been or may hereafter be.

Our estimation of that is that the 1952 act was a codification basically of a lot of existing statutes all of which, many of which were cast in very different terms.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Wayne G. Barnett: No, I am quite sure that is not the case.

24 (a) (4) was derived from the 1917 act which used the language is hereafter sentence.

That was quite completely rewritten primarily to overcome this Court's decision in Fong Haw Tan about the ambiguity of twice sentenced.

So it was quite totally rewritten.

I think the use of the years however have come from that source.

Most of the other provisions I think can be traced back to other statutes.

Now, I am not sure of which one Sixth derives from.

Justice Potter Stewart: They all are from -- the whole section enacted in 1952.

Mr. Wayne G. Barnett: Oh, yes it was.

But –

Justice Potter Stewart: By a single Congress –

Mr. Wayne G. Barnett: That is correct.

Senator McCarran I think in the openings of the hearings made quite a point however the fact that because there were lot of rulings interpretive and judicial outstanding, they have tried not to change things for the sake of change and to retain old statute or old language whenever they were satisfactory and the decisions have been satisfactory.

Now our argument on 241 (a) (4), the petitioner quite rightly says, there is not that his reading of the words as the matter of language is impossible and if that's the test, then we're out of court, but I think that is not the end inquiry.

Our argument is that our interpretation is necessary to make sense out of the statute in relationship to the other provisions and to avoid what we think are quite irrational capricious distinctions that Congress could not have intended and also the authority of the Eichenlaub case.

We think there are basically four very fundamental objections to the interpretation that petitioner would contend for.

Now, the first is that making his deportability turn up on or making deportability turn upon the prior status of the deportee at some prior time simply has no logical relevance to the purposes of deportation.

The purpose of deportation is to remove from the country those who because they are now aliens remain here at the will of Congress and who Congress and its wisdom concludes are no longer desirable people to have because of some revealed characteristics.

The relevance of the two-conviction standard is the congressional judgment that a man who has been twice convicted has demonstrated that he has a criminal propensity, his quality of criminality and because of that quality he is no longer desired as a resident in our country.

That is the whole thrust of the deportation provision.

Now, if that be so, it seems to us that the fact that at the time he was convicted, he may have had a purported citizenship status, has nothing to do with the purpose to be served.

The conviction of the two crimes equally demonstrates his criminal propensity whether he held at that time a naturalization certificate or not.

Justice Potter Stewart: Certainly he, it can be assumed, he thought he was a citizen at that time and so did everybody else.

Mr. Wayne G. Barnett: Well, in the case of actual fraud, my question extend to which he is –

Justice Potter Stewart: He had (Inaudible) –

Mr. Wayne G. Barnett: That's correct.

Justice Potter Stewart: If he hadn't been guilty of fraud no matter how undesirable he might be or – he obviously couldn't be deported no matter how many crimes he committed.

Mr. Wayne G. Barnett: We cannot deport him because he is not now an alien.

I agree that being an alien is a very important aspect of deportation, but the time at which this is relevant is the time of the deportation proceedings because the fact that he has been an alien establishes his amenability to being deported and his precarious tenure as we mean here only so long as Congress considers him to be a desirable person to have and the judgment of desirability when we look back to his prior conduct to draw inferences about his desirability, his prior status seems to me wholly irrelevant.

Mind you, this is only one of the numbers of things which I think –

Justice Potter Stewart: How prior, which prior status, it seems to me that your other one is going to his prior status?

Mr. Wayne G. Barnett: No, we say whether or not he was a citizen, one holding a defective citizenship or an alien at the time that he committed the crimes and the time he was convicted, nevertheless whichever of those statuses existed, the mere fact of conviction is the fact that establishes his criminal propensity and it's only his criminal propensities that are now relevant to his present desirability and if you're now an alien, and is presently undesirable, he maybe deported.

Now, the second objection, I don't rely on any one of these, I think together they show I think irresistibly that Congress could not have intended to make this distinction.

The second is that the fact has been pointed out that it is only Section 241 (a) (4) that uses the language is and it's upon that one word and that tense that the petitioner's entire argument is based.

Justice Hugo L. Black: Which word?

Mr. Wayne G. Barnett: Is, the fact that it says aliens who, any alien who is convicted of and has been or shall have been and the other ground for deportation by and large are phrased in different language; has been, shall have been, has been or make it after be etcetera.

Here that shows this is the purpose of differentiation.

We suggest quite the contrary that it shows that Congress has never thought of these tenses as being the key to the applicability of the provision.

Under petitioner's argument, an alien who had been naturalized and was convicted of various other crimes and whose naturalization is clearly revoked would be admittedly deportable on the basis of pre denaturalization conduct of various kinds.

He might be deported for example for having, while holding his naturalization certificate, having engaged in subversive activities, that's Sub-section 7, having been a drug addict, having been convicted of a narcotics violation, having been connected with the management of a house of prostitution, having been convicted of carrying sawed-off shotgun, of violation of the Alien Registration Act, of violating various wartime statutes, of importing an alien for immoral purposes.

All of this panoply are grounds for deportation would under their argument admittedly apply to denaturalized alien under basis of this prior conduct.

Justice Potter Stewart: Because, is was not used, some other form of the word to be, part to future (Inaudible)

Mr. Wayne G. Barnett: No.

He says the difference is intentional and for this purpose and we say there's no possible reason why Congress would have made that discrimination.

There's nothing in the legislative history to suggest it, none is apparent, none is suggested by the petitioner and to the contrary, the history of this statute is deriving from discreet statutes.

They're all collected together, suggests that the difference of wordiness is the accident at the time of enactment of the basic act.

And secondly –

Justice Arthur J. Goldberg: (Inaudible)

Mr. Wayne G. Barnett: That is correct.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Wayne G. Barnett: I would add the point that the basic committee report, the result of the original study in describing this provision uses the language has been.

Now I don't put too much weight on that other than to show that Congress was not conscious of the importance of these tenses, is or has been.

Committee report does describe both the existing statutes and the new ones in past tense language.

Justice Byron R. White: Well, Mr. Barnett, is this position is someone inconsistent with your argument about the reason for passing the relation back to --

Mr. Wayne G. Barnett: No, no.

I would like to develop the, development of the relation back provisioned later.

I don't think it is the -- I don't quite understand why you think it might be.

Justice Byron R. White: Well, you don't wait then?

Mr. Wayne G. Barnett: I would like to defer the development relation back to them.

He might then challenge me for the inconsistency.

Justice Byron R. White: Well, I guess that you say that Congress really didn't cope with some of this wording and that this was by accident and that they certainly would have been tended to have thought of it to put some other way, but if they passed the relation back, if you suggest that they passed the relation back to provision just to take care of despairing of the situation (Inaudible) then that's the focus on the problem and one way or the other though I can't see how that can be both ways.

Mr. Wayne G. Barnett: I don't think Congress was that subtle in adopting the relation back provision.

I would try to show that that was directly in response to the fact that this Court reserve the question in Eichenlaub and I will try to deal with your problem when I come to that.

Chief Justice Earl Warren: Mr. Barnett, did I understand it to say that the first study that was made of this section that is here in the present set suggested that they say ever has been?

Mr. Wayne G. Barnett: They didn't, they didn't address themselves to the issue.

All I said is that in describing it, just a narrative description of what these provisions were about, the committee speaks of any aliens who have been, that's in a brief --

Chief Justice Earl Warren: Well, I wanted to ask you this question if the original study suggested that or pointed out that it should be that way, wouldn't in fact they didn't do it that way?

They were somewhat on the fact that they didn't intended that way regardless of how subtle were – (Inaudible) subtle they might have --

Mr. Wayne G. Barnett: I think not because they introduced the bail at the same time the report was filed and the report recommended the retention of the provisions providing for the deportation of aliens who have been convicted and at the same day, the same day that the report was filed, Senator McCarran filed the basic omnibus bill, McCarran having been the --

Chief Justice Earl Warren: Do you think he liked subtlety in these matters?

Don't you think that Senator McCarran had probably made some study of this situation for him to introduce that bill?

Mr. Wayne G. Barnett: The, well, one way or the other he shouldn't have introduced the report of he shouldn't have introduced the bill, but if he was aware of --

Chief Justice Earl Warren: What are we governed by, the report or the bill?

Mr. Wayne G. Barnett: We govern by the bill and I'm not really trying to place that much reliance on the report because it was not focused on in the report.

Chief Justice Earl Warren: But you are arguing it?

Mr. Wayne G. Barnett: I point in response to question that there is this usage in the report which I say really it doesn't -- if it does show anything, it shows a lack of awareness or the significance of tense.

Now, that isn't – I don't suggest that is the answer to the case.

Chief Justice Earl Warren: And the mere fact that they didn't use the same tense in the bill that they introduced, that they used in the study that was reported, but about the same time indicates that they didn't understand the difference between the two?

Mr. Wayne G. Barnett: Well, if the tense is important, I think it does indicate that Congress was unaware of that significance.

Chief Justice Earl Warren: Why do you say that, what do you base that on?

Mr. Wayne G. Barnett: Well, the fact that the report in describing the provision which allegedly has this very significant tense is that makes all the difference in this application, it was described – well, I'll read you what the report says.

This is at page 14, 15 of our brief.

Chief Justice Earl Warren: I think I get report all right, but I just don't see how you can –

Mr. Wayne G. Barnett: Now, well, I don't think anyone who thought that was significant that is, made the difference would have written a report that shifts tense into another tense.

Chief Justice Earl Warren: Well, couldn't you say that they didn't – well the reason they didn't use that tense was because they didn't want it to be applied that way.

Mr. Wayne G. Barnett: Well, that would support my argument I think, that they didn't mean it to be applied.

Chief Justice Earl Warren: Oh, but, they did, they used the present tense purposely.

Mr. Wayne G. Barnett: Well, it maybe they did.

There was nothing to indicate that they did.

Now, I don't think that prove that they didn't.

I just offer that as a one of circumstances.

I don't think it's that important aspect of the case.

I think the inconsistency is produced by the interpretation are really much more important than telling what Congress might have intended by this provision.

The third one which has been pointed out is that it does give a preference to aliens who were guilty of fraud.

He would be deportable, but for the fact that he fraudulently obtained a naturalization certificate and he claims –

Justice Potter Stewart: Would your -- wouldn't your argument apply if the citizenship had been defective for some reason other than fraud, some just technically defective?

Mr. Wayne G. Barnett: Yes sir, yes sir, if it were revoked.

We don't say it's void, we say it's voidable, had it been cancelled –

Justice Potter Stewart: For some technical reason after its acquisition?

Mr. Wayne G. Barnett: I would like to point out to the Court, I think we don't make that much of a point of it.

In our brief in the appendix we have a footnote, noting a subsequent change in the statute which the 1952 Act can find the grounds for denaturalization to fraud, willful misrepresentation or concealment.

In 1961, they added back to the statute as a ground for denaturalization illegal procurement which would also include the fact it didn't satisfy the resident's requirements, however innocent he may have been –

Justice Potter Stewart: I think there was something wrong about the affidavit –

Mr. Wayne G. Barnett: That's right, that's right.

Justice Potter Stewart: I think that was the case in the Brancato case in the Sixth Circuit.

I think there was some technical defect, some defect in the affidavit.

Mr. Wayne G. Barnett: I am not sure what –

Justice Potter Stewart: And the distinction was sought to be made there between fraudulent procurement and illegal procurement.

Mr. Wayne G. Barnett: Yeah, I think the fraudulent representation there was about the technical defect.

I am not sure that's the case.

No, no, you're quite right, you're quite right.

But, nevertheless a consequence of it would be to prefer the one who makes the willful misrepresentation and finally, finally, if the prior –

Justice Arthur J. Goldberg: (Inaudible)

Mr. Wayne G. Barnett: Yes sir, yes sir, that's correct, that's correct.

There is a possible –

Justice Arthur J. Goldberg: (Inaudible)

Mr. Wayne G. Barnett: There is a possible argument that the relation back provision doesn't pick up that new ground for denaturalization.

Now, I'd like to say that I think the relation back is the simpler and more conclusive ground for deciding the case and is somewhat less sweeping in its interpretations, it's a narrower ground, whether it picks up this new ground for denaturalization is unclear, literally it would.

Now, the fourth objection is, that if prior status were to be made important, if Congress meant to make it important and to provide and in effect to recognize the de facto status of citizenship is some kind of protection for what was done while he was (Inaudible) even though fraudulent or however he got it.

The relevant time, the logical time to make status important would be at the time of the commission of the acts not at the wholly fortuitous time of conviction which maybe many years later.

This statute as petitioner reads it and it can be read this way makes status on the date of conviction controlling whatever his status was on the date that he committed the acts, that is to say if in this case –

Justice Arthur J. Goldberg: (Inaudible)

Mr. Wayne G. Barnett: Oh, no no, conviction should be a requirement but if Congress meant by this to protect some one in his exercise of his prior status when he was a citizen.

Anything he did while he was a citizen shouldn't be made a basis for deportation.

If that was the purpose and from possible reasons to make status important, logically I say the important time to look at the status is that the time that he did the acts and if he was the citizen when he did the acts you should say it ought not count against him.

But their argument is if he commits the crimes as a citizen, holding a naturalization certificate, his naturalization certificate is then revoke and he is thereafter convicted for his prior acts.

They would admit that he is deportable and I say that it's a wholly irrational way to make prior status relevant and I think it shows that Congress didn't mean to because it would having that to make it relevant at the time of commission and not at the time of conviction.

Now I think all of these inconsistencies, and irrationalities resulting from petitioner's interpretation would require his rejection even if it were an open question but I don't think it is an open question, I think it is controlled by this Court's decision in the Eichenlaub case at 338 US.

Now the fact in statute we say all respects parallel in Eichenlaub.

Eichenlaub was naturalized in 1936, convicted in 1941, denaturalized in 1944.

He was thereafter sought to be deported under the statute, it's set forth at Page 19 of our brief, which speaking as of the date of this enactment which is 1920 says provides for deportation of "All aliens who since August 1, 1914, have been or may hereafter be convicted" of the crimes listed one of which was the crime of which Eichenlaub was convicted that -- since Eichenlaub was convicted in 1941 long after the statute the relevant language of the statute is "All aliens who may hereafter be convicted of such a crime” and I think it's obvious that exactly the same argument could be made about the meaning of that language as it is made about the meaning of this language and in fact it was made.

This Court however rejected it.

It said that all the statute required is that you be an alien at the time of the deportation proceedings and that you be a person who has been convicted of such a crime.

Now not only is the language identical or is a same question but the reasons the Court gave for its decision are equally applicable here, they are basically the same ones I've been arguing.

Its decision rests primarily on the lack of any reason why Congress would have made the prior status relevant, the anomaly or irrationality of -- if prior status were be relevant of looking to the time of conviction rather than a time of commission and finally the anomaly of allowing an alien who had fraudulently obtained citizenship and had it cancelled to plead his fraudulently acquired and since cancelled status as a defense to deportation and those reasons we say are equally applicable to this case and Eichenlaub fully controls this case.

Chief Justice Earl Warren: In order to probably to make this analogy during the Eichenlaub case and this one we have to push accept you affirmance that the word ‘is' means as saying as ‘has been' in the future maybe.

Mr. Wayne G. Barnett: Well maybe

Chief Justice Earl Warren: We have to accept that in order to --

Mr. Wayne G. Barnett: Yeah, that's right.

Chief Justice Earl Warren: to make the analogy.

Mr. Wayne G. Barnett: Except for the reasons given by the court may have a broader impact than the identity of the language, but I do argue that it is conducted and maybe conducted and have the same implications for this purpose.

Chief Justice Earl Warren: Yes.

We will recess now.

Mr. Barnett, you may continue your argument.

Mr. Wayne G. Barnett: Mr. Chief Justice, Mr. Scolberd of Section 6 drives from the Internal Security Act of 1950 which you will find in our brief at Page 16 in the discussion of the main language.

Before I leave my first point, I like to acknowledge the Eichenlaub decision was decided by four to three Court and does not represent an absolute majority Court nevertheless we urge that it is entitled to be followed based on three reasons.

First, because it's right, secondly because it -- even though it's four-three decision, it is the decision of this Court and the reason why that need to be disregarded.

And finally, because I think since it is more real here than usually is the case, Congress has relied upon in enacting the 1952 Act.

It not only did reenact the very provision involved in Eichenlaub in Sub-section 17, but I think it is a fair, at least possibility, I would think, I would be quite confident, that had the Eichenlaub decision been decided the other way, and the Court had felt that the tense maybe implied that he had to be an alien at that time, that Congress would have revised the provisions using that kind of language to remove the possibility of that interpretation.

The Eichenlaub decision, however, removed in a reason to rescan the provisions to take out any provisions that would pose that problem.

Justice Potter Stewart: If Congress would have really wanted to be careful along the lines you suggest, they would have enacted in each one of the sections the Eichenlaub language, wouldn't they?

Mr. Wayne G. Barnett: No, the other, the other section used has been I think would not pose the problem.

It's only I think Sub-section 4 is really the one that might pose problem besides the Eichenlaub statute itself.

And as to Congress being very sure, I think I hope to show it in order to be very sure it adopted the relation-back provision that we will turn to that now.

So they say, I think the more satisfactory or at least simpler and I think more conclusive base to decide the case is really the relation-back provision of Section 340 (a).

Well that's in our brief, like most conveniently pages 25 and 26.

Justice Potter Stewart: Just before you leave the first - your first basic point, you read the Brancato case in the Sixth Circuit as being contrary to what you told us?

Mr. Wayne G. Barnett: I think that is relevant really only to the second point, relation-back.

In that case, the statute there, that was an exclusion or that was the conviction within five years after entry.

Justice Potter Stewart: I am not talking about -- I have it right here and the next, last paragraph of the opinion of Judge Miller?

Mr. Wayne G. Barnett: Yes.

Justice Potter Stewart: It's the ruling order in deportation in the Eichenlaub case which is based upon statute of 1920, which was a special statute dealing with sabotage and espionage during the first World War and that's about some 650 aliens then in custody.

You do not believe that the construction given to the different wording of that statute is that hold the general Deportation Statute, which we are now considering?

Mr. Wayne G. Barnett: No, I am --

Justice Potter Stewart: Perhaps that was sort of related to the relation-back?

Mr. Wayne G. Barnett: It does mostly seen in Brancato.

I don't think there was any argument about his status as an alien at the time of conviction.

The only argument that he made an entry so that one crime was sufficient and on the entry argument the issue was further his denaturalization related back to make him an alien at the time of the entry.

I like to develop the relation-back.

We don't dispute the result in Brancato.

Some of the language I take it we would disagree with.

Unknown Speaker: (Inaudible)

Mr. Wayne G. Barnett: Yes, yes.

That's right.

Section 340 (a) is the basic denaturalization provision.

It provides seniors to denaturalize persons who obtain their citizenship by willful misrepresentations and then add in a provision which is new to the 1952 Act that such revocation and setting aside of the order admitting him for citizenship shall be effective as off the original date of the order and certificate.

Thus in this case denaturalization order shall be effective as of 1925 and we think giving that literal and natural meaning, it means that Costello must now be deemed to have been an alien through out the period of time that he held a naturalization certificate.

Now I want to hasten to add that we don't argue that the relation back provision can be applied quite that simply or mechanically and if you do have to look to its purposes and to some extent can confine to an area which Congress seems to have intended it to apply.

What I want to show is that in fact this is the central purpose of the provision was this application in this very context.

Now as I take a basic agreement between us and the petitioner but the relation back petition was at least in some sense a codification of existing law, it didn't spring new born.

But what that existing law consisted off is very important and we say consistent basically four court of appeals decisions plus a reservation from the question by this Court in Eichenlaub.

Now to be sure there were some earlier decisions of this Court not all involving really an application of relation back, language that suggests that one who acquires a grant by fraud takes nothing by his paper grant, that sort of general language you find might be the nullity but the first real application of the relation back doctrine came in 1932 in a decision by Third Circuit in Rosenberg versus United States, 60 F.2d.

In that case the Court held or at least opined because in fact I don't quite see the relevance of that what it said to the issue within Court, but it at least said that a woman who had been married to a naturalized citizen whose citizenship was later revoke because of fraud was herself not a citizen and she would have been – had he been a citizen when she married him and in doing so, it simply said that since the citizenship was cancelled for fraud, he never was a citizen and therefore she could never been the wife of a citizen.

The next case at the appellate level was the decision by the Second Circuit in the Eichenlaub case.

That's the same case I discussed which is reported at 167 F. 2d and in that case in response to the claim that Eichenlaub cannot be deported because he was not an alien at the time he was convicted.

The Court of Appeals responded simply that the degree of naturalization relates back at least for that purpose and disposed of the case specifically on that ground.

By the year later in the Willumeit case, again in the Second Circuit, the Second Circuit reaffirmed that holding after full argument on very issue and beside of that case and the relation back that involved exactly the same issue as Eichenlaub deportation and time of conviction.

About 3 months after that the Second Circuit decided another case, the Battaglino case at 172F 2d, that was a derivative citizenship case and the court held that the son of a naturalized citizen, the son being born and brought and his father later been denaturalized for fraud in that case presumptive fraud, but the son was not a citizen.

For this simple reason that since the father's citizenship was revoked because of invalidity ab initio that father was not a citizen where their son was born and therefore he was not a citizen.

Now I want to emphasis that all of those cases the courts applied simply a monolithic concept of the retroactive effect of denaturalization.

They reasoned simply that since the father's citizenship was revoked for initial defects, he never was a citizen and therefore was not a citizen either at the time that his son was born or at the time he was convicted or whatever was the relevant time and no one could justify slightest distinction and the application of that principle as between the two purposes.

In the next event, after those cases were decided the Court granted certiorari in Willumeit and then vacated its prior denial of –

Unknown Speaker: (Inaudible)

Mr. Wayne G. Barnett: Only in a procedural context and not at all with the implication that at least I would say, the implications petitioners give to that.

His -- the case involved here is denaturalization.

They didn't really involve first status at all.

After final judgment was entered, and the time for any further action had expired, she sought to intervene, claiming that the service is trying to deport her and therefore, she should be allowed to intervene.

The Court opens up its discussion that the question deportation isn't before us, and all that we are deciding is whether she should intervene, it's in that procedural context that they made the statement.

When later they said which I grant you may very well be difficult what they say about her status that wasn't really the issue at all and at that point, they in no way (Inaudible) the distinction on the relation-back question as between the two consequences.

Justice Arthur J. Goldberg: You are going to deal with that?

Mr. Wayne G. Barnett: Yes I will.

Now the next step as I say was this Court's decision in Eichenlaub and Willumeit, they were combined and because this Court as I pointed out decided the case rather on the basis that the statute did not require alienage and did not rely on the relation-back theory as the Court of Appeals had.

It did however, at least stayed the relation-back issue and because what it said about that provided the final prelude to the legislation we set it forth in full in our brief at page 33.

What the Court, after stating the issue, says is that the government suggests that one route to a conclusion on this issue is to hold that the relators as a matter of law were “aliens” when so convicted.

The basis it suggests for so holding is that the judicial annulment of the relators naturalizations on the ground of fraud in their procurement deprived them of their naturalizations ab initio, citing Rosenberg.

They thus would be returned to their status as aliens as of the date of their respective naturalizations.

And accordingly, they would not be liable to deportation if you read the statute it was requiring aliens and then they say in our opinion it is not necessary, for the purposes of these cases, to give a retroactive effect to the denaturalization orders but rather we can decide it on the ground they did decide it.

Now it seems to me clear that the effect about what the Court there said, was to leave the relation-back doctrine which after all was that well settled in any event, it's only been these four cases rather than really giving very extended treatment to it, was to leave that question entirely up in the air, nothing was settled.

The Court preferred not to rule on that question and it provided I suggest more than ample occasion for Congress which was now already engaged in a complete restatement of the law of integration to settle the matter, once and for all.

And I suggest that it is exactly what Congress did.

Less than 20 months after the Eichenlaub decision, senator McCarran in introducing revived version of the bill that ultimately became the law, included for the first time the express provision that such revocation shall be effective as of the date of the original naturalization.

I might note that the language parallels the opinion in the sense the opinion refers to the argument as been that they would be returned to the status as aliens as of the date of their respective naturalizations.

And what I suggest is that the only explanation for the edition of that provision of the statute was to settle the question the court had not settled and to write it into the statute.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Wayne G. Barnett: There is not a word in the legislative history about the reason for that addition.

It was not in the original bill that senator McCarran introduced together with the study report.

The decision was in January 1950 and the original bill and study report were introduced in April in 1950, some 94 days after the decision in Eichenlaub and that bill did not contain a relation back provision.

The study report is actually committee report, the result of there two-and-half year study of the whole area was that, the relevant part is set for page 31 of our brief, at that time had said the effect of a decree of denaturalization, as distinguished from expatriation or forfeiture of citizenship is to declare that the naturalize person never was in fact naturalized because either by fraud or illegality, the statutory prerequisites were not met.

Now at that point in time which is too much after the Eichenlaub decision one might think the author of this statement had failed to take account of fact Supreme Court at least treated the question as in open one.

I can prove that I think 925-page comprehensive report in the immigration law is not likely to reflect the events as recent as three months ago.

In any event it seems to me plain that the substance of what was contained did not reflect the doubt that would be I think reasonably created by this Court's treatment of the question.

Chief Justice Earl Warren: Mr. Barnett I was wondering if you would go that far, why do you didn't say we don't argue we wish to emphasis that an alien whose denaturalization has been revoked under 340 (a) is in exactly the same position for all purposes as one who never been naturalized.

Why do you feel free to carve out some situation and still maintain that this dates back, but is there everything in a history or anything that (Inaudible)

Mr. Wayne G. Barnett: What I want you first by the history is that you was specifically a response to this kind of application.

Now the statue is not so limited and there is a problem of what other consequences it had.

I'll argue that certainly this is this minimum application and we acknowledge that there maybe serious questions about to attempt to apply it literary in all contacts for every conceivable purpose.

Now that I don't think was anything unusual about that process of statutory interpretation that a statue which literally would seen them include a great deal more can be construed as not having been intended to cover various kinds of issues that were seen not be anticipated.

What I want to show is this application was specifically anticipated.

The prior law existed of two application, consisted of two applications.

The derivative citizenship consequence and the issue of status at the time of the conviction for deportation purposes, that wasn't the prior law and that context this Court declined to the decide the question and then 20 months later Senator McCarran adds it to his bill and I say that that is as conclusive proof as one can have without having a report explaining it and there was no report explaining why it was later added.

As this --

Chief Justice Earl Warren: They added it to the bill after the bill that we're interpreting, didn't they?

Mr. Wayne G. Barnett: Oh, no, it was added -- the initial bill was introduced as I say within three months after Eichenlaub decision.

It begin in the next session of Congress, Senator McCarran Congressman Walters introduced companion bills containing some further revisions.

They then had joint hearings and after the joint hearings Senator McCarran introduced a new bill with a lot of changes in it, let me do track I don't know how many changes some changes.

One of the changes that mate bill the first time was the addition of the relation-back provision and I say the reason it wasn't in the first bill and it's not really important why it wasn't the first bill, but I think the reason it was, is they accepted the study report statement of the existing law.

Then when this Court when it circulated down that this Court had thrown that up in the air they then added it to the bill to settle the question and I say the one application, it is perfectly clear that they intended the relation back provision to have was the very context of this case.

Now the petitioner's argument, another objection to the petitioner arguments they seem to argue that the affect the only reason for it was to settle the derivative citizenship question.

Now first of all there is nothing in any of the prior decisions since the (Inaudible) distinction, nothing in this Court's decision.

Eichenlaub raised any doubt about the equal applicability, it raised that about the whole thing, but more than that --

Justice Arthur J. Goldberg: Except for other thing (Inaudible)

Mr. Wayne G. Barnett: No, no, well it's -- Eichenlaub and Willumeit themselves in the Second Circuit.

That's right, but when you say all of the other cases that implied a great body of established law in this as a single extension but that is not the case. Rosenberg was decided and as dicta basically suggested this (Inaudible).

The next two cases were the Second Circuit cases in Eichenlaub and Willumeit which applied it for this purpose, then in the Second Circuit's case three months later in (Inaudible) which applied it for derivative citizenship purposes and it was right after that that the question came to the Supreme Court in Eichenlaub and Willumeit.

Now the further answer is that the original bill contained for the first time what is now in Section 348 (f) expressly proving affirmatively for the consequences of denaturalization upon derivative citizenship that was no longer left the relation back doctrine.

So at the time with the relation back Doc -- provision was added, that was already in the bill a special provision to take care of derivative citizenship.

That cannot be the explanation of why relation back was added.

The only other application in existing law was the application for this very purpose and we say that -- I find it impossible to believe that this was added without this application in mind.

Now I don't say that – I am not saying it's limited of this application but this is the minimum application that's possible to give it.

Now as to why it might not be rigorously applied and for every purpose, I mean say, the only reason why -- I don't argue that it doesn't apply in other cases.

The government doesn't argue that it doesn't and we say might not, and what seem perfectly reasonable to us to curve out exceptions when it seems that this is not the kind of consequence Congress could have intended.

But it kind—

Chief Justice Earl Warren: I think that they did argue, you said it would be plainly absurd for example to argue that --

Mr. Wayne G. Barnett: Well I guess I have to drop that one.

Chief Justice Earl Warren: And then you said at the beginning we do not argue, we whish to emphasize and that an alien and so forth.

Mr. Wayne G. Barnett: Yes.

Chief Justice Earl Warren: And then you go on to say it would be absurd to argue.

Mr. Wayne G. Barnett: No, we don't argue that (Inaudible).

Well right, you have--

Chief Justice Earl Warren: I didn't ask it for that reason but I want to get at your --

Mr. Wayne G. Barnett: No, no—

Chief Justice Earl Warren: -- real argument.

Mr. Wayne G. Barnett: It seems to me that this kind of provision that which seek on its terms apply all kinds of consequences that no one foresee.

Suppose he voted, a naturalized citizen votes, he's later denaturalized, can he be prosecuted for fraudulently voting because he was not a citizen.

Now I think the effect of the denaturalization is, or a fraudulently acquired denaturalization, that is voidable.

It is not void.

It does have some status.

Now the case that we agree with is the case in which an alien -- a naturalized citizen leaves the country and returns on a passport.

He's later sought to be deported on the ground that he had the wrong documents.

He should have had visa -- an immigration visa as an alien when he entered, that's a very basic reason for deporting him.

Now in that case it seems to us that to say that one who, this route -- in part it was always involved an alien.

Interpretation of the interaction of several statutes, it's not simply application of Relation-Back Provision, and to say that one who holding a Naturalization Certificate uses it as a entry right, uses it as a passport or obtains a password on the basis of it, then commits a crime and using what has been given to and is not yet been revoked, we think is not -- I do think would be an absurd consequence, and I don't think you should attribute to Congress absurd consequences.

