Cases by Issue - Citizenship

Ins v. Pangilinan - Oral Argument

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

Case:

Ins v. Pangilinan

Media File:

86-1992_19880224-argument.mp3

Related Transcript:

86-1992_19880224-argument.xml

Transcript:

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

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

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

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

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

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

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

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

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cutoff in Hibi, and as I will explain, those statutes prohibit a court from ordering citizenship under the expired and repealed 1940 Act even as to those situations in which there was a timely application under the 1940 Act that was still pending and had not been ruled upon, and we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

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

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

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

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

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

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

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

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

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

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

Absolutely.

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

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

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

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

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

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

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

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

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

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

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

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

The same provision in 1952.

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

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

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

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

Unidentified Justice: Which was when?

Mr. Klonoff: --1942.

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

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

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

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

Unidentified Justice: Significant?

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

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

Unidentified Justice: Well, who were they rewarding?

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

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

Mr. Klonoff: --We think so.

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

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

Congress wasn't clear.

They were clear in the World War One statute.

They specifically mentioned the Philippines.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mr. Klonoff: --The '46 law?

Unidentified Justice: Yes.

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

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

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

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

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

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

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

That's what Congress did.

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

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

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

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

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

Unidentified Justice: Let's not discuss it here.

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

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

Unidentified Justice: Right.

Find out.

Mr. Klonoff: --I was responding--

Unidentified Justice: You were answering my question.

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

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

Mr. Klonoff: --Let me--

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

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

Isn't that basically what it was?

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

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

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

It said that subject to--

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

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

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

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

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

There is really no analytical distinction.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It is important to emphasize--

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

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

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

And our submission is that it is an a fortiori.

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

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

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

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

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

The subsequent statutes are as clear as the 1948 Act.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It was simply not an issue in the case.

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

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

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

She was pregnant at the time.

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

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

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

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

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

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

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

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

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

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

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

We will hear now from you, Mr. Ungar.

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

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

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

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

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

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

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

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

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

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

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

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

It could give rise to no estoppel.

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

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

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

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

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

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

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

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

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

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

This Court didn't--

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

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

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

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

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

But apparently that isn't the case here.

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

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

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

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

Mr. Ungar: No, he is correct.

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

Let me turn first to the question of error.

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

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

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

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

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

The language of the statute is clear.

It says that any qualified veteran may be naturalized.

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

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

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

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

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

Mr. Ungar: I beg your pardon?

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

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

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

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

Unidentified Justice: Other things being equal.

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

Mr. Ungar: Right.

Well, I think--

Unidentified Justice: But the statute was not mandatory.

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

It just authorized it.

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

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

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

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

Mr. Ungar: Yes.

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

What is the difference?

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

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

Unidentified Justice: Were your veterans in the Philippine Scouts?

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

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

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

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

They all served under the same flag.

They all wore the same uniform once the war started.

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

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

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

Indeed, that--

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

Unidentified Justice: --Right.

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

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

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

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

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

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

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

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

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

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

Unidentified Justice: The due process argument.

Right, I agree.

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

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

The error is enough.

I think it is important in that respect.

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

So that would also be important for that reason.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It certainly didn't do that.

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

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

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

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

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

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

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

It is the government that is responsible for that.

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

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

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

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

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

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

That is the argument that the government is making.

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

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

There was a War Department circular that called upon--

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

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

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

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

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

Mr. Ungar: --I beg your pardon?

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

Mr. Ungar: That's correct.

Unidentified Justice: No food, no anything.

Mr. Ungar: They certainly were.

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

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

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

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

Mr. Ungar: That is true.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

That is a separate issue.

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

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

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

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

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

That is how the statute--

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

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

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

Mr. Ungar: Yes, they did.

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

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

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

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

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

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

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

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

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

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

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

What happened here was different.

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

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

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

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

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

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

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

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

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

I don't know what the exact numbers are.

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

But clearly they are small in terms of overall immigration.

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

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

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

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

The oldest is in his eighties.

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

I think one has to start out with--

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

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

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

Mr. Ungar: I beg your pardon?

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

I am not sure it is totally irrelevant.

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

Unidentified Justice: On the remedy issue.

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

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

Unidentified Justice: What about the children?

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

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

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

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

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

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

That is true.

Unidentified Justice: --Yes.

Well, how come equity wouldn't reach them?

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

I am not sure I follow your--

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

Mr. Ungar: --That is probably true.

Unidentified Justice: Why won't equity protect them?

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

Unidentified Justice: That would be the next case.

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

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

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

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

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

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

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

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

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

They were entitled under the law to be naturalized.

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

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

Thank you very much.

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

Mr. Klonoff, you have one minute remaining.

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

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

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

Mr. Klonoff: That is a very good question.

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

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

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

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

It is a decision that is made by the courts.

Thank you.

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

The case is submitted.

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

Attribution:

The OYEZ Project

Featured:

Astrup v. Immigration Service - Oral Argument

Thu, 23 Aug 2012 18:31:19 +0000

Case:

Astrup v. Immigration Service

Media File:

840_19710420-argument.mp3

Related Transcript:

840_19710420-argument

Transcript:

Argument of Paul N. Halvonik

Chief Justice Warren E. Burger: 840, Astrup versus the Immigration and Naturalization Service.

Mr. Halvonik, you may proceed whenever you’re ready.

Mr. Paul N. Halvonik: Thank you. Mr. Chief Justice, Members of the Court.

Actually, this case is quite simple, the principle facts occurring in the years 1950-1952.

The petitioner here lawfully entered the United States for the purpose of permanent residency in the year 1950.

In the summer of that year, he registered for the draft.

He was, later that summer, drafted, but he didn’t submit to an induction.

He signed an exemption from military service which was provided by the 1948 selective service law.

That exemption provided that neutral aliens or permanent residents would be exempted from the draft if they executed the form.

In exchange, they would be relieved of liability for service in the armed forces.

The following year, in 1951, Congress amended the draft law to provide that permanent resident aliens could be drafted, thus, removing the exemption, part of the bargain in the favor of the petitioner.

As we point out in our brief, this was a drastic departure from prior law.

Never before did neutral aliens been drafted by this Country if they chose not to be.

Petitioner was drafted again.

This time he went down to submit to induction, but he was rejected because he did not-- he was not physically fit for service.

The next significant date is 1952 when Congress adopted Section 315 of the Immigration and Nationality Act, the section which petitioner contends controls here.

Section 315 provides what this Court has characterized as a two-pronged test where an alien who has sought exemption from military service is seeking citizenship.

It provides that the alien must (1) have sought the exemption and (2) been relieved from military service prior to that 1952 law which required exemption because, the execution of the exemption, because that also grants release from liability.

But Congress, evidently, because of the intervening law taking away this release from liability for aliens who had signed the exemption now provided the two events had t occur, and we contend that the petitioner was not relieved from liability since he was drafted and that, therefore, he should be admitted to citizenship.

Now, the government, at least below and I assume, still takes the position that had petitioner actually served in the armed forces, he would be eligible for citizenship.

Now, we contend that that’s a misreading of the statute.

It says liability from military service, not service in the armed forces, not actual service.

That if Congress meant actual service, it would have said so.

It merely said those who were not relieved from liability are eligible for citizenship, and petitioner was not relieved from liability.

Moreover, it wouldn’t make much sense to make a distinction between those who were physically fit and could actually serve and those who would flump the physical.

The Congressional scheme makes a good deal of sense.

Now the government, in its reply brief in this case, has raised a new argument that was not raised before, and that is that this section that has been the focus of all the litigation up to now, Section 315, isn’t applicable to the case.

The government and both Courts below thought it was applicable and did both Courts below.

But, the government contends that the Saving Clause, which is Section 406 (a), of the Immigration and National-- Naturalization Act keeps petitioner’s status the same as it was in the year that he signed the exemption.

There are a number of problems with the argument.

First of all, it’s inconsistent with the government’s general position that if petitioner had served, he would be eligible for citizenship because the Section 315 Act doesn’t apply to people who signed the exemption before 1952.

Justice Potter Stewart: Mr. Halvonik.

Mr. Paul N. Halvonik: Yes?

Justice Potter Stewart: The government has filed only one brief, didn’t it?

Mr. Paul N. Halvonik: That’s correct.

Justice Potter Stewart: Because you talked about a reply brief.

Mr. Paul N. Halvonik: Their reply brief, right.

That’s the only brief they filed. The filed other briefs in the Courts below, but I was referring to-- they have filed, but the one brief in-- the brief essentially relies on this point.

I want to emphasize that that’s inconsistent with their general theory that if he’d served, he would be eligible for citizenship because if that Savings Clause saved all the disabilities of everybody, then it would save those who also served in the armed forces, and-- thus, Congress, in trying to create this new status in 1952 for people who was drafting, would be unsuccessful.

Now-- but, the inconsistency, I think, in the government’s position points out their misreading of Section 406 (a) in relation to Section 315, because Section 315 is an exception to the Savings Clause in Section 406 (a).

Section 315 is meant to change status.

That’s what it’s there for.

It’s meant to change the series of invents that result in ineligibility for citizenship and add a new condition before one becomes ineligible.

That’s precisely what it’s for and it, therefore, is a specific exception to the Savings Clause.

It begins with the language “notwithstanding anything contained in Section 405 (b),” which is another Savings Clause that deals with the petitions for naturalization that are pending.

And, the government takes the position that since there’s this “notwithstanding Section 405 (b)” language, therefore, Congress meant to leave Section 405 (a) as a continuing status controlling all of these cases.

Well, that’s inconsistent with the case relied on by the government, Shomberg.

Shomberg also started out with “notwithstanding Section 405 (b)” language, didn’t refer specifically to Section 405 (a) but this Court said “well, it may well be that the ransom could’ve been more exact, but there was no question that since, in that case, Section 318 was designed specifically for this problem, it’s designed specifically to change status, that it was an exception to the Savings Clause” and, here, all you need to do is look at the language of Section 315 to see that it is supposed to have retroactive effect.

It refers to the past tense. It refers to those who have applied, in the past, for exemption.

Moreover, I think, probably, Section 315 doesn’t have that much perspective impact.

Its main impact is retrospective.

There are a very few people under the change of the laws who could properly receive this exemption than they’ll ever be in a position to apply for citizenship or to acquire permanent residence.

I think Section 315 is principally designed for cases such as that one here.

It’s principally designed for retrospective application.

I won’t dwell too much longer on Section 315.

We have, in our brief, gone into some great length about the history of this exemption, about the history extending back to the Civil War of telling aliens “you can either accept the burdens of citizenship or not” and you make your decision and that’s that.

You’re released from the obligations of citizenship and you don’t get the benefits.

What 315 is designed to do is to take care of the people who did have the obligation imposed on them, of the citizen obligation of military service after they had signed the exemption.

That’s also relevant to our second contention in this case.

We contend in the brief there that petition didn’t make a knowing waiver of his eligibility for citizenship because he wasn’t apprised properly of the nature of the bargain he was making.

We rely there on the Moser case.

In Moser it was held that though the alien had signed the exemption form, he would not be bound to it because he had been officially told by both the United States Government in this ligation that it didn’t really mean that he couldn’t become a citizen, and the Court here didn’t rely on the estoppel theory to say there wasn’t a knowing waiver of the eligibility because he wasn’t properly appraised of the consequences.

But, we say the same thing happened here.

He wasn’t given any real choice because the choice was illusory.

He wasn’t told really what was going to happen.

He was told “if you take this exemption, you will receive this benefit.”

Justice Harry A. Blackmun: When you say he wasn’t told what was really going to happen, precisely what are you alluding to?

Mr. Paul N. Halvonik: I’m alluding to the fact that he was told that he wouldn’t be able to become a citizen but he was also told that he would be released from liability for service in the armed forces, and best he made his choice looking at these two alternatives, but those alternatives, it turns out, weren’t real.

He wasn’t really getting that.

He wasn’t getting that release from liability.

Now, the government says “well, it’s just a change in law, and that sort of happens.

When you enter into a bargain, you have to perhaps anticipate that somebody will change the law."

And, that may be a good argument where it’s a private contract but, here, the party that he made the agreement with was the government and it was that government that told him that he would not have to serve.

He’d be released from liability for military service.

It was then the government, the very institution with which he made the agreement, that went back on the promise because the consideration was initially illusory and he was not given a fair opportunity to make a choice between the exemption of service.

I think it’s significant in Moser where this was referred to as a rule of elementary fairness, that the Court cited Johnson v. United States which is in 318 Unites States Reports.

And, what happened in Johnson was this.

It was a matter that arose during a criminal trial.

The defendant had taken the stand and was testifying, and then tried to invoke the privilege against self-incrimination, and the judge permitted him to invoke that, although it was clear, at least in retrospect, then that, on appeal, he ruled improperly and shouldn’t have allowed the defendant to exercise any privilege against self-incrimination.

Nevertheless, the defendant did exercise his privilege, but then the Court permitted the prosecutor to comment upon it, and that was held error in the violation of the rule of elementary fairness for this reason.

Because he-- although he did get what he was told he would get, that is he was allowed to forgo testifying, he wasn’t told that the prosecutor would comment upon it.

And, the Court said in Johnson, if he’d been told that this was going to happen, he might have acted very differently.

He would’ve then been presented with different sorts of alternatives.

He might have made a different sort of judgment, and we can’t lead somebody out and not tell him all the facts then consistent with elementary fairness-- elemental fairness, hold him to his original position.

Justice Harry A. Blackmun: You’re talking about the rule of elementary fairness.

Is that a constitutional rule or what?

Mr. Paul N. Halvonik: Well, I assume from both Moser and Johnson that it’s a rule of-- that this Court would enforce if there weren’t any other objection to it, any constitutional objection the other way.

I don’t know-- I don’t look upon it as necessarily a constitutional rule, no.

Justice Harry A. Blackmun: So, it’s just anything that the majority of this Court thinks is elementary fair or unfair?

Mr. Paul N. Halvonik: Well, I think when you’re resolving situations such as deciding in Moser whether a man intelligently waived his right to become a citizen, which is also the question here, or you’re deciding in a question like Johnson whether a man intelligently exercised the privilege against self-incrimination, one necessarily looks to see what’s fair and if he’s been misled by the government, it’s hardly fair to make him suffer the consequences of his original position.

Justice William J. Brennan: That’s illegal or unconstitutional?

That’s a way to decide, isn’t it, not whether or not it’s fair or unfair in our subject of opinion?

Mr. Paul N. Halvonik: Well, we’re here, I suppose, to decide two things.

First of all, whether there was an intelligent waiver, and that’s where Johnson and Moser are relevant.

And, in deciding whether there’s an intelligent waiver, the question goes back into one of what’s a fair arrangement when you offer somebody something and then take it away, and that goes to the intelligent waiver.

The second point, I suppose, goes to one of statutory construction in trying to determine what Congress meant to do with Section 315.

Now, it’s our contention that Congress realized that what it had done wasn’t fair and was trying, by the amendment in 1952, to take care of those cases where they removed the consideration.

Justice Potter Stewart: This case does involve a matter of statutory construction?

Mr. Paul N. Halvonik: It does.

Justice Potter Stewart: Not a constitutional issue.

Mr. Paul N. Halvonik: Well, it doesn’t involve the constitutional issue, except to the extent that one would think considerations that were relevant to this Court in reaching constitutional determinations would also be relevant to Congress when they’re trying to construct the statute.

It’s to that extent that we’ve raised issues.

We’re relying on the Greene v. McElroy rationality that unless Congress has explicitly exercised its power in a way that will conflict generally with fundamental liberties, it will be assumed that Congress would accord these guarantees the same sort of respect that this Court would.

And, it does seem to me also, Mr. Justice Stewart, and in talking about fairness when there might be an ambiguity in the statute or there can be some reasonable difference between people about what the statute means that, looking to--

Justice Potter Stewart: I see you have, in your brief, made constitutional arguments including an Eighth Amendment argument.

Mr. Paul N. Halvonik: Yes, our constitutional arguments, as I say, are, it seems to me, inconceivable that the Court would declare Section 315 unconstitutional on the basis of the arguments that we have made.

What we have said is that if Section 315 were interpreted as the government wants it interpreted, we have a number of strange things.

We have a man not becoming a citizen because he can’t pass an armed force physical, which is very peculiar.

This has no relation to being a good citizen.

Additionally, it seems to be a forfeiture because of an illness.

Now, we raised those to point out that Congress didn’t intend that at all.

When Congress said liability, it referred to liability, not actual service, in the armed forces and that, therefore, the statute, consistent with constitutional principles, ought to be interpreted to, well, interpret it in such a way that the result was that petitioner was eligible for citizenship and that Congress would have these things in mind too.

That’s why it used the language it did.

Fairness again to come back to what may be relevant too in wondering about the government’s distinction between people who actually served and people who had not served.

This petitioner, everybody agrees, would make a fine citizen.

He’s lived in this country 20 years.

He’s a vital member of the community.

We, in San Francisco, refer to as the East Bay.

He’s of good moral character.

He’s attached the principles of the constitution.

It’s quite understandable, he’s execution of that exemption back in 1950.

He just arrived in the country.

He was looking around.

He hadn’t made a decision one way or the other.

He’d just done 14 months to earn duty with the Danish Navy.

He was a young man.

He didn’t want again to go into a service in a country he wasn’t sure now that he was going to take in place of his native land where he’d already served.

He had come here from Denmark in 1950.

He wasn’t after all leaving from an area of famine or political oppression to come to this country.

He was just looking around a bit of time.

After he’d been here a while--

Justice Potter Stewart: How old was he?

Mr. Paul N. Halvonik: He was 23 at that time period.

Chief Justice Warren E. Burger: You have emphasized, I think exclusively, the change in the law.

Is there any other change factor here that enters into this equation of the “bad bargain,” the change in his physical status?

Mr. Paul N. Halvonik: Yes, there was a change-- there may have been a change in his physical status.

I don’t know if he--

Chief Justice Warren E. Burger: If he’d known at the beginning, if he’d known at the outset that he would never pass the physical examination, would he have signed this-- entered into this engagement, waiving the right to become a citizen?

Mr. Paul N. Halvonik: If I understand your question, Mr. Chief Justice, if he knew he could avoid service through another way, would he have executed the exemption?

Chief Justice Warren E. Burger: Yes.

Mr. Paul N. Halvonik: I would think--

Chief Justice Warren E. Burger: Suppose, for example, that he had his right leg off of the knee at the outset, he just would’ve stood by and waited until they called him up and then demonstrated his lack of physical fitness then--

Mr. Paul N. Halvonik: Well, that’s pretty-- I imagine that’s true.

It would be a very unusual to go out--

Chief Justice Warren E. Burger: Here, the physical condition-- his acceptability for military service altered during this span of time didn’t.

At least they found him A1 physically at the early stage, and later they rejected him.

Now, is that rejection which plays a very important part, the rejection for physical disability plays a very important part, doesn’t it?

Mr. Paul N. Halvonik: Yes, it does.

He would’ve served had he not been rejected for the physical disability.

I don’t think we know necessarily whether it was an intervening disability.

I mean, it may well be that it was there back in 1950 also.

These examinations, in my experience, are not always that thorough when something might be picked up one time and not the next.

So, it’s entirely possible that he had a disability in 1950 and had he actually reported for induction, it would have been discovered at that time.

Justice Harry A. Blackmun: Mr. Halvonik, what is the chronology?

Initially, did he not apply for exemption after he had been accepted physically and had passed his physical exam?

Mr. Paul N. Halvonik: Yes, he passed the pre-induction physical.

Justice Harry A. Blackmun: And the second examination was how long after that, a year-and-a half or so?

Mr. Paul N. Halvonik: About that, yes, a year-and-a half to-- no, about a year later, I guess.

Justice Harry A. Blackmun: It wasn’t very long.

Mr. Paul N. Halvonik: No, it wasn’t very long.

Justice Harry A. Blackmun: Is there any question at all about the integrity of his disability?

I take it--

Mr. Paul N. Halvonik: It must be conceded that there’s no question about it because the government admits that he’s a man of good moral character and I assume that any man who malingered or came up with a fraudulent illness in order to avoid military service wouldn’t be deemed by the government a man of good moral character.

Justice Harry A. Blackmun: What was the cause of the-- his not passing the physical?

Was it bursitis?

Mr. Paul N. Halvonik: It was bursitis, yes.

Justice Harry A. Blackmun: Well, this doesn’t last very long.

Mr. Paul N. Halvonik: No, it doesn’t.

What happens here was that he was then-- he became over-aged after he had not passed his physical and he was then later on classified as over the age of liability.

Unknown Speaker: Mr. Halvonik, what is the ground in which you distinguish Ceballos?

Mr. Paul N. Halvonik: Well, Ceballos didn’t qualify into the 1952 statute.

This Court said, there, it was a 1951 and, thus, he didn’t have the advantage of the two-pronged tests.

Ceballos raises some other points, it seems to me, that may be relevant.

I should distinguish it in relation to Moser argument, this idea of the government entering into a bargain and then not keeping its part and whether that’s pertinent here.

Ceballos is a little different case because it isn’t the government.

It wasn’t any action of the government that took away from him the bargain.

Well, this country’s status changed and that’s something I suppose you have to expect when you take advantage of a neutral alien status that your country may become co-belligerent.

But-- so, it was events that changed the bargain there, a fence on the outside, but here what changed the bargain was the government’s taking away its part of the consideration, the government itself.

Justice William J. Brennan: Mr. Halvonik, had he-- the second time around, had he served, do I understand that the government would not oppose the petition for naturalization?

Mr. Paul N. Halvonik: I believe that’s the case.

You will have to ask the government, but that has been the government’s position in the Courts below.

Justice William J. Brennan: And there had been holdings to this effect in the Second Circuit and another?

Mr. Paul N. Halvonik: And the Ninth Circuit, the Lacher case in the Ninth Circuit.

Justice William J. Brennan: So that your position then focuses on the fact of his not passing the physical examination?

Mr. Paul N. Halvonik: That’s right.

That seems to be the significant factor here.

The passage of time, of course, that relate back to this question about his physical change, the passage of time whenever you defer your military service, certain interesting things are likely to occur in between them.

It makes this kind of service you do different than it would’ve been.

Now, these may be in your favor or they may not be in your favor at all.

Lacher, for example, was a case that the government has sup-- says it was decided correctly in the Ninth Circuit, a man who applied for the exemption but actually served and got advantage of the two-pronged test.

But, Lacher, it’s interesting to note, by postponing his induction was able to avoid the Korean War, which made life somewhat simpler for him, I should suppose. He didn’t go in when it was really a shooting war.

Now this petition, on the other hand, had he passed the physical, would’ve been enduring the Korean War and he didn’t know he wasn’t going to pass his physical.

He wrapped up his life and it went down and tried to get into service, tried to recognize the obligation that was imposed by the order to report for induction.

When a man actually serves after being-- after signing this exemption and being told that he won’t have to, the unfairness, the lack of the bargain here, the government’s not meeting its end of the bargain is obvious, just vividly.

But, I can’t see where it’s any different when a man doesn’t serve because he can’t pass the physical.

He’s done everything in his power that he can possibly do to accept the obligation and to manifest his recognition of the obligations that he’s assumed now.

It happens, in both cases, that the man does everything possible.

One man just physically isn’t able to enter the armed forces, and that can’t be a distinction between whether a man becomes a citizen or not, and the language of the statute doesn’t say that.

I submit that if Congress wanted only those people to be admitted to citizenship, who had entered the armed forces, it would’ve said “applied for the exemption and actually did not serve in the armed forces,” that those were people who were ineligible for citizenship, but it doesn’t say that.

It says “people who are ineligible for citizenship or people who want to sign the exemption until relieved from military liability,” and military liability is what petitioner had.

He wasn’t relieved from that, and that’s the language of the statute and that’s the language that should control here.

Justice William J. Brennan: But, in this case, it comes down, does it, I’m over simplifying it, to his eligible for citizenship if he passes his physical examination.

Mr. Paul N. Halvonik: That, as I understand it, it’s the government’s position and I think that’s in Kemble, and it isn’t supported at all by the language of the statute which, again I emphasize, refers to liability and in any case when we’re talking about liability for military service, we’re talking about having to submit to induction, and that’s not actually serving in the armed forces.

In every area of the law, by “liability” we mean that there’s a classified in 1A, ordered to report for induction, that you become liable.

You don’t recognize your obligation, you’re prosecuted, but the liability is demonstrated when that order to report for induction comes, not if you pass the physical examination.

Chief Justice Warren E. Burger: Thank you, Mr. Halvonik.

Mr. Paul N. Halvonik: Thank you.

Chief Justice Warren E. Burger: Mr. Stone.

Argument of Richard B. Stone

Mr. Richard B. Stone: Mr. Chief Justice and may it please the Court.

In the government’s view, this case raises essentially two questions.

One, whether petitioner’s eligibility for citizenship is in fact governed by the Selective Service Act of 1948 or by the Immigration and Nationality Act of 1952 and, two, assuming that the 1952 Act applies, whether petitioner is nonetheless eligible for United States citizenship now by virtue of his having apply for and obtain an alien’s exemption from the draft in 1950.

I think both of these questions raise rather related and difficult issues of statutory interpretation of the 1952 Act and, without reiterating material that has already been gone over or that is familiar to this Court, I think it might be helpful right now if I very briefly place the 1952 statute in its context.

Under the Selective Service Act of 1948, as under the predecessor statute of 1940, an alien who applied for exemption from the draft on grounds of alienage was thereby permanently debarred from seeking citizenship.

Thus, when petitioner asked to have sought and obtained an alien’s exemption shortly before his scheduled induction in 1950 after having passed the physical examination for the draft, the sole test in the military service area of an alien’s eligibility for United States citizenship was in fact whether that alien had submitted a valid application for an exemption on grounds of alienage.

Now, I take it that all agree that if the 1948 Act is applicable to this case, Mr. Astrup is clearly ineligible for citizenship and I guess there can be no dispute of this point.

In view of this Court’s holding in Ceballos v. Shaughnessy in which a unanimous Court and an opinion by Mr. Justice Brennan held that, under the 1948 Act, an alien-- exempt alien who subsequently loses his exemption, but like the petitioner here fails to pass a physical examination, continues to be ineligible for citizenship.

Well then in June of 1951, as the Korean War grew in intensity, Congress did what it had done several times before during war time.

It put increasing pressure on aliens residing in the United States to participate in the war effort.

In the case of permanent resident aliens, such as petitioner, Congress simply amended the Selective Service Act of 1948 to provide that permanent resident aliens were no longer eligible for draft exemptions on grounds of alienage, and this law affected both those aliens who had already sought and obtained alien’s exemptions and those who had not done so.

But, what about the citizenship status of those aliens who had in fact obtained alien’s exemptions which were no longer valid and who were now eligible theoretically, at least with respect to their alienage, to be called for military service?

It certainly would have been possible, though by no means necessary, for Congress to have provided in the 1951 amendment for some sort of adjustment to the ineligibility for citizenship of those persons like petitioner who were no longer exempt by virtue of that amendment.

And I guess, in any event, it would’ve been logical for Congress to have said something, one way or the other, in the 1950 statute directly about the citizenship eligibility of those persons whose exemptions had been taken away by that statute.

But, Congress said nothing, that is nothing more than that permanent resident aliens were no longer exempt by virtue of their alienage, and I take it also that one day after that statute became effective and for at least the next year-and-a half until the effective date of the 1952 Immigration and Nationality Act, no one doubted that the Selective Service Act of 1948 continued to govern the citizenship eligibility of those persons like petitioner and that, consequently those who had applied for alien’s exemptions continue to be debarred from seeking citizenship.

Then finally, in 1952, Congress passed the Immigration and Nationality Act of 1952 which is the statute that gives rise to the problems of this case and which, for the first time, incorporated the rules governing citizenship eligibility of aliens in a context other than the Selective Service Act, that is, the citizenship eligibility in its relationship to military service.

Now, as we know, the 1952 Act set out a somewhat different test of citizenship eligibility.

In the words of this Court in Ceballos v. Shaughnessy, a two-pronged test and that is the formulation that has been used ever since though it has never been clearly elaborated what exactly that test meant.

And, by that two-pronged test, an alien was debarred from seeking citizenship if he both applied for an alien’s exemption and “is or was relieved from service on such ground.”

Now, again, it would certainly been possible for Congress at that time to have settled the question of citizenship eligibility for those whose exemptions had been removed by the 1951 amendment by specifying that the two-pronged test set out in the 1950 Act would be applied to those persons.

But, again, Congress did not specifically referred at all to that class of persons, like petitioner, who had applied for alien’s exemptions prior to the passage of the 1952 Act-- of the 1951 amendment that took that exemption away.

Instead, what Congress did was to put a Savings Clause in the 1952 Act which is Section 405 (a) of the Act.

Printed now is a note to 8 USC 1101 which said that “unless otherwise specifically provided,” all preexisting conditions, rights, Acts, things, liabilities, obligations, or matters arising under prior law shall continue in effect.

Justice Byron R. White: Mr. Stones, what class of aliens would have been entitled to take advantage of Section 315 (a) under the “or” has applied the language?

Mr. Richard B. Stone: That-- I want to get to that, Mr. Justice White.

That is a somewhat difficult question to answer precisely.

If we take the assumption that is-- that applies or has applied, it must be parsed word for word, then it is difficult for me to think of anyone who, at the time the 1952 Act was enacted, had already applied, we would not come under the rule in this case, but this Court in--

Justice Byron R. White: Under your Savings argument, no one who had applied before--

Mr. Richard B. Stone: Would be s--

Justice Byron R. White: Would be subject--

Mr. Richard B. Stone: Would be subject--

Justice Byron R. White: Would be entitled to take advantage of the two-pronged--

Mr. Richard B. Stone: That’s right, and--

Justice Byron R. White: That Section 315 would go on being applicable in the future.

Mr. Richard B. Stone: That’s right, to the-- it would-- and there was still a considerable class of aliens to whom it would--

Justice Byron R. White: Who, at some date in the future, could have said “has applied.”

Mr. Richard B. Stone: I think it is not unusual for Congress to place a statute like that both in the present and the past tense simply to be all inclusive and to make it unambiguous that it’s all inclusive at any time that it’s read.

I think there’s an implication that it means to be retroactive with the respect-- with respect to the time that it’s enacted, but it isn’t necessarily so and, in Ceballos v. Shaughnessy, this question was raised and this Court did, indeed, specifically say that the Savings Clause was preserved intact and that the general language is or has applied did not apply to the petitioner in Ceballos v. Shaughnessy who is in an identical position, as I shall shortly elaborate, to the petitioner here.

The scheme is that, unless it is otherwise specifically provided, petitioner is debarred from citizenship arising under the Selective Service Act of 1948 and that, of course, that debarment is clearly a preexisting liability under Section 405 (a) of the Act.

It simply continues in effect and is unaffected by the test set out in Section 315, and this Court has held that the Savings Clause we are dealing with here is a very broad inclusive clause which has gotten around only with great difficulty.

In fact, as Mr. Justice Clark described Section 405 (a) in the Menasche case at 348 US, in which this Court very carefully examined the history of the Savings Clause is contained in the Immigration Act, and now I’m quoting from 348 US 535.

“The consistent broadening of the savings provision, particularly in its general terminology, indicates that this policy of preservation was intended to apply to matters both within and without the specific contemplation of Congress.

And, the implication of that Menasche case seems to be quite clearly that the Savings Clause of Section 405 (a) is applicable unless Congress makes a deliberate and specific statement of its intention to eliminate a preexisting right or liability, and Congress did not do that in Section 315 in our view.

Appropriately, for our purposes here, what Congress did was to say that the Section 315 shall apply notwithstanding the provisions of Section 405 (b).

Section 405 (b) is also a Savings Clause contained in the 1952 Act and it is significant to us, though not necessarily dispositive in light of other overwhelming evidence as this Court held in Shomberg, that Section 315 (a) does specifically accept 405 (b) but not 405 (a).

With respect to 405 (a), we have only the general language of Section 315 which covers an alien who applies or has applied for an alien’s exemption and I think that the Ceballos case really closes considering that clause sufficiently, in general language, to override the Savings Clause.

As I say, the petitioner in Ceballos and Shaughnessy was virtually in a position virtually identical to that of petitioner for these purposes.

He had filed his application for exemption before the date of the 1952 Act.

