Costello v. Immigration and Naturalization Service

PETITIONER:Costello
RESPONDENT:Immigration and Naturalization Service
LOCATION:Cumberland Hospital

DOCKET NO.: 83
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

Question

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.

Edward Bennett Williams:

Now it’s our contention that that language requires that the convictions take place during the status of alienage.

The Congress used the present copulative and where that is used there must be a concurrence time wise between the subject and the predicate, and the Congress recognized this because in every instance that is pertinent here, in every other paragraph 1 through 18 where the Congress set out to make a category of aliens deportable, it used both the present and the perfect tense, saying an alien who is or at any time has been since entry.

For example, in paragraph six, the Congress says, an alien who is or at any time has been after entry, member of the following classes and then it lists a long category of subversive failures.

And then in paragraph seven, it says, an alien is deportable who is engaged or at any time after entry has engaged and then it lists various types of subversive activity.

In Paragraph 11 it says, is or at any time after entry has been a narcotic addict.

In paragraph 12 it says, is or at any time after entry has been the manager of a place of prostitution.

Paragraph 14 is, or shall have been convicted of possessing a sawed-off shotgun.

15 and 16 is or shall have been convicted of the Alien Registration Act and finally, in 18, has been convicted of that section of the statute which outlaws the importation of aliens illegally.

Now if that were not conclusive as to the meaning of the Congress, I think Section 241 (b) closes the issue because 241 (b) is made pertinent only to paragraph 4 of 241 (a), which happens to be the very paragraph with which we’re concerned in this case and 241 (b) which is an indispensable part of the statutory scheme provides that an alien who is convicted may ask the sentencing court to recommend against deportation, and if the sentencing court does recommend against deportation, he shall not be deported.

This is the only, 241 (a) (4) is the only paragraph to which 241 (b) is relevant, showing that the Congress intended that the convicted person be de facto alien at the time of his conviction, otherwise of course, this relief would be meaningless to the convicted defendant.

Now of course, at the time the petitioner was convicted in 1954 this relief was not available to him because at that time, he had the status, de facto of citizenship.

Now fortunately we have had a court that has fairly passed upon this issue because it has been framed precisely heretofore for the Ninth Circuit in the case of Gubbels against Hoy.

Now in Gubbels against Hoy, if the Court please, there was an alien.

Gubbels was a member of the armed forces. Gubbels was convicted of two felonies by a military tribunal, court-martial.

Thereafter deportation proceedings were instituted against him and he was ordered deported.

He sought the review.

The case went to the Ninth Circuit and he claimed that he was not deportable for convictions before a military tribunal because the relief proffered to convicted aliens by 241 (b) was not available to him because he couldn’t get that kind of relief from an ad hoc tribunal.

The government at that time did not quarrel with Gubbels position that 241 (b) was an indispensable, integral part of the congressional scheme for deportation.

Rather it said, Gubbels should have asked, should have asked the military tribunal to grant him this relief and he failed to do so.

When the Ninth Circuit came to grips with this problem in 1958, reported in 261 Fed 2nd at 952, just to say, this language appears at Page 2, the 21 of our brief.

It seems plain that the qualifying provisions of subsection b are in an important part of a legislative scheme expressed in subsection (a) (4).

While that section makes the conviction they are referred to ground for deportation, it is qualified in an important manner by the provision of subsection (b) (2), that if the court sentencing the alien makes the recommendation mentioned, then the provisions of subsection (a) (4) do not apply.

This extends to the alien, an important right of privilege.

No doubt in most cases, counsel for a convicted alien would by motion, call this provision to the attention of the court where the judgment was imposed.

It also seems plain that if a military court is so constituted or its procedures are such as to make this privilege extended by subsection (b) (2) not readily available to a convicted alien, then it would be a fair conclusion that convictions in a military court were not contemplated by subsection (a) (4).

The requisite changes being made of course.

The language could well say that if the provisions of subsection (b) (2) were not readily available to a convicted alien, by virtue of the fact that he was not a de facto alien at the time that he was convicted and could not avail himself of this procedure then of course, it must be contemplated that Congress did not intend 241 (a) (4) to apply to any other then de facto aliens convicted after entry.

Now if the Court please, in its brief–

Potter Stewart:

Do you think 241 (b) (2) means when it talks about such crimes, you mean the first one or the second one?

Your case, you — Mr. Costello has been deported because he was convicted of two crimes?

Edward Bennett Williams:

Yes sir.

Potter Stewart:

If (Inaudible) convicted of one crime within five years?

Edward Bennett Williams:

That isn’t an issue.

Potter Stewart:

And that’s not an issue, this is two crimes?

Edward Bennett Williams:

Two crimes.

Potter Stewart:

Then in that kind of a case.

What’s such crime mean and be, first crime or the second crime?

Edward Bennett Williams:

I think it’s the crime which makes him deportable because obviously he wouldn’t ask for the recommendation in the first crime because he wouldn’t be deportable for the first crime, but the second —

Potter Stewart:

But as for the — .

Edward Bennett Williams:

Sorry?

Potter Stewart:

You go ahead.

Edward Bennett Williams:

But in the second crime, when it appeared to him from the statute as an alien that he would be deportable, he would ask the court to recommend of course, against deportation, and if the court would pass upon it, it would only be in the frame of reference of the second.

Potter Stewart:

Of the second, second.

Edward Bennett Williams:

Yes.

Now —

Arthur J. Goldberg:

(Inaudible)

Edward Bennett Williams:

Yes.

Arthur J. Goldberg:

(Inaudible)

Edward Bennett Williams:

We don’t argue Your Honor that he should profit from his own fraud.

We don’t argue, Your Honor that he should profit from a fraud, but we do argue that no penalty may be constitutionally imposed upon him for a fraud, the penalty of banishment or exile without notice and it is our contention that the construction that the government contends for brings about that precise result for these reasons.

The government, if the Court please, as I read its brief, does not argue that our construction is a possible and a reasonable construction.

I don’t want to put words into the solicitor’s brief that aren’t there, but I think this a fair reading of what he says.

He says at Page 9, “We do not contend that the question can be answered merely by a parsing of the words of the statute or by bare assertions that one reading or another is self-evident and the statute permits no other.

The process of interpretation does not stop with the words of the statute read in isolation.”

What is wrong with petitioner’s interpretation is not so much that the words cannot be made to perform the service the petitioner demands of.

Now this Court in the case of Fong Haw Tan against Phelan decided in 1948 had much the same kind of problem before it.

In that case, Fong Haw Tan had committed two murders. He was tried in the same case with two murders on two counts and he was convicted and he was given two terms of life imprisonment and then deportation proceedings were instituted against him on the ground that he was an alien who fell within Section 19 (a) of the Immigration and Naturalization Act of 1970, the forerunner of the one with which we are concerned, which provided at that time that an alien who was imprisoned for more than a year more than — who was sentenced to imprisonment for more than a year, more than once shall be deportable.

Fong Haw Tan said, “I wasn’t sentenced more than once.

I was only sentenced once because I went before the court once and he told me I had to serve two life terms.”

And the service said, “Ridiculous! Of course, he got two sentences for two murders.

Edward Bennett Williams:

He got two sentences of life imprisonment and therefore, you are deportable.”

The Court in resolving the statute in favor of the alien said this, “We give expression to that view by reading this provision of the statute to authorize deportation only where an alien having committed a crime involving moral turpitude and having been convicted and sentenced, once again, commits the crime of that nature and is convicted and sentenced for it.

We resolve the doubts in favor of that construction because deportation is a drastic measure and at times equivalent of banishment or exile, citing Delgadillo against Carmichael.

It is the forfeiture for misconduct of a residence in this country.

Such a forfeiture is a penalty.

To construe this statutory provision less generously to the alien might find support in logic, but since the states are considerable for the individual, we will not assume that Congress meant to trench on his freedom beyond that which is required by the narrowest of several possible meanings of the words used.”

Court said precisely the same thing in Delgadillo which is referred to there in Brown against Wixon and in Ng Fung Ho against White, Mr. Justice Brandeis speaking for the Court called deportation, “The loss of both property and life of all that makes life worth living.

Against the danger of such deprivation, the Fifth Amendment affords in its guarantee of due process of law.”

Now it’s our contention, if the Court please that the construction which the service puts upon the statute vis-à-vis this petitioner would deprive him of his constitutional rights under the Fifth Amendment that section which safeguards his right to liberty and says “You shall not be deprived of it without due process of law.”

Certainly, it’s of the very matrix of due process of law that one be apprised of the consequences, the penal consequences of his conduct.

This I think is an indispensable part of the basic proposition relating to due process of law.

Now the government, I contend doesn’t say that our construction of the statute is not a reasonable one and since it doesn’t say that ours is not a reasonable one then I think the statute must be held up against the principle, engaged against the principle, void for vagueness.

This court in Jordan against De George applied the void for vagueness principle to the deportation statute in 1951 and said that it was applicable to deportation cases.

Again, last year in Rosenberg against Fleuti, once again, this court, in its grant of certiorari was going to test the statue there involved against the void for vagueness problem.

Ultimately, it decided the case on a different ground avoiding the constitutional question on well-established principles, but in this case, the construction that the service argues for would deprive the petitioner of very basic rights because he was prejudiced as a result of the ambiguity of the statute.

Had the petitioner been an alien at the time he was convicted, had he known that he was an alien that the statue made him an alien then he had several courses open to him to avoid the horrible consequence of exile.

Number 1, he could have offered to plead guilty to one count of an indictment.

We all know, I don’t think it’s inappropriate to say that this Court might judicially notice that cases across the length and breadth of this nation are settled in the federal courts everyday by pleas of guilty to one felony count with nolle prosequi of the other counts in the indictment.

