Costello v. Immigration and Naturalization Service

RESPONDENT: Immigration and Naturalization Service
LOCATION: Cumberland Hospital

DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 376 US 120 (1964)
ARGUED: Dec 12, 1963
DECIDED: Feb 17, 1964

Facts of the case


Media for Costello v. Immigration and Naturalization Service

Audio Transcription for Oral Argument - December 12, 1963 in Costello v. Immigration and Naturalization Service

Earl Warren:

Number 83, Frank Costello, Petitioner, versus Immigration and Naturalization Service.

Mr. Williams.

Edward Bennett Williams:

Mr. Chief Justice, may it please the Court.

I think that I can perhaps best help the Court at the outset if I review in a cursory way, the factual backdrop against which the legal issue in this case is framed.

The petitioner was born 73 years ago in Cosenza, Italy.

He was brought to the United States by his parents in 1895 at the age of four.

50 years ago, he married his present wife who is a native-born American citizen.

In the year 1925, he became naturalized, and 36 years later, by order, a final order of denaturalization, he became stateless.

Deportation proceedings were instituted against him almost forthwith --

Potter Stewart:

What was his status before (Inaudible) in Italy --

Edward Bennett Williams:

Because he had forsworn Your Honor, allegiance to Victoria Emmanuel and as far as Italy was concerned and he is concerned, it does not recognize him as an Italian citizen.

Deportation proceedings were instituted against him almost forthwith and after hearing an order was entered by the hearing examiner, an order of deportation.

This was affirmed by the Board of Immigration and Naturalization Appeals and a petition to the United States Court of Appeals for the Second Circuit was dismissed in December of last year.

The case is here, of course on writ of certiorari.

Now the basis of deportation which was first ordered and subsequently sustained by the lower court is found in Section 241 (a) of the Immigration and Nationality Act of 1952, where it is provided that an alien is deportable who was convicted of two crimes involving moral turpitude after entry.

Fact of the matter is the as the record shows in the year 1954, the petitioner was convicted in a case in the southern district of New York of two counts of income tax evasion, for the years 1948 and 1949.

It was a dual conviction in one case because there were multiple counts in the indictment.

Now the theory of the government's case, in the income tax evasion case as shown in this record was the Net Worth Expenditure Theory and I underscore this at this point because it becomes germane to our position as it's developed.

The legal issue in this case –

Arthur J. Goldberg:

Why was it germane (Inaudible)

Edward Bennett Williams:

It becomes germane, if the Court please, because of prejudice that inured to the petitioner as the result of the government's instruction and the lower court's instruction of 241 (a) (4), which I shall show you in just a moment.

Now the legal issue here I think is needle-sharp.

It is our contention that an alien under the statute is not deportable for a conviction or convictions during the time when he enjoyed the status of citizenship.

It is our position that there must be chronological coincidence between alienage and conviction under the language of the statute.

The service controverts this, says this is insult, but in any event even if he be right in construing the statute, even if the statute lends itself to misconstruction, they say nonetheless by virtue of skill, another section of the same statute, namely 348, that in any event, a denaturalization decree is retroactive in effect to the date of naturalization and citizenship becomes void ab initio, and therefore, there was concurrence chronologically of the status of alienage and conviction.

We can say this and argue to the Court as we show that no court finally passing on this question has ever held that the denaturalization is retroactive or retrospective in application for deportation purposes.

And we say further that if the government's construction of the statute is the correct, then there is a violation of the petitioner's rights constitutional under the Fifth Amendment requiring that he not be deprived of his liberty without due process of law.

Now I shall like in normal sequence to discuss first of all, the language of the statute per se, the language of the statute with which we're concerned which is Section 241 (a) (4).

Now that statute provides in 241 (a) for deportation for some 18 categories of aliens, they are listed seriatim in paragraphs 1 through 18.

In paragraph 4, the specific language is that an alien is deportable anytime after entry is convicted of two crimes.