The only difference here is that, in Ceballos, the procedural posture of the case was slightly different.

It involved a review of an order of deportation rather than a naturalization petition, so that another clause of Section 405 (a) involving proceedings to suspend deportation was brought into play.

But, the crucial issue in Ceballos, as here, was the citizenship eligibility of an alien who applied for an exemption, was later exposed to the draft, and was subsequently found physically unfit for the service.

And, the Court found that the general language of Section 315 was simply not a specific exemption to the Savings Clause of Section 405 (a).

Now, on the assumption that Section 315 of the 1952 Act does redefine the citizenship eligibility of petitioner and others in his situation, in what way-- the question is now, in what way does that statute, that is the 1952 Act, change petitioner’s eligibility for citizenship?

The committee report of the Senate Committee on the Judiciary which made a comprehensive preliminary study of the many provisions of the 1952 Act makes very little reference to Section 315 and, what little there is, implies to us that the Committee thought it was incorporating the ineligibility test set forth in the prior Selective Service laws.

I guess that language can’t have very strong effect because, after all, the language of Section 315, as this Court has held, does make a significant addition to the test of ineligibility 7in that it requires that an alien both apply for an exemption and that he’d be “relieved from service on such ground,” that is on--

Justice Thurgood Marshall: This doesn’t actually involve the case, but do women aliens have to do this too?

Mr. Richard B. Stone: No, they don’t.

Justice Thurgood Marshall: I’m worried about this day and age.

Mr. Richard B. Stone: They don’t, Mr. Justice Marshall.

They’re not affected by this because we don’t draft--

Justice Thurgood Marshall: But the statute says any person.

Mr. Richard B. Stone: Well, I assume that--

Justice Thurgood Marshall: As a matter of practice.

Mr. Richard B. Stone: As a matter of practice.

I assume that no Court would interpret that to include women since United States-- the idea, after all, the statute is that aliens, in order to obtain citizenship, should subject themselves to the burdens of American citizens and American female citizens, at this point and time, don’t have the burden of military service.

Justice Thurgood Marshall: This is an argument that I pass from the merits of it, but that if he had served, he’d be in a different category.

Mr. Richard B. Stone: Well, that’s right.

This is what we consider to be the essential result of the language of Section 315 in several Courts of Appeal and as the government now agrees, aliens who are subsequently drafted under Section 315 and actually served in the armed forces are no longer ineligible for citizenship.

In other words, “relieved from service” means effectively and permanently relieved from service, but--

Justice Harry A. Blackmun: Mr. Stone, you agree with that result in the Second and Ninth Circuits?

Mr. Richard B. Stone: It’s the Second, Third, and Ninth Circuits.

Yes, Mr. Justice Blackmun, I think that I-- the government had-- did argue those cases and contest those cases.

I think it now agrees with the position taken.

I think it is a somewhat-- in the statutory language, it’s somewhat a difficult position, but it’s so-- I suppose it seems repugnant to many that those who actually end up serving and incurring that obligation and performing the duty of military service were-- really should be relieved from their initial choice.

Justice Harry A. Blackmun: Well, what bothers me mildly is that then you’re in a position of making eligibility depend on a successfully physical examination.

Mr. Richard B. Stone: Well, I think, Mr. Justice Blackmun, that that is on the surface when you first think about it, rather troublesome, and it did-- we do find that there are aspects of our application of 3-- Section 315 that are somewhat harsh, as I-- we’ve pointed out in our brief and as I want to get to, but I don’t think it’s that specific aspect because I-- if you think about it, what is-- after all, what is at stake here is service.

The distinction made is with respect to whether an alien has or has not served, and if he has not served he can’t get out of his initial choice regardless of what the-- what ground ultimately relieved him when he lost his exemption.

The fact that it is his failure to pass the physical examination which ultimately leads to his not serving on the second-- on his second chance is really an incidental aspect of the fact that we make actual service of the test.

Once a person has declared that he’s an alien and wants to avail himself of the alien’s exemption and chooses not to become a citizen, we make it-- we make service the test and the fact that the physical exam comes in to play is a rather incidental effect of that.

After all, there are many benefits which Congress has conferred upon veterans and people who have served in the armed forces that it doesn’t bestow upon American citizens who wanted to serve but were unable to do so, ineligible to do so for one reason or another, including failure to pass a physical examination.

Justice Byron R. White: Mr. Stone, would the government say the same result would be reached if there hadn’t been an amendment in 1952 where the man had actually been called to serve?

Mr. Richard B. Stone: Well, in all those cases, Mr. Justice White, it has been stipulated, and I’m afraid the government has not been totally consistent after the-- in the aftermath of Ceballos and Shaughnessy in arguing whether the 1952 Act or the 1948 Act apply.

It has been stipulated that we would construe this under the 1952 Act and the only reason I could really think of for this is that it-- the language of the 1948 Act seems clearly to make it irrelevant whether a person served ultimately or not, but that position is just rather difficult to stomach in some way.

Justice Byron R. White: But, the-- under your applicability argument or your Savings Clause argument, I suppose you make the same argument with respect to whether the 315-- is that before--

Mr. Richard B. Stone: I’d rather not face that, but I suppose we would make the same argument that, under the 1948 Act, actual service didn’t matter and, in one case, that was argued and held that actual service did not matter under the 1948 Act.

Justice Byron R. White: And actual service wouldn’t make any difference in terms of the applicability of 315.

Mr. Richard B. Stone: That’s right.

Justice Thurgood Marshall: Mr. Stone, in your comparison with the man that actually applies who is not an alien and doesn’t pass the physical, am I correct that, here, if he passes the physical and is taken in and is subsequently dis-- honorably discharged, he would be covered?

Mr. Richard B. Stone: I suppose he would be, Mr. Justice Marshall.

I suppose that, under these cases which hold that service itself-- well, I-- that--

Justice Thurgood Marshall: I know.

Mr. Richard B. Stone: That, actually, if he were dishonorably discharged, actually I suppose it could be argued depending on what time it was in his service.

It could be argued that he had not-- that he had been effectively relieved because he hadn’t really served.

He had--

Justice Thurgood Marshall: My trouble is being subject to the draft and actually being drafted.

That’s my problem.

He was subject to the draft.

Mr. Richard B. Stone: He was theoretically subject to the draft.

Justice Thurgood Marshall: He was subjected.

He took the physical.

Mr. Richard B. Stone: He took the physical.

Justice Thurgood Marshall: One step.

Mr. Richard B. Stone: And, unlike the first time he took the physical-- he failed it, yes.

Now, let me just elaborate--

Justice Harry A. Blackmun: Mr. Stone, I’ll ask you one more question following through with Mr. Justice White.

Suppose, under the old statute, he had reconsidered and had passed and served, still ineligible in the government’s theory?

Mr. Richard B. Stone: That theory is not involved in this case, Mr. Justice Blackmun, and we haven’t argued that position with respect to the 1948 statute.

We’ve asked in the opinions with respect to the 1952 statute, but I suppose, theoretically, the answer to that question is yes.

Now, I think it is very important to see exactly what language we’re dealing with in terms of this distinction between a person who has physically-- who has been relieved from physical service and a person who has actually served.

Petitioner proposes that even though an alien who applies for an exemption on grounds of alienage is effectively and permanently relieved from service, that is he never serves in the armed forces.

He is not ineligible for citizenship if any other ground for exemption ultimately comes into play and contributes in any way that he’s permanently relieved from service.

In other words, though he doesn’t explicitly say this, he would read the phrase “relieved from service on such ground” as meaning relieved from service exclusively on grounds of alienage.

This would’ve been, of course, a rather radical departure from the 1948 statute which, arguably, wouldn’t even have saved him if he had served, but Congress certainly could’ve chosen to adopt this more generous position and to relieve from the consequences of their initial choice not to become citizens all citizens who applied for exemptions but were later exposed to theoretical liability for the draft.

As we have pointed out in our brief, it may be considered somewhat harsh, in fact, that Congress did not do so, though not for the reasons suggested by petitioner that the distinction is one of passing a physical examination because we consider that quite incidental.

But, we do feel that there is, perhaps, something harsh in the fact that petitioner did, after all, originally make his election not to serve in the armed forces and not to become a citizen on the assumption that he would continue to enjoy the assurance of an alien’s exemption from the draft and he was, by no means, entitled to presume that Congress would not-- was foreclosed from removing his exemption.

There’s no evidence that anyone told him Congress was so foreclosed but, nonetheless, he probably did assume, vaguely or otherwise, that because of his alienage he would not have to think about liability for military service anymore.

Chief Justice Warren E. Burger: Didn’t he assume something else too?

That he had remained physically eligible?

Mr. Richard B. Stone: I guess he would have assumed that, Mr. Chief Justice.

Chief Justice Warren E. Burger: But--

Mr. Richard B. Stone: He would assume that he would stay in the same condition he was in prior to 1952.

Chief Justice Warren E. Burger: Could there be any--

Mr. Richard B. Stone: And, for that reason, we consider petitioner in a much less harsh application of the statute than, perhaps, others similarly situated of who might not have had a change in their physical status between the time that they sought the first exemption and the time they the exemption--

Chief Justice Warren E. Burger: Well I wonder, the laymen, as this man was, not a lawyer, thinking in technical terms, if he really sat down and had a debate with himself about all the elements that he ought to waive, surely he would’ve given priority to the continued physical condition that would render him eligible and would be far less likely to be trying to predict whether Congress was going to change or not change the law.

I think that would be true, wouldn’t it?

Mr. Richard B. Stone: I’m afraid I don’t quite see the--

Chief Justice Warren E. Burger: Well, if he sat down trying to evaluate what were the problems, what he should consider in his choice.

He’d certainly, immediately stop and consider “well, am I going to be able to get out of this military service on the grounds of physical disability?”

Mr. Richard B. Stone: That’s right, and--

Chief Justice Warren E. Burger: And if he knew, suppose he were consulting the doctor at the time and the doctor said “you’ve got an incipient diabetic condition,” he probably then wouldn’t have tried to rest on the other ground.

Mr. Richard B. Stone: Would not apply for an alien’s exemption, that’s precisely the point.

That’s why I think that though we really have to take into account whether Congress-- since Section 315 is not after all crystal clear whether Congress intended to hold all aliens to their end of this so-called bargain, arrangement, those certainly with the contract.

I don’t think that, really, the harshness of our interpretation of Section 315, such as it is, would apply in a case where an alien had passed his physical examination originally and only decided to chose his alien’s exemption after the fact of knowing he was physically fit for the draft.

In fact, several Courts of Appeals have made related arguments.

Every Court of Appeals that has decided this precise issue has, in fact, decided in the government’s favor and several have pointed out, in connection with this issue, that many things can happen.

An alien can assess his chances of getting an exemption on some other ground that would not debar him from citizenship before he chooses to claim his alien’s exemption, and then he may later loose that exemption.

But, in the interim period, many things that could happen that would change his draft status.

Things like marriage at one point, occupational defermance or illness.

Any of those things can happen during the period when he holds his exemption from the draft which might provide him with permanent relief from the draft that he would not have had but for his original choice of an alien’s exemption.

With respect to this petitioner, even if this Court were to take, let’s say, an intermediate position with respect to Section 315 that the alien doesn’t have to have been relieved exclusively on grounds of alienage but that, somehow, the government must show that alienage was the substantial or even the major factor contributing to his ultimate relief.

Petitioner can’t withstand that test either, I don’t think.

In any event, we, on balance, feel that the language of Section 315 is quite badly strained by a construction that his release from alienage must rest exclusively on grounds of alienage.

We feel that a more normal reading of that language which refers to an alien who is or was relieved from service, not from liability but from service, on grounds of alienage is that, as long as the alien’s exemption was one of the grounds contributing to his effective and permanent relief from service, he has been relieved on such ground within the meaning of Section 315.

We think this reading is far more in line with Congress’ attitude as expressed in the prior legislation, and we think that that prior legislation, the basic concepts of that legislation, were meant to be retained in the 1952 Act.

And, for that reason, we ask that this Court affirm the judgment of the Ninth Circuit.

Chief Justice Warren E. Burger: Thank you, Mr. Stone.

Mr. Halvonik, you have five minutes left.

Rebuttal of Paul N. Halvonik

Mr. Paul N. Halvonik: Thank you, Mr. Chief Justice.

Let me just go to the last point that was raised there on what happens with this interim period if you’ve got to postponement of the period for induction in the services.

That obviously can cut both ways.

If you take a-- if you have an opportunity to postpone your induction and you do it during peace time then find yourself called two years later and there’s a war, obviously it’s a less congenial setting for entering into the armed services.

But, this man didn’t set out to postpone anything.

The arraignment he was given was that he wasn’t going to be drafted and said he was relieved from liability.

He wasn’t going to consider whether his physical state was going to change and 231 doesn’t expect, in the next couple of years, to be physically unfit for service anyway, but that didn’t enter into his thinking at all.

The arraignment was you’re never going to be a citizen.

On the other hand, you’ll never have this obligation of citizenship.

Never have the obligation, not that it’s postponed, but that it’s extinguished, that that’s a job for citizens and you’re not going to be one, and he didn’t have any theoretical liability.

He was actually called.

He had to change his life, wrap up his business, go down.

He was all prepared to serve.

And, in doing that action, he demonstrated as much as he was possible to demonstrate that he was willing to assume that obligation.

He demonstrated it to the same extent as those who passed physical.

Now, one other point raised by Mr. Stone was whether the Section 405 (a) Savings Clause is applicable to Section 315 by virtue of the Ceballos decision.

He’s referring to footnote 17 in Ceballos.

Ceballos, as I noted before, was a 1951 case.

The 1952 statute was held applicable to his case.

There’s also a note that says that this-- the procedures initiated against him for deportation were saved by the clause and, therefore, even if he’d come afterwards he probably wouldn’t be able to stop the deportation.

It’s a Shomberg case, and that’s what the reference is to.

It’s true, there’s nothing in Section 315 that specifically changes any procedures that would be going against you at the time.

There is no procedural specific exception to the prior law, so that if a procedure had been begun against the petitioner, for example, for deportation, it would be beside the point that he had a new status after 1952 because he couldn’t take advantage of it because the proceedings for deportation would go pursuant to the 1948 law, but what Section 315 does do specifically is change the status.

It doesn’t change procedures, but it changes status, and it makes eligible for citizenship those who were not eligible before.

And, we submit, that the reason Congress did that was because it was not living up to its prior bargain and now it tried to meet its obligation, and it has retroactive language.

It seems the most reasonable thing in the world for Congress to do.

It seems the fairest thing for Congress to do and it’s very hard to explain the language as applied, as Mr. Justice White pointed out, without applying this thing retroactively.

Finally, I again point out, as Mr. Justice White did, the government’s position is totally inconsistent as to those who actually served.

Either 1952 applies retroactively or it doesn’t.

It can’t apply retroactively to people who passed physicals and not apply retroactively to people who flunk physicals.

Thank you.

Chief Justice Warren E. Burger: Thank you, Mr. Halvonik.

Thank you, Mr. Stone.

The case is submitted.

Featured:

Berenyi v. Immigration Director - Oral Argument, Part 2

Wed, 06 Jul 2011 19:35:53 +0000

Case:

Berenyi v. Immigration Director

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Featured:

Berenyi v. Immigration Director - Oral Argument

Thu, 23 Aug 2012 18:16:50 +0000

Case:

Berenyi v. Immigration Director

Related Transcript:

66_19661206-argument

Transcript:

Argument of Robert S. Rifkind

Chief Justice Earl Warren: Number 66, Kalman J. Berenyi, petitioner versus District Director, Immigration and Naturalization Service.

Mr. Rifkind, you may continue your argument.

Mr. Robert S. Rifkind: Mr. Chief Justice, may it please the Court.

I'd like to begin if I may by trying to answer two questions, which I did an inadequate job with yesterday.

Mr. Justice Fortas asked, first of all concerning the review provided like it within the service and within the Justice Department of hearing examiner determinations in these matters.

Limiting myself to naturalization proceedings, I understand that there is a procedure for review within the immigration service.

In this case for example, the hearing examiner's determination was reviewed in that District Office and then by a Regional Commissioner.

There is no provision for -- and more general review outside the service except as to peculiar or particular rulings of law which might come from the Office of Legal Counsel.

I did point out that Section 335 (d) of the Act provide that in all events even if disapproved by a superiors, the hearing examiner's report was go to the District Judge.

On the other hand, it is not binding on the District Judge in any sense and as the District Judge here said, he disregarded both the findings and these -- and the conclusions of law completely.

Justice John M. Harlan: If the Government's position is sustained in this case, is this man said -- the deportation?

Mr. Robert S. Rifkind: I think not Your Honor.

It seems to me that only two conceivable grounds for deportation.

One is that he was at some time a member of the Communist Party.

The other is that he gave false testimonies.

As to the former, it seems to me clear that the Government's own evidence showed that his membership was not of the meaningful variety that would serve as a basis for deportation and probably wasn't even of this sort of the voluntary variety that would serve as a basis for exclusion.

As to the misrepresentation, he would of course have the benefit of Section 241 (f) which forgives that sort of thing, you have that before you in the Erika case.

So I think there is no basis for deportation here.

Justice John M. Harlan: Is he foreclosed from another application for natural -- for citizenship?

Mr. Robert S. Rifkind: Certainly not.

Indeed, he is now entitled to apply as the spouse of an American citizen since his wife was admitted to citizenship.

The period involved there is a three-year period after her admission.

They need only show good moral character for that three-year period and his time in that regard would be up in about 15 months from now.

So it's a very short-term proposition.

One other thing I might mention also bearing on this general problem of review within the Justice Department and the Immigration Service is that about a hundred thousand persons are naturalized each year, at least that was the figure in the last report of the attorney general for 60 -- 1965.

Of those petitions were withdrawn and some 1800 cases and there was a litigated question and some 150 questions -- cases.

So that there's quite a substantial problem as far as reviewing the details of each cases in administrative manner.

I also think that those figures tend to stress the importance of the system of self-disclosure of self-reporting that the Immigration Law depends on.

It's rather like the Internal Revenue Law in many senses.

It is largely the initial application that the petitioner files in which he answers a variety of questions which were designed by regulations, the Attorney General was authorized to issue --

Justice Abe Fortas: Mr. Rifkind, this man as denied naturalization as I understand that because he's supposed to have made false statement with respect to membership in the Communist Party.

Is that right?

Mr. Robert S. Rifkind: That's right sir.

Justice Abe Fortas: Now, on this record, the first and second as a matter of general principle, what constitutes membership in the Communist Party for this purpose?

I think that may be the issue here.

Mr. Robert S. Rifkind: Well, petitioner had certainly urged that -- your decisions in Rowoldt and in the Gastelum cases concerning a meaningful association -- meaningfulness of association I should say are controlling here.

Justice Abe Fortas: And you've just told us that their -- was not meaningful association in this case in that sense --

Mr. Robert S. Rifkind: I think that's right.

Justice Abe Fortas: -- so that if that's the standard then you have no case.

Mr. Robert S. Rifkind: If that is the standard, I think we should (Voice Overlap).

Justice Abe Fortas: Now what are the alternatives on -- what does a Government relied up here defending this order?

Mr. Robert S. Rifkind: I think that what we're saying is that the degree of his membership, the intensity of his fidelity or his loyalty to that cause is quite decide the point here.

Justice Abe Fortas: No, I'm not asking you that.

I'm asking you, what is membership in the Communist Party?

As I see this record, nobody said that he had -- that he saw the inscribed role of the Communist Party with this fellow's name on it.

Mr. Robert S. Rifkind: That is true.

Justice Abe Fortas: Now, what he is -- membership in the Communist Party?

Suppose a fellow gets up at a study group for this purpose.

Supposed a fellow gets up at a study group or in a classroom and says that the doctrines of Marx and Lennin are the last word and whatever, (Inaudible) whoever happens to be in command and says is a -- the religion from now on.

Is that kind of thing make him a Communist or what just -- what is it that the Government says.

Say, at first is a -- in this record, and second is a matter of theory shows that this man lied.

Mr. Robert S. Rifkind: Well, I think there are two things.

One is -- in this particular case, he said he was a member of the Communist Party.

Justice Abe Fortas: You mean there is testimony to that effect?

Mr. Robert S. Rifkind: There is testimony in the record that he said to other people in Hungary that he was a member of the Communist Party.

Justice Abe Fortas: And you would consider that that is adequate.

That is to say a person's own statement is sufficient to make a subsequent declaration that he was not a member of Communist Party make that perjury or a false statement rather.

Mr. Robert S. Rifkind: I think that in lessons -- there are some substantial doubt cast on that sort of admission.

Justice Abe Fortas: Well, he tried the cast down on it here by saying, “What to my mind is the most impressive thing in this record.”

Now, it says that he was on a regiment that his testimony is to be believed that as a doctor that support the Communist at the time of the Hungarian uprising and then the second and to me most important that he left the country I think “fled” is the word used in the record after the Communist crushed the uprising.

Mr. Robert S. Rifkind: Right.

And I -- it seems to me also, just to add to that in a way and to try and refine what our position is, it is not contended by any means that he was a believer in any of the principles of the Party.

I think that --

Justice Abe Fortas: No contentment.

Mr. Robert S. Rifkind: I think we could not because as Dr.Halasz testified against him kept saying, “I think he was a member on paper.

I don't think he was a believer.

I don't think he was a member in his heart, but I think he was a member of the Party.”

Justice Abe Fortas: But what you say -- what makes you say that he lied because he was a member of the Party and you say he was a member of the Party because in Hungary -- according to the testimony of a witness, he said he is a member of the Party.

He said he was a member of the Party.

And in addition, there's testimony that he did those things principally attend meetings which were open only to members of the Party which nonmembers would not be free to do.

Justice John M. Harlan: You've got a finding (Inaudible)

Justice Abe Fortas: But the question --

Justice John M. Harlan: -- the man said that he was a member of the Communist Party and that he is an instructor in Marxism (Inaudible) -- membership with being indoctrinated with the principles of the Party.

Now, is that finding of statute seperately (Inaudible) doesn't satisfy your (Inaudible)

Mr. Robert S. Rifkind: Well I supposed that under proper -- under -- I don't want to resist you.

But -- that on this coercive circumstances, I could be an instructor and practically anything I could bone up on and still not have my heart in it.

Our position is as I see it and I think it emerges with some strength --

Justice John M. Harlan: That doesn't say anything about belief and subversions of subversive aspects of the (Inaudible) -- whether he is a member, (Inaudible)

Mr. Robert S. Rifkind: That's true.

Justice John M. Harlan: In a meaningful sense (Inaudible)

Mr. Robert S. Rifkind: Well, perhaps we do satisfy the Rowoldt test but my -- I think it's important for the administration of this law for me to suggest that we needn't satisfy the Rowoldt test.

Because in Rowoldt after all and in the Gastelum case, you were construing statutory language of Section 241 of the Act, you were trying to determine what sort of membership Congress had intended should bear certain consequences.

Here, we're not concerned with statutory language, we're concerned with a search for information whereas the -- concerned with an examiner's questions.

Questions which I have no doubt the examiner had a right to put and ought to have put under the circumstances of qualifications for citizenship.

It was information that the petitioner was obliged to supply.

And therefore, I don't think you have to go into the question of what Congress intended in using the word membership.

After all, petitioner was asked some seven times over a period of several years, whether under any circumstances at any place he had in any way been affiliated with or a member of, directly or indirectly -- any Communist Party.

And he said, “No.”

He didn't say, “No, but,” or “No, except,” or “Yes, except.”

He didn't say, “Yes, but I wasn't an active member,” or “Yes, but I was not a nominal member.”

He said, “No.”

And I think -- although he was advised by counsel at that time and he was told that there was evidence the contrary for him to now come and say, if he does and I admit it but arguendo in the hypothetical for him to now come and say, “Yes, I was a member but I was not a meaningful member or an active member.”

Is -- it seems to me to admit that he's been engaging in a deception all these years.

Justice Abe Fortas: Well, what -- he says that arguendo, doesn't he?

Mr. Robert S. Rifkind: Arguendo then on the pieces of --

Justice Abe Fortas: Yes, but you can't say that he says in arguendo and he's not taking a -- change his position, each one or the other.

Mr. Robert S. Rifkind: Insofar as his alternate argument is -- well, even if I was a member of the Communist Party, I wasn't a meaningful member.

I don't think that squares with the sort of answers he's been given to searching questions over a period of years.

We certainly agree or we agree arguendo at least with the petitioner that if his naturalization had been barred under Section 313 because of his Party membership, that the Rowoldt test and the Gastelum test of meaningfulness might be appropriate.

But it wasn't denied for that reason.

It couldn't have been denied for that reason if the District Judge found.

It was denied purely because he was found that he wasn't telling the truth.

And it is the truthfulness of his testimony or the untruthfulness of his testimony that is critical here, not the meaningfulness of his membership.

Justice John M. Harlan: You say (Inaudible)

Mr. Robert S. Rifkind: That's right.

Justice John M. Harlan: (Inaudible)

Mr. Robert S. Rifkind: Well, as far as I know he did go to a lawyer and he did have counsel, and I don't know.

Perhaps he feared or perhaps he knew that the facts were other than those that the District Judge finally came down on.

That is perhaps he had been a member within the last ten years.

And feared that we would prove more than -- we succeeded in proving or perhaps his membership -- he feared would be have shown to be more active.

I don't think we have to show that he -- that the -- I don't think we have to show that it was immaterial -- that there was a bar to his naturalization in his membership in order to show that he testified falsely in concealing that matter and this Court has said that on many occasions.

The trial courts have too before 101 was -- Section 101 was passed, this Court said in Federal Communications at WOKO.

It's the fact of concealment that is more significant that the facts concealed.

It's the willingness to deceive a government agency that in this case bears on good moral character.

Chief Justice Earl Warren: Mr. Rifkind, was he asked in detail about his participation in the seminars that are under discussion?

Mr. Robert S. Rifkind: Yes, he was.

Chief Justice Earl Warren: Well, what was he'd -- what were his answers?

Mr. Robert S. Rifkind: They varied from time to time.

And I don't mean to say there was a substantial contradictional or there was some minor contradictions.

He said he participated in -- in general, in group discussion that all students were required to participate in.

That is that the study of Lenninism became a required subject at the university under communist rule and that he engaged in that sort of discussion.

But he denied participation in the sorts of discussions that either Dr. Halasz or Dr. Kury placed in it.

Justice William O. Douglas: But he's -- the people who testified against him professional witnesses?

Mr. Robert S. Rifkind: Not to my knowledge.

Both of them I should say where naturalized citizens at the time that all this took place.

Justice William O. Douglas: I mean, they still could be professional witnesses.

Mr. Robert S. Rifkind: They could be, I don't -- I have no reason to suppose that they have.

Justice William O. Douglas: That the only government payroll or --

Mr. Robert S. Rifkind: I've seen nothing in either the record here or any place else to suggest that.

One had been a communist admittedly and the other had not.

Justice William O. Douglas: Reason I ask is as you know, we had been -- from the federal courts quite a few cases involving these professional witnesses who turned out to be perjurers.

Mr. Robert S. Rifkind: I -- all I can say is I have looked beyond this record to the administrative record, I've seen nothing to suggest that.

To go back to the clearly erroneous argument in the minute remaining, I tried to show yesterday that there was a sharp conflict of testimony but the judge was faced with the task of weighing the evidence one way or the other, an inescapable task, I submit it was.

This Court has said that at trial court's choice between two permissible views of the weight of the evidence cannot be clearly erroneous.

I think that's through a fortiori when the burden of persuasion is conceitedly on the petitioner.

He had to resolve a long line of decisions in this Court, indeed the Act say, he had to resolve doubts that he may have had against the petitioner.

I also think it's important that particularly with witnesses who's -- were relative newcomers to the English language that the trial judge had a very superior opportunity to see all the witnesses in this case.

We're dealing with a very cold record and I think the mandate of Rule 52 of the deference due to the opportunity of the trial judge to assess the credibility of the witnesses is particularly important where credibility is the ultimate issue in this case.

And finally --

Chief Justice Earl Warren: Mr. Rifkind do you -- even though he does have the obligation of proving that he has good moral character when he is accused by a witness such as Dr. Kury or whatever his name was, of being as a communist, does he had the duty of proving the negative of that?

Mr. Robert S. Rifkind: Well I understood the petitioner to say yesterday and I certainly agree with him that the ultimate issue of course is good moral character.

Chief Justice Earl Warren: Good moral character, yes.

Mr. Robert S. Rifkind: In this -- this -- the question immediately under that is whether he's been telling the truth, we as bearing on good moral character.

The Government -- he made out a prima facie case of truthfulness and good moral character and submitting his petition through affidavits.

The Government then supplied some evidence when forward with the evidence calling that into question.

It was then his burden as I understand it, to still show that he was of truthful character, good moral character.

And he had to overcome the evidence that the Government presented and persuade the court that he wasn't back a truthful witness.

Chief Justice Earl Warren: But does it go to the extent of requiring him to prove that -- disprove the testimony of Dr. Kury?

Mr. Robert S. Rifkind: I think it does in this case or to -- yes, I think it does.

Chief Justice Earl Warren: Burden is on him to prove that he was not a communist?

Mr. Robert S. Rifkind: That's right.

And that would be true under any of the provisions of Section 101.

It also provides that a person who's been a habitual drunkard cannot be found to be a person of good moral character.

As far as I can understand it, the Government supply some evidence raising a question as to whether a person is a -- or tending to show that a person is a habitual drunkard.

He would have a burden of showing that he wasn't.

Because the ultimate issue is good moral character and on that issue, there's no question, he must establish his case.

Chief Justice Earl Warren: Leaves a man on the -- in a rather delicate situation doesn't it where someone comes in and says, 16 years before at a meeting where the witness can identify, no other person who attended the meeting except him that he admitted at that time, being almost a boy at the time too that he was a communist.

Mr. Robert S. Rifkind: I agree.

I agree it's hard.

I -- all I can say is that I think it's difficult to --

Chief Justice Earl Warren: And in a foreign country too where he can't bring any witnesses or anything of that kind, pretty heavy burden on a man, isn't it?

Mr. Robert S. Rifkind: It is a heavy burden, proving that you're attached to the principles of the constitution maybe difficult.

I mean, I don't know how one would really go about doing that but it's required, proving that one as well disposed to the happiness of the United States maybe difficult.

I don't know how --

Chief Justice Earl Warren: But if somebody is -- somebody said, “I don't believe this man is attached to the principles of the constitution with that -- they cast of burden on him to disprove that and affirmatively established that he was.”

Mr. Robert S. Rifkind: I think that if the Government brought forward evidence to -- supplied evidence to seriously call that into question, that is right.

At least so, all the cases I've read suggest, and as long as we are going to have a very strict rule, a very limited rule for denaturalization.

That is as long as our doubts are going to be resolved very strictly against the Government and only in various extraordinary cases you're going to allow denaturalization, which I think is the -- clearly, healthy situation.

It seems to me that the traditional view and the statutory view the doubts are to be resolved against the petitioner on the naturalization side is a desirable logical relationship.

I agree it's difficult.

I would only whined up by saying as this Board has said, acquisition of American citizenship is a solemn affair.

Full and truthful response to all relevant questions required by naturalization procedures of course to be exacted and temporizing with the truth must be vigorously discouraged.

Justice Abe Fortas: Mr. Rifkind, the Government presented two witnesses here.

Their testimonies summarized at the Government's brief.

One of them was Dr. Kury, the other is Dr. Halasz.

Does the Government rely on the testimony of Dr.Halasz?

Mr. Robert S. Rifkind: Yes, sir.

Justice Abe Fortas: Despite the substance of that testimony as set out on pages 68 of your own briefing?

Mr. Robert S. Rifkind: I think that's right.

Justice Abe Fortas: What is there in Dr. Halasz's testimony that supports this finding at all?

Mr. Robert S. Rifkind: I think the real -- the essence of the impression that a reasonable trier of fact could draw from Dr. Halasz in which I do is that granted and admitting quite readily that he didn't see the petitioner take the party membership oath that there is such or (Inaudible), didn't see his Party card.

He nevertheless saw him under circumstance --

Justice Abe Fortas: No, no, not -- I think we don't have it a little straighter than that it would be -- if I may ask your indulgence because your own brief says that Dr. Halasz had been assigned to check that those attending a meeting were carrying their private cards.