Chief Justice Earl Warren: Isn't he using the fraudulent Naturalization Certificate just as much in this situation than others --

Mr. Wayne G. Barnett: Well, we don't find.

Chief Justice Earl Warren: -- because you couldn't get it unless he was an American citizen and he is already American citizen because he fraudulently obtained (Inaudible) so where do you make the mistake?

Mr. Wayne G. Barnett: Well I -- let me make it this way.

What (Inaudible) case, probably held the certificate to left the country and reenter, and was later tried to be deported on basis of the single conviction after that entry, the question was whether that was an entry, so he entered on a passport.

And the Sixth Circuit held that it was not an entry.

The difference I think there I would distinguish that case, and our case, the difference there is that leaving the country is for an alien one who then at that time occupies alien status, is a very significant event.

He is in country and may not be able to get back in.

He can be excluded for grounds other than grounds for which he can be deported.

There is nothing unlawful about what he is doing in any sense.

And if on the other hand, contrast to that, a citizen –

Chief Justice Earl Warren: Ultimately he asserts, I suppose he asserts himself to be a citizen when he obtained the certificate through fraud --

Mr. Wayne G. Barnett: That would be to say that his citizenship is void, and not simply voidable.

We think what statute means is that it is voidable, and then has retroactive consequences if it is voided.

Now, at least to make my difference, to make my distinction whether or not you accept the qualification I had, I still think it is a different case because there are the alien acts in reliance on his naturalization certificate to leave the country.

If he hadn't been naturalized, he very likely wouldn't have left the country.

What you mean with having an alien, you jeopardize your status, you may not get back in.

If you get back in, you have an entirely new status here.

So it's a very serious thing for an alien.

For naturalized citizen, it's nothing; he can go and come as he will.

Now, in contrast, this case, what Mr. Costello did was to commit a crime and he was convicted of committing the crime.

The crime had nothing to do with his status at that time.

It's equally a crime to defraud the Government of Income Tax, whether an alien or a citizen.

He would be equally be convicted of it.

None of those grounds are influenced by the outstanding naturalization certificate.

Now, certainly in that case we say the relation back provision should apply.

Justice Tom C. Clark: Why do you think (Inaudible) argument that the case may deprive of the benefits of 241(b), when he was convicted, that is the question?

Mr. Wayne G. Barnett: Well, I have two answers; first on his assumption that he could not have invoked the procedure and ask for a recommendation.

Chief Justice Earl Warren: He could not –

Mr. Wayne G. Barnett: On the assumption that he could not, on the assumption – we think he can, oh, yes – I think (Inaudible) for doubt that one holding a naturalization certificate who is convicted can ask the court for a protective recommendation.

He doesn't have to concede that he is an alien, but he certainly has the power to ask the court for a protective recommendation against deportation should his naturalization be revoked.

Justice William J. Brennan: But he would have had to make this application I gather immediately after conviction, within 30 days?

Mr. Wayne G. Barnett: The suggestion Justice Goldberg made that arguably he should have 30 days after he is denaturalized to go back and ask for recommendation is intriguing suggestion.

I don't see immediately that it might not be a proper result, I am not saying this, we very likely would argue against this.

Justice Tom C. Clark: Did he try to do that?

Mr. Wayne G. Barnett: Did he?

No, he didn't, he didn't.

Now, in Costello's case, we already brought denaturalization proceedings in 1952.

Now, those are the ones this Court vacated because of the lack of an adequate affidavit, but we brought deportation proceedings before he was tried.

We brought the naturalization proceedings before he was tried on the income tax counts, so that he was aware that his naturalization was in very serious jeopardy, and I find it unbelievable that had he asked the court to make a recommendation against deportation, because he might after all be denaturalized, the government was trying to denaturalize him, that the court would say, we have no power or that this Court would affirm such a ruling by the Trial Court.

Justice Byron R. White: Was there any doubt at all in 1948 or 1954 or 1952 that his citizenship could be revoked for the reasons that it was ultimately revoked.

Mr. Wayne G. Barnett: Well, no, only the doubt of outcomes litigation.

Justice Byron R. White: Only the doubt about the proof.

Mr. Wayne G. Barnett: Yes, it's --

Justice Byron R. White: Provisions of the law --

Mr. Wayne G. Barnett: Litigation.

Justice Byron R. White: Provisions of the law were clear.

Mr. Wayne G. Barnett: Yes, yes.

Justice Byron R. White: And there is no doubt in these years I suppose that what the law and relation-back was?

Mr. Wayne G. Barnett: The doubt --

Justice Byron R. White: The statute as in 52 and before that in Second Circuit explained it.

Mr. Wayne G. Barnett: Well, and at the time it is trial for income tax, it was absolutely with the Eichenlaub decision.

So that it was but for a possible difference between --

Justice Byron R. White: But it was in the statute by then --

Mr. Wayne G. Barnett: Who may here -- I am sorry?

Justice Byron R. White: But it was in the statute by then, wasn't it?

Mr. Wayne G. Barnett: In 54, relation-back was in the statute.

That is correct, that is correct.

Justice Byron R. White: Yeah, and before that, the law was clear in the Second Circuit?

Mr. Wayne G. Barnett: It seems generally to have been accepted as an obvious proposition for a long time, well, certainly from 1932, when we had the Third Circuit decision, and there is no contrary decision other than a couple of District Court decisions which limited it to actual fraud, but they didn't turn upon basic proposition.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Wayne G. Barnett: Oh sure.

Well, those are -- that had been resolved before the trial.

The Eichenlaub case was decided in January 54.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Wayne G. Barnett: Oh yes, yes.

This court -- they are litigating, sure they are the litigating challenges, right.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Wayne G. Barnett: Well, the --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Wayne G. Barnett: I am prepared to just not argue that.

The decision of the Immigration Board of Appeals I think in this case, says, that he could have implied the relation-back provision, which surely be enough to satisfy the language of the recommendation provision that an alien may and simply the fact that he may become an alien would be sufficient to justify a protective recommendation.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Wayne G. Barnett: It doesn't have to be, it doesn't have to say I believe that I am an alien.

He says, the government is trying to denaturalize me.

If they denaturalize me, I'll be liable to deportation.

Therefore to protect me another protection I ask you to recommend against deportation.

There is nothing unusual about of that kind of request.

Justice Hugo L. Black: He should have anticipated that he would be denaturalized?

Mr. Wayne G. Barnett: The proceeding -- well, in Costello's case proceedings were already pending.

Justice Hugo L. Black: Well, sometimes I think, maybe not often but sometimes they refuse to denaturalize?

Mr. Wayne G. Barnett: No, no, I'm only telling that he was aware of the possibility.

I'm not saying that he has to assume that he is going to be.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Wayne G. Barnett: Not, not here.

I mean just there is nothing -- all I meant is nothing surprising about standing on --

Justice William J. Brennan: I believe I can (Inaudible)

Mr. Wayne G. Barnett: Make him request to recommendation.

Justice William J. Brennan: Something under threat of being denaturalized.

Mr. Wayne G. Barnett: To ask for -- it's my understanding that there are very few requests at all, and I don't know of any case where --

Justice William J. Brennan: That would be ignored.

Mr. Wayne G. Barnett: That is correct.

Justice Tom C. Clark: (Inaudible)

Mr. Wayne G. Barnett: Oh yeah.

Justice William J. Brennan: -- with the denaturalization.

Mr. Wayne G. Barnett: No, no, I would think that he would enter a conditional recommendation.

Justice Tom C. Clark: (Inaudible) that's an alien.

Mr. Wayne G. Barnett: Well --

Justice Tom C. Clark: You said, he can make a recommendation on alien, that's (Inaudible) --

Mr. Wayne G. Barnett: I don't say that there isn't a question of interpretation.

I am satisfied how it be resolved.

If that case were here and we were arguing that he can't get a recommendation, the court has no power to grant it, I'm confident this Court would say, of course, they have power to grant it.

The whole purpose of this is to allow the judge who convicts him to appraise whether this is a kind of offense for which he should be deported that it may become a ground for deportation, he surely become naturalized.

We don't think it is and therefore he should be able to enter the recommendation.

Justice William J. Brennan: Can I ask you one other question?

Mr. Wayne G. Barnett: Yes sir.

Justice William J. Brennan: Do you depend on Eichenlaub?

Mr. Wayne G. Barnett: On Eichenlaub?

As our first ground we do.

I think, I think the relation-back provision, we would answer even the dissent in Eichenlaub --

Justice Tom C. Clark: Was he convicted on kind of past convictions?

I mean was he deported on account of that, denaturalized on account of that?

Mr. Wayne G. Barnett: Oh, yes!

The case is really exactly the same.

He was naturalized in 1936, convicted in 1941, denaturalized in 1944, and then later sought to be deported on the basis of the conviction in 1941.

Justice Tom C. Clark: Well, the deportation is based on the conviction or is based on undesirability?

Mr. Wayne G. Barnett: Based on the 1941 conviction.

Now that statute at that time I think had a two-stage (Inaudible) that type of conviction and then the Attorney General, then the Secretary of Labor had to make a determination of undesirability.

Justice Tom C. Clark: Is that -- is that conviction (Inaudible)?

Mr. Wayne G. Barnett: Yes, Yes, Yes.

But there was a two-step process there which we don't have here, but the question that he set of the conviction is the same.

Thank you.

Chief Justice Earl Warren: Mr. Williams.

Rebuttal of Edward Bennett Williams

Mr. Edward Bennett Williams: At the outset, Mr. Justice Goldberg asked a question about whether 241 (b) has been construed to require the alien to make the request within 30 days.

It has been so construed, sir, in Piperkoff against Esperdy which was decided in Second Circuit in 1959 and is reported in 267 F. 2nd at page 72, where the Second Circuit hill that the statutory requirement was that the alien make the request and that the recommendation be made within 30 days.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Edward Bennett Williams: It was not been a record, it's not showing men involved.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Edward Bennett Williams: No, sir.

Not precisely there.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Edward Bennett Williams: 267 F. 2nd at page 72.

Now if the Court please, Mr. Barnett with his customary forthrightness says to the Court, if the language of the statute is determined, what the statute means then, and if that's the sole criteria as to what the statute means, then the service is out of Court.

And I say to the Court when we test the constitutionality of the statute against the void for vagueness principle, certainly it is the language of the statute with which the citizen or the alien is expected to be familiar.

There is no fiction in the law which requires them or assumes that he is cognizant of all the legislative debate or the legislative history that went behind the statute.

If you read the statute and it means from its language one thing to a reasonable man, he is entitled to rely upon that and if he relies upon it reasonably to avoid the penal consequences of the conduct that is (Inaudible), and we say in this case that the language certainly lends itself to the construction that we place upon it, the government doesn't countervail that, and the language, as we construe it, requires the concurrence of alienage with conviction.

Now the government in the relying upon the Eichenlaub case is relying upon language very different as the circuit courts have already found.

Different from the general deportation statute, because the special statute in the Eichenlaub case says that an alien is deportable if after hearing by the Secretary of Labor he is found to be undesirable.

And then an undesirable alien is one to wit who may have been convicted or hereafter may be convicted of these various statutes.

When the Ninth Circuit considered the relevance of the Eichenlaub case to a case where the verb was couched in the present tense, it said we don't think the Eichenlaub case controls here for the reason that the statutory language there construed read quite differently than does the present act.

It goes on to point out that the Mangaoang statute was in the present tense.

And again in the Brancato case, addressing myself to the question posed by Mr. Justice Stewart, you will recall that in that case, the language as in the case at bar was couched in present tense was an alien who is sentenced to a term of imprisonment for more than one year within five years after entry.

Not only did the court reject the relation-back theory, but the Court did not say that that language could possibly mean one who did not have the status of alien at the time that he was convicted.

So on both force the Brancato case rejects the position that is advanced by the government in this case and when the Court said at the very end of the opinion the ruling ordering deportation in United States ex rel.

Eichenlaub v. Shaughnessy was based upon the statute of May 10, 1920 which was a special statute dealing with sabotage and espionage during the first World War and applicable to some 650 aliens then in custody.

We do not believe that the construction given to the different wording of that statute is applicable to the general deportation statute which we are now considering.

We could only admit in context that whereas we're dealing in the general deportation statute with language couched in the present tense which requires concurrence of alienage with conviction.

In the Eichenlaub statute that we're dealing with language couched in the perfect tense which did not have this requirement and of course the relation back theory was rejected in the Brancato case.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Edward Bennett Williams: 1914, that's right sir, very clear.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Edward Bennett Williams: Yes sir, yes sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Edward Bennett Williams: That's what Congress meant with respect to when the conviction had to take place, yes sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Edward Bennett Williams: Now –

Justice Potter Stewart: In the Brancato case Mr. Williams, at the time of the conviction this man had a certificate of citizenship, that wasn't considered by the court if I read its opinion, the basic issue in that case is, was he a citizen at the time of his entry, is that right?

Mr. Edward Bennett Williams: Brancato had a certificate of citizenship at the time he was convicted of perjury in 1930 and thereafter in 1932 he left the country, in 1932 he was convicted of perjury, that's right.

Justice Potter Stewart: And then five years prior that he had (Inaudible) back.

Mr. Edward Bennett Williams: Five years later he was denaturalized.

Justice Potter Stewart: That's right.

Mr. Edward Bennett Williams: And the argument was made that was made here, he should be regarded as an alien ab initio and the court rejected that and the Service tells this court in this case that it agrees with the position that the court took in the Brancato case, but it seeks to carve out some esoteric exception that seems to fit only the facts of this case.

It says that if Costello in fact had gone to Italy in 1952 and had returned believing he was a citizen and was convicted within five years that he wouldn't have been deportable here because he believed he was a citizen.

But then it would have a completely different interpretation put on for the purposes of facts in this bar and we find absolutely no support, no predicate in the whole history of the statute or in the statutory language itself such discrimination or such a distinction.

It's absolutely banned to support that kind of distinction, yet the service recoiled that urging before this Court that denaturalization should be retroactive for purposes of deportation in these cases because it recognizes that it would introduce what is in effect the imposition of an unconstitutional penalty for fraud without adequate notice to the alien, which is precisely the situation that we had in the case at bar and which is precisely the prejudice that this petitioner has suffered by reason of not being apprised of the fact that he was alien at that time, that he was tried in the Southern District of New York and therefore was deprived of the opportunity to enter a plea of guilty to obviate banishment, deprived of the opportunity to put in a defense which would have obviated exile and finally deprived of the opportunity to exercise his statutory rights under Section 241 (b) to get a recommendation from a court with regard to his dual conviction as such as to require a concurrent sentence.

He was deprived of the opportunity to ask a judge who felt that only one sentence in effect should be imposed for the dual conviction of asking that he not be sent into exile as a state with citizen for these acts, for these reasons.

Unknown Speaker: (Inaudible)

Mr. Edward Bennett Williams: I say this Your Honor that at the time that he was before the sentencing judge, he was a citizen.

There was absolutely nothing in the statute which permitted the Judge to make a recommendation with respect to a citizen convicted before him.

It would have a meaningless statement by the court because the effect of 241 (b), Your Honor, is to make the recommendation of the court binding in final and if he recommends against deportation, there can be no deportation.

In that frame of reference, a recommendation by a court with respect to a citizen would have been a meaningless exercise in judicial language.

It could have had no effect whatsoever.

I say number one, the court could not have done it had been so disposed; two, had it attempted to do, it would have been meaningless and number three, there was no notice on the convicted defendant that such a request was in order because at the time he was a citizen.

Unknown Speaker: (Inaudible)

Mr. Edward Bennett Williams: The denaturalization proceeding had been filed, Your Honor, in 1952 and has not yet been tried.

That denaturalization incidentally ended in a decision for the defendant, but at the time of the crimes that were committed here, there was no denaturalization proceeding then.

Unknown Speaker: (Inaudible)

Mr. Edward Bennett Williams: That's exactly, sir.

Unknown Speaker: (Inaudible)

Mr. Edward Bennett Williams: Until afterwards -- in 1957, excuse me, sir.

Unknown Speaker: (Inaudible)

Mr. Edward Bennett Williams: Yes sir, the Sixth Circuit said that it construed Barber against Gonzales as being in disapproval of the relation-back theory for deportation purposes and I so construe it also, although it is not a precise holding that the relation-back theory does not apply, but certainly implicit in that holding is the disapproval of the relation-back theory.

Unknown Speaker: (Inaudible)

Mr. Edward Bennett Williams: Yes, sir.

Unknown Speaker: (Inaudible)

Mr. Edward Bennett Williams: Exactly.

Unknown Speaker: (Inaudible)

Mr. Edward Bennett Williams: Exactly.

Justice Byron R. White: Mr. Williams and Mr. Barnett this quite doesn't take care of my trouble and I suppose you may not be interested in doing so either, but if you assume that Congress did adopt this relation-back change in the law to cover the, just this kind of a case, whether a crime is submitted when a person was a citizen.

I suppose Congress must have been worried then about that word here and they must have accepted that construction which you're contending for.

Mr. Edward Bennett Williams: If Congress --

Justice Byron R. White: They really have no problem.

Mr. Edward Bennett Williams: Exactly.

If the phrasing of language of 340 (a), if the pinpoint 241 (a) (4) and say look we have the word is here which requires concurrence of alienage with conviction, we've got to do something about that because we want to get these fellows who are enjoying a naturalize status as a result of a fraud, if they said that and then they put 340 (a) in the law, then we could assume that that was the purpose for the introduction in 340 (a).

But certainly, the legislative history of 340 (a) not only does not support that construction, but it supports that construction as I read it and so it would been simpler I think to simply amend that the 241 (a) (4) and say here's what have been convicted of the crime at any time since entry and we wouldn't have the problem that we have here.

We still have the problem we had in the Eichenlaub case which the Court decided in 1943, but we wouldn't have the a fortiori problem that we have in this case.

Featured:

Rusk v. Cort - Oral Argument

Tue, 25 Sep 2012 22:33:50 +0000

Case:

Rusk v. Cort

Media File:

20_19611011-argument

Related Transcript:

20_19611011-argument

Transcript:

Argument of Oscar H. Davis

Chief Justice Earl Warren: Number 20, Dean Rusk, Secretary of State, appellant versus Joseph Henry Cort.

Mr. Davis.

Mr. Oscar H. Davis: Mr. Chief Justice, may it please the Court.

This is another case that involves, at bottom, the constitutionality of a provision of the statutes relating to expatriation for leaving the country to avoid military service.

The statute involved here is not Section 401 (j) of the 1940 Nationality Act which was involved in the preceding case but Section 349 (a) (10) of the Immigration and Nationality Act of 1952 which, in respects pertinent here is precisely the same as the earlier statute.

There are three issues before the Court, one is the jurisdiction of this Court because the Court did not note probable jurisdiction and reserved the question for the hearing on the merits.

The second issue, a non-constitutional issue also, is whether this action could have been brought at all by the plaintiff in the lower court.

It was brought as a -- under the Ordinary Declaratory Judgment Act and under the Administrative Procedure Act and the question is whether under the statutes which now exist in the 1952 Act, there is not a special exclusive procedure under Section 360 of the 1952 Act which Doctor Cort, the appellee here was required to follow and did not seek to follow.

And the third question is the constitutionality of the statute, the expatriation statute as applied to the appellee here.

First, in accordance with the instructions of the Court and its rules, I address myself to the jurisdiction of this Court, the question which was reserved in the order on jurisdiction.

This was a three-judge court which was convened because the plaintiff expressly and explicitly sought to enjoin the enforcement by the Secretary of State who will refuse to passport to Doctor Cort on the ground that he was not an American national, sought to enjoin the Secretary of State from enforcing the provisions of the expatriation statute.

Three-judge court was convened, the three-judge court held that the statute was unconstitutional and was indicated in the argument yesterday in the preceding case.

Congress had provided that when any court of the United States holds a federal statute unconstitutional there is direct appeal to this Court under 28 U.S.C. Section 1252.

Unfortunately, the Government did not, in its notice of appeal or its jurisdictional statement, refer to Section 1252 rather we refer to 1253, which relates to appeal to three-judge courts but I think that our slip does not deprive the Court of jurisdiction and the Court clearly has jurisdiction.

We would think also that the Court has jurisdiction under the appeal from the three-judge court provision but I won't take the time of the Court due to limited time for argument to spell that out.

I think we do in our brief.

As I mentioned at the outset, this is --

Justice Charles E. Whittaker: We will have jurisdiction even with only one judge for (Inaudible)

Mr. Oscar H. Davis: That is right and that was exactly the case in Fleming against Nestor which was referred to yesterday.

The action here is for a declaratory judgment and injunctive relief under the ordinary declaratory judgment, the regular declaratory judgment proceeding.

It arises out of the fact that Doctor Cort applied to the Secretary of State for a passport and the passport was denied on the ground that Doctor Cort was no longer an American citizen and to test -- to challenge that administrative determination, this here was brought in the District of Columbia against the Secretary of State to establish the fact that Dr. Cort is an American citizen.

The case was decided in the District Court on cross motions for summary judgment; there was no oral testimony or no hearing.

There were appended to the respective motions for summary judgment affidavits, documents, many documents and affidavits and -- prior to administrative proceedings and the Court rule on the basis of the summary judgment motion.

Now, what the District Court, the three-judges' District Court rule was this; there were three facets to its ruling.

First, they said that Doctor Cort did have the right to pursue his ordinary declaratory judgment remedy that he was not required to follow the procedure of Section 360 of the Nationality Act, that's a question I will come to immediately.

Justice William J. Brennan: He was abroad?

Mr. Oscar H. Davis: He was abroad, that is right sir.

They held that he did have that right.

Secondly, as a matter of fact, they held that he had left or remained abroad to evade the draft.

They found that under the standard of clear, convincing and unequivocal which this Court laid down in the Nishikawa case --

Justice William J. Brennan: That question opened here, do you think?

Mr. Oscar H. Davis: I think it is not open.

Justice William J. Brennan: Would it not be in connection with the principle against avoidance of constitutional determination?

Mr. Oscar H. Davis: Well, the difficulty I have with that Mr. Justice Brennan is this, the appellees do not in their brief as far as I read it, raise that issue at all.

They would of course be allowed to support the judgment below on any ground.

But to support the judgment below, they would have to argue that the evidence or the test -- the material before the District Court show that Dr. Cort still remains an American citizen that is, he did not go abroad to evade the draft to remain abroad.

They do not make even the slightest suggestion of any such crime.

The most that they suggest is that that the testimony was vague and should be re-canvassed perhaps at a fuller hearing, but they -- on that issue that is, if they were to take position that the case should go back for a full trial on the merits, I think they have foreclosed because they did not cross-appeal and they would not be supporting the judgment below if they would urge upon this Court to remand for a full trial on the merits, that is that the case should not have been decided on summary judgment.

So, --

Justice Felix Frankfurter: Any effort made -- any effort made after the disposition by the District Court to open up the so called factual question?

Mr. Oscar H. Davis: No sir, no.

The -- no effort was made by --

Justice Felix Frankfurter: Any suggestion that summary judgment isn't a good way of summary --

Mr. Oscar H. Davis: No --

Justice Felix Frankfurter: -- or specifically test here (Voice Overlap) --

Mr. Oscar H. Davis: No, there was -- there is -- there was no suggest -- suggestion in the District Court as I read the appellee's brief here, there is no suggestion of that here.

That was the factual issue which was decided by the trial court then the Court did go on to decide the issue of the constitutionality of the statute and they held the statute invalid.

Now, what are the facts which in our view and in the view of the Court -- the District Court, this record shows, Dr. Cort was born in Boston, Massachusetts in early 1920s.

He went to school there partially at Harvard and then he entered Yale Medical School from which he graduated in June 1951.

It maybe of some significance that he had registered as a regular selective service registrant and I make this distinction because this case involves a registration for the doctor's draft but he had registered under the ordinary selective service to which all young man are subject and he had been deferred or rejected for physical reasons or for because he was married or because he was a student but he graduated Yale in June 1951 and he decided not to take an internship in this country but to go abroad and study at Cambridge University in England and do physiological research there.

Before he left and he left the country at the end of May 1951, he registered for the Doctor's Draft which is a separate, as you -- as the Court knows, is a separate draft provision of the statute, he registered for that and he went abroad to England.

While he was in England, he was classified under the Doctor's Draft in 1 (a) that is available for military service, that's in September 1952 about 13 months after he left for England.

Apparently, in the fall of 1952 he applied to the Harvard Medical School to the Department of Physiology there for a position as an instructor in the -- in the coming year, this is in the fall of 1952 and there is in the record a letter from Dr. Cort to Professor Landis of the Department of Physiology at the Harvard Medical School of December 29th, 1952 in which Dr. Cort says he is pleased to accept the offer of appointment as a teacher at the Department of Physiology.

He has made arrangements to leave England to come to the United States beginning in, I think, June or July of 1953.

He would like to start work August 1st, 1953 but he could start earlier if they – if the requirements demanded.

On the same day that he wrote to Dr. Landis, he wrote to the Massachusetts Advisory Committee, which is an institution established under the Selective Service Law to recommend whether doctor s should be deferred because they're essential to civilian life.

And he wrote to them saying that he had accepted his position and was going to teach at Harvard and that he thought it would be essential to civilian life that he should be deferred from the draft, but he was not deferred from the draft.

The Harvard authorities did not recommend that he be deferred, the Massachusetts Advisory Committee recommended that he not be deferred and he was not deferred from the draft.

And the short of it is and this appears in the record from documents really, the short of it is, that when Dr. Cort, in England,discovered that he would not be deferred from the draft if he came back to the United States, he immediately cancelled his employment with Harvard and stated that he would remain abroad.

This was in the spring of 1953, he did not return to the United States.

He remained in England until August 1954 when I think, he was under pressure perhaps England actually did expel him.

He then went to Czechoslovakia in August 1954 where he has remained ever since.

He was indicted, I should say just to complete the story that he was order -- he was ordered at various times to report for a physical examination by the draft authorities in Massachusetts.

He refused to do so even though he was allowed to proceed to have himself physically examined in Frankfurt, Germany rather than to come back to the United States if it were more convenient for him to do so.

He didn't acknowledge these orders and he never complied with them.

He was finally given a direct order to appear for induction in September 1953 which he failed to do.

He was indicted a year later in December 1954 and that indictment is still pending.

Now, I should say at once that we make no plan and we have never made a plan that Dr. Cort is going to Europe, I mean in May and June of 1951 was for the purpose of evading the draft, it was not.

He went to take a position at Cambridge University.

We do make the claim that he remained abroad directly and specifically because he did not wish to serve in the armed forces.

Now, as I've mentioned, he remained in England until August 1954 and then he went to Czechoslovakia.

And the record contained some indication that when he went to Czechoslovakia in August 1954, he apparently told the Czechoslovakian authorities that he was stateless at that time because the record indicates that he had a permit, a residence permit in Czechoslovakia which indicated him as stateless.

Its equipped Page 87 in the record Mr. Justice and it's -- it appears from a statement on his later application for a passport.

It's rather hard to read on the Photostat but in the middle of the page, you will see there in typewritten form that he has a residence permit apprentice' stateless number so and so issued October 22, 1954 by a Czechoslovakian authority which was valid until October 22, 1959.

Now, Dr. Cort had a passport when he went to England which he -- which expired in 1952 – 52.

He did not seek to renew that passport until 1959.

In April 1959, he applied for a renewal of his passport and this was almost five years after he went to Czechoslovakia.

It was denied by the State Department on the ground that he had expatriated himself.

There was a review proceeding before the Internal Board of Review which is established in the State Department, was affirmed by them and by the legal adviser.

Now, I should say because it's important to the argument on the -- whether he is following the correct judicial procedure that the State Department indicated to him that he should apply for a certificate of identity which I will explain in a few minutes under Section 360 of the 1952 Act.

And that they had -- and the State Department had instructed the embassy at Prague to give due consideration to his application for a certificate of identity which would enable him to come to the United States and apply for admission to the United States as a citizen of the United States.

He had never sought a certificate of identity rather, in March of 1960 he brought this suit in the District Court.

Now, I think I am required by the principle, not reaching constitutional questions to discuss with the Court first, the procedural issue whether he has the right to bring this ordinary declaratory judgment action or whether he should've preceded under Section 360 of the 1952 Immigration and Nationality Act.

Now, at Section 360 is printed in our brief at pages 3 to 5.

It may be helpful before I go through and describe summarily the provisions of the statute if I summarize the contentions of the parties.

The position of the District Court below and of the appellee here is that Section 360, as a whole, is merely supplementary or additional to whatever other remedies may exist under the Regular Declaratory Judgment Act or the Administrative Procedure Act or the common law or the General Jurisdictional Statutes for Federal Court.

Justice William O. Douglas: I think he couldn't have applied under the Administrative --

Mr. Oscar H. Davis: Yes, but that he --

Justice William O. Douglas: Procedure Act?

Mr. Oscar H. Davis: That is right, Mr. Justice.

That is the position of the District Court below and of the appellees here.

The Government's position on the other hand is that, Section 360 is and was intended by Congress to be an exclusive, self-contained procedure by which persons in his situation were required to try to vindicate their claim to American citizenship.

And in particular, with respect to citizens' claimants abroad as Dr. Cort is that they would be required to follow the procedures of sub-sections (b) and (c), in other words, to seek certificates of identity come to a port of the United States and seek to vindicate to the normal exclusion proceedings of the immigration service there claiming that they are not aliens but citizens.

The statute provides in sub-section -- the statute I should say, covers both people citizenship claimants who are within the United States and those who are without.

Sub- section --

Justice Felix Frankfurter: Is this a scheme unique for this, for the application for a passport?

Mr. Oscar H. Davis: No, it covers all claims of denial of nationality whether it's done by passport or any other form.

It's unique for denials of American citizenship status.

Justice Felix Frankfurter: What's the date of this statute?

Mr. Oscar H. Davis: This is the 1952 statute.

Justice Felix Frankfurter: But it originated in 1952?

Mr. Oscar H. Davis: It originated in --

Justice Felix Frankfurter: And if according to your view, it would've required this procedure to be followed by Ms. Elg, is that right?

Mr. Oscar H. Davis: If it -- no, because Ms. Elg was within the United States.

Justice Felix Frankfurter: Yes, but this is an exclusive, is this permitted?

Mr. Oscar H. Davis: Yes, it would have -- at the time.

Justice Felix Frankfurter: As I understood you, this is an exclusive to people living abroad.

I'm really trying to --

Mr. Oscar H. Davis: No, in fact that's right.

Justice Felix Frankfurter: -- emphasize this the fact --

Mr. Oscar H. Davis: Yes, I would --

Justice Felix Frankfurter: -- and that would've statute (Inaudible)

Mr. Oscar H. Davis: Yes, I would try to show that that's what Congress when they established the form under this which is Section 503 of the 1940 Act, did intend to make an exclusive procedure but now the important thing for the moment is that as far as persons within the United States, they are entitled to bring a declaratory judgment action.

