Gonzales v. Landon

PETITIONER:Daniel Castaneda Gonzales
RESPONDENT:H.R. Landon, District Director of Immigration and Naturalization
LOCATION:Pittsburgh Party Headquarters

DOCKET NO.: 111
DECIDED BY: Warren Court (1955-1956)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 350 US 920 (1955)
ARGUED: Dec 07, 1955 / Dec 08, 1955
DECIDED: Dec 12, 1955

Facts of the case

Question

  • Oral Argument – December 08, 1955
  • Audio Transcription for Oral Argument – December 08, 1955 in Gonzales v. Landon

    Audio Transcription for Oral Argument – December 07, 1955 in Gonzales v. Landon

    Earl Warren:

    Number 111, Gonzales versus H.R. Landon, District Director of Immigration and Naturalization.

    Mr. Wirin.

    A.L. Wirin:

    May it pleased the Court.

    This case, involves the laws of United States citizenship by a petitioner.

    He’s of Mexican descent but he was born in the State of New Mexico when he was some two years of age, he was taken by his parent’s to Mexico.

    And he remained in Mexico until he was 22 years of age.

    By that time it was 1946.

    He attempted to return and did return at that time.

    District Court ruled that the petitioner had lost his United States citizenship on the ground that he remained outside of the jurisdiction of United States for the purpose of avoiding service under a statute which provide substantially that.

    The statute is Section 401 (j) if you — Your Honors will find it at page 2 of our opening brief, our reply brief.

    It is quite short.

    It is — it was adopted by the Congress in 1944 during the war.

    It appears towards the later part — portion of page 2 of our opening brief and it provides that any citizen of the United States who remains outside of the jurisdiction of United States or leaves the jurisdiction of United States to avoid military service and may or shall loose his United States citizenship.

    The issues which are before Your Honors as the petition have used it are three.

    There is the question as to whether, in adopting Section 401 (j), Congress exceeded its constitutional power.

    This petitioner, this boy was a citizen of the United States and not by naturalization, not — not by grace of Congress but by virtue of the mandate of a Fourteenth Amendment to the Constitution of the United States.

    And so, there is posed in this case, the question as to whether Congress had the power to do it but knowing somewhat the course of decision by — of decisions by this Court on constitutional questions, namely, as to whether Congress was within or beyond its power in enacting the statute.

    I shall defer that issue for the last portion of my argument, for Mr. Justice Frankfurter and other justices of this Court, would remind me if I didn’t, that this Court will reach that question last.

    We’ll reach the question of the constitutionality only in the event all other issues have to be disposed of adversely to the petitioner.

    So, I shall travel that road to press for the issue of constitutionality, and what I like to call the highroad of my argument is last and turn to two other issues first.

    Another issue is, and not an easy one or could the Congress mean by this statute.

    What is its legislative history and more particularly, what did Congress mean by this statute?

    In the light of an agreement between the United States and the Mexican Government entered into 1943, which agreement, Your Honors will find set forth quite fully in the Government’s brief at page 29 and which as I say was entered into in1943, was acknowledged by Congress in 1943 and it appears in the 57 statutes.

    One of the question will be, whether or not this petitioner who did not leave the United States while we’re at war, but who on the contrary was a resident of Mexico while we were at war, having begun his residence during his infancy.

    One of the questions Your Honors will have to decide is whether or not he is covered by or is it well protected by the provisions of this agreement between our Government and that of Mexico?

    And therefore, his conduct does not — is not covered by and is not subject to the provisions of Section 401 (j).

    And finally, there is the question, as to whether or not in this case, the evidence is so clear and unequivocal and convincing I use a trio of words that this Court has used in the naturalization cases, in cases involving citizenship whether or not the evidence has a — the sufficient clarity or is so clear from — from doubt as to have warranted the trial court and the Court of Appeals which agree with the trial court, directing a forfeiture of — of this boy’s right to citizenship directing a forfeiture of the most precious right that any human being can now have on the face of the earth, the right to American citizenship.

    Let me take as I have listed the issues, the middle road first.

    Namely, what did Congress mean by the adoption of Section 401 (j)?

    And what is the significance of and the applicability to this case of the provisions of the agreement between this Government and that of Mexico, the terms of which you will find in the Government’s brief in an extended footnote, not too extended really, on page 29 of the Government’s brief.

    A.L. Wirin:

    Let me summarize — I — quickly and I hope accurately the terms of the provisions of this agreement between the Government of United States and that of Mexico, recognized by Congress and reported in the 57 statutes.

    In 1943, our Government entered into an agreement with the Government in Mexico, providing that the Nationals of either country, residing in the other may be registered in and may be inducted in the armies of the other country.

    It was an agreement as the agreement itself provides, for instance, particularly in paragraph 9, which Your Honors will find at page 31 of the Government’s brief, it was an agreement which we had entered into with the Government of Mexico, as the agreement itself says it was an agreement pertaining to military service.

    It was an agreement entered into, as Your Honors will find in paragraph 9, for the common war effort.

    And as I say, it provided in the first place that in American citizen residing in Mexico could register and be inducted in the Mexican Army.

    Seems like an unusual agreement, of course, but when we understand what its purpose was, it was in a common war effort.

    That was the reason for the agreement.

    This petitioner living in Mexico registered for the Mexican Army so that he complied with paragraph 1 of the agreement which Your Honors will find on page 29.

    Now, let me hasten to add this, lest I mislead the Court, which I certainly have no purpose.

    We are not urging that this boy complied with the terms of this agreement because he knew of the — the existence of the agreement.

    What we are saying is that in point of fact, he did comply and he did do all of the things which this agreement said an American citizen could do.

    Now, what are the other things which happened or which — which — what he did.The agreement further provides —

    (Inaudible)

    A.L. Wirin:

    Yes, sir.

    (Inaudible)

    A.L. Wirin:

    I do not know but it was prior to the — to the date of disagreement — for — for these agreements that certainly talks about a common — a common war effort to win the war.