Mr. Robert S. Rifkind: That's right.

Justice Abe Fortas: But he had never seen a membership card for petitioner.

From having seen petitioner at meetings, Dr. Halasz had thought that petitioner was a Party member.

And as I read your summary, that's the only thing that's in here from Dr. Halasz.

Then he goes on the say that he did not in fact know where the petitioner was a member or whether he was a nonmember who had been invited to attend.

And he says, he didn't -- they did not believed -- he stated, Halasz stated, that he did not believe petitioner was a Communist that hardly even if he was a member, petitioner had and I am quoting from your brief.

Petitioner had occasionally helped Dr. Halasz with his medical studies in the course of which petitioner had made statements against the Party and the regime.

But you're telling me that you're relying not only that the Government of the United States, that relying not only on the testimony of Dr. Kury but also on the testimony of Dr. Halasz which I assumed is correctly summarized in your brief.

Mr. Robert S. Rifkind: That's right.

I think frankly that all of the things that you've just read from tend to support the credibility of that witness, tends to support the thesis that that petitioner was a member of the Party as a matter of opportunistic convenience without any other form of attachment.

But that those around him and those who knew him believed him to be -- from the reasonable surrounding circumstances in fact a member of the Party.

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Berenyi v. Immigration Director - Oral Argument, Part 1

Wed, 06 Jul 2011 19:35:15 +0000

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Berenyi v. Immigration Director

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Montana v. Kennedy - Oral Argument

Tue, 25 Sep 2012 22:33:48 +0000

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Montana v. Kennedy

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198_19610322-argument

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198_19610322-argument

Transcript:

Argument of Anna R. Lavin

Chief Justice Earl Warren: Number 198, Mauro John Montana, Petitioner versus Robert F. Kennedy, Attorney General of the United States.

Ms. Lavin.

Ms Anna R. Lavin: Mr. Chief Justice and if it please the Court.

This action originated in the Northern District of Illinois as a suit brought under Section 360 of the Nationality Act of 1952 for a judgment declaring this petitioner who was born of a United States citizen mother and an alien father born abroad.

We're asking for the (Inaudible) judgment that he be -- be declared a citizen of the United States.

The petitioner is now on the end of 55 years old.

He was conceived in the United States and he has resided continuously in the United States since his entry at the age of 3 months.

He is one of six children born to his parents -- the one of six children born to his parents who was born outside the continental limits of the United States.

His claim to citizenship rests on four alternative bases.

The first is under Section 2172 of the revised statutes of 1874 which statutes were in effect at the date of his birth which provided that “Children of persons who are now or have been citizens of the United States are to be considered as citizens.”

The petitioner's claim to citizenship in that regard urges that the words “children of persons” is to be considered in the distributive as well as in the collective and the words are now or has been, is not restricted to retrospective application but should in accordance with regular and accepted statutory construction be given prospective application.

The second basis concerns the interpretation of the Act of March 2, 1907 which provided for resumption of citizenship by an expatriated parent and the naturalization of his or her child by such resumption.

This was enacted subsequent to petitioner's birth but it has by -- well, it has been judicially determined to be declaratory of the common law then in existence.

We urge that that statute is not to be given the interpretation of giving greater rights to a former expatriate or to a naturalized person than it does a native-born citizen of the United States.

And the status of the petitioner's mother, Mrs. Montana, on her return to the United States should not be treated as less than such an expatriate -- an -- a former expatriate or a naturalized parent.

The third basis is similar to the second.

It concerns the Act of May 24th, 1934 which also provided for the bestowing of citizenship on an alien-born child of a -- or a current born child of a United States citizen parent, or also upon naturalization of such a parent.

This statute again has been judicially interpreted as merely clarifying the uncertainties in the Act of -- of March 2, 1907.

This Act, however, spells out that the bestowal of citizenship may pass by -- through the citizenship of either the mother or the father whereas in the Act of 1907, it merely recited the parent.

The fourth basis is addressed to the equity powers of this Court and urges that the Government be not allowed to avail itself of the result of an erroneous instruction given by a consular official to the mother of the plaintiff, who was prior to the birth of the child and while awaiting his birth, a 15-year-old person.

The facts of this case are fairly simple.

Madelyn Montana, the petitioner's mother was born in New Jersey in 1890.

She married Joe Montana in 1905.

Joe, the father, had been born in Italy but he had for several years prior to the marriage resided in the United States.

Joe Montana and Madelyn Montana left the United States for Italy in 1905 -- no, January 1906.

At that time, Madelyn was been about four months pregnant.

She arrived in Italy in February of 1906.

By a month and a half after arriving, Madelyn went with her mother to the American Consulate to obtain a passport for her return home.

The American Consulate refused to issue one to her in her advanced state of pregnancy.

Mrs. Montana, the only witness at the trial -- trial testified that she -- he had said to her, “Lady, you cannot go in that condition.

Come back after you get your baby.”

She resided in Italy for -- with her mother until the birth of the plaintiff on June 26, 1906.

Prior to that, however, in March or April of 1906, Joe Montana, the husband, the father of the petitioner, returned to the United States.

Again, Madelyn Montana, testifying, said that she didn't know where he was going, we were on the (Inaudible) at that time.

After the plaintiff's birth, she returned to the American Consulate and there she obtained a passport for herself and for her child.

Mauro, Joe Montana and her mother, Mauro John Montana, his mother and the maternal grandmother, returned to the United States in September of 1906 where he was admitted as a United States citizen.

The -- the parents --

Chief Justice Earl Warren: You say he was admitted as a United States citizen?

Ms Anna R. Lavin: Yes, sir.

Chief Justice Earl Warren: That -- that is the --

Ms Anna R. Lavin: The certificate of entry recounted that he was a United States citizen.

It said --

Chief Justice Earl Warren: The petitioner?

Ms Anna R. Lavin: The petitioner.

Yes, sir.

Chief Justice Earl Warren: Yes.

Ms Anna R. Lavin: Madelyn Montana, the petitioner and the mother were met in New York by Madelyn's father who took them to his apartment that they owned in New Jersey and there, she and her child resided for three months with her parents.

About that time, Madelyn Montana and her husband apparently patched up their differences and she went to live with her husband and they have so lived from that time to this principally in the Chicago area.

The first basis on which we --

Justice John M. Harlan: They were never divorced in any stage when --

Ms Anna R. Lavin: No, sir.

They were never divorced.

The first basis on which we claim that Mauro John Montana is a citizen of the United States is under, as I said, the Act of -- the revised statutes of 1874, Section 2172 thereof.

And it is our submission that the children or persons who are now or have been citizens shall before without -- with outside the jurisdiction and limits of the United States be considered citizens, imports birth any time during the existence of that statute when a United States citizen bore a child abroad.

That interpretation provides for prospective application of the statute and it is in the Court with the strong legal presumption that statutes are meant to operate prospectively unless it is made clear and unequivocal that retrospective application is to be annexed to a statute.

The Seventh Circuit, in the deciding this case in its opinion, expressly noticed that there was no such limiting language, but suggests that the Congress inadvertently overlooked limiting its operation to retrospective operation rather than the accepted prospective operation.

That is the -- actually the basis for the decision adverse to the petitioner on this point in the Seventh Circuit.

We suggest to this Court that the strong legal presumption directing prospective application should not be overcome by imputing inadvertence to the legislature.

We also make the further suggestion that the words “are now or have been citizens” are not such strong, clear and imperative words using the language of the cases out of this Court as to reject the interpretation that they relate to a time contemporaneous with satisfaction of the provisions of the Act, that is sometime between 1874 and 1934 when a child of a United States citizen was born abroad.

In our brief, we set forth -- forth at page a 10 series of cases where the word “now in statutes” has been so interpreted.

That is to a time contemporaneous with the satisfaction of the provisions of the Act and its -- in accordance with such approved interpretation that we submit that the word “now in the Act” speaks as of a time when a person in such as Mrs. Montana, who is a United States native-born citizen, has a child born abroad any time between 1874 and 1934.

The source --

Chief Justice Earl Warren: Is there any -- is there anything in the record to indicate what the administrative practice was during those years?

Ms Anna R. Lavin: No, sir, there's not.

At least my record -- my memory does not recall -- there's nothing in the -- in the record of the proceedings certainly.

I'm trying to think of whether there was any opinion of the Attorney General or anything to that effect and I don't recall any.

However, the -- the main source of resistance to the prospective application for which -- why -- which we urge upon this Court has its source of an article written by a man by the name of Horace Binney relating to the preceding Act of 1802.

The Act of 1802 was substantially the same as this Act of 1874 providing similarly children of persons who are now or have been citizens shall be born abroad be deemed citizens but added a proviso that in order for that Act to become operative, there was a requirement of United States residence by the fathers of such children.

That does not occur in the Act of -- in Section 2172.

Mr. Binney said that are now was -- spoke as of the date of enactment referring to the Act of 1802 and he said that was April 14, 1902 and that was when its benefit stopped and with that interpretation, he spoke of the said plaintiff foreign-born children of citizens and it, he writing in 1854, indicated that there had been no law to cover this people during that entire 15 to -- 52 years.

This Court -- this Court subsequently, in United States versus Wong Kim Ark and in Weedin versus Chin Bow at least passively accepted the interpretation put on that Act by Mr. Binney.

But I do want to point out that in both of these cases or shall I say neither of them, the specific point here was not an issue.

Further -- I would say further complicating the problem on retrospective whereas prospective application.

The Congress in 1855 passed a law declaring children theretofore born or thereafter born outside the continental limits of fathers who were United States citizens were declared to be citizens.

Justice Potter Stewart: In 1855

Ms Anna R. Lavin: 1855, yes.

Justice Potter Stewart: And that was apparently prompted by Mr. Binney's article, wasn't it?

Ms Anna R. Lavin: There has been -- I think in Chin Bow, this Court indicated that it looked like that was what happened, yes.

There was, however, no repeal of the Act of 1802 and the argument of the respondent in this case suggests inherently that this Act of 1855 was the repealer of the Act of 1802 and that the Act of 1855 applied exclusively to children of United States citizens born abroad.

But unfortunately for that interpretation, Congress in 1874 substantially re-enacted the Act of 1802 as the Section 2172 under which we claim -- we -- which we make this claim of citizens -- citizenship.

Here of course, there was the -- and there was no longer the requirement of prior United States citizen – residence, but aside from that, the Acts were the same.

In further urging, as we do prospective application, the revised statute set forth the duties of the Commissioners in enacting the revised statutes and they said that their duties were to revise, simplify, arrange, and consolidate all statutes of the United States general and permanent in nature which shall be enforced at the time that these Commissioners completed their duties.

We submit that -- that the duties, thus spelled out, statutes general and permanent in nature and those statutes which -- which shall be enforced at that time they conclude their -- their duties is an adoption of prospective application because in 1874, 72 years after the 1802 Act, we have a re-enactment of the same statute --

Justice Charles E. Whittaker: -- may I ask, is that really a re-enactment under your view or is it just a rearrangement or re-codification of an existing statute?

Ms Anna R. Lavin: Well, there was -- it -- it was spelled out in the Act that this was a repeal of all former statutes.

The -- it was a revision.

It was -- it was all the things we're saying.

It was a revision, it was simplification.

It was an arrangement.

It was a consolidation but nonetheless, it only applied to statutes then enforced.

It only applied to statutes that were general and permanent.

And as this Court well knows, there were some 500 amendments after that culling out the ones that were surplus.

This one did not fall by the waist side.

So apparently, the -- the Court or the legislature and the Court -- courts considered this general and permanent in -- in its nature.

Justice Charles E. Whittaker: Then do you understand the phrase in the statute reading “who are now” refer to 1874 and not 1802?

Ms Anna R. Lavin: I -- I interpret and urge the interpretation that “who are now” refers to any time between 1874 and the repeal of the Act of 1874 and 1934.

I -- I interpret and urge the interpretation that now refers to any time when the requirements -- requirements of the statute coincide between those two periods, between -- in the 52 years, between those periods.

Justice Potter Stewart: You would read both as I understand it, as though the word “now” were not there.

Do you think “now” is simply surplusage?

Ms Anna R. Lavin: I --

Justice Potter Stewart: Why, is that it?

This is a general --

Ms Anna R. Lavin: -- I don't think surplusage sir.

I -- I would rather say that now refers to a time during the pendency of the Act and so has been interpreted in the cases that we -- that we have cited in our brief.

Justice Potter Stewart: What if it's -- what if the statute simply said, “Who are you that the word now weren't there?

Ms Anna R. Lavin: We would read it the same way.

Justice Potter Stewart: You -- you would read it the same way, this statute the same way as though that's the way the statute is read --

Ms Anna R. Lavin: Yes.

Justice Potter Stewart: -- without (Inaudible)

Ms Anna R. Lavin: Yes, sir.

Justice Charles E. Whittaker: Well, don't you think from that statute passed in 1802, Congress used that word “now” with the view of relating to the question offers as a word in 1802, children as -- as of -- as of -- born abroad of persons who were then citizens were made citizens?

Ms Anna R. Lavin: I don't think.

Of course, we have no -- we have no remarks of the -- of the legislature at that time relative to what they did mean.

I don't think that the words are so imperative as to require that interpretation and I think that is the rule that -- that binds us.

I -- I suggested in my reply brief that the Fourteenth Amendment refers to persons born and it refers to a -- a matter accomplished, persons born in the United States shall be considered citizens.

That -- that is just as clearly a word denoting past tense or present tense as are the words “are now” and this statute continues.

It says persons who have been citizens, children of persons who have been citizens.

In the next proceeding Section of -- or the next proceeding clause of 2172, we have children of persons who have been naturalized.

That has been consistently interpreted to -- to be prospective in applications.

I -- I suggest to Your Honor that the -- these -- these words are not the type of imperative words that will make us breakaway from the general rule of prospective application to our statutes.

Now, at the same time -- at the same time in 1874, Congress re-enacted this Act of 1855 as Section 1993.

Not withstanding the simultaneous re-enactment, it is again the position of the Government that 1993 is the exclusive statute applying to foreign-born children of United States citizen parents.

That -- their urging of course found response in the Seventh Circuit decision which is now before this Court.

And it -- it's our position and our urging upon this Court that that argument stands on several faulty bases.

First, it in -- in repeals 2172 and a statute simultaneously enacted and of course, the people statute and it compels the retrospective application of a re-enacted statute, contrary to every basic principle of a statutory construction.

It also ignores the duty of the Commissioners to re-enact statutes general and permanent in character.

The argument seems to strain to divest in the face of the accepted law.

It strains to divest citizenship when all facts in law are under the decisions of this Court be construed in favor of the claim for citizenship.

The second phase of our argument with regard to Section 2172 brings us to the interpretation of children of persons.

We submit that that is to include the distributive -- a child of a person as well as children of persons.

Our principle reliance in that regard is found in the revised statutes themselves.

Section 1 of the revised statute says that in determining the meaning of words -- the plural number may include the singular.

The -- there is a further basis for our suggestion although I do think that in itself is sufficient.

The further basis is that the next preceding clause, the first clause of 2172, we rely on the second, has been interpreted many times, many times to apply to the distributive that is a child of a person.

The respondent's argument ignores the provisions of Section 1 allowing the interpretation as including the distributive and explains the cases themselves as meaning applying in the singular only when the -- one of the -- the alien parent is dead or is completely divorced from the citizen parent and the citizen parent has custody of the child.

I -- I suggest that they had argument -- rewrites the statute.

We find nothing in the statute that provides that this only applies to the distributive when the alien parent is dead or when the alien parent is divorced.

Justice Potter Stewart: Are -- are there -- both of the petitioner's parents still alive?

Ms Anna R. Lavin: Yes, sir.

Justice Potter Stewart: Both are.

Ms Anna R. Lavin: Yes, sir.

Justice Potter Stewart: And they're living together as man and wife?

Ms Anna R. Lavin: Yes, sir.

Chief Justice Earl Warren: Is the father ever naturalized?

Ms Anna R. Lavin: No, sir.

He is still an alien, an alien resident of the United States.

Along with this -- this argument for the interpretation by the distributive or as a distributive, we -- we get assistance from the source where we get a lack of assistance in the other phase of our argument and that is Mr. Binney.

Mr. Binney expressed some shock at the wording of the statute and -- and stated -- stated a realization that the clear wording of the statute would pass citizenship through a mother.

He said that those words maybe understood as also being used distributively to comprehend any person whether father or mother and thus, to make the child of an alien father and a citizen mother a citizen.

The respondent's attempt to restrict this to both parents would -- would have to, I suggest, fail in the light of the fact that Section 1 allows the distributive.

If there is any reason why the distributive should not be applied here, I suggest that it's on the -- the respondent to show a good reason why it shouldn't be.

I also suggest that this matter of the parents being dead or divorced, the alien parent being dead -- dead or divorced finds no support in -- in common sense.

Whatever be the estrangement of the parents, that's still the child of the parents.

It's -- it's rather unusual that the immigration law itself presently operative says that the -- the child shall also include a post Jewish child.

I -- I suggest that on that point, all fact in law is contrary to the Government's contention in this regard.

The third of our four alternatives concerns the Act of --

Justice Charles E. Whittaker: And might I ask you --

Ms Anna R. Lavin: -- rather the second --

Justice Charles E. Whittaker: Please Ms. Lavin, may I ask you in that connection, in -- in connection with the argument you've just made, then what would have been the purpose in 1855 for Congress by Section 1993 to make citizens of children born out of this country to United States fathers, only fathers.

Ms Anna R. Lavin: Well, I -- I don't know the answer to that, but I -- I can give what I think is the -- a fair answer.

It suggests itself in the Government's brief.

At page 34, the Government has quoted Congressman Cutting who proposed the 1955 legislature.

And Congressman Cutting said in the reign of Victoria in the year 1844, the English parliament provided that the children of English mothers, though married to foreigners, should have the rights and privileges of the English subjects, though born out of allegiance.

I have not, in this Bill, gone to that extent as the House will observe from the reading of it.

Now, that in itself, being read by itself is rather ominous, but yesterday through the facilities of your library, I pulled out the -- the legislature during the time of Victoria in the -- in the year 1844.

This reads rather unusually.

It -- just prior to this Section to which he refers, it says that native-born British subjects shall be able to hold land, they shall be able to own personal property, they shall be able to hold certain offices very similar to the provisions that we have under our Constitution as the precedent who must be native born.

The next succeeding Section is the Section to which he refers.

The next succeeding Section says that the child of a United States -- of United States say, the child of a British mother, though born out of allegiance shall inherit all the -- what is this, the rights and privileges of English subjects.

The consecutiveness of the Section would seem to appear that such a woman would be able to pass unto her child the rights of a native-born child including the right to hold the offices that a native-born child would have.

Mr. Congressman Cutting said, “I haven't gone to that extent in this Bill.”

And so he has not because in the re-enactment in 1874, you will find that 2172 under which we are now before this Court is listed under naturalization.

And 2172 says that those children will be deemed citizens.

1993, the re-enactment of the Act of a 1855 is listed under citizenship.

And it says that those persons shall be declared citizens.

The Guest versus Perkins case urged that Mr. Guest was in fact a native-born citizen entitled to all the rights and privileges of a native-born citizen and while they never really got too far because he had -- his father had not had the five years residence, the -- the relationship I think is there that children under 1993 are to be considered as native-born citizens.

2172 naturalized citizens.

Unknown Speaker: (Inaudible)

Ms Anna R. Lavin: The rights to hold office.

Justice Felix Frankfurter: Presidency?

Ms Anna R. Lavin: Pardon me sir?

Justice Felix Frankfurter: How About the Presidency?

Ms Anna R. Lavin: The Presidency, yes.

Justice Felix Frankfurter: You mean a child born in Italy could become the President under this?

Ms Anna R. Lavin: I -- I think we're going to have to have you interpret that.[Laughs]

Justice Potter Stewart: (Inaudible) says what, natural born.

Doesn't it?

Not native born.

Ms Anna R. Lavin: Yes, it says natural born.

I think --

Justice Potter Stewart: The -- the Government --

Ms Anna R. Lavin: I think I'll to go with you on that.

I don't remember too but I do think that that is the great -- great distinction here.

Here, we have 2172 under naturalization, 1993 under citizenship.

I think there is a -- a great distinction.

I think we also have the words “be deemed” under 2172 and declared citizens under 1993.

I think a distinction was intended and I think that the -- I think perhaps someday, this Court will see the determination of whether a distinction was intended.

Going on then to the Act of March 2, 1907, that was enacted about six months after -- with no more than, about nine months after the birth of the petitioner.

This Act provided that a child born abroad should be deemed a citizen of the United States by virtue of the naturalization or resumption of American citizen -- citizenship by the parent.

The Court will note that no provision -- no provision at all was made for the child born abroad of a citizen parent, though I am sure that the Congress was aware that there was such a class of persons.

I think we -- we can impute to the Congress a realization that the situation did exist and I think that we can also -- impute to them an interpretation that no provision was necessary that such children were in fact automatically bestowed with the citizenship of the citizen parent.

The District Court of Minnesota in a like situation, the petitioner, Black, recognized that the citizen mother was not provided for.

But that Court held that for all practical purposes, she was in the same position and as a woman resuming citizenship or being the current or at being naturalized and that her children should be likewise made citizens of the United States upon her return to the United States.

The -- there was of course a requirement that there be a termination of the marital relation with the alien father.

The Attorney General, in one of his opinions in Cole, Erie, Picard came to the same conclusion.

The resistance of the respondent is first, that the Act was not made law until subsequent to the plaintiff's birth.

The District of -- the District Court of Michigan had occasion to entertain just that question.

It was the District Curt of Michigan and petitioner tries to say that this Act was declaratory in the common law.

The termination of the marriage relationship that is provided for in this statute as necessary to enforcement of the Act has been satisfied by much less than the absolute divorce for which the respondent contends.

In U.S. ex rel Guest versus Perkins, there was a separation agreement between the parties and the Court found that to be sufficient.

Here, we have the parents who were actually separated before the child's birth.

He was in the absolute and sole custody of his mother, both at the time his birth and for a limited time thereafter.

We suggest that's directly within first (Inaudible) case and the Black case and the Guest case except for the formality of the document.

The respondent nonetheless contends that the later reconciliation of the parents divested this citizenship if he took it and does not inform us of how that did occur and certainly, there's no provision in law for its occurrence.

It's our submission on this point that the sole actual custody in the -- in the citizen parent and the return to the United States for permanent residence coinciding that the petitioner just -- thus became a citizen under the provisions of the Act of March 2, 1907 and that only by his own act could he divest his citizenship.

In 1934 we --

Justice John M. Harlan: But effect of that argument where he is to read the resumption of American citizenship as being a resumption of the residence?

Ms Anna R. Lavin: In accordance with the decisions in -- in the petitioner Black case and of the Attorney General's opinion in Cole-Picard, both of which are incorporated in our brief.

Justice John M. Harlan: That's Attorney General Mitchell's opinion?

Ms Anna R. Lavin: I don't know, sir.

I don't know.

Justice John M. Harlan: He took your views.

Ms Anna R. Lavin: I hope so.[Laughs]

Justice John M. Harlan: Yes.

Ms Anna R. Lavin: We have a -- a third basis on which we claim citizenship and in that regard, we suggest the same argument we've just presented to the Court in the light of the Act of May 24th, 1934.

That provided for the bestowal of citizenship upon the minor child of a mother or a father who resumes citizenship or who was naturalized.

It eliminates the necessary determination of the marital relationship.

It does require however, five years residence by the child which we're -- we'll able to satisfy.

In -- in interpreting this Act, Act of --

Justice Charles E. Whittaker: Ms. Lavin -- if I may ask, let's try to (Inaudible) on persons resuming citizenship or being naturalized?

Ms Anna R. Lavin: Yes, sir.

Justice Charles E. Whittaker: We would have more application than to this one whose endeavor was an alien?

Ms Anna R. Lavin: In -- as I was saying, in the petitioner Black, the -- the District Court, I believe in Massachusetts found that there was no reason why this woman who is in the same position as an expatriate or resuming citizenship or a person taking natural -- being naturalized where there was no -- where there was no real distinction to all practical purposes, she should get the benefit of the Act and actually, in that case, did.

And the opinion of the Attorney General in the Cole-Picard -- well, in his opinion, is precisely the same that there is no reason to restrict that -- that grant of citizenship to resumption and to naturalization.

That actually, everything else being present, return to -- to residence and the then present United States citizenship, that woman should also be able to pass on that right to her child.

Justice Charles E. Whittaker: Well, the statute does not really need in the -- that it shall apply only to persons resuming citizenship or being naturalized, but as you treat it, applies to persons who were never aliens?

Ms Anna R. Lavin: As I read it, Mr. Justice Whittaker, as I read it, the failure to provide for those people, United States citizens, who return for residence, indicates a recognition in the legislature that no provision was needed that their children automatically were citizens, but that -- that aside, I submit to this Court that such a person who has never been expatriated, who'd -- who is not a naturalized citizen but a native-born citizens who'd certainly have at least the rights that are accorded, the former expatriate and the naturalized citizen.

Justice Charles E. Whittaker: Well, it should have, although is one thing if it's dependent upon congressional action, limited to what we did do?

Ms Anna R. Lavin: I'm -- I also rely upon judicial interpretation and the sole -- sole example of judicial interpretation is the Petitioner Black case and I urge that interpretation upon the Court.

I -- also, we have the interpretation by the Attorney General, the head of the Department of Immigration who -- who also so interpreted the -- the Act.

Justice John M. Harlan: Where is that in your brief?

Ms Anna R. Lavin: Petitioner Black, 24 and 26.

Justice John M. Harlan: They fit into the Attorney General --

Ms Anna R. Lavin: That's for a dictionary.

That's also found at 26 and 27.

Justice John M. Harlan: Thank you.

Ms Anna R. Lavin: It's 37, Op. Atty. Gen., page 90 and it was indeed Mr. Mitchell.

Now, in urging the -- the Act of 1934 made law some 28 years subsequent to the birth of this child.

We ask the Court to employ the same interpretation that it employed in the case of Kelly versus Owen, 74 U.S. 476.

The Act of 1934 says that the children of -- foreign-born children of the United States mother or father will be deemed citizens of the United States on the performance of the required residence.

The -- in Kelly versus Owen, we had a similar provision that said “Women or woman married to or who shall be married to a United States citizen shall be deemed a citizen.”

This Court said that the term “married” didn't refer to a married ceremony being celebrated, but to a state of marriage and therefore, it applied as well to the persons who had been married before, the persons to be married subsequently and under that interpretation, applying that interpretation to this Act, we ask that it merely -- it be interpreted as being declaratory of a state in which this petitioner was in.

That is that he was the child of a United States citizen born abroad and is therefore -- and therefore, shall be deemed a citizen.

Our final contention is that the respondent is estopped from asserting petitioner's birth abroad as an impediment to his citizenship.

We urge that the refusal of a passport to the petitioner's mother so that she might bear in the United States a child that had been conceived in the United States and hope that for the first three months of its life has always lived in the United States that -- that that erroneous instruction can't be relied on as a basis for alienage.

Justice Potter Stewart: The Government's claim is that the mother didn't need a passport to return to the United States?

Ms Anna R. Lavin: Yes.

The Government's claim is that she didn't need a passport.

The Government's argument continues that if she needed a passport for internal reasons in foreign country, she would be given a passport to as a -- ensuring the protection of the United States afar.

The fact is that this record shows that after the child born -- was born, she was given a passport which would indicate that in fact she did need one.

Now, there is nothing in the record and this was a -- I might say a belated argument, raised only that appeal in the Seventh Circuit, but the -- the inference from the circumstances, the fact that she would get a passport if she needed one and the fact that she did get one indicates that she did need one.

Beyond that -- beyond that, the record doesn't go nor am I at this time able to go because the point was not brought out during the time that we were taking testimony on this.

Justice Potter Stewart: Generally, not as at least, you get a passport before you left home, wouldn't you?

Ms Anna R. Lavin: Well, at that time, there seems no doubt that you just got on a boat if you want to leave the United States.

Your problems, as I understand, arose when you were in these various foreign countries, more in getting out of there than getting out of here.

Actually, aside from that, the two basis of resistance that the Government gives to this argument is a suggestion that the trial judge didn't seem to believe Mrs. Montana.

There's -- there's no indication of that in the record.

They -- every indication in the record is faking all the story.

The basis for my decision is that the father wasn't citizen and that's all.

So there is no -- no reason for making such suggestion or an argument at this time.

At -- the Government always -- also suggest that, ”Lady, you can't go in that condition.

You come back when you get your baby” was merely a suggestion, an indication that he was concerned with her health.

I -- I suggest to the Court, it certainly doesn't sound like a suggestion and it certainly would not have the impact of a suggestion for a 15-year old girl away from her home and in a foreign country reliance upon the counsel to give her aid and protection.

We -- we submit that the petitioner here is a citizen by virtue of any of the four arguments we urge.

And we also urge upon this Court to reverse this case and remand it with a -- with instructions for an appropriate judgment to accord the -- the petitioner a citizen of the United States.

Thank you.

Chief Justice Earl Warren: Mr. Gordon.

Argument of Charles Gordon

Mr. Charles Gordon: Thank you Your Honor.

May I please the Court.

This suit seeks a judicial declaration of citizenship.

It was brought after the entry of a deportation order.

In the District Court, the trial court conducted a hearing de novo, permitted petitioner to present his proof and at the conclusion of the case, granted the motion to dismiss.

The Court found that petitioner had not established a title to United State citizenship under the Constitution or under any statutes.

The Court of Appeals unanimously affirmed.

Now, the facts of course are simple.

Petitioner was born in Italy in 1906.

His parents had been married the previous year in the United States and had gone to Italy on a visit with Mrs. Montana's parents.

At the time they went to Italy, Mrs. Montana was about four months pregnant.

After the child was born, the -- the mother brought the child back to this country, the child was then about three-months old and he has continued to reside in this country since that time.

Now, it is undisputed that at -- at the time of the child's birth, the mother was an American citizen.

She was born in this country and had never lost her citizenship.

It is also undisputed that at the time of the child's birth, the father was an alien and that he has remained an alien until the present time.

Now, these are the simple and controlling facts that the petitioner was born outside of the United States in 1906, that at the time of his birth his father was an alien and his mother an American citizen.

Building from these facts --

Chief Justice Earl Warren: Is it also uncontradicted that she did go to the consul and asked for a passport and was denied?

Mr. Charles Gordon: Your Honor, it is not -- it is contradicted by us but there is nothing in the record to oppose the story.

This is the story so --

Chief Justice Earl Warren: You -- you say you contradict it here?

Mr. Charles Gordon: Well, we -- we doubt it.

I can't say I -- I contradict it, we doubt it.

Chief Justice Earl Warren: Oh, well, I'm not asking about your doubts.

Mr. Charles Gordon: We have no basis for contradicting.

Chief Justice Earl Warren: I'm not asking about your doubts, I'm asking about the record.

Mr. Charles Gordon: The record --

Chief Justice Earl Warren: You're talking about what was uncontradicted and I merely asked you if it was uncontradicted in the record that she went to the -- the Consul and asked for a passport, and it was denied.

Mr. Charles Gordon: Well, Your Honor, I -- I wouldn't put it that way.

I'll say that the only testimony in the record is the testimony of the mother.

Chief Justice Earl Warren: Why do you equivocate?

Mr. Charles Gordon: Because she is an interested witness and I think this is not a patently incredible story, a story which is very convenient and is told for the first time without any corroboration 50 years after the alleged event.

Chief Justice Earl Warren: Why didn't you ask the judge to make a finding to that effect?

Mr. Charles Gordon: Well, the judge made a complete finding on the basis of all the evidence.

He said that the petitioner, plaintiff in the case before him has failed to sustain the burden of showing himself to be a citizen of the United States.

Chief Justice Earl Warren: Why?

Mr. Charles Gordon: For every reason that he is alleged.

Chief Justice Earl Warren: I thought you said a moment ago because his father was an alien?

Mr. Charles Gordon: This is one of the reasons.

The judge didn't say that.

The judge said two things.

He said petitioner, plaintiff in that -- in the case before him, has failed to show that he is a citizen of the United States under the Constitution or under any statute.

