Brownell v. Tom We Shung

LOCATION: Congress

DECIDED BY: Warren Court (1956-1957)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 352 US 180 (1956)
ARGUED: Nov 13, 1956
DECIDED: Dec 17, 1956

Facts of the case


Media for Brownell v. Tom We Shung

Audio Transcription for Oral Argument - November 13, 1956 in Brownell v. Tom We Shung

Earl Warren:

Number 43, Herbert Brownell Jr., Attorney General of the United States petitioner versus Tom We Shung.

Mr. Davis.

Oscar H. Davis:

May it please the Court.

This is an immigration case from the District of Columbia Circuit and it presents the Court for the seventh time in six years with an issue of whether an immigration order may be reviewed by declaratory judgment or as the Government contends in this case by habeas corpus alone.

I said for the seventh time in six years but I hasten to add that it comes up in a new context in this case because the issue here is whether an exclusion order for an acknowledged alien was never been in this country who seeks to enter the country, an exclusion order can be judicially reviewed by declaratory judgment as the District Court of Columbia Circuit held or whether it can be reviewed only in proceedings for habeas corpus as we contend.

The background of the case is this, in a -- in a prior case involving this same respondent Tom We Shung in December 1953, three years ago, the Court held per curiam that an exclusion order under the prior Act under the Immigration Act of 1917 up to the time of the 1952 Act could be reviewed judicially only by habeas corpus.

In the spring of 1955, I should add in relation to that that the Court had made the same holding in relation to deportation orders under the prior statute in a case called Heikkila against Barber.

But then the issue arose under the new Act, the Immigration and Nationality Act of 1952 and it came up first to this Court in a deportation case.

In the spring of 1955, in Shaughnessy against Pedreiro, the Court held that the 1952 Act made a difference that under the 1952 Act deportation orders are reviewable by declaratory judgment as well as by habeas corpus.

The issue here is whether the same holding should be made as to exclusion orders.

The court below and respondent contend that this a case of course of the hide going with the hair that exclusion orders are governed by the same principles as deportation orders and our position is to the contrary.

And we think that exclusion orders are different from deportation orders under the 1952 statute for four different reasons.

One, that the particular statutory provisions and the general statutory context are different for exclusion as distinguished from deportation.

And two, that there is a historic constitutional and legal difference between alien seeking to enter the country and those aliens resident in the country that there was a historic legal and constitutional difference between exclusion and deportation.

And third, we suggest that there are -- that the specific legislative history of the 1952 Act dealing with this particular subject is different with respect to exclusion and it was for deportation.

Fourth and lastly, we think that the practical considerations which moved the Court in the Pedreiro case to hold that deportation could be reviewable by declaratory judgment do not exist with respect to an alien seeking to enter the country and therefore the result should be different.

John M. Harlan:

Could I ask you a practical question at this point?

Oscar H. Davis:

Yes, Mr. --

John M. Harlan:

What difference does it make to the Government whether these orders are reviewable by habeas corpus or by declaratory judgment?

Is there --

Oscar H. Davis:

Well --

John M. Harlan:

-- a practical difference?

Oscar H. Davis:

There is a practical difference.

The first is possibly the difference in the scope of review.

John M. Harlan:

Perhaps, I ought to ask you was if first of all, is there is a legal difference and also other practical --

Oscar H. Davis:

Well, we think there is.

If I may recall Mr. Justice Harlan at the argument of the Pedreiro case which I argued, you asked me the same question with relation to deportation.

John M. Harlan:

I left with -- left with the impression that there already was one (Inaudible)

Oscar H. Davis:

As to deportation, yes.

There was no difference because the 1952 statute incorporates in haec verba, the substantial evidence rule at the deportation orders that requires the deportation orders must be based upon substantial prevalent of evidence and we could not.