The statute says so in sub-section (a) with certain exceptions that is there has – it has to be brought within five years after the denial of their citizenship claim and it cannot be brought if the issue of citizenship arises or has a reason in an exclusion for saving that is specific in the statute.

Now, sub-sections (b) and (c) provide in brief that persons outside the United States have to seek a certificate if they wish to challenge the administrative denial of their claim, have to seek a certificate of identity and then come to the port of the United States and proceed through the normal immigration procedures.

I think I maybe most helpful to the Court if I spell out somewhat the history of this whole matter.

Start before the 1940 Act, the Nationality Act of 1940 was the first one in which Congress did try to establish a separate special procedure for testing -- judicially testing nationality claims.

Before that time, it had historically been true that the way that citizenship claimants outside the United States tested their claim to citizenship was by coming to the port and suing out of writ habeas corpus.

There's a well-known case of Ju Toy decided by this Court through Justice Holmes in 1905 which provided that that was the correct procedure that happen to be a Chinese case but it was applied by the lower courts and generally to non-Chinese claimants, that was the custom method.

Now, in 1934, Congress did pass the Declaratory Judgment Act.

I think I state this situation fairly when I say that it -- that there was some thought that perhaps the Declaratory Judgment Act might apply to citizenship claimants outside the United States.

Some ploy on the part of certain people but there had never been any judicial determination of that and that position was controverted by many people that -- who thought the habeas corpus was still the only remedy for citizenship claimants outside the United States.

Justice John M. Harlan: As a matter of fact, the General Declaratory?

Mr. Oscar H. Davis: Yes, the General Declaratory which was passed in 1934 before the --

Justice Felix Frankfurter: Did Elg originated Mr. Davis?

Mr. Oscar H. Davis: Elg originated under the General Declaratory Judgment statute.

Justice Felix Frankfurter: That's what I thought.

Mr. Oscar H. Davis: But she was within the United States and it's interesting to know that until the Elg case got to this Court, the Government strongly contested the right of Miss Elg who was within the United States to pursue a remedy under the Declaratory Judgment Act even though she was within the United States.

So, the conclusion that I draw from the materials is that there was no accepted view.

In fact, the prevailing view was to the contrary that an alien I mean, that a citizenship claimant outside the United States could not invoke the Declaratory Judgment Act but had to proceed by habeas corpus.

Now, this comes out too in the hearings on the 1940 Act because the people who represented the interests of aliens and citizenship claimants pointed out to the Congress that in the 1940 Act, Congress was establishing a lot of new procedures in which laws of nationality could occur and couldn't be tested because habeas corpus would be alright but how would you ever get to the country.

There are provisions of the statute penalizing steamship lines for bringing people to the country without proper documents and if it turned out that I came to this country and I turned out not to be a citizen and didn't have a visa or foreign code or number, the steamship line would be penalized and therefore they wouldn't want to take me at all.

And as a result of claims of that kind, that under the existing procedure there was no feasible method for persons abroad to test their right to relief, Congress adopted Section 503 which is on pages 5 and 6 of our brief.

Now, the distinction between Section 503 and Section 360 of the later Act which we have before us now is that 503 gave a declaratory judgment for everybody within and without United States and it provided that those without could get certificates of identity to come to the United States.

And it's pretty clear, we think, this came into the statute at a late stage, it was already going through Congress when it came in and from the statement of one of the managers on the part of the House which we -- which appears in our brief on page -- pages 28 and 29, Congressman Reece.

We think it's quite clear that there was great doubt as to whether declaratory judgment would be available to persons outside the United States and Congress thought that they ought to give -- to give such relief.

Justice John M. Harlan: How did this (Inaudible)

Mr. Oscar H. Davis: No, no, Mr. Justice, you mean under the earlier statute?

It provided that if you were outside the country and if you brought a declaratory judgment action, you could then get a certificate of identity to come to the country to prosecute your action.

If I may hurry on, we think that the history shows that though this was the intent of Congress, Congress later began to back up from this liberal view because after World War II, a large number of actions were brought mostly by persons of Chinese descent to test their claims of being derivative American citizens.

And in the space of I think five or six years over 1200 suits were brought and were clogging the courts in certain districts.

This was well-known to Congress, it was well-known to Congress.

And the Senate Judiciary Committee which had been entrusted by the Senate with the review of all these Immigration and Nationality legislation as a prerequisite to the new bill which did become the 1952 Act, they said that they thought that the old remedy of 503 of the liberal declaratory judgment proceeding had been carried too far.

And their recommendation was that the declaratory remedy judgment should be limited to persons within the United States.

They made no provisions at all for persons outside.

Presumably, those persons would have to follow the rule of habeas corpus even without a certificate of identity, they'd have to get to the country as best as they could.

And the reasons for these -- for this I think is that Congress thought, I think it's not important really whether Congress was right or wrong in so thinking but Congress did think that in these many cases which had grown up under Section 503, mostly the Chinese cases, that there had been fraud perpetuated on the courts, that the courts in declaratory judgment actions without any prior administrative proceedings or any prior administrative record had been unable to seized out the true from the false claims of American nationality.

And that what was needed was an administrative investigation and administrative record and then judicial review after administrative record had been accomplished.

Now, as I say, the Senate originally proposed that there being no remedy of any kind except habeas corpus for persons outside the country.

Now, the Department of Justice speaking through the deputy Attorney General Peyton Ford wrote to Congress and said, “We don't agree that persons outside the country who have a non-frivolous claim of citizenship should be debarred.”

And we think that we suggest that the procedure you should adopt was and this is on Page 33 of our brief that they shall be required to apply for admission to the United States at a port of entry and to go through the usual screening, interrogation and investigation, applicable and cases of other persons seeking admission to the United States so that the Immigration and Naturalization Service will have this complete a record as possible on each person entering this country claiming to be a national thereof.

And after that suggestion was made by Department of Justice to the Senate committee, the Senate committee amended its bill to provide the procedure of (b) and (c) which carries precisely into effect what Deputy Attorney General had recommended.

Now, I think it's important for the purposes of the -- of understanding what went on in Congress to realize that from first to last, the Senate insisted that declaratory judgment be limited to persons within the United States.

The House did not, the House Bill did extend declaratory judgment with certain limitations to persons outside but the Senate from first to last, insisted on this.

And that at the conference, it was the Senate Bill with very minor changes which have no effect at all on issue before the Court, the Senate Bill which was adopted.

The Senate proposal was adopted by the conference which went into the law as the Court will remember over the objection, over the veto of present term.

Now, it's also important that the Senate committee which recommended to the Senate the proposal which is as I have said, just -- just said was adopted by the Congress with minor modifications.

The Senate committee stated after amending its bill to provide for what Peyton Ford had suggested and this is on Page 34 of our brief.

“That the matter of fact of the provisions of sub-sections (b) and (c) is to require that the determination of the nationality of such person, that is, persons abroad shall be made in accordance with the normal immigration procedures, these procedures in full review by habeas corpus proceedings where the issue of the nationality status of the person can be properly adjudicated”.

Justice Felix Frankfurter: Mr. Davis, that is the last thing that you read that would cut out declaratory judgment all together, isn't it?

Mr. Oscar H. Davis: It says precisely in terms that the review shall be by habeas corpus --

Justice Felix Frankfurter: Habeas corpus?

Mr. Oscar H. Davis: -- and not otherwise in the statute.

So --

Justice Felix Frankfurter: But that would also cut out any argument to be derived from the Administrative Procedure Act?

Mr. Oscar H. Davis: I think that is right.

Our whole point is that this a self-contained procedure which supersedes the General Declaratory Judgment Law which fulfills the requirement of the Administrative Procedure Act that where Congress is set up --

Justice Felix Frankfurter: Special Act?

Mr. Oscar H. Davis: -- a special statutory provision for review the -- and that shall be the system for review.

Now, I mentioned before but I would like to bring out again that what Congress wanted is an administrative proceeding by which the facts could be brought out, the claimant would be there in person.

The immigration service which is, at least our expert body in this field, would be able to fair it out what information it could.

There would be an administrative proceeding subject to final administrative adjudication and then review by the courts because Congress felt that in the earlier declaratory judgment proceeding, the absence of this administrative proceeding had led to frauds and failure to obtain all the necessary evidence and proper determination by the courts on a proper record.

Justice Felix Frankfurter: I don't know what way it would cut but if you are right and he asked to come here, he would subject himself would he not, from jurisdiction?

In regard to any outstanding indictment, is that right?

Mr. Oscar H. Davis: Well, if he comes as a certificate of identity --

Justice Felix Frankfurter: Yes.

Mr. Oscar H. Davis: He comes as a person who is an applicant for admission.

Justice Felix Frankfurter: Unless you bring him within what Justice Holmes said in Ju Toy that he is not really (Voice Overlap) --

Mr. Oscar H. Davis: Well, I --

Justice Felix Frankfurter: -- physically in?

Mr. Oscar H. Davis: I think that he would claim that, I don't know what the Government --

Justice Felix Frankfurter: With that I don't have to decide --

Mr. Oscar H. Davis: Yes.

Justice Felix Frankfurter: -- at this moment?

Mr. Oscar H. Davis: Yes.

In other words, what Congress really decided I think is that for persons' nationality claims, American nationality claims, outside the United States, they were going to return to the system before 1940 where habeas corpus was the appropriate -- was the remedy but they were going to ameliorate it by providing for the certificate of identity procedure to enable him to come to the country more easily.

Justice William J. Brennan: Am I right Mr. Davis that the persons who seek entry on grounds other than citizenship are not (Inaudible)

Mr. Oscar H. Davis: To Section --

Justice William J. Brennan: (Inaudible) or whatever the Section --

Mr. Oscar H. Davis: No.

Justice William J. Brennan: Not that?

Mr. Oscar H. Davis: But they have to bring -- they have to come to the port; persons, aliens outside the United States have to come to a port and seek admission.

They can't, the Court held --

Justice William J. Brennan: They may proceed but (Inaudible)

Mr. Oscar H. Davis: Yes, but only after there has been the administrative procedure that is, they can't start abroad while they're abroad before they come here, subject to themselves to the regular administrative procedure which includes the making of a record and a final determination.

The Court specifically held in the Tom We Shung Case that they couldn't, they couldn't bring a declaratory procedure from abroad and what Dr. Cort has done is to bring this procedure from abroad before there has been this immigration proceeding.

Now, Mr. Boudin will obviously say that there has been a State Department administrative proceeding but that isn't what Congress wanted.

They wanted the immigration proceeding to take place before there should be judicial review.

Justice John M. Harlan: (Inaudible)

Mr. Oscar H. Davis: Mr. Justice Harlan, the answer I would give to you in that case is that Congress did not want him to be able to seek review except by coming -- getting to the country in habeas corpus.

Now, I will also give you the answer --

Justice John M. Harlan: (Inaudible)

Mr. Oscar H. Davis: That's right.

Now it maybe, and I certainly don't want to say this is so but it maybe, that the Constitution would -- would require some proceeding other than that for such a person but that's not applicable here.

Now, we think that there is obviously no constitutional difficulty with this procedure which Congress has established in Section 360 because --

Justice John M. Harlan: (Inaudible)

Mr. Oscar H. Davis: Congress has clearly throughout the years for the last 50 years been held by this Court to be empowered to require the exhaustion of the administrative remedies before – before judicial review and that's what Congress is required here simply that there be exhaustion of administrative remedies before you can come to the court.

In addition, it is required to return to the 19 – pre-1940 procedure of the Ju Toy Case which had been in effect for about 50 years.

Justice William O. Douglas: It seems like a harsh temptation of the harsh motive for Congress in treatment, if you assume all these people are citizens?

Mr. Oscar H. Davis: Well Congress didn't, that's precisely what it was Mr. Justice Douglas, (Voice Overlap) they assumed that many of them would not be citizens.

They assumed that many of them would be fraudulent claimants and that many of them would not be able to support their claim and because they assumed these as of many of them, they laid down this general rule which would of course cover some who would be able to maintain their claim but they did lay down the general rule because of their view as to what it happened under the earlier statute the -- what they thought of is the inadequate records, the fraud that had occurred.

I should say now because perhaps it will be brought up by my opponent that --

Unknown Speaker: Do you think it's necessary?

Mr. Oscar H. Davis: It isn't necessary for Congress in setting up a specialized procedure to say that a procedure shall be exclusive in terms.

We've used the example of Flemming against Nestor which is a review proceeding for social security cases, that statute does not say a note proceeding for review shall be brought under the General Declaratory Judgment Act or in under any other statute.

Just like this one, it says a person who wants to challenge may bring the proceeding and we think it's clear from the history of this Court that you don't have to have something saying explicitly, you shall not have a right under any other statute when Congress establishes a special statutory system.

I emphasize again that -- that Dr. Cort has been invited by the State Department to apply for a certificate of identity in Prague but he has not done so.

Justice John M. Harlan: Could I ask you one question this prior to this, maybe the statute required the citizen but prior for any further legal arguments, are there practical differences of the two?

Mr. Oscar H. Davis: The system, yes.

Justice John M. Harlan: System, I mean from the point of view of the administration there are practical significance, so?

Mr. Oscar H. Davis: Yes, there is a practical significance Mr. Justice Harlan.

One practical significance is that under the system like Congress' established the citizenship claimant is here, he can testify, he can be examined, he may refuse to testify but he is here.

Dr. Cort is not here, he is bringing the suit from abroad.

He may -- he is not here, he is not subject to cross examination and so forth.

The second thing is that when a suit is brought de novo with a District Court and this turn out to be true many of the Chinese cases, perhaps it's the fault of administration.

But there isn't the kind of development of the facts and the evidence which there is when an applicant applied at the door to the Immigration Service and the inspectors of the Immigration Service seek to obtain all the facts and make a factual investigation and so forth.

That just turns out to be a different kind of a judicial proceeding.

I think this is the -- it's akin to what moved Congress for 50 years to require the administrative proceeding Labor Board or ICC or whatnot and not to -- trusted upon courts initially that administrative proceedings in specialized areas sometimes have a greater ability to collect the facts to go further and investigate, the system evaluate the evidence.

And then after that's been done under the administrative determination was made, then there can be judicial review.

And I should say at once because that the question is also not here, what is the scope of administrative review once gone through?

That is not a question, it maybe that there would be de novo judicial review even in habeas corpus, which is possible; maybe that there would not be the provisions of the holding of the Ju Toy Case would still be considered to be the law but that is not the issue now because Dr. Cort has not proceeded through the administrative procedure.

I should turn now to the statute to the expatriation statute which is involved both in the proceeding case and in this case and the time remaining to me I don't wish to go over again the general arguments which have been made before and which are made in the briefs.

I would like to stress, if I may, that there are three grounds upon which the expatriation statute can be upheld but to discuss only one of them a little more extensive than the others.

To try to discuss the Trop Case and to indicate what possible difference, if any there may be, between the case of Dr. Cort who claim that he is stateless if he is denationalized by us in the case of Mendoza Martinez who was a national of Mexico.

The three grounds upon which a statute such as 401 (j) of the 1940 Act and 349(a)(10) of the 1952 Act are supported we believe, the Foreign Affairs power -- the power of Congress to sever its relationship with the person who repudiates all obligations of the United States, all authority of United States over him and third, the war power.

It's important with respect to the Foreign Affairs powers to recognize that this statute goes into effect only when you go abroad.

It's unlike the Trop Case in which desertion could occur in camps in the United States where there was no relationship to going abroad at all necessary in the -- with respect to the statute.

This statute is triggered only by a person who evades the draft by going abroad.

If hold up in the Tennessee mountains, it does not go into effect.

Justice John M. Harlan: For staying abroad?

Mr. Oscar H. Davis: For staying abroad, that is right Mr. Justice.

Undoubtedly, it will be said that there has been no proof that there's ever been any international difficulties or problems because of American national fling to countries abroad.

Well, that maybe so because in the past we've had statutes like these on the books since the civil war compulsory selective service only went into effect.

It was in effect in a civil war for little while and then in World War I.

Also, the countries of refuge have turned out like Mexico to be allied or friendly countries in World War II and World War I but Congress could properly consider what would the situation be if countries perhaps, not friendly counties perhaps, nearby countries that were not friendly would become centers of refuge and this affection by large numbers or people or draft evaders who were leaving this country to evade the draft not perhaps for personal motives or perhaps because they did not like the objectives of the military service, the Foreign Affairs purposes of a country, the objectives of a war that we might be engaged in.

It is not at all fanciful that in the situation like this, there could be a true international (Inaudible).

The United States tried to seek the return of these evaders in other countries, the country of the refuge could seek to protect them and claim that they shouldn't be returned and there would be difficulties.

But difficulties of a different order but I think bearing on this that occurred in the first part of a 19th century with respect to imprisonment of persons by a various countries and during the civil war, our witness to this.

Now, the other support for the position for the constitutionality of the statute is the fact that this man rejects all authority of the United States over him.

If I may be excused for using the corporeal phrase, “He thumbs his nose at the United States.”

He says, “I am going where you cannot get me.

There is no extradition, you cannot get me back, you cannot subject me to criminal punishment.

I have evaded the highest duty of citizenship, the military duty but you cannot do anything to me”.

Now, if citizenship is, as counsel in the preceding case said, a contractual tie, there is an obligation on the citizen perhaps the country has to protect it and to take care of him in certain situations but he has at least the obligation of subjecting himself to the authority of the country when a country through its duly constituted government tells him, “You do this and if you do not do this, you shall be punished”, and if he doesn't subject himself to that if he says, “You can't do anything to me.

I have gone completely beyond your power”, then he has really himself severed his relationship with the country.

He has himself abandoned his allegiance.

If I may, I'd like to reserve.

Chief Justice Earl Warren: You may, Mr. Davis.

Mr. Boudin.

Argument of Leonard B. Boudin

Mr. Leonard B. Boudin: Mr. Chief Justice, may it please the Court.

In approaching first the procedural jurisdictional issue, I put in the following way whether this citizen contest the decision of the Secretary of State to deny him a passport on the ground that he has lost his nationality under 349(a)(10), whether the test can be made under the standard procedure that the Declaratory Judgment Act, the District of Columbia Code and the Administrative Procedure Act or whether the citizen claimed must attempt to enter the United States and emphasize the word “attempt”, as Your Honors will see.

Under procedures relating to aliens and litigate the issue in a habeas corpus proceeding with whatever question of this stand as a proof there maybe against the Attorney General instead of in the proceeding against the Secretary of State.

Now in approaching this problem, I think we must face first the question of how the appellee, Dr. Cort was injured as the Court below held he was and by whom, what relief he sought and from whom, all of which have a bearing on both constitutional right, construction in the statutes there involved.

This lawsuit was not instituted because the man wanted to enter the United States or because he had a controversy, a real controversy with the Attorney General.

It was issued because a man was denied a passport by the Secretary of State who, under Section 211 (a) of 22 U.S. Code, is the only person who can give a passport and who is directed not to give passports under 212 of 22 U.S. Code if the person is not a national or one having allegiance or is not a citizen.

And the Secretary of State acted here under a power given to him by Congress in the Immigration and Nationality Act of 1952 Section 104 (a), the power to make determination with respect to nationality of persons who were abroad.

The only person who has given that statutory power under the Immigration Act, hence, this suit against the Secretary of State not for entrance, not for certificate of identity but for a passport and of necessity and injunction declaring the particular statute unconstitutional which was the basis for the denial of the passport.

Now, we have a suit here under three statutes and the statutes is set forth in our brief and they are the ones which I have mentioned before and on their face, I think there is no doubt but that absent the dispute which we have here over the meaning of 360, the appellee has a --has jurisdiction -- the court below had jurisdiction.

And I may say in analyzing this entire problem, I am bearing in mind the observation that had been made by at least one member of this Court presently and by Mr. Justice Holmes that we are concerned with the mischief.

The mischief that Congress wanted to repair when it passed 360 and that we are not concerned with the vicissitudes of legislation and we must not look into the motives of legislators certainly not unless there is a formal expression of the motive.

I think that all these grounds we shall be able to prove that our construction of the statute is correct.

I may say that while the Government begins by suggesting that 503 in 1940 was necessary for Declaratory Judgment Act -- action and Your Honors will recall that related to a declaratory judgment action for man that was here is one -- is one who is abroad.

Perkins against Elg then decided by this Court one year earlier in 1939 and therefore, Section 503 would not necessary to give the declaratory judgment action which the Government suggested.

But I want to change to what we must all do as we have been advised by Mr. Justice Frankfurter and by others turned to the face of the statute before we consider legislative history or arguments of counsel or arguments of proponents will always in asking for legislation see the worst as well as of their opponent.

Always therefore, dangerous taken what one said recounted for a legislative committee as a determining factor in the construction of legislation.

On its face, 360 deals exclusively with entry and it does not prohibit suit for declaratory judgment.

We take issue, we are glad that the Government has posed the issues as squarely with the statement in its reply brief at page 3, that 360 expressly covers the entire universe of citizenship claimants because the Government is clearly in error on that point.

It expressly does not cover those persons who are over the age of 16 --

Justice William O. Douglas: Whether to be applied to the other Acts?

Mr. Leonard B. Boudin: And who has never been in this country before.

It necessarily, as a practical matter, does not cover those persons who, like the amicus curiae and Mrs. Schneider are not able to leave and breakaway from their families and come here to litigate matters that may take two or three years or more in habeas corpus and we have seen how the Mendoza case, which is not a habeas corpus had been here for so many years, who cannot afford the financial cost of travelling to the United States to litigate the matter, who may be in military service even in United States Army or who may be ill or who may not want to leave their families.

It does not cover the practical matter for all these categories.

Now therefore, and it certainly doesn't cover the category of persons who happen to be abroad and who for example, merely want a passport to travel from England to Spain, as was the case of Donald Douglas Stewart, the motion picture writer who sued for a passport some years ago and secured it in the Court of Appeals, without ever coming to this country.

Now we --

Justice Felix Frankfurter: When you say the section isn't the purpose scheme isn't all inclusive, you mean there are practical difficulties in applying it but is it statutorily – is the Government wrong in saying that statutorily from its point of view to all the inclusive in the sense that there are specific other statutory provisions dealing with this subject which govern outside of this scheme?

Mr. Leonard B. Boudin: The Government, yes.

Well, this is a question we'll be placing our argument under the Declaratory Judgment Act as against 360 (Voice Overlap) the Government is wrong Your Honor.

Justice Felix Frankfurter: Yes, I understand that, if that's what you say.

This doesn't displace the Declaratory Judgment Act.

Mr. Leonard B. Boudin: But I would've --

Justice Felix Frankfurter: But I what I wonder, is there any provision -- is there any other existing law, statutory material that deals with this subject --

Mr. Leonard B. Boudin: No Your Honor --

Justice Felix Frankfurter: -- as against the justice you make if the hardships involved in making this all inclusive?

Mr. Leonard B. Boudin: I have -- first of all, there are no statutes other than the three upon which I rely, the Declaratory Judgment Act of 34 and the A.P. and so forth.

Secondly, our argument is not that this is a hardship statute.

Our argument is that Congress necessarily could not have intended to make this exclusive because it left out a whole category of people from the age of 16 to 100 who maybe living abroad and who have never been in this country (Voice Overlap) and why citizens --

Justice Felix Frankfurter: The upshot of which was the argument that this difficulties that you suggest are difficulties in operation –-

Mr. Leonard B. Boudin: Of the difficulties --

Justice Felix Frankfurter: -- from which you draw the inference presumably Congress didn't mean to cover that.

Mr. Leonard B. Boudin: They are more than difficulties in operation.

They leave out a large group which means that Congress could not have intended to mean that this statute is the only way to test nationality – it's more than operation.

Justice Felix Frankfurter: -- (Voice Overlap) -- because the housewife couldn't come here without disrupting a family.

Mr. Leonard B. Boudin: Well, I may have blurred the picture by indicating the housewife who couldn't come here, not disrupting a family without leaving her children.

Justice Felix Frankfurter: Or the soldier who couldn't physically come in.

Mr. Leonard B. Boudin: But let us take the case of the person who is over 16, who is not a housewife or a soldier, he cannot sue.

He is left out of the statute because the statute section 360 is limited to people who are under 16 and born abroad of American parents or people who have been in this country before.

The American citizen born abroad with age 18 or age 80 cannot sue under the statute if he has not previously been here and that is what I mean by saying that there is a category of persons whom Congress did not give the right to enter here.

Justice Felix Frankfurter: But there is no other specific statute except the Declaratory Judgment Act?

Mr. Leonard B. Boudin: Yes, and the idea.

Your Honor is quite right.

Justice Felix Frankfurter: Now, I just want to understand what you are saying.

Mr. Leonard B. Boudin: Now in analyzing the legislative history here, I want to point out if Your Honors will read the hearings on Section 503, the Nationality Act at 1940.

Your Honors will see that the issue posed there by a proponent of the bill, a very able immigration lawyer always was how to get people into this country.

And the Government responds, the response of Mr. Flournoy, as Your Honors know, was an expert in the field of nationality was well the only -- we think that they have a right to Declaratory Judgment Act and the answer of Mr. -- actually and the answer Mr. Shoemaker the Deputy Commissioner of Immigration was, “Yes, but if they come here, how will we get them out?”.

That was the problem, Mr. Butler the proponent of this thing, the late proponent was apparently under the impression and sometimes it is true that it is better for a man to be physically in a country where he can testify instead of doing it by deposition from abroad or by affidavit on a motion for summary judgment.

He wanted the people physically here and that was the only point of Section 503.

Now, when we come to this problem which is really before Your Honor which is Section 360, let us examine the legislative history referred to by the Government to see whether it supports its argument that the purpose of 360 was to reduce litigation, clothing with the expression used by Mr. Davis.

I have read the entire legislative history of course as has Mr. Davis of this particular statute 360.

There is not a word presented to the Congress that I have been able to find, which suggests that Congress was worried about the number of lawsuits.

This is unfortunately -- a fortunate – fortunately, a litigating country and very rarely do we worry about the number of lawsuits or their exception.

This was a case where Congress was concerned about one thing, were these Chinese, these 1288 as referred to by Mr. Davis, were they getting in here and then that is Mr. Erin's counsel for the Immigration Committee said, “Getting lost.

How are we going to get them out if they aren't really citizens?”

And so Congress determined that if a man wanted to come here, he was going to come here on the pretty rigid control of the immigration service as the explanation for a Deputy Attorney General Peyton Ford's remarks, “Not that Congress wanted to prevent the man from starting a lawsuit”, because right through this whole history, while it's true there are a lot of lawsuits, nobody complained to the Congress that it was the number of lawsuits that was the problem rather than that of entry and as pure speculation for the Government to say, “Well, there are few cases in which the courts on the West Coast has said there have been a large number of false identity cases”.

And then to say that's the reason it was in the minds of Congress when the committee reports and at testimony before the committee does not say so.

Now Your Honors will see from the very able amicus curiae brief filed here by the American Civil Liberties Union which I also am indebted, the Immigration and Naturalization said, as the expert on these problem immigrants, repeatedly said.

“We got to prevent this entry of people”.

It never said anything about a lawsuit.

And the Government's brief in Brownell against Shung, itself contains before this problem was highlighted, the following statement, “Section 360 of the 1952 Act provides that, persons claiming citizenship, even persons claiming citizenship who are excluded on the ground that citizenship is not established, may have the determination reviewed by habeas corpus”.

It didn't say people who are claiming citizenship had to go through habeas corpus, it was the excluded proof.

And Mr. Justice Clark, in his opinion -- in his opinion in the We Shung case which is a dictum on this point I think, discussed Section 360 and said, “Citizen claimants who hold certificates of identity”, as the group who wanted to come here, “are required by 360 (c) to test the validity of their exclusion by habeas corpus only”.

Respondent here said Mr. Justice Clark, he was an alien, but neither claim citizenship nor that he hold a certificate of identity and therefore, 360 has no bearing here.

And Dr. Cort, the appellee here has no certificate of identity and equally has no bearing because he has not been excluded because he hadn't sought entry.

Now, while we are going on in discussing 360, may I say that the Government has overlooked a parallel operation of great significance with going on here in the Congress.

And again, I'm indebted to Mr. David Carliner who wrote the American Civil Liberties Union brief because he points out at pages 11 through 18 of his brief that the Immigration and Naturalization Service were attempting during this entire periods from the 80th Congress to the 82nd in two ways, to take nationality matters out of the Administrative Procedure Act and to allow these matters to be determined only by habeas corpus.

Your Honors will see that the first method is by a direct amendment to the Administrator Procedure Act to say as one bill said that the functions or proceedings authorized under these Acts are limited to habeas corpus and that failed and I will not take the Court's time to indicate the various bills that ultimately failed.

The second method and even more significant is the attempt to create a new immigration law which eventually became the 1952 Act and to provide in that law that the APA was not to apply.

And here, we have the famous Section 106 which appears in Mr. Carliner's brief at page 13 in the footnote and I -- because that provides specifically that in all of these nationality and immigration matters, a 13 and 14 footnote, habeas corpus was to be the method to be determining these problems and the immigration service pointed that out repeatedly as we have indicated in our brief.

But Congressman Walter and Senator McCarran, the orphans of the Immigration and Nationality Act of 1952 would not accept Section 106 and they are set forth in Mr. Carliner's brief and in my brief.

His brief at pages 17 and 18, a very significant statement made by the Immigration and Naturalization Service by its illumination said the service, on Section 106, “The orphans of this bill have necessarily calls the situation to continue whereby decisions of the service can be reviewed not only by habeas corpus”, the Government says here, “but also under Section 10 of the Administrative Procedure Act, that basic Federal Declaratory Judgment Act and the declaratory judgment action under 360”, all three, this was the view of the INS.

Now, after the Immigration and Naturalization Service failed to put over its position, the bill was passed by the Congress with remarks on the importance of the application of the APA and Mr. Justice Clark in the We Shung Case, speaking for unanimous Court and Mr. Justice Black in the Pedreiro case, both pointed to the remarks of Senator McCarran and Congressman Walter as emphasizing the fact that the APA was going to apply, despite the passage of the subsequent legislation of the Immigration Act, and in Pedreiro, despite the fact that habeas corpus had only previously been held in (Inaudible) to be the message intended by Congress in the statute, the 1917 Immigration Law to determine deportation matters, APA Section 12 would help with the conclusion and to require that it be applied in cases of deportation and in Pedreiro, this Court held the same with respect to exclusion proceedings.

Justice Hugo L. Black: May I ask you --

Mr. Leonard B. Boudin: Please sir.

Justice Hugo L. Black: What the argument with the certificate of identity is, it is we see Section -- if that institution we see Section 360?

Mr. Leonard B. Boudin: I think they're -- I'm quite sure Your Honor.