If he had known that he faced banishment or exile, he could have pled guilty to one count and avoided the consequences of a dual conviction, or if the government had been obdurate and said, “No, we insist upon multiple count pleas in your case”, then he had another course upon to him and here’s where, Mr. Justice Goldberg, the question that you pose becomes germane.

This was a net worth expenditure case.

In a net worth expenditure case, as the Court well know as the government doesn’t attempt to show precisely how much income was made each year because it usually is unable to show that. Rather it shows that its expenditure has exceeded its reported income over period of years and it seeks conviction on that theory.

The defendant, had he realized and recognized that banishment or exile faced him for duality of conviction, might well have waived his rights under the Fifth Amendment, taken a witness stand and conceded that all of the unreported income contended for by the government had been earned in one year and that the expenditures had been made in subsequent years and thereby obviated the possibility of a dual conviction and ensured his conviction for one count or if the Court please, he might, had he been an alien, availed himself of the provisions of 241 (b), when he was found guilty of two counts and asked the sentencing judge as an alien to eliminate the possibility of exile for him.

The judge, in the case, as the record shows, imposed concurrent sentences, and so far as imprisonment was concerned and it might well have been that he would have regarded exile or banishment as a cruel punishment and an unusual punishment in this particular case, but this opportunity was not available to the defendant.

It was not available to the defendant in the tax case, not available to the petitioner and therefore, he was prejudiced.

Prejudiced, I say, constitutionally because he had not been apprised to the fact by the language of the statute that this penal consequence flowed from his conduct.

Arthur J. Goldberg:

(Inaudible)

Edward Bennett Williams:

I think you’ll find them, Mr. Justice Goldberg, in pages 32 and 33 where we discussed Jordan v. De George and some of the cases that I have just talked about.

Now, the pertinent case law does not support the service’s position.

They place great emphasis on the case of Eichenlaub against Shaughnessy and say that, that decision by this Court is authority for the construction which they put upon the statute.

The facts in the Eichenlaub case were simple.

Edward Bennett Williams:

Eichenlaub was born in Germany in 1905.

He came to the United States in 1930.

In 1936, he was naturalized and in 1937 he returned to Germany, to the fatherland and then made a re-entry the same year.

In 1941 he was convicted of violation of the Foreign Agents Registration Act.

Thereafter, he was denaturalized and deportation proceedings were instituted against him.

It’s very significant I suggest to the Court that the service did not attempt to use the general deportation statute to deport him.

It never asserted that as a basis for deportation the statute with which we are concerned although that statute said then as it does now that an alien is deportable if he commits a crime within five years after entry.

His crime was committed and was convicted for within four years after entry because he came in, in 1937, was convicted in 1941 nonetheless it didn’t urge this as a basis for deportation because I suggested it recognized that the language of that statute was couched in the present tense and required concurrence of alienage de facto with conviction.

Rather it went to a specific statute, a statute passed in 1920 with specific language, which was aimed at aliens, German aliens who had violated wartime security of statute during World War I.

Now, what did that statute say?

The statute in the Eichenlaub case said an alien is deportable, if after hearing he is found to be an undesirable citizen by the Secretary of Labor who was then empowered to make these decisions to which, aliens who have been or may hereafter be convicted.

And the Supreme Court speaking of that language said the statutory language which says that aliens who since August 1, 1914 and then it Italicizes have been or may hereafter be convicted, referred to the requirement of the deportations be applicable to all persons who had been convicted of certain enumerated offenses since about the beginning of World War I whether these convictions were had before or after May 10, 1920.

These crimes listed were not crimes in which the conviction is dependant upon the citizenship or lack a citizenship of their perpetuators.

The Court divided four to three in that case.

Now, with the statute of course which used the perfect tense talking about aliens who have been, it didn’t use the present tense as the statute with which we’re concerned did, yet the Court was troubled to the extent of a division of four to three.

Now more recently we have a case fortunately which I suggest to the Court is on all force with the case at bar, the case of Mangaoang against Boyd, a case that came out of the Ninth Circuit in which certiorari was denied.

In the Mangaoang case, Mangaoang was born in the Philippine Islands.

He came to the United States in 1926.

In 1934, the Philippine Independence Act was passed.

The Philippine Independence Act granted independence to the Islands in 1946, but made all Philippine nationals living in the United States aliens for the purposes of the immigration, naturalization, expulsion and exclusion laws.

In 1938-1939 Mangaoang was a member of the Communist Party.

Thereafter, deportation proceedings were instituted against him under the Internal Security Sct of 1950 on the ground that Mangaoang is an alien who was a member of the Communist Party.

Now the statutory language of the deportation section relevant there was as follows.

“Aliens who, at any time, shall be or shall have been members of any of the following classes and it lists the classes seriatim (C), Aliens who are members of the Communist Party of the United States.

Now, in Mangaoang, the Court distinguishes this case from the Eichenlaub case.

It says, we do not think that the Eichenlaub case controls here for the reason that the statutory language there construed read quite differently than does the present act.

In that case, the class of persons was described as all aliens who since August 1, 1914 have been or may hereafter be convicted of any violation or conspiracy.

We think the language here under consideration, namely aliens who are members of the Communist Party, was intended to refer to persons who are the same time both aliens and members of the Communist Party.

We think it was not sufficient to prove that the appellant was an alien at the time of his arrest and that he was a member of the communist party at some prior date on which he was not shown to have been an alien.

So the Court in the Mangaoang case, number one, said that where the language is in presenting, there must be a chronological concurrence, so the alienage and the status which makes them deportable, says number two that ambiguities in language of deportation statutes must under well established principles be decided favorably to the alien and it says number three that it will not accept the relation back theory for purposes of deportation because there of course there was a contention that alienage is related back to 1934 by virtue of the statutory language which says that Philippine nationals living in the United States shall be regarded as aliens for purposes of the expulsion laws from the year 1934.

Edward Bennett Williams:

Now, if the Court please, the Ninth Circuit immediately after the Mangaoang case had had still another case before it, Resurreccion-Talavera against Barber.

In that case, there was an entry in 1934 by a Philippine.

He was convicted in 1942.

He made a trip to Mexico in 1952 and when he came back, the service sought to deport him on the ground that he was excludable at the time of his entry because he was an alien who was convicted prior to entry of a crime involving moral turpitude, and this is what the Court said, talking again about the tense of the statute.

The fact that Talavera was a national of the United States, not an alien at the time of his conviction of the crime involving moral turpitude is irrelevant.

The case of Mangaoang v. Boyd relied upon by appellant is indistinguishable.

Mangaoang was ordered deported under the provisions of The Internal Security Act of 1950 which authorized deportation of aliens who are members of the Communist Party.

This Court held that the statute in that case required that the deportee be simultaneously an alien and a member.

The statute under which Talavera was ordered deportee does not include a requirement that the deportee be an alien at the time of his conviction.

Now what does the government say to this, to the construction of the statute which we say is the reasonable and logical construction of the statute from the whole statutory scheme and from the very language of the statute itself which is couched in the present tense.

It says well, Well even if you are right, even if you are right the language of the statute can be construed this way you still lose because Section 340 (a) of the Immigration and Nationality Act of 1952 says that if you’re denaturalized, the denaturalization decree relates back to the date of naturalization and your citizenship is void ab initio and therefore there was says the service a chronological co-incidence or concurrence of alienage with conviction.

To that, we say this.

No court finally passing on this question has ever related denaturalization back for purposes of deportation.

This Court was invited to do just that in the Eichenlaub case and refrained from doing it.

In Mangaoang against Boyd, the Ninth Circuit expressly refused to relate back denaturalization for deportation.

Fortunately, there is a case again on all force with the case at bar, the case of Brancato against Lehmann, which was decided in the Sixth Circuit in 1956.

In that case, Brancato came to the United States in the year 1914.

He was naturalized in 1929 and then he went back to Italy.

He reentered in 1930.

He was convicted of perjury in 1932.

In 1937, he was denaturalized and thereafter deportation proceedings were instituted against him on the ground that he was an alien who was convicted of a crime within five years after entry, the service taking the 1930 entry as being the entry relevant to the deportation case.

Now the service argued that alienage related back so that when he was denaturalized in 1937, it related back in 1929 when he was naturalized, but he was never a citizen, that his citizenship was void ab initio, so he went back to the fatherland he was an alien.

When he came back he was just another alien seeking entry and when he was convicted two years later he was an alien who had been convicted two years after his return to the country.

What does the Court say to this?

The government’s contention would require that we give the statute a relation back construction.

We have no difficulty in giving a retroactive effect to the denaturalization order in view of the authority supporting such a ruling, but the government has cited no case from the Supreme Court or the United States Courts of Appeal which has gone the additional step and given such relation back constructions to the deportation statute.

It was urged upon the Supreme Court in United States ex rel. Eichenlaub v. Shaughnessy where the Court found that a ruling on the question was unnecessary for disposition of the case.

We think that the Court’s later rulings, the supreme court’s later ruling in Barber v. Gonsalves, 347 U.S 637, indicates disapproval of a relation back construction.

The ruling, ordering deportation in United States ex rel. Eichenlaub v. Shaughnessy, was based upon the statute of May 10, 1920 which was a special statute dealing with sabotage and espionage during the First World War and applicable to some 1650 aliens then in custody.

We do not believe that the construction given to the different wording of that statute is applicable to the general deportation statute with which we’re now concerned.

Arthur J. Goldberg:

(Inaudible)

Edward Bennett Williams:

I was saying he wouldn’t be here today for a different reason.

He wouldn’t be here today because I think he –

Arthur J. Goldberg:

(Inaudible)

Edward Bennett Williams:

I think he wouldn’t be here today, to tell you possibly he wouldn’t be here today because the question wouldn’t have arisen because number one, he could have taken steps to avoid his deportability in 1954 before the sentencing court.