    I do not know the exact date.

    Stanley Reed:

    Did the trial court make any finding of fact?

    A.L. Wirin:

    The trial court made no findings of fact and as to that, the petitioner is as much as fall as and –and anyone else.

    He waived the requirement of findings of fact.

    I will — I will, Mr. Justice Reed, a little bit later, go into the some detail on the — on the factual issues as to whether or not this boy’s conduct was voluntary and the other circumstances with respect to his not serving in the United States Army.

    The only argument I’m making now is, that what this boy did was in full compliance of with the provisions of the treaty.

    I was going to say that the treaty further provide that it shall apply to — to residents as permanent residents as distinguished in temporary residence.

    That phrase doesn’t appear in the treaty but the treaty says, “That students are not subject to it, that those — that border crosses are not subject to it.

    The officials of the respected governments are not subject to it.

    Stanley Reed:

    Where is this treaty?

    A.L. Wirin:

    This treaty is at page 29 of the Government’s brief in a footnote and extends over 3 or 4.

    Now, the treaty further provides that when a –a citizen of United States is registered in the Mexican army, that information shall be furnished to the American Government.

    That appears in paragraph 6 of the agreement which is on page 30.

    And that applies equally where a — a Mexican national registers in — in the United States Army.

    A.L. Wirin:

    The record discloses that when this boy registered in the Mexican Army, he advised the persons in charge that he was born in United States.

    In other words, then he made a statement which, of course, means that he was a citizen of United States.

    The agreement further provides in paragraph 9 and it is paragraph 9 upon which the petitioner places his chief reliance that either country in his discretion may request the other, that nationals of that country who are registered in the army of the other or inducted in may be released from that army and the transportation facilities will be — will be furnished.

    There is nothing in this record to the effect that the Government of United States ever requested the Mexican Government to release this petitioner although the inference is available to the petitioner that the fact that he had registered for the Mexican Army.

    And since he had stated he was born in United States that the information as to where he was and what he was doing was under this agreement available to the American Government.

    And now, this agreement as Your Honors will note in paragraph 10, the last section of it which appears at page 31 was not only solemnly recognized by Congress but it was intended to be a meaningful agreement.

    It was intended to — to help in the joint war effort.

    It recites that it is intended to be for the duration and for six months thereafter.

    Now, it would seem to us that this petitioner did know more, at least so far as I told the Court, than what he had a full right to do under the provision of this agreement.

    Now, the next question is, what did Congress mean when one, in adopting the following year in 1944, Section 401 (j), that’s at page 2 of our — our brief or at the very end of the Government’s brief as Your Honors prefer.

    What did Congress have in mind when in 1944, it adopted a statute which we have to confess, on it’s face is broad and which suddenly, on it’s face, makes no reference to the agreement between our Government and the Mexican Government, entered into and acknowledged by Congress fully the year before.

    And so, we are required, we think, Your Honors, are required to take a look at the legislative history.

    Now, we think the legislative history to those considerable, helpful light on whether the Congress in the adoption of 401 (j), admitting the broad language of 401 (j), intended that that apply to a boy who had gone to Mexico in his boyhood long before the draft law, suddenly without any relationship to the draft law or whether the — this is intended to apply essentially to those Americans in the United States in 1944 while we’re at war, who were then leaving the United States in order to avoid military service.

    Stanley Reed:

    But how — how can your — is that which says remaining outside the jurisdiction of United States for the purpose of evading military service?

    A.L. Wirin:

    Well, I — I can argue it for this reason.

    I can argue it because in the first place, that we take the view that, however, clear a statute may appear upon its face, if the legislative history discloses a particular purpose and a particular objective and discloses other factors which where the only factors known to the Congress that the legislation adopted by — by Congress must be read in the light of the purpose of the statute as Congress said was its — was the purpose when the statute was adopted and in the light of existing agreements.

    Otherwise, Your Honor, otherwise the — the Court or I would have to take the position, the position which I think the Government has to take that in adopting Section 401 (j), the Congress attempted to annul or to rescind the executive agreement made between the Government of the United States and the Government of Mexico.

    The agreement was there, the agreement continue in effect and we believe that the legislative history discloses that this — the 401 (j) was not intended to apply to those who are subject to the agreement.

    I’ll be — spell that out a little bit — a little bit further if I may where I’m just at this — that point to my argument.In our brief, we have attempted to give Your Honors the legislative history of Section 401 (j).

    You will find it at page 23 of our brief and following.

    The legislative history as we see it, and of — with respect to this we find no dispute in the Government’s brief is something like the following.

    401 (j), first arose from a recommendation made by the Department of Justice to the Congress.

    That is, to the two committees of the Congress that were concerned in the matter.The Attorney General in his recommendation to the Congress, referred solely to Americans who were then departing from the United States for the purpose of avoiding military service.

    Your Honor will find acknowledgement or accreditation of this claim of ours in the Government’s brief at page 61, where the letter from the Attorney General to both the House and the Senate Committee is referred to, and where it appears at least from what the Department of Justice was telling the Congress that this legislation was aimed at citizens or aliens who left the United States for the purpose of evading military service.

    And as Your Honor will find a little bit later on page 61 of the Government’s brief, this letter of the Attorney General, this legislation was aimed at those who had crossed the border into Mexico for the purpose of evading the draft.

    Now, when this letter was submitted to the House Committee and the Senate Immigration Committee, as we indicate in our brief, virtually all that happen before those committees was that each of them took the letter of the Attorney General and submitted that letter as part of its report to the Congress.

    In our brief, we recite the colloquy in the Congress.

    We recite the statements made as to the purpose of this legislation by Congressman (Inaudible) who was responsible for this legislation on the House side, by Senator Russell who was the Chairman of the Senate Committee and responsible for this legislation on the Senate side.

    In both these report, there is only a reference to Americans who were leaving the United States for the purpose of avoiding the draft.