And my only question was whether it preceded (Inaudible)

Justice Hugo L. Black: (Inaudible)

Mr. Leonard B. Boudin: I don't recall whether finance --

Justice Hugo L. Black: Well that's --

Mr. Leonard B. Boudin: (Inaudible)

Justice Hugo L. Black: Well, that administrative device or whatever you call it, that mode of identification of starting some action was intended by this 52 Act, wasn't it?

Mr. Leonard B. Boudin: No, it definitely would not Your Honor.

Now, I -- point Your Honors I make the point, what the Government said in the We Shung Case in its brief, “As is in the highest degree unlikely that Congress intended to give the one conceitedly an alien seeking admission a greater writer review than was made available to persons claiming American citizenship”.

And yet the effect of the Government's position here would mean the We Shung and Pedreiro, admitted aliens, have to -- can start a declaratory judgment action and we admittedly one said at least we think presently, an American citizen have to go through what Mr. Justice Clark pointed out as significant here the odium of arrest and detention.

And I pass over just for the moment, we'll cover if there's time the -- what happens to a man when he comes in as an alien?

And the amount of surveillance that is committed and the control and the question of whether or not Dr. Cort would ever be relieved from actual arrest if he came here not because of the indictment alone but because having one stead prior to 1951, remember the communist party.

His question is to whether he is not an excludable alien and therefore not admitted at all under the Alien Act.

Now, the government says that 360 set out what it called the special statutory review proceeding relevant to the subject matter and adequately to the meaning of Section 10 of the APA and therefore the APA doesn't apply.

To this --

Justice Hugo L. Black: I don't want to take your --

Mr. Leonard B. Boudin: Please.

Justice Hugo L. Black: -- time; you have such a short time for the merits.

But, just state with the argument, just tell me whether the declaratory judgment remedy derives from the Administrative Procedure Act and what this Court has construed it?

Mr. Leonard B. Boudin: No, Your Honor.

Declaratory remedy derives from the Declaratory Judgment Act of 1934.

It is independent of the Administrative Procedure Act.

Justice Hugo L. Black: That its foundation but does the -- its application to this type of case, the deportation of passport cases, is that derived from the generality of the statute or why wouldn't Ju Toy apply, that you must first have an administrative determination if you don't rely on the Administrative Procedure Act?

Mr. Leonard B. Boudin: Well, of course Declaratory Judgment Act was passed in 1934, the Ju Toy was long before the Declaratory Judgment Act.

Justice Hugo L. Black: I understand that but the Declaratory Judgment Act undue the reasoning underlying Ju Toy that when you deal with these problems, you must first go to the administrative.

Mr. Leonard B. Boudin: Well, Ju Toy did not say --

Justice Hugo L. Black: (Inaudible) that we have argued here I don't --

Mr. Leonard B. Boudin: No.

Justice Hugo L. Black: -- think it -- if we decide, is there any decision of this Court, just inform me, in which we held, result to declaratory judgment cases in matters that involved issues that bring into play factual determination by administrative authority like Immigration and Nationalization Service the right from the Declaratory Judgment Act of 34 and eliminates all that preceded into that to Immigration and Nationalization Act.

Mr. Leonard B. Boudin: I'll answer you.

I think Your Honor was on the Court in Perkins against Elg.

Perkins against Elg was exactly that problem.

Mrs. Elg was involved in the deportation matter, was withheld pending the suit for declaratory judgment.

This Court held that a Declaratory Judgment Act would lie under the 34 Act.

Justice Hugo L. Black: She claimed to be the citizen?

Mr. Leonard B. Boudin: She -- so do we here, claim to be a citizen, exactly.

Justice Hugo L. Black: Yes.

Mr. Leonard B. Boudin: We're in exactly the same position as this held.

Justice Hugo L. Black: Yes but -- but have I been taking much time but this you know legislation wasn't any -- my point about Elg was, of course, one remembers was that you didn't have all these legislation at the time, available.

Mr. Leonard B. Boudin: Well, and the question what this legislation means whether 360, you didn't have one thing we now have, which is the APA so that we have an advantage over Ms. Elg.

Justice Felix Frankfurter: But the APA makes an exception as to special Act.

Mr. Leonard B. Boudin: Now that's exactly what I'm coming down to on whether or not this is a specialized statutory procedure.

And also whether or not it is relevant to the subject matter that as the requirement in 10 (a) and whether or not it is adequate but that's all --

Justice Felix Frankfurter: But I'll be denying of this, you make –- as I understood your answer, to Justice -- subject earlier, you say, you could go either under 360 or the declaratory judgment, isn't that right?

Mr. Leonard B. Boudin: Of course, but this is -- that doesn't mean the 360 is adequate and not onerous.

Justice Felix Frankfurter: But I think it's adequate but it certainly is a special statutory recollection.

Mr. Leonard B. Boudin: Well, the question is whether the special statutory proceeding within the meaning of 10 (a) and let me address myself to that.

First --

Justice Felix Frankfurter: I think that's rather --

Mr. Leonard B. Boudin: Oh, I think it is relevant.

I don't think --

Justice Felix Frankfurter: It's more than that --

Mr. Leonard B. Boudin: I don't think --

Justice Felix Frankfurter: Because if it is, if -- you can't invoke the Administrative Procedure Act.

Mr. Leonard B. Boudin: Yes.

Yes we can Your Honor unless the special statutory where will be stating is relevant to the subject matter and that is exactly what I want to point out Your Honor why it's not and unless it's adequate.

Justice Felix Frankfurter: Of course, if it is irrelevant for me than the special procedure.

Mr. Leonard B. Boudin: Well that's a different thing.

I won't address myself to that problem.

We say it is not a special statutory proceeding relevant to the subject matter because Section 360 deals with the subject of entry and they dispute with the Attorney General about the right to enter.

And because our dispute, unless it were a contrived one which this is Court had disapproved of in the past as history indicates, is not with the Attorney General.

The subject matter of this lawsuit as a passport denied by the Secretary of State, not exclusion imposed by the Attorney General and this is exactly what the court really did in Perkins against Elg, when it granted Ms. Elg's cross-petition to certiorari because she was not satisfied with the release she had against the Commission of Labor, a Secretary of Labor who then had the power of the Attorney General over immigration.

She wanted a passport and this Court reversed the Court below and directed that an injunction issue against the Secretary of State in her suit for passport.

Justice Felix Frankfurter: But 360 says, it denied or by any department --

Mr. Leonard B. Boudin: That is correct.

Justice Felix Frankfurter: By any department, is that the difference here?

Mr. Leonard B. Boudin: But --

Justice Felix Frankfurter: Whether the suit is against the Attorney General or Secretary of State.

Mr. Leonard B. Boudin: But then we come down to the question of adequacy, is it an adequate remedy in this situation and in many others that I could indicate if we had time, to require a person situated as Dr. Cort to come here as an alien subject to all of the procedures of the Immigration and Nationality Act affecting aliens subject to detention, possibly to be held without bail?

And is it adequate to require him to do that?

But even before we come to that question of adequacy, let me show Your Honors what would really happen if the Government is right, we would have to ask the Secretary of State first for a certificate of identity.

If the Secretary of State refuse to give it, some courts have held that he cannot be sued so we could never get here.

Some Courts have held that he can be sued but that the order which denies -- which denies a relief in interlocutory order and can't be appealed.

Suppose, however, we prevail in lawsuit number one against Secretary of State, then we arrive here and the Attorney General takes us into custody then we move for the year or two into litigation on habeas corpus.

And finally, it is held if the Attorney General takes the position that we're excluded, it is held by the courts, let us say, that Dr. Cort is a citizen and not excludable.

This does not compel the Secretary of State to give him a passport.

Oh, he may as a matter of fair play, but we heard yesterday of government agencies, (Inaudible) all citizens are bound by the decisions of the courts.

But what if the Attorney General allows Dr. Cort after administrative hearing to come in -- in here agreeing with our contention that Dr. Cort had not lost his citizenship, then what would happen?

We would have had two lawsuits, Secretary of State identity one, Attorney General administrative one but what would've prevail there without going to Court?

And then the Secretary of State will say, “Well I made a determination that Dr. Cort is not a citizen.

I'm not going to agree with the Attorney General.

The one who makes the determinations under 104 of the Immigration Act.

You have to sue me”.

So we have three lawsuits here certainly not an adequate remedy for a man who merely wants a passport and a declaration of citizenship.

And the Court of Appeals of Frank against Rogers which agrees with us on this point and other courts had made this point that will require several lawsuits and therefore the remedy is not adequate.

Justice John M. Harlan: I'd like to ask you a question, the District of Columbia Circuits gone with you consistently?

Mr. Leonard B. Boudin: Consistently, Your Honor.

Justice John M. Harlan: What's been the situation on the other end --

Mr. Leonard B. Boudin: The other as --

Justice John M. Harlan: -- of the court?

Mr. Leonard B. Boudin: Sorry.

The others as we indicated in the large footnote to our brief, had not really had this problem because the suit, the 360 problem really only arose in a suit -- in a suit brought in the District of Columbia.

I don't want to take the time at the moment to question into the statutory now, but the only case is that really have a bearing are those in the District of Columbia.

Now, we say therefore that there is no universality here and that what we -- what the Government is trying to make us have is they can try dispute with the Attorney General when we only have a dispute with the Secretary of State.

And that even if these were a special statutory remedy, it is by no means the proper one because it is inadequate and it doesn't touch on the subject matter of our dispute.

Now briefly turning to the substantive issue in this case, I point out that this Court dealt with a desertion in 12 that four justices, the remark was made early this morning that it was four or five justices held that it was punishment.

And four of the justices held that the desertion provision that is, expatriation for desertion.

Desertion provision was barred by the Eight Amendment whereas one justice, Mr. Justice Brennan held that it was not barred by the Eight Amendment but by the Fifth Amendment because he regarded, there being an unreasonable (Inaudible) connection between the punishment and the war power.

Now, these considerations and more which I will touch upon briefly led the Court to the conclusion, to that conclusion are present in this case because the draft delinquency provision and the desertion provision as Mr. Justice Brennan pointed out in his concurring opinion and of course the Chief Justice in the principle opinion in Trop, they both have a common origin and purpose.

Indeed there in the same sentence, if we disregard a semicolon of the same Section 21 of the Act of 1865.

It really would require, I think, a reversal of a great deal in Trop to come to a different conclusion here.

But there are additional factors which because of time I will merely touch upon which would lead the Court, I hope even those members of the Court who did not participate in the majority decision here because they were the minority or because they weren't on the bench, to say that in this case, the application of this statute there is a violation of due process.

First, I call Your Honors' attention to the fact that this is an offense, a lower serious offense, less serious from the violation in Trop, it is punishable by death.

This is of course five years and one case as Mr. Davis' counsel argued this morning pointed out, there was a very serious violation of a duty once a man is a soldier.

Secondly, this is under a statute providing for a loss of citizenship without judicial trial or court-martial and this point that was made by the Chief Justice in Trop in commenting in passing and as a point that was made by Mr. Justice Frankfurter in his Trop dissent, when he referred there to a conviction duly resulting from a proceeding conducted in accordance with all of the relevant constitutional safeguards.

Thirdly, this statute doesn't even name the tribunal, court-martial or otherwise, that is ultimately to make the determination which was made by the Secretary of State.

Fourthly, we have addressed ourselves to the statutory presumption which we think was implicit in the board's decision below and even in the Courts although it wasn't mentioned and say that -- that is an unreasonable presumption.

And finally, we point out that the result in this case is statelessness.

Now, we agree with counsel, Mr. Davis, who argue this morning that the fact that he has a client who were to do a Masteral doesn't mean that he isn't being punished within the meaning of the Eighth or the Fifth Amendment as you consider it here because he still reflected Mexican nationality.

And we are not suggesting there should be a differentiation between the two cases.

We are saying that here, the Court is squarely faced for the first time with the statelessness issue and that it must take it into consideration determining the reasonableness of the punishment, point made by Mr. Justice Brennan in his concurring opinion in Trop.

How reasonable is it to impose not only alienage but statelessness in a world in which everyone knows or require no oration by me, indicate a significance from the point of view of national life, state and federal and from the point of view of international life where you're left without the protection of your country.

And it was in, I think, Nishikawa that Mr. Justice Harlan commented on the fact that in Nishikawa, they were dealing with the man who was merely turning back to his other nationality.

Now, I turn you for a moment to the impact at first which Mr. Davis has relied upon although we rely upon and they say the views expressed by Mr. Justice Whittaker and as a principle laid down in Perez.

It is Perez' dissenting memorandum when he pointed out that there was no possible embarrassment to our foreign relations and so to here.

But if we take the majority opinion in Perez, that it's predicated upon a statement that the people or government of a foreign country may regard the action in so -- the action in Perez to be the action of his government.

This was voting, Your Honors will recall or at least as a reflection, if not an expression, of its policy.

Now, surely nobody will suggest that the man who remains abroad to avoid his draft obligation is speaking for the United States of America or reflecting the policy of United States and therefore we don't have that particular problem.

I may also say that this developed foreign relations argument which we have here, was not made by the Government's very thoughtful counsel.

I think the same in Gonzales against Landon where they have the same legislative history to rely upon, the same consideration of policy and yet the foreign policy consideration was mentioned in a word possibly in passing.

None of the highly developed, what I think as afterthought here attempt to ascribe to Congress, a worry about foreign relations.

Now, the point is made by Mr. Davis that there was flight from this country passing over the question of whether or not there was flight when in this case considered there wasn't flight but remaining abroad.

But let me point out that Congress never intended the flight or remaining abroad problem to be the consideration here because the 1865 statute referred to not only leaving the country but leaving the district of your draft board, hardly proof of the concern for foreign relations in moving from New York to Philadelphia.

Secondly, the present statute is phrased in terms of leaving the United States to remaining abroad, not entering a foreign country.

I think that's not a critical point but in some indication that Congress in not using the words “remaining in a foreign country” or going to a foreign country wasn't thinking of the foreign relations problem.

There is absolutely no legislative history to show a concern with foreign relations.

In the 1865 statute which the Government has several times said in Gonzales, in Perez, in Nishikawa, was an omnibus military statute -- military measure, there is no indication that when the statute came forward again in 1878, the revised statute, in 1912 that -- or in 1944 that there was a concern for foreign relation.

All of this is very skillful, very able theoretical analysis by counsels such as we always engage in of course but is not the reflection of the view of Congress.

And indeed, why did not, if this was a foreign relations problem, the Cabinet Committee of 1938 include draft evasion with delinquency -- with desertion?

There was the Secretary of State sitting on the Cabinet Committee.

It was not until 1944 that we had the problem raised by the Attorney General, the Chief Enforcement Officer of the Government and this is dealt with in the brief but in emphasizing the fact that this was an intention to punish people for avoiding their obligation.

Justice Felix Frankfurter: But it wasn't raised by the Cabinet Committee because the evil hasn't disclosed itself.

Mr. Leonard B. Boudin: Well, the evil had a chance to disclose itself from 1865 on --

Justice Felix Frankfurter: No.

Mr. Leonard B. Boudin: If there was an evil.

Justice Felix Frankfurter: From 1865 down to 1940 allowed a weakling of memory, doesn't it?

Mr. Leonard B. Boudin: But -- no.

But there is nothing if -- assuming there are weakling of memory Your Honor, I think the counsel was able enough to find evidence of congressional concern if that has existed between 1865 and 1944 concern over foreign relations so I'm talking about it.

But let me just address myself for a moment to the question of sovereignty, the sovereignty of the United States.

I will not repeat what Mr. Davis said this morning and the obligations of a citizen.

Of course the man who remains abroad to avoid the draft is violating a cardinal attribute of citizenship -- of responsibility of the citizen.

And so is the person who violates the tax laws and so is the person who is otherwise delinquent in his duties to the Government including the man who has served, let us say, in the Government and who has betrayed the public trust and so is the person who, this Court said in Blackmer against the United States violated his duty of citizenship when he didn't return to the United States to testify pursuant to the subpoena in (Inaudible).

All of these are very important obligations of citizenship, that isn't the point.

The question is whether they can be punished by carrying one out of the body politic and saying, “You are not a citizen anymore, you are stateless here”.

I grant you that these are important obligations of citizenship but that doesn't determine the problem.

I know that Judge (Inaudible) a very able judge in all Southern District in New York very often said that he will impose a very serious punishment for the tax evader.

I heard him deliver address on that once because he said, “This is the most serious offense that he regards, the man who will not support his own country by cheating on it when it comes to taxes”, and the Blackmer thing is where this Court previously decided.

This Court has never decided that in the exercise of what is called “sovereignty”, it may take away citizenship from a citizen.

In (Inaudible) McKenzie against Hare, it recognized the transfer by what it regarded as the unilateral decision of the citizen to adopt another nationality.

There was a general discussion of sovereignty but it didn't say that in the absence of this clear intention to transfer, there was going to be -- it was going to be an exercise of sovereignty.

And neither in Trop nor in Perez nor in any other case thus far coming to this Court at the very elaborate arguments of the Government made brilliantly I may say by Mr. Davis usually, persuaded this Court that independent of foreign relations, independent of the war power which connects this is as just a punishment, there is some vague sovereign power which allows the Government to say that the citizens who theoretically control it, you are not one of us anymore, get out, become an alien or a stateless person.

This Court has not yet and I hope will not in this case go so far as to say that this general doctrine of sovereign power must prevail where, under the foreign relations power and under the war power, it is impossible to sustain a continuous statute.

I thank Your Honors.

Chief Justice Earl Warren: Mr. Davis.

Rebuttal of Oscar H. Davis

Mr. Oscar H. Davis: Mr. Chief Justice, may it please the Court.

I would like to say because we don't covered it in our brief that the material on which Mr. Boudin relied which appears in the American Civil Liberties Union brief on the issue of 360 relating to the general legislative history of the 1952 Act in Section 106 which was proposed and which was deleted that that entire subject deals with aliens with the problem of deportation and exclusion.

The immigration service did try to get a provision which will make the findings -- administrative findings conclusive, not renewable at all even in habeas corpus and that was rejected.

And this Court in the Pedreiro and the Tom We Shung cases did hold that declaratory relief would be available for deported aliens or aliens ordered deported or aliens ordered excluded but two things are very important.

One is, that the 1952 statute has no provisions for judicial review of alien exclusion or deportation are matters unlike Section 360, one, and two, that the court allowed declaratory judgment after there had been the administrative hearing and there had been a final determination and there was an administrative record, not before as in this case.

Chief Justice Earl Warren: Mr. Davis, how do you answer Mr. Boudin's argument that there is a large class of citizens who are without this law and if it is exclusive, there is no procedure provided for those people to gain after except United States?

Mr. Oscar H. Davis: My answer Mr. Justice is that when that issue arises, it will have to be decided whether Congress could constitutionally provide, as I think it's sought to do, that citizens who -- Americans going abroad who had never physically been present in United States, the only excluded class are people born abroad who have never physically been in the United States and who are over 16 years of age, that's the only exclusive class never who'd have --

Chief Justice Earl Warren: No -- no rights of any kind --

Mr. Oscar H. Davis: I think --

Chief Justice Earl Warren: -- no procedure.

Mr. Oscar H. Davis: I think Congress intended that.

Chief Justice Earl Warren: Is there --

Mr. Oscar H. Davis: I think the issue --

Chief Justice Earl Warren: -- anything in the legislative history that would indicate that?

Mr. Oscar H. Davis: The fact that this occurs again and again that they want to exclude this class of -- they want to exclude from the provisions of the statute this class of persons.

I would think that the Court would have to determine whether that could constitutionally be done.

Of course they do have the right to come to the courts and seek habeas corpus.

Now, that Congress did not seek to take away from them.

They could come to Canada, Mexico or to ports if they get there.

Justice Felix Frankfurter: May I suggest another answer.

Mr. Oscar H. Davis: Yes sir.

Justice Felix Frankfurter: Namely, Section 10 of the Administrative Procedure Act.

Mr. Oscar H. Davis: If it's inadequate.

Justice Felix Frankfurter: Deals with the existence of a specific act.

When it is inadequate, it doesn't follow because the procedural provision normally added is to be restricted in its meaning because in a particular class of cases as an inadequate (Inaudible), then it could be taken care of by declaratory judgment.

Mr. Oscar H. Davis: Yes, I think that is correct.

Now on the issue, may I say just one thing?

Chief Justice Earl Warren: You may take it for the remaining two minutes.

Mr. Oscar H. Davis: Thank you sir.

On the merits of constitutionality on the issue of punishment, I would just like to recall that the Court which it probably well now is already that it is three times recently said explicitly that to accuse Congress a punishment when Congress did not think that it was imposing punishment would require a tremendously clear showing.

It did that and said that in the Flemming and Nestor case, in the New York Waterfront case, the De Veau against Braisted and in the Communist Party case on which the hearing was denied yesterday.

I think you will not find in this -- in the legislative history of the statute or the terms of this statute anything that could require Your Honors to say that there had been such a clear showing that what was not punished in Perez is punishment in this case.

I think rather Congress was thinking that it was exercising other functions than the functions of punishment and that it was not seeking to impose punishment without criminal -- without punishment in the constitutional sense without criminal procedure which as the Constitution requires and must be followed if punishment is to be imposed.

Featured:

Kennedy v. Mendoza-Martinez - Oral Reargument, Part 1 (No. 3)

Tue, 25 Sep 2012 16:39:48 +0000

Case:

Kennedy v. Mendoza-Martinez

Media File:

3_19621204-reargument-1

Related Transcript:

3_19621204-reargument-1

Transcript:

Argument of J. William Doolittle

Chief Justice Earl Warren: Number three, Dean Rusk, Secretary of State Appellant versus John Henry Cort.

Mr. Doolittle.

Mr. J. William Doolittle: Mr. Chief Justice, may it please the Court?

This is another expatriation case.

Appellee Joseph H. Cort was denied a passport by the Secretary of State on the ground that he had expatriated himself under Section 349(a)(10) of the Immigration and Nationality Act of 1952 by remaining outside of the jurisdiction of the United States in time of national emergency for the purpose of evading military service.

When the case was here last Spring, this Court decided that the District Court had jurisdiction to entertain appellee’s suit for a judgment declaring that he is a citizen and enjoining the Secretary from denying him a passport on the ground that he is not and the Court held that Section 360 (b) and (c) of the Act did not provide the exclusive procedure by which he could attack an administrative determination that he was not a citizen.

The Court ordered the merits of the case reargued and so today there is squarely presented for decision the constitutionality of Section 349 (a)(10), which is the statutory successor to Section 401(j) of the Nationality Act of 1940, whose constitutionality is at issue in the Mendoza-Martinez case just argued.

The facts are essentially undisputed.

Cort was born in Boston in 1927.

On turning 18 in 1945 he registered under the regular Selective Service Act and shortly thereafter was classified 4(f).

He later registered under the Universal Training and Service Act of 1948 and under that Act was classified 3(a) and subsequently 2(a).

Then he attended the Yale Medical School from, which he received the MD degree in 1951, June 1951.

Shortly prior to graduation in May 1951, he registered under the Doctors Draft Act.

In that same month, May 1951, he departed for England to accept a research fellowship at the University of Cambridge.

In September 1952, while he was still in England on that fellowship --

Justice William J. Brennan: May I ask Mr. Doolittle did he have to [Inaudible]

Mr. J. William Doolittle: He was required to obtain permission.

It appears that there was a little bit of confusion in his mind at this time.

The time for him to register had not yet arrived when he registered.

You see he left actually before graduation, before he was an MD.

He got the -- he discussed the matter with the local draft board, also discussed it with the draft advisor at Yale.

Justice William J. Brennan: [Inaudible]

Mr. J. William Doolittle: Yes, the problem that he had and his draft advisor at Yale, who was a member and the faculty, advised him that he was sure this would be all right and at the local board in New Haven with which he had registered was fully advised.

Now there is a bit of a problem in that he -- his registration was actually with -- his registration, his regular registration under the regular draft was with a Board in Brookline, Massachusetts, which was not informed of this, but we do not regard that as bearing on his intention in leaving.

Justice William J. Brennan: [Inaudible]

Mr. J. William Doolittle: His departure --

Justice William J. Brennan: [Inaudible]

Mr. J. William Doolittle: That's right Your Honor, we don't contend otherwise.

As I say in 1952 September, while he was still in England, he was classified by his local board in Massachusetts as 1 A medical.

Later in that same year he received an offer of a position as an instructor in physiology at Harvard Medical School.

In December of 1952, he wrote a letter to the authorities at Harvard accepting the position and indicating that he had obtained transportation to return to Massachusetts, to the United States in June 1951, excuse me, in June 1953 and that he would be prepared to start work in July or August at the medical school.

On the same day, he wrote to the Massachusetts Medical Advisory Committee, which was an organ that was assisting the draft boards in their operations under the Doctors' Draft Act.

He wrote back to the committee, requesting a deferment from military service on the ground that his teaching position at Harvard would be essential.

However, the authorities at Harvard, after considering the question, decided that the teaching position could not be justified as essential and they notified the Massachusetts Advisory Committee of that fact and they also notified Mr. Cort.

Thereupon the advisory committee recommended to the Selective Service Authorities, that Cort be considered available for active military service.

And in February 1953, Cort was sent a notification by his home draft board that his request for deferment had been rejected and ordering him to report for a physical examination either at home or at an examining facility at Frankfurt Am Main in Germany.

Cort received this order, but he failed to obey it.

During the Spring of 1953, Cort exchanged several letters with the authorities at Harvard who --

Justice William J. Brennan: That was before at that time.

Mr. J. William Doolittle: At that time he was in England at Cambridge, yes sir.

Justice William J. Brennan: He was told to report I Germany?

Mr. J. William Doolittle: He was told to report either at home or in Germany for a physical examination.

In the Spring of 1953 Cort and the authorities at Harvard exchanged several letters.

The authorities at Harvard noted the desperate need of the military services for physicians and explaining why they couldn't hold his position to be essential.

They suggested perhaps he might wish to seek a military commission.

Cort ended the correspondence with Harvard in 1953 with the statement that his application for a position would have to remain on file.

In June 1953, the local draft board again ordered Cort to report for a physical, this time at home.

Then in July it ordered him to report for a physical in Germany.

Then in August 1953 it ordered him to report for induction at home.

Cort received each of these orders and failed to obey each of them.

Approximately one year later, in August 1954, upon the failure of the British Government to renew his residence permit, Cort traveled to Czechoslovakia where, in his words, he took political asylum.

He did not travel on a valid American passport because his passport expired in 1952 and he did not get it extended.

He was admitted to Czechoslovakia as a stateless person, presumably on his own representation to that effect.

Now later this same year, 1954, he was indicted in the District of Massachusetts for failing to report for induction into the armed forces as ordered and that indictment is still pending.

On taking up his residence in Czechoslovakia, Cort was employed by the Institute for Cardiovascular Research, which is an organ of the Ministry of Health of the Czechoslovak Government.

He lived in Prague with his wife and his two children were born in Czechoslovakia during that period.

I might note at this point that his two children are American citizens and as far as I can determine not Czechoslovak citizens.

Almost five years later, in April 1959, Cort applied for an American passport at Prague.

Six months later this application was denied by the State Department on the ground that Cort had expatriated himself under Section 349(a)(10) of the 1952 Act, and this finding was affirmed by the department's Passport Board of Review after a hearing in December 1959.

Thereupon Cort instituted this suite against the Secretary of State for declaratory judgment and an injunction in March 1960.

A three-judge court was convened to hear his constitutional arguments and in October 1960 the court issued its decision, in which it held first, that the government was required to prove that Cort had committed an expatriating act by clear, convincing and unequivocal evidence.

That the government had met that burden in demonstrating that Cort's purpose in remaining outside of the United States had been for the purpose of evading military service.

However, the court held that Section 349(a)(10) of the Immigration and Nationality Act of 1952 is unconstitutional, feeling compelled so to hold as a result of this Court's opinions in Trop against Dulles.

This case is here on direct appeal by the Secretary of State.

I might add just as a footnote before I proceed to my argument that in fact a passport was issued to Mr. Cort by the State Department, in January 1961, but he has not yet returned to United States.

Now we submit first that there is no question, but that Cort committed the act, that Section 349(a)(10) makes an expatriating act and the only factual issue as to which there was any disputes, the three-judge District Court unanimously found and I quote, “We are convinced that his purpose was to avoid service in the armed forces.

The appellee does not in his brief at least seem seriously to challenge this finding.”

We don't believe that there is any basis for challenging and as I said in December 1952, Cort conveyed to the authorities at Harvard his plans to return including the fact that he had obtained transportation to return.

Justice William J. Brennan: May I ask Mr. Doolittle [Inaudible] issued a passport in January 1961?

Mr. J. William Doolittle: Yes sir.

Justice William J. Brennan: [Inaudible]

Mr. J. William Doolittle: Well it issued under the requirement of the decision of the District Court and we sought a stay of that decision in this Court and we were denied it, so we were required to issue him a passport.

Justice William J. Brennan: [Inaudible]

Mr. J. William Doolittle: Well its premise of course on the decision of the District Court, which we've been unable to get a stay, which not only requires us to issue a passport, but declares him to be a citizen, the department was doing nothing of what it was required to do.

Justice Potter Stewart: And so far as [Inaudible] so far as you know he is still in Czechoslovakia?

Mr. J. William Doolittle: As far as I know Your Honor.

Justice Potter Stewart: Although since, what more than a year he has been…

Mr. J. William Doolittle: Almost two years he is been able to come.

Justice Potter Stewart: Been able to come to this country.

Mr. J. William Doolittle: Yes.

Justice Potter Stewart: Didn't his wife in 1959 try to make arrangements for him and try to make a -- negotiate an agreement under which he could come?

Mr. J. William Doolittle: She returned to the United States in I believe it was 1958 perhaps 1959 and did negotiate with Selective Service Authority, the Department of Justice and State Department trying to workout something, actually with the army as well to perhaps obtain him a commission or something, but all of this led to nothing.

Justice John M. Harlan: Is the draft of that is still pending?

Mr. J. William Doolittle: Yes sir it is.

Justice Potter Stewart: And of course the statute of limitations is total?

Mr. J. William Doolittle: That's right, for his absence from the country.

Justice Potter Stewart: But that --

Justice William J. Brennan: Did the children [Inaudible]

Mr. J. William Doolittle: Yes Your Honor.

Justice William J. Brennan: [Inaudible]

Mr. J. William Doolittle: No that's derived from his wife's citizenship.

Justice William J. Brennan: Were they born after United States [Inaudible] Act?

Mr. J. William Doolittle: Yes sir, but her citizenship alone is sufficient to acquire for them American citizenship.

There are certain requirements, which I assume have been fulfilled in order for this to be the case.

I might say she has to have lived ten years in the United States of which five were after the age of 14.