If he had been apprised of the statue — if he had been apprised of the fact by the statute then he was going to be made deportable.

Arthur J. Goldberg:

(Inaudible)

Edward Bennett Williams:

If he’d been convicted two times and –

Arthur J. Goldberg:

Or not given him relief —

Edward Bennett Williams:

— not given him relief.

Arthur J. Goldberg:

He would be deported?

Edward Bennett Williams:

Well, there would be still – there would still be the question with respect to – oh! If he had never been naturalized at all, you say?

Arthur J. Goldberg:

Yes.

Edward Bennett Williams:

Alright.

Arthur J. Goldberg:

(Inaudible) nevertheless he could still, if (Inaudible)

Edward Bennett Williams:

Yes sir.

Arthur J. Goldberg:

(Inaudible)

Edward Bennett Williams:

Yes sir.

Arthur J. Goldberg:

(Inaudible)

Edward Bennett Williams:

Your Honor, my position as I can show you does not different really from the government’s position with respect of the very questions which you’re posing and I want to show you what their position is.

If you’ll just turn to the Solicitor’s brief at page 38, there the service speaking through the Solicitor General says this.

“We do not argue, we wish to emphasize, that an alien who naturalization has been revoked under 340 (a) is in exactly the same position for all purposes as one that would never been naturalized.

The relation back provision obviously cannot be so mechanically applied without regard to its purposes or the consequence is produced.

It will be plainly absurd, for example, to charge a person who traveled on an American passport while he held the Certificate of Naturalization with having re-entered the country without the proper documents to avoid an entry fees as an alien because his naturalization was later revoked, citing a case.

A closure question is whether a person who travels abroad and returns while holding a naturalization certificate, should, because of his later denaturalization begin to have made an entry at that time for purposes of establishing deportability on the basis of a conviction for a single crime committed within five years of entry on the basis of pre-entry conduct.

Then just going down two sentences, we come to the heart of the matter, to the middle of the page.

That being so, there is plainly an element of unfairness, says the government, in holding that a person who traveled abroad in reliance upon an outstanding Naturalization Certificate and that thought could be without consequence, in fact, made a new entry which placed in greater jeopardy his right to remain in the country.

Since an alien not holding a naturalization certificate might well have refrained from leaving the country rather than risk of consequences of a new entry, such an application to the relation-back principle would not merely prevent the alien from benefiting from his fraud.

It would in his sense make him worse off than he would have been had he never be naturalized for these reasons.

The decision came Brancato against Lehmann, called the attention of the Court, saw which petitioners still heavily relies on, holding that coming into the country by a naturalized citizen is not made an entry, while it’s denaturalization seems to worth entirely reasonable one.

Edward Bennett Williams:

So I say, if the Court please, just changing the language of the government’s position to fit this chase, if we started here and we said at the bottom of Page 39 since a alien not holding a Naturalization Certificate might well have plead guilty to one count in a felony indictment charging him with multiple counts of income tax evasion, rather than risk the consequences of exile, such an application of the relation-back principle would not merely prevent the alien from benefiting from this fraud, it would in a sense make him worse off by reason of this fraud.

Or since the petitioner might well have taken the witness stand and waved his Fifth Amendment Rights and conceded that unreported income was garnered in one year rather than risk exile or banishment, certainly he is worse off under the construction advanced by the Solicitor then he would be had he been an alien.

And the same argument of course, Mr. Justice Goldberg can be made with respect to 241 (b).

Since he has been an alien at least he would have been apprised to the fact that he could have asked the Court to recommend against deportation and undoubtedly he would have done that, he is worse off by the fact that he was naturalized and we don’t say for one moment for this Court that he should profit or benefit by reason of his adjudicated fraud, we take the position of the Solicitor that he shouldn’t be worse off to this extent, we say that a penalty of banishment or exile should not be imposed upon him and for this fraud without notice because it violates the basic tenets of the Fifth Amendment as the Deprivation of Liberty without due process of law.

Arthur J. Goldberg:

(Inaudible)

Edward Bennett Williams:

The statute seems to me quite clear Your Honor that either the application must be made within 30 days by an alien.

(Inaudible)r

Edward Bennett Williams:

I am quite sure as it a District Court Judge would say, I have no jurisdiction in obtainment application because the statute (Inaudible) that may obtained only an application made within 30 days after conviction by an alien.

Now through your alien now, Mr. Defendant coming here, but you’re too late.

30 days is long since gone, and this has been held by the Second Circuit and I will furnish the Court with the name of the case after the recess.

(Inaudible)

Edward Bennett Williams:

Yes sir so that this relief was not opened to him.

So it seems to me to be — I don’t use or want to use the overstatement but it seems absurd to say, that the service can carve out of this statute, a meaning which says, that if the petitioner happened to have gone Italy, if this petitioner had gone to Italy, and come back in 1952 and then convicted in 1954, the service would say well, it would be unreasonable and unfair to deport him for that conviction because he might not have left the country if he known that that was (Inaudible) face, that’s what they carve on the statute, and to say that the statute lends itself to the construction which they urging recently this petitioner, because exactly the same philosophical, legal and logical principles of day, if this petitioner had been apprised to the fact that he was being regarded as an alien in 1954, he had these myriad of courses open to him which he could have taken, which would have obligated banishment or exile to him in his present situation of statements.

For these reasons I respectfully urge the Court to reverse the holding the lower court and to strike down the order of deportation.

Byron R. White:

Mr. Williams, is it evident at all why congress passed this relation-back amendment?

Edward Bennett Williams:

I think it is Justice White.

It may take just a minute to say what my feeling is on it.

Prior to 1952 it had been judicially enunciated several times that a Denaturalization Order procured by reason of fraud made citizenship void ab initio.

In 1952, the Congress changed the language of the Denaturalization Statute.

Prior to 1952 it had been that a person could be denaturalized if he illegally or fraudulently procured his citizenship.

In 1952 under the new act, the language of the statute is that he is denaturalized, if he obtains his citizenship by willful misrepresentation, or by concealing a material fact.

So in 1952 for the first time, the Congress says, now if he obtains his citizenship by willful misrepresentation, or concealment, it’s retroactive in application, then it goes on to delineate very carefully what the effect at least as I read the statute of this retroactive application is, there had been a great bit of confusion as to what effect the void ab initio concept had on derivative citizenship?

How it affected wives and children of those persons who were denaturalized?

And in the 1952 Act, the Congress was very methodical, they cleared up.

It said this.

It said if the denaturalization order is based on fraud, derivative citizenship falls.

It says that if the if the denaturalization order is based upon the fact that the naturalized person became a member of the Communist Party or various subversive organizations within five years after naturalization and the proof is that he was at the time he was naturalized or alternatively if the naturalized person returned to the old country for permanent residence within five years after his naturalization showing that he had no real intent to stay here, then derivative citizenship falls for wives and children not living in the United States, but does not fall for wives and children then residing in the United States.

Byron R. White:

Is there any evidence that he had this precise situation in mind, the prime situation?

Edward Bennett Williams:

No.

Byron R. White:

No evidence?

Edward Bennett Williams:

No evidence with respect to the relation back theory.

There is not a line in the statutory history, legislative history of this act which suggests that he had that in mind.

Byron R. White:

But that is easier you amend the (Inaudible) and it has been.

Edward Bennett Williams:

Yes sir.

How long was that (Inaudible)

Edward Bennett Williams:

Eichenlaub came down in 1950, the year 1950, this was in 1952.

Now, I want to make sure that I am right about the date.

Eichenlaub came down in January of 1950.

The Immigration and Nationality Act was enacted in 1952.

Earl Warren:

Mr. Barnett?

Wayne G. Barnett:

Mr. Chief Justice may it please the Court.

An alien is convicted of two crimes involving moral turpitude.

He is deportable regardless of how long he has lived in this country.

Well, that maybe a harsh application of the deportation statute, but the validity of that is not in question.

The only question as Justice Goldberg noted is whether the petitioner, for the statute should be less harshly applied to the petitioner because he not only committed two crimes but also committed a fraud to obtain a naturalization certificate which has been revoked for that reason.

There are two branches to our argument.

First is, the deportation provision, Section 241 (a) (4), does not require that the person to be deported have been an alien at the time of his convictions.

Second branch is that even if it does, Section 340 (a) of the naturalization provision provides that the denaturalization shall relate back to the date of the naturalization so that for this purpose at least he must be deemed now to have been an alien at the time of the convictions.

Arthur J. Goldberg:

(Inaudible)

Wayne G. Barnett:

Yes sir.

Arthur J. Goldberg:

(Inaudible)

Wayne G. Barnett:

I am not certain of 241 (a) (6).

Let me say that we agree that many of the other grounds for deportation are cast in different language; has been, shall have been, have been or may hereafter be.

Our estimation of that is that the 1952 act was a codification basically of a lot of existing statutes all of which, many of which were cast in very different terms.

Arthur J. Goldberg:

(Inaudible)

Wayne G. Barnett:

No, I am quite sure that is not the case.

24 (a) (4) was derived from the 1917 act which used the language is hereafter sentence.

That was quite completely rewritten primarily to overcome this Court’s decision in Fong Haw Tan about the ambiguity of twice sentenced.

So it was quite totally rewritten.

I think the use of the years however have come from that source.

Wayne G. Barnett:

Most of the other provisions I think can be traced back to other statutes.

Now, I am not sure of which one Sixth derives from.

Potter Stewart:

They all are from — the whole section enacted in 1952.

Wayne G. Barnett:

Oh, yes it was.

But –

Potter Stewart:

By a single Congress –

Wayne G. Barnett:

That is correct.