    And then in our brief, we cite further for what it is worth of an opinion by the Board of Immigration Appeals, an opinion in 1946 by the Attorney General himself in which this legislation in discuss — is discussed and which again it is recited by these responsible administrative officials that this legislation is aimed against those who were crossing the Mexican boarder in — after the draft was adopted for the purpose of avoiding the draft.

    A.L. Wirin:

    Now, Mr. Justice Reed, I — I stand here to confess that it may — at — at first flash and before reflection, seem that I am in a difficult position when this statute says, “Remain to argue that it — that it doesn’t quite mean what It says.”

    But I do think that perhaps the resolution of the problem is as follows and decided upon you.

    That if you look closely into the legislative purpose and history of Section 401 (j) and if you keep in mind that just a year before, the Congress had enacted — the Congress had approved or had accepted an executive agreement providing that Americans who were in Mexico might render their service to this country in a joint war effort by registering in the armies — in the Army of Mexico that Your Honor can read the executive agreement and the statute together ignoring neither, and you can read it together by — by ruling that this statute was not intended to abrogate or to negate or to repudiate the agreement but it was intended primarily and essentially and should now be construed as to those Americans who were in this country and who were running away from this country after the draft and in order to avoid the draft.

    Well now, let me pass on to another consideration and that is the lower road that I said I would travel with Your Honors.

    And that is whether, assuming this first argument of mine to be insubstantial and unacceptable to Your Honors, whether or not the evidence as such as to warrant an order adjudging the petitioner had lost his United States citizenship.

    There were Justice — Mr. Justice Reed you were asking if there were findings.

    They were not.

    There is a colloquy or there are comment made by the trial court after a very short hearing and Your Honors will find them in the record beginning, that is so far as the judge’s comments are concerned beginning at page 32.

    Now, let me — let me state to Your Honor, quite simply the essential facts in this case so that Your Honors can determine whether or not the evidence or warrant an order adjudging the petitioner lost his citizenship.

    As I said, this boy was born in New Mexico and was taken there when he was two years of age.

    His education was suddenly very meager.

    According to the record he went to a Mexican school up to the age of 10 or 11.

    I mention some of these facts, now, because in a moment I shall also be arguing to Your Honors, there’s some statements that he made to the Immigration Service were involuntary.

    And therefore, the kind of a — of a statement upon which the trial court relied.

    And therefore, the kind of a boy, the kind of a man we have here becomes, of course, under Your Honors, under this Court’s decision of critical importance.

    His education then is fifth or sixth grade in a Mexican school, 10 years of age — 11 years of age to be more accurate.

    His father died and he had to go work.

    Work where?

    To work on a little farm in the remote agricultural community in Mexico, then his mother had arranged to use and made some arrangement with the Mexican Government.

    What kind of a worker was he?

    Well, his testimony is that he worked planting, (Inaudible) planting and picking corn and peas.

    The trial judge said he wasn’t — didn’t look to him like peon, like much of peon, but I submit that that is precisely what this boy was, suddenly so far as his occupation and education is concerned.

    He lived some 10 miles away from — from the closest small village.

    And he was living at his home, at the home of his mother with some five brothers and sisters, all of whom were younger and all of whom he was — he was supporting.

    There’s an interesting bit of evidence as to the — and amount of entertainment this boy was able to get during his living in Mexico.

    Up to the age of 22 years, when he came to United States, he had gone to two movies and the reason he said he had gone to only two is because his mother would not give him the money to go from his home to the village some 10 — some 10 miles away.

    So, we have a boy who is uneducated, illiterate, agricultural worker, living with his mother and under her control.

    In a moment, I want to tell Your Honors, some statements that this boy made which we claim were involuntary, when he was first questioned by the Immigration Service.

    As a matter of fact, he made many statements.

    He was questioned some four times by the Immigration Service prior to his trial in court.

    A.L. Wirin:

    And he made many inconsistent statements, but on one issue there is terribly consistency.

    And, that is, that when he remained outside of the United States while we were at war, he was doing it because he was under parental compulsion, because he was under the coercion of his mother rather than because of any free and voluntary act on his part.

    Now, let me spell out for you, if I may though I shall try to make this not too repetitious.

    The numerous occasions in which he asserted and reasserted this parental compulsion, the trial judges as a matter of fact, said he believed what this boy said before the Immigration Service, much more readily than he believed what he was telling him in the Court, because said the trial judge, at that time he had — the boy hadn’t had the benefit of a lawyer.

    He didn’t know what his legal rights are and the likelihood is that what he said before the Immigration Service then was more accurate and truthful.

    Be that as it may, this boy was first questioned by the Immigration Service in 1947.

    And on that first occasion, as we show rather fully — much more fully in our reply brief than an our opening brief, on that very first occasion when he was questioned, without a lawyer, couldn’t, of course, speak the English language, spoke through an interpreter.

    When he’s questioned before the Immigration Service, he said, in explaining why he did, wasn’t in United States during the war, he said, my mother — he said at the first hearing, “I wanted to come to the United States in 1942, but my mother would not permit me to do so.”

    Your Honors will find that on page 11 of our reply brief, the blue colored brief.

    This is what he said at the first hearing, before a lawyer talked to him, before he knew what his rights were.

    He was ordered excluded.

    He wouldn’t take no for an answer.

    So, he attempted to come back again in 1950.

    And he was stopped at the border again and he was given another hearing.

    And at this hearing, he explained again to the Immigration Service why he didn’t come back to the United States.

    He talked of his mother.

    And he said, and this appears on page 11, also, of our reply brief, “She would not let me come.

    I asked her for permission but she would not give it to me.”

    Here is a boy, here is a boy living with his mother and working on the — on their own family plot, supporting his mother who had to have permission from his mother and who — so — so he thought in order to leave the family home and because his mother — his father was dead, have been dead many years, because of the importance in his life of his mother, he felt he had to have her permission.

    She wouldn’t give it to him and so he — he didn’t return.

    And again at the same hearing, he explained that he remained in Mexico to comply with the wishes of my mother.

