LOCATION: Wolverine Tube, Inc.
DOCKET NO.: 287
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the Fifth Circuit
CITATION: 356 US 269 (1958)
ARGUED: Apr 03, 1958
DECIDED: Apr 14, 1958
Facts of the case
Media for Dessalernos v. SavorettiAudio Transcription for Oral Argument - April 03, 1958 (Part 1) in Dessalernos v. Savoretti
Audio Transcription for Oral Argument - April 03, 1958 (Part 2) in Dessalernos v. Savoretti
David W. Walters:
-- is relying on the theory of -- the various subsections as the basis for which this man was denied the right to have his application for suspension of deportation considered.
In other words, they are saying that the excluding provisions in each of the subsection will travel over to one or the others and particularly subsection (1) and prevent him from qualifying under subsection (1).
That argument might have varied except that self-contain in each one of the subsections, there is a reference to classes of aliens who are excluded from consideration under that particular subsection.
In subsection (1) it says, "Is deportable under any law of the United States" and the word "any law” is most significant.
It means every law including the Immigration and Nationality Act of 1952 and all its subsections, and is not a member of a class of whose deportation could not have been suspended by reason of Section 19 (b) of the Immigration Act of 1917 which has pertinence to criminal and moral type of aliens.
Section 2 says, "It's not within the provisions of paragraph (4) of this subsection," this subsection.
Section -- subsection (3) says, "It's not within the provisions of paragraph (4) or (5)."
Subsection (4) says.
"It's not within the provisions of paragraph (5) of the subsection."
And in paragraph (5) enumerates numerous subsections within Immigration and Nationality Act but has no reference whatsoever, to any provisions of the Immigration Act of February the 5th, 1917 as does Section 1.
Now, as I can be permitted with some liberties of the respondent's brief as far as this question of mutual excludability is concerned, I would like to read from page 13 of the brief -- the respondent's brief which they cite the reason for mutual exclusive theory.
One, the only overlapping between (1) and (5) under the literal language of the statute is as to pre-1950 entrance.
Deportable for failure to report or for worse, security offenses.
This is probably due to the fact that while these offenses were not so seriously regarded in 1940, they were considered very important in 1952.
The over -- overlapping in this limited respect probably represents a legislative oversight.
And not -- in other words, what they are saying is that there does exist a legislative oversight and -- they want this question of mutual excludability between the sections that this oversight could be supplied by this Court.
I don't think it was an oversight at all.
I think it was designed.
I think the legislative history which I referred to in my brief with exact quotes from the authorities shows that there was an intention that this subsection (1) stand out differently form all the others.
They say that this must be the case, although they don't cite any reason for it in -- in language or expressions of any legislative body.
This must be the case, because it deals Section 5 -- it deals with more -- a criteria of a more great nature.
And the consequences that there must be a more stringent application of the law.
Well, I would like to call the Court's attention to the fact to Section 5 as contained within it, as a qualification.
Under paragraph (2) of Section 240 (a) -- 241 (a) is a person who has remained longer in the United States than the period for which he was admitted.
That's precisely the ground on which the petitioner's deportation was sought originally.
It cannot be more stringent in this paragraph than it is paragraph (1) or more grave in paragraph (1) than it is in paragraph (5).
In addition to that, we're faced with the unusual phenomenon but let's suppose for example, that this man never came to the attention to the immigration service that he entered in 1947 prior to 1950 as he did.
He never came to the attention of the immigration service.
Subsequent to December 1957, he does come to the attention of the immigration service.
He is not charged with the additional charge that he is subject to deportation because he failed to report on a particular genre.