Senator McCarran I think in the openings of the hearings made quite a point however the fact that because there were lot of rulings interpretive and judicial outstanding, they have tried not to change things for the sake of change and to retain old statute or old language whenever they were satisfactory and the decisions have been satisfactory.

Now our argument on 241 (a) (4), the petitioner quite rightly says, there is not that his reading of the words as the matter of language is impossible and if that’s the test, then we’re out of court, but I think that is not the end inquiry.

Our argument is that our interpretation is necessary to make sense out of the statute in relationship to the other provisions and to avoid what we think are quite irrational capricious distinctions that Congress could not have intended and also the authority of the Eichenlaub case.

We think there are basically four very fundamental objections to the interpretation that petitioner would contend for.

Now, the first is that making his deportability turn up on or making deportability turn upon the prior status of the deportee at some prior time simply has no logical relevance to the purposes of deportation.

The purpose of deportation is to remove from the country those who because they are now aliens remain here at the will of Congress and who Congress and its wisdom concludes are no longer desirable people to have because of some revealed characteristics.

The relevance of the two-conviction standard is the congressional judgment that a man who has been twice convicted has demonstrated that he has a criminal propensity, his quality of criminality and because of that quality he is no longer desired as a resident in our country.

That is the whole thrust of the deportation provision.

Now, if that be so, it seems to us that the fact that at the time he was convicted, he may have had a purported citizenship status, has nothing to do with the purpose to be served.

The conviction of the two crimes equally demonstrates his criminal propensity whether he held at that time a naturalization certificate or not.

Potter Stewart:

Certainly he, it can be assumed, he thought he was a citizen at that time and so did everybody else.

Wayne G. Barnett:

Well, in the case of actual fraud, my question extend to which he is –

Potter Stewart:

He had (Inaudible) –

Wayne G. Barnett:

That’s correct.

Potter Stewart:

If he hadn’t been guilty of fraud no matter how undesirable he might be or – he obviously couldn’t be deported no matter how many crimes he committed.

Wayne G. Barnett:

We cannot deport him because he is not now an alien.

I agree that being an alien is a very important aspect of deportation, but the time at which this is relevant is the time of the deportation proceedings because the fact that he has been an alien establishes his amenability to being deported and his precarious tenure as we mean here only so long as Congress considers him to be a desirable person to have and the judgment of desirability when we look back to his prior conduct to draw inferences about his desirability, his prior status seems to me wholly irrelevant.

Mind you, this is only one of the numbers of things which I think –

Potter Stewart:

How prior, which prior status, it seems to me that your other one is going to his prior status?

Wayne G. Barnett:

No, we say whether or not he was a citizen, one holding a defective citizenship or an alien at the time that he committed the crimes and the time he was convicted, nevertheless whichever of those statuses existed, the mere fact of conviction is the fact that establishes his criminal propensity and it’s only his criminal propensities that are now relevant to his present desirability and if you’re now an alien, and is presently undesirable, he maybe deported.

Now, the second objection, I don’t rely on any one of these, I think together they show I think irresistibly that Congress could not have intended to make this distinction.

The second is that the fact has been pointed out that it is only Section 241 (a) (4) that uses the language is and it’s upon that one word and that tense that the petitioner’s entire argument is based.

Hugo L. Black:

Which word?

Wayne G. Barnett:

Is, the fact that it says aliens who, any alien who is convicted of and has been or shall have been and the other ground for deportation by and large are phrased in different language; has been, shall have been, has been or make it after be etcetera.

Here that shows this is the purpose of differentiation.

We suggest quite the contrary that it shows that Congress has never thought of these tenses as being the key to the applicability of the provision.

Under petitioner’s argument, an alien who had been naturalized and was convicted of various other crimes and whose naturalization is clearly revoked would be admittedly deportable on the basis of pre denaturalization conduct of various kinds.

He might be deported for example for having, while holding his naturalization certificate, having engaged in subversive activities, that’s Sub-section 7, having been a drug addict, having been convicted of a narcotics violation, having been connected with the management of a house of prostitution, having been convicted of carrying sawed-off shotgun, of violation of the Alien Registration Act, of violating various wartime statutes, of importing an alien for immoral purposes.

All of this panoply are grounds for deportation would under their argument admittedly apply to denaturalized alien under basis of this prior conduct.

Potter Stewart:

Because, is was not used, some other form of the word to be, part to future (Inaudible)

Wayne G. Barnett:

No.

He says the difference is intentional and for this purpose and we say there’s no possible reason why Congress would have made that discrimination.

There’s nothing in the legislative history to suggest it, none is apparent, none is suggested by the petitioner and to the contrary, the history of this statute is deriving from discreet statutes.

They’re all collected together, suggests that the difference of wordiness is the accident at the time of enactment of the basic act.

And secondly –

Arthur J. Goldberg:

(Inaudible)

Wayne G. Barnett:

That is correct.

Arthur J. Goldberg:

(Inaudible)

Wayne G. Barnett:

I would add the point that the basic committee report, the result of the original study in describing this provision uses the language has been.

Now I don’t put too much weight on that other than to show that Congress was not conscious of the importance of these tenses, is or has been.

Committee report does describe both the existing statutes and the new ones in past tense language.

Byron R. White:

Well, Mr. Barnett, is this position is someone inconsistent with your argument about the reason for passing the relation back to —

Wayne G. Barnett:

No, no.

I would like to develop the, development of the relation back provisioned later.

I don’t think it is the — I don’t quite understand why you think it might be.

Byron R. White:

Well, you don’t wait then?

Wayne G. Barnett:

I would like to defer the development relation back to them.

He might then challenge me for the inconsistency.

Byron R. White:

Well, I guess that you say that Congress really didn’t cope with some of this wording and that this was by accident and that they certainly would have been tended to have thought of it to put some other way, but if they passed the relation back, if you suggest that they passed the relation back to provision just to take care of despairing of the situation (Inaudible) then that’s the focus on the problem and one way or the other though I can’t see how that can be both ways.

Wayne G. Barnett:

I don’t think Congress was that subtle in adopting the relation back provision.

I would try to show that that was directly in response to the fact that this Court reserve the question in Eichenlaub and I will try to deal with your problem when I come to that.

Earl Warren:

Mr. Barnett, did I understand it to say that the first study that was made of this section that is here in the present set suggested that they say ever has been?

Wayne G. Barnett:

They didn’t, they didn’t address themselves to the issue.

Wayne G. Barnett:

All I said is that in describing it, just a narrative description of what these provisions were about, the committee speaks of any aliens who have been, that’s in a brief —

Earl Warren:

Well, I wanted to ask you this question if the original study suggested that or pointed out that it should be that way, wouldn’t in fact they didn’t do it that way?

They were somewhat on the fact that they didn’t intended that way regardless of how subtle were – (Inaudible) subtle they might have —

Wayne G. Barnett:

I think not because they introduced the bail at the same time the report was filed and the report recommended the retention of the provisions providing for the deportation of aliens who have been convicted and at the same day, the same day that the report was filed, Senator McCarran filed the basic omnibus bill, McCarran having been the —

Earl Warren:

Do you think he liked subtlety in these matters?

Don’t you think that Senator McCarran had probably made some study of this situation for him to introduce that bill?

Wayne G. Barnett:

The, well, one way or the other he shouldn’t have introduced the report of he shouldn’t have introduced the bill, but if he was aware of —

Earl Warren:

What are we governed by, the report or the bill?

Wayne G. Barnett:

We govern by the bill and I’m not really trying to place that much reliance on the report because it was not focused on in the report.

Earl Warren:

But you are arguing it?

Wayne G. Barnett:

I point in response to question that there is this usage in the report which I say really it doesn’t — if it does show anything, it shows a lack of awareness or the significance of tense.

Now, that isn’t – I don’t suggest that is the answer to the case.

Earl Warren:

And the mere fact that they didn’t use the same tense in the bill that they introduced, that they used in the study that was reported, but about the same time indicates that they didn’t understand the difference between the two?

Wayne G. Barnett:

Well, if the tense is important, I think it does indicate that Congress was unaware of that significance.

Earl Warren:

Why do you say that, what do you base that on?

Wayne G. Barnett:

Well, the fact that the report in describing the provision which allegedly has this very significant tense is that makes all the difference in this application, it was described – well, I’ll read you what the report says.

This is at page 14, 15 of our brief.

Earl Warren:

I think I get report all right, but I just don’t see how you can –

Wayne G. Barnett:

Now, well, I don’t think anyone who thought that was significant that is, made the difference would have written a report that shifts tense into another tense.

Earl Warren:

Well, couldn’t you say that they didn’t – well the reason they didn’t use that tense was because they didn’t want it to be applied that way.

Wayne G. Barnett:

Well, that would support my argument I think, that they didn’t mean it to be applied.

Earl Warren:

Oh, but, they did, they used the present tense purposely.

Wayne G. Barnett:

Well, it maybe they did.

There was nothing to indicate that they did.

Now, I don’t think that prove that they didn’t.

I just offer that as a one of circumstances.

I don’t think it’s that important aspect of the case.

I think the inconsistency is produced by the interpretation are really much more important than telling what Congress might have intended by this provision.

The third one which has been pointed out is that it does give a preference to aliens who were guilty of fraud.

He would be deportable, but for the fact that he fraudulently obtained a naturalization certificate and he claims –

Potter Stewart:

Would your — wouldn’t your argument apply if the citizenship had been defective for some reason other than fraud, some just technically defective?

Wayne G. Barnett:

Yes sir, yes sir, if it were revoked.

We don’t say it’s void, we say it’s voidable, had it been cancelled –

Potter Stewart:

For some technical reason after its acquisition?

Wayne G. Barnett:

I would like to point out to the Court, I think we don’t make that much of a point of it.