    To him, to this Mexican boy, to this Mexican peon if you will, the wish of his mother was his command.

    And he listened to that command and he yielded to it.

    And he may have violated his obligation under the Selective Service Act, but he was under parental compulsion in doing so.

    He was preferring the wish or the desire or the will of his mother under whose control he was, all times, to obligations which under the law he undoubtedly had.

    And at the third hearing, again before he was in court, again before he had a lawyer, for to none of these proceedings except in court did he have a lawyer.

    He gave the simple common — the simple explanation.

    He had no money to hire a lawyer because he didn’t have even enough money to go to a movie some 10 miles away during this — during this period or and — and later.

    And so, at the third hearing, and Your Honors will find that on page 14 — on page 15, he said, “My mother did not wish me to return.

    I obeyed her wishes.”

    Stanley Reed:

    Were those — those answers on page 15 the questions and answers, they came with the hearing before the Immigration Commission?

    A.L. Wirin:

    Yes.

    Let me say — say a word of —

    Stanley Reed:

    No — no dispute about the (Voice Overlap) —

    A.L. Wirin:

    There’s no dispute about that, but there is —

    Stanley Reed:

    No dispute about the correctness of those.

    A.L. Wirin:

    There can be no — I — I — there can be no dispute about the correctness of what I — of this.

    No, Your Honor.

    Stanley Reed:

    Of what?

    A.L. Wirin:

    Of what I’m now saying to you, Your Honor, on what appears in our brief.

    Stanley Reed:

    No, I mean, on page 15.

    There’s no dispute that the man was asked those questions and gave the replies?

    A.L. Wirin:

    I say there is no dispute.

    I don’t anticipate, indeed they are the exact —

    Stanley Reed:

    But you don’t dispute the correctness of it?

    A.L. Wirin:

    Oh, not at all.

    Earl Warren:

    Did he have a — an interpreter at those —

    A.L. Wirin:

    The Immigration Service furnished the interpreter.

    Now —

    Earl Warren:

    This is rather — this is rather good language that he uses.

    I wonder if he — if that’s his language or the language of the interpreter.

    A.L. Wirin:

    Well, the — the Immigration interpreters, Your Honor, use their language.

    They know what these —

    Earl Warren:

    Yes.

    Oh, but I was thinking of the boy himself.

    A.L. Wirin:

    We — we cannot tell, Your Honor.

    Earl Warren:

    Yes — yes.

    A.L. Wirin:

    All we know is, what it looks like in translation —

    Earl Warren:

    Yes.

    A.L. Wirin:

    — the Immigration Service furnished the — the translators.

    Earl Warren:

    This is a manner in which the interpreter —

    A.L. Wirin:

    Yes.

    Earl Warren:

    — reported?

    A.L. Wirin:

    A little bit later, Your Honor, I’m going to argue that with respect to some other statements, he denies that he made them.

    And he claims he made them under coercion.

    All I’m arguing now, Your Honor, is that the statements which he made to the Immigration Service, these are the ones I’m now referring to, all of disclose parental compulsion.

    And I don’t take — there is no dispute that he made these statements that I am now referring to.

    Stanley Reed:

    Well, the ones I’m referring to are not parental (Inaudible)

    A.L. Wirin:

    Oh no, oh no.

    I — I am conceding to Your Honor, that in other respects he made statements which he later denied when the trial came on.

    Stanley Reed:

    But I understood from the record that — that the opinion below that it was agreed between the parties that the record of the Immigration Service was correct and that if the witnesses were called, they would testify to the correctness of this.

    A.L. Wirin:

    Your Honor, I think that is in just one little respect an over statement.

    It was stipulated that if the immigration officers were called, they would testify that the transcripts were correct.

    They would testify that the witness had made those statements.

    Now, there was no stipulation beyond that.

    And there was on his part a statement —

    Stanley Reed:

    (Voice Overlap) —

    A.L. Wirin:

    — at the trial that some of the statements which he gave to the Immigration Service were involuntary.

    That he was under confusion and that he was scared.

    Now, if they be, I’m in — in an inconsistent position.

    I — I am relying on part of the statements he made before the Immigration Service as clearly disclosing compulsion.

    Stanley Reed:

    Well, no, I’m — but I’m making the inquiry on is — is this.

    That if there was a dispute as whether he did or did not say it that the trial judge saw that by saying that he did.

    A.L. Wirin:

    Yes.

    Yes, the trial did its — did — did resolve that by saying that he did.

    But whether or not —

    Stanley Reed:

    There was evidence both ways.

    Some for the man who said that he didn’t say that.

    Some from the Immigration Commission said that he did.

    A.L. Wirin:

    Except that on the issue of parental compulsion, there is no dispute of any kind.

    Stanley Reed:

    No, I’m not speaking (Inaudible)

    A.L. Wirin:

    And I’m — but, Your Honor, I am now speaking of parental compulsion.

    And I’m saying — I’m saying that if you take all of the — the testimony he gave before the Immigration Service that out of it, it is clear that he was under parental compulsion and therefore, it is clear that his staying away from the United States during the time of war was not his free and voluntary act.

    And therefore, the Government didn’t carry the burden which it has to carry in a — in a case involving citizenship of a showing that he’s actually was free and voluntary.

    But I think I believe —

    Stanley Reed:

    If he said — he said that he didn’t believe him.

    In regard to the parental —

    A.L. Wirin:

    The Court made no reference to not believing the parts.

    The Court did say that he did not believe him when he said that he did not know there was a war which — which the boy did say.

    Now, let me go into that right now then.

    And to — and to give Your Honors our argument as to statements which he made before the Immigration Service, which certainly are not helpful to him as I have now claimed certain statements to be helpful to him, namely, the matter of coercion.

    Hugo L. Black:

    Is it your — go ahead.

    Is it your kind that the trial judge in evaluating this (Inaudible) supply the wrong standard in evaluating that —

    A.L. Wirin:

    It is —

    — it isn’t merely a question, preponderance of evidence?