Two, petitioner has failed to sustain the burden of proving himself to be a citizen of the United States.

These are the findings of the Court.

That is all the Court said and I think the Court was considering all the evidence, he was there, the testimony was before him and I think on the basis of that evidence, he made a complete finding on all the contentions which were made by the petitioner.

Now, obviously, there's no citizenship right here under the Fourteenth Amendment.

It says the petitioner was not born in the United States.

Therefore, any claim to citizenship must dependent on some specific statute enacted by Congress.

Chief Justice Earl Warren: May I revert just a moment to -- again to what I asked you about her going to.

Do you say that it's incomprehensible that this woman would -- would go to the consul and -- and that she would be denied.

Why do you say that?

Mr. Charles Gordon: Well Your Honor, as Mr. Justice Stewart pointed out, the fact is and as this Court pointed out in its opinion in Kent against Dulles, the majority opinion, at the time that petitioner was in Europe in 1906, petitioner's mother, excuse me --

Chief Justice Earl Warren: Yes.

Mr. Charles Gordon: -- the laws of this country did not require a passport for a person who wished to come to the United States.

So that it -- it wasn't conceivable that a -- a lady in Mrs. Montana's condition who wished for a passport and came up to the consul, wished it for all convenience, would ask for a passport would be denied it.

What would be the point of the consul denying a passport which was not required as a document for entry under our laws?

Chief Justice Earl Warren: Well, is it -- and was inconceivable that -- that she would not go there and ask for a passport before baby died or before a baby was born, why would she go afterwards and get one?

Mr. Charles Gordon: Well, Your Honor I -- I say that that is not supported in the record.

Again as Mr. Justice Stewart pointed out, the logical assumption is that if a person wanted a passport, he would've obtained it before leaving the United States.

Now, it's that --

Chief Justice Earl Warren: Didn't she get a passport to come home?

Mr. Charles Gordon: She did -- she says she did.

Chief Justice Earl Warren: What, is there a (Inaudible) --

Mr. Charles Gordon: Even that is a questionable because this is based only on her own statement.

There is nothing in the record to show that there was such a document.

Chief Justice Earl Warren: Well, if she was -- if she was not a citizen of the United States, would she have needed a passport?

Mr. Charles Gordon: She wouldn't have needed a passport either way.

Chief Justice Earl Warren: Whether she was a citizen or not?

Mr. Charles Gordon: But that is true, whether -- you're right.

If -- if she were an alien, she would not have needed any document.

If she was a citizen she'd, likewise, would not have needed a document at that time.

All a person had to do at that time was to buy a ticket, get on a boat and come to the United States.

And then at the port, he would be admitted if were admissible.

As a citizen, she would've been admissible without any doubt.

As I say, I think the -- the crux of this thing is that all these depends on what she says now 50 years odd later when she has an obvious interest in the controversy.

It seems to me --

Justice Hugo L. Black: May I ask you because I don't quite understand the argument.

Are you saying that that would make a difference if she had done that?

Mr. Charles Gordon: I -- I'm not saying that it would make a difference, but I'm saying, taking the argument at its utmost, assuming that a passport had been applied for, it is inconceivable that the Consul would have denied a passport under these circumstances and we say this is the story of an interesting -- a witness who has an obvious interest.

Justice Hugo L. Black: Well, you frequently have that but they're not usually just thrown out.

Assuming it is material, they are not just usually thrown out because somebody says they're interested, we don't like what it said.

Mr. Charles Gordon: But it can be disbelieved and we believe that the trial court was the best judge of it here, sir.

We believe that the trial court, after hearing this story, said, “I've heard your argument.

I've heard your theories which were advanced before him, the same theory and I find that you haven't sustained the burden of proving yourself to be a citizenship of the United States.”

That, we believe is a complete finding on every contention which was advanced before him.

Chief Justice Earl Warren: Where is the finding in the record?

Do you have it, Mr. Gordon?

Mr. Charles Gordon: Oh, here it is, I'm sorry.(Voice Overlap) --

The judges' finding at page 39 and the first finding is number three, the one that he's not a citizenship under the Constitution or under any statute.

The second is number four, right below it -- rather, number five.

Number five on the next page.

Justice Hugo L. Black: I don't understand why you say that maybe it would, I -- I have read your finding but I do not understand why you say, his finding, that he was not a citizen, shows as a finding that she didn't go to the -- to get her passport?

Mr. Charles Gordon: Well, assuming Your Honor that it might be material that a -- if a consul had acted in this fashion and then denied a passport, that might have -- assuming that might have create an estoppel, then it would be incumbent on the judge to determine whether such a situation actually had occurred.

This was evidence which was produced at the trial.

The contention was made before Judge Miner at an earlier stage of the proceedings that there was an estoppel and therefore it was a contention before him.

At the conclusion of the case, Judge Miner said, “I find that plaintiff has not sustained, petitioner now has not sustained the burden of showing himself to be a citizen of the United States.

Chief Justice Earl Warren: Well, that's a conclusion of law?

Mr. Charles Gordon: A conclusion of law.

Chief Justice Earl Warren: Yes.

Now, you -- you speak of the findings.

Now, the two findings that you point out are two and five on page 39.

Number two says, “Plaintiff's mother, Madelyn Montana was born on October 2nd, 1890 at Jersey City, New Jersey and has since that date, continuously been a native and a citizen of the United States who has never surrendered or lost her citizenship or expatriated herself.”

Certainly, there's no finding there that it was -- it was not true.

Mr. Charles Gordon: This is --

Chief Justice Earl Warren: And then number five, “Plaintiff entered the United States of America on September 19th, 1906 when he was approximately three moths old, having been brought to the United States from Italy by his mother, Madelyn Montana.”

Certainly, there is nothing there that indicates it.

Now, where is the finding?

Mr. Charles Gordon: There is no finding of fact on this issue --

Chief Justice Earl Warren: But I understood you to say that he found that all the facts worked against him?

Mr. Charles Gordon: As a matter of law.

Oh no, he did not find a matter of fact.

I -- I'm sorry if I --

Chief Justice Earl Warren: I was talk -- I was talking about the finding of fact.

Mr. Charles Gordon: There was no specific finding of fact on that question.

Chief Justice Earl Warren: Well, that's -- that's all I ask you.(Voice Overlap) --

Mr. Charles Gordon: There is a finding of law which I think comprehends all the contentions that were made before him.

Justice Felix Frankfurter: Mr. Gordon, I'm all for a counsel, who restricts himself to the case that – that's before the Court and no speculations and (Inaudible) outside of it or even to answer outside it, but I do think the question of whether your view of the argument about the validity or the acceptability of -- of the mother's testimony, I do think the question whether if that isn't -- if that is maybe subject of discussion or the difference of opinion, I do think the question whether the consul's conduct could estop, is relevant to the determination of this case.

This -- the estoppel argument assumes that the statutory material, the statutory requirements, the statutory basis for finding citizenship, precludes the finding of citizenship and that -- and that despite that fact, there's an estoppel against the United States to raise the exclusionary provisions of the statute.

I do think that that's relevant to your case.

Mr. Charles Gordon: It's certain is.

It's one of the --

Justice Felix Frankfurter: You are going to argue it?

Mr. Charles Gordon: On the estoppel?

Justice Felix Frankfurter: Yes.

I don't --

Mr. Charles Gordon: Well, we --

Justice Felix Frankfurter: I don't mean this moment but are you going to deal whether any consul has the power to estop an act of Congress not being enforced.

Mr. Charles Gordon: We -- we believe whether there were --

Justice Felix Frankfurter: Well, I -- I don't want you to -- I just want to know whether you will argue it.

Mr. Charles Gordon: Well, Your Honor, we think that this -- in the first place that this -- the story is so patiently incredible that the court below did not believe it and that it should not be believed here.

Justice Felix Frankfurter: Alright.

Mr. Charles Gordon: And secondly, we think that if there was any such action, the action of the consul in -- in denying a passport which was not required had nothing to do with this woman's coming to the United States.

All she had to do was to buy a ticket and go to the boat and come to the United States.

Because of --

Justice Felix Frankfurter: Well, a estoppel -- estoppel implies conduct outside of what is necessary and somebody does something which the law recognizes as creating a situation that forecloses an objection to the consequences of that action flowing.

That's what I understand estoppel to be.

And what I want to know is whether on the assumption for the admirable argument of petitioner's counsel, dealt with last, namely, after all the statutory or legal provisions, are against it.

She says, “They can't be raised here” because of the conduct of that -- of the -- of a consul and I do think that is relevant, very important as I see it, for the Government to take a position on this question to estoppel.

Chief Justice Earl Warren: Would you answer that after –[Recess]

Mr. Charles Gordon: Thank you, sir.

Reverting to the question which we were discussing in the intermission, position that the Government takes is about this.

We doubt that the action of a counsel -- consul, Court preclude the United States from pointing out and contending that the provisions of the Constitution had not been complied with or that the provisions of a statute have not been complied with.

However, even if it were found that a consul by some action could preclude or estop the United States, we believe that there is no basis for such an estoppel in the instant case because if an estoppel possibly could arise, it would arise only if the wrongful action of the consul directly deprived an individual of a right or of the privilege of completing certain steps which would give him a right.

Now, in this case, there was no such right.

There was no right to come to the United States with a passport.

There was no requirement of a passport.

The only thing that appears in this record is Mrs. Montana's statement that she went to the consul and asked him about the coming back to the United States and he said, “I'm sorry Mrs., you cannot in that condition.

Come back after you get your baby.”

Now, there's no testimony in this record that Mrs. Montana thought she needed a passport or that the consul told her that she needed a passport and there certainly couldn't be any showing that there was a requirement of a law of the United States that she had to have a passport to come back to the United States.

The fact is as this Court has said, and any research will show that in 1906, our laws did not have a requirement of any document for anybody whether he was citizen or an alien as a requirement for coming to the United States.

Now, we say that taking Mrs. Montana's testimony at its maximum, the most it amounts to is a statement that she went to the consul and he told her to come back some other time.

We think that there are other matters -- there is other testimony by her, by Mrs. Montana herself which cast doubt on this story of a fact that consul refused her a passport.

For example, Mrs. Montana testified that she went with her parents to a little town and that the officials in this little town without any difficulty, without any hesitancy issued passports to her parents, that they told her to go to Naples for her own passport.

Now, if the officials in the little town which is not described had authority to issue passports to her parents, why didn't those officials have authority to issue the passport to Mrs. Montana?

Why was it necessary to sent her to Naples where this alleged incident occurred?

It is also said, it was argued by counsel today and was mentioned in the brief that this passport might have been a requirement under Italian law, it might have been.

Is there any showing in the record of any such requirement?

Is there any mention in the brief of any requirement of Italian law?

No, this is complete speculation.

As a matter of fact, there is no showing that this passport was required for anything except the supposed convenience of Mrs. Montana, the wish to obtain a passport.

Justice Charles E. Whittaker: Where does this argument get us?

As I understand, it's designed only to the possibility that if she had been allowed to comeback, petitioner might have been born in the United States.

Mr. Charles Gordon: That is so, sir.

Justice Charles E. Whittaker: But that's not the fact, so why aren't we confronted with realities here?

Mr. Charles Gordon: That is what the Court of Appeals said sir and I believe that is the proper approach.

The fact is that the Constitution grants citizenship to persons born in the United States.

Mr. Montana was not born in the United States.

Justice Felix Frankfurter: That -- that -- those observations that you've just made are -- are a way of saying there couldn't be estoppel, but if there could be a estoppel, if the consul in fact dissuaded a lady from coming here and thereby having a child born here, whether he had power to do that that, whether she needed a passport, whether the Italian law required the passport, all those things are immaterial if a representation by an American official to a woman in her situation made her change her position, whereby the child was born in Italy instead of in the United States.

If that could create an estoppel, you mean as a matter of law whether that was put to one side or put to sleep assuming your conscience over the statute precludes a non-native born child to be a citizen under United States federal law, if that could be done, then I should think you'd have a stronger case as in any and the fact that it didn't turn out that way is precisely the situation which brings the estoppel into play if it could brought into play.

Mr. Charles Gordon: ell, that -- that also depends, sir, on some additional assumptions.

The first of these is that the story is believed and of course I --

Justice Felix Frankfurter: But on -- that goes too whether or not, the estoppel is made out.

Mr. Charles Gordon: That's one.

Justice Felix Frankfurter: That's if --

Mr. Charles Gordon: The second is I think --

Justice Felix Frankfurter: (Voice Overlap) things clear.

That's in -- that's -- that is that there's no proof of the estoppel.

Mr. Charles Gordon: That -- that we contend and we believe that the record --

Justice Felix Frankfurter: I understand that, but (Inaudible) --

Mr. Charles Gordon: Alrightt, that -- that's the first.

Justice Felix Frankfurter: -- two very different things.

One, if you say one, the facts making out an estoppel disproved or not proved, though the burden is on her to prove it.

If you say the record doesn't sustain that play as a matter of fact then there is no estoppel because there's no estoppel, but if there is an estoppel, then one gets to the question whether it had meaning by that, estoppel in the loose sense, about as loose as the word as there is then, lose the concept if there is in the law, meaning by that that in reliance upon representation made to her, she to her disadvantage, changed her position with terrible consequence.

Now, I understand your position to be that as a matter of law, no consul could create an estoppel.

Mr. Charles Gordon: That is our first position and the second position is that even if there were such an estoppel --

Justice Felix Frankfurter: It doesn't -- there is none here.

Mr. Charles Gordon: That the second -- does he -- there's still a third, that even if the consul did this, it did not directly result in the deprivation of a right.

There was no right to a passport as an instrument --

Justice Felix Frankfurter: I don't care about the passport.

The question is whether it is -- if the consul hadn't told her that, she would somehow or rather gotten to this country before the child was born --

Mr. Charles Gordon: Well, your Honor there's nothing of the record.

Justice Felix Frankfurter: What do you think of that?

Mr. Charles Gordon: There's nothing in the record to support the assumption that she couldn't have or wouldn't have --

Justice Felix Frankfurter: Alright.

Mr. Charles Gordon: -- gotten to the country regardless of the consul's statement.

Justice Felix Frankfurter: And then thirdly, she did -- she was not disadvantaged by the representation made.

Mr. Charles Gordon: That is so, sir.

Justice Felix Frankfurter: Alright.

Mr. Charles Gordon: Now, if I may proceed to -- if there are no further questions on this phase and I'll be glad to have some any further --

Justice Hugo L. Black: May I ask you one question?

I've been looking at the record, does it does show why he's being deported?

Mr. Charles Gordon: I'm sorry, I didn't hear the --

Justice Hugo L. Black: Does the record show why this man is being deported?

Mr. Charles Gordon: Oh, I -- I can tell you, sir.

Justice Hugo L. Black: Well, I if it is not in the record?

Justice Felix Frankfurter: Is that in the record?

Mr. Charles Gordon: It is not in the record.

Justice Felix Frankfurter: Is it relevant to this case?

Mr. Charles Gordon: I as a matter of information, I'd be glad to tell you, sir.

Justice Felix Frankfurter: Alright.

Would you please answer my question?

Mr. Charles Gordon: It is not relevant --

Justice Felix Frankfurter: If it's -- is it legally relevant?

Mr. Charles Gordon: No, sir.

Justice Felix Frankfurter: If it's legally relevant then it ought to be in the record.

If it's not legally relevant, then why do you tell us?

Mr. Charles Gordon: Because I'm asked.

Justice Hugo L. Black: I asked you, (Voice Overlap) if it was in the record?

Mr. Charles Gordon: That's not in the record, sir.

Justice Hugo L. Black: You mustn't respond to every curiosity that one may have.

Mr. Charles Gordon: I don't think I have any alternatives, sir.

Chief Justice Earl Warren: Mr. Gordon, just one other question.

I understood counsel to say when -- when he came to this country three months of age, he was registered as a -- as a citizen.

Now, who was that done by?

Is that done by the Government based upon any research or is that done by the parents?

Mr. Charles Gordon: No, your Honor.

When the person comes to the United States -- I refer to page 37 of the record.

Chief Justice Earl Warren: 37 of the record --

Mr. Charles Gordon: When any person comes to the United States, a record of his arrival is established under law.

Chief Justice Earl Warren: Yes.

Mr. Charles Gordon: And at the time of his arrival, the immigration officer who recorded this recorded the child as a citizen.

Chief Justice Earl Warren: Yes.

Mr. Charles Gordon: So we contend that this was an error.

There was no hearing, no adjudication.

The mother came with a child in her arms and the child was recorded as a citizen.

Now, the most that can happen here is that this officer made a mistake and that mistake can be corrected.

Chief Justice Earl Warren: And why do you say -- why do you say it's a mistake?

Mr. Charles Gordon: Well, (Voice Overlap) I'd like to -- I'd like to show you Your Honor that --

Chief Justice Earl Warren: If it's his -- if it's his duty to -- to state whether -- whether the child is a citizen or not, why do you say it's a mistake?

What is there in the record --

Mr. Charles Gordon: Because the fact is --

Chief Justice Earl Warren: What is there in the record to indicate that?

Mr. Charles Gordon: Well, the fact is that he was not a citizen as we show -- show if Your Honor will permit me.

The fact is that under the law, he had no claim for citizenship.

Chief Justice Earl Warren: I know but it might -- might not that go to the question of -- of whether the Government is foreclosed from -- from now claiming he isn't a citizen if he came in three months of age and the Government said that he was a citizen and he's lived here for 56 years or so, wouldn't that bear on it very materially?

Mr. Charles Gordon: Well, I -- I think it might possibly, but the answer to that is -- that's -- in some cases that have considered similar situations, court below considered it, sir.

The answer to that is that the most that can happen under certain circumstances if an administrative officer makes a determination, the most that can happen is that a prima facie title is established and that title can be rebutted by a clear, unequivocal and convincing showing that that was induced by fraud or error and the courts that have considered this have said that the error encompasses error of law or error of fact.

Now --

Chief Justice Earl Warren: -- is there anything in the -- in the record to show this was caused by fraud or --

Mr. Charles Gordon: Oh, no.

Chief Justice Earl Warren: -- anything like that?

Mr. Charles Gordon: No, sir.

We contend that this is purely --

Chief Justice Earl Warren: -- is -- is there anything in the record to show except the law that time that it was a mistake?

Mr. Charles Gordon: It is an error of law in our --

Chief Justice Earl Warren: Error of law, very well.

Mr. Charles Gordon: Now if I may, I'd like to get to the phases of the argument dealing with whether Mr. Montana is a citizen.

At the time of Mr. Montana's birth in 1906, the controlling statute was R.S. 1993.

That statute provided that any child heretofore or hereafter born being both prospective and retrospective, should become a citizen only if born to an American father, provided, the father had previously resided in the United States.

Now, petitioner obviously can claim no right under this statute, since his father was not a citizen of the United States.

However, petitioner claims that under another section of the revised statutes, 2172, he got a right to citizenship.

2172 speaks of the children of persons who now are, or who have been citizens and confers the rights of citizenship on those people.

Now, we believe that the -- the position expressed here by the petitioner is one that is completely unsupportable because it disregards not only the language and the structure of the statute itself, but also its history, its interpretation, its manifest pertinence.

Now, the basic principle for the transmission of citizenship under the common law was known as the used solely.

That's the principle now incorporated in the Fourteenth Amendment.

The used (Inaudible), which is the principle of transmission by descent or by blood was not a common law principle.

This was dependent on statutes and statutes from the beginning of the republic had made limited provision for the transmission of citizens -- citizenship.

These provisions were in effect at different times.

Now, the 1802 Law which has been mentioned before was a codification, in every statement of earlier laws dealing with the transmission of citizenship.

In the 1802 Law, as in Section 2172 of the revised statutes, the rights of citizenship were granted to the children of persons who now are or have been citizens of the United States.

In 1854, Mr. Horace Binney, who was then a noted lawyer of the era, wrote an article in which he took the position that this law was not prospective.

He said, “This was a bad thing and it should be corrected by Congress.”

The following year, Congress undoubtedly in response to his suggestion enacted section of the 1855 Act which is the predecessor of the Section 1993.

That statute was effective as I have said heretofore or hereafter, both children heretofore born or hereafter born whose fathers are citizens of the United States.

And the law also contained a condition that citizenship could not be transmitted unless the father had previously resided in the United States.

Now, Section 1993 was continued, it -- as I've said, it codified the 1855 Law and then it continued in effect until 1934.

Justice John M. Harlan: They re-enacted 2172 though and then 1855 at the same time.

Mr. Charles Gordon: Not exactly.

Not in -- not in the exact terms.

There was a significant omission.

The omission left out the proviso which precluded the transmission of citizenship unless the father had previously resided in the United States.

Now, I would like to make one additional point before I -- I show you what the significance of that was.

In 1934 when Congress amended Section 1993, Congress provided for the first time that citizenship could be transmitted by -- to a child born abroad to American citizen father or a mother.

And in making this change, Congress was careful to restrict the operation of the statute to children hereafter born, thus, very clearly denoting its wish not to disturb status that was previously vested.

Now, in order to succeed, petitioner must show first that the relevant provision of Section 2172, which is the second clause, was prospective.

We believe that this contention depends on a number of -- of propositions which are unsupportable.

In the first place, we point to the language of the statute and of course the language says, “The children of persons who now are or who have been citizens shall be citizens.”

This is not prospective language, particularly in the light of the legislative history which I'll develop in a moment and it is quite significant that when Congress wished to speak for the future, it had no difficulty in selecting appropriate language.

Thus, in the 1855 Law and in its successor Section 1993, Congress spoke of the children of -- heretofore or hereafter born.

When Congress amended Section 1993, it spoke of the children hereafter born.

Now, no comparable language appears in the second clause of RS 2172, but second and more important, Your Honors will observe that this language, the second clause, was a virtually identical restatement of the 1802 Law as we've mentioned.

Yet, there was unanimous agreement that the language of the 1802 Law, the second clause, was not prospective.

This was the point of view expressed by Mr. Horace Binney in his 1854 article.

It was apparently also shared by Congress in enacting the 1855 Law the following year.

Indeed, in the debates on the 1855 Law, Congressman Cutting, the sponsor of the bill, and other members of Congress specifically said, “We acknowledge that the 1802 Law was not prospective and that the new legislation was needed to remedy the defect in the prior law.”

Justice Felix Frankfurter: Just as a matter of curiosity, Mr. Gordon, I haven't read the -- the congressional account.

In the -- in what was said on the floor of either House, was acknowledgement made that the article in the American Law Register was by Mr. Binney, because they didn't sign?

Is this --

Mr. Charles Gordon: It was not signed but it actually was a -- a reprint of a -- a publication of the previous year.

Justice Felix Frankfurter: What I want to know is -- what I want to know is whether somebody on the floor of either House mentioned Mr. Binney's name by name.

Mr. Charles Gordon: Your Honor, I don't recall, but let me refer --

Justice Felix Frankfurter: I'm just curiou -- legal curiosity.

Mr. Charles Gordon: No, I -- of course the Supreme Court, this Court, in two decisions specifically mentioned Mr. Binney by name has that this was a correct interpretation and that the 1855 Law was passed in order to correct this defect.

Justice Felix Frankfurter: I have no doubt about it on basis of other materials but I just want to know --

Mr. Charles Gordon: I -- I don't recall --

Justice Felix Frankfurter: -- if anybody in Congress saw them.

Mr. Charles Gordon: I don't recall when they specifically mentioned that.

Justice Felix Frankfurter: Binney was a towering figure --

Mr. Charles Gordon: He was.

Justice Felix Frankfurter: -- back in those days.

Mr. Charles Gordon: I have taken the trouble to find that out, sir.

Justice Felix Frankfurter: Yes.

Mr. Charles Gordon: He was -- he was one of the leaders of the bar in that period.

Now, as I've mentioned in this Court twice on two separate occasions, I called attention to the defect in the 1802 Law which was revealed by Mr. Binney and stated that the 1855 Law was passed to remedy this defect.

The same conclusion was reached by every other lower court decision which has considered the matter and the same conclusion also was reached by Chancellor Kent in his commentaries.

Chancellor Kent said that this provision is clearly not prospective.

Mr. Binney said this provision indisputably is not prospective.

Now, our brief mentions the 14th edition of Chancellor Kent's commentaries.

Now, I've taken the trouble to search the earlier editions and find that every edition from the first edition in 1826 down through the 14th which we have cited, made exactly the same statement.

This included the 12th edition which was edited by one O. W. Holmes Jr, I find and which was published in 1873, the year before the revised statutes, is -- I think is quite significant as a part of the legislative history.

Now, petitioner now contends that every published interpretation of the 18 -- the revised statutes and the 1802 Law was wrong and that it is now possible to read this language as being prospective.

We submit that in the face of the unanimous verdict of everybody, the verdict of the legal scholars including Chancellor Kent in 1826, Horace Binney in 1854, Justice Holmes in 1873, the verdict of the decisions including two leading expressions by this Court, the verdict of the legislative history including direct statements in the legislative history preceding the 1855 Law and another similar statement in the comprehensive study made in 1906 preceding the Citizenship Law of 1907.

We submit that in the face of this unanimous verdict of everybody who has studied the subject that it is not now possible to read the language of the 1802 Law and of its restatement in 1874 as being prospective.

Now, even if it could be found that the language is prospective and we've been -- this we deny, even if this could be found, we submit that petitioner still must fail, because petitioner's claim depends on a finding that 2172 intended to confer citizenship on the child born abroad to an alien father and a citizen mother.

Again, we say this interpretation conflicts irreconcilably with the consistent interpretation of the statute -- of this language with the statute itself and with its legislative history.

Now, comparable language is business about the children or person.

This is the -- the issue of the case.

Does that mean the children of the father or the mother?

Comparable language was made -- was used in the 1802 Law.

Now, the use of the plural at that time and in 1874 was not an accident.

It reflected the common law concept of family unity with the father, the spokesman of the unity.

That concept of family unity was contained in our citizenship laws until 1934.

That concept was endorsed.

In the leading decision of this Court in Mackenzie against Hare decided in 1915.

When Congress used the word, “the children of persons” we believe it was referring to situations where both parents were citizens.

Now, some authorities have construed this language a bit more liberally.

Some authorities construing the first clause, not the second, there aren't any authorities taking this view under the second clause, the first clause related to the derivation of citizenship by the children of aliens who were naturalized.

Some authorities say that the first clause includes situation -- provision for the transmission of citizenship through a father, a father who was naturalized.

Now, we think that this perhaps is a permissible interpretation in the light of the common law concept of family unity which was then incorporated in our statutes, the father being the chief spokesman of the unit.

Moreover, under our laws at that time, when an alien woman married a citizen, she automatically became a citizen.

So when Congress spoke of the children of persons, if the father was a citizen, both parents automatically were citizens, but we think that no interpretation of anybody, no Court, no commentator, no legislative spokesman has every suggested that it is possible to read the language of the 1874 revised statute Section 2172 or of its predecessor in 1802 as granting citizenship to a child born abroad to a citizen mother and an alien father.

Justice Hugo L. Black: I thought you said that while some authorities have said -- did I misunderstood what you said a moment ago.

Mr. Charles Gordon: Can I restate that sir?

Justice Hugo L. Black: Yes, if you please.

Mr. Charles Gordon: Some authorities have said that where the father alone is a citizen and the mother maybe an alien, the father alone can transmit citizenship, but that we say is not inconsistent with the philosophy of the statutes then in effect.

The father was then the dominant member of the family unit.

Moreover, in addition to that under the laws then in effect, if an alien woman married an American citizen, she automatically became an American citizen, so that if you talk of a father being a citizen automatically, the mother also would be a citizen.

Justice Felix Frankfurter: But -- but wasn't it, the fact, Mr. Gordon, that by the laws of some of the foreign country, the mother -- what is it called now, the Cable -- what --

Mr. Charles Gordon: Cable Act of 1922.

Justice Felix Frankfurter: -- the Cable -- our Cable Act was -- came much -- was -- came much -- the objective of that and the legal consequence of that, that a woman may retain, withhold a nationality on marrying an American citizen.

That was the law in -- in some of the European countries much earlier, wasn't it?

Mr. Charles Gordon: It was not our law though.

Justice Felix Frankfurter: I'm not saying it was our law, but it raises dubious question if an English woman married an American and under -- under English laws, even if she retained her citizenship as an English woman, she might not avail what might be called a pure American citizen.

Mr. Charles Gordon: No, she might have been a dual national --

Justice Felix Frankfurter: Yes.

Mr. Charles Gordon: -- which is not an uncommon situation as one knows it.

Justice Felix Frankfurter: No.

It might raise questions under -- under the person.

Mr. Charles Gordon: I think we‘ve -- we've had perplexing questions on citizenship on dual nationalities since we've had our first nationality law, and we still have it.

Justice Hugo L. Black: I don't understand how if -- if anyone read the word “persons” in this to go no further than these statutes.

They could say that the -- the parent of a father, was a citizen or the parent of the mother wasn't.

Mr. Charles Gordon: Well, that's the generous interpretation, sir and I think that maybe justified as I've said by the fact that the law regarded the family as a unit and the -- the father --

Justice Hugo L. Black: But that's in -- you mean to looking -- looking at other statutes.

Mr. Charles Gordon: We're looking what they --

Justice Hugo L. Black: Within the four corners of this statute, could that distinction be drawn?

Mr. Charles Gordon: Well, let -- let me show Your Honor the legislative history and I think this is overwhelming as to what Congress intended.

Justice Hugo L. Black: Here I was --

Justice Felix Frankfurter: Justice Black's question was if you don't look at anything except the words.

Justice Hugo L. Black: My question was, if you look at the four corners of this statute, its language and nothing else, could that distinction be drawn?

Mr. Charles Gordon: No, sir.

Justice Hugo L. Black: Well, that's the question.

Where is the --

Mr. Charles Gordon: I think -- I think though if you looked at the four corners of the 1802 Act, you might draw such a distinction.

The 1802 Act said, “The children born abroad to persons who are American citizens are citizens, provided, the father has previously resided in the United States.”

So such a distinction might be made under the 1802 law.

The 1874 law eliminated that proviso.

Now, I -- I'd like to refer for a moment to the legislative history which I think is irrefutable here.

Justice Hugo L. Black: As to elimination of the word father in the 1802 Act?

Mr. Charles Gordon: No, as to whether Congress intended to confer citizenship on a child born to an American mother and an alien father and here I think the legislative history is unmistakable.

Justice Charles E. Whittaker: Clearly, I'm confused about this but I just not understand the 1802 Act merely in reference what you just tell me with that person.

Mr. Charles Gordon: But then if Your Honor will read a little further, you'll see there's a proviso in the 1802 Act which said, “Provided, citizenship rights shall not be sent to persons whose fathers never resided in the United States.

Is that in -- in our brief?

I think it's probably -- we haven't got the full statute.

Your Honor look -- would look at the petitioner's brief, the 1802 Act appears in the -- as an appendix there and that proviso is in it.

Justice Hugo L. Black: Page 28, you don't say it's 18.

Justice John M. Harlan: On Section 1993.

Mr. Charles Gordon: No.

I'm talking about the 1802 Act.

Justice Hugo L. Black: The 1802 Act appears on --

Mr. Charles Gordon: This is on page 18, sir.

That is right.

Justice Hugo L. Black: 18 of the petition for certiorari.

Now where is the statement in the --

Mr. Charles Gordon: That's about two-thirds the way down to the statute provided that the right of citizenship shall not extend to persons whose fathers have never resided within the United States.

Justice Hugo L. Black: Well, now why would that have been taken out?

Mr. Charles Gordon: Well, I -- this -- this -- why the proviso was eliminated?

Your Honor, this I think has an explanation.

This is -- gets to the crux of why there were two statutes dealing with the same subject matter.

Of course, we say that it is inconceivable that Congress intended two statutes enacted at the same time containing inconsistent conditions to operate prospectively.

The court below said that this -- the second clause was retained as a savings clause.

Now, if the second clause was intended to apply for the future as a method of transmitting citizenship, then it undoubtedly would have continued this proviso or something similar.

And that is so because in every other law dealing with the transmission of citizenship by American citizens to their children born abroad, every other law since 1790, Congress has inserted a specific proviso precluding the transmission of citizenship except where the citizen parent had previously resided in the United States.

This was true in the 1790 law.