In our brief in the appendix we have a footnote, noting a subsequent change in the statute which the 1952 Act can find the grounds for denaturalization to fraud, willful misrepresentation or concealment.

In 1961, they added back to the statute as a ground for denaturalization illegal procurement which would also include the fact it didn’t satisfy the resident’s requirements, however innocent he may have been –

Potter Stewart:

I think there was something wrong about the affidavit –

Wayne G. Barnett:

That’s right, that’s right.

Potter Stewart:

I think that was the case in the Brancato case in the Sixth Circuit.

I think there was some technical defect, some defect in the affidavit.

Wayne G. Barnett:

I am not sure what –

Potter Stewart:

And the distinction was sought to be made there between fraudulent procurement and illegal procurement.

Wayne G. Barnett:

Yeah, I think the fraudulent representation there was about the technical defect.

I am not sure that’s the case.

No, no, you’re quite right, you’re quite right.

But, nevertheless a consequence of it would be to prefer the one who makes the willful misrepresentation and finally, finally, if the prior –

Arthur J. Goldberg:

(Inaudible)

Wayne G. Barnett:

Yes sir, yes sir, that’s correct, that’s correct.

There is a possible –

Arthur J. Goldberg:

(Inaudible)

Wayne G. Barnett:

There is a possible argument that the relation back provision doesn’t pick up that new ground for denaturalization.

Now, I’d like to say that I think the relation back is the simpler and more conclusive ground for deciding the case and is somewhat less sweeping in its interpretations, it’s a narrower ground, whether it picks up this new ground for denaturalization is unclear, literally it would.

Now, the fourth objection is, that if prior status were to be made important, if Congress meant to make it important and to provide and in effect to recognize the de facto status of citizenship is some kind of protection for what was done while he was (Inaudible) even though fraudulent or however he got it.

The relevant time, the logical time to make status important would be at the time of the commission of the acts not at the wholly fortuitous time of conviction which maybe many years later.

This statute as petitioner reads it and it can be read this way makes status on the date of conviction controlling whatever his status was on the date that he committed the acts, that is to say if in this case –

Arthur J. Goldberg:

(Inaudible)

Wayne G. Barnett:

Oh, no no, conviction should be a requirement but if Congress meant by this to protect some one in his exercise of his prior status when he was a citizen.

Anything he did while he was a citizen shouldn’t be made a basis for deportation.

If that was the purpose and from possible reasons to make status important, logically I say the important time to look at the status is that the time that he did the acts and if he was the citizen when he did the acts you should say it ought not count against him.

Wayne G. Barnett:

But their argument is if he commits the crimes as a citizen, holding a naturalization certificate, his naturalization certificate is then revoke and he is thereafter convicted for his prior acts.

They would admit that he is deportable and I say that it’s a wholly irrational way to make prior status relevant and I think it shows that Congress didn’t mean to because it would having that to make it relevant at the time of commission and not at the time of conviction.

Now I think all of these inconsistencies, and irrationalities resulting from petitioner’s interpretation would require his rejection even if it were an open question but I don’t think it is an open question, I think it is controlled by this Court’s decision in the Eichenlaub case at 338 US.

Now the fact in statute we say all respects parallel in Eichenlaub.

Eichenlaub was naturalized in 1936, convicted in 1941, denaturalized in 1944.

He was thereafter sought to be deported under the statute, it’s set forth at Page 19 of our brief, which speaking as of the date of this enactment which is 1920 says provides for deportation of “All aliens who since August 1, 1914, have been or may hereafter be convicted” of the crimes listed one of which was the crime of which Eichenlaub was convicted that — since Eichenlaub was convicted in 1941 long after the statute the relevant language of the statute is “All aliens who may hereafter be convicted of such a crime” and I think it’s obvious that exactly the same argument could be made about the meaning of that language as it is made about the meaning of this language and in fact it was made.

This Court however rejected it.

It said that all the statute required is that you be an alien at the time of the deportation proceedings and that you be a person who has been convicted of such a crime.

Now not only is the language identical or is a same question but the reasons the Court gave for its decision are equally applicable here, they are basically the same ones I’ve been arguing.

Its decision rests primarily on the lack of any reason why Congress would have made the prior status relevant, the anomaly or irrationality of — if prior status were be relevant of looking to the time of conviction rather than a time of commission and finally the anomaly of allowing an alien who had fraudulently obtained citizenship and had it cancelled to plead his fraudulently acquired and since cancelled status as a defense to deportation and those reasons we say are equally applicable to this case and Eichenlaub fully controls this case.

Earl Warren:

In order to probably to make this analogy during the Eichenlaub case and this one we have to push accept you affirmance that the word ‘is’ means as saying as ‘has been’ in the future maybe.

Wayne G. Barnett:

Well maybe

Earl Warren:

We have to accept that in order to —

Wayne G. Barnett:

Yeah, that’s right.

Earl Warren:

to make the analogy.

Wayne G. Barnett:

Except for the reasons given by the court may have a broader impact than the identity of the language, but I do argue that it is conducted and maybe conducted and have the same implications for this purpose.

Earl Warren:

Yes.

We will recess now.

Mr. Barnett, you may continue your argument.

Wayne G. Barnett:

Mr. Chief Justice, Mr. Scolberd of Section 6 drives from the Internal Security Act of 1950 which you will find in our brief at Page 16 in the discussion of the main language.

Before I leave my first point, I like to acknowledge the Eichenlaub decision was decided by four to three Court and does not represent an absolute majority Court nevertheless we urge that it is entitled to be followed based on three reasons.

First, because it’s right, secondly because it — even though it’s four-three decision, it is the decision of this Court and the reason why that need to be disregarded.

And finally, because I think since it is more real here than usually is the case, Congress has relied upon in enacting the 1952 Act.

It not only did reenact the very provision involved in Eichenlaub in Sub-section 17, but I think it is a fair, at least possibility, I would think, I would be quite confident, that had the Eichenlaub decision been decided the other way, and the Court had felt that the tense maybe implied that he had to be an alien at that time, that Congress would have revised the provisions using that kind of language to remove the possibility of that interpretation.

The Eichenlaub decision, however, removed in a reason to rescan the provisions to take out any provisions that would pose that problem.

Potter Stewart:

If Congress would have really wanted to be careful along the lines you suggest, they would have enacted in each one of the sections the Eichenlaub language, wouldn’t they?

Wayne G. Barnett:

No, the other, the other section used has been I think would not pose the problem.

It’s only I think Sub-section 4 is really the one that might pose problem besides the Eichenlaub statute itself.

And as to Congress being very sure, I think I hope to show it in order to be very sure it adopted the relation-back provision that we will turn to that now.

So they say, I think the more satisfactory or at least simpler and I think more conclusive base to decide the case is really the relation-back provision of Section 340 (a).

Wayne G. Barnett:

Well that’s in our brief, like most conveniently pages 25 and 26.

Potter Stewart:

Just before you leave the first – your first basic point, you read the Brancato case in the Sixth Circuit as being contrary to what you told us?

Wayne G. Barnett:

I think that is relevant really only to the second point, relation-back.

In that case, the statute there, that was an exclusion or that was the conviction within five years after entry.

Potter Stewart:

I am not talking about — I have it right here and the next, last paragraph of the opinion of Judge Miller?

Wayne G. Barnett:

Yes.

Potter Stewart:

It’s the ruling order in deportation in the Eichenlaub case which is based upon statute of 1920, which was a special statute dealing with sabotage and espionage during the first World War and that’s about some 650 aliens then in custody.

You do not believe that the construction given to the different wording of that statute is that hold the general Deportation Statute, which we are now considering?

Wayne G. Barnett:

No, I am —

Potter Stewart:

Perhaps that was sort of related to the relation-back?

Wayne G. Barnett:

It does mostly seen in Brancato.

I don’t think there was any argument about his status as an alien at the time of conviction.

The only argument that he made an entry so that one crime was sufficient and on the entry argument the issue was further his denaturalization related back to make him an alien at the time of the entry.

I like to develop the relation-back.

We don’t dispute the result in Brancato.

Some of the language I take it we would disagree with.

(Inaudible)

Wayne G. Barnett:

Yes, yes.

That’s right.

Section 340 (a) is the basic denaturalization provision.

It provides seniors to denaturalize persons who obtain their citizenship by willful misrepresentations and then add in a provision which is new to the 1952 Act that such revocation and setting aside of the order admitting him for citizenship shall be effective as off the original date of the order and certificate.

Thus in this case denaturalization order shall be effective as of 1925 and we think giving that literal and natural meaning, it means that Costello must now be deemed to have been an alien through out the period of time that he held a naturalization certificate.

Now I want to hasten to add that we don’t argue that the relation back provision can be applied quite that simply or mechanically and if you do have to look to its purposes and to some extent can confine to an area which Congress seems to have intended it to apply.

What I want to show is that in fact this is the central purpose of the provision was this application in this very context.

Now as I take a basic agreement between us and the petitioner but the relation back petition was at least in some sense a codification of existing law, it didn’t spring new born.

But what that existing law consisted off is very important and we say consistent basically four court of appeals decisions plus a reservation from the question by this Court in Eichenlaub.

Now to be sure there were some earlier decisions of this Court not all involving really an application of relation back, language that suggests that one who acquires a grant by fraud takes nothing by his paper grant, that sort of general language you find might be the nullity but the first real application of the relation back doctrine came in 1932 in a decision by Third Circuit in Rosenberg versus United States, 60 F.2d.

In that case the Court held or at least opined because in fact I don’t quite see the relevance of that what it said to the issue within Court, but it at least said that a woman who had been married to a naturalized citizen whose citizenship was later revoke because of fraud was herself not a citizen and she would have been – had he been a citizen when she married him and in doing so, it simply said that since the citizenship was cancelled for fraud, he never was a citizen and therefore she could never been the wife of a citizen.