    A.L. Wirin:

    It is also that and may I answer —

    And therefore —

    A.L. Wirin:

    — that right now.

    Therefore, you’re asking us to read this record with that standard in mind, it’s your point that it doesn’t satisfy the standard, isn’t it?

    A.L. Wirin:

    It is that and a little bit more.

    In the first place, we say that the trial court used their own standard.

    That the trial court, when he came to making the decision, ruled that the burden of truth was upon the petitioner to prove his right to citizenship whereas we say the proper standard, a standard enunciated by this Court in denaturalization cases which applies also where citizenship has — has been taken away.

    That the burden’s upon the Government to carry the proof of loss of citizenship.

    And we say, and that appears in the record at page 32, Your Honor you might want to take a quick look at it.

    In the record at 32 — I said 32, I mean 33, middle of the page, I feel, just about the middle of the page, I feel, the judge said, “I feel that the plaintiff failed to make a case here.

    I think that he has not established his citizenship.”

    Now, first our argument is, that the judge was applying a wrong standard.

    Hugo L. Black:

    (Inaudible)

    There — there was no dispute about that all.

    So, that it is our position, first, the burden was upon the Government to prove by clear and convincing evidence that he had lost his citizenship and that the burden was not upon the petitioner as the — the judge said it was.

    But Justice — Mr. Justice Harlan, our position is a little bit — goes beyond that.

    We not only say that the judge used the wrong standard, but we say even if he used the right standard, that is, even if the judge had said the burden is upon the Government to prove that this boy had lost his citizenship, we say the evidence in this case isn’t sufficient to support a ruling of loss of citizenship, because the evidence, and we think Your Honors have the duty to appraise the evidence yourselves, as you did in the Baumgartner case and in the Schneiderman case.

    We think that when this Court appraises the evidence it will arrive as an independent conclusion that the evidence isn’t sufficiently sturdy and solid and clear to warrant a loss of citizenship.

    And may I say in that connection that’s what was done in the Schneiderman case and the Baumgartner case where they were rulings by two lower courts arriving at a different conclusion.

    Yes, Your Honor.

    Felix Frankfurter:

    I understand — I quite understand that you’re not bound by what merely before two lower courts have reached their conclusions.

    But is it your suggestion that we said here that those were what applies for?

    A.L. Wirin:

    No.

    Felix Frankfurter:

    Well, then you —

    A.L. Wirin:

    No.

    All I — I’m just trying to suggest some kind of a middle — of a middle road maybe something like this.

    That, of course, you do not ignore what the trial court said.

    And you give it all the deference that it deserves.

    But in the case involving citizenship, it’s involving taking away a naturalization, where there are imponderables, where there are attitudes towards the citizenship which are really more than merely simple issues of fact.

    That Your Honors will take a look at the whole case and arrive at a decision as to whether the evidence is solid and will — and will support the judgement.

    And that brings me to a consideration of why, assuming now, the evidence is not clear from the statements he made to the immigration authority that he was acting under parental compulsion.

    Why?

    Nonetheless, there is not sufficient evidence in our opinion to warrant the judgment.

    It is this.

    Let’s say there’s no question that when this boy was first questioned by the Immigration Service, he was asked whether or not it wasn’t true that he had remained outside of United States from a certain specific date in 1944 to another specific date in 1946 for the sole purpose of avoiding service and that according to the record, he gave a categorical yes answer to that question.

    We do not deny that the record shows that he said that.

    As I’m telling — as I was saying to Mr. Justice Reed at the trial, he said that he was confused before the Immigration Service.

    He said that he was scared and he said — he said that he attempted to tell the Immigration authorities that the reason he remained in Mexico was not because he was afraid of the draft, but because his mother was afraid for him to come to United States.

    And he explains in the record of the trial that when he told this to the Immigration Service they said to him, “This is not a sufficient excuse.”

    And there upon he agreed with them that the reason he stayed out was to avoid the draft.

    Now, he explains at another place, and I’d like to find it if I may, in our reply brief at page 16 — in our reply brief, the blue brief at page 16, the italicized portion towards the center of the page.

    They said it — they thought it was — I was afraid, and not because my mother was afraid.

    So, I told them to put down whatever they liked there.

    Now, this is in the record of the Immigration Service.

    This is something he said to them before he was in Court and before a lawyer could help him fix up his testimony.

    A.L. Wirin:

    What he had told the Immigration Service at a later hearing, was that he had — had attempted to explain to them that the real reason why he didn’t come back was because of the influence of his mother, didn’t call it coercion.

    He didn’t call it compulsion.

    These are my words but because of the wishes of his mother, and they said to him, “That isn’t a sufficient excuse.”

    And they said to him, “that isn’t so.”

    So, he said, “Put down whatever you like.”

    Hugo L. Black:

    Is that is sufficient excuse under the statute?

    A.L. Wirin:

    I — I say, Your Honor, that if a boy is acting under the influence of his mother so that it reaches the dignity of parental compulsion, then what he does even if it include staying away from United States, he is doing under compulsion and not as his free act.

    And that one should not lose his citizenship, if what he does is a coercive act as distinguished from the free and voluntary act.

    Felix Frankfurter:

    Like coercive, you mean he wasn’t, the — the obedience to his mother (Inaudible)

    A.L. Wirin:

    Yes.

    I — and I mean just a little bit — I — and just a little bit more.

    I mean — I mean the kind of sanctions which a mother in a rural community in Mexico has over a boy who — who has not had a father for a long time.

    I mean that that kind of devotion to a mother and that kind of control which a mother has over a boy is the equivalent of legal compulsion.

    Hugo L. Black:

    How old was he then?

    A.L. Wirin:

    He was then 18, 19, 20.

    He was 22 when he came back to United States.

    Hugo L. Black:

    Is there anything in the record that shows the — a difference in the customs and the habits of the Mexican people?

    A.L. Wirin:

    There is nothing in —

    Hugo L. Black:

    (Voice Overlap) — responsibility or the obedience that a parent must give — a child must give the parent?