It was true in the 1795, the 1802, the 1855 Law and in the revised statutes 1993, each of which said that citizenship rights could not be send unless the father had previously resided in the United States.

Justice Hugo L. Black: The -- the -- was this law in effect at that time, the Act of 72?

Mr. Charles Gordon: No, but this is a consistent pattern of action by Congress.

Congress never has provided for the transmission of citizenship to children born abroad unless the father had some tie in this country.

Congress wished to prevent the transmission of citizenship by generations of persons who had never resided in the United States.

That is the decision of this Court in Weedin against Chin Bow.

That's very thoroughly spelled out.

Congress wanted to tie it, the transmission of citizenship to persons who had been in the United States.

Now, by eliminating this proviso in carrying forward the 1802 law into Section 2172, it seems to me, Congress very clearly indicated that it didn't want this law to have the effect for which petitioner contends.

Because if it were to operate prospectively as a means for transmitting citizenship by parents who were not citizens in 1874, then Congress would have included a proviso saying that citizenship could not -- cannot be transmitted unless the parents has previously resided in the United States.

Now, I want -- I want to get back for a moment to the legislative history.

On every occasion on which this matter has been considered, the legislative history tells us that the revised statute 18 -- 2172 and its predecessor of 1802 were not intended to confer rights of citizenship to children born abroad to American mothers and alien fathers.

The first such expression was in connection with the debates on the Act of 1855 and there on page 34 of our brief, we -- we quote from a statement by Congressman Cutting who is the bill's sponsor.

This was read by Miss Lavin.

It says that, “We haven't gone as far as England in permitting the transmission of citizenship to children born abroad to American mothers.”

Now, when the next occasion arose which was 1922, in connection with the Cable Act, the Committee report which is quoted at -- at the top of page 35 of our brief said, “We are not disturbing the citizenship status of children, those born in this country take under the Constitution.”

Then the committee went on to say --

Chief Justice Earl Warren: Before you go farther -- as I recall, counsel, she said that that -- that particular quotation that you just read referred to a subsequent section of the Act and not -- not this particular one.

Mr. Charles Gordon: No, this referred to exactly to 1993.

This did not refer to 2172.

This referred to the predecessor of 1993 which is the Act which we think is controlling, but I'm -- I'm calling this legislative expressions to the Court's attention because they indicate that Congress did not wish to trans -- to permit the transmission of citizenship through a mother alone at that time.

The law was changed in 1934.

Now in 1922 when Congress was giving to married woman additional right to determine their own citizenship, they said, “We are not disturbing the law regarding the acquisition of citizenship by the children.”

Justice Felix Frankfurter: Where -- where is this from the report on the Cable Act?

Mr. Charles Gordon: 35 at the top of the page.

Those born abroad as heretofore the Committee said, “Take the nationality of their mothers.”

Then when Congress changed the law in 1934, they change it to provide that citizenship could be transmitted by the father or mother.

And the Committee report which is also on page 35 says, “By the present law, citizenship by birth outside of the United States is derived only through the citizen father.”

And then Congress went on to say -- the Committees went on to say, “The purpose of this Amendment is to establish complete equality between American men and American women in the matter of transmitting citizenship.”

Now when Congress -- when the law was amended --

Justice Hugo L. Black: But what happens in that law?

Mr. Charles Gordon: It said -- the law said, “Hereafter, any children hereafter born shall take citizenship through the father or the mother.”

Justice Hugo L. Black: Was it passed?

Mr. Charles Gordon: Oh, yes.

That was the Act of May 24, 1934.

Justice Felix Frankfurter: Was -- that was part of the Cumming's nationality proposal, wasn't it?

Mr. Charles Gordon: I don't know who proposed it but it had --

Justice Felix Frankfurter: In the nationality (Voice Overlap) --

Mr. Charles Gordon: It had a number of proposals.

Yes, sir.

These were only two and there were --

Justice Felix Frankfurter: That's a part of the Comprehensive Nationality Act.

Mr. Charles Gordon: That is so.

That was the -- the law which amended -- Your Honors will note, I think this might maybe of some significance to, is determining whether Congress then regarded Section 2172, the one -- the clause that we're considering as being applicable, when Congress amended the law in 1934, it amended only Section 1993.

Now, what was the need of amending Section 1993, if under the law, previously in effect, either the father or the mother could transmit?

Indeed, what was the need for this Court's decision in Weedin against Chin Bow, if either the father or the mother could have transmitted because the father in that case was a citizen who had not resided previously in the United States and the Court there found that citizenship could not be transmitted through such a father.

Now, we think that --

Chief Justice Earl Warren: What does the House report to say about that Section 5 of the 1934 Act?

Mr. Charles Gordon: They both -- they both -- this was (Voice Overlap) Section -- Section 1 of the 1934.

Both reports I think were identical.

Chief Justice Earl Warren: As I understood the -- the house report made it clear that the amendment was intended merely to state expressly whether it'd been implicit in the 1907 --

Mr. Charles Gordon: Oh no, no.

That's another portion of 1934 Act, sir.

That is Section 2.

Section 2 relates to the children who acquire naturalization through the -- natural -- acquire citizenship through naturalization or resumption by the parent.

This is Section 1 and there's no question on what Congress was doing here.

It was changing the law and said, “Child born abroad hereafter to a citizen mother or a citizen father -- and the Committee report says, “We intend to establish complete equality.”

Both -- both Committee said the same thing.

Chief Justice Earl Warren: Yes.

Mr. Charles Gordon: Now, I'd like to spend some of my few remaining moments on some of the other aspects of the case.

Now, the second claim which is made here is on the Act of March 2, 1907.

The Act of March 2, 1907 was one of the numbers of basic revisions on naturalization and nationality laws from time to time.

It dealt primarily with expatriation and protection of citizens abroad.

Section 3 of that Act provided that an American woman who married an alien, thereby lost her American citizenship.

But Congress wanted you to take care of this woman in the event her marriage terminated and therefore, Congress said, “In the event her marriage is terminated, such a woman may resume her citizenship in several ways and one of the ways she could resume her citizenship was by returning to reside in the United States.”

We think that also Section 5 is involved.

Section 5 provided that a child born abroad of alien parents would become a citizen through the naturalization or resumption of citizenship by the mother during the child's minority.

Now, we think that petitioner's attempt to derive some benefit of -- from this statute faces insurmountable obstacles.

In the first place, the statute speaks of a woman who has lost her citizenship and permits such a woman to resume.

Now, both sides here agree that the mother here never lost her citizenship.

She was born a citizen and remains a citizen until the present time.

Since there was no citizenship lost here, there was no citizenship to resume.

But even more importantly, the statute speaks of a woman whose marriage has been terminated and if the marriage is terminated, the statute says, “Then the woman can resume her citizenship.”

Now here, the marriage has never been terminated.

The marriage was contracted in 1905 and the parties still live together, they are still husband and wife.

The terms of Section 3 and Section 5 of the 1907 Act cannot come into play unless, number one, there is a loss of citizenship; number two, there is a resumption of citizenship; number three, there is a termination of the marriage which accompanies results and resumption of citizenship.

Justice John M. Harlan: What do you say about Attorney General Mitchell's interpretation?

Mr. Charles Gordon: We have no problem, sir.

It doesn't apply here.

Justice John M. Harlan: Why not?

Mr. Charles Gordon: Attorney General Mitchell and -- and Judge Nordbye in the Black case, were addressing an entirely different situation.

That situation was where there had been a termination of the marriage, there hadn't been a loss but there had been a termination.

Now, Attorney General Mitchell said, “Now, here's an American woman who hasn't lost citizenship but her marriage in effect has been terminated, she was divorced.

And Attorney General Mitchell said, ”The -- there is no doubt that the complete legal custody of the child has been given to the mother.”

He says, “This is irrevocable.

If it weren't irrevocable, I would've decided the same -- different way.”

Now, Attorney General Mitchell said, “Now, this -- this is a -- an equitable situation.

Here's a mother who hasn't lost her citizenship, her marriage is terminated and it is equitable for the child to take the same citizen -- citizenship as the mother.”

But that's an entirely different case than this.

The marriage has never been terminated.

Justice John M. Harlan: The relevancy with the termination of the marriage after that year of the statute.

Mr. Charles Gordon: The statute provides for it.

The statute says that there can be an -- a resumption of citizenship only when the marriage is terminated.

That's the -- the only thing that the statute was speaking of.

Justice John M. Harlan: Well, but in his opinion as I understand it correctly said that it was incongruous to suppose that Congress wanted to confer greater rights to the children of American women who had lost their citizenship and then resumed it, then they would've on the case of the children of American women who had never lost their citizenship.

Mr. Charles Gordon: And I agree.

It is incongruous to confer greater rights on such women.

Justice John M. Harlan: Therefore, he's -- therefore, he said rightly or wrongly that the woman in the latter status who had never lost her citizenship, the child of such a woman should have the rights to be given to one of a woman in (Inaudible) --

Mr. Charles Gordon: But, Your Honor, the petitioner's argument turns that around.

It is not giving greater rights to an alien woman, it is giving greater rights to a -- a citizen woman who has never lost his citizenship because the alien woman, in order to confer citizenship on the child, must first have terminated her marriage.

And the termination of the marriage creates a situation where she is the sole parent and she thereby is properly the one who determines the citizenship of the child.

But the petitioner's argument would say that even though the marriage was not terminated, even though there are two parents as a matter of law, we will give to this woman without any benefit of statute, without any expression by Congress, without any support in the Constitution, we will give to this woman what amounts to a process of naturalization.

Now, we say such a -- an argument, such an interpretation gives to the American woman not inferior rights but far greater rights because it doesn't depend on a termination of the marriage.

When the marriage is terminated, she is the only parent.

It is right I think to keep the citizenship of the -- of the mother and the child together at that time.

But at the time when these facts occurred, Congress said, “The only situation in which we want a mother to determine the citizenship of the child is when the marriage has terminated and she has resumed her citizenship.”

Now --

Justice Felix Frankfurter: In other words, are you saying what incongruity there is, is in the statute of Congress and not in any construction of it.

Mr. Charles Gordon: That is right, sir.

Congress has not made any provision whether it should have made provision is another story.

But Congress did and I think Congress deliberately didn't want to make a provision because at that time, Congress did not wish the mother alone to control the citizenship when there was a father and the father was an alien.

I think this was deliberate.

Justice Felix Frankfurter: Chief Justice Taft in the (Inaudible) Weedin case --

Mr. Charles Gordon: Weedin against Chin Bow.

Justice Felix Frankfurter: Weedin case spoke of the atmosphere in which the statues must be construed.

Now, the Act was Bill of 1997, this was long before woman suffrage, long before the whole change of congressional mind and judicial mind as to the status of women.

And therefore, these so called incongruities, warranting Congress at all if you put them in the context of the time.

Mr. Charles Gordon: That is exactly our argument.

We say it is inconceivable in the climate of those years, in the climate of 1802.

Justice John M. Harlan: The Attorney's General interpretation is not in reference to the 1907 Act, it was in reference to the 1934 Act and those considerations have changed.

Mr. Charles Gordon: Well, that the -- may I answer it?

The 1934 Act is quite similar.

Justice John M. Harlan: Well, it's identical in that respect.

Mr. Charles Gordon: That's right.

Justice John M. Harlan: Yes.

Mr. Charles Gordon: It provides for the resumption that --

Justice Felix Frankfurter: And he was dealing with the 1934 statute.

Justice John M. Harlan: But it was broader down from the 1907 Act because of the same provision.

Mr. Charles Gordon: The same considerations apply, sir.

In order for the person to acquire any right under those statutes, the mother must have been in a position when she resumes citizenship.

The resumption could take place only in the case of a mother who lost or who is in a position of equal to one who had lost -- provided, the marriage was terminated and the mother was in effect the sole parent.

Now, if Your Honor will read Attorney General Mitchell's opinion, Attorney General Mitchell laid very great stress on the fact that this was irrevocable.

That there wasn't any question that the mother had sole custody of the child.

And he said, “If there was any question about this, if the father had any reserved right to custody, I would not have held the same way.”

And the reason he said that I think was in carrying out what Congress intended that a family be considered as a unit unless the unity had been destroyed and that in a situation where there was only one parent and the parent was the mother, it was proper for the mother to take the child, belong to her in determining -- along with her in determining citizenship.

This is the only thing that Attorney General Mitchell decided.

He did not decide that in every case, a child who was born an alien to a citizen mother would automatically become a citizen merely because the mother took a trip to the United States.

He decided only that when the marriage had been terminated and when the mother had been given complete and irrevocable custody and thereby was the only parent of that child, then it was proper to hold that the child required the mother's citizenship through, in effect, a process of naturalization.

We think that the 1934 and the 1907 Acts must be read similarly in this connection.

Now, --

Justice William J. Brennan: Mr. Gordon, before you go on, I -- I know you question its relevancy, but I'd like to know the grounds on which Montana is being deported?

Mr. Charles Gordon: He is deported for having been convicted for two crimes involving moral turpitude and I'll tell Your Honor what the crimes are if you like.

Justice William J. Brennan: What are they?

Mr. Charles Gordon: The first was when he made a -- an application for naturalization in 1930.

He lied on the question of what arrests he had suffered and he was convicted for lying in the naturalization proceeding and naturalization was denied thereafter.

The second was in 1941 for assault with intent to commit murder and he was convicted and sentenced, I believe for 14 years in jail --

Justice William J. Brennan: Well I notice that he did not appear at the hearing before Judge Miner.

Mr. Charles Gordon: No.

He -- he was out of jail by that time.

He was ill.

Justice William J. Brennan: He was ill.

Mr. Charles Gordon: Yes, sir.

Your Honor I think from -- alright, my time has expired.

Chief Justice Earl Warren: Miss Lavin.

Rebuttal of Anna R. Lavin

Ms Anna R. Lavin: I'd like to refer first to what Mr. Gordon refers to as the overwhelming congressional background on the Act of this before the Court in the form of 2172.

I -- I'd like to just go down that because we have been impressed by how overwhelming this was.

We have Mr. Grover's edition of Kent's Commentaries in 1826, 20 years after the -- after the -- an act of Mr. Binney in 1854, again, 50 years after they enact.

We have this Court's two decisions to which I referred when the issue was not before the Court and that about covers it.

There was nothing contemporaneous with the re-enactment in 1874.

Congressman Cutting's remark I think I discussed at length at the -- in my earlier argument and I hope I distinguished them because that is not in fact what Congressman Cutting said.

What he said was with relation to the Acts under the reign of Victoria in 1844 and the distinction of the natural-born citizen against a -- a manner of naturalization.

Justice Potter Stewart: Do I understand that the only distinction you can think of between a -- naturalized citizen and a -- and a native citizen is that only the latter probably can become President of the United States of America.

Ms Anna R. Lavin: Well, I -- the latter -- the former is also subject to divestment which they could never do with a -- a native-born citizen.

Those are the only ones that occurr to me immediately.

Justice Potter Stewart: Well, the -- and the native born citizen, this Court has held in certain circumstances, is subject to the denaturalizaiton.

Ms Anna R. Lavin: A native-born citizen?

Justice Potter Stewart: Expatriation, yes.

Ms Anna R. Lavin: Oh, expatriation, of course.

Justice Potter Stewart: The voting for example in Mexican election.

Ms Anna R. Lavin: Of course.

That again slipped my mind.

Actually, the only thing that does occur to me was the -- the provision relative to holding office by a -- a native born.

Justice Potter Stewart: Certainly, weren't that (Inaudible) --

Ms Anna R. Lavin: And that -- that was the thing that immediate --

Justice Potter Stewart: -- the presidency even if --

Ms Anna R. Lavin: -- presidency --

Justice Potter Stewart: The president, a national -- a nationalized citizen can be a senator or a vice president or something.

Ms Anna R. Lavin: Yes.

But -- of course, in the -- in the laws under Victoria, we had the problem of holding property that they referred to more completely but that does not -- to the best of my knowledge obtained in any state.

We have a -- in this, I've urged upon the Court.

I -- I think that in my argument, I indicated these expressions of Mr. Binney, an eminent scholar.

This Court's appear it -- approbation of that expression but what I do try to urge upon this Court is that what later Congressmen might have said.

What -- what scholars might have said are -- are not to be conclusive in this determination.

This Court -- a -- a judicial tribunal is the only one who has the right to determine the effect of statute and that is when the proper triad case arises and that is what now is before this Court.

Now, I noticed that there was practically no argument on -- addressed to the distributive except the fact that between 1855 and 1874, we had a situation where a wife took the nationality of her husband.

In our brief, we have -- in our reply brief, we have taken this argument of Mr. Gordon and we put it in what I -- in what I think is its proper posture.

If a -- if a man passed citizenship to his wife by the fact of the Act of 1854, then there was actually no necessity for the Act to 1855.

But if we had a man passing his nationality to his wife, then we had a child who was a citizen of the United States and that wipes out the requirement of the five years residence by the father.

Actually, the incongruity of the two of them is -- is obvious from that posture as well as from what Mr. Gordon urges as an incongruity in the subsistence of both statutes only in the inverse rather than in the way I suggest.

I want to get to this 1907 argument, the termination quite particularly.

Mr. Gordon does not seem to credit the Guest case where a -- a document, a contract between the two parties that one of them would have custody of the child was sufficient.

There was no termination of that marriage, there was a -- a contractual arrangement between the parties.

Also, Mr. -- the Attorney General, Mr. Mitchell, it was his expression that we must remember that custody isn't permanent despite the fact that Mr. Gordon's argument is that he would never made the -- the contention that are -- he would never have followed this decision unless custody were permanent.

But Mr. Mitchell himself said, “We must recognize the custody is not always necessarily permanent.

And as a matter of fact, there are cases where the father was given legal custody and the child still took the nationality of his mother.

We -- in the 1934 Act though, we must remember that no termination was required.

Mr. Gordon concedes the Black and -- Black decision.

He concedes the opinion of Mr. Mitchell in Cole-Picard and if no termination was required under the 1934 Act, then the declaration of Kelly -- Kelly versus -- the aspect in which Kelly versus Owen was decided by this Court would make Mr. Montana a citizen.

I -- I think there is -- I -- I think and I have urged in -- on the Seventh Circuit as well as this Court that the suggestion of Mr. Gordon that Mrs. Montana's testimony wasn't credible.

That Mrs. Montana's testimony was not to be believed at this -- at the appeal level because she was an interested witness, does not find any basis in the record and what he asked this Court to do is to make a finding of fact.

I have set out in my reply brief every utterance of the Court relative to his acceptance of that testimony.

There is nothing to indicate any incongruity on the part of the trial judge.

There is nothing to indicate that he discounted her testimony because of what was obviously be an interested of a mother.

The -- the question of his refusal of the passport for a time has had I think a -- a reasonable corollary in the many cases that were before this Court and other courts of the United States where a foreign-born child of American citizens had tried to come into the this country by the time they reached their 16th birthday in order that they might complete their five years residence while they were still minors.

That has been consistently found to estop the Government from raising the manner of not conforming to that that five year requirement.

Though the children were no in here at the time and the statute required five years residence before they attain their majority, the fact that the American Consul had held up there passports was determined to be no impediment to their citizenship.

Mr. Chief Justice referred to the certificate -- certificate of arrival.

I think it is a reasonable inference from the record that this -- certificate of -- of arrival was founded on some determination that the certificate of arrival was actually a official document by an official officer of the United States Government and should be given some credit in that regard.

Justice Felix Frankfurter: Would you mind --

Ms Anna R. Lavin: Excuse me sir.

Justice Felix Frankfurter: -- telling me -- just to my -- I ought to know but I don't.

Does every alien -- does everybody who come here -- in here get a certificate on arrival?

Ms Anna R. Lavin: I -- I -- (Voice Overlap) there is a record made at their entry but whether the -- the nature of --

Justice Felix Frankfurter: But there is on the ship's manifest, but is there a separate document, call it certificate of arrival?

Ms Anna R. Lavin: I don't know.

Justice Felix Frankfurter: I'm just curious.

I thought I mentioned to you --

Ms Anna R. Lavin: I -- I'm sorry, sir.

I don't know then.

I'm sure Mr. Gordon would be in a better position to answer than I -- I am.

I do know that this document that we have in the record --

Justice Felix Frankfurter: Where is it?

Ms Anna R. Lavin: -- was a -- It's in the --

Chief Justice Earl Warren: 37.

Justice Felix Frankfurter: 37.

Chief Justice Earl Warren: 37 of the transfer brief.

Ms Anna R. Lavin: 37 -- was obtained by means of production of documents from the Government in this -- when if their officials filed it.

Justice Felix Frankfurter: May I ask Mr. Gordon, is that given to the entrance, anybody comes here and gets it?

Rebuttal of Charles Gordon

Mr. Charles Gordon: No, sir.

At -- at this time, there is some document which is given.

At the time of the arrival of Mr. Montana with a child, the only thing that was done was -- a record was made by the immigration authorities based on the manifest.

Justice Felix Frankfurter: Yes. (Inaudible)

Mr. Charles Gordon: But the -- no document was handed for them.

Justice Felix Frankfurter: But they --

Mr. Charles Gordon: At the present time there isn't.

They -- a registration, any registration for it which is an evidence of lawful admission, no such (Voice Overlap) --

Justice Felix Frankfurter: What about a citizen?

Mr. Charles Gordon: A citizen gets no document.

Justice Felix Frankfurter: He didn't get his documents.

Mr. Charles Gordon: No, there‘s merely a record made --

Justice Felix Frankfurter: He never did.

He never did, did he?

Mr. Charles Gordon: No, just a record made of his arrival as of everybody who --

Justice Felix Frankfurter: Well, arises stronger certificate of -- what is this called?

Rebuttal of Anna R. Lavin

Ms Anna R. Lavin: Certification of arrival --

Chief Justice Earl Warren: Verification or --

Rebuttal of Charles Gordon

Mr. Charles Gordon: This -- this is not the actual certificate at that time.

This is a transcript of the original record which was made on a document, reviewed at the present time.

Chief Justice Earl Warren: You mean --

Mr. Charles Gordon: That is not --

Justice Felix Frankfurter: This an entry on the books of so called -- of the immigration the citizen?

Mr. Charles Gordon: That is right.

But this -- this is a transcript of that document.

Justice Felix Frankfurter: Yes.

But neither, he didn't enclose that they're here you take this on whatever wrong with your automobile lies.

Mr. Charles Gordon: No, no sir.

Rebuttal of Anna R. Lavin

Ms Anna R. Lavin: Thank you.

Featured:

Mackey v. Mendoza-Martinez - Oral Argument, Part 1

Thu, 29 Nov 2012 22:23:16 +0000

Case:

Mackey v. Mendoza-Martinez

Media File:

29_19591110-argument-1

Related Transcript:

29_19591110-argument-1

Transcript:

Argument of Oscar H. Davis

Chief Justice Earl Warren: Number 29, Mackey, Commissioner of Immigration and Naturalization Service versus Francisco Mendoza-Martinez.

Mr. Davis.

Mr. Oscar H. Davis: Mr. Chief Justice, may it please the Court.

This declaratory judgment action is here on direct appeal from the Federal District Court for the Southern District of California.

It comes to this Court on direct appeal under 28 U.S.C., United States Code 1252 which provides for a direct appeal in a civil proceeding involving the Government when a District Court has held invalid a statute of Congress, and the statute of Congress which the District Court here invalidated is Section 401 (j) of the Nationality Act of 1940, providing for loss of nationality by an American who has gone abroad to evade the draft.

Both the issue and the case have been here before.

The case was here at the same time as the expatriation cases which were decided two terms ago and was remanded to the District Court in the light of one of those cases, then decided.

The issue itself was involved as presented by the parties in the Perez case, but was not decided by the Court.

The only issue in this case, as it comes to this Court, is the validity of the statute.

There are no questions of fact involved, as I shall point out, they were stipulated below.

So the only issue is the issue of the validity of the statute.

As I shall also point out a little more in detail later, this particular section of the Nationality Act of 1944, though it was before the Court two terms ago, was not passed upon by the Court and therefore, the issue is now open for the Court to decide.

I should also mention at this point I think that this involves the Nationality Act of 1940 which has since of course been superseded by the Immigration and Nationality Act of 1952 as a comparable provision in -- in the later Act, but it -- it contains somewhat different provisions and so I -- I'd want to say that what we have here is the Section 401 (j) of the Nationality Act of 1940.

The facts were undisputed and were stipulated in the court below.

The appellee was born in the United States in 1922 and of course was an American citizen at birth.

He was also at birth and has at all time since been a citizen of the Republic of Mexico.

It is agreed that in 19 --

Chief Justice Earl Warren: From birth?

Mr. Oscar H. Davis: Pardon me?

Chief Justice Earl Warren: From birth?

Mr. Oscar H. Davis: From birth.

Apparently, because his parents were American nationals, that is not in the record but I assume that's so.

After the Selective Service Act was passed, he registered for it, but before he was called to service, I believe, in 1942, he went to Mexico.

Now, he has stipulated that the sole purpose of his going to Mexico was to evade the draft and he has stipulated that the sole purpose of his remaining in Mexico, which was until November 1, 1946 was to avoid the draft.

Justice Potter Stewart: Does the record show how old he was when he --

Mr. Oscar H. Davis: Since he was born in -- in 1922 and he went to Mexico in 1942, he was 20 at the time.

He remained in Mexico for four years until November 1946, after the close of hostilities in the -- in World War II.

On his -- he then returned to this country.

He was then -- charges were then brought against him for draft evasion in California, he pleaded guilty, was sentenced to a year and a day which I believed he has served.

The Immigration Service then brought deportation proceedings against him on the ground that he had expatriated himself under Section 401 (j) by going to and remaining in Mexico for the purpose of evading the draft and an order of deportation --

Justice Potter Stewart: You say that he had expatriated himself, are you suggesting that this amounted to renunciation by him?

Mr. Oscar H. Davis: Not in the sense that he consciously did renounce.

All I mean by that is he voluntarily went to Mexico for the purpose of -- of evading the draft.

That is a stipulated fact which no one disagrees.

Justice Potter Stewart: It is possible of course to renounce the citizenship.

Mr. Oscar H. Davis: Yes.

Justice Potter Stewart: Is it possible for somebody under 21 to do it?

Mr. Oscar H. Davis: Under the Nationality Act of 1940 it says, you can renounce from the year -- age 18 up.

Justice Potter Stewart: 18 up.

Mr. Oscar H. Davis: I'd like to point out at this moment, Mr. Justice Stewart that I don't think the issue of his age is in the case at all.

First, that it wasn't raised and second, because the Section 401 (j) was only passed in September 1944.

And the -- it was his remaining abroad after that time which constituted his expatriation and by that time he was 21.

So, in this case, in a previous case, there was that issue involved but in this case there is no such issue.

He -- as I was saying, the deportation proceeding was brought against him and an order of deportation was issued.

Apparently, he then left voluntary to return to Mexico under that order of deportation.

Sometime in 1952, he returned to the United States, apparently claiming to be an American citizen and after his return in 1952, another deportation proceeding was brought against him in 1953 and he was again ordered deported and it was ordered -- the order of deportation was upheld by the Board of Immigration Appeals.

It was then that he brought the present declaratory judgment action, to have himself declared an American citizen and of course, if he prevails in that -- in this suit, the deportation order will necessarily be invalidated because he will not be an alien and therefore not subject to deportation.

Two terms ago, the Court handed down two decisions in the Perez and Trop cases.

Before I begin to discuss Section 401 (j), I'd like, if I may, to give a summary of what in our view those two cases decided and what is the present background of the -- of existing law and expatriation as I stand here to argue this case.

The Perez case as the Court remembers involves Section 401 (e) of the 1940 Nationality Act, the foreign voting provision and the opinion of the Court which was very majority of the Court, we think decided the following propositions.

We think, the Court, the majority of the Court decided, that Congress did have the power to denationalize American citizens in appropriate cases.

And it rejected the notion that such denationalization can only follow upon a voluntary renunciation by the citizen himself.

Second, we think the Court decided, in our view and in the Court's view affirming or conforming what had previously been decided in Mackenzie against Hare and in the Savorgnan case decided that in a subjective intent to give up ones nationality was not a prerequisite and therefore, was not required to validate denationalization.

And third, we think the Court decided that the general standard for determining the validity of an expatriation statute of Congress was the rational connection of the denationalization with a granted power of Congress and that case, as decided by the Court, it was the Foreign Affairs power and we think the Court recognized that due deference has to be given to the judgment of Congress at the same time that due deference is paid to the cherished status of American citizenship.

Now, the Court also had before it, the second case, the Trop Case as to which there was no opinion for the majority of the Court.

As we read it, the Section 401 (g) was invalidated by a majority of the members of the Court as improper punishment.

The four justices who joined in the Chief Justice's opinion, we think held that in the circumstances there where Trop, the petitioner in that case did not have a second citizenship, he was not a dual national that the consequence of statelessness which would be vested upon him by the denationalization provision of Congress constituted cruel and unusual punishment.

As we read Justice Brennan's concurring opinion in substance, he -- he was of the view that the punishment of denationalization was too drastic a penalty for the objectives to be gained, sought to be gained by Congress.

Justice Potter Stewart: Didn't -- didn't four justices in Trop expressed the view that Congress was without power to deprive anybody of a citizenship because the way citizenship is defined in the Fourteenth Amendment?

Mr. Oscar H. Davis: We don't read it that way, Mr. Justice Stewart.

Justice Potter Stewart: Perhaps, I better (Inaudible) instead of you but I --

Mr. Oscar H. Davis: I will -- I will explain --

Justice Potter Stewart: But I've done that, I've --

Mr. Oscar H. Davis: Yes.

As we -- we read -- as we see the situation, Mr. Justice Stewart, was this.

Mr. Justice Whittaker who did not join in the decision of the Court in the Perez Case, the voting case, in his memorandum there, said that he did agree with the general principle that was adopted in the Perez Case than in appropriate cases, Congress did have the power to denationalize citizen -- citizens, regardless of his voluntary desire to be denationalized.

As I read the section of the Chief Justice's opinion in the Trop case, he is speaking for himself and the two colleagues who joined him in dissent and in Perez but not Mr. Justice Whittaker who had made his views on the general subject of plans.

So that I think that the law as I stand here today is the -- the Perez case, the decision of the Court in the Perez case and I think the Chief Justice if I may say so recognized in his opinion in the Trop case that that was so because he says the majority of the Court has taken another view and I will attempt to get -- I will give the reasons why in our view that section, Section 401 (g), the desertion section was invalid even under the view of the majority in -- in the Perez.

Justice Potter Stewart: And at that section the opinion that --

Mr. Oscar H. Davis: That I think that I may fairly be said is the one in which Justice Whittaker joined with the other three justices and Justice Brennan had of course his own opinion.

The burden of my argument of course will be to try to show the Court that there are differences between 401 (g), the desertion section which was involved in the Trop case and 401 (j) the draft evasion section which I haven't in the case which is before Your Honors now.

They both have a common source.

It is true that both of these provisions find their common progenitor in the 1865 statute of the Civil War Congress which provided for loss of the rights of citizenship by deserters and those who went beyond the district having enrolled in the draft.

We have always maintained and for the benefit of the members of the Court who were not, Mr. Justice Stewart, who was not a member of the Court at the time of the Perez case, in the appendix to our brief, we have set forth the parts of our briefs in the Perez and Trop cases in which we tried to show that the 1865 statute was a true loss of nationality Statute and not merely a forfeiture of franchise right.

I don't know if that's too decisive, but I thought that -- we have maintained that we think that this is supported by the Congressional treatment of the statute by the administrative treatment and by certain Court decisions.

But the -- the factors in which the 1865 statute is different from the later statute, both the desertion statute which is before the Court in Trop and the draft evasion statute which is before the Court in the present time are these.

Under the 1865 statute, a court-martial conviction was required, that is the statute as interpreted by the Court required a court-martial conviction.

And second, it was not necessary to leave the country in order to have invoked the provisions of the 1865 statute either as to desertion or as to draft evasion.

The provision that's draft evasion in the 1865 statute merely provided for loss of the rights of citizenship if you left the district where you were enrolled, not if you left the country.

And, I shall try to point out to the Court that in our view, the leaving of the country is a very decisive factor and a very different factor from what was the Congress had in the earlier statute.