The next case at the appellate level was the decision by the Second Circuit in the Eichenlaub case.

That’s the same case I discussed which is reported at 167 F. 2d and in that case in response to the claim that Eichenlaub cannot be deported because he was not an alien at the time he was convicted.

Wayne G. Barnett:

The Court of Appeals responded simply that the degree of naturalization relates back at least for that purpose and disposed of the case specifically on that ground.

By the year later in the Willumeit case, again in the Second Circuit, the Second Circuit reaffirmed that holding after full argument on very issue and beside of that case and the relation back that involved exactly the same issue as Eichenlaub deportation and time of conviction.

About 3 months after that the Second Circuit decided another case, the Battaglino case at 172F 2d, that was a derivative citizenship case and the court held that the son of a naturalized citizen, the son being born and brought and his father later been denaturalized for fraud in that case presumptive fraud, but the son was not a citizen.

For this simple reason that since the father’s citizenship was revoked because of invalidity ab initio that father was not a citizen where their son was born and therefore he was not a citizen.

Now I want to emphasis that all of those cases the courts applied simply a monolithic concept of the retroactive effect of denaturalization.

They reasoned simply that since the father’s citizenship was revoked for initial defects, he never was a citizen and therefore was not a citizen either at the time that his son was born or at the time he was convicted or whatever was the relevant time and no one could justify slightest distinction and the application of that principle as between the two purposes.

In the next event, after those cases were decided the Court granted certiorari in Willumeit and then vacated its prior denial of –

(Inaudible)

Wayne G. Barnett:

Only in a procedural context and not at all with the implication that at least I would say, the implications petitioners give to that.

His — the case involved here is denaturalization.

They didn’t really involve first status at all.

After final judgment was entered, and the time for any further action had expired, she sought to intervene, claiming that the service is trying to deport her and therefore, she should be allowed to intervene.

The Court opens up its discussion that the question deportation isn’t before us, and all that we are deciding is whether she should intervene, it’s in that procedural context that they made the statement.

When later they said which I grant you may very well be difficult what they say about her status that wasn’t really the issue at all and at that point, they in no way (Inaudible) the distinction on the relation-back question as between the two consequences.

Arthur J. Goldberg:

You are going to deal with that?

Wayne G. Barnett:

Yes I will.

Now the next step as I say was this Court’s decision in Eichenlaub and Willumeit, they were combined and because this Court as I pointed out decided the case rather on the basis that the statute did not require alienage and did not rely on the relation-back theory as the Court of Appeals had.

It did however, at least stayed the relation-back issue and because what it said about that provided the final prelude to the legislation we set it forth in full in our brief at page 33.

What the Court, after stating the issue, says is that the government suggests that one route to a conclusion on this issue is to hold that the relators as a matter of law were “aliens” when so convicted.

The basis it suggests for so holding is that the judicial annulment of the relators naturalizations on the ground of fraud in their procurement deprived them of their naturalizations ab initio, citing Rosenberg.

They thus would be returned to their status as aliens as of the date of their respective naturalizations.

And accordingly, they would not be liable to deportation if you read the statute it was requiring aliens and then they say in our opinion it is not necessary, for the purposes of these cases, to give a retroactive effect to the denaturalization orders but rather we can decide it on the ground they did decide it.

Now it seems to me clear that the effect about what the Court there said, was to leave the relation-back doctrine which after all was that well settled in any event, it’s only been these four cases rather than really giving very extended treatment to it, was to leave that question entirely up in the air, nothing was settled.

The Court preferred not to rule on that question and it provided I suggest more than ample occasion for Congress which was now already engaged in a complete restatement of the law of integration to settle the matter, once and for all.

And I suggest that it is exactly what Congress did.

Less than 20 months after the Eichenlaub decision, senator McCarran in introducing revived version of the bill that ultimately became the law, included for the first time the express provision that such revocation shall be effective as of the date of the original naturalization.

I might note that the language parallels the opinion in the sense the opinion refers to the argument as been that they would be returned to the status as aliens as of the date of their respective naturalizations.

And what I suggest is that the only explanation for the edition of that provision of the statute was to settle the question the court had not settled and to write it into the statute.

Arthur J. Goldberg:

(Inaudible)

Wayne G. Barnett:

There is not a word in the legislative history about the reason for that addition.

Wayne G. Barnett:

It was not in the original bill that senator McCarran introduced together with the study report.

The decision was in January 1950 and the original bill and study report were introduced in April in 1950, some 94 days after the decision in Eichenlaub and that bill did not contain a relation back provision.

The study report is actually committee report, the result of there two-and-half year study of the whole area was that, the relevant part is set for page 31 of our brief, at that time had said the effect of a decree of denaturalization, as distinguished from expatriation or forfeiture of citizenship is to declare that the naturalize person never was in fact naturalized because either by fraud or illegality, the statutory prerequisites were not met.

Now at that point in time which is too much after the Eichenlaub decision one might think the author of this statement had failed to take account of fact Supreme Court at least treated the question as in open one.

I can prove that I think 925-page comprehensive report in the immigration law is not likely to reflect the events as recent as three months ago.

In any event it seems to me plain that the substance of what was contained did not reflect the doubt that would be I think reasonably created by this Court’s treatment of the question.

Earl Warren:

Mr. Barnett I was wondering if you would go that far, why do you didn’t say we don’t argue we wish to emphasis that an alien whose denaturalization has been revoked under 340 (a) is in exactly the same position for all purposes as one who never been naturalized.

Why do you feel free to carve out some situation and still maintain that this dates back, but is there everything in a history or anything that (Inaudible)

Wayne G. Barnett:

What I want you first by the history is that you was specifically a response to this kind of application.

Now the statue is not so limited and there is a problem of what other consequences it had.

I’ll argue that certainly this is this minimum application and we acknowledge that there maybe serious questions about to attempt to apply it literary in all contacts for every conceivable purpose.

Now that I don’t think was anything unusual about that process of statutory interpretation that a statue which literally would seen them include a great deal more can be construed as not having been intended to cover various kinds of issues that were seen not be anticipated.

What I want to show is this application was specifically anticipated.

The prior law existed of two application, consisted of two applications.

The derivative citizenship consequence and the issue of status at the time of the conviction for deportation purposes, that wasn’t the prior law and that context this Court declined to the decide the question and then 20 months later Senator McCarran adds it to his bill and I say that that is as conclusive proof as one can have without having a report explaining it and there was no report explaining why it was later added.

As this —

Earl Warren:

They added it to the bill after the bill that we’re interpreting, didn’t they?

Wayne G. Barnett:

Oh, no, it was added — the initial bill was introduced as I say within three months after Eichenlaub decision.

It begin in the next session of Congress, Senator McCarran Congressman Walters introduced companion bills containing some further revisions.

They then had joint hearings and after the joint hearings Senator McCarran introduced a new bill with a lot of changes in it, let me do track I don’t know how many changes some changes.

One of the changes that mate bill the first time was the addition of the relation-back provision and I say the reason it wasn’t in the first bill and it’s not really important why it wasn’t the first bill, but I think the reason it was, is they accepted the study report statement of the existing law.

Then when this Court when it circulated down that this Court had thrown that up in the air they then added it to the bill to settle the question and I say the one application, it is perfectly clear that they intended the relation back provision to have was the very context of this case.

Now the petitioner’s argument, another objection to the petitioner arguments they seem to argue that the affect the only reason for it was to settle the derivative citizenship question.

Now first of all there is nothing in any of the prior decisions since the (Inaudible) distinction, nothing in this Court’s decision.

Eichenlaub raised any doubt about the equal applicability, it raised that about the whole thing, but more than that —

Arthur J. Goldberg:

Except for other thing (Inaudible)

Wayne G. Barnett:

No, no, well it’s — Eichenlaub and Willumeit themselves in the Second Circuit.

That’s right, but when you say all of the other cases that implied a great body of established law in this as a single extension but that is not the case. Rosenberg was decided and as dicta basically suggested this (Inaudible).

The next two cases were the Second Circuit cases in Eichenlaub and Willumeit which applied it for this purpose, then in the Second Circuit’s case three months later in (Inaudible) which applied it for derivative citizenship purposes and it was right after that that the question came to the Supreme Court in Eichenlaub and Willumeit.

Now the further answer is that the original bill contained for the first time what is now in Section 348 (f) expressly proving affirmatively for the consequences of denaturalization upon derivative citizenship that was no longer left the relation back doctrine.

Wayne G. Barnett:

So at the time with the relation back Doc — provision was added, that was already in the bill a special provision to take care of derivative citizenship.

That cannot be the explanation of why relation back was added.

The only other application in existing law was the application for this very purpose and we say that — I find it impossible to believe that this was added without this application in mind.

Now I don’t say that – I am not saying it’s limited of this application but this is the minimum application that’s possible to give it.

Now as to why it might not be rigorously applied and for every purpose, I mean say, the only reason why — I don’t argue that it doesn’t apply in other cases.

The government doesn’t argue that it doesn’t and we say might not, and what seem perfectly reasonable to us to curve out exceptions when it seems that this is not the kind of consequence Congress could have intended.

But it kind—

Earl Warren:

I think that they did argue, you said it would be plainly absurd for example to argue that —

Wayne G. Barnett:

Well I guess I have to drop that one.

Earl Warren:

And then you said at the beginning we do not argue, we whish to emphasize and that an alien and so forth.

Wayne G. Barnett:

Yes.

Earl Warren:

And then you go on to say it would be absurd to argue.

Wayne G. Barnett:

No, we don’t argue that (Inaudible).