Now from the fact of the record that we can tell about her, I'm quite sure that, that was the case with Mr. Cort.

I was covering the -- in very summary form the basis for the government's contention that there is no question, but that Mr. Cort did commit the expatriating act.

As I say, in December 1952 he indicated that he had already made plans and arrangements for transportation to return in June 1953 and on the same day, this is the 29th of December in 1952, knowing his service obligation, having been informed that he was classified 1 A medical he sought a deferment.

Now in February 1953 when that deferment was denied and he was ordered to report when he saw that he in fact was going to be called upon to fulfill his obligations, then suddenly everything changed and from then on he made it quite clear that he had no intention whatever of coming back and we submit that this series of circumstances could not be more clear.

Now he has suggested a number of reasons why he allegedly remained in England.

For one thing he suggests that he believes the -- he believed at that time that the induction order was not issued in good faith.

Now we submit that the circumstances under which, as he well knew the induction order, or I should say originally the order to report for a physical was issued, there could be no question of its good faith.

He had applied for a deferment on the ground of the essentiality of his perspective employment.

He knew that the Harvard authorities in good faith denied the essentiality of the position and we submit the procedure from there on was so clearly regular that he was then -- his deferment was denied, he was ordered to report.

There could be no question, no serious questions as to the good faith with which the orders were issued.

He also contended that he didn't want to go back because he was afraid he would persecuted for his political associations, but up until the time he received the notice to report for a physical examination, he intended to go back whatever the consequences might be.

He also said that he thought that his physical disabilities under which he had originally been classified 4F back in 1945, would be such as to render him ineligible for military service.

However, he must have known the doctors were not being held to as high standards as others and in any event the best way to find out would have been to report to the physical and get that determined.

Appellee rests primarily on the challenge to the constitutionality of the statute which of course is the ground on which the government brought the case here.

Now this challenge presents substantially the same questions as those involved in the Mendoza-Martinez case because Section 349(a)(10) is virtually identical to Section to 401(j) of the 1940 Act, slightly updated by the adding of the Air Forces to the Land and Naval Forces.

The only notable difference is the addition in 1952 of the provision that if a person failed to comply with the compulsory service laws his absence from the United States is presumed to be for the purpose of evading military service. However, that presumption is not involved in this case.

The District Court's decision was reached solely on the basis of the evidence actually in the case and the government does not rely on the presumption at all.

I would like to address myself to one way in which this case does differ from the Mendoza-Martinez case, and that is the fact that Cort lacks alternative citizenship, that is that if he is expatriated under Section 349(a)(10), he will be without citizenship in any country.

I might note at the outset that in the government's view this fact has no bearing on applicability of the statute, the underlying problem with which the statute sought to deal is present whether the invader has alternative citizenship or not, and Congress evidenced no intention whatever in its own deliberations that the statute should be limited to one classification of citizens or another, the benefit shall be of course to citizens who are subject to the draft.

We do submit that whatever difference it may make that Cort does not have an alternative citizenship.

The difference is more theoretical than real and it certainly is not a difference of constitutional proportions.

Whatever banishment may have involved in Roman times, whatever outlawry may have involved in the middle ages, we submit that there is not the remotest basis for comparing those conditions with statelessness in the civilized world of today.

Many studies, as both sides have pointed out, have been made in recent years on the problem statelessness, stemming largely from the problems of mass denationalizations in Europe, the problems of refugees and what not.

But there is nothing in any of these studies to indicate any probability whatsoever that persons who lose their statelessness -- lose their American citizenship could become stateless persons, will in fact suffer serious hardship as a results of that stateless.

Quite the contrary as a result of this increased interest in the problem of statelessness brought about not because of individuals like Mr. Cort, but by the problems of mass refugee migrations, significant efforts have been made by both national governments and international organizations to alleviate such problems as do remain in this area.

We submit that this is where the problem belongs in the political organs of government and not in courts.

Justice Hugo L. Black: What would be his status here in this country?

Mr. J. William Doolittle: He would --

Justice Hugo L. Black: What would be his status here in this country if he is stateless and comes back later on?

Mr. J. William Doolittle: Well I might say Your Honor, in all candor, Mr. Cort could not come back.

There is a provision whereby a person who has left the country to evade the draft is excludable.

Justice Hugo L. Black: But of course if he did come back he couldn't get privileges and immunities --

Mr. J. William Doolittle: No citizenship that is true, that is correct, that's correct Your Honor.

Unknown Speaker: [Inaudible]

Justice William J. Brennan: Well if he returned of course he would be subject to the indictment that has been brought against him.

Justice William J. Brennan: [Inaudible]

Mr. J. William Doolittle: Pardon?

Justice William J. Brennan: To let him into [Inaudible]

Mr. J. William Doolittle: Well I don't know how that could be done Your Honor.

He is as I say excludable absolutely under the immigration law for having left the country to evade the draft.

Justice Hugo L. Black: When you say [Inaudible] if he came back what would happen to him, would he be deportable?

Mr. J. William Doolittle: Yes, sir presumably.

Justice Hugo L. Black: To where?

Mr. J. William Doolittle: Well -- no I should say Your Honor if you were allowed to come into the country, I can't imagine the circumstances, I can't imagine the procedures under which he would be, because as I say he is excludable.

Justice Hugo L. Black: But --

Mr. J. William Doolittle: But if he did come back in to be tried, no there would not be a ground to deport him because he would have entered the country legally.

Justice Hugo L. Black: So what would be his status?

Mr. J. William Doolittle: Well he would be an alien who could not be deported.

Justice Hugo L. Black: He would be an alien who didn't even have the privileges of an alien, wouldn't he?

Mr. J. William Doolittle: Well I don't know any reason for supposing that Your Honor.

Justice Hugo L. Black: Well there is certain privileges and immunities which a man has even as an alien.

Mr. J. William Doolittle: And I suppose that he would be entitled to all of those.

There is no reason for supposing that he wouldn't.

An alien is described as one who is not a citizen and that perfectly describes him.

Justice Hugo L. Black: Well then the states wouldn't have to recognize any of the privileges of immunity as a citizen.

Mr. J. William Doolittle: Well he -- of course he does not have the privilege and immunities of the United States citizen.

Now certainly as far as --

Chief Justice Earl Warren: Mr. Doolittle just to straighten this out, I understood you to say that he has the passport for two years.

Mr. J. William Doolittle: Not quite.

Chief Justice Earl Warren: It hasn't?

Mr. J. William Doolittle: Will be two years in January.

Chief Justice Earl Warren: Somewhere along that line and hasn't chosen to come back.

Mr. J. William Doolittle: Yes.

Chief Justice Earl Warren: Then, I thought I also understood you to say just a moment ago that he would not be permitted to come back.

Mr. J. William Doolittle: Well I'm talking to Your Honor -- well that's assuming that the government's position is sustained in this case.

Chief Justice Earl Warren: Oh.

Mr. J. William Doolittle: Pending the litigation he -- because the stay of the District Court's order was not granted by this Court.

We had to issue a passport, he could come back, but I'm assuming that statute is valid and the litigation is over.

Justice Arthur J. Goldberg: [Inaudible] he said in his affidavit that he wanted to come back but he has not chosen to do so.

He would then be an alien legally admissible to the United States with all of the rights of an alien under any result that might happen.

Mr. J. William Doolittle: Well, Your Honor pending this litigation for all legal purposes, he is a citizen, he is declared to be a citizen by the District Court and we have not been able to stay that decision, so he can come back as a citizen.

Justice Arthur J. Goldberg: Yes, but I'm assuming, suppose you're right here, even then he would have been legally admitted to the United States and would be an alien resident?

Mr. J. William Doolittle: Oh yes if -- that's right.

If he were allowed back in and for purposes of participating in this litigation or of serving a term for draft evasion, yes of course he could be legally admitted if that could be accomplished.

Justice Hugo L. Black: We have pervious [Inaudible] most of the countries in the world about how we'll treat that aliens, the states have to abide by it.

Would any -- would he have any of that protection from anywhere else?

Mr. J. William Doolittle: He would not certainly have the protection of whatever rights some other country had been able to obtain for him.

Justice Hugo L. Black: He would have no rights that an alien has from any country that has a treaty with us.

He would have no rights, privileges and immunities of this country under the Fifth Amendment.

Mr. J. William Doolittle: As a citizen that's right.

He would have certainly some rights just as a resident alien.

That is to say a person who is living in this country who is a resident alien is not one who can be treated with impunity by anyone.

This Court --

Justice Hugo L. Black: Their main protection, do they not come from treaty?

Mr. J. William Doolittle: The protections are -- of course he has fewer protections than as a citizen has.

Now one thing I would like to emphasize is that so far is Mr. Cort himself is concerned there is not the vaguest hint in this record that he is experiencing or would experience any hardship as a result of his status of statelessness.

Czechoslovakia admitted him eight years ago as a stateless person and despite its full awareness of his status.

There is no indication that it has treated him in any but the most hospitable manner.

He is at all times held the position, a responsible position in a government research institute.

He is continued his very extensive writings in the field of medical research.

He speaks Czech fluently, as well as speaking a number of Eastern European languages.

He is seen fit to have both of his of children born there.

He went almost five years without seeking an American passport and he has had a passport for almost two years, but has not seen fit to exercise his rights.

We submit that at least as far as Mr. Cort is concerned there is no basis for supposing that statelessness has imposed any difficulties upon him.

But the more important --

Justice Arthur J. Goldberg: You are not pleading the American citizenship with Czechoslovak citizenship.

Mr. J. William Doolittle: No, Your Honor, but what I want to emphasize and what I am discussing here is the difference between statelessness and well, dual nationality, a person who has another citizenship.

I am simply saying that, that as far as his situation is concerned it is not significantly different from one who had another nationality.

Indeed, I might point out that the very circumstances that I have cited to you might very well be taken to indicate that he didn't regard a Czechoslovakian citizenship as such a very bad thing after all.

Justice William O. Douglas: Well I don't what this has to do with the merits.

He either has a legal right or he doesn't have a legal right.

These equities, these so called equities you're talking about are highly relevant.

Mr. J. William Doolittle: Well, what I'm addressing myself to Mr. Justice Douglas is the question of whether or not statelessness is in any genuine respect equivalent to be an outcast banishment and so on, but more particularly whether it's significantly different from the person who has his citizenship taken away but has no alternative nationality.

But the point that you just raised is equally applicable to both persons; one who has no alternative nationality and one who has, that's my point.

Justice William J. Brennan: [Inaudible]

Mr. J. William Doolittle: We don't know, Your Honor.

I think we have a fair basis.

For example, Mr. Cort's situation itself gives us some basis for knowing that here is one person at least whose situation we do --

Justice William J. Brennan: [Inaudible]

Mr. J. William Doolittle: Well, Your Honor, who is to know what's to be true of anyone who has nationality in another country.

Justice William J. Brennan: [Inaudible]

Mr. J. William Doolittle: Well, Your Honor, and it also, it might be very different if he had some other nationality.

You see the point that I am addressing myself to is not whether the nothingness between having an American citizenship and not but having no citizenship and having another non-American citizenship, and for that matter the United States cannot require that other country shall protect their citizens and assure them civil rights.

Justice William J. Brennan: [Inaudible] I have little difficulty in understanding what any body could [Inaudible]

Mr. J. William Doolittle: But Your Honor --

Justice William J. Brennan: [Inaudible]

Mr. J. William Doolittle: Well, I would also suggest that we have no basis for knowing what would be the status of a dual national, who lost his American citizenship because we can't require his other nationality to protect him to give him civil rights.

He may be just as badly treated in the country if his other nationality is as a stateless person, we can't do anything about it.

Justice William J. Brennan: [Inaudible]

Mr. J. William Doolittle: Well, quite possibly it's been suggested in argument here that a state -- that a person of dual nationality would not look forward to --

Justice William J. Brennan: [Inaudible]

Mr. J. William Doolittle: I would not look forward to having anything but my American citizenship, Your Honor.

Now, the second reason, and in my view really the most important reason why statelessness as such cannot be said to be an intolerable consequence of expatriation and I emphasize that I --

Justice William O. Douglas: That is a permanent [Inaudible] or a variable or something.

Mr. J. William Doolittle: If that's possible that that would about as bad as I could imagine.

Whatever the hardships --

Justice Hugo L. Black: It was possible, wasn't it?

Mr. J. William Doolittle: In the case of the man without a country apparently.

Whatever the hardships of the status of statelessness, the important point is that there is no basis for assuming that a stateless person need remain stateless indefinitely against his will.

The most notable trend in the nationalization procedures of the nations of the world has been in the direction of liberality.

What this means is that any person who wishes to avoid statelessness can acquire the citizenship of another state.

We have shown for example, on page 54 of our brief that Mr. Cort appears to be fully eligible to acquire Czechoslovak citizenship by naturalization.

The record does indicate affirmatively that he has not applied.

However there is nothing to suggest that he might be turned down, if he did so.

If the day should come when it could be shown that all doors to other nationalities were closed to persons who lost their American citizenship, the argument of statelessness is a too drastic consequence that might have some weight.

As it is we submit that no one can complain of the hardships of statelessness who could end that status with little difficulty.

Now I should like very briefly since of course the constitutional questions involved in Mendoza-Martinez are involved in this case, I should like very briefly to summarize the government's position in that case -- in this case.

Justice William J. Brennan: The statue is identical, is it not?

Mr. J. William Doolittle: With the qualifications, the minor and inapplicable qualifications that I've indicated that's right Your Honor, identical.

Justice Potter Stewart: Well is that statutory presumption?

Justice William J. Brennan: Yes.

Mr. J. William Doolittle: Well as I pointed out Your Honor that is not involved in this case.

Justice Potter Stewart: It was relied on very heavily administratively.

Mr. J. William Doolittle: That's right Your Honor, but the trial in this District Court was the trial de novo and the District Court did not rely on it.

Justice Potter Stewart: It didn't even mention it?

Mr. J. William Doolittle: Pardon?

Justice Potter Stewart: District Court didn't even mention it.

Mr. J. William Doolittle: That's right.

We believe that the statute is sustainable as counsel in Mendoza-Martinez have stated under three interrelated heads of government power; the war power, the foreign relations power and the inherent power of any national government to regulate its own citizenship.

We submit that without doubt a departure from this country to evade military service in wartime raises the most serious problems, and problems that are cognizable under the war power.

We believe that the problem of the inequality, the gross inequality of treatment as between those who risk their lives by service and those who sit out the war from security of a foreign shore is an extremely serious problem and one that must be dealt with by a country deeply engaged in war.

Justice William J. Brennan: What was the fact here, [Inaudible]

Mr. J. William Doolittle: This was in 1953, I don't believe all the shooting had stopped there.

Justice William J. Brennan: [Inaudible]

Mr. J. William Doolittle: Well perhaps you're right Your Honor.

I don't know.

Certainly we're not relying on the precise situation that was involved in this case.

I'm of course directing myself to the problem that Congress was trying to meet.

Justice Hugo L. Black: I understood that you're repeating the statement that in view of the powers of the government, do you mean by that powers that are not granted in the Constitution either expressly or impliedly.

Mr. J. William Doolittle: Yes.

Again, Your Honor to repeat the argument of Mr. Terris, we believe that the power, for example the power of foreign affairs is an inherent power of the government.

We believe it's not one that's to be implied from anything in the constitutions, it's inherent in any country with solvency and similarly we believe that the power to regulate citizenship --

Justice Hugo L. Black: Do not find any constitution authority directly recognizing the government, Federal Government's power to conduct foreign affairs?

Mr. J. William Doolittle: Well there is nothing, there are no specific words in the Constitution covering the powers to regulate foreign affairs, that's right and that it is justifiable as an inherent power, a power that a sovereign government has to have in order to operate in the nation -- in a world of sovereign governance and we submit similarly just as all other countries recognize their own power to regulate citizenship in the national government, in the national state, that the Federal Government of United States has that power.

Justice Hugo L. Black: That's disturbing, because I had supposed that if there is anything it was settled in this country at an early date, the laws of the Federal Government had no power except that, which was expressly granted and granted by the necessary implications and the necessary [Inaudible].

Mr. J. William Doolittle: Well, our reading of the case is notably the Curtiss-Wright case.

Justice Hugo L. Black: Well what about reading of the Constitution?

Mr. J. William Doolittle: Well, Your Honor the constitution sought to, if you will, divide up or allocate the powers that might be allocated as between the state and the Federal Government, and our point is that the inherent powers of a sovereign government were never there for division between state and national government.

They are the powers of a national government and could scarcely be given to states other than sovereign states.

Justice Hugo L. Black: You have to look to something inherent that's not in the Constitution nor defined that the Federal Government has failed to make the treaty.

Mr. J. William Doolittle: Not to make treaties Your Honor.

Justice Hugo L. Black: Well what are they?

Mr. J. William Doolittle: Pardon?

Justice Hugo L. Black: What do they represent?

Mr. J. William Doolittle: Well, that is certainly part of the foreign affairs power Your Honor, but the general foreign affairs power, for example the power to make executive agreements and generally to conduct negotiations with foreign states, that had to be considered as an inherent power of any sovereign state.

We submit that the alternatives available to a Congress wishing to deal with the serious problem created by the gross inequality of treatment that I refer to, forced Congress, the exercise of the foreign affairs powers of the government to adopt the alternative of expatriation.

The other alternatives as Mr. Terris has pointed out were simply not acceptable, would involve the government in embroilments with other states and that it could not afford particularly in wartime and therefore that it was reasonable for Congress to adopt the procedure of expatriation.

As in Perez the termination of the fugitive's citizenship terminates the problem.

No more could gross inequality of service as between citizens of the United States sap the morale and effectiveness of the nation's fighting force, because those who would abandon their country no longer had citizenship.

Also as in Perez, there are elements of a transfer of allegiance in this act of expatriation; that Congress might quite reasonably regulate under its inherent power over citizenship.

Here we have a citizen abandoning his country, relinquishing his allegiance to this country in the time of its greatest need.

We have that act and then in addition we have the act of his interposing between himself and his own country, the sovereignty and protection of another country and we suggest that this is a genuine transfer of allegiance such that Congress clearly has the inherent power to regulate.

We submit that there is no due process infirmity in Dr. Cort's expatriation.

Dr. Cort's citizenship was tried out in a full de novo judicial trial.

The government had the burden of proof, the burden of proving that he had committed an expatriating act, and a high burden it is; clear, convincing and unequivocal evidence that does not leave the issue in doubt.

This is a standard that is closely akin to the criminal standard and we submit that it fully satisfies all requirements of due process of law.

We submit too that this act of expatriation, this provision making departure from the country to evade military service is not a punitive act.

We believe that its independent derivation to meet a specific wartime problem bespeaks its independent basis and its independent regulatory purpose.

In fact I might say that it was introduced by the Justice Department does not in anyway suggests that it has a punitive basis.

The Attorney General is the President's principle law officer and when he introduces legislation in Congress it cannot be said that he is simply speaking for the prosecuting branch of the Federal Government.

Justice Potter Stewart: Mr. Doolittle is there any independent legislative history behind this 349(a)(10) as contracted from 401(j)?

Mr. J. William Doolittle: Not at all Your Honor.

Nothing except as we've indicated to show that it was intended just to be carried over into the new statutes, but there is no independent focus on it of any --

Justice Potter Stewart: One-way reports.

Mr. J. William Doolittle: No, nothing like that Your Honor.

At issue of course in this case is the constitutionality and not the wisdom of an act of Congress.

The question is whether Congress had the power to deal with the problem of great moment and if so whether it's selection of the means for doing so was within the range of rational choice.

We believe the power and the reasonableness of Congress in acting Section 349(a)(10) are clear, but whatever doubts there maybe are we submit insufficient to overcome the presumption of constitutionality.

We submit that the judgment below should be reversed.

Thank you.

Chief Justice Earl Warren: Mr. Boudin.

Argument of Leonard B. Boudin

Mr. Leonard B. Boudin: Mr. Chief Justice and members of the Supreme Court.

There are as we see it four issues in this case.

First is the fundamental constitutional issue, that is whether or not Congress can take away citizenship by reason of a person remaining abroad for purposes of avoiding the draft particularly, although not necessarily limited to the factual situation here, where he is an American citizen by birth and where the result would be to leave him stateless.

This would be, if the Court were to reverse the Court below on the basic constitutional issue, the first case in the history of this country where an American citizen by birth was deprived of his citizenship through an act of Congress.

The second issue still before the Court despite the absence of comment by the District Court, is whether or not the presumption is a valid one.

Since I think we shall be able to show the Court that the presumption here was the basis of the decision which expatriated Dr. Cort, namely the decision of the Nationality Board and the Department of State, and since absent the presumption, we think there is an absence of clear and convincing evidence under the Mishawaka doctrine.

Our third point is of course that there is no clear and convincing evidence and the fourth is reliance upon the Huber and the Kurtz case, because in those cases, in one directly and in the other by adoption, the principle was laid down that constitutionally one could not be given a punishment such as the loss of citizenship under the 1865 Statute in that case, without a trial, whether it was a trial by a civil court or a military court, but a trial and not by a government administrative agency, an ad hoc group appointed in the Department of State.

While I have the highest regard for the individual members of that board, before which I appeared, they still do not represent a Court under our judicial system.

And now I want to briefly turn to the facts, because although I had intended to rest principally on the constitutional arguments and to show what has not yet been shown today, although it was so ably shown earlier by Mr. Davis in his first argument, that the 1865 Statute dealt with two problems; desertion and draft evasion and that the disposition of this Court in Trop necessarily required the same decision here.

But on a rereading of the record and a recognition of the fact that not only this case, but it is conceivable that the preceding case maybe decided on facts or could be decided on facts less than the constitutional issues.

I think I must address myself to the facts insofar as they have not yet been brought out.

Now I shall not repeat the counsel for the government so ably and for the most part accurately, except for one or two smaller things that I will try to correct, as stated as the facts in the case.

Dr. Cort, as the record shows and this is hardly a defense, is and was from a very early age an eminent physiologist.

He went to England not for the purpose of avoiding the draft, but for purposes of research work in the field in which he is extraordinarily competent and internationally known in the field of kidneys and physiology.

While he was there, he did have correspondence with Harvard Medical School and here the government is slightly in error as to the dates, because it was before he received his draft or notice, that Harvard suggested to him and Your Honors will read the record here, that there was not much point said Harvard in his coming there since although his department head thought he was necessarily and should be free from the draft, other people, the acting being different.

And so before he received the notice of February 9, 1953; the notice sent on that day and the Court will take judicial notice, it takes several days to get to England.

On January 31 the future head of Dr. Cort's department, this appears at 138 of the record, wrote him and said he thought it inadvisable for Dr. Cort to take the job and Dr. Cort concurred by letter dated February 10.

Then came the various notices and we have said we received those notices, although we have not stipulated as to when they were received, the notice is to report for examination and then finally came the last notice, the significant one upon which the indictment is based, that of August 13, 1953 directing Dr. Cort to report of induction on September 14, 1953.

Now faced with this, what did the Board of Nationality Review do?

It said that on December 29, 1952 Dr. Cort intended to teach at Harvard, and that there was no evidence that he had changed his mind between December 29, 1952 and February 9, 1953.

And therefore said the Board of Nationality Review, we rely upon the presumption that in remaining away in disregard of draft board notices, Dr. Cort remained away for the purpose of avoiding the draft.

The Board apparently as I have just looked at the original record, and I will confirm it tomorrow, did not have before it, the correspondence with Harvard, which would have explained that Dr. Cort did not on when he first received the draft board notice intend to go to Harvard because about ten days before that Dr. Cort had been told by Harvard that it didn't want him.

This was an administrative board hearing, it moved principally with oral argument from me and a few exhibits, and it is quite understandable, quite aside from the constitutional problems involved, that the Board was a little, shall we say sloppy at it's handling the problem and didn't have all the evidence.

It was later on when the matter came to the District Court that the government came out with the few more exhibits, the correspondence with Harvard, which clarified the Harvard picture, but hardly showed that Dr. Cort was remaining abroad for the purposes of avoiding the draft and so when the Court of Appeals and the District Court.

Justice Hugo L. Black: Do we have that issue to decide?

Mr. Leonard B. Boudin: I think Your Honor's may have that issue to decide.

Justice Hugo L. Black: Whether he was remaining away to avoid the draft.

Mr. Leonard B. Boudin: That is the -- that's the job of the government before it can expatriate Dr. Cort.

It must prove under 349(a)(10), the statute is set forth the pages two and three of my brief that Dr. Cort was remaining abroad for the purpose of avoiding the draft.

It must make that value judgment, a value judgment made by the Board of Nationality Review and by the District Court.

Justice Hugo L. Black: What did the District Court say about that?

Mr. Leonard B. Boudin: District Court said that in its view Dr. Cort had remained abroad for the purpose of avoiding the draft because said the District Court, he had intended to take a job at Harvard, which showed that he was interested in coming to the United States.

Justice Hugo L. Black: But wouldn't that be enough in the absence of any statement by him?

It seems to me like you've got very grave and important questions, and I wasn't -- up to this time I didn't suppose we had to consider this at all.

Mr. Leonard B. Boudin: Well I must admit Your Honor that I had concentrated on the constitutional issues up to now, but I do think that in view of the fact that Dr. Cort's affidavit, the only sworn document that there is here, is in the record, in which he denies having remained abroad for the purpose of avoiding the draft and that affidavit is not contested.

Justice Hugo L. Black: Would you deny that there's been a trial on that issue?

Mr. Leonard B. Boudin: Yes, I definitely deny that there has been a trial on the issue.

The only kind of a trial that might have occurred, which would have comported with the elements of due process would be a trial under the indictment of course for the violation of the Selective Service Act, and that trial has not yet occurred, and of course what occurred before the Board of Nationality Review could under no stretch of the imagination be considered a trial of the issue.

Justice Hugo L. Black: Well that raises a constitutional question in itself.

Mr. Leonard B. Boudin: I think it does and we come down to that --

Justice Hugo L. Black: And I referred to that in my -- one of my opinions and the opinion I wrote in Trop.

Mr. Leonard B. Boudin: Your Honor did, and we relied --

Justice Hugo L. Black: Relevant to a military trial.

Mr. Leonard B. Boudin: Except in Trop, Your Honor was dealing with a military trial and we haven't even had a military trial.

Justice Hugo L. Black: That's correct.

Mr. Leonard B. Boudin: This is one of the rare cases where I would not mind a military trial, we had no trial.

We merely had a Board sitting there on an ad hoc basis as I indicated, saying on the basis of the oral argument of counsel, correspondence between the parties, we think this man remained abroad, and we have come to the conclusion despite his sworn statement to the contrary that he has remained abroad for the purpose of avoiding the draft.

Unknown Speaker: Well I think they really say that he has failed to overcome the statutory presumption.

Mr. Leonard B. Boudin: They did Your Honor and of course I address myself to the statutory presumption next.

We think that the statute presumption is a perfectly irrational one falling before this Court's opinion in Tot and that --

Justice William J. Brennan: [Inaudible]

Mr. Leonard B. Boudin: Not a single word.

Justice William J. Brennan: Now that's the case [Inaudible] trial and no trail [Inaudible] what was the trail in the district court?

Mr. Leonard B. Boudin: District Court was a hearing upon affidavits.

Dr. Cort submitted elaborated affidavits in which he explained why he had remained abroad, a matter that I have not yet come to, but which I shall have to.

Justice William J. Brennan: What of the government?

Mr. Leonard B. Boudin: The government's case was, and he had correspondence with Harvard that he intended to have job at Harvard, and how can he say that he didn't want to come back to the United States?

Justice William J. Brennan: This is what the evidence was?

Mr. Leonard B. Boudin: Preciously.

Justice Hugo L. Black: Would you object to that kind of a trial, is that here?

Mr. Leonard B. Boudin: I think that I have an old point Your Honor, I'll indicate more clearly tomorrow, a claim that we were entitled to a full trial and that the statute did not gave the constitutional type of trial to which were entitled.

Justice Hugo L. Black: Even -- and what you're saying as I understand it is, that even the statute is constitutionally valid, they can't hide in the fashion in which they did on affidavits.

Mr. Leonard B. Boudin: I would add to that.

Justice Hugo L. Black: Is that it?

Mr. Leonard B. Boudin: Yes, but I would go a little farther.

It could not be constitutionally valid because the statute provides for no trial.

Justice William J. Brennan: Well this whole [Inaudible], this is a Fifth Amendment argument.

Mr. Leonard B. Boudin: Yes is it Your Honor.

Justice William J. Brennan: [Inaudible]

Mr. Leonard B. Boudin: That is correct sir.

Justice William J. Brennan: Is that it?

Mr. Leonard B. Boudin: That is correct.

Justice Hugo L. Black: Civil Rights and trial by jury might have something to do with it.

Chief Justice Earl Warren: We will recess now.

Featured:

Kennedy v. Mendoza-Martinez - Oral Argument, Part 1

Tue, 25 Sep 2012 22:33:58 +0000

Case:

Kennedy v. Mendoza-Martinez

Media File:

2_19611010-argument-1

Related Transcript:

2_19611010-argument-1

Transcript:

Argument of Thomas R. Davis

Chief Justice Earl Warren: Number 19, Robert F.Kennedy, Attorney General of the United States, Appellant, versus Francisco Mendoza-Martinez.

Mr. Davis, you may proceed.

Mr. Thomas R. Davis: Mr. Chief Justice, may it please the Court.

This case is here on direct appeal from a judgment of the Southern District of California under 28 United States Code 1252 and it's here on direct appeal because that Court held invalid a statute of Congress, Section 401 (j) of the Nationality Act of 1940, providing that person subject to the draft who leave the country for the purpose of evading draft are expatriated, lose their nationality and Section 1252 provides for direct appeal to this Court from the judgment of any court of the United States holding invalid a statute of Congress.

As the Court will no doubt recall, the case has been here twice before at the October term, 1957.

The case was remanded after the decisions in the Perez and Trop cases relating to expatriation for foreign voting and expatriation for desertion.

At that time, the District Court held the statute unconstitutional and it was again appealed by the Government directly to this Court.

After the argument of the case, the Court sua sponte, found in the record a lurking question of collateral estoppel which it thought beclouded the record and it remanded the case to the District Court with permission to the parties to amend the pleadings to raise that issue.

And the case was so remanded and as I shall stand in a min -- state in a minute, that issue was resolved adversely to the appellee by the District Court and the District Court again held the statute unconstitutional and the Government again brought the case here.

Now, in this posture of the case, there are two issues before the Court.

One is the non-constitutional issue on which the Court remanded the case the last time.

That is the issue of collateral estoppel because Mendoza-Martinez, the appellee had been convicted of draft evasion in 1947.

And the question is, whether that conviction for draft evasion in 1947 collaterally estops the Government in this case from claiming that he lost his citizenship as a result of Section 401 (j) of the Nationality Act.