Well, this 1865 statute continues in effect, in 1912 it was modified to apply -- to apply -- only to peace time desertion.

Of course since there was no draft after the civil war.

There was no effectiveness of the draft evasion provision until World War II and it was considered to be in effect in World War II.

It was repealed in 1940 when Congress passed the General Nationality Act and recodified the whole matter.

As far as I can determine, there is no reference anywhere to why it was repealed.

I think the true answer probably is that the draft evasion at that -- when the Cabinet Committee and the Congressional Committees were considering the problem of loss of nationality for the new code, there was no Draft Act in effect.

It only went in to effect in October 1940 and so, they didn't think it necessary to continue the draft evasion part of the earlier statute.

They did continue the desertion provision in Section 401 (g) which is here in Trop.

But Congress did come along as the Court remembers very quickly in the Spring -- in the Fall of 1940 and passed a new Selective Service Act.

And I think though that Act was in a sense going through Congress simultaneously, it was too new and too quick a change to make anybody think of making a change in the draft evasion provisions.

Well, at any rate they didn't --

Justice Hugo L. Black: The measures of before different committees --

Mr. Oscar H. Davis: They were before different committees actually and so it was not until 1944, that suggestion was made that a provision providing for expatriation for denationalization for going beyond the country to evade the draft was suggested to Congress and enacted.

The Attorney General made the suggestion in 1944 and it was unanimously recommended by the appropriate committees of both houses and passed by both houses with very short debate.

It was made very clear in the legislative history at that time that they were to be in a sense these two differences from the earlier Civil War Statute that is no criminal or court martial conviction was to be required for draft evasion.

Congress thought that there would be many people who would never return to the country and therefore there would be no possibility of having a criminal conviction.

It was made quite clear on the floor of the House and at least that they didn't want these people whom they felt had lost the right to be American citizens to come back to the country.

But they did want them to have the right of Court review and so they provided for a Court review under Section 503 of the Nationality Act which is the general provision of that statute providing for a Court review of a claim of American citizenship in which there is de novo determination of the facts by the District Courts.

Justice Potter Stewart: No right to a jury trial is there?

Mr. Oscar H. Davis: No right to a jury trial, Mr. Justice Stewart.

It's an equity proceeding, preparatory judgment.

We think that there are three --

Justice Felix Frankfurter: That has been traditionally the two of denationalization proceedings, right?

Mr. Oscar H. Davis: Yes, denatural --

Justice Felix Frankfurter: (Inaudible) I'm not talking about --

Mr. Oscar H. Davis: Yes.

It has been traditionally true of denaturalization proceedings and also of -- of all types of proceedings involving issues as to nationality even those prior to the 1940 statute were under the decision of the Court in Yun Fang Ho, it was said that there could be a right to de novo review.

There has never been a jury trial in any of those.

Justice William J. Brennan: Mr. Davis, well, I gather that the fact I gather from this fellow had been convicted was he not of (Inaudible)

Mr. Oscar H. Davis: Yes, sir.

He was the --

Justice William J. Brennan: But that -- that's not significant to your argument, then I gather?

Mr. Oscar H. Davis: It may be significant on some alternative arguments.

It is not significant -- it is not basically significant to my -- my primary arguments.

Justice William J. Brennan: Yes.

Mr. Oscar H. Davis: We think that there are three heads of jurisdiction that Congress had in order to pass this particular provision of the 1940 statute.

I'll state if I may in summary form first.

The relationship to foreign affairs second the inherent right of a nation to declare to denationalize a citizen who puts himself entirely beyond the reach of the authority of the country as this man did by going to beyond the country where our processes could not reach him, even extradition as I point out could not reach him.

He in a sense deprived not only the particular draft law that he was accused of and later convicted of -- of disobeying but he defied all power of the authority -- of the country to be able to reach him, to compel him to perform his duty.

And the third head of jurisdiction are the war powers which we think also authorized Congress to pass this particular statute.

Chief Justice Earl Warren: Under that theory you've just announced, could you do the same if a man fled the country after committing any crime?

Mr. Oscar H. Davis: In my view Mr. Chief Justice, yes.

That is, if not if he fled the country to a place from which he could be extradited.

The theory which in it is -- I'll try to develop a little later, the theory is, that if you put yourself wholly beyond the reach of the United States in a sense that if you don't say as some people have said, I won't do what you want me to do I'll disobey your laws, but then you can do with me what you will that is you can impose punishment on me I will fight it but at least I will submit to the jurisdiction of the United States to the judicial authority, that's one thing.

But, if a man goes wholly beyond the United States to a place where he can't be reached even by extradition, then, we think it's a wholly different thing because then we think the individual has in a sense if I may say so, broken the ultimate compact between the citizen and the country which is that the citizen will at least agree to submit himself to the ultimate authority of the country.

He may not agree to obey its laws and he may not agree to do anything, but he will at least agree that he is subject to its jurisdiction and authority.

Chief Justice Earl Warren: I suppose there are many countries where we have no treaty to permit extradition in taxation cases.

Did the -- did the Congress say that a man who flees to another country to avoid paying his taxes to this Government loses citizenship?

Mr. Oscar H. Davis: I would say that -- I don't have to go as further in my --

Chief Justice Earl Warren: But you -- you've just gone that way, why don't you go?

Mr. Oscar H. Davis: No, no I --

Chief Justice Earl Warren: Why don't you --

Mr. Oscar H. Davis: No, Mr. Chief Justice.

I don't have to go any further in my argument than to say that the man flees to a county from which he cannot be reached either by a form of extradition treaty or by the handing over of the State.

The reason I made that qualification is I thought you said there were some countries that didn't have an extradition treaty but might hand them over anyway.

Chief Justice Earl Warren: No, I didn't say that they might hand them over.

I just said they didn't have an extradition treaty and if -- if Congress could then in your opinion deprive the man of his citizenship in this country where he was born for leaving the country for the purpose of evading taxes.

Mr. Oscar H. Davis: I think they can't deprive him for the purpose of evading taxes unless he goes to a place where he cannot be reached, where he defies the authority of the country and I gather support for that Mr. Chief Justice not only from the what might be called the ultimate relationship of the citizens of the country that the citizen has some ultimate obligation.

The ultimate obligation is to submit to the authority of the country.

But I -- I derive some support from that -- even from the wording of the Fourteenth Amendment which says that persons born or naturalized in the United States are citizens thereof and it says born or naturalized and subject to the jurisdiction of the United States and subject to the jurisdiction of the United States.

I think implicit in that notion is the fact that the American citizen does not put himself beyond the jurisdiction of the United States so that we can't reach him in any way.

I don't mean just by going abroad but we can't reach him even through our international treaties or through diplomatic negotiations.

That we can't reach him really short of going to war with the place to which he has gone.

Chief Justice Earl Warren: Well, if you use the Fourteenth Amendment for that purpose, wouldn't any person whether he committed a crime or not who went to a country with which we had no extradition treaty or any way of bringing him back forfeit his citizenship whether he commits a crime or not.

It wouldn't be under the jurisdiction of --

Mr. Oscar H. Davis: No.

I'm not -- I'm not saying that the Fourteenth Amendment that -- that -- the Fourteenth Amendment requires that people lose their American citizenship.

I'm saying that implicit in it is the possibility that Congress can take the position that if a man puts himself outside the jurisdiction of the United States then he shall and the United States wants him.

Of course if the United States doesn't want him, and they say it's perfectly all right to go to -- to Grass Stock or Lichtenstein or wherever you wish then -- and you may stay there but the point I'm trying to make Mr. Chief Justice is that the United States wants him and says we want you to come back to perform a certain duty and he says, “No, I will not and I'm putting myself in a place where you cannot reach me” then we think that that is permissible both under the principles of the Perez case and in the implicit assumptions of the Fourteenth Amendment that he can be, that Congress can provide for denationalization of such a person.

Chief Justice Earl Warren: And that's whether he has committed any wrong before he left to go to that place or not?

Mr. Oscar H. Davis: If -- if Congress wanted him back for some purpose.

Chief Justice Earl Warren: Yes.

Mr. Oscar H. Davis: That is if they said, we want all citizens to come back for military training, yes.

I would also say, I would take that position Mr. Chief Justice but I would also say, that I'm not required to take that position in this case where the obligation which he refused to fulfill has been termed -- called by this Court the supreme, the ultimate obligation of a citizen that is of military service in many cases.

And so, all I'm required to take for this case is the position that if a citizen goes abroad to evade that ultimate obligation, to a place where he cannot be reached then Congress can constitutionally provide for his loss of nationality.

Justice Felix Frankfurter: But he doesn't have to do anything wrong if he just stays abroad long enough?

Mr. Oscar H. Davis: Yes.

I think Congress can constitutionally provide that American citizens who remain abroad for a prolonged period of time.

This is a provision of the statute with relation of naturalized citizens today and many other countries have of similar provision with relation to both native born and naturalized citizens if they live abroad for a prolonged period of time without returning to the country.

Justice Potter Stewart: There are laws in good many of the States, aren't there canceling a good many rights of citizenship in the case of a convicted felon?

Mr. Oscar H. Davis: Yes.

Justice Potter Stewart: Are there any -- any State laws or that couldn't be of course that -- that purport to deprive a person of this United States citizenship?

Mr. Oscar H. Davis: Well, I know of none and I've seen no reference to it.

Justice Potter Stewart: Are there any that purport to completely deprive him of his citizenship in -- in that State or out that State?

Mr. Oscar H. Davis: I don't know of any, Mr. Justice Stewart, but I haven't made a search.

Justice Potter Stewart: They -- they --

Mr. Oscar H. Davis: I've not seen any references.

Justice Potter Stewart: Typically, they -- they deprive him of a right to vote.

Mr. Oscar H. Davis: Right to vote.

Justice Potter Stewart: And to serve on juries.

Mr. Oscar H. Davis: Yes and other -- other rights -- a labeled rights to the citizenship, yes.

There are many such and of course the federal criminal code has similar provisions for people convicted of federal criminal crime -- federal crimes.

Justice Potter Stewart: What and what do those --

Mr. Oscar H. Davis: Loss of right to hold public office for instance.

That's a -- a -- provision which appears several times in the 18 United States Code.

Justice Potter Stewart: Not as a generality but --

Mr. Oscar H. Davis: No, with relations to specific crimes.

Justice Potter Stewart: With relations to specific offenses.

Mr. Oscar H. Davis: That's right.

In addition to the -- to the general proposition which I -- I've just been discussing it in colloquy with the Chief Justice, we think that the foreign affairs power does give sanction to this Statute which Congress enacted in 1940 and it's clear that foreign affairs can be involved because the citizen, the statute doesn't come into effect unless the citizen goes abroad.

When he goes abroad to another country, to Mexico as in this case, there is involved another country.

The United States which is the country of his nationality has double interest.

It has an interest in seeing that he returns if possible to serve his -- his Country in the Armed Forces as is required to do and it also has another we think interest that is it has an interest in saying that a particular country nearby whether it will be Mexico or some other country does not become a center of refuge or disaffection for a large number of draft evaders that we think is a -- a responsible interest which the United States can have.

Now, since the draft evader is in another country, the United States can call upon the other Country to deliver him up and say, we want you Mexico or what other country to send Mr. Mendoza-Martinez back to this Country.

And that is a possibility of embroilment there or the United States can get in touch with the draft evader individually, questionably and say we want you to return back.

Now, he may then turn to the country where he is because the country where he is a country of his present residence and he can call upon them at least for a certain measure of protection and he can turn to Mexico and say, I don't want to go back to the United States, you help me to stay here I don't want to go back and serve in the army.

I shall try to point out later that of course all these possibilities are heightened when he is a national of the country of – of play as he was in this case, but I'm speaking now of a situation where he is not a national of the country at play.

He is just an alien resident in Mexico and I'm trying to point out the possibilities of international embroilment which can occur just from this situation.

Now, this is not a passable possibility we think.

The 19th Century history of the relationship of the United States with Great Britain and France and Germany and Austria does show the difficulties that can arise when a country which has conscription as Great Britain, France, Austria and Germany did in the 19th Century and wants to enforce conscription, the difficulties that can arise when that country reaches over to another country and says, “You have a national of our country living in your territory, we want him back.”

The pages of Morris Digest of -- in national law and other books are filled with -- with diplomatic negotiations between this country and other countries with respect to claim of the foreign countries to have their citizens or people they regarded as their citizens, return to that country for the purpose of observing in the armies.

Now, this possibility can arise in the future.

It is certainly not beyond possibility that certain countries here and near this United States or faraway could become centers of draft evasion or disaffection and it -- in a situation it might become very important for the United States to be able to secure as large an amount of manpower as possible for the army and it would in a situation like that make a request to these countries saying, don't -- don't accept Americans who come to your country for this purpose.

Send them back or refuse them at the borders.

Our opponents say, well, the United States of course isn't required to make a request to the other country, it isn't required to create an international embroilment but of course you don't judge these issues and you don't test them by whether it's the other country which first raises the issue or whether it is we who raised the issue.

Extradition matters are matters of foreign affairs, but we are always the one who is asking the other country to send back, when we're asking to extradite somebody, send back the alleged criminal from the other country or when an American is mistreated abroad, it's this country which raises with the other country the issue of the American being mistreated abroad.

So, I don't think that there's any substance in the argument that the United States, even though its thought that another country was becoming too large a center of -- too large a refuge or sanctuary for draft evaders should, shall we say forestall any international complications by refusing to -- to draw the matter to the attention of the other country.

It is in the realm of foreign of affairs and it's a matter which the United States can appropriately take up with the other country as the whole history of the 19th Century indicates.

Justice John M. Harlan: Are there any figures as to how many people have been denied under the statute.

Mr. Oscar H. Davis: Mr. Justice Harlan, at page 31 of our brief is a Footnote which summarizes a table which was appended to the Government's brief in the Perez case and it gives the total.

The total is about 1000 full of period from 1948 to 1959.

Now, I would point out to you that this is only an administrative determination that is the Commission of Immigration and the State Department, the matter comes to their attention makes a determination which is not of course binding on the individual as to whether or not he has been expatriated.

Many of these have not sought to bring Court actions, but many of them had and these figures here relate only to the administrative figure so you can't definitively say that that number of people have been expatriated though I suppose many of them has accepted the administrative determination of it in that sort of Court action.

Justice William J. Brennan: Mr. Davis, one thing that's puzzles me about this last argument is this statute cuts them lose in America as soon as you go to the other country does.

Mr. Oscar H. Davis: Yes, that's right.

Justice William J. Brennan: I would suppose that would mean we wouldn't want them back.

Mr. Oscar H. Davis: Well, -- what I'm -- Yes I think that as soon as that --

Justice William J. Brennan: Now, I don't quite understand how this can play over this (Inaudible)

Mr. Oscar H. Davis: No I don't think that --

Justice William J. Brennan: I should think they would be mad that we're casting loose Americans that we don't want.

Mr. Oscar H. Davis: What -- what I was trying to argue Mr. Justice Brennan, I did not make it clear enough was that there is this possibility of foreign affairs involvement here as there was with relation to voting in the Perez case and that Congress could decide --

Justice William J. Brennan: Well, now where -- where -- where does that lie? Where is the possibility of foreign embroilment?

Mr. Oscar H. Davis: That is suppose Congress did not pass the statute, suppose Congress did what the opponents say they should have done and that is increased criminal penalties on people who went abroad then you would have pressure on the United States to go and get these people.

And what I'm saying is that Congress chose to root here which it chose in the Perez Case to say, we cut them loose.

We will no longer be interested in that, and that will minimize the possibilities of foreign embroilment and then --

Justice William J. Brennan: As for the other nation get little upset that we didn't do something to bring him back.

Mr. Oscar H. Davis: Well, the other --

Justice William J. Brennan: He may not (Inaudible)

Mr. Oscar H. Davis: -- nation always has the power to exclude them from its borders.

It has that power as a sovereign nation.

And -- and I think you're right, I didn't make it clear and I -- I want to take this opportunity to make clear that the purpose of the statute is to minimize and -- and limit the possibilities of foreign embroilment which could occur if the other methods of handling the problem of draft evasion by flight were adapted which had been suggested by our opponents and by others.

Justice Potter Stewart: This isn't a very efficient way to raise an army though, is it?

Mr. Oscar H. Davis: No.

It isn't an efficient way to raise an army but the -- debates make it clear that Congress thought that there's nothing like -- that -- that these people were gone and you might as well cut them loose.

They said that they weren't worthy of being American citizens, we didn't want them back.

And though I will make the argument later that -- that the one support for this statute is in war powers of Congress that is it does have certain inducing effects on -- deterring effects on an individual.

I think that the -- the major purpose as revealed by the debates was not so much that as the -- the cutting off of these individuals who had in either Congress refuse to comply with the highest obligation of the citizen.

Before the recess, if I might, I would like to call attention to the --the emphasis which all these problems that I've been talking about bear when the evaders is a dual national as he is in this case because of course then he can call upon the country where he is residing not only as a resident but as a citizen and -- and say, “I'm a Mexican, I don't want to go and fight for the United States.”

And of course that country, the country of the evasion, has an interest in protecting its citizens which is somewhat greater than in protecting its resident.

Now, these two isn't fanciful because in the first of these cases in this Court the Gonzales Case about three terms ago, which went off on the ground of burden of proof, Gonzales did make the argument at an executive agreement between Mexico and the Unites States freed him from all service in the United States.

And so, it isn't fanciful to say that a dual national who is in another country will argue that he -- that he isn't required to come to this country to perform a service.

Justice Felix Frankfurter: That factor can hardly be taken into account down the validity of the statute unless you argue that the statute is to be cut down to a dual nationality case before the Court.

Mr. Oscar H. Davis: No, sir.

But I think it has a -- a bearing in two respect.

One is that the history is very clear and the actual history under the statute is clear that it has -- it's had its major impact on dual nationals.

Every case that we have found where anyone has been expatriated appears to have been a dual national probably of Mexico and the United States.

Justice Felix Frankfurter: If that's so, you put it the other way around.

The existence of dual national as potential people who rid themselves with obligations to this country might well have been inducing cause of the legislation.

Mr. Oscar H. Davis: That was second argument, Mr. --

Justice Felix Frankfurter: All right.

Mr. Oscar H. Davis: -- Justice Frankfurter that it was an inducing cause.

This becomes clear from the -- from the letters which the Attorney general sent to the Senate Committees as well as from the debates that there -- it was clear that they were talking mostly about people who went to Mexico and there was a specific reference to the fact that these -- these were Mexican nationals too.

So, I rest on both grounds, Mr. Justice.

If necessary, I would also rest of course on a ground of separability that the case before the Court involves a dual national and that Separability Clause of the 1940 Act would separate out any other non-valid application of the statute.

We think also that -- that -- on -- on this matter of flight abroad that it does, particularly where the individual is a dual national, it does show in -- in reference to what the Court said in the Perez case about a choice of allegiance.

That it does show a choice on the part of this man for the protection of Mexico, his other nationality rather than the responsibilities of -- or the obligations of his American citizenship.

Chief Justice Earl Warren: We'll recess now.

Featured:

Mackey v. Mendoza-Martinez - Oral Argument, Part 2

Thu, 29 Nov 2012 22:23:16 +0000

Case:

Mackey v. Mendoza-Martinez

Media File:

29_19591110-argument-2

Related Transcript:

29_19591110-argument-2

Transcript:

Argument of Oscar H. Davis

Chief Justice Earl Warren: Mr. Davis, you may proceed.

Mr. Oscar H. Davis: Mr. Chief Justice and may it please the Court.

Those who seek to invalidate this statute Section 401 (j) characterize it as punishment and of course, they rest upon the decision of the Court in the Trop case in which that statute the desertion section was characterized as punishment and held to be invalid.

We think that this is different at least as presently applied to this particular individual in various respects.

First, the opinion of the Chief Justice for the four Justices in Trop rested we think primarily on the fact as I mentioned before that the result of expatriation or denationalization in that sense would be statelessness and the discussion is in terms of statelessness.

That of course would not be the result here because this particular appellee is a national of Mexico and would remain a national of Mexico and as I indicated before lunch that that is not a freak situation.

That appears to be, I can't speak statistically because we don't know, it appears to be the majority situation or at least a very substantial situation with respect to all the cases which have come up or most of the cases which have come up both judicially and administratively under Section 401 (j).

And as I also mentioned in answer to a query from Justice Frankfurter immediately before the recess, if necessary, we would of course say that the statute can be separably -- separately upheld as to dual nationals.

We don't of course concede that it would be unconstitutional as to people who are not dual nationals, but we do have that extra argument as to a person like this appellee who is a dual national and as I mentioned before, apparently, a large percentage of people affected by this statute fall in to the same category of dual nationals.

Then, secondly, with reference to the opinion of Mr. Justice Brennan in the Trop case, we think that there are these distinctions.

There's the foreign affairs matter which of course was not present in the -- in the Trop case because desertion could occur in this country and expatriation could occur right in this country as was pointed out.

There is not of course also the factor of the total repudiation of all authority of this country by going to someplace where the hand of the country would not reach him.

There is -- of course also not the fact of dual nationality which I just mentioned, but in addition to those factors, there are three other factors that I think I should mention.

One is, Mr. Justice Brennan, you pointed in your opinion in the Trop case that desertion need not always be serious.

That there might be desertions from army training camps in this country and you pointed out various situations in which desertion would not be serious.

I think the same cannot be said here.

I think that fleeing the country to evade the draft is always serious or remaining abroad to evade the draft is always a serious offense against -- against the country.

A second differentiating factor is that in the Trop case, as the Court will recall there was the power of restoration which was in the hands of the military that is the military could restore citizenship so to speak by reenlisting or re-inducting the man and some of the Justices indicated a disagreement with that power in the hands of the military.

That of course does not exist here.

There is no such power in the hands of the military.

And the third other differentiating factor in addition to the general ones of foreign affairs which I've mentioned is that in the Trop case, the denationalization follow from an -- a criminal conviction and I think Mr. Justice Brennan and perhaps some of the other Justices pointed out that the -- whatever deterrent effect might happen, the expatriation would have would be minimal compared to the criminal conviction.

Well here, you don't have to have a criminal conviction.

In fact, the -- the debates reveal and in most cases, Congress thought the people would never return to the country and therefore would never be able to be a proceeded against criminally.

They did indicate that if they did return, there was to be this additional conditional qualification of denationalization.

But I -- making a more broader argument than just the differences between this case and the Trop case, I want to go back if I may to -- to present the argument that this statute, in its inception in 1944 and its place in the 1940 Act was not a penal statute at all in -- in major essence and in major incidence.

The Court -- I won't recall for the Court the legislative history, the 1940 Act because it was quite thoroughly canvassed in the -- in the opinions in the earlier cases, but the Cabinet Committee did say that none of the grounds of denationalization which were presented in that Act were punitive in purpose.

Now, you come to 1944 when this particular Section was added to the -- to the portion of the Nationality Act of 1940 which dealt with loss of nationality to that very portion of the Nationality Act which the Cabinet Committee had said, did not impose any punitive sanctions.

I think perhaps the most important thing which I could say is that Congress of course had the 1865 Civil War Statute.

It deliberate before it, it deliberately made a change.

It did not require any criminal conviction.

It knew that the 1865 Statute has been interpreted as a penal statute as a punitive statute.

It made a change from that statute.

It did not require any -- any criminal conviction at all and I think the reason was as I've already indicated that they expected that lots of these people would not come back to the country.

Now, my -- the opponents will undoubtedly point out that in the debates, there was certain language in which the word penalty or punishment was used and of course, that was true, but I would like to go through the debates and the history to show -- to put these statements in context.

If you will look at the reports of the committees, you will not find any reference to punishment or penalty.

You will find a letter from the Attorney General, Francis Biddle at that time, suggesting this provision and talking in terms of these people not being worthy of citizenship in terms of a qualification or a condition rather than a punishment to be imposed upon certain actions.

Then, and I did not find in reading the -- the reports of the committees any reference to punishment or penalty at all.

Then, we come to the house debates and this bill was first passed in the house.

I think that a fair reading of the house debates would also not reveal any real reference to penalties or punishments.

The major concern of the house was in saying that these people were not worthy of American citizenship.

They should not be allowed to return to this country after they had failed to fulfill their duties.

There was a reference by Congressman Dickstein that he considered these people to be traitors, but I think that was a general colloquial reference rather than a designation of this as a crime or punishment.

Now, you -- I think the real main burden of the -- of the history in the house was in terms of qualification, in terms rather not of punishment, but of qualifications for citizenship.

Then you come to the Senate and it was a very short debate in the Senate and Senator Russell did use the term punishment.

These people are worthy of punishment or a penalty, he did.

I -- I would stress the fact that this was a bill which was unanimously reported and unanimously accepted and then on the basis of a very short debate in -- in the Senate in which the one person who spoke, though he was a Chairman of the committee, he was, a colloquial usage of the term punishment or penalty should not be used to invalidate a statute of Congress.

That when you seek to invalidate a statute of Congress on the ground of unconstitutionality of its invalidly imposing punishment, I think you have to have something more than some words spoken on the floor of the Senate obviously unprepared and extemporaneously in which a word was used which in other context might invalidate the Statute, that is if it were truly punishable.

I have already -- I don't want conceive that if it were punishment it would be invalid because my alternative argument of course would be, that even if it were punishment, the consequence which arose in the Trop case of statelessness would not occur here and therefore you would not have the holding of cruel and unusual punishment that you had in that case, but that's my -- I might call secondary argument.

The broader argument I would make is that the statute does not impose punishment at all and therefore is not to be governed by the provisions of the Eighth Amendment or the other criminal provisions of the Constitution.

Chief Justice Earl Warren: Mr. Davis.

Argument of Thomas R. Davis

Mr. Thomas R. Davis: Mr. Chief Justice and may it please the Court.

At the risk of being a little tedious, it may be useful for us to turn back to the exact terms of the remand since this Court – case is here for the second time.

It was sent back to Judge Jertberg, the sole judge in the northern division of our Southern District in California to reconsider in the light of Trop versus Dulles.

Now, it has been said more than once here this morning and this afternoon and I'm sure the Court is by this time aware that in Trop versus Dulles, the statute that was held unconstitutional was Section 401 (g) of the national -- Nationality Act of 1940.

Section 401 (g) provided that in time of war, a deserter who did desert could lose his citizenship for that Act.

Now, the Court is asked to consider Section 401 (j) which provides that a citizen deserter, a potential soldier who deserts before he's even gotten to the -- to the military service who leaves the United States or remains outside the United States may also lose his citizenship.

And I -- I submit, I hope I do not exhibit temerity by suggesting that if Congress had simply provided for the loss of citizenship in the case of draft evasion, we wouldn't be here.

The key element, the element that causes this to be an issue before this Court is departing or leaving the United States for the purpose of draft evasion.

Now, if this is the case, I suggest to the Court that all of the facets that we have considered and Mr. Davis has eloquently spoken on it can be considered in the light of that single element is departing from or leaving the United States a distinction with or without a difference.

Is it a distinction that should cause this Court to reverse the result in (Inaudible).

The first part considered by the Government in its discussion and I think properly is the Foreign Affairs power.

In considering whether or not this element of departing and remaining outside the United States introduces into this statute a new element which should persuade this Court to hold the statute constitution -- constitutional after having held Section 401 (g) unconstitutional.

In considering that, I suggest that we first again perhaps at the risk of being a little tedious can look directly at the language of the statue itself.

Departing from or remaining outside of the jurisdiction of the United States is the language.

I submit Your Honors, if Congress had truly had in mind the Foreign Affairs power, it never would have employ -- employed such awkward and negative language.

I do not mean to be facetious but it is possible to violate 401 (j) simply by crossing the international boundary in Lake Michigan to avoid a pursuing federal authority.

It's possible to violate it by going to some totally uninhabited land.

If Congress had truly had in mind the Foreign Affairs power when it considered and passed Section 401 (j), I submit that it reasonably could have been expected to use some language like entering in to or remaining in a foreign state or a language which would have that same result.

In both the Mackenzie and Perez cases, there was that -- an element which does not exist here.

The purpose in those two cases was to separate citizens from non-citizens.

No counsel appearing before this or any other Court to my knowledge has suggested any other way in which one could -- the Government reasonably could be expected to have separated -- I'm sorry, to have effectuated the power of the Government to tell who was the citizen.

It has to establish standards.

Therefore in Perez and Mackenzie, there is a unique element.

Congress chose the sole available remedy to it.

In contrast, if we are considering the Foreign Affairs power here, I submit that no such situation obtains with respect to draft evasion.

If the wrongdoer who was in fact a subject to punishment, I submit to the Court that there was available the usual scheme of conventional penal remedies that there is nothing unique in the -- in the fact of expatriation which was particularly necessary to effectuate this congressional purpose.

Therefore, for the first time, Congress has departed from a principle which I submit it has hitherto adhered to and that is let us not take away citizenship unless it is the sole means of accomplishing our purpose.

Now, whether it is penal in this in the technical sense, I will consider with your permission in a moment.

The next question with respect to the Foreign Affairs power is one which was raised by two members of the Court in interrogation on oral argument by the Government and that is how does this coercion actually facilitate the conduct of Foreign Affairs as a practical matter, what does it achieve?

If the United States is having trouble with Mexico, does it really make things any easier for Mexico to take away the citizenship of the people who had used Mexico as a refuge from the Draft Act?

I submit on the contrary, if the Court please, that it has created a problem of some proportions for Mexico.

What is the status of these people who are here?

They may or not be citizens of Mexico.

As I suggested in my brief, they may be named Jones and they may come from Vermont.

Now, what have we done to Mexico to create these stateless wanderers within its boundaries?

How have we facilitated the relationship of our Government with theirs?

And in that same connection, I suggest that there is nothing in the history of the United States in concrete terms that has been suggested to this Court, which even remotely implies that there is any real problem in foreign relations created or potentially available because of the existence draft evaders in a foreign land.

What really is the problem?

Now, counsel in his brief has -- has very ably discussed the early problems of the United States with respect to the impressments of foreign sailors which brought about in part the war of 1812.

What is that something that we are really faced with today as a practical matter?

I think implicitly and I'm putting words in counsel's mouth, but I think implicitly, he admits that the problem doesn't exist.

That in Judge Jertberg words, they are no different than ordinary tourist as far as their practical impact on the Government of Mexico is concerned, but seeing that gap in their argument, the Government hastens to say, but the United States may run in to trouble when it seeks to get these people back.

Now, I have suggested in my brief and I will merely suggest in passing here the fact suggests that the United States is in a position of having to -- to act without volition that it's forced in to a position where it must create problems with the Government of Mexico or whatever Government may be involved, but I suggest --

Justice Felix Frankfurter: In the relation with Mexico have not always been very (Inaudible)

Mr. Thomas R. Davis: No, Your Honor that's true.

There have been difficulties from time to time but I know --

Justice Felix Frankfurter: Not long ago -- not too long ago.

Mr. Thomas R. Davis: True, your Honor in the time of -- of General Pershing in 1912 as recently as that.

Justice Felix Frankfurter: Brings out the (Inaudible)

Mr. Thomas R. Davis: But I suggest that now, those problems are even remotely connectible with the presence of any kind of American Citizen on Mexican soil on a peaceful basis much less specifically the draft evader.

Justice Felix Frankfurter: How do you know that?

You're forecasting the future, aren't you?

Mr. Thomas R. Davis: No, I mean in terms of history Your Honor.

I didn't mean that there would not be, I said that there have not been.

I didn't mean to state it that way.

And so I suggest, if the Court please, that there is no distinction to be made here between this case and the Trop case by virtue of the existence of the provision for departing from or remaining outside of the United States as far as the war power, I'm sorry, as far as the Foreign Affairs' power is concerned.

But we must of course consider whether there is a distinction to be made in terms of the war power.

The Government seems to rest its case in chief on the argument that this is the only effective way to reach the draft evader who has left the country or to state it differently in the terms that I have suggested, departing from and leaving the United States does introduce a new element in to the case, which makes this case distinguishable from Trop because we have here a man who cannot be reached by the ordinary penal remedy.

That seems to be the thrust -- the main thrust the burden of the Governments argument.