    A.L. Wirin:

    There is nothing in the record which is discloses that.

    There is a reference to a — to a treatise on the subject which we have cited in our reply brief, to the effect on page 9 of our reply brief, to the effect that in — in Mexico, the family ties are — I refer to portions — the last portion of page 9.

    Professor Bills who is a reasonably well-known expert on the mores and the customs and the compulsions in Mexico, takes the view that in it appears on page 9 and 10 that the family is an overriding institution in Latin America.

    I would —

    Hugo L. Black:

    I presume — I presume you’re offering us not to show that he could obey his mother over the Government but his reputation of the charge that he stayed away for the purpose of evading the draft.

    A.L. Wirin:

    I offer it to show that and — and confessedly also to show that he was under, that he’s staying away from the United States under any circumstances was motivated because of an obligation to his mother.

    And therefore, he was under parental compulsion and therefore, he’s staying away was not his free and voluntary act.

    Felix Frankfurter:

    Mr. Wirin.

    A.L. Wirin:

    Yes, sir.

    Felix Frankfurter:

    As to what — what does Judge Harrison refer to on — after what you — what you have in mind on page 33 as to the part of in which you challenge this laying down of wrong standard.

    He goes on, middle of the page, I wish someone would appeal one these cases.

    Felix Frankfurter:

    We’ve got another and I would like to have the opinion, some definite line of cases.

    What is he talking about.

    On what does he want to rely, wish there.

    I wish someone would — would appeal one of cases.

    That presupposes that there’s a series of case presenting a common problem.

    Now, presumably the judge would have had in mind some common problem that worries me.

    Otherwise you wouldn’t have to believe any more lies here.

    A.L. Wirin:

    Right.

    Let me —

    Felix Frankfurter:

    What was it —

    A.L. Wirin:

    I — I’m sure I can’t be certain as to — as to what was in his mind but I — but I think I know.

    One of the —

    Felix Frankfurter:

    If there are because maybe there are, was made there on the arguments that on the question put to you by Mr. Justice Harlan.

    Is there some standard, some issues, some — what we call a — a question of criterion or a criterion rather thatn questions of credibility was involved.

    A.L. Wirin:

    Well —

    Felix Frankfurter:

    Maybe not even talking about something on which would should shed light on these series of cases.

    A.L. Wirin:

    Well, in the first place, just before he said that is the paragraph in which he said, “I feel that the plaintiff has failed to make a case here.”

    Felix Frankfurter:

    That’s right.

    Hugo L. Black:

    Well, just when was that — just before that you’ve said, he remained outside the United States for that purpose and it is my position that — and its my opinion, I know these cases have been very troublesome, that’s just before us?

    A.L. Wirin:

    Yes.

    Hugo L. Black:

    Was he talking about the cases of men who had gone to Mexico?

    A.L. Wirin:

    He was certainly talking about other cases —

    Hugo L. Black:

    And you understand — you understand what the Court said this morning?

    A.L. Wirin:

    Well, I — I think I can that — I can answer both — both questions or at least —

    Hugo L. Black:

    Yes.

    A.L. Wirin:

    — let me try.

    In the first place, there was a problem in the case as to where the burden of proof was.

    And at the very beginning, this judge took the —

    Felix Frankfurter:

    (Voice Overlap) — I’ve got a problem.

    A.L. Wirin:

    Pardon?

    Felix Frankfurter:

    In view of the —

    A.L. Wirin:

    Well, the judge thought there a problem.

    Felix Frankfurter:

    (Voice Overlap) —

    A.L. Wirin:

    The — the judge thought there was a problem.

    Felix Frankfurter:

    Is the Government — is the Government questioning just to — what we’ve said that was decided in those two cases and other queries namely, when you deal with, in taking away citizenship.

    It certainly can’t legal (Inaudible) since there’s no difference here and that’s why it shouldn’t be enough to make it legal.

    The Government isn’t contending the man was proved that he’s entitled to a citizenship rather than to have solid proofs before he can take it away, is it?

    A.L. Wirin:

    The Government is not contending so here, but it did in the court below.

    For instance, in the record at page 20, although Judge Harrison thought that this Court’s views were — well, let’s look at page 20 while we’re looking.

    At the bottom of the page, the Court – and Mr. Grean — yes.

    The Court —

    Felix Frankfurter:

    Who is Mr. Grean?

    The —

    A.L. Wirin:

    Well, he’s United States Attorney, Assistant United States Attorney right?

    The Court – “And whose burden is it to prove he stayed out in the United States for the purpose of evading military service?”

    Mr. Grean – “The plaintiff have that burden.

    The burden is on the plaintiff to prove his right to a judgment of nationality from this Court.”

    Felix Frankfurter:

    How did he come to be a plaintiffl’sposition?

    A.L. Wirin:

    Oh, he — he filed a suit.

    He — the petitioner had filed a suit under a provision of the Nationality Act, asserting his United State citizenship.

    Felix Frankfurter:

    All right.

    A.L. Wirin:

    The Government claimed he had lost it.

    Well, before — because the case was through, the United States Attorney has it —

    Felix Frankfurter:

    Well, doesn’t — doesn’t the Act establish that he is a citizen?

    A.L. Wirin:

    Well, he did, of course, by showing —

    Felix Frankfurter:

    Yes.

    A.L. Wirin:

    — that he was born in United States.

    Felix Frankfurter:

    That’s not what they’re talking about?

    A.L. Wirin:

    No.

    Stanley Reed:

    That was admitted, wasn’t it?

    A.L. Wirin:

    That — that was not disputed at all.

    Now, what I’m trying to say to you, Mr. Justice Frankfurter, is before the United States Attorney got through with this — with — with the judge in the case, the judge finally agreed with United States Attorney and took the view appearing on page 33.

    Felix Frankfurter:

    Before you head to page 33, look at the top of page 21.

    A.L. Wirin:

    Did I miss something there?