And the other question is the same question which has been twice here before that is the validity of the statute itself and that issue in and of itself comes here unencumbered by any dispute as to the facts because the facts had been stipulated below both on the prior occasions and on this occasion and Mendoza-Martinez has agreed that he did leave the country and remain abroad for the purpose of evading the draft.

I should state at the outset for a moment that there follows this Number 20, a Court case which has a relationship to this case.

In that, there was presented in that case the constitutionality of the successor provision in the 1952 Act.

This case arises under the 1940 Act.

The successor provision, as I will try to point out in that case, is in the respect pertinent here is the same as Section 401 (j) with which we are dealing.

But there are nonconstitutional issues in the Court case which are different from the non-constitutional issue in the present case.

And there is one further fact which I should mention at the outset which may have some significance and may not which does differentiate the court case from the present case, because this appellee is a dual national, that is since birth, he was a national of both Mexico and the United States.

The Court in the next case so far as we know is only a national of the United States.

Now, the facts are very simple.

Justice William J. Brennan: Now, before you get to them Mr. Davis, this is a one judge tentative to one constitutionality --

Mr. Thomas R. Davis: Yes, but --

Justice William J. Brennan: -- the court was a three-judge.

Mr. Thomas R. Davis: Yes.

Justice William J. Brennan: Why wasn't there three-judge court required here?

Mr. Thomas R. Davis: The answer Mr. Justice is that a three-judge court is only required when an injunction is sought against the enforcement or operation of an act of Congress, an injunction as the words of the statute.

Justice William J. Brennan: Well, what was sought by this complaint?

Mr. Thomas R. Davis: Declaratory judgment.

Justice William J. Brennan: Well, is that so, at page 23.

Mr. Thomas R. Davis: Well, may I go into that for a moment, Mr. Justice.

I have two answers.

And one is that as this case was brought originally and if the Court will look at the record of the 1957 term I have examined, the amended complaint which came to the Court at that time as solely for declaratory judgment.

Justice William J. Brennan: You mean we don't have the amended complaint here?

Mr. Thomas R. Davis: You don't have the first amended complaint.

It was unfortunately never printed.

Justice William J. Brennan: Why would it -- well now, what is before us?

The second or one --

Mr. Thomas R. Davis: Yes, but I'm quite --

Justice William J. Brennan: -- concerned about it is --

Mr. Thomas R. Davis: Yes, but what I'm trying to say is that that was amended after the case was remanded at the preceding -- by the preceding decision of the Court and which consent was only given to the parties to amend with respect to the issue of collateral estoppel.

And my first point is that this amendment of the complaint at that time when the case was remanded before was not pursuant to the Commission which this Court had given in the 1959 term and it's remanded only on the issue of collateral estoppel.

So that this amendment of the complaint to ask for an injunction against the deportation order which is on page 23 of the record was not -- it's pursuant to the mandate of this Court and therefore it was not a proper amendment.

That's my first point in that.

Justice William J. Brennan: But where -- how do we know all this?

From what --

Mr. Thomas R. Davis: Well, the mandate of the Court is in the record.

The mandate of the Court of the 1959 term is in the record.

Justice Tom C. Clark: Are there any more amendment --

Mr. Thomas R. Davis: At page -- at page 20, it is ordered and adjudged by this Court, that this Court be in the same as hereby remanded to the District Court with permission to the parties to amend the pleadings if they so desire to put in issue the question of collateral estoppel and to obtain an adjudication upon it.

As I read that, it gives consent to one amendment of the complaint or one subject.

It does not give consent to other amendments of the complaint.

That is my first answer --

Justice William J. Brennan: Well -- is this second amended complaint before us is part of the record upon which we have to decide this case?

Mr. Thomas R. Davis: Yes, but one of my -- my statement, Mr. Justice Brennan, is that this amendment was an improper amendment which the Court need not pay attention to in deciding this case.

I have other answers but that's my first one.

And the second answer --

Justice William J. Brennan: A very wise man once said, “One good answer is enough.”

Mr. Thomas R. Davis: But obviously, Mr. Justice Brennan may not be satisfied with that answer --

Justice Potter Stewart: Naturally, obviously, I can assure you, he's not satisfied.

Mr. Thomas R. Davis: Then I would go on --

Justice Felix Frankfurter: I didn't say that your -- the answer you've given me is (Voice Overlap)

Mr. Thomas R. Davis: I -- I under --

Justice Felix Frankfurter: Let me ask you a better one.

Mr. Thomas R. Davis: I understand, Mr. Justice.

The second answer I have --

Chief Justice Earl Warren: Aren't you going to give us -- tell us why that isn't -- why it isn't a proper amendment.

Mr. Thomas R. Davis: Because the Court remanded the case only to amend the case -- amend the pleadings with respect to collateral estoppel.

And this amendment asking for an injunction in addition to a declaratory junction does not relate to the issue of collateral estoppel, has asked for another type of additional relief going to the whole case.

Justice William J. Brennan: Let me get this clear Mr. Davis.

You're telling us now that this prayer at page 23 of the second amended complaint asking that defendants are enjoined and restrained.

You say there was no such prayer in either the original complaint --

Mr. Thomas R. Davis: I don't --

Justice William J. Brennan: -- or the first amended complaint?

Mr. Thomas R. Davis: I don't know about the original complaint but the First Amendment complaint which I have seen in the record of the Court at the 1957 term which was first here did not contain this paragraph four.

Justice Potter Stewart: That would also be the record that was before us in the 1959 (Voice Overlap) --

Mr. Thomas R. Davis: That is right.

That is right.

Justice William J. Brennan: Well, that might explain why none of us saw the possibility of the three-judge court question with that matter.

Mr. Thomas R. Davis: I think actually --

Justice William J. Brennan: Perhaps why you didn't see it too.

Mr. Thomas R. Davis: I think actually -- I think it doesn't exist even apart from this Mr. Justice.

Justice William J. Brennan: I know you do.

I know you do.

Mr. Thomas R. Davis: For the reason --

Justice William J. Brennan: On the face of this complaint.

Mr. Thomas R. Davis: No, even on the face of the complaint.

Justice William J. Brennan: Alright.

But it --

Mr. Thomas R. Davis: The reason is that the Court -- that the Court has indicated that a three-judge court is to be convened only where there is to be an injunction against the enforcement of a federal statute and the mere asking for an injunction in other respects or the mere asking for the invalidation of the statute so a declaratory judgment doesn't trigger the three-judge court provision.

Now this --

Justice Potter Stewart: Is there any case on that latter proposition?

Mr. Thomas R. Davis: Well, yes.

The case that I'm about to cite to Your Honors is the case of Flemming against Nestor which was decided two terms ago in an opinion by Mr. Justice Harlan.

Justice William J. Brennan: Harlan.

Mr. Thomas R. Davis: And we think it's quite close for this reason.

There was in that case -- the Social Security Administration had denied social security benefits to Nestor because he had been deported for certain reasons and under the statute he was no longer entitled to benefit.

He attacked the constitutionality of that provisional statute.

And of course, he was denied relief by the administrators.

And he brought suit in the District Court not asking for a three-judge court, but under the special provision of the Social Security Act which provides a review by a single-judge.

And, he -- the question -- this Court preserved the hearing on the merits, the issue of whether there should have been a three-judge court.

And the Court decided on that time that in that particular -- in that kind of case, where he was seeking a review of the denial of benefit even though it was --

Justice William J. Brennan: That was of an administrative decision.

Mr. Thomas R. Davis: That's right and the same is true here, because this is being brought under Section 503 of the Nationality Act.

Perhaps, if I complete my statement of the Flemming case or the Nestor case, I'll be able to show the analogy, which we think exists.

The Court there said that even though the District Court, the single-judge court, had the power to pass on the constitutionality of the statute in reviewing the denial of benefits, it didn't seek -- the case didn't seek an injunction against the operation of the statute as a whole, and therefore, a one judge court was proper, and it upheld the jurisdiction of the District Court and went on to the decide the merits.

Now, the analogy that we think exist in this case, that this is too, also, being brought under a special provision of the statute, Section 503 of the 1940 Act which provides for a declaratory relief against denial to citizenship claims by the administrators.

Justice William J. Brennan: Well, except this, Mr. Davis.

If we had only this complaint before us, why isn't this complaint in fact seeking a declaration that he was a citizen and in addition, an injunction enforcing that declaration, not merely as in Flemming and Nestor, the reversal of an administrative action?

Mr. Thomas R. Davis: Well, I think in --

Justice William J. Brennan: On the face of this complaint, why isn't that what this complaint is?

Mr. Thomas R. Davis: I think in Flemming and Nestor that -- that -- I do not recall that they ask for an injunction in addition though they may have.

I'm not sure about that.

But what they --

Justice William J. Brennan: My recollection --

Mr. Thomas R. Davis: What they basically ask for was a determination that the statute was invalid, and therefore, that the administrator was wrong.

Here, what is being asked is for a declaratory judgment, in fact, the very first -- said portion of the complaint on page 21 says “This is an action for a declaratory judgment under the.”

Justice William J. Brennan: How much is it true?

It's a declaratory judgment that he is a citizen and the relief of an injunction against the enforcement of the deportation orders on the ground that he is a citizen, not merely a reversal of an administrative decision, is it?

Mr. Thomas R. Davis: Yes, but compared to the complainant in the court came where they ask for an injunction against the enforcement of the statute and enforcement of the statute not only an injunction against the enforcement of a particular administrative decision.

I do not recall at the moment whether in Flemming and Nestor, though it may have been, but I don't recall, they added on to their original review relief provision -- request for relief.

And they're -- and also to enjoin the Secretary --

Justice William J. Brennan: I don't think so.

You may be right but --

Mr. Thomas R. Davis: I'm not --

Justice William J. Brennan: I think all they asked in Flemming and Nestor was for a judgment and I'm quoting “affirming, modifying or reversing the administrative decision”.

Mr. Thomas R. Davis: I'm not certain --

Justice William J. Brennan: I thought that's all I ask.

Mr. Thomas R. Davis: -- whether they had it or not, but I think it would have made a difference if they had.

I think that if they had sought -- follow the statutory proceeding of the Social Security Act and had asked for what they ask that had then added a catch off phrases here asking for an injunction against the secretary to prevent him from enforcing the statute against it or denying relief.

Justice William J. Brennan: Well, certainly again --

Mr. Thomas R. Davis: Yes sir.

Justice William J. Brennan: On the face of this amended complaint, what's asked is an injunction against enforceable deportation letter.

Mr. Thomas R. Davis: Well, that's a different thing from an injunction against the enforcement of the statute.

As I think --

Justice William J. Brennan: Well, deportation orders have to rest on the constitutionality of facts.

Mr. Thomas R. Davis: Well, yes, yes.

I agree with that.

But, if I come back --

Justice William J. Brennan: Well, I don't see how that is an enforcement -- an injunction against the enforcement of the statute.

Mr. Thomas R. Davis: I come back to the thing I said before Mr. Justice Brennan that where there is a statutory proceeding, a special statutory proceeding such as existed in Flemming and Nestor, and as we think exist here, a special statutory proceeding will have more to say about this in the next case, but it applies here where there is a statutory proceeding for review, in here it's called the declaratory judgment type of action.

Justice William J. Brennan: Well, it is a declaratory judgment though under the general declaratory statute.

Mr. Thomas R. Davis: No, this is not.

Justice William J. Brennan: 1503 (a)?

Mr. Thomas R. Davis: This is under the special provision.

Justice William J. Brennan: 1503 (a)?

Mr. Thomas R. Davis: 1503 (a) of Title 8 --

Justice William J. Brennan: That is a special --

Mr. Thomas R. Davis: -- is a special provision.

Justice Potter Stewart: Which in turn refers to the (Voice Overlap) declaratory judgement statute?

Mr. Thomas R. Davis: Yes.

But it provides a special provision.

Justice Potter Stewart: Right.

Mr. Thomas R. Davis: And our argument is that whether there is a special provision of that kind --

Justice William J. Brennan: It's not from a special -- not from administrative declaratory.

Mr. Thomas R. Davis: Well, it is only triggered if there has been an administrative denial.

It is not precisely the same as the kind of review you have in a labor board case but you can just start it.

If you think you want a declaration of your nationality, you have to had an administrative -- a final administrative denial of your plan, and that triggers the special statute and when you -- when a review proceeding is brought under this -- a special statute of that kind as in Flemming against Nestor, and where you are really seeking a review in reverse of an administrative determination of nationality as it's true in Flemming against Nestor, we think that --

Justice William J. Brennan: If I accept your words and your description that's what it is, that's -- that's an accurate descriptive you are having.

Mr. Thomas R. Davis: Well --

Justice William J. Brennan: You have to get the administrative determination.

Mr. Thomas R. Davis: Yes.

Justice William J. Brennan: But then you have to get a judicial review by a way of declaratory judgment and I suggest that if you answer that, a prayer for injunctive relief has certainly this second amended complaint.

Then you do raise the question of the application of 2283 and the requirement for three-judge court.

Mr. Thomas R. Davis: Mr. Justice, I'd say again that if in the Nestor case, the plaintiff there had raised -- and there had said four after the review proceeding and declaratory judgment and we seek an injunction against the Secretary's denying benefits to may -- on the ground of the invalidity of the statute.

I think that the decision of the Court would not have been any different than it was, and that the Court would have said that a single-judge could properly have -- hear the case.

Justice Felix Frankfurter: Am I right in saying that underlying your specific argument is the assumption, the starting point that the three-judge court provision must be strict according to the letter enforced and no argumentative consideration, something just as good as that.

Mr. Thomas R. Davis: I think that is in the course of decisions of the Court that the Court --

Justice Felix Frankfurter: But at the bottom of it --

Mr. Thomas R. Davis: The Court has indicated that there can be determinations of unconstitutional --

Justice William J. Brennan: Well, let's see.

Let's say for example, suppose we don't have this particular problem but one just relies under the declaratory judgment action --

Mr. Thomas R. Davis: I think --

Justice William J. Brennan: -- to attack the constitutionality of the federal statute.

And all he seeks is a --

Mr. Thomas R. Davis: Declaratory judgment.

Justice William J. Brennan: -- that was all that was done in this case, is a declaration of unconstitutionality of the federal statute, that in that way, you can get around the requirement --

Mr. Thomas R. Davis: I think that has always been the interpretation --

Justice William J. Brennan: But that hasn't -- that -- has this Court ever held that?

Mr. Thomas R. Davis: No, I think the issue is never been decided but I think that has been the course of interpretation.

Justice William J. Brennan: Well, that's a rather easy way to get around the three-judge requirement, isn't it?

Mr. Thomas R. Davis: Well, the Congress provided an injunction because they were interested in not stopping the wheels of administration from going.

An injunction has an effect which is declaratory judgment.

Justice William J. Brennan: No, tell me.

Tell me, if there's a declaratory judgment that an act of Congress is unconstitutional, is there any member of the executive department charge of this enforcement that would in fact enforce it?

Mr. Thomas R. Davis: Oh, yes.

I think --

Justice William J. Brennan: Sure he would.

Mr. Thomas R. Davis: -- I think that that he would enforce (Voice Overlap) the particular case.

Justice William J. Brennan: It's a judicial determination that is unconstitutional.

Mr. Thomas R. Davis: Yes, if it were decided by a lower court, yes.

Unknown Speaker: But it has been -- the defense argument about it (Inaudible).

Mr. Thomas R. Davis: That made me.

I'm not aware of that.

But I think --

Justice Potter Stewart: I'm not aware of any either.

Mr. Thomas R. Davis: -- and I think that's one reason why the Congress passed 28 U.S.C. 1252 providing for a direct appeal, because where there -- and that's not limited to injunctions that can cover declaratory judgments any kind of civil proceedings.

Justice Potter Stewart: But what was the idea of a three-judge court?

Mr. Thomas R. Davis: I think the idea originally, and of course it came in with relations to state -- of state legislation.

It came in long before there were a declaratory judgment or at least before they come long before the federal declaratory judgment passed.

And the common way of proceeding in those cases was to enjoin a state from enforcing a particular statute.

Of course, it was only -- the only people who could take, what shall I say, benefit of it were the plaintiffs and those incriminated.

Justice Potter Stewart: This is the long way around to saying that the Congress didn't want single-judges declaring state statutes or preventing the enforcement of state statutes in the grounds of unconstitutionality by enjoining their enforcement.

Mr. Thomas R. Davis: No, I think that Congress didn't care about single-judges saying that state statutes were unconstitutional.

It didn't want single-judges to enjoin the operation of the statute, so that the entire administrative procedure or whatever it was under the statute would come to halt.

I think that that's true.

Then, I think history is also showing that there is kind of narrowing in the eyes of Congress of the impact of the three-judge court provision, so that as time went on, and it was applied to the federal government later, and then as time went on, this Court indicated that there could many decisions of unconstitutionality without have -- without a three-judge court by a single-judge court.

And then in 1937, in the New Deal days, the Congress put in its provision that I stressed, the 1252, where a single-judge could do it because they understood that there would be proceedings where a single-judge would hold the statute of un -- unconstitutional of federal statute.

They want a quick review, but I think that the difference -- there is a difference between quick review in this Court which they didn't want, and provision for a hearing by a three-judge court which they were willing to leave in the terms of which it had classically been an injunction against the operation or enforcement of the statute.

That Mr. Justice is our position.

Justice William O. Douglas: On the merits, are there any decisions apart from the lower court ruling in this case that a resident alien who leaves for the purpose of evading the draft and returns could be prosecuted for evading the service?

Mr. Thomas R. Davis: Resident alien?

No.

There are no -- it could be prosecuted.

I don't know.

I haven't looked up the decisions relating to resident aliens.

I do not know.

Justice William O. Douglas: They're the ones that --

Mr. Thomas R. Davis: No.

Justice William O. Douglas: But you say in your brief would be subject to prosecution?

Mr. Thomas R. Davis: We say that both citizens and resident aliens would --

Justice William O. Douglas: Yes.

Mr. Thomas R. Davis: -- I come then to the collateral estoppel issue which --

Justice William O. Douglas: Yes but --

Mr. Thomas R. Davis: -- which you are talking Mr. Justice.

Justice William O. Douglas: Is this the only decision -- Judge Jertberg's decision.

Is that only one --

Mr. Thomas R. Davis: I don't think Judge Jertberg's decision has to do with resident aliens.

I think it has to do with the man who was a citizen and then left the country and lost his citizenship under Section 401 (j) which was enacted in 1944.

There are other decisions --

Justice William O. Douglas: But I thought we have to decide the resident alien point in this case.

Mr. Thomas R. Davis: No, I don't think you'll have to decide the resident alien point, Mr. Justice Douglas.

The only possible relevance (Voice Overlap) --

Justice William O. Douglas: (Voice Overlap) collateral estoppel, don't you?

Mr. Thomas R. Davis: Estoppel and if I may expatiate a little on that which is the other uncons -- nonconstitutional issue in the case, our -- let me recall.

The Court raised this issue sua sponte, gave permission to the parties to amend the pleadings and send the case back.

The appellee did amend his complaint to raise this issue.

There was no hearing in the District Court in the sense that there was oral evidence or affidavits.

There was an oral argument by the parties, and Judge Jertberg decided against the appellee.

He rejected the issue of the defense of collateral estoppel and he put it that way.

And, of course, we think he was correct.

Now, the facts with relation to that are all in the indictment in criminal judgment of the -- in the earlier 1947 proceeding.

And they appear in the record and that it appears the 2426 and the judgment of 2728.

What happened in 1947 is that there was this indictment returned.

The defendant pleaded guilty to count one of the indictment, count one was a provision that charged him with evading service in the draft by going to Mexico and remaining there until on or about November 1st, 1946.

But it's very important, I think, for the issue of collateral estoppel that the indictment didn't charge that he was a citizen of the United States.

It said as you will see on page 24, Franc Martinez-Mendoza, a male person within the class made subject to Selective Service under the Selective Service and Training.

And the reason why that was said was that the Selective Service and Training Act related not only to citizens of the United States, but to resident aliens.

It covered all citizens and resident aliens, and it was common to phrase indictments in the term -- in the general terms.

And so -- now, what happened -- what happened was that the defendant pleaded guilty --

Justice William O. Douglas: There is no -- would be no collateral estoppel if he was a resident alien.

Mr. Thomas R. Davis: There would be no -- we think there was no collateral estoppel even he were a citizen as I will to try to point out which I think it was, but I think there's -- the whole problem of collateral estoppel arises from, I think, the definition of that principle is very different from res judicata which says that if you have the same cause of action, anything that was or could have been raised in first cause of action is conclusive.

Collateral estoppel is different.

It provides that the parties are bound only by those issues which were actually litigated in the earlier case or were necessarily included in the judgment.

And since clearly here, the causes of actions are different, it's the doctrine of collateral estoppel that applies.

As I will try to show in the next few minutes, neither branch of the doctrine of federal estoppel applies here.

It wouldn't actually put in litigation -- litigation the issue of citizenship because the government's indictment didn't say anything about the citizenship.

He was a male person subject to the Act, and he pleaded guilty, and the judgment is in the same term.

So, the issue of citizenship was never put in litigation.

Justice Felix Frankfurter: He could have put it, couldn't he?

Mr. Thomas R. Davis: He could have put in litigation but he did not, because --

Justice Potter Stewart: He could have, how?

Mr. Thomas R. Davis: He could have put it by pleading not guilty and denying that he was subject to the Act.

Justice Potter Stewart: Denying he was a male person?

Mr. Thomas R. Davis: No, subject to the Act.

Chief Justice Earl Warren: Mr. Davis, when did he leave the country?

Mr. Thomas R. Davis: 1942.

Chief Justice Earl Warren: 1942?

Mr. Thomas R. Davis: 1942.

Chief Justice Earl Warren: And when was the Act amended to apply to aliens?

Mr. Thomas R. Davis: 1944.

Chief Justice Earl Warren: So, at the time he did leave --

Mr. Thomas R. Davis: Yes.

Chief Justice Earl Warren: -- he could have only have applied to a citizen.

Mr. Thomas R. Davis: Or resident aliens.

Chief Justice Earl Warren: No, I thought you said in 1944.

Mr. Thomas R. Davis: Yes but --

Chief Justice Earl Warren: It was amended 1922.

Mr. Thomas R. Davis: Oh, I'm sorry.

You mean the Expatriation Act for the part.

So, the Selective Service Act applied to resident aliens all along.

Chief Justice Earl Warren: Oh, I thought that's --

Mr. Thomas R. Davis: No, I'm sorry --

Chief Justice Earl Warren: -- that's when amended.

Mr. Thomas R. Davis: No, it applies from the beginning to resident aliens.

Chief Justice Earl Warren: Yes.

Mr. Thomas R. Davis: Or this from any time it's relevant to this case.

It applies to resident aliens as well as to citizens.

The issue was not actually put in litigation.

Now, was it necessarily decided by the judgment?

And I think, it's important to say that the rule is generally stated that it has to be clearly necessarily decided not a mere matter of speculation.

The --

Justice Potter Stewart: Before you proceed, I'm a little confused, I guess.

But, how could he have put this question an issue in this criminal case?

Mr. Thomas R. Davis: I think that --

Justice Potter Stewart: If it were a -- if it was a criminal offense whether or not he was a citizen as I understand you.

Mr. Thomas R. Davis: Well, I think that he -- it would have got in much good to put it an issue because he would have been liable even if he were just a resident alien before he went to Mexico.

And -- but if he thought that for other purposes, it was important for him to get a decision in the litigation that he was or was not a citizen, I think he could have put an issue by asking for bill of particulars.

Justice William J. Brennan: But he could no have been a resident alien when he went to --

Mr. Thomas R. Davis: Well, he was a resident.

Justice William J. Brennan: When he went in 1942, there was nothing which stripped him of his American citizenship.

Mr. Thomas R. Davis: No, but he was a resident of the United States.

Justice William J. Brennan: Oh, he was an American citizen in 1942.

Mr. Thomas R. Davis: Well, yes.

What I'm saying to Mr. Justice Stewart is that if he thought it was necessary to get himself a determination in the criminal case as to whether he was a citizen or not, he could have raised that issue.

I don't think it would have done him any good in the criminal case.

Unknown Speaker: This is not at all relevant to his guilt or innocence of the offense.

Mr. Thomas R. Davis: That is the basis why I think that there was no collateral estoppel here.

Justice Felix Frankfurter: Well then, is that quite so, he might have attacked the -- the mere fact that he was in the United States doesn't prove he was a resident alien.

Mr. Thomas R. Davis: That's true.

I think as a matter of fact, he was.

Justice Felix Frankfurter: That's isn't the question.

Mr. Thomas R. Davis: Yes.

Justice Felix Frankfurter: But lawyers -- wouldn't they do things that are not so.

Because --

Mr. Thomas R. Davis: Yes.

Justice Felix Frankfurter: -- they think they're not so.

Mr. Thomas R. Davis: Yes, you are quite --

Justice Felix Frankfurter: They might challenge it on both grounds.

Mr. Thomas R. Davis: That's right.

I think as a matter of fact, it was done no good because the fact --

Justice Felix Frankfurter: That isn't the question.

Mr. Thomas R. Davis: Yes.

He could have.

Justice William O. Douglas: Would a resident alien be relieved from responsibility if he ceased to be a resident?

Mr. Thomas R. Davis: But the whole gist of this offense occurred in 1942.

That's the gist of the offense when he was clearly a resident alien or fairly a citizen.

Before the Expatriation Act occur for the past in September 27th, 1944.

That's the gist of the offense.

That's the gist of count one as shown by the other two counts which the District Judge in the criminal case thought cast light on the first count.

Justice William O. Douglas: I just assumed that an alien who left the country who had been a resident would cease to be a resident -- of the resident on leaving.

Mr. Thomas R. Davis: Not necessarily at all.

This Court has held that in the Chew against Colding case that a man who was a resident and was debarred at the port from coming back was still a resident of the United States because he had lived here so long, and there was no showing that he had given up his residence, so that -- it isn't true at all, I think, Mr. Justice.

Justice William O. Douglas: Was there any facts in this case to indicate that if he had the -- treated as an alien, that he still have the purpose to maintain his residence here?

Mr. Thomas R. Davis: There were no facts because there was a -- this was a plea of guilty.

But, the point I'm trying to make, Mr. Justice, is that he would have been guilty of this offense even if he gave up his residence when he went abroad because he was at the time he was in the United States subject to the draft as a citizen or as a resident alien, and that by going abroad, he did not absolve himself from the criminal offense which had already been committed.

I should -- some question has been raised by the appellee as to the use of the language in the indictment and that they remain until on or about November 1946.

I would like to say it was -- we think that those words were unnecessary for the indictment.

There were surplusage, but if they hadn't been there if it just said, and they remain, the indictment would have been a good indictment.

I will also that we do not think that we, the government, would have been able to rely upon this criminal conviction as res judicata for the period up to November 1st, 1946, if the tables had been turned.

That is I don't think that we would have been able to rely upon this indictment and the conviction as showing that this man had gone abroad for the purpose of evading the draft, and remain there up to and until November 1st, 1946.

My time is up.

Chief Justice Earl Warren: Mr. Davis.

Argument of Bruce J. Terris

Mr. Bruce J. Terris: Mr. Chief Justice, if the Court please.

I find myself in the very peculiar position of barely supporting my opponent with whom I have contested this issue so long on the first question before us, because I join with him in asserting that this properly should have been a one-judge court.

In addition to the contentions ably advanced by Mr. Davis, may I also inquire whether the true task is not what in excessive zeal, I may have included in the prayer of the complaint, but rather what the trial judge in his considered judgment put in his judgment.

And, in this particular case as it happens, some of what I'm saying is ex cathedra now, the record could easily be augmented to show what I'm about to say.

I submitted a proposed judgment which included all of the injunctive relief which I thought was proper in the case.

The United States attorney objected, citing a case in our own Ninth Circuit, which I think is relevant here, although I'm not sure I can pronounce it but Ng Kwock Gee versus Dulles 221 F.2d 942.

And the gist of that case was at the Court, in similar circumstances, rejected the attempt of counsel to obtain injunctive relief.

And so in our case, Judge Jertberg wrote to us, and said that he thought the United States Attorney was correct, and that I have been excessively zealous perhaps in the drafting of my proposed judgment, and in his own office, drafted a modified judgment in which he was very careful to omit any reference whatever until injunctive relief.

Justice John M. Harlan: Could I have the page number of that unpronounceable case?

Mr. Bruce J. Terris: Yes, Your Honor.

I have it as 221 F.2d 942.

Justice John M. Harlan: 942 thank you.

Unknown Speaker: I take it, you have considered and rejected, that you disagree with the Solicitor General, and then you disagree with the right and you could have another goal, wouldn't you?

Mr. Bruce J. Terris: Your Honor, I have considered that.

We're here for the --

Unknown Speaker: You have not, I guess.

Mr. Bruce J. Terris: We're here for the third time.

I know that the Court has heard the constitutional contentions which are involved here time and time again.

I earnestly assert that it is time now to reach the question.

By saying that though --

Justice William J. Brennan: These were really a three-judge case.

I gather we couldn't read it.

There's no jurisdiction in the judgment below if this should have been a three-judge court.

Mr. Bruce J. Terris: That might be, Your Honor.

Justice William J. Brennan: That might be?

It would be, wouldn't it?

Mr. Bruce J. Terris: In another words, the Court would not have jurisdiction if we had had three-judge.

Justice William J. Brennan: We have a jurisdiction to say that the lower court had no jurisdiction, and we have to say it had no jurisdiction.

Mr. Bruce J. Terris: It could have been a three-judge court.

Justice Felix Frankfurter: Anyhow, you don't want to embrace that opportunity.

Mr. Bruce J. Terris: I do not, Your Honor.

Justice William J. Brennan: I'm not surprised.

Mr. Bruce J. Terris: This procedure of a Circuit Court of Appeals in this case rejecting the attempt of counsel to obtain more relief than the action entitled them to happen in Hall versus Welch.

I'm having to cite orally, because I think Your Honor -- Your Honors understand that I received a very late communication concerning this question, just about a day before I left from California, Hall versus Welch 185 F.2d 525.

I thoroughly agree with Mr. Davis that the assertion of that the word “injunction” should somehow be enlarged by judicial construction to include an action for declaratory relief simply because derivatively or contingently, there may also be an impact on federal officers.

I think that assertion is entirely correct and I concur with them in it.

I have looked at the F.2d reports on Trop and Perez, and it does not appear clearly whether injunctive relief was sought, but it does seem quite clear that a single-judge sat in both cases.

And I would urge again that what is really determinative here is not what counsel sought, but what the Court gave.

Unknown Speaker: Do you think that the stipulation appearing particularly at record 35 has any significance while your stipulation issue the fact would apply within the issue that the law would apply?

Mr. Bruce J. Terris: Well, I'm certainly bound by it, Your Honor, yes.