Well right, you have–

Earl Warren:

I didn’t ask it for that reason but I want to get at your —

Wayne G. Barnett:

No, no—

Earl Warren:

— real argument.

Wayne G. Barnett:

It seems to me that this kind of provision that which seek on its terms apply all kinds of consequences that no one foresee.

Suppose he voted, a naturalized citizen votes, he’s later denaturalized, can he be prosecuted for fraudulently voting because he was not a citizen.

Now I think the effect of the denaturalization is, or a fraudulently acquired denaturalization, that is voidable.

It is not void.

It does have some status.

Now the case that we agree with is the case in which an alien — a naturalized citizen leaves the country and returns on a passport.

He’s later sought to be deported on the ground that he had the wrong documents.

He should have had visa — an immigration visa as an alien when he entered, that’s a very basic reason for deporting him.

Now in that case it seems to us that to say that one who, this route — in part it was always involved an alien.

Interpretation of the interaction of several statutes, it’s not simply application of Relation-Back Provision, and to say that one who holding a Naturalization Certificate uses it as a entry right, uses it as a passport or obtains a password on the basis of it, then commits a crime and using what has been given to and is not yet been revoked, we think is not — I do think would be an absurd consequence, and I don’t think you should attribute to Congress absurd consequences.

Earl Warren:

Isn’t he using the fraudulent Naturalization Certificate just as much in this situation than others —

Wayne G. Barnett:

Well, we don’t find.

Earl Warren:

— because you couldn’t get it unless he was an American citizen and he is already American citizen because he fraudulently obtained (Inaudible) so where do you make the mistake?

Wayne G. Barnett:

Well I — let me make it this way.

What (Inaudible) case, probably held the certificate to left the country and reenter, and was later tried to be deported on basis of the single conviction after that entry, the question was whether that was an entry, so he entered on a passport.

And the Sixth Circuit held that it was not an entry.

The difference I think there I would distinguish that case, and our case, the difference there is that leaving the country is for an alien one who then at that time occupies alien status, is a very significant event.

He is in country and may not be able to get back in.

He can be excluded for grounds other than grounds for which he can be deported.

There is nothing unlawful about what he is doing in any sense.

And if on the other hand, contrast to that, a citizen –

Earl Warren:

Ultimately he asserts, I suppose he asserts himself to be a citizen when he obtained the certificate through fraud —

Wayne G. Barnett:

That would be to say that his citizenship is void, and not simply voidable.

We think what statute means is that it is voidable, and then has retroactive consequences if it is voided.

Now, at least to make my difference, to make my distinction whether or not you accept the qualification I had, I still think it is a different case because there are the alien acts in reliance on his naturalization certificate to leave the country.

If he hadn’t been naturalized, he very likely wouldn’t have left the country.

What you mean with having an alien, you jeopardize your status, you may not get back in.

If you get back in, you have an entirely new status here.

So it’s a very serious thing for an alien.

For naturalized citizen, it’s nothing; he can go and come as he will.

Now, in contrast, this case, what Mr. Costello did was to commit a crime and he was convicted of committing the crime.

The crime had nothing to do with his status at that time.

It’s equally a crime to defraud the Government of Income Tax, whether an alien or a citizen.

He would be equally be convicted of it.

None of those grounds are influenced by the outstanding naturalization certificate.

Now, certainly in that case we say the relation back provision should apply.

Tom C. Clark:

Why do you think (Inaudible) argument that the case may deprive of the benefits of 241(b), when he was convicted, that is the question?

Wayne G. Barnett:

Well, I have two answers; first on his assumption that he could not have invoked the procedure and ask for a recommendation.

Earl Warren:

He could not –

Wayne G. Barnett:

On the assumption that he could not, on the assumption – we think he can, oh, yes – I think (Inaudible) for doubt that one holding a naturalization certificate who is convicted can ask the court for a protective recommendation.

He doesn’t have to concede that he is an alien, but he certainly has the power to ask the court for a protective recommendation against deportation should his naturalization be revoked.

William J. Brennan, Jr.:

But he would have had to make this application I gather immediately after conviction, within 30 days?

Wayne G. Barnett:

The suggestion Justice Goldberg made that arguably he should have 30 days after he is denaturalized to go back and ask for recommendation is intriguing suggestion.

Wayne G. Barnett:

I don’t see immediately that it might not be a proper result, I am not saying this, we very likely would argue against this.

Tom C. Clark:

Did he try to do that?

Wayne G. Barnett:

Did he?

No, he didn’t, he didn’t.

Now, in Costello’s case, we already brought denaturalization proceedings in 1952.

Now, those are the ones this Court vacated because of the lack of an adequate affidavit, but we brought deportation proceedings before he was tried.

We brought the naturalization proceedings before he was tried on the income tax counts, so that he was aware that his naturalization was in very serious jeopardy, and I find it unbelievable that had he asked the court to make a recommendation against deportation, because he might after all be denaturalized, the government was trying to denaturalize him, that the court would say, we have no power or that this Court would affirm such a ruling by the Trial Court.

Byron R. White:

Was there any doubt at all in 1948 or 1954 or 1952 that his citizenship could be revoked for the reasons that it was ultimately revoked.

Wayne G. Barnett:

Well, no, only the doubt of outcomes litigation.

Byron R. White:

Only the doubt about the proof.

Wayne G. Barnett:

Yes, it’s —

Byron R. White:

Provisions of the law —

Wayne G. Barnett:

Litigation.

Byron R. White:

Provisions of the law were clear.

Wayne G. Barnett:

Yes, yes.

Byron R. White:

And there is no doubt in these years I suppose that what the law and relation-back was?

Wayne G. Barnett:

The doubt —

Byron R. White:

The statute as in 52 and before that in Second Circuit explained it.

Wayne G. Barnett:

Well, and at the time it is trial for income tax, it was absolutely with the Eichenlaub decision.

So that it was but for a possible difference between —

Byron R. White:

But it was in the statute by then —

Wayne G. Barnett:

Who may here — I am sorry?

Byron R. White:

But it was in the statute by then, wasn’t it?

Wayne G. Barnett:

In 54, relation-back was in the statute.

That is correct, that is correct.

Byron R. White:

Yeah, and before that, the law was clear in the Second Circuit?

Wayne G. Barnett:

It seems generally to have been accepted as an obvious proposition for a long time, well, certainly from 1932, when we had the Third Circuit decision, and there is no contrary decision other than a couple of District Court decisions which limited it to actual fraud, but they didn’t turn upon basic proposition.

Arthur J. Goldberg:

(Inaudible)

Wayne G. Barnett:

Oh sure.

Well, those are — that had been resolved before the trial.

Wayne G. Barnett:

The Eichenlaub case was decided in January 54.

Arthur J. Goldberg:

(Inaudible)

Wayne G. Barnett:

Oh yes, yes.

This court — they are litigating, sure they are the litigating challenges, right.

Arthur J. Goldberg:

(Inaudible)

Wayne G. Barnett:

Well, the —

Arthur J. Goldberg:

(Inaudible)

Wayne G. Barnett:

I am prepared to just not argue that.

The decision of the Immigration Board of Appeals I think in this case, says, that he could have implied the relation-back provision, which surely be enough to satisfy the language of the recommendation provision that an alien may and simply the fact that he may become an alien would be sufficient to justify a protective recommendation.

Arthur J. Goldberg:

(Inaudible)

Wayne G. Barnett:

It doesn’t have to be, it doesn’t have to say I believe that I am an alien.

He says, the government is trying to denaturalize me.

If they denaturalize me, I’ll be liable to deportation.

Therefore to protect me another protection I ask you to recommend against deportation.

There is nothing unusual about of that kind of request.

Hugo L. Black:

He should have anticipated that he would be denaturalized?

Wayne G. Barnett:

The proceeding — well, in Costello’s case proceedings were already pending.

Hugo L. Black:

Well, sometimes I think, maybe not often but sometimes they refuse to denaturalize?

Wayne G. Barnett:

No, no, I’m only telling that he was aware of the possibility.

I’m not saying that he has to assume that he is going to be.

Arthur J. Goldberg:

(Inaudible)

Wayne G. Barnett:

Not, not here.

I mean just there is nothing — all I meant is nothing surprising about standing on —

William J. Brennan, Jr.:

I believe I can (Inaudible)

Wayne G. Barnett:

Make him request to recommendation.

William J. Brennan, Jr.:

Something under threat of being denaturalized.

Wayne G. Barnett:

To ask for — it’s my understanding that there are very few requests at all, and I don’t know of any case where —

William J. Brennan, Jr.:

That would be ignored.

Wayne G. Barnett:

That is correct.

Tom C. Clark:

(Inaudible)

Wayne G. Barnett:

Oh yeah.

William J. Brennan, Jr.:

— with the denaturalization.

Wayne G. Barnett:

No, no, I would think that he would enter a conditional recommendation.

Tom C. Clark:

(Inaudible) that’s an alien.

Wayne G. Barnett:

Well —

Tom C. Clark:

You said, he can make a recommendation on alien, that’s (Inaudible) —

Wayne G. Barnett:

I don’t say that there isn’t a question of interpretation.

I am satisfied how it be resolved.

If that case were here and we were arguing that he can’t get a recommendation, the court has no power to grant it, I’m confident this Court would say, of course, they have power to grant it.

The whole purpose of this is to allow the judge who convicts him to appraise whether this is a kind of offense for which he should be deported that it may become a ground for deportation, he surely become naturalized.

We don’t think it is and therefore he should be able to enter the recommendation.

William J. Brennan, Jr.:

Can I ask you one other question?

Wayne G. Barnett:

Yes sir.

William J. Brennan, Jr.:

Do you depend on Eichenlaub?

Wayne G. Barnett:

On Eichenlaub?