    Felix Frankfurter:

    I think there is.

    The burden is established.

    As soon as it is established (Inaudible)

    A.L. Wirin:

    Yes.

    That’s what the judge said then, at the beginning of the trial.

    Felix Frankfurter:

    Well, that’s right, isn’t it?

    A.L. Wirin:

    And that is right.

    But by the time he came to make his judgement, he had been persuaded by this very persuading young Los Angeles Assistant United States Attorney and agreed with Mr. Grean and at page 33 took the view and handed down a decision based upon that view, I feel, that the plaintiff failed to make a case here.

    I think that he has not established his citizenship.

    Now, that answers only half of the question that Your Honor asked.

    Let me try to answer the second half.

    What it was that was troubling this judge.

    At the trial, this petitioner denied that he stayed out of United States to avoid service.

    He had admitted it before the Immigration Service.

    And those admissions were introduced in evidence.

    Now, the judge wanted to know, Mr. Justice Frankfurter, whether or not the receipt of these admissions constituted affirmative evidence warranting the denial of citizenship or whether or not in point of fact on law, these admissions had only the quality of impeaching what the petitioner had testified to and therefore, there was no evidence either way and therefore under Baumgartner and Schneiderman, the Government hadn’t carried his case.

    Now, Mr. Grean succeeded in convincing the judge, the trial judge.

    This is one of the issues we raised in this case and in our brief.

    That admissions are admissible not only for impeachment purposes, they clearly were that, but that they also have the quality and dignity of affirmative evidence sufficient to — to carry a — a burden of proof.

    And that’s one of the issues which we think this Court may have to decide.

    Now, one final word with respect to the matter of proof and then I think I shall be done.

    The admissions which the petitioner made before the Immigration Service were virtually confessions.

    And I want to talk about the Opper case, and Smith against United States and the problem of confessions, and the — the quality of evidence which is here.

    I would just say, Mr. Justice Reed, that when this boy admitted in the first hearing before the Immigration Service that he remained outside of United States for the purpose of avoiding service, it was virtually a confession because he was confessing to having violated the draft law.

    Now then, this Court seems to have decided pretty clearly that at least in criminal cases, confessions require corroboration and that both only confessions, Mr. Justice Reed, in the upper case said that admissions require corroboration where the prosecution is a criminal one.

    Now, this Court has not yet decided and we think this is an appropriate case in which it may.

    A.L. Wirin:

    The question as to whether or not, where the proceeding is not technically criminal but whether sanctions are more severe than in a criminal case, the sanction of laws of United States citizenship, this precious, most precious of our rights, this Court it seems to me is now faced with the problem, as to whether or not it should not rule that in a case involving citizenship, confessions and admissions require corroboration just as this Court has clearly ruled confessions and admissions where the proceeding is a criminal one, require corroboration.

    And if the Court takes that view and applies it to this case, then we say there has not been sufficient evidence to carry the burden, this Court has said in the Baumgartner case and the Schneiderman case, sufficient evidence to warrant the denial of a citizenship to one born in the United States.

    I had originally intended to argue the problem of constitutionality.

    I — I reserve– reserve the right, if I may, to change my mind and to rely upon the argument — arguments which appear in our briefs on — on that subject and to reserve what remaining time I may have for rebuttal.

    Earl Warren:

    You may.

    (Inaudible)

    A.L. Wirin:

    Yes, sir.

    (Inaudible)

    A.L. Wirin:

    Well, that I wasn’t — an embarrassment which I was going to confess to — sometime ago and now I confess it for the boy.

    This printed of record, this is a case in forma pauperis.

    And that this Court after — after it granted certiorari, permitted the printing of the record.

    The printed record contains only what took place in the trial court.

    In the trial court there was, however, admitted by stipulation a transcript of the proceeding before the Immigration Service.

    That is available to Your Honors in that it is in the clerk’s office.

    We have suggested that perhaps it should be printed, the clerk who is very — who wants to (Inaudible) the resources of this Court that fixed perhaps it need not be printed since it is available to Your Honors and we do not press the matter any further.

    But it — but those statements are in the record of the trial in that they were received in evidence, and marked Exhibit A in the trial.

    And as I say, it is, the record is available to Your Honors in the office of the clerk.

    Hugo L. Black:

    All right, Mr — I’ve looked now at the statements before.

    Am I wrong in thinking it was the main worry of the judge was that he had nothing except an admission and he was asking for cases to show that he could take away citizenship on a non-corroborated admission?

    A.L. Wirin:

    Your Honor is 100% right.

    Now, there was a big dispute in the trial as to what Wigmore had said about it and Mr. Grean convinced — convinced the trial judge that — that the present view of Mr. Wigmore is the better than his former view.

    Originally, Mr. Wigmore took the view that admissions are not the equivalent of affirmative testimony but are admissible only for the purpose of impeaching testimony.

    Hugo L. Black:

    And did this man testify before the judge?

    A.L. Wirin:

    This man testified before the judge —

    Hugo L. Black:

    And did he —

    A.L. Wirin:

    — denied any — any intent to remain outside of the United States during — during the war for the purpose of avoiding the draft was confronted with the admission which he made during that first — first hearing.

    And the judge accepted that admission and posited his ruling upon that admission.

    Hugo L. Black:

    Was there any other proof except that?

    A.L. Wirin:

    Absolutely none.

    Earl Warren:

    Mr. Davis.

    (Inaudible)

    Earl Warren:

    All right.

    Mr. Davis.

    Oscar H. Davis:

    May it please the Court.

    This is an expatriation case and by that statement it is also a hard case because if the judgment of the courts below was sustained as we think it ought to be, this young man, who is a determined young man and who wishes very much to come to the United States and take his place as a citizen will not be able to do so.

    But we stand here to support the judgment of the court below because we think that this young man at a time when the choice was his, made a choice which Congress within it’s discretion and permissibly under the Constitution, has decided shall expatriate him, shall cause him to lose his nationality and shall require him to remain abroad.