Unknown Speaker: Well, I don't think it's about an injunction.

Mr. Bruce J. Terris: No, it doesn't.

Thank you.

Justice William J. Brennan: You did the (Inaudible) that reviewed the statute if it reaches the case thoroughly, reaches it by merely or even merely with your application for an injunction.

That's the way the statute reads from the fact what the judge gave or anything else to which it's stipulated has nothing to do with it.

Mr. Bruce J. Terris: Well, Your Honor, we could think of it this way, in terms of different counts of the same complaint.

A court can reasonably assume jurisdiction of a particular count and try it and validly try it and reject taking jurisdiction over another count and there would be no essential difference between that and what has happened here.

I know that the hour is late.

I believe that the constitutional issues have been exhaustedly briefed, but I would like to speak on the other nonconstitutional issue which has emerged from the Court sua sponte, and that is this question of collateral estoppel.

The Solicitor General has, in my opinion, avoided the essential question here with almost unbelievable deafness.

There is a basic fact before the Court which is agreed upon and stipulated, too.

And that is, that in 1944, when this Section 401 (j) was passed, Mendoza was a nonresident alien.

He was in Mexico, because he had gone there in 1942.

Now, when Judge Yankwich of our Southern District subsequently tried him and found him guilty, he found him guilty of a continuing offense not from 1942 to 1944 on this statute would have made him a nonresident alien, and thus, not open to or rather available for Selective Service.

But Judge Jertberg found him guilty of a continuing offense from 1942 until 1946.

And I assert in closing if the Court please, it's says --

Justice Potter Stewart: It's a guilty plea, wasn't it?

Mr. Bruce J. Terris: Yes, it was, Your Honor.

He pleaded guilty to it, and if that constitutes an admission, I can't imagine in what context it constitutes an admission.

Because the judgment of conviction made after all of the proceedings where true, reincorporated the same finding, is it hypertechnical?

Is this is a piece of logic that has no real flesh and blood significance?

Judge Jertberg had to decide the extent of punishment for a man who had committed an offense over a given period of time.

If it had been two years instead of four years, I urge that it is a reasonable and proper inference that he would have taken a lesser period of time into consideration.

Featured:

Kennedy v. Mendoza-Martinez - Oral Reargument, Part 2 (No. 3)

Tue, 25 Sep 2012 16:39:55 +0000

Case:

Kennedy v. Mendoza-Martinez

Media File:

3_19621205-reargument-2

Related Transcript:

3_19621205-reargument-2

Transcript:

Argument of Leonard B. Boudin

Chief Justice Earl Warren: Dean Rusk, Secretary of State, Appellant, versus Joseph Henry Cort.

Mr. Leonard B. Boudin: Mr. Chief Justice and Justices of the Court.

Chief Justice Earl Warren: Mr. Boudin.

Mr. Leonard B. Boudin: In considering the government's basic argument that this is a statute, which has a relationship to the far relations power of the government and that it does not imposed any punishment, one might be well to consider the Mr. Justice Frankfurter's remarks in his reflections on the reading of statutes, that in considering the construction of a statute, we might begin by reading it.

And if one does read Section 21, of the Act of March 3, 1865, the progenitor of both the draft desertion, the draft evasions and the desertion provision, one sees that they have a common origin, a common purpose and common sanctions.

In fact, Section 21 contains in the very same sentence, not merely the same section, the provisions with respect to draft evasion and desertion.

Now the statute itself, which again we must look at, is a statute which provides, which is described as an act to amend the several acts herein after passed, to provide for the enrolling and calling out of the national forces and for other purposes, nothing to do with foreign relations.

It is composed of 27 sections, all of which deal with different aspects of running an army and the question --

Unknown Speaker: [Inaudible]

Mr. Leonard B. Boudin: I think not Your Honor.

I think running an army had something to do with the question that the statute dealt with.

In short it is conceivable that a statute could contain the provisions relating to foreign relations, even though when army measure, but this particular one, I answer Your Honor in this way, this particular statute dealt only with the question of how to run the economy internally.

So --

Unknown Speaker: [Inaudible]

Mr. Leonard B. Boudin: No if there were any part of the statute that touched on foreign relations, I would say it would not be necessary too.

It is because each of the sections taken separately deals with a different aspect of the army, such as.

Justice Potter Stewart: Which -- you are talking about the 1865?

Mr. Leonard B. Boudin: The 1865 statute, exactly, and Your Honors will see and I think the briefs and other cases have indicated that the history isn't unbroken one except at one point where they left out the draft desertion provisions, the draft evasion provisions in 1940.

Justice Potter Stewart: Between 1940 and 1944.

Mr. Leonard B. Boudin: Exactly Your Honor.

Now as I said Mr. Justice Goldberg, if you take the sections, one of them will deal for example with the question of bounties, another will deal with the question of soldier's pay, the third with a prohibition against allowing insane people to be inducted in the army.

Nothing at all suggesting the government's present argument, and somehow rather in 1865 there was a conception of what our relations were going to be with other countries.

Now I will come to the government's arguments on that point in greater detail.

Now the particular section of course that we're dealing with here has three subtitles, two of them are significant; penalty for desertion, et cetera; and leaving the country to avoid the draft to incur like penalty.

Now the debates on the subject, which I don't think have been discussed before this Court before, likewise indicate a concern for enrolling in army and not a concern for what will happen if somebody leaves the country.

The Bill itself was proposed by Mr. Schenck, Chairman of the Military Committee, Representative from Ohio and Mr. Schenck's remarks, it was an emergency Bill I may say, in which they had very short debate, and which people who opposed the Bill were called traitors, Mr. Schenck stated, “Here is a penalty that is lawful, wise, proper and it should be added to the other lawful penalties that now exists against deserters.”

And as the Bill was originally introduced it merely referred to people leaving the country, but Congressman Wilson of Iowa, which I gather was a state with hills in it, moved to amend the Bill by providing that anybody who left the district, not merely the country, should be covered by this statute and as he said, “In my own state, and I presume it is so in all the states, as soon as that notice is given, that is a notice of induction, many persons at once prepare to leave and do leave, going into the territories and among the mountains and mines to avoid the services of a country in the event that they are being drafted.”

Well, mountains and mines in Iowa and the relating area is certainly a far cry from Mexico or Czechoslovakia or England, which the government is emphasizing in the present time.

Justice Potter Stewart: That was quite a different statute that's what you're telling us.

Mr. Leonard B. Boudin: That was a statute -- but that is exactly the same statute that we have today, except we have eliminated the words the district, that's merely a formulation of words.

Justice Potter Stewart: Well it seems to me if I may suggest so and suggest to you that there is quite a good deal of difference between leaving the district and leaving this nation.

Mr. Leonard B. Boudin: If they were Your Honor, any reference at all in any of the debates that followed to indicate that this wasn't merely a streamlining of the statute, then I would have to recognize some weight.

But there isn't a word in the period from 1865 to 1952 that suggests a different policy, and as a matter of fact the government itself in its brief in Gonzales against Landon, says that the purposes of the current statute are purposes of the 1865 statute.

Now I would take them if they were there, as well as their construction which I rely on in another connection.

In the debate I may say in 1865 and a debate that followed, all the speakers emphasize the fact that this was a question of punishing people.

No suggestion made of any effect on foreign affairs.

In 1912 I think the most significant report is a report number 335 at the 62nd Congress, which is a report from the Committee on Naval Affairs, not foreign relations, in which they recommended that the statute be amended to be limited only to peace time.

And that there again the Chairman of the Committee pointed out, in using the words punishment and penalties, and I may say, cited from Winthrop's Military Law and Precedents in a letter from the Secretary of the Navy, in which Winthrop pointed out that this was a war measure.

No again, no suggestion that it would have had anything to do with foreign relations.

In 1940, the Cabinet Committee's report was considered by the Congress and Your Honors will recall that the Cabinet Committee included on it the Secretary of State.

Justice Hugo L. Black: May I ask you this --

Mr. Leonard B. Boudin: Please sir.

Justice Hugo L. Black: I might interrupt you [Inaudible].

I don't quite understand the point of your argument.

If -- I would say that if the Federal Government has the power to do this under any one of the clauses of the Constitution, then it had to refer to it.

I don't quite get that.

I don't see why it would have to refer to it?

It might think it was acting under one, was acting under another like go on and indict.

What is the -- why do you use this argument and what you want to prove by it?

Mr. Leonard B. Boudin: I have nothing clear enough I regret Your Honor.

I was not adjusting myself to the question of power, but there is a question of the purpose of the statute.

The government says that the 1865 statute was passed because the government was afraid that it might have some -- the situation might have some effect on foreign relations.

I referred to the history and the words of the 1865 statute to show that the foreign relations concept is not based on reality.

This --

Justice Hugo L. Black: Well suppose -- what I get at and what I don't understand is this, whether they intended it to be based on that or not, if can be based on it what's wrong with it?

Mr. Leonard B. Boudin: Well I would suggest --

Justice Hugo L. Black: On that ground I don't think that I would draft?

Mr. Leonard B. Boudin: We're not talking about power.

Well if the government has, I was addressing myself Your Honor to the question of the purpose of the statute and not the power.

Now Your Honor is suggesting that if there were a purpose it didn't exist, that the government might produce it now to justify the statute.

Justice Hugo L. Black: No, I'm suggesting, quite different suggesting that if Congress has the power to do this under any clause of the Constitution, I wouldn't think statute could be invalidated by what some individual Congressman or leader or spokesmen of the committee or anything else said was his purpose.

If it comes within the authorized power of Congress, why do we have to bother about what they thought they wanted to do it for?

Mr. Leonard B. Boudin: Well of course this is not a single, I'm only addressing myself to one aspect Your Honors, it is not a single Congressman, it is a full sweep of the Congress.

Justice Hugo L. Black: Suppose this is all out, and put in the committee and they said our purpose is this.

Mr. Leonard B. Boudin: I would take the position Your Honor passing the broader question of power, which Your Honor has reserved, that if the Congress passes a statute intending to aid the war power, it is not for the Court, most respectfully or for the government to suggest that this provision, this statute passed the aid of the war power can now be translated and is justified on the basis of foreign relations power.

It is the Congress' intention in passing a statute that I would say would be determine whether or not the exercise of power is proper.

Congress cannot pass a statute under the intended to aid interstate commerce suggests and then argue -- then have it argued here that in fact it was intended to aid foreign relations, so I've moved too close.

I think the government is bound in considering the meaning of the statute by the intention of those who drafted it.

Justice Hugo L. Black: Well considering the meaning -- but considering the powe.

Mr. Leonard B. Boudin: Well and considering I haven't address myself yet to the power.

I merely addressed myself to the question of whether or not this argument of the government, that foreign relations was involved, was really involved.

I come to the question of power next.

I have not addressed myself to the question of power, but the question of the purpose of the statute in answer to the government's argument that the statue was intended somehow rather to relate to foreign relations.

I'm suggesting it was only intended --

Justice Hugo L. Black: [Inaudible] As I understand it, I'm not sure that I agree with it and I may, I'm not sure, your argument as I understand it, so as Congress -- so we assume that [Inaudible] is all we want to act under the war power, contribution to the war power.

They then come in and they ask you through the [Inaudible] and ask you to enforce the act on the basis that it helped in foreign relations; that, that couldn't be done.

Mr. Leonard B. Boudin: I first would say that could not be done, yes Your Honor.

Now.

Justice John M. Harlan: Supposing Congress has put in a recital on something that the committee reports, simply saying that citizens who don't respond to their duty to serve in the army in time of war are not worthy of being citizens and we don't want them as citizens, supposing they had said that.

Mr. Leonard B. Boudin: I would -- that that was not be.

Justice John M. Harlan: What's that?

Mr. Leonard B. Boudin: I would say that, that is not within the power of Congress.

Justice John M. Harlan: Well then the other material question -- your argument is that there is no power to do this.

We have to attribute given power, we have to attribute to Congress, whether it said so or not, a purpose to exercise power that -- by hypothesis we are assuming now, it has and attribute a legitimate exercise that power to whatever it says

Mr. Leonard B. Boudin: Well.

Justice John M. Harlan: Or whatever it fails to say.

Mr. Leonard B. Boudin: I don't think one can say that a statute that was passed and that Congress says was passed for the purpose of aiding the war power, can now be justified on the ground that it might conceivably have some relationship to the foreign relations power.

Now this is quite aside from the question of whether Congress has the power at all of course.

In short I think that when one comes before the Court to argue that a statute is justified on the one power or another, one doesn't pluck from the wings a power which one can find as an advocate on the Constitution.

It has to have some relations to the reality and if in fact this statute didn't have any relationship to the reality of foreign relations, in 1865 or 1912, the government can't simply find the foreign relations power and say it might have some relationship to it.

Justice John M. Harlan: Well I suggest what Mr. Justice Goldberg said might be borne in mind that I should think the foreign relations was time of emergency or time of war, whether you call it war power or foreign relations power, two things are absolutely inseparable I think, under the right conditions.

Mr. Leonard B. Boudin: I do not think that they are inseparable and I don't think that Congress felt that they are inseparable in considering this.

There is not a line in any of the legislative history from 1865 to date which suggests that the Congress was concerned about foreign relations in any of these statutes.

However, I bear in mind Your Honor's point.

Justice William O. Douglas: You are not really addressing yourself to the meaning of the statute, right?

Mr. Leonard B. Boudin: No I'm addressing myself to --

Justice Potter Stewart: You said the meaning of the statute.

Mr. Leonard B. Boudin: With purpose.

Justice Potter Stewart: The statute is unambiguous as far as its meaning goes, is it not?

Mr. Leonard B. Boudin: Yes it is Your Honor.

Now the government, I will simply say without pressing the point further that the government refers to various problems arising on the war of 1812 and the problems for the North German States.

Those problems were quite different from those which led to the impact of 1865 and a careful reading of the remarks of the State Department papers will show those problems related to the question of American citizens who went aboard and who were pressed into the armies of the North German states in the 1850's and 1860's or in 1812 of course to our seamen were being pressed.

They had nothing whatsoever to do with the question, what would happen when people who were -- our draft delinquents went aboard.

And I will not take the time of the Court to refer the Court who I think has been misstated by commentators like Saing who was relied upon by the government, where they attempt to prove a connection between these problems with the North German states and the Act of 1865.

Those North German state problems were all dealt with in the Act of 1868, the Expatriation Act and in our treaties in the 1870s with the North German states, but they have no connection, except that they happen to be in approximately the same period with the statute with which we're now dealing.

Now the government suggests that some how or other the possibility that there is flight aboard here or the fact there is flight aboard or in the case of Dr. Cort it wasn't one who flight aboard, it was remaining aboard, distinguishes this case from Trop.

I have only to refer the Court to the government's brief in Perez against Brownell, which is quoted at page 31 of my brief, where the Court said, in talking about the desertion and the draft evasion sections, “the reasons which sustained,” where the government said pardon me, “which sustained Section 401(j) also apply to the cognate Section 401(g).

Desertion in war time like draft evasion is a repudiation of the highest obligation of citizenship and involves kindred considerations.

Subsection (g) does different from Subsection (j) in that it will meet the requirement of flight from this country or foreign residence, but the absence of this factor, said the government, does is not swing balance against constitutionality” and we agree of course with that position, at least that part, not the earlier part.

Now there is a very real difference I may suggest between this case and Perez.

It's true that in both cases and in numerous other cases people happen geographically to have been aboard, but geography is not the essence of Perez.

As Your Honors will recall from the detailed opinion by Mr. Justice Frankfurter, it was not that Perez was in a foreign country.

It was what Perez did in that foreign country that the majority of this Court regarded as having a bearing upon foreign relations.

And the opinion of Mr. Justice Frankfurter, although very respectfully we have differed from it on our brief here, is very precise, that Perez in remaining aboard and in voting aboard was actively doing something which was an interference with another country's internal affairs, although I think he had a right to as a dual national, and that, that interference might be attributed to the United States, that the United States would be regarded as the principal and Perez as the agent.

Well, nobody would suggest in these cases that Mendoza-Martinez was the agent of the United States in remaining in Mexico or Dr. Cort in remaining aboard, in defiance as the government claims, of their obligations under the Selective Service Act.

And it is -- if we take the full meaning of Perez, the attribution to the United States Government of something, which might lead another government to resent it then of course this case is clearly distinguishable.

Now the government's theory of the delinquency of obligations, which is the essence of its sovereignty point, as various members of Court have indicated and as prior counsel have indicated is a very dangerous doctrine, because where do you stop?

What obligation of citizenship is it; that is to lead to the taking away of citizenship status itself.

Why do we have a system of punishments instead of a system of banishment in this country?

And I remember hearing in this connection, just give one illustration, one of our finest District Court Judge's in the United States Judge Edward Weinfeld, talked once on the subject of sentencing.

Judge Weinfeld said that in his view, a man who was most delinquent in his obligations of citizenship above all others was a man who has defrauded the government of taxes, because taxation was the sinuous of a government and that was the case where Judge Weinfeld, a very fair but very able judge imposed the most severe penalties.

Now the illustrations, the manifold, there is not much point in my trying to be more ingenious than other counsel and the various members of the Court in illustrating where this is, where this ends, but I think it ends nowhere and it comes down to the whole problem with the conception of citizenship.

I would suggest that we of course adhere to the basic principles laid down by the Chief Justice in the majority -- in the first section of his majority opinion in Trop and in his dissent in Perez, but we have not found it necessary in view of the time, I simply won't argue what is not the majority opinion of the Court on the question of the general power of the government in a case where there is “A rational nexus”, to take away citizenship, but the broader doctrine that somehow or other there exists a sovereign power in the government to take away from the people who intended to be sovereign, the citizens, their status this I think is an appalling doctrine, and the government has attempted to minimize here, the question of statelessness.

And I prefer to refer to Mr. Justice Frankfurter's comments in one of the cases, I think it was in Trop where he pointed out -- where he pointed out that citizenship, the loss of citizenship has tragic consequences.

While the Justice ameliorated the situation to some degree, no reflection of these tragic consequences is suggested in the government's brief and I would merely indicate a few things to the Court at the present time.

Justice John M. Harlan: Are you going to address yourself at some point to the question as to whether Congress has power to take away citizenship without the citizen's consent?

Mr. Leonard B. Boudin: If there had been sufficient time, Your Honor, I would have welcomed the opportunity that I think that really involved a re-argument of Trop.

Justice John M. Harlan: Or is it --

Mr. Leonard B. Boudin: The re-argument of Perez, but it is necessary for me to make that point here because we make the point that Trop is controlling in the sense that we have had punishment here.

Punishment here which is cruel and unusual punishment under the Eighth Amendment, that there is no rational basis between the act of remaining abroad and the foreign relations power of the United States and that therefore under both Perez and Trop this statute is unconstitutional.

Justice Potter Stewart: Well now you certainly don't make the argument or do you that denationalization itself is either punishment or if punishment, cruel and unusual?

Mr. Leonard B. Boudin: Yes I do make the argument.

Justice Potter Stewart: Well then you are asking us to overrule three cases in this Court.

Mr. Leonard B. Boudin: No I'm not.

Justice Potter Stewart: Perez and Savorgnan and Hare.

Mr. Leonard B. Boudin: I'm not asking Your Honors to overrule Trop, I'm asking Your Honors to follow Trop.

Justice Potter Stewart: No, I said Perez.

Mr. Leonard B. Boudin: Yeah.

Justice Potter Stewart: Savorgnan.

Mr. Leonard B. Boudin: I'm going to be more responsive to Your Honor, if I may.

I'm asking, Your Honor to -- I'm not asking Your Honors to overrule Perez because Perez was a case not involving in the view of the Court punishment, but involving a rational relationship which doesn't exist here.

And I'm not asking, Your Honors to overrule the others, if Your Honor -- I'd be glad to say why I'm not.

Justice Potter Stewart: But just -- I perhaps I didn't put my question very well.

I -- my question was, was whether or not you're urging us that denationalization per se is punishment, and, (b) if punishment whether denationalization is cruel and unusual punishment, that is involuntary denationalization.

Mr. Leonard B. Boudin: I am precisely urging that and relying upon Trop as my authority.

Justice Potter Stewart: Now wouldn't you concede that at least three cases this Court has affirmed situations in which citizens were involuntarily denationalized.

Mr. Leonard B. Boudin: Yes, but in none of the cases in which the Court reaffirmed that was the issue of punishment involved.

In each case the Court regarded that and I think that point has been made in all of the opinions of the Court, the Court has regarded that as a transfer of allegiance, Your Honor is referring to Mackenzie against Hare, the Savorgnan.

Those were cases --

Unknown Speaker: [Inaudible]

Mr. Leonard B. Boudin: Yes, the first two were cases clearly of a transfer of allegiance.

I think that Perez represents the first break with the past and given the time I would welcome the opportunity to reargue that principle, that the rational nexus theory can be applied to citizenship itself.

But it is not possible for me to reargue them.

The important point is that I am not faced with any decision of this Court, which says that punishment can be constitutionally imposed or rather that denationalization can be imposed as a form of punishment constitutionally.

I have on my side the one case which is in my favor here, which is Your Honor's own decision in Trop, an indistinguishable statute in terms of origin, language from the beginning and the general developmental history.

So that there is no case in this Court, no case as yet, unless this is to be it in reversal of Trop, in which this Court has said someone maybe punished, maybe punished for by taking away his citizenship.

Now --

Justice William J. Brennan: Mr. Boudin even though you are going to reargue it, may I just ask this?

It was suggested yesterday that when Dr. Cort entered Czechoslovakia, he sought admission as a stateless person.

Mr. Leonard B. Boudin: I believe Your Honor, that there is no evidence in the record as to that.

I do not know the facts.

I could not conceive that it -- I would -- cannot conceive of it being at all relevant here --

Justice William J. Brennan: Was that statement unsupported by anything in this record?

Mr. Leonard B. Boudin: I believe so but I am not sure Your Honor.

I would have to address myself to that.

If Dr. Cort sought admission as a stateless person, if he did, it was obviously because the United States was not giving him at that time and as it had not from 1951 on, a passport.

Justice William J. Brennan: Well, this leads me to ask this.

If we have the problem, which in your view we don't, whether there maybe denationalization except with the consent of the citizen, might a citizen renounce American citizenship to embrace a stateless status?

Mr. Leonard B. Boudin: I don't think that there is any such line of continuity between renunciation of American citizenship and the adoption of stateless.

One never adopts a stateless position.

It's a limbo into which one is thrown by his government's act or his own, but he doesn't adopt it.

Justice William J. Brennan: So far I gather our cases have been, Savorgnan and Mackenzie at least, where there has been -- what's been embraced has been another allegiance.

Mr. Leonard B. Boudin: Exactly Your Honor, and in Perez where they had already rejected another allegiance, which the man still was able to retain.

This will be as I said, perhaps not expertly, originally the only case in which a man has been -- has had his citizenship taken away, that I know of, whether for a crime or otherwise, but the by the act of his government and in which he will become stateless.

Justice William J. Brennan: Well in any event if Dr. Cort did embrace or attempt to embrace a stateless status, he certainly has changed his mind.

Mr. Leonard B. Boudin: He never wanted Your Honor to be stateless.

This was a situation enforced upon him by the United States Government.

And Dr. Cort as a matter of fact at this moment does not have the full privileges of an American citizen to which he his entitled, under the decision of the court below because in answer to a question that was given the other day, Dr. Cort only has a one-way passport to the United States given by the United States Government in response to the order of the court below.

Well now obviously he is entitled to all the rights of a citizen.

Justice John M. Harlan: Mr. Boudin --

Mr. Leonard B. Boudin: Yes Your Honor.

Justice John M. Harlan: As I understand your argument, you're assuming or accepting, event though you don't agree with it, the constitutional power of Congress to denationalize without consent, your argument bypasses that question or assumes it.

In another words you say you can win this case even making that concession.

Mr. Leonard B. Boudin: Yes.

Justice John M. Harlan: Do I understand you correctly?

Mr. Leonard B. Boudin: I have emphatically in my brief Your Honor agreed with the Chief Justice's opinions to which I have referred before and denied here as I have elsewhere that the Congress of the United States had the power to take away against a man's consent his citizenship, but I have said that as -- that I do not have to carry that burden here.

Justice Hugo L. Black: Are you waiving that at all?

Mr. Leonard B. Boudin: I am certainly not waiving it, I have made the point in my brief and nothing would please me more than to have the Court as I think it should pass upon the issue, but I do not think that in my case it will have to.

I would have welcomed the opportunity for a full argument before the Court to reargue this particular matter, because I consider it one of the most serious decisions that was ever made by the Court and leave this [Inaudible]

Justice William O. Douglas: Well I thought in answer to Justice Stewart you have said that the constitutional question is always open before this Court.

Mr. Leonard B. Boudin: Even if counsel doesn't raise it and I have raised it from the first day that we began this case, I have challenged the constitutionality of any Congressional action whatsoever in depriving a man of American citizenship.

Justice John M. Harlan: Well you have some slight stumbling block.

Mr. Leonard B. Boudin: I have --

Justice John M. Harlan: And the fact that the Court has decided at least three times that, that isn't so.

Mr. Leonard B. Boudin: I have a slightly [Inaudible]

Justice William O. Douglas: Have very often have been overruled.

Mr. Leonard B. Boudin: I have -- well I hope that the Trop will not the overruled Your Honors since I think that it is very substantial authority for me here.

May I make two more observations in view of the time problem?

The first is that the discussion by the government of the fact that there are conventions being held for the purpose of minimizing or continually mitigating the rigors of the absence of nationality is the best proof that there are very critical problems involved in terms of the loss of nationality and one doesn't need be sociological expert to tell of refuge problems that exists all over the world today, because the people without nationality even where political problems are not involved.

And of course if Dr. Cort were to come to this country and would find that by a decision of this Court, the novel one that I suggested before, he no longer had citizenship.

Your Honors realize that he would fall under 241(a) of the Act making him an excludable person.

He would fall under 212 (a) of the Act, he would fall under 241 of the Act making him a deportable alien.

He would fall under another section of the Act, which gives the Attorney General the right to arrest him, a man born in this country, keep him for six months or so, look for another country to deport him and he would fall under probably the most serious section of the Act in the history of this country that lower courts at least have criticized, the provision that he shall be subject to supervision under regulations prescribed by the Attorney General, that he shall submit to medical and psychiatric examinations.

This is an American citizen, a man born in this country, that he shall give information under oath as to his nationality, circumstances, habits, associations and activities and such other information whether or not related to the foregoing as the Attorney General may seem -- feel fit and proper, this is what happens.

Justice Arthur J. Goldberg: I thought the government counsel has conceded [Inaudible] he would be regardless of outcome of this case a legally resident alien [Inaudible] against you?

Mr. Leonard B. Boudin: That concession I very much appreciate Your Honor, but I regret that my good friend learned as he is, cannot speak for the Congress of the United States or even for those who administer the statue.

Just as statelessness says, Mr. Justice Brennan pointed out, is a wide area of unknown dangers, so entering the statute under -- entering the country under these unusual circumstances, if we were not to prevail, it would create very serious problems.

Of course I have been talking about the Dr. Cort individually, let us forget about Dr. Cort and consider X, because this Court is concerned with the border problem.

A man norn in this country not entering under these particular circumstances, is he to be treated, the American citizen born here, treated this dreadful way that we subject aliens even in 1962 and I had a sad smile as I heard some other statements made about the amelioration of our immigration laws, but every member of this Court knows what our immigrations law are today.

And I would only add one word if I may Mr. Chief Justice with respect to a problem that I passed over a little too quickly.

I think I may not have been completely fair to counsel or to the Court when I moved into an argument on the clear and convincing evidence doctrine, because if in fact the government's admission is a justifiable one and I think it is, namely as Mr. Terris, preceding counsel stated.

If this is punishment said Mr. Terris, then the statute is embowered as the Court because he never had a trial, a point made by Mr. Justice Black, which I discussed the other day.

There has -- there is no trial provided for under this desertion -- under this draft evasion statute.

Although there is a trial provided for under the desertion statute and the fact that we may ultimately review the proceedings in a 360 action or in some other action of the judicial code does not mean that we have had a trial, which has led to the punishment.

Justice Potter Stewart: You mean a criminal trial involving the constitutional safeguards that surround a criminal trial.

Mr. Leonard B. Boudin: Yes Your Honor and I would --

Justice Potter Stewart: [Inaudible] jury trials the rest of it.

Mr. Leonard B. Boudin: Your Honor yes and I would say we have not even had a civil trial of the kind which we were entitled to before we lose our nationality.

We lost, well Dr. Cort, I don't want to make this too inclusive at the moment, Dr. Cort lost his nationality as a result of an administrative decision of an assistant division head in the Department of State.

Justice Hugo L. Black: Was that the ground on which his passport was denied?

Mr. Leonard B. Boudin: No, Your Honor the ground on which his passport was denied occurred in 1951.

The Government is taking some support for that here, in violation -- under the general principles, which were struck down by this Court in Kent and Grale against Dulles.

The Government from 51 on was treating Dr. Cort as if he were not entitled to some of the benefits of citizenship, they denied him a passport.

Justice Hugo L. Black: I understood that in this case the position was that the statue itself makes a man automatically, deprives him of citizenship if he leaves here on the account of -- to evade the draft and if that happens before he has any kind of a trial.

Mr. Leonard B. Boudin: That is correct.

The position of the government is --

Justice Hugo L. Black: Automatic depravation of citizenship without any kind of trial in any Court.

Mr. Leonard B. Boudin: May I respond?

Justice Hugo L. Black: Is that it?

Am I right about it?

Mr. Leonard B. Boudin: Yes, the position of the government is and it was the position taken by the Department of State that from the moment that he allegedly remained aboard to avoid the draft, from that moment, without a trial judicial administrative, criminal or civil, he lost his citizenship.

Justice Hugo L. Black: Is that what the statute provides?

Mr. Leonard B. Boudin: Yes, the statute doesn't provide for any trial.

It provided the act of remaining aboard, now when the time comes to be denied a benefit like a passport as occurred later in 1959.

An Administrative Chief in the Department of State says, “I have looked over the papers, I am satisfied that Dr. Cort remained aboard for avoiding the draft, purpose of avoiding the draft and I therefore hold that he is not a citizen.”

Then you go to the Board of the Nationality Review, which again under the procedure I have indicated makes the same, but none of this is provided for by -- no trial is provided for by statute.

Justice Hugo L. Black: If you get a judicial review of that, what kind of judicial review is it?

Mr. Leonard B. Boudin: I think the only judicial review we could have here would be one of the constitutionality of statute and as Mr. Justice --

Justice John M. Harlan: It was review de novo, wasn't it?

Mr. Leonard B. Boudin: I don't think that -- I think --

Justice John M. Harlan: Evidentiary wise, constitutional wise, statutory wise, every wise.