I suggest to the Court in the first place that if we descend to the world of practicality and imagine our draft evader in concrete, whether he'd be in Mexico or any other foreign state, if he intends to remain there or if any event -- in any event he has given up any intent whatever of returning to the United States, he isn't going to be in the least impressed with his loss of citizenship.

Why should he care?

He has made a basic decision.

The Government nowhere has pointed that any example of a refugee, a refugee from a federal penal statute who actually went to a foreign agency of the United States and enlisted their aid.

It's true that the Government has pointed to a situation in 1863 where certain persons outside the United States were enlisting the aid of the state department, but the Government very quickly added in candor because it wrote a candid and forthright brief, it added that there was no penal statute which imposed any penalty for draft evasion at that time.

With that single exception, the Government has pointed in no case where anybody, whether they were trying to avoid taxes or that is conviction for taxes or whether they were under a sentence for a murder under a federal statute or whatever the statute might be, no case where such a person in a foreign land has relied on his United States citizenship.

I submit to the Court at the time that -- I beg your pardon, Your Honor.

Justice Felix Frankfurter: None of us that did they say grasping measures against the prisoner didn't take away his citizenship.

Mr. Thomas R. Davis: I'm not familiar with that Your Honor, I'm sorry.

Justice Felix Frankfurter: That the loyalty declared or mediocrity the gentleman that we can see and well the (Inaudible) special statute to impose very heavy consequence not that (Inaudible) can do with that prohibits?

Mr. Thomas R. Davis: But Your Honor, did Mr. Blackmore rely on his United States citizenship in connection with his refuge in Paris, or did he simply rely on his refuge?

Justice Felix Frankfurter: He held him -- held himself from the obligations of citizenship or his right.

Mr. Thomas R. Davis: Yes, it's true.

I -- I have no doubt that that's true in that and other cases.

I was saying that as a practical matter, the time when the refugee is going to begin to rely on his United States citizenship again is the day he decides to return and when he approaches this border and asked again that they admitted in to the United States, he is as subject as he ever was to the conventional penal statutes that are available.

If what I have said is true, the use of expatriation as a coercive force is totally ineffective.

The man who is drawn for good won't care, the man who is coming back and be punished much more drastically and immediately and effectively by conventional penal statutes.

And I wonder also Mr. Chief Justice, if it pleases the Court, how this statute actually did help the war effort?

Taking for a moment the argument of Mr. Justice Brennan in Trop, it was totally ineffective in the case of desertion.

By what magic did it suddenly become of effective in the case of draft evasion?

What is the essential difference in that respect?

How --

Justice Felix Frankfurter: Do you think a misjudgment -- the Congress will make a misjudgment as to the effectiveness of remedy in this proposal?

Mr. Thomas R. Davis: That's true Your Honor, but my argument --

Justice Felix Frankfurter: I'm just saying that every remedy as supposed is constitutionally valid.

All I'm suggesting is that we don't sit here and debate whether Congress is wise or not.

Some of us think that a lot measures are ineffective and self defeat.

Mr. Thomas R. Davis: Your Honor, I'm familiar with your position in that regard and I would say that my --

Justice Felix Frankfurter: (Inaudible) is just mine.

Mr. Thomas R. Davis: -- my argument Mr. Justice goes to the question of the existence of a rational nexus to put it in your terms.

I submit that the thing is so tenuous and remote to use the words of the trial court as to import the absence of a rational nexus.

And if we want them back, if we want these draft evaders back who have escaped to various corners of the world, how are we going to effectuate our purpose by making sure that they're not citizens of the United States anymore and are permanently and for all time beyond our reach.

The purpose, the traditional purpose of the Draft Act has always been to use every persuasive force to bring the offender back in to the fold and indeed as the Government itself points out by way of a footnote I believe on page 26 of its brief under the conventional penal statute as the ordinary offender has a time of redress when he, without severe punishment may still enlist in the armed forces and I submit that this is totally at odds with the purpose of Congress to raise armies, to bring together a vast and cohesive force for the purpose of effectuating the war power.

Justice Charles E. Whittaker: Why do you need power?

Mr. Thomas R. Davis: If there is deterrent, I agree Your Honor.

It is in common only to show that the deterrent does not in fact exist.

Part of my prior argument was directed towards that.

Justice Potter Stewart: Or to show that the deterrent is so harsh that it violates the Constitution I think it's cruel and unusual punishment.

Mr. Thomas R. Davis: That's another duty of mine Your Honor which is separate to consider the penal whether the statute is penal and if it is penal, then to consider the question of due process and of cruel and unusual punishment.

I was for the moment restricting myself to the two powers that we were considering and it brings me to that point Your Honor.

I had not intended in this time allotted to me to deal at length with the question of whether or not the statute is penal.

Four members of this Court speaking through the Chief Justice held that in Trop, the use of -- of expatriation to punish the deserter was a penal statute.

Mr. --

Unknown Speaker: (Inaudible)

Mr. Thomas R. Davis: Yes Your Honor and I would be glad by way of parenthesis to take up that specific question at this point because I do think it has become particularly relevant.

If the Court please, dual nationality and this is a classic case, may or may not be the result of the choice of the individual concerned.

In the case of Mendoza, he was governed by the law of the blood.

If your mother and father were born in Mexico, you are a Mexican.

Mr. Mendoza never had a chance to decide whether he wanted to be a citizen of Mexico or not.

There is nothing in this record or in the stipulations to show that he ever evidenced voluntarily a desire to be a citizen of Mexico and I suggest to the Court that it would be within the power of any foreign parliament or authority arbitrarily to create within this country a separate and second class of citizens.

The English Parliament could declare that everybody up to the third generation of descent were citizens of England if they wanted to, subject of the Crown.

Justice Felix Frankfurter: You don't have to avail yourself of that in unity but in order of (Inaudible) an obligation to another story --

Mr. Thomas R. Davis: There is no question about that Your Honor, but I submit equally that in this case, there is nothing to indicate that Mendoza ever availed himself of his citizenship.

Justice Felix Frankfurter: Probably speaking of this case has been a problem?

Mr. Thomas R. Davis: No, true Your Honor.

But if we do relate it to this case, Mendoza could as well have been named Smith and still have used Mexico as his place of refuge.

He has not thereby made any special use of dual nationalities simply because he went across the border to avoid the draft authorities.

The -- furthermore, I think the Court can properly consider whether or not we are not dealing here with a denial of the equal protection of the laws.

If without any choice on their part, one group of our citizens can be made a special class of citizens who may be expatriated and then deported by an Act of Congress where there brother citizens may not and where the decision is entirely involuntary and per force it must be when the decision is made by a foreign authority or parliament, if that situation exists, then I submit Mr. Chief Justice and if it pleases the Court that there is a denial of the equal protection of the laws.

Justice Felix Frankfurter: Would you deny that a person who has dual citizenship has a class is then the difference proper to the Congress putting aside all the other arguments?

Would you deny that -- that Congress can deal with dual citizens as a class if it was not a dual citizen because a likely order of a dual citizen availing himself, (Inaudible) in relation to the other country is greater than that of a federation that's better about this.

Mr. Thomas R. Davis: I have thought hard before I answered that question Mr. Justice and I do deny it.

Justice Felix Frankfurter: You do deny it?

Mr. Thomas R. Davis: I deny that Congress may consider as to natural born citizens, in any respect, in any respect that has come within my conception or it can that Congress may consider as a separate class these people who have been vested with a second citizenship.

Justice Felix Frankfurter: I don't think I made myself clear.

I didn't mean to imply that it would -- I couldn't even touch the broader question whether the constitution would denaturalize any of them.

Mr. Thomas R. Davis: No, I didn't think it did.

Justice Felix Frankfurter: Starting with the power, could it differentiate, could it -- assuming the power was redefined et cetera, could it they we will only be who was dual citizenship, people who have dual nationalities?

Mr. Thomas R. Davis: Yes, I had under ---

Justice Felix Frankfurter: Because of a practical fact, a fellow who is also a Mexican citizen has an easier haven or refuge in Mexico than one who hasn't the Mexican citizenship.

Mr. Thomas R. Davis: I have under --

Justice Felix Frankfurter: Or that reciting the practicalities on which Congress legislates all the time to a specific case may not present the advantage.

Mr. Thomas R. Davis: If the Court please, I did understand your question but I answered it ineptly.

My answer is no.

As to natural citizen -- natural born citizens of the United States, citizens who were born here, I deny that Congress may consider in any aspect their dual nationality.

There is also before this Court in the briefs, an extensive discussion of whether or not there was here a denial of due process of law.

Whether there was due process of law or not, however, depends on the preliminary consideration of whether first, this was a penal statute.

It is a question which has been discussed on both sides extensively in the briefs but I submit in the first place that we can escape that result on the basis of trial.

Aside from the merits of the issue that four members of this Court not only found it was punishment but found it was cruel and unusual punishment.

And Mr. Justice Brennan refraining from entering directly in to the sphere of cruel and unusual punishment very definitely found that it was penal and called in effect, species all over those arguments which termed it merely regulatory.

I am not unaware of the fact that the mere fact that a man personally suffers from an Act of Congress does not per se make it penal.

But there is much more here.

This is a -- an act in the first place for which this man went to jail.

In the second place, he – it's used in essence for coercion.

There's no pretense here that we're separating citizens from noncitizens as we listen to able counsel for the Government it was overwhelmingly evident that the sole purpose was to coerce this man not to do what he might have in his mind to do.

The purpose was punishment and the discussion that the Chief Justice set out in the -- in his opinion in Trop in which he spoke to four members of the Court.

He made particular reference to the fact that the purpose in 401 (g) in the case of desertion as it is here was undeniably that stopped somebody from doing what they are about to do or to punish them so that others would be deterred in the event that they did it.

Justice Felix Frankfurter: What if he -- if he makes that argument, I think you have to go back on your prior argument that (Inaudible) consider whether there is any potentiality of deterrent but it doesn't say the gathering, the assembling of an army is like --

Mr. Thomas R. Davis: Well Your Honor, there may be --

Justice Felix Frankfurter: (Inaudible) because it's intended to the term having just established that there is no deterrent element in it.

Mr. Thomas R. Davis: Your Honor, Congress may act with a coercive intent and yet act ineffectively and that is my contention here.

Justice Felix Frankfurter: (Inaudible)

Mr. Thomas R. Davis: Ineffectively Your Honor more than anything else because the offender, if he is going to be affected at all is going to be affected when he returns to the United States.

If he has no intention of coming back here, there is no reason why he should care anyway.

Justice Felix Frankfurter: But the whole -- whole argument indicates the whole problem of deterrent namely real people who are about to do something that is deemed totally undesirable check in that preference by remembering the consequence on which it is based on.

Mr. Thomas R. Davis: Well, if the Court pleases, the question is almost philosophical in character and at the risk of -- of giving a small answer to a large question that there was a finding of at least by Mr. Justice Brennan in Trop that the use of it there in the case of desertion where there was no reason, we didn't even have a question of leaving the jurisdiction of the United States that it was there an ineffective deterrent and it is my contention here that it was ineffective.

Justice Charles E. Whittaker: (Inaudible)

Mr. Thomas R. Davis: Within large limits if -- if Your Honor please, but there comes a point when the necessary and proper clause comes to test.

Now, the position taken by Mr. Justice Frankfurter and others of this Court as to the scope within which the Congress may act as to the necessary and proper clauses that it is large.

Other members of the Court have evidenced a feeling that the scope of Congress is not so large that there must be a really reasonable connection, a really reasonable expectation, if Your Honor please, of results.

Otherwise, within that very scope of the necessary and proper clause and nowhere else, this Court has the right to hold that the Statute is unconstitutional.

Now, I have omitted the contention and I should not omit it that this statute is penal in its character because of its traditional alliance with the ancient punishments of banishment and of ostracism.

And as a final point in that connection, I submit that it -- it leaves (Inaudible) the contention of -- this is a regulatory power when we consider the true most of recorded history, banishment and ostracism and in the end this comes to nothing but that with the harshest among the harshest and least humane of punishments that were used by early man and the abandonment of those punishments has been considered to be an act of enlightenment or triumph of civilization.

Now, if the Court should adapt my contention that we are in fact dealing with a penal statute, then we come squarely face to face with the express position expressed by the Chief Justice for three other members of the Court in Trop that Section 401 (j) was dictum in a sense was lacking even the rudiments of procedural due process of law.

Yet, before anybody did anything, the citizenship was drawn.

There was -- there's no -- even a provision -- as the Chief Justice pointed out under 401 (g) at least there was a court-martial.

Somebody considered whether or not the man had done the act in question.

In the present case, there's just a naked statement that one who leaves the United States or remains there for the purpose of draft evasion, ipso facto loses his citizenship.

The first answer given by the Government to that is of course to rely on Section 503, which gives a right to declaratory relief and was in fact the Section under which this present action was brought, but as previous questions I believe by Mr. Justice Stewart have already brought out, there is no provision here for trial by jury or the other careful protections that are given in the case of a truly penal statute.

And on this particular point, I invite the Court's careful attention to a letter which counsel himself cited in his argument.

It is set forth for the Court's convenience as an appendix in the amicus curiae brief of the American Civil Liberties Union and a letter -- a letter from Attorney General Bill which is entitled Circular Number 3893 Department of Justice December 5th, 1944.

Chief Justice Earl Warren: I'm curious where that can be found?

Mr. Thomas R. Davis: At the end as an appendix, Mr. Chief Justice.

Attorney General Biddle expressly provides for a simple examination of the file if the Court please, by the United States Attorney and, “upon the termination, this is by the United States Attorney, upon determination that Public Law 431 is applicable, he shall close the case”.

There's never going to be any trial as far as the United States is concerned.

He shall close the case and notify the Federal Bureau of Investigation of his action.

In the second paragraph going on, “The Federal Bureau of Investigation will thereupon close its file in the case and furnish the Immigration and Nationalization Service for the information pertinent to the application of Public Law 431” and to add something there of my own, this means that the per se, the subject offender is now become an alien.

It's up to him to reverse the process and to get out of this situation that the Government has put him in.

And in the third paragraph, the United States Attorney shall notify the State Director of Selective Services of the names, numbers and local boards of all such closed delinquency cases so that his records and those of the local boards may be appropriately noted.

If the Court please, I submit, the United States has evidenced as clearly as it could that it intended a summary procedure for the depravation of citizenship which could only be redressed after the fact and assuming that the man was in a position somehow to invoke the laws of the United States and this Court well knows that there has been considerable difficulty as an independent issue about that, but assuming that he can get in to the Court, he gets there under a civil proceeding in which the burden is on him to prove that he is a citizen, not upon the United States to prove that he is not.

I thank the Court.

Chief Justice Earl Warren: Mr. Davis.

Justice William J. Brennan: Mr. Davis may I ask you a question?

Suppose Mendoza (Inaudible)

Rebuttal of Oscar H. Davis

Mr. Oscar H. Davis: Well, I couldn't make the argument.

I could make part of the argument Mr. Justice Brennan.

I could make the argument that he would not be stateless which was I think that the most important factor in the decision of the four members of the Court who joined in the Chief Justice's opinion in Trop because even thought he lost his American nationality, he would still be a Mexican citizen.

And I could make that argument.

I could not make the argument of his ability to call upon the state of his own nationality for protection.

But there would be an argument, not as strong but I think that would exist and could exist in the situation whereby Mexico, if it were in difficulties with the United States could say to Cuba, we don't want you to send Mendoza back to the United States; he is our national, he's a Mexican and we want you to keep him there in Cuba we don't want him to go back to the United States to fight in this war which we don't agree with.

So that the fact that he is a dual national and has another country's -- another country has an interest in him and protects him is always a factor regardless of where he goes.

Justice William J. Brennan: The -- the Government argue overall that the adding of flight to Mexico might be taken as evidence of the voluntary surrender towards the --

Mr. Oscar H. Davis: All I've read is the Government's brief in the memorandum in the trial Court and they did raise the issue of dual nationality.

That was most clear.

Justice William J. Brennan: I mean in the sense of --

Mr. Oscar H. Davis: They did said --

Justice William J. Brennan: -- preliminary act duration or--

Mr. Oscar H. Davis: I think that they did not say -- say it in the sense and I do not think we could say it in the sense in which the dissenters in the Perez case were talking about it.

I do think that we can't say and we do say that it is an indication of a kind of choice, not that he voluntarily renounced American citizenship because I don't think he had that in mind, but that he knew he was a Mexican national and he chose the protection of Mexico as against his obligations to the United States and in that sense, I can't definitively say that we made that argument because I don't recall but -- but it's an argument of law anyway and I make it here now.

On the issue of due process, I think counsel was in error in talking about the burden of proof under Section 503 of the Nationality Act -- under declaratory judgment proceeding.

As I well know from a case that I had argued previously in this Court, the burden is on the plaintiff, the Mendoza in this case to show that he was born in America which he does by showing his proof, I mean, showing his birth in the United States.

The burden then shifts to the United States to prove that he was expatriated so he does not bear the burden of proving, under this Court's decision, that he is not expatriated.

He bears the very simple burden of showing that he was born I believe in California in 1922.

The burden then shifts to the United States to show that he went to Mexico for the purpose of evading the draft or remain there.

Of course those issues are not involved in this case in view of the undisputed stipulated facts, but the -- the general counsel I think misapprehends the request of the proceedings under the statute.

Counsel said to the Court that Congress could not have been interested in foreign affairs problems because of the wording that it shows for the statute.

He thought that Congress should have said, departing from or remaining outside of the jurisdiction of the United States in time of war or during a period declared by the Presidency to be national emergency.

Instead of saying that, they should have said, departing from or outside the United States to enter a foreign country, I suggest that if that language had been used and a man had gone on a ship of a foreign nationality, the Government would have a much harder job than we have here today, but the general language departing from a remaining outside the jurisdiction covers practically every though of it because it covers anybody who goes to the land territory of the foreign country and it covers people who go on ships or airplanes of foreign countries.

The only place that I think would not be covered might be some wasteland in Antarctica and I suppose most of those are now claimed by the countries of the world.

So that the land which is very apt to cover everybody who goes, who put themselves under the jurisdiction of another country either on a ship of another country or on a -- on land territory.

To mention, I have talked a bit on this rebuttal of dual nationality which was also brought out, aspect to which it would brought out in colloquy of Mr. Davis and the members of the Court, but I would like to say several -- few more things.

Every country in the world allows a person to renounce his nationality.

Mendoza could have renounced his Mexican nationality; he wasn't compelled to retain his Mexican nationality.

So that I think that really, there's no substance to the argument that it was imposed upon him willy-nilly and that he had to have it.

He could have renounced his Mexican nationality but instead of renouncing his Mexican nationality, he sought to use it.

He went to Mexico.

And the reason why dual nationality is so important and not just an accident or freak in these cases is that it's because people with dual nationality have a better chance of going to other countries.

If a man named Smith from Vermont, who is not a national of Mexico, arrives at the Mexican border, he won't get in ordinarily. Mr. Mendoza-Martinez gets in because he claims Mexican nationality.

So, it's inherent in the problem.

It's not freak or an accident that people of dual nationality have a greater chance of going to other countries.

I don't need to say that they're the only ones because they aren't, but they do have a greater chance and this was an actual effect that a major part of the problem of which Congress was dealing and the appellee here did choose to take advantage of his Mexican nationality and go to Mexico.

Chief Justice Earl Warren: Mr. Davis, I've just been wondering, are -- are we in any such emergency now to this accident applies?

Mr. Oscar H. Davis: Oh, yes sir.

Oh, at the moment?

Chief Justice Earl Warren: This language is what I'm referring to during the period or in time of war or during a period declared by the Presidency to be a period of national emergency for the purpose of evading or avoiding training and service in the land of naval force in the United States.

Are we -- is there a presidential order now?

Mr. Oscar H. Davis: May -- may I clear something here, Mr. Chief Justice?

Chief Justice Earl Warren: Yes.

Mr. Oscar H. Davis: That the phrase a period declared by the Presidency, a period of national emergency is not a special period of national emergency for this statute.

It's a general period of national emergency.

In other words, I don't think that the last two lines qualify a period of national emergency declared for the purpose of evading the draft.

Chief Justice Earl Warren: That's what I'm addressing.

Mr. Oscar H. Davis: It's a general and I cannot answer the question.

I think we are still, I will look it up Mr. Chief Justice.

I do not know whether we are now in such a period of national emergency.

Of course at the time this case arose, we were in actual war, World War II.

Chief Justice Earl Warren: Yes, but would -- would you let us know place as a matter information whether we are operating under any emergency as declared by the President whether --

Mr. Oscar H. Davis: Which would figure this test --

Chief Justice Earl Warren: -- whose acts would apply at the present time of the young man went to another country in order to avoid the draft?

Mr. Oscar H. Davis: I will, sir, yes sir.

The last thing that I might mention because of the reference of counsel to the fact that in the Chief Justice's opinion in Trop, he did refer to this statue and since he appeared to be speaking for three other members of the Court, I think it's appropriate for me to point out that in Mr. Justice Whittaker's memorandum in the Perez case, he explicitly said that he was not passing on the constitutionality of this Section 401 (j) which was also involved in Perez and he neither expressed nor implied any opinions on that statute.

And so, I think it can be fair to be said -- fairly be said that that portion of the Chief Justice's opinion did not speak for Mr. Justice Whittaker who had explicitly said that he was reserving his views on that subject.

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Tak Shan Fong v. United States - Oral Argument, Part 1

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Tak Shan Fong v. United States

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Argument of William B. Mahoney

Chief Justice Earl Warren: Mr. Mahoney.

Mr. William B. Mahoney: Mr. Chief Justice, associate judges.

This matter is here on certiorari from the Court of Appeals from the Second Circuit which Court reversed an order of the honorable Thomas J. Murphy, a United States District Judge for the Southern District of New York, which had disapproved the findings of a naturalization commissioner and ordered that the application of Tak Shan Fong for naturalization under Title 8, Section 1440a of the United States Code be granted.

The statute that we're concerned with Your Honors is, as I have stated, Section 1440a, and we are more concerned with an interpretation order, a construction of subdivision II which we'll find on page 2 of the petitioner's brief of having been lawfully admitted to the United States and having been physically present within the United States for a single period of at least one year at the time of entering the armed forces.

Under those circumstances an alien maybe naturalized under the requirements of that chapter.

The factual situation in this particular matter is that Tak Shan Fong, a native of China, shipped from China in 1951 on board a boat known as the Ocean Star and he -- the boat docked at Honolulu in the territory of Hawaii and he was granted a 29-day seaman pass.

As a result of receiving that pass he was in Honolulu for a period of 29 days and at the expiration of that time, he boarded his vessel again and left Honolulu.

And in January of 1952, approximately four months thereafter, the same ship docked at Newport News, Virginia and that was in January of 1952.

Now on that particular question you will find some conflict at page 8 of the record in as much as the exhibit attached to the record shows that the man allegedly jumped ship.

On the other hand there is a reference to testimony on the part of Tak Shan Fong to the affect that he was given permission by the officer in charge of the ship for shore leave that he left Newport News, Virginia went to New York and upon his return four days later the ship had left port and he was without ship.

Justice John M. Harlan: The -- the Court of Appeals held that he had jumped ship as in illegally, didn't it -- isn't it?

Mr. William B. Mahoney: The -- yes, they have held that.

Justice John M. Harlan: And you're not asking us to review that finding of fact, are you?

Mr. William B. Mahoney: Your Honor, I think that it's essential to do it in view of the sparsity of the record in this particular case, particularly as to what appeared before the naturalization examiner sometime in January of 1956.

As I said --

Justice Potter Stewart: Does it really make any difference to your argument whether he jumped ship or whether he just overstayed his leave?

Mr. William B. Mahoney: I don't think so, no, I don't, I really don't.

I think we have a more substantial question involved here.

As I said that was January 1952, when it's alleged that he jumped ship and it was in June of 1952 that he was apprehended in New York City and deportation proceedings were instituted against Tak Shan Fong.

While those proceedings were pending and pursuant to the provisions of the Selective Service Act, he was compelled to register.

And in May of 1953, he was inducted into the Armed Forces of the United States and he served in the Armed Forces of the United States from May 4th, 1953 until May 3rd, 1955 when he was honorably discharged.

Now, in between that particular period that I have just indicated induction of May 4th, 1953 and May 3rd, 1955, the local board, that is the Selective Service Board received a communication from the Immigration Service in New York City asking for official confirmation of the fact that this man had been inducted into service, that was in September of 1953.

There is nothing in the record here that would indicate that there was ever a reply to that communication, but it's quite logical that a reply was given to the immigration service in New York City to the affect that the man was already in the Armed Forces of the United States.

Nothing was done by the immigration knowing that the man now was in the Armed Forces of the United States.

But in January of 1954 an order of deportation was issued, but the delivery bond was suspended and the proceedings updated because of the fact that they then have knowledge that he was in the Armed Forces of the United States.

Now, that was January of 1954.

They do nothing about it.

They left the man go on and continue to serve in the Armed Forces of the United States.

As I said before, he was honorably discharged on May 3rd of 1955.

And from that period up to and including December 22nd, 1955, the immigration authorities take no action whatsoever.

But on December 22nd, 1955, he filed a petition for naturalization under the provisions of Section 1440a of 8 United States Code and immediately a hearing was directed.

At that particular hearing, the naturalization examiner knew nothing of his legal entry into the United States in 1951.

And although he found that Tak Shan Fong came within all the other provisions of Section 1440a, he nevertheless found that he had entered the United States unlawfully basing it upon this so-called jumping ship in January of 1952.

So that he made a finding to the effect that the man was unlawfully in the country therefore he doesn't come within the purview of the provisions of Section 1440a.

And he recommended the denial of the petition.

That came on before Justice Murphy in the United States District Court for the Southern District of New York.

And at that particular time counsel who was then representing Tak Shan Fong called to the attention of the Court that this man had been legally in the United States in 1951 in August.

An opportunity was given to the examiner to verify that particular fact from the official records, and it was so verified.

And as a result of it, Justice Murphy made new findings of fact wherein he decided that the man was lawfully in the United States and that he came within the purview of all of the provisions of Section 1440a.

He directed that an order of naturalization issue.

The order was issued.The man appeared, qualified, certificate of naturalization was granted.

The government took an appeal from that particular order and it came on before the Circuit Court for the Second Circuit.

And when this came on for argument that Court had already decided in the matter of U.S.against Boubaris which the Court will find in 244 F2.d at 98.

That was before a bench made up of Justices Lumbard, Waterman and Judge Hincks.

Chief Justice Earl Warren: We'll recess now.

Mr. William B. Mahoney: Yes, sir.

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Tak Shan Fong v. United States - Oral Argument, Part 2

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Tak Shan Fong v. United States

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Argument of William B. Mahoney

Chief Justice Earl Warren: Mr. Mahoney, you may proceed.

Mr. William B. Mahoney: Thank you, Your Honor.

As I stated, Your Honor, the Boubaris case had reached the Circuit Court during the pendency of the appeal in this particular matter.

And in that particular case, Judges Lumbard and Waterman reversed the lower court that had held and held at that particular time that the provision in Section 1440a relative to lawful entry and the physical presence in the United States for a period of a year before induction into the armed services must be consecutive.

In other words, no breach could occur within the lawful entry and the physical presence of a year in the United States.

Justice Potter Stewart: (Inaudible) Judges Lumbard and Waterman with Judge Hincks --

Mr. William B. Mahoney: Hincks --

Justice Potter Stewart: -- dissenting.

Mr. William B. Mahoney: And Judge Hincks dissented.

And then when, as I said, that case was decided while this one was coming up on appeal and when it came up on appeal, again Justices Lumbard and Waterman sat, but Justice Moore sat in place of Justice Hincks on the Tak Shan Fong case.

And this, of course, Judge Murphy was unanimously reversed on the opinion or rather the decision in U.S. against Boubaris.

Now, in order to come to some analyzation of this particular statute, it would seem to me as though with the Government conceding practically everything in the case, namely, that Fong was physically present in the United States for a period of year prior to his induction into the service of the United States, that he served in the United States Army for a period of two years, that he was honorably discharged, and that he had made a lawful entry into the United States in August of 1951.

We come right down to the one question that the Government seems to base everything on and that is that the lawful entry and the physical presence was not continuous.

That's the only claim that they seem to make.

And may I say to the Court here that the statute doesn't say that the lawful entry and the physical presence for a year must be consecutive.

It -- it would seem to me as though that circuit court just wrote that particular provision into Section 1440a.

Now, resort to the -- the legislative history of this particular situation reveals this that when it was before the House Committee, Congressman Graham on the Committee on the Judiciary was asked as to who was excluded under the bill.

And his statement was, and this is taken from the first session of the House of Representatives for the 83rd Congress, subversives are excluded, a conscientious objector who performs no military duties or refuses to wear the uniform are excluded or a person discharged from service under oath other than honorable conditions are excluded or pursuant to an application for discharge made by him on the ground that he is an alien.

Now, that seemed to be the thinking of the members of the house as to who were excluded under this particular bill, although there was phraseology that its application was limited to those who were lawfully entered into the United States without designating any time element whatsoever.

However, when this bill was pending before the House, the Attorney General Rogers sent a letter to the House in which he tried to have incorporated the provisions of Section 1429 of 8 United States Code into the bill itself.

And it's under 1429, you'll recall, that the burden rests upon the applicant to show at the time that he applies for naturalization that he was lawfully admitted to the United States.

And the letters, just a short part of it, was to the effect since the bill would require the lawful admission of a person as a prerequisite to eligibility thereunder.

There would appear to be no reason why such a person should not be required to bear the burden of proving such lawful admission to the same extent as is required of petitioners for naturalization generally.

Now, that was definitely ignored by the House.

And in addition to it, it was definitely ignored by the Senate who had the same letter before it and that provision or anything bearing any comparability to it was enacted into the statute itself.

And it would seem that in view of the fact that he -- the Attorney General tried to continue the burden upon an applicant to show that his lawful entry or rather that his entry into the United States was lawful.

And when you find the House reacting to the suggestion of an Attorney General in this particular nature while lawful admission as an immigrant or a non-immigrant is held to be a prerequisite to naturalization, the Committee is of the opinion that the technicalities involved in connection with the continuance of such status at the time of entering the Armed Forces would place an unwarranted burden on servicemen and practically nullify the purpose of the legislation.

And as to the Senate itself, they merely stated that the proposal that the serviceman be required to have a lawful status at the time of entering the Armed Forces was not included in the bill, so much for whatever assistance that we might get from the legislative history behind this particular bill.

But I could point out to the Court at this particular time that if Congress were of the mind that the Government attempts at the present time to state what the thought of Congress was at the time, it would seem to me as though they could have legislated as they did relative to Section 392 (b) of the same Title 8 of the United States Code.

And you'll recall, this is found on page 9 of the petitioner's brief, that under those circumstances where they were endeavoring to confer citizenship on alien veterans relative to World War I, the Court will find that an alien in this particular Section 392 (b), an alien veteran is entitled at any time to naturalization upon the same terms and conditions except one that such alien shall be required to prove that immediately preceding the date of his petition, he has resided continuously within United States for at least two years in pursuance of a legal admission for permanent residence.

Now, I would point out to the Court that the word "immediately" in there is significant and "legal admission" is significant and if Congress were of the trend of thinking that the Government attempts to suggest at the present time, it would seem to me as though they could have readily enacted some specific provision in here showing that such was their intention, namely, that lawful entry and physical presence for a year had to be consecutive.

Justice Charles E. Whittaker: Do you think Congress (Inaudible)

Mr. William B. Mahoney: I certainly do, Your Honor, because you can appreciate that there are a number of individuals who are in the United States and have been lawfully admitted but not for permanent residence.

They put those people of permanent residence in one category.

And I think in this order that they had mind that any of those individuals who were in the United States and had been in lawfully at any time as long as they did what was necessary to be done under Section 1440a, namely, that they lent their services whether it was mental, moral, physical to the Armed Forces of the United States during the Korean conflict.We held this out to those people that there would be a reward attached to the services that they render.

Justice Charles E. Whittaker: Could I ask you one question?

(Inaudible)

Mr. William B. Mahoney: I would think that it would be as broad as that, yes, Your Honor.

Justice Charles E. Whittaker: (Inaudible)

Mr. William B. Mahoney: I can't see that under the circumstances that are contained in this statute and I am not just limiting it to the phraseology that you've pointed out to me but to the statute in toto that I can't see under those circumstances where there would be any difference, as long as he came into the country legally at some time prior to the physical presence in the United States for a period of a year and that he had served beyond 90 days which is the minimum requirement of the statute and that he was honorable discharged.