As our first ground we do.

I think, I think the relation-back provision, we would answer even the dissent in Eichenlaub —

Tom C. Clark:

Was he convicted on kind of past convictions?

I mean was he deported on account of that, denaturalized on account of that?

Wayne G. Barnett:

Oh, yes!

The case is really exactly the same.

He was naturalized in 1936, convicted in 1941, denaturalized in 1944, and then later sought to be deported on the basis of the conviction in 1941.

Tom C. Clark:

Well, the deportation is based on the conviction or is based on undesirability?

Wayne G. Barnett:

Based on the 1941 conviction.

Now that statute at that time I think had a two-stage (Inaudible) that type of conviction and then the Attorney General, then the Secretary of Labor had to make a determination of undesirability.

Tom C. Clark:

Is that — is that conviction (Inaudible)?

Wayne G. Barnett:

Yes, Yes, Yes.

But there was a two-step process there which we don’t have here, but the question that he set of the conviction is the same.

Thank you.

Earl Warren:

Mr. Williams.

Edward Bennett Williams:

At the outset, Mr. Justice Goldberg asked a question about whether 241 (b) has been construed to require the alien to make the request within 30 days.

It has been so construed, sir, in Piperkoff against Esperdy which was decided in Second Circuit in 1959 and is reported in 267 F. 2nd at page 72, where the Second Circuit hill that the statutory requirement was that the alien make the request and that the recommendation be made within 30 days.

Arthur J. Goldberg:

(Inaudible)

Edward Bennett Williams:

It was not been a record, it’s not showing men involved.

Arthur J. Goldberg:

(Inaudible)

Edward Bennett Williams:

No, sir.

Not precisely there.

Arthur J. Goldberg:

(Inaudible)

Edward Bennett Williams:

267 F. 2nd at page 72.

Now if the Court please, Mr. Barnett with his customary forthrightness says to the Court, if the language of the statute is determined, what the statute means then, and if that’s the sole criteria as to what the statute means, then the service is out of Court.

And I say to the Court when we test the constitutionality of the statute against the void for vagueness principle, certainly it is the language of the statute with which the citizen or the alien is expected to be familiar.

There is no fiction in the law which requires them or assumes that he is cognizant of all the legislative debate or the legislative history that went behind the statute.

If you read the statute and it means from its language one thing to a reasonable man, he is entitled to rely upon that and if he relies upon it reasonably to avoid the penal consequences of the conduct that is (Inaudible), and we say in this case that the language certainly lends itself to the construction that we place upon it, the government doesn’t countervail that, and the language, as we construe it, requires the concurrence of alienage with conviction.

Now the government in the relying upon the Eichenlaub case is relying upon language very different as the circuit courts have already found.

Different from the general deportation statute, because the special statute in the Eichenlaub case says that an alien is deportable if after hearing by the Secretary of Labor he is found to be undesirable.

And then an undesirable alien is one to wit who may have been convicted or hereafter may be convicted of these various statutes.

When the Ninth Circuit considered the relevance of the Eichenlaub case to a case where the verb was couched in the present tense, it said we don’t think the Eichenlaub case controls here for the reason that the statutory language there construed read quite differently than does the present act.

It goes on to point out that the Mangaoang statute was in the present tense.

And again in the Brancato case, addressing myself to the question posed by Mr. Justice Stewart, you will recall that in that case, the language as in the case at bar was couched in present tense was an alien who is sentenced to a term of imprisonment for more than one year within five years after entry.

Not only did the court reject the relation-back theory, but the Court did not say that that language could possibly mean one who did not have the status of alien at the time that he was convicted.

So on both force the Brancato case rejects the position that is advanced by the government in this case and when the Court said at the very end of the opinion the ruling ordering deportation in United States ex rel.

Eichenlaub v. Shaughnessy was based upon the statute of May 10, 1920 which was a special statute dealing with sabotage and espionage during the first World War and applicable to some 650 aliens then in custody.

We do not believe that the construction given to the different wording of that statute is applicable to the general deportation statute which we are now considering.

We could only admit in context that whereas we’re dealing in the general deportation statute with language couched in the present tense which requires concurrence of alienage with conviction.

In the Eichenlaub statute that we’re dealing with language couched in the perfect tense which did not have this requirement and of course the relation back theory was rejected in the Brancato case.

Arthur J. Goldberg:

(Inaudible)

Edward Bennett Williams:

1914, that’s right sir, very clear.

Arthur J. Goldberg:

(Inaudible)

Edward Bennett Williams:

Yes sir, yes sir.

Arthur J. Goldberg:

(Inaudible)

Edward Bennett Williams:

That’s what Congress meant with respect to when the conviction had to take place, yes sir.

Arthur J. Goldberg:

(Inaudible)

Edward Bennett Williams:

Now –

Potter Stewart:

In the Brancato case Mr. Williams, at the time of the conviction this man had a certificate of citizenship, that wasn’t considered by the court if I read its opinion, the basic issue in that case is, was he a citizen at the time of his entry, is that right?

Edward Bennett Williams:

Brancato had a certificate of citizenship at the time he was convicted of perjury in 1930 and thereafter in 1932 he left the country, in 1932 he was convicted of perjury, that’s right.

Potter Stewart:

And then five years prior that he had (Inaudible) back.

Edward Bennett Williams:

Five years later he was denaturalized.

Potter Stewart:

That’s right.

Edward Bennett Williams:

And the argument was made that was made here, he should be regarded as an alien ab initio and the court rejected that and the Service tells this court in this case that it agrees with the position that the court took in the Brancato case, but it seeks to carve out some esoteric exception that seems to fit only the facts of this case.

It says that if Costello in fact had gone to Italy in 1952 and had returned believing he was a citizen and was convicted within five years that he wouldn’t have been deportable here because he believed he was a citizen.

But then it would have a completely different interpretation put on for the purposes of facts in this bar and we find absolutely no support, no predicate in the whole history of the statute or in the statutory language itself such discrimination or such a distinction.

It’s absolutely banned to support that kind of distinction, yet the service recoiled that urging before this Court that denaturalization should be retroactive for purposes of deportation in these cases because it recognizes that it would introduce what is in effect the imposition of an unconstitutional penalty for fraud without adequate notice to the alien, which is precisely the situation that we had in the case at bar and which is precisely the prejudice that this petitioner has suffered by reason of not being apprised of the fact that he was alien at that time, that he was tried in the Southern District of New York and therefore was deprived of the opportunity to enter a plea of guilty to obviate banishment, deprived of the opportunity to put in a defense which would have obviated exile and finally deprived of the opportunity to exercise his statutory rights under Section 241 (b) to get a recommendation from a court with regard to his dual conviction as such as to require a concurrent sentence.

He was deprived of the opportunity to ask a judge who felt that only one sentence in effect should be imposed for the dual conviction of asking that he not be sent into exile as a state with citizen for these acts, for these reasons.

(Inaudible)

Edward Bennett Williams:

I say this Your Honor that at the time that he was before the sentencing judge, he was a citizen.

There was absolutely nothing in the statute which permitted the Judge to make a recommendation with respect to a citizen convicted before him.

It would have a meaningless statement by the court because the effect of 241 (b), Your Honor, is to make the recommendation of the court binding in final and if he recommends against deportation, there can be no deportation.

In that frame of reference, a recommendation by a court with respect to a citizen would have been a meaningless exercise in judicial language.

It could have had no effect whatsoever.

I say number one, the court could not have done it had been so disposed; two, had it attempted to do, it would have been meaningless and number three, there was no notice on the convicted defendant that such a request was in order because at the time he was a citizen.

(Inaudible)

Edward Bennett Williams:

The denaturalization proceeding had been filed, Your Honor, in 1952 and has not yet been tried.

That denaturalization incidentally ended in a decision for the defendant, but at the time of the crimes that were committed here, there was no denaturalization proceeding then.

(Inaudible)

Edward Bennett Williams:

That’s exactly, sir.

(Inaudible)

Edward Bennett Williams:

Until afterwards — in 1957, excuse me, sir.

(Inaudible)

Edward Bennett Williams:

Yes sir, the Sixth Circuit said that it construed Barber against Gonzales as being in disapproval of the relation-back theory for deportation purposes and I so construe it also, although it is not a precise holding that the relation-back theory does not apply, but certainly implicit in that holding is the disapproval of the relation-back theory.

(Inaudible)

Edward Bennett Williams:

Yes, sir.

(Inaudible)

Edward Bennett Williams:

Exactly.

(Inaudible)

Edward Bennett Williams:

Exactly.

Byron R. White:

Mr. Williams and Mr. Barnett this quite doesn’t take care of my trouble and I suppose you may not be interested in doing so either, but if you assume that Congress did adopt this relation-back change in the law to cover the, just this kind of a case, whether a crime is submitted when a person was a citizen.

I suppose Congress must have been worried then about that word here and they must have accepted that construction which you’re contending for.

Edward Bennett Williams:

If Congress —

Byron R. White:

They really have no problem.

Edward Bennett Williams:

Exactly.

If the phrasing of language of 340 (a), if the pinpoint 241 (a) (4) and say look we have the word is here which requires concurrence of alienage with conviction, we’ve got to do something about that because we want to get these fellows who are enjoying a naturalize status as a result of a fraud, if they said that and then they put 340 (a) in the law, then we could assume that that was the purpose for the introduction in 340 (a).

But certainly, the legislative history of 340 (a) not only does not support that construction, but it supports that construction as I read it and so it would been simpler I think to simply amend that the 241 (a) (4) and say here’s what have been convicted of the crime at any time since entry and we wouldn’t have the problem that we have here.

We still have the problem we had in the Eichenlaub case which the Court decided in 1943, but we wouldn’t have the a fortiori problem that we have in this case.