Mr. Leonard B. Boudin: Ah but the question, the original question is, was there a jurisdiction to deny Dr. Cort in the first place a passport?

Was there a power in the government without a hearing, without the trial which this Court suggested in the Kurtz case, which the Court of -- which the Pennsylvania Court of Appeals suggested in Huber, was a condition preceding to the depravation of a right, but because between the time that Dr. Cort allegedly remained away for the purpose of avoiding the draft, and the time that the Court ultimately decided the matter, he was denied rights by the Department of State without a trial, on the ground that they had evaluated the situation and that he was no longer an American citizen.

Justice Arthur J. Goldberg: [Inaudible] trial without a hearing in this case?

Mr. Leonard B. Boudin: I don't think the Supreme Court is a court of original jurisdiction Your Honor to hear this kind of matter.

Justice Arthur J. Goldberg: No, [Inaudible]

Mr. Leonard B. Boudin: I think quite a difficult trial, because the state's normally on affidavits this were -- this was and is not the trial which Congress, which the Constitution contemplates as a trial occurring before the man is to be deprived of benefits.

As Your Honors will recall this --

Justice Hugo L. Black: May I call your attention this also, that this is a trial, it's a trial by the Judges, if this man had an automobile license or if somebody took away a $6 -- $25 piece of property, but he was tried for offense which would subject him to no less depravation for the matter of loss of citizenship, he would have a trial by a jury or judges, who tried the whole case with counsel, right to counsel and all of those things.

And there is a question that arises so far as I am concerned and whether that kind of so called judicial review, the kind of protection that the Constitution affords the man, because they take him -- they take away his citizenship.

Mr. Leonard B. Boudin: As a final word if I may impose Your Honor, Mr. Justice Frankfurter, I've tried to reach this point before, in a footnote to Trop suggested, this is footnote number three, suggested that Trop, or a person like Trop could have shown in his judicial trial that the Court-Martial was without jurisdiction and we suggest that the judicial trial here, the so called judicial trial before the three-judge court in which we saw a passport, it is appropriate to show not merely that there was no jurisdiction in a Court-Martial which wasn't here, but there was no trial at all.

I thank Your Honor for --

Chief Justice Earl Warren: Is there also a presumption in this case?

Mr. Leonard B. Boudin: Yes, Your Honor there is a presumption that I have dealt with in my brief.

Chief Justice Earl Warren: That he has to overcome?

Mr. Leonard B. Boudin: Exactly and we have challenged the constitutionality of that presumption.

Chief Justice Earl Warren: Yes.

Mr. Leonard B. Boudin: We think that it bears no rational relationship to the fact involved particularly because it says that any violation of the Selective Service laws will lead to a presumption that a man is remaining abroad for the purposes of avoiding the draft.

Well Your Honors who are at least as expert as I am in this area know the numerous violations of the Selective Service laws, all of which are necessarily as a matter of law encompassed within this word any violation.

Chief Justice Earl Warren: But my point was that he has in addition to what you -- his burden would be in an ordinary trial, he is required in a proceeding of this kind to overcome a presumption?

Mr. Leonard B. Boudin: Yes, I missed Your Honor's point -- Your Honor is quite right.

That is quite true, we have that additional burden and we address ourselves on the constitutional level really to that as well as the preceding point.

Chief Justice Earl Warren: Yes.

Mr. Leonard B. Boudin: Thank you.

Unknown Speaker: Mr. Boudin.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Leonard B. Boudin: Yes.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Leonard B. Boudin: I shall answer Your Honor.

This matter is still in litigation.

Dr. Cort has been given only a small part of its right to the citizen by the United States government, namely a one-way passport.

There is no indication that the government, although we prevailed in the Court below, is prepared to recognize him as a full citizen with a very ill wife, as the record will indicate, bring his family here and to begin to try to settle down while this matter is in litigation, would be I think an unreasonable burden on any individual.

I may say in answer to Your Honor's unspoken question and Mr. Doolittle's stated point that Dr. Cort does not want Czechoslovakian citizenship.

We thank the government for suggesting that he might be eligible for it, but it is the one thing that we have not wanted and the one thing that Dr. Cort does want is to have American citizenship, to have all the rights and to comeback here as an American citizen either to go into the army, and Your Honor's will read the record to show the efforts that we made beginning with 1959 in our meetings with General Hershey on this moment or/and to face a criminal indictment, but to give us a crumb here with all the sanctions that might be imposed when the government is ready to colloquially if I may say, lift the beam, I'm afraid that they dropped the beam, I'm afraid that, that will be an unfair burden at the moment.

But Dr. Cort has done nothing, although he could have of course in the way of adopting Czechoslovakian citizenship and his children as indicated here are American citizens.

Now I --

Justice Byron R. White: Well being -- your point about having had no trial prior to depravation of citizenship, you are really making that argument aren't you regardless of whether this is punishment or not.

Mr. Leonard B. Boudin: Yes I am.

I think the punishment aspect aids it.

The government suggests I'm dependent upon on whether it is punishment, but I make it regardless whether it is punishment because whether you call it punishment the government uses the word technically or not.

Justice Byron R. White: [Inaudible]

Mr. Leonard B. Boudin: Yes, well I didn't know the statute, it's for Congress to pass a statute that will give us a trial, until they do that I think one can assume, at least we assume that the depravation is unconstitutional.

Justice Byron R. White: [Inaudible]

Justice Byron R. White: In Nishikawa, I have it right on Gonzalez that the burden is upon the government to prove by clear and convincing evidence the act of expatriation and that this occurs in a trial anytime that the person allegedly who expatriated, asks for any of the rights of citizenship.

Mr. Leonard B. Boudin: The government was never faced with the argument that I have made here.

Justice Potter Stewart: But isn't --

Mr. Leonard B. Boudin: Yes, the Court in both cases decided in favor of the individuals involved.

Justice Potter Stewart: And on that basis.

Mr. Leonard B. Boudin: And on that basis without ever holding because the issue was never litigated as I can recall it, without ever holding that the depravation could occur without a trial.

This issue that I have posed in our briefs and we raised in the District Court, that there must be a trial similar to the one which existed in Trop.

This --

Justice Potter Stewart: This is a Court Martial, there obviously couldn't be that here, you're not saying --

Mr. Leonard B. Boudin: Yes exactly, it would have to be a trial and Congress has setup as the Court has held, Congress has setup a Court Martial procedure for the deserter.

It has never set up any kind of trial for the man who is allegedly remaining abroad for avoiding the draft.

Justice Potter Stewart: But this Court has clearly and unambiguously held, has it not, that anytime that -- the alleged expatriate at anytime can ask for any of the privileges or benefits of citizenship and if they denied him then it's up to the government in a court of law to prove by clear and convincing evidence, and that had the heavy burden to prove the act of expatriate.

Mr. Leonard B. Boudin: Yes Your Honor and this Court has not held, has not held that the issue has never been raised, that a person can even in the absence of clear and convincing evidence, be deprived of his nationality by virtue of an act whose interpretation is left in the hands of an administrative official.

That was not raised in Nishikawa; that was not raised in Gonzales; that has never been raised before.

Justice Potter Stewart: Because there were trials in those two cases and there was a trial in this case.

Mr. Leonard B. Boudin: I don't recall the precise trial -- there was no trial as -- there was no trial here until many, many months and years after we had suffered the depravation of citizenship in the view of the State Department.

There was no trial until many months after an administrative official of the State Department had said you have lost your citizenship as of September 1953.

Justice Hugo L. Black: And what kind of a trial was it?

Mr. Leonard B. Boudin: We never had a trial here.

We had a review proceeding of the District Court on which we charged that the absence of a trial made the government's action unconstitutional.

Justice Hugo L. Black: [Inaudible] having the trial not merely the review of some administrative agency that has heard evidence and made findings and so forth.

You say that he is entitled to a trial before they do this, he is entitled to trial by jury with all the protection that the Court of law affords the man charged.

Mr. Leonard B. Boudin: Yes and not a decision reached by a man across the desk, a perfectly nice man in the State Department who shuffled some papers and has a pleasant oral argument with me.

And then as result of the shuffling of papers, which I have never seen, makes a decision which led to the telegram, which is set forth in the record here.

Citizenship, the passport denied, because you've expatriated yourself.

That man maybe the finest man in the world, but the Constitution didn't set him up to try people and to deprive them of citizenship.

Thank you.

I thank you Your Honor.

Chief Justice Earl Warren: Mr. Doolittle?

Argument of J. William Doolittle

Mr. J. William Doolittle: Mr. Chief Justice, I should like to cover one point that is suggested by a question of Mr. Justice Goldberg in relation to my argument yesterday and that is a point of immigration law.

If Mr. Cort should come back to the United States under the passport that he has been granted, of course he would be illegal entrant.

There would be no basis for contending that he was not a legal entrant.

Then if subsequently the District Court's decision should be overruled, should be reversed by this Court, there would be a question as to whether or not he could then be deported for any -- for being within an excludable class when he came into the United States.

Now that question has never been decided by any Court as far as we know.

It depends obviously on whether or not during the period of litigation the Supreme Court's final decision could have retroactive effect, and as I say that question is an open question.

So there is the possibility that he could at that point be deported for having been within an excludable class when he entered, not for having entered illegally, but for having been within one of those classes and of course he would be within at least one excludable class.

Now I should also like to cover --

Justice William J. Brennan: [Inaudible]

Mr. J. William Doolittle: Pardon me?

Justice William J. Brennan: I gather that what you are saying, is under those circumstances and if there should be a reversal, I gather that the -- he became – ceased to be an American citizen as of whatever is the date found that he committed the expatriating act, that's it.

Mr. J. William Doolittle: Well, that's right Your Honor.

Now, but what I say is the open question.

It's whether or not he could at that point be deported for having entered the United States at the time he was within an excludable class.

Justice William J. Brennan: Well my point is, if the government prevailed, he has been an alien every since 19 --

Mr. J. William Doolittle: That is correct Your Honor.

That is correct.

Justice William J. Brennan: And I gather what you are saying is that, that being so a question would be raised whether when admitted, now as having been determined that at the time of admission he was an alien, was he within an excludable class?

Mr. J. William Doolittle: Well it's clear that he would be -- he was within an excludable class.

Justice William J. Brennan: Right.

Mr. J. William Doolittle: But whether he would be deportable on that ground.

Justice William J. Brennan: Well that's the question I want next to get to.

He would clearly be within an excludable class.

Mr. J. William Doolittle: That is correct.

Justice William J. Brennan: And does it follow from that, that he would also then be deportable within one of the classes, deportable for --

Mr. J. William Doolittle: My whole point Your Honor is that, that question has not been decided.

Justice William J. Brennan: [Inaudible]

Mr. J. William Doolittle: We don't know the answer to the question.

It is possible that he would be but we would not be inclined to say that --

Justice William J. Brennan: Well, in any event the government would be free I gather you are suggesting to seek his deportation on some basis under the laws governing --

Mr. J. William Doolittle: Yes, Your Honor, he would be an alien, they would certainly be free.

Justice William O. Douglas: You are not asking for an advisory opinion.

Mr. J. William Doolittle: Not at all, Your Honor, not at all.

Now I'd like to cover one other question that Mr. Justice Brennan asked, I believe it was on the basis for my statement yesterday that he entered as a stateless -- entered Czechoslovakia as a stateless person.

That is based upon page 87 of the record, which is a part of his application for a passport in which he indicates that his residence permit in Czechoslovakia was a residence permit as a stateless person.

Now I would also like to cover a factual question.

Chief Justice Earl Warren: He would be -- he wouldn't be able to say he was an American because they denied him a passport and I suppose we wouldn't be able to say he is an Englishman because they refused to let him stay there any longer, what would you suggest that he say in there, when he made this application for a passport in Czechoslovakia?

Mr. J. William Doolittle: Well I'm -- Your Honor, I'm not suggesting that he should have said anything else.

I'm merely -- my statement yesterday was merely that he entered Czechoslovakia as a stateless person.

I am not attaching any morals one way or the other.

Chief Justice Earl Warren: Well you mentioned there it was one of the factors against him, that he himself admitted he was a stateless person.

I was just wondering that if that was an irrational thing for him to do in the circumstance.

Mr. J. William Doolittle: No, I'd say, I say he knew he was a stateless person, but that's all I can say.

Justice William J. Brennan: [Inaudible] do I now understand you to say you are making no mileage for your case out of that fact?

Mr. J. William Doolittle: No, except insofar as Czechoslovakia knew he was stateless person and did not treat him on the ground.

Justice William J. Brennan: Are you making any point of the fact that this statement appears …

Mr. J. William Doolittle: No.

Justice William J. Brennan: Not at all?

Justice Hugo L. Black: Do you agree with it, that he was?

Mr. J. William Doolittle: I do agree with it, Your Honor.

Now I'd like to cover one other factual point raised by Mr. Boudin yesterday, and that is on the question of Mr. Cort's purpose in remaining aboard.

It was indicated that Mr. Cort had -- if I could just finish this Mr. Chief Justice.

Chief Justice Earl Warren: Yes, oh yes, go right in.

Mr. J. William Doolittle: It was indicated that Mr. Cort had received a letter from the authorities at Harvard prior to his having received a notice from his draft board.

Now in point of fact because of the problems of when letters reach one across oceans and so on, it is probable that a letter written by Harvard did reach Mr. Cort before his draft notice did.

But in point of fact that letter from Harvard, what it said was, and this appears at 138 of the record, it said, “We have had to deny your request and we declare your position essential, so you'll probably be drafted.”

Well now Your Honors, if that is what made Mr. Cort decide to stay in England rather than his actual draft notice, which he received a few days later, we suggest that it's just as clear that he remained in England to evade the draft.

We suggest that the fact that he knew he was -- that he heard that he was going to be drafted first from Harvard rather than from the Selective Service Authorities doesn't make any very important difference as far as his own mental attitude is concerned.

Thank you, Your Honors.

Justice Tom C. Clark: How about [Inaudible]

Mr. J. William Doolittle: No, sir he didn't.

Justice Tom C. Clark: He did not and would he be entitled to [Inaudible] under this wording in the statue?

Mr. J. William Doolittle: Yes, he would.

Justice John M. Harlan: [Inaudible]

Mr. J. William Doolittle: No, sir.

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Kennedy v. Mendoza-Martinez - Oral Argument, Part 2

Tue, 25 Sep 2012 16:37:20 +0000

Case:

Kennedy v. Mendoza-Martinez

Media File:

2_19611011-argument-2

Related Transcript:

2_19611011-argument-2

Transcript:

Argument of Thomas R. Davis

Chief Justice Earl Warren: -- Kennedy, Attorney General of the United States, versus Francisco Mendoza-Martinez.

Mr. Davis, you may continue with your argument.

Mr. Thomas R. Davis: Thank you Your Honor.

Justice William J. Brennan: Mr. Davis, before you begin, I think you told us yesterday that you submitted to Judge Jertberg, a court order which included the provisions for injunctive relief and that he refused to enter it, but under the order he did.

Did the Government make any objection to your order?

Mr. Thomas R. Davis: Yes.

Judge Jertberg did that because the Government objected.

Justice William J. Brennan: And what was the Government's objection?

Mr. Thomas R. Davis: The Government objected it was beyond the scope of the action and if the Court please, there is additional reason for the Government's having objected which I wanted to bring out exactly at this time.

Under the general prodding I must say of Mr. Justice Whittaker, I should point out that we went through a pretrial procedure in this case pursuant to Rule 16 of the Federal Rules of Civil Procedure and as I think Mr. Justice Brennan is well aware, that Rule explicitly provides for amending the pleadings to correct earlier errors and as does Rule 15 of course also provides for amendment.

But what is important about Rule 15 which relates specifically to amendment is that it provides that any amendment which is accomplished relates back to the original pleading.

In other words, the Rule says in just about so many words, the pleading as it is amended shall be deemed a pleading which was originally before the court so that the excessive zeal which I exhibited in drawing this prayer was cured by virtue of the explicit terms of Rule 15.

And on that ground, in addition to the inherent ground that it was beyond the scope of the action per se, but on the ground of the pretrial stipulation as well, the Government rightly objected to any additional ancillary relief being granted in Judge Jertberg's order, and Judge Jertberg correctly refused me the additional ancillary relief which I sought.

Therefore Your Honor, I submit that under Rules 15 and 16, the Court correctly proceeded and what is more important, the correction that it made and in -- contained in its final judgment was a correction which by virtue of Rule 15 related back to the original pleading.

I have returned again today to take up the additional time of the Court because we did not reach at all the -- neither Mr. Davis nor myself reached at all the ultimate question, the constitutional question and in any time I take up, I realize that it has been many times argued here and argued by men of far greater experience and wisdom than I have.

Nonetheless, perhaps the Mendoza case is destined to be the bellwether case and it would be improper for me not at least to make some brief contentions on the basic question of constitutionality.

Without rehearsing the briefs, I would like to invite the Court's attention to one specific question.

It is possible on one theory or another with a very sharp knife to divide Trop versus Dulles from Mendoza.

But there is one basis on which it cannot be divided and that is the question of whether it would be possible to say that in Mendoza, there is no punishment involved whereas in Trop, 401 (g), there is punishment involved.

That I submit is an indefensible distinction.

Every bit of the legislative history of this statute originating as it did with the Attorney General and proceeding through legislative argument in the citations that we have given to the Court shows that it is plainly coercive statute.

And this I submit is a pivotal question because if it is punitive, if Section 401 (j) is a punitive statute, I submit that it plainly violates procedural due process of law.

And this is of crucial importance because of the often repeated inclination or in the determination of this Court not to limit or affect the power of Congress if it can conceivably be avoided.

Justice Felix Frankfurter: Let me ask you this.

Mr. Thomas R. Davis: Yes sir.

Justice Felix Frankfurter: Could Congress make it an offense punishable heavily, say, five years, a sentence of five years, a mandatory sentence for five years for leaving the country to escape the draft?

Mr. Thomas R. Davis: It could've hung him Your Honor.

Justice Felix Frankfurter: It could've hung him?

Mr. Thomas R. Davis: Yes.

Justice Felix Frankfurter: Wouldn't that -- that wouldn't be coercive?

Mr. Thomas R. Davis: I think it is extremely coercive but it --

Justice Felix Frankfurter: All I'm suggesting is that when you use words like coercive and slide from coercive to punitive, and slide from punitive to the constitution, you're doing a lot of sliding, more than three bases I think.

Mr. Thomas R. Davis: I didn't mean to slide at all, I meant them as a --

Justice Felix Frankfurter: I didn't say you're meant to slide.

I'm saying you first used the word coercive and in the next sentence you used the word punitive, in the next sentence you've said it's unconstitutional.

Mr. Thomas R. Davis: May I then use the word penal and --

Justice Felix Frankfurter: Well, you (Voice Overlap) --

Mr. Thomas R. Davis: -- suggest that that reaches the question --

Justice Felix Frankfurter: I'm just indicating that if what you say goes and Congress couldn't impose a sentence of five years, so you say hang him.

Mr. Thomas R. Davis: No.

Your Honor, I'm not suggesting that at all because I'm suggesting indeed that they could've hung him. But they couldn't have hung him on the statute like 401 (j) because there is no criminal procedure provided for.

It --

Justice Felix Frankfurter: I'm not suggesting it could.

I'm not -- I've expressed no opinion on this statute.

I'm merely saying, you throw around words like coercive and punitive doesn't help me in the slightest to analyze the problem.

Mr. Thomas R. Davis: I understand Your Honor and for that reason, I adopt and henceforth intend to use the word penal hoping that it is as unambiguous a word as I could select.

I submit that this is --

Justice Felix Frankfurter: The Constitution doesn't say Congress couldn't make it -- couldn't have -- affect penal consequences for leaving the country to obey this, does it?

Mr. Thomas R. Davis: It -- Your Honor, it could not impose a penal sanction like 401 (j) because 401 (j) is procedurally defective aside from the power.

Now, that's another question and I'm aware of Your Honor's views on the question of whether Congress ultimately has that power.

What I'm trying to reach now is the question of whether Congress went about it right.

Justice Felix Frankfurter: Alright. I understand that.

Mr. Thomas R. Davis: And I submit that 401 (j) --

Justice Felix Frankfurter: (Voice Overlap) -- but using adjectives -- using adjectives, it doesn't settle complicated constitutional questions.

Mr. Thomas R. Davis: No Your Honor and I hope that the selection of the word penal eradicates any ambiguity that might otherwise have existed.

I submit that this if the statute in Trop is penal, this is a penal statute.

If it is a penal statute, it is violative of procedural due process of law because it provides for loss of citizenship instantaneously per se, a United States attorney may ordain if this happened and the only remedy in effect is to come in and say, “Alright.

You say I'm an alien.

I'm pleading as an alien but you're wrong, I'm a citizen.”

It's a civil proceeding in declaratory relief.

It is not a criminal proceeding which guarantees to the defendant those protections which are fundamental to due process of law, to procedural due process of law.

Unknown Speaker: (Inaudible)

Mr. Thomas R. Davis: Yes Your Honor and those other protections which are elementary in which I don't think the Court wants me to rehearse here which are necessary in a criminal proceeding.

Justice Potter Stewart: Why wouldn't that have been equally true in Perez against Brownell?

Mr. Thomas R. Davis: Your Honor, I would've thought that it was of course, to all of us who have labored on this side of the wall thought so.

But I think that there is a valid distinction to be made now that Perez has been decided in that this Court has held that there is vested in the Government an inherent right by virtue of its sovereignty or by virtue of the foreign affairs power, it doesn't really matter very much which you say it is, but in any event, the Government has the power to separate its citizens from its non-citizens.

To set out certain acts which -- whether the person subjectively intended it or not, nonetheless are of such a character that must necessarily result in a divestment of their citizenship.

That is the Acts have a rational nexus to the abandonment of citizenship.

In a sense, Perez is not divorced from Perkins versus Elg in the older cases which said in effect that expatriation is the voluntary relinquishment of nationality.

Perez says as Savorgnan said that the standard must be objective, the petitioner will not be hurt to come into court and say, “Well, I didn't really mean to do that” and there's a lot of sound ground for that Mr. Justice Stewart because suppose the Act were a voluntary signing of a pledge of allegiance to the British flag and then the petitioner later came in and said, “Well, I didn't know what I was doing,” the Government is entitled to count on certain acts as manifesting a desire to change allegiance.

Justice Potter Stewart: It seems to me that everything you'd said is of extraordinary applicability to this case.

The highest duty of citizenship is to serve the nation, the United States in time of war and somebody who flees to another country to evade that obligation is an objective matter certainly I should think under the very criteria that you've been discussing to be considered somebody who's abandoned his citizenship.

Mr. Thomas R. Davis: Well --

Justice Potter Stewart: Surely as much as Perez by simply voting in a Mexican election.

Mr. Thomas R. Davis: Your Honor, I don't think that in Perez the petitioner was being punished.

He was found to have --

Justice Potter Stewart: The same sanction was imposed in that case as the Government would impose --

Mr. Thomas R. Davis: Oh, yes, indeed.

Justice Potter Stewart: -- (Voice Overlap) loss of citizenship.

Mr. Thomas R. Davis: True.

Justice Potter Stewart: And if it wasn't punishment there, why is it punishment here?

Mr. Thomas R. Davis: Without being discourteous, I'd have to turn the question around and say how could it be non-punitive here if it -- if it was punitive in Trop which four members of the Court explicitly held it to be and I think inevitably one must derive from Mr. Justice Brennan's concurring opinion, the same result that it was nakedly a punitive statute, but I don't mean to beg the question Your Honor.

I am trying to distinguish Perez and say that although those of us who fall on the other side of this urged otherwise, nonetheless it can now still be said that Perez is a regulated statute because the Government has got to be able to go out into this world and say of its citizens or alleged citizens abroad, these are our citizens.

These are the people entitled to the protection of the flag and these over here are not citizens and on the basis of that power, which seems to me stated that way to be an inherent attribute of sovereignty if it is not part of the foreign affairs powers, on the basis of that, Perez can be justified as a non-penal statute.

Justice John M. Harlan: Do you think it's of any significance that Mendoza was a dual national?

Mr. Thomas R. Davis: Your Honor I think it is of no significance at all because the record is utterly devoid of the slightest indication that Mendoza ever asked to be a Mexican citizen.

The British Empire tomorrow, the Parliament can adjudicate everybody in this room, a subject to the British Crown if it so desires.

We have no control over that Act anymore than Mendoza had control over what the Mexican Constitution said about the nature of his birth which happened to be that he was born of persons who were of Mexican nationality.

Now, there's more to it than that.

If we were to make such a distinction in this case, we would be creating a separate class of citizens, a set of citizens who were especially subject to a law.

If this is the pivotal point --

Justice John M. Harlan: I'm not suggesting that there is, but I was just asking the question.

Mr. Thomas R. Davis: Your Honor, I'm suggesting that if that were in the mind of the Court, the Court should consider that it would be creating improperly a special second class of citizens who would be subject to this statute where those who had not been ordained to be citizens of the British Empire or the Republic of Mexico or whatever, those who had not happened to have fallen into that category would be relieved from the impact of the statute.

Justice Charles E. Whittaker: Do you think it would not have a bearing upon the question, Eighth Amendment, assuming this is a penalty?

Mr. Thomas R. Davis: No.

Your Honor, I would submit this and this was a matter which was specially considered this time on remand.

The results of that consideration appear in a very careful language of Judge Jertberg in the specific finding on the subject in which he finds in essence that the petitioner is a citizen of Mexico according to the laws and Constitution of Mexico.

What is citizenship in Mexico if the Court please?

What is citizenship in Bulgaria or in Hungary or in Russia or wherever?

Citizenship here, we understand and certainly when the Court has written the final chapter of this series of cases, we're going to know more about what citizenship is, but we have a pretty good idea that it means basic protections, basic protections of American rights.

But, when we say that a man is a citizen of Mexico, he may be persona non grata for any number of reasons which are beyond the knowledge or can of this Court.

Citizenship when it's extended to a foreign land means less than nothing.

It can't equally be cruel and unusual punishment to send for example a man to Bulgaria behind the iron curtain, even though according to the Constitution of Bulgaria, he's a citizen of it.

To make the distinction upon that basis Your Honor is to presuppose that citizenship in each foreign land is what citizenship is here and I don't think the Court knows that.

In fact, I think the Court more than that can take judicial notice of the fact that such is very, very far from the case.

He will be set adrift just as surely as well as the Court because Mexico may declare him for any number of its own reasons to be persona non grata.

And I can inform the Court for the record, if the Court will indulge me that long ago we received a letter from the Mexican consul on our inquiry that he was not welcome in Mexico because he had insisted on relying on his American citizenship.

It can't be before the Court.

A Mexican consul can't speak for the Mexican Government and I don't think that the Secretary of State or whoever appropriate officer might make such a statement and Mexico would make it but it has been made.

I say this informally for the Court's information.

Citizen or not, he is not welcome.

Justice Charles E. Whittaker: Does not Congress here have said that the very Act of leaving the country to avoid military service in time of war or national emergency is so inconsistent with allegiance as to constitute a voluntary renouncement of American allegiance?

Mr. Thomas R. Davis: Congress could've said it but I think Congress would've been --

Justice Charles E. Whittaker: Could that not have been its basis for saying what it did in 401 (j)?

Mr. Thomas R. Davis: Well, first of all, Mr. Justice Whittaker, we know that in fact it was not, that this emerged from the Attorney General's office as an additional penal sanction for the purpose of assisting United States Attorneys and incidentally the amicus curiae brief of the American Civil Liberties Union brilliantly develops this history of the statute.

We know that in fact it wasn't, but even if we didn't know where the statute came from or what its source was and how it was administered, nonetheless, I would submit that Congress, and I say this naturally with deference and respect, would have been indulging in a sophistry.

A tax evader or a bank robber who goes across the border is doing the same thing to avoid this kind of sanction and the third answer Your Honor is how can we say this now of Mendoza when the Court refused to say it in Trop.

Here was a man who had taken his oath, who was in military service, who was in a combat zone and who then deserted and the Court refused to uphold the constitutionality there.

Now, how can we turn to a man who has not yet taken that oath and I hope everything I say here carries with it no implied suggestion that this was not a seriously criminal act, I have -- I said this earlier in 1959 to Mr. Justice Frankfurter in response to his questioning, certainly this is a dastardly despicable reprehensible criminal act.

Those of us who are defending this and defending it so hard or doing so because we believe that it's an infringement upon a constitutional right, but getting back into my third point, Mr. Justice Whittaker we could not say that Congress could have made such a statute in Mendoza and upholding on that basis after this Court has held that Congress could not have done it in Trop.

Because of course in Trop they didn't contain that language of deemed to have voluntary relinquished his citizenship, but hypothesizing, we could hypothesize in Trop, but this the Court refused to do.

And in a five to four decision, it struck down the constitutionality of the deserter who had taken the oath of office.

To make this distinction now, if the Court please, without deluding my previous contentions would be to reverse Trop.

I'm virtually at the end of my time and I'd like to reach entirely across for just a moment all of the considerations which are so magnificently set forth in the amicus curiae brief of the American Civil Liberties Union, I couldn't have written that brief if I have worked on it for 50 years and I'm deeply grateful that it was filed on behalf of my client, but reaching across all of the things that have been raised, I would like to ask this Court for a moment to consider the question of ultimate power.

The Chief Justice speaking in Trop expressed the feeling that this question was perhaps behind us now because of Perez, that is to say that it is now behind us whether Congress in certain circumstances has the power to take away citizenship.

And of course, to the extent that Perez does that, I'm not entitled to speak on the subject at this point, but if I was correct in my earlier assertions that Perez is a regulated statute that is that there was a proper exercise of sovereignty to allow the United States to separate the sheep from the goats, there remains before this Court the question of whether Congress per se as a penal sanction has the power under any circumstances no matter how the statute is drafted to take away citizenship and I submit to the Court that it would be proper here to reach that question and to hold that Congress does not have that power.

And this is why I say that.

Citizenship is the status which allows the governed to contract with the Government.

Citizenship was explicitly recognized in our sister French Revolution as being the status which all of the freed people attained and the status by which they entered into their -- to the great contract with their new government.

Here, it was so assumed to be the case because of the tradition of British subjects that we never said it.

And I submit that it needs saying now that the Court should hold as inviolable the status of citizenship because it is the status by which the governed contract to enter into government.

That is to say it is the source from which the Constitution arose and if this Court should hold that Congress may not infringe upon that status because it is infringing upon the contractual status of the other party, of the people.

Justice Charles E. Whittaker: Deserving all of these of course the right of the citizen to renounce?

Mr. Thomas R. Davis: Yes Your Honor, always.

Thank you.

Chief Justice Earl Warren: Mr. Davis.

Mr. Thomas R. Davis: My time has expired Mr. --

Chief Justice Earl Warren: Oh, your time has expired.

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