I just don't go for and I can't conceive that a court would accept a solution of a situation of this kind where we hold out these rewards or anticipated rewards to aliens with some subtle variations to them that spring up after we've taken from the individual that which they were capable of giving under the Selective Service Act.

That just doesn't seem to savvy with the policy of the United States.And that's why I say that the time element would make no difference in this particular matter.

Justice Felix Frankfurter: Well, one thing is clear that mere service in the army and honorable discharge, that alone isn't sufficient to be -- get naturalization.

That's clear, isn't it?

Mr. William B. Mahoney: That alone is not sufficient.

Justice Felix Frankfurter: Isn't that true?

Mr. William B. Mahoney: I think you're quite right.

Justice Felix Frankfurter: So that Congress did want something in addition to the great service that a man does by joining the army when he can -- thought of it and serving it faithfully and honorably.

Mr. William B. Mahoney: And they wanted physical presence in the United States for a period of one year prior to his induction or his -- and I think, for the opportunity of ascertaining from his record as to whether or not --

Justice Felix Frankfurter: I'm merely suggesting that -- that citizenship, the right to citizenship isn't -- isn't wholly correct to say but that's the reward for serving Uncle Sam.

Mr. William B. Mahoney: Oh, no, I say standing alone, Your Honor, I definitely would accede to that query.

Justice Felix Frankfurter: (Voice Overlap) but I'm -- I'm pointing out that there isn't that equation (Inaudible)

Mr. William B. Mahoney: Not one bit.

Now, in addition to what I've just stated to the Court here, relative to the legislative history, I would merely call to the Court's attention that in cases of this kind where there is an ambiguity and certainty, there is an ambiguity in Section 1440a, and I think quite a substantial one, it would seem to me that the trend of thinking of this particular Court has been to resolve that ambiguity in favor of lenity.

And the Court will recall that in Bell against the United States that that was a principle who has stated and also it was recently reiterated in the matter of Bonetti against Rogers in this particular Court.

But another factor that I think should be taken into consideration in this particular matter is this factor.

You will recall what I said that in September 1953, the exclusion section of the Immigration Department knew of the fact that this man was in the military service of the United States.

In January of 1954 with the order of deportation when they suspended the delivery bond, they knew that he was in the Armed Forces of the United States.

They continued to allow him to serve for 19 months after the verification of September 1953, they allowed him to serve 16 months after the deportation order was served and then they allowed him to continue in the United States from May of 1955 until December of 1955 when he filed his petition under Section 1448 of Title 8 of the United States Code.

In the -- in the interim they just allowed everything to abate.

Justice Felix Frankfurter: Mr. Mahoney.

Mr. William B. Mahoney: Yes, Your Honor.

Justice Felix Frankfurter: May I suggest to you that if none of these facts are true, that we -- we may have cases where not one of those facts that you've just recited happened or took place, and yet, the problem would be exactly the same.

You -- you -- these facts indicate hardship and -- are appealing.

But they seem to me just as irrelevant as the -- to the issue as Mr. Justice Whittaker's hard case put to you of a child coming here -- firstly, coming here as a child and then leaving and then smuggling himself in and then serving, isn't that true?

You said quite correctly.

From my point of view, it makes no difference from yours.

Mr. William B. Mahoney: I don't think it makes any difference.

Justice Felix Frankfurter: Suppose these -- these merciful elements that you just narrated are equally indifferent to the problem, aren't they?

Mr. William B. Mahoney: I think that they only sort of --

Justice Felix Frankfurter: It's just to point up -- point up the hardship.

Mr. William B. Mahoney: That is a point up of the hardship and I think that they have some relevance as to the ambiguity which I assert is contained in this particular statute.

Justice Felix Frankfurter: Well, but Justice Whittaker's case also points up the -- the [Laughs] non-appeal in the other case.

Mr. William B. Mahoney: That's very true, I merely like to say this, Your Honors, and just cite this last factor to you, and this is on the proposition that when an ambiguity is existent under those circumstances that ambiguity is always resolved in favor of lenity.

We had a similar -- somewhat of a similar situation in Fong Haw Tan against Phelan in 333 U.S. 6.

And in that particular situation with an opinion by Justice Douglas, he said that we resolve the doubts in favor of that construction because deportation is a drastic measure and at times, the equivalent of banishment or exile.

It is the forfeiture for misconduct of a residence in this country, that was somewhat dissimilar from our factual background but such forfeiture is a penalty.

And I say that what was read into this particular Boubaris case in the first instance and carried over into Tak Shan Fong was strictly an infliction of a penalty upon Tak Shan Fong in writing into Section 1440 (a), the fact that lawful entry and physical presence in the United States must be immediately consecutive.

And I ask the Court, for those reasons, to reverse the circuit court and reinstate judge Murphy's order.

Chief Justice Earl Warren: Mr. Davis.

Argument of John F. Davis

Mr. John F. Davis: Mr. Chief Justice, may the Court please.

Justice Felix Frankfurter: Before you launch into your argument, I haven't looked at the brief, you may have told me there the Act.

Do we know that the problem is approximately how many potential cases of this sort are involved?

Mr. John F. Davis: No, we don't --

Justice Felix Frankfurter: I don't mean to suggest that would move one way or the other.

Mr. John F. Davis: No, I can't tell you how many cases are involved.

The statute tells --

Justice Felix Frankfurter: Potentially I said.

Mr. John F. Davis: The statute itself has expired.

The applications had been made before December 1955.

We do know that under this statute, about 40,000 aliens were naturalized.

Justice Felix Frankfurter: Had been already.

Mr. John F. Davis: Had been.

Well, none can be now.

I mean the applications had to be filed.

Justice Felix Frankfurter: Well, it may not have come up here.

So --

Mr. John F. Davis: Well, yes, I would -- I wouldn't think that we would -- there'd be any volume of litigation in this matter now.

I would think it was -- there's enough time that's passed since the application from --

Justice Felix Frankfurter: Well, this is a few cases, is it?

Mr. John F. Davis: So far as I know --

Justice Felix Frankfurter: These -- these two cases or --

Mr. John F. Davis: There -- there has been -- in New York, there's been a series of these cases under this statute.

I -- I know of no others.

I -- I don't know whether there'd be any or not.

There might be some applications to -- to terminate naturalization on -- on the ground that it was improperly granted but I don't know of any.

Justice Felix Frankfurter: You mean go back on the 40,000 so that non-jurisdiction --

Mr. John F. Davis: Yes.

Justice Felix Frankfurter: -- there is no jurisdiction or something.

Mr. John F. Davis: I -- but I -- I think it is not a large problem as far as volume of -- of (Voice Overlap) --

Justice Felix Frankfurter: They're raising to the appellant.

Mr. John F. Davis: Pardon?

Justice Felix Frankfurter: They're raising to the petitioner.

Mr. John F. Davis: It's very important to the fellow.

And we must remember in these cases that we're dealing not only with 1440 (a) of the -- of Title 8, but we are dealing with an individual, an individual Chinese who -- whose interests are very really at stake in this case.

But we also must realize that Congress has set a policy on what people can come in, and we shouldn't necessarily give -- if -- if the man comes in illegally, we are not really doing any good by -- by giving him rights, which we don't give to people who wait patiently for their term to come in and wait under the quarter.

So --

Justice Felix Frankfurter: I didn't mean to suggest the -- the legal relevance, just want to know what the scale of the problem was.

Justice Tom C. Clark: (Inaudible) have any idea of applying the facts of the 40,000?

Mr. John F. Davis: Oh, I have no -- I have no idea that any of them are wrong.

I mean as far as I know, those are -- those are properly granted.

I didn't -- I didn't mean that they would be thrown out on this case.I don't say that there were 40,000 people who came in illegally and were naturalized.

I'm -- I'm just merely saying that there were 40,000 aliens.

And undoubtedly, only a handful of cases, if any, that there -- where we would claim that there was anything improper about the grant.

Justice Tom C. Clark: You don't know of any?

Mr. John F. Davis: I don't -- none.

Justice Tom C. Clark: (Inaudible)

Mr. John F. Davis: I know of none.

That's the total number of cases of naturalization under the statute.

On the facts, I think it first should be made clear that the entry in Honolulu was purely a temporary grant to a seaman to come on shore while his ship was in port.

There was no formal approval of his character, no right to stay, merely a right to land, to walk around in -- in Honolulu while the ship was in port.

Justice John M. Harlan: He had overstayed for 29 days leave (Inaudible)

Mr. John F. Davis: I think we'd have a much more difficult case under this statute, then there would have been a legal entry and a physical presence in the term of the statute which would have been connected.

And it would be difficult to say that he hadn't fulfilled the terms of the statute, although the sponsors of the statute stated to the -- to the Congress that he must be here lawfully, not only that he would have to be here physically but here lawfully.

But under the words of the statute as enacted, if he came in lawfully and physically stayed after that lawful, overstayed his leave, in other words, we'd have a much more difficult case.

What happened in this case, however, was that he left the country entirely and his landing at Newport News, had no connection whatsoever with the coming ashore in Honolulu.

Justice Potter Stewart: This question, Mr. Davis, is there -- that -- for the purposes of this statute, Honolulu or Hawaii, the Hawaiian Islands are the United States (Voice Overlap) --

Mr. John F. Davis: No, that -- that would be an entry into the United States under the statute.

There isn't really, I think, any dispute between Mr. Mahoney and myself, any dispute which has any legal significance as to the terms of his landing at Newport News.

Mr. Mahoney claims that the alien had permission from an official, and this is based on his testimony in the immigration proceeding, he had permission from an officer on the ship to land, and that taking this as permission he came ashore and went to New York.

This would not make his entry legal.

He had no landing permit from the immigration people.

He had no other permit from the immigration people.

And if we accept what Mr. Mahoney says in full, his entry was still without -- outside of the law.

It may have to do with his -- based whether or not he was trying to stay here, but it had nothing to do with whether or not he legally came into the country.

Justice Charles E. Whittaker: (Inaudible)

Mr. John F. Davis: He is given -- he is given an actual piece of paper, a landing permit which is given by the immigration authorities who go on board the ship when it comes in.

And unless he has this landing permit, he is not -- he -- he has no right to come ashore at all.

He has no right to leave the ship.

Now, this landing permit is given by the immigration authorities to bona fide seaman.

It's part of the part -- it is considered part of the policy of the immigration law that -- that these people should be permitted to get ashore and stretch their legs if they are bona fide seaman and if you believe that they are going to get back on the vessel and sail when it sails.

Actually, they imposed quite a penalty on the ship when they don't return to it, so they try to get the -- the owners of the ship to help enforce the law.

But if the man is a bona fide seaman and they have no reason to believe that he is going to do damage in the United States, this little -- the man at the dock will give the seaman this landing permit.

Justice Charles E. Whittaker: (Inaudible)

Mr. John F. Davis: It has been so held that it is an entry.

It generally comes up in the case of a man overstaying his leave and the question is does he enter illegally and it's been held he doesn't enter illegally but he overstays his leave and can be thrown out on that ground.

Now, historically, Congress has, for a long time, given special privileges with respect to naturalization to aliens who have served in the -- in the Armed Forces.

And how much benefit they have given has differed from time to time.

During the civil war, they -- in -- I think in 1862, the first of these statutes was passed which cut down the period of required residence from five years to one year.

That was the only -- the benefit that was given.

They gave privileges for expediting naturalization in World War I and again in World War II.

And there are several reasons, and I think it's important to -- to understand these reasons for giving this right which is largely a right to expedite naturalization.

One of the reasons is that, and this is particularly applicable when -- when soldiers are going overseas, that if a -- American member of the Armed Forces is captured overseas, it's particularly important that that man be a citizen of the United States so that he will be entitled to all of the -- the rights and the protections of being a citizen, so -- so to speak, of the United States.

A second reason that they expedite naturalization is in order to make available to the Armed Forces in -- as officers as well as anything else, people who would otherwise be aliens.

You sometimes get a situation where you have, and we had it in World War II, where you have people who had military training and could be useful to the Government in -- in -- as officers, but in order to be an officer, one must be a citizen of the United States.

This is a second reason referred to by Congress for expediting naturalization.

And the third reason is, of course, to add another incentive to people being -- joining the Armed Force.

It's a -- it's an advantage which they get and it -- it aids in recruitment, it gives them a benefit for -- for service which they have performed for the United States.

And that is the -- that is the background which Congress considered this Act in 1953.

They had tried to pass an act in 1952 but there was a difference between the House and the Senate as to the terms of the Act.

The House had wanted to grant the -- the privilege of naturalization to those who had come in temporarily and had joined the Armed Forces, while the Senate, largely on the -- on the pressure from Senator McCarran felt that the man would have had to have been admitted for permanent residence before he should be given the privilege of the expeditious naturalization.

Because of this difference, the legislation failed in 1952.

This was a serious thing because at this time, the conflict in Korea was going on.

We had soldiers there.

And in 1953, it became apparent that it was necessary for the two houses to get together and they did pass this bill, which we have before us and which is set forth at page 2 of our brief.

And it does grant the right of expeditious naturalization not only to those who have been lawfully admitted for permanent residence but it also granted the right to those who had been lawfully admitted under any circumstances, provided they spent -- were physically present for one year at the time that they entered the Armed Forces.

This relaxed the existing immigration law which required one that there'd be admission for permanent residence and two that there'd be a five-year resident -- five-year residence.

In both of these respects, it was relaxed by this new law.

Now, we believe that a reasonable construction of this statute means that there must be a relationship, that there was intended to be a relationship between the lawful admission and the physical presence.

We base this on two -- on three -- on three factors, one, the natural reading of the -- of the statute and the structure of -- of the entire Naturalization Act and two, on the legislative history and three, on the decision of this Court in the Bonetti case.

If we look at the words of the statute alone, we find that there are stated in conjunction, the two conditions having been lawfully admitted to the United States and having been physically present within the United States for a single period of at least one year.

It seems to us that those two terms are reasonably read conjunctively.

And this is particularly so when it appears that Congress could have had no -- there is no apparent purpose in giving any recognition to a lawful admission for temporary -- temporary admission only which has been passed.

At no place in the present immigration law, not so far as I have been able to find in any of the past immigration laws, is any status given because of the fact that a person has been lawfully admitted for temporary period and then left.

I mean if he leaves, he gives up whatever privileges he has.

And I find no place anywhere in the law where Congress has said that this gives him any advantage and indeed, there is no reason why it should.

And --

Justice Felix Frankfurter: Mr. Davis, may I ask you about the case put by Mr. Justice Whittaker.

A kid is brought in by his alien parents and they then -- and they stay here two years, the family stays here two years, then they go back for a month or two (Inaudible) go back.

Now, and then he comes here unlawfully himself, stays less than a year or comes here lawfully and stays less than a year, does the -- does the juvenile -- does the minority here comes?

What about that?

I can follow your argument that the -- that the lawful entry and a -- and a year's physical present conditions for getting naturalization should conjoin, that doesn't make much sense in the case but I put -- drawing it from Justice Whittaker.

Mr. John F. Davis: What -- I -- I think some light is given on that by the reason for putting in the one year physical presence which would indicate that it had to be a year after the lawful entry rather than a year --

Justice Felix Frankfurter: But -- but not -- no connection with the -- that the year can be wholly unrelated to the subsequent service in the army.

Mr. John F. Davis: Well, no, I think not.

I think the year has to be --

Justice Felix Frankfurter: Immediately preceding the service?

Mr. John F. Davis: Well, the -- the term of the statute is -- and having been physically present within the United States for a single period of at least one year at the time of entering the Armed Forces.

Justice Felix Frankfurter: Well, if I was here, as I was from, what, 1894 and 1895 and then my parents show and go back to the Vienna, I would have been here a year --

Mr. John F. Davis: At the time of entering the service?

Justice Felix Frankfurter: What?

Mr. John F. Davis: At the time of entering the service?

You would have been here a year --

Justice Felix Frankfurter: At the time of entering, sure.

Mr. John F. Davis: Now, there is one --

Justice Felix Frankfurter: Not -- not immediately preceding the service.

Mr. John F. Davis: There is -- there is one case which -- which puts such a construction on this, one District Court case.

I suggest, however, that what Congress put in the year period because of a term in the Selective Service Act which says that an alien who was only temporarily resident here maybe called on for service if he is physically present here for a year.

If an -- if an alien is here --

Justice Felix Frankfurter: At anytime.

Mr. John F. Davis: Well, I think it -- I think this means at the time he is called on for service.

Justice Felix Frankfurter: That is the year must have -- must have been at least a year at the moment that he is called out, is that right?

Mr. John F. Davis: I think that is right, although I think that the Armed -- that the Selective Service Act doesn't say a single period and it's possible that under the Selective -- this don't exactly match.

Under the Selective Service Act, it may be that it could be interrupted by a trip back home, whereas this is a single period.But that's -- the Senate -- the Senate which put this one year physical presence into the bill said they did this in order to have this Act working with the Selective Service Act.

And it seems to me that means that it should be year at the time of induction.

Otherwise, you don't get this interest which the alien has in here.

He is -- he is only a visitor.

He hasn't got -- there isn't any reason to call upon him, no relationship to the country which would lead you to call upon him to -- to go into the armed services.

Justice Felix Frankfurter: I'm -- I feel in -- clouding my own mind whether you say that the statute required that when he called out, he should have been continuously at least for a year preceding the call up been here rather than allowing a hiatus between the year plus -- he may have been here after the call up.

Mr. John F. Davis: Now, I think he --

Justice Felix Frankfurter: You say there must be continuity there, is that right?

Mr. John F. Davis: I think that that is not -- we have in fact cases only useful for analysis on our case.

It's not our case, of course.

Justice Felix Frankfurter: No, no, no.

Mr. John F. Davis: But I would say that he had to be here one year just preceding his induction.

That's why I would read the statute (Voice Overlap) --

Justice Felix Frankfurter: No break in the time period?

Mr. John F. Davis: That's right.

Justice Felix Frankfurter: All right.

I understand.

Mr. John F. Davis: In addition to the -- to the structure and the language of the Act, the Congressman who was sponsoring the Act in the House, Chairman of the -- of the House Committee on inquiry from Congressman Walter specifically stated that this bill was supposed to grant citizenship to those who were lawfully in the United States.

This seems to me to -- to give support to the -- to the -- what I would say was the natural reading of the -- of the --

Justice Felix Frankfurter: Have you printed that statement of (Inaudible)

Mr. John F. Davis: Yes, that appears in --

Justice Felix Frankfurter: (Inaudible)

Mr. John F. Davis: -- of page 14.

Congressman Walter, “Is this not the bill that is identical with the law as it existed during the war with the exception that it applied only to aliens who are legally and lawfully in the United States?”

And Congressman Graham, who is the chairman of the Committee replied, I am reading from Page 14, “That is a correct statement.”

Justice Felix Frankfurter: At the time of the policy, it makes me so suspicious that a great weight be attached to this (Inaudible) interchanges.

Mr. John F. Davis: That -- I -- I agree that if we were going to have to try to -- to try to change the language of the statute by what was said, but this indicates rather a -- a feeling on the part and it's the same thing -- it's true in the Senate that they weren't doing anything as violent as suggested on the other side to grant citizenship to those who were here illegally.

I --

Justice Felix Frankfurter: Would you mind reading again why -- why the Senate -- what -- what statement we have from the Senate that's authoritative as to the physical presence for a year?

What was the reason?

Mr. John F. Davis: Oh, the -- the reason that I stated, and I'm not sure it's stated in -- in --

Justice Felix Frankfurter: I thought you said the Senate put that in.

Mr. John F. Davis: The Senate did put it in.

Justice Felix Frankfurter: They gave no reasons for (Voice Overlap) --

Mr. John F. Davis: Yes, yes, they did give reasons.

They stated the reason they put it in was that an alien is not subject to induction under the Selective Service Act unless he has been here for a year.

He's -- he has to register after he has been here six months, but he cannot be called up for service and that he has been here for a year.

And they wanted to tie in the provision for granting citizenship with a provision of the Selective Service Act requiring military service.

Justice Felix Frankfurter: Now, in the Selective Service Act, the requirement is that he -- at the time that he must -- just call up, if that's the term, he -- he then was in the process of continuously having been and still being here and not a prior presence here, is that right?

Mr. John F. Davis: That is my understanding of it.

I wonder if I have the language of it here.

This is -- I am reading -- this is from the Selective Service Act of 1948.

I don't have the code citation to it but it's the present act, "Provided further that any male alien who is between the age of 18 years and six months and 26 years at the time of registration or attains the age after being registered who has remained in the United States in a status other than that of a permanent resident for a period exceeding one year."

I am not sure that's much -- much more definite than -- than the naturalization statute.

Justice Felix Frankfurter: Read again the tense, who has been, what is it?

Mr. John F. Davis: It says "Provided further that any male alien who is between the age of," so and so and so and so, "who has remained in the United States in a status other than that of a permanent resident for a period exceeding one year shall be liable for training and service."

Justice Felix Frankfurter: Who has remained, this is having been physically present.

Mr. John F. Davis: Yes, I'm not sure that it makes -- they feel is different.

Chief Justice Earl Warren: Well, Mr. Davis, there -- and this has a rather long legislative history that goes back into a previous session of the Senate.

And at that time, Congressman Walter made it plain that he not -- that it was to apply only to those who were lawfully in the United States at that time.

And Senator Lehman objected to the word "lawful" and said that aliens who enter the service should be entitled to this relief even though they were -- were not lawfully and at the time they didn't pass that time, then Congressman Graham introduced his Bill 4233 and said, as you have stated that it applied only to aliens who are legally and lawfully in the United States and at the same time, the -- the Department of Justice tried to make that very plain by having them insert "who have been lawfully admitted to the United States, who shall have been, at the time of entering the Armed Forces, lawfully within such area."

But that was rejected.

Mr. John F. Davis: That's right.

Chief Justice Earl Warren: And that was not put in there.

Mr. John F. Davis: That's right.

Chief Justice Earl Warren: And they left it in this -- this rather nebulous state that it is now.

Mr. John F. Davis: Well, may -- may I comment on that?

Chief Justice Earl Warren: Yes, yes, please.

Mr. John F. Davis: With respect Senator Lehman's position, which is set forth at page 16 of our brief, Senator Lehman was not urging that those who were here unlawfully should be given the privilege of expeditious naturalization.

He was trying to get the same treatment given in the Senate that was given in the House to give those who were not admitted for permanent residence.

The -- the law at that time required permanent residence.

The House was going to relax this to permit those who were admitted for temporary residences as well as permanent residence.

Senator McCarran wouldn't go along with it.

Senator Lehman wasn't talking about those who were here illegally, but he was talking about those who had been admitted only temporarily.

And so that, we don't find any -- any senator who was urging that those who were here illegally should be granted naturalization in either House.

There is no word of debate in either House that those were here illegally -- who have entered illegally should be granted this thing.

Then when the Department of Justice made its recommendation to both Houses, it was dealing with a bill which did not have the provision for one year's physical presence in it.

They were dealing with a separate -- with a different bill, and I believe that there, the judgment must be read in the light of that different bill since I think they have -- would -- would not have been made, wouldn't have the same connotation if they had had this one year's physical presence which we are now concerned with.

Now, the -- the decision of this Court last term in -- in --

Chief Justice Earl Warren: What -- what was the significance of the letter that the Deputy Attorney General tried to have?

Mr. John F. Davis: Well, he was -- he was referring, as I say, to the bill before it was amended to put in the one year of physical presence.

He was dealing with the bill which merely said, "Legally admitted".

So that his -- the -- the Attorney General's suggestions really have no reference.

As a matter of fact in his own suggestion he said this bill is supposed to grant naturalization to those who are legally in the United States.

That term is -- is included in this letter.

But he was dealing with a situation where there was no period for one year's physical presence.

And he said that the -- they didn't need to exempt these aliens from their requirement of proving a continuation of their legal -- of their legal entry.

Then the Senate changed the bill to put in a provision for physical presence for one year and that -- that makes the change which, I think, cuts -- cuts the ground out from any -- any reason for -- for putting in what the Attorney General had suggested.

The -- changes of the situation, how much it changes it?

I don't know.

Now, this --

Justice Felix Frankfurter: Do I understand -- do I understand, I'm still hopping on that amendment of --

Mr. John F. Davis: Yes.

Justice Felix Frankfurter: -- the Senate.

Was that -- was that written in by the Committee as it reported the bill (Voice Overlap) --

Mr. John F. Davis: Yes, it was in the -- it was in the Committee Report.

Justice Felix Frankfurter: And -- and permitted in the assembly except what you reported, namely, it should be more in alignment with the Selective Service.

Mr. John F. Davis: That's right.

They did --

Justice Felix Frankfurter: There was no -- I just want to know whether I get this.

There was no discussion of that in the Senate, then they had to go back to the House and a Conference Committee had to be appointed, wasn't it?

Mr. John F. Davis: That's right.

Justice Felix Frankfurter: And nothing was said in the Conference Committee on this subject at all, right?

Mr. John F. Davis: No, they accepted -- they accepted the --

Justice Felix Frankfurter: Without any comment?

Mr. John F. Davis: That's right.

Justice Felix Frankfurter: All right.

Mr. John F. Davis: What -- the reason that -- one reason they wanted that year in was to prevent someone from getting a quick naturalization by coming in, getting a temporary entry and going into the armed service whether he was subject to the -- to the Selective Service Act or not.

They wanted to tie this in with the Selective Service provision.

Justice Potter Stewart: And Senator Lehman's concern was with the problem that Justice Harlan put to you in the form of question early in your argument, the case of the student who entered legally but then overstayed his legal entry, was that it?

Mr. John F. Davis: Well, he may not even above the State, he may still have been here.

He may -- he --

Justice Potter Stewart: That was --

Mr. John F. Davis: -- it would cover the period, Mr. Justice Stewart.

Justice Potter Stewart: His entry was lawful but who's extend -- extend his stay was perhaps unlawful.

Mr. John F. Davis: It could have been lawful or unlawfully.

It wouldn't, under the Act as passed by the Senate, in either case.

He had to be admitted for permanent residence.

Justice Hugo L. Black: Do you know whether or not there was any provision in the law under which an alien could come to this country and go right into the Army at that time?

Was there any agreement or any -- any way that he could just notify that he wanted to get out in the Army?

Mr. John F. Davis: Now, I believe --

Justice Hugo L. Black: (Voice Overlap)

Mr. John F. Davis: -- I believe that the Army took the men only through the Selective Service System and the way he would come in, would come in and register with the Selective Service.

I don't think that -- I think that the Army did not accept enlistments from aliens.

I may be wrong on that, but I think that's it.

Justice John M. Harlan: (Inaudible)

Mr. John F. Davis: Yes.

Justice John M. Harlan: (Inaudible)

Mr. John F. Davis: That -- there is at present.

It was -- this is a little complicated.

During World War II, there was a provision in order to take care of aliens who were serving abroad and that provision gave them a right to be naturalized and also naturalized in the field whether or not they came in legally at all.

This was specific in the statute.

It wasn't in -- I think enacted in 1944.

The 1942 Act wasn't -- they didn't feel -- gave enough protection.

In 1944, they amended it so that he could be naturalized from the field.

Now, present --

Justice Felix Frankfurter: You wouldn't have to come to this country at all.

Mr. John F. Davis: No, he had to be in this country.

He had to -- he had to enter the service while he was in this country --

Justice Felix Frankfurter: Oh, yes.

Mr. John F. Davis: -- under that provision.

Justice Felix Frankfurter: But, for instance, Free French couldn't join the American units?

Mr. John F. Davis: No, not --

Justice Felix Frankfurter: No.

Mr. John F. Davis: -- under this provision.

He could get --

Justice Felix Frankfurter: No, I mean under this provision, there was no other provision.

Mr. John F. Davis: No, he -- they couldn't.

Although if they thereafter were legally admitted to the United States, then that service would give them -- would take the place of -- of residence here.

But in order to complete the -- that -- that question, I call Your Honors' attention to the present provision of 8 U.S.C. 1440 which provide for those who didn't actually get naturalized during World War I or World War II.

And for some reason, and I don't know why this is, in about 1948, Congress passed the provision saying that they too could be naturalized whether or not they entered legally.

So, presently, on our books, we have a provision for naturalization of aliens who came in, actually came in illegally.

This is -- this is specific by -- by the specific provision.

Justice Hugo L. Black: That's 8 U.S.C. what?

Mr. John F. Davis: 1440.

It's the section in -- in the U.S. Code which immediately precedes this one dealing with the Korean War.

This was not the term -- these were not the terms of the statutes during the war, these were something that was passed later on, and as I say, I think, in 1948.

Justice Hugo L. Black: Now, as you will know, this -- a number of Americans went to Canada, in 1915 and 1916 and enlisted in Canadian Army (Inaudible) went to Canada from this country to enlist in Canadian units.

I don't what the legal machinery there was.

We have had nothing like that as you say.

Mr. John F. Davis: I believe -- I -- I checked with the Selective Service on this and I was told by the Selective Service that they -- the only way they took aliens into the Army --

Justice Hugo L. Black: (Voice Overlap) --

Mr. John F. Davis: -- and I didn't check on the Navy, but the only way they took it into the Army was through the Selective Service System itself.

Just one more word and that is I wanted to say that -- that this Court shouldn't get the impression that this particular petitioner was dragged into the Army against his will and made to serve in the Army.

He had an exemption from service, all he had to do is to claim his exemption as an alien and he could have been accepted immediately from service, and he didn't go in there with any -- under any contract implied or any otherwise that he could get citizenship.

This particular statute was not on the books at the time he was inducted into the service.

So, there is no -- he went in then.

There's no misconception.

There wasn't any law which gave him any right at the time he was inducted.

Chief Justice Earl Warren: Well, if that's -- if that's of any importance at all, shouldn't it redound to his credit rather than against it?

Mr. John F. Davis: Well, I think it does redound to his credit --

Chief Justice Earl Warren: Yes.

Mr. John F. Davis: -- but I think that it shows that there was no obligation --

Chief Justice Earl Warren: Yes.

Mr. John F. Davis: -- no -- no type of -- of holding out to him --

Chief Justice Earl Warren: Yes.

Mr. John F. Davis: -- on this case.

Chief Justice Earl Warren: Yes.

Justice William J. Brennan: Mr. Davis, can you tell me, is there any tracts of handling this kind of thing by a special bill?

Has there been any in the Congress?

Mr. John F. Davis: There had been a good many special bills with respect to deportation on an entry into the country.

I don't know about granting naturalization --

Justice William J. Brennan: Pardon?

Mr. John F. Davis: Although I must -- I must, in order to be frank, say that the naturalization and the deportation probably go hand in hand in this case.

And that if the man is not given citizenship, he will be subject to deportation.

And -- and in that case, frequently, you get (Voice Overlap) --

Justice Felix Frankfurter: But there have been special acts granting naturalization.

Mr. John F. Davis: Well --

Justice Felix Frankfurter: I don't mean at this time, I mean Congress has passed individual naturalization acts.

Mr. John F. Davis: Yes, and in order to --

Justice Felix Frankfurter: There are a number of them.

Mr. John F. Davis: Oh, of course.

And in order -- and in order to cut down, however, on special legislation on deportation, they have given authority, of course, to the -- to the Department of Justice to suspend deportation when a man meets the requirements of -- of the Act and then the -- a report is made to Congress and Congress either reaffirms or -- or lets it --

Justice Felix Frankfurter: Is this a suspendable case?

Mr. John F. Davis: Not under the present law, Mr. Justice.

Justice Felix Frankfurter: Why not?

Mr. John F. Davis: Because his -- well, so far as I know, he has no dependence for one thing.

For another thing, he didn't have -- come in legally, and when he doesn't come in legally, he has to have 10 years residence before it's a suspendable case.

And I think there are other reasons, but I think it is not at present (Voice Overlap) --

Justice William J. Brennan: Does it appear where he originated in China?

Mr. John F. Davis: He came from Tianjin originally.

That's where he was born.

He signed on this vessel from Hong Kong.

And in the proceedings, he has indicated a desire -- some of the deportation proceedings show that he would go back to Formosa.

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