    Perhaps, the sum of the Government’s case, which I shall try to explicate some length, is found in the words of Judge Harrison at the end of his oral opinion.

    He said, “This plaintiff is an intelligent young man and he probably would have made a good soldier or — and a good citizen.

    But he decided not to be a good soldier and therefore he cannot be a good citizen.”

    In other words, when the choice was his, he made one which Congress has decided shall bar him now from citizenship.

    The case involved Section 401 (j) of the 1940 Nationality Act.

    But I might point out to the Court that there is a comparable provision, somewhat stricter in the 1952 Immigration and Nationality Act and so it has continuing importance in — in that respect.

    Earl Warren:

    I suppose you’ll get back to the evidence upon —

    Oscar H. Davis:

    Yes.

    Earl Warren:

    — which should Judge Harrison made that finding (Voice Overlap) —

    Oscar H. Davis:

    I — I intend to discuss that in some detail, Mr. Chief Justice.

    We agree with Mr. Wirin that there three issues here.

    One, the issue with, did this petitioner in fact remain in Mexico in order to avoid service in the United States Army?

    And two, does the section as matter of statutory construction cover the situation of this petitioner?

    I should like to say at this point that the arguments that Mr. Wirin made, to which I shall try to answer about the — the executive agreement and the words of the statute have not here before been raised in this case until the brief on the merits.

    They were not mentioned in the court below in either court or in the petition for certiorari and that has bearing.

    I don’t want to stand too much on this because this is a constitutional case and the Court has recently taught us that in constitutional cases, even issues which have not been raised may be rest upon.

    But it does have a bearing because the fact that the — these issues were not raised at all below, it didn’t cause the facts to be developed.

    And Mr. Wirin has made certain assumptions which I believe contrary — it’d be contrary to the fact and was not supported by the record and would not, I believe, be supported if the case had been tried on that theory.

    I’m not sure that I understood just what you meant when you said that you — that its your position was he made in election (Voice Overlap) —

    Oscar H. Davis:

    Made an election?

    I — I don’t believe I said that Mr. Justice.

    Oh, then I misunderstood you.

    Oscar H. Davis:

    No, I — I believe we —

    There’s no question in the forfeiture case not —

    Oscar H. Davis:

    No, no.

    I mean, he made the choice not to serve in the United States Army, not —

    I see.

    Oscar H. Davis:

    — to register and not to serve.

    That — that’s what I meant.

    Well, getting to the first point or the third point, of course, is the constitutionally of the statute.

    Getting to the first point, did petitioner remain abroad in order to evade training and service under the statute?

    We agree, of course, that the burden of proof is on the Government to prove expatriation.

    Petitioner satisfied his burden of proving his citizenship when he proved that he was born in New Mexico in 1924.

    So, we agree that the Government did have the burden of proving losses of nationality or expatriation.

    We also agree that that burden is not the mere the preponderance of the evidence burden.

    That it is the same burden which the Court for the — is as set forth in the denaturalization cases, the Schneiderman case, the Baumgartner case and the (Inaudible) case.

    There’s been some discussions by some text writers and others that that higher standard had fought in those cases should apply only to denaturalization because you’re taking away — you’re taking away a right given by a — by a court decree and that in expatriation which doesn’t depend upon a citizenship given by a court decree, you needn’t have such a high standard.

    But the Government had not taken that position throughout these expatriation cases in the lower courts.

    And we do not take it here.

    We think we have to prove that he expatriated himself by unequivocable — unequivocal, clear convincing evidence as the Court said in those cases.

    Earl Warren:

    What was the United States — what reposition did the United States Attorney take on that in the proceeding before Judge Harrison?

    Oscar H. Davis:

    I am not certain what position the United States Attorney did take below because —

    Earl Warren:

    We’ll, refer to the —

    Oscar H. Davis:

    — the colloquy —

    Earl Warren:

    — refer to the results.

    Oscar H. Davis:

    — at pages 20 and 21?

    Earl Warren:

    20?

    Yes, start at the bottom of 20, page 20.

    Oscar H. Davis:

    The — at the bottom of page 20 is the sentence which Mr. Wirin did not read from the United States Attorney’s remark.

    Earl Warren:

    I beg you pardon?

    Oscar H. Davis:

    That at the bottom, the very bottom of page 20 is a sentence which Mr. Wirin did not read from the United States Attorney’s remark —

    Earl Warren:

    Suppose you were with —

    Oscar H. Davis:

    — and that sentence there —

    Earl Warren:

    — Mr. Grean —

    Oscar H. Davis:

    — the burden —

    Earl Warren:

    Mr. Grean.

    Oscar H. Davis:

    — is upon the Government to respond to any defense they have to make.

    Earl Warren:

    No.

    Take the whole question —

    Oscar H. Davis:

    Yes.

    Earl Warren:

    — Mr. Grean —

    Oscar H. Davis:

    — the plaintiff —

    Earl Warren:

    — and the Court —

    Oscar H. Davis:

    — has that burden, the burden —

    Earl Warren:

    — the Court and whose burden is it to prove he stayed out of the United States for the purpose of evading military service?

    Oscar H. Davis:

    The plaintiff has that burden, the burden is on —

    Earl Warren:

    (Voice Overlap) — prove himself.

    Oscar H. Davis:

    His right — I — I think we must continue, Mr. Chief Justice.

    Earl Warren:

    All right.

    Go right ahead.

    Oscar H. Davis:

    Because — and I think the issue here isn’t so much what position the United States or for what position Judge Harrison took.

    And I think that is absolutely clear.

    Earl Warren:

    Oh, but — but you said a few moments ago that Government’s always taken that position.

    I wondered if they took it below in this case at all.

    Oscar H. Davis:

    Mr. Chief Justice, I meant as a general rule.

    I — we — we, of course, not know what he — a particular individual of the United States Attorney in a particular case.

    But if —

    Earl Warren:

    We ought to know —

    Oscar H. Davis:

    The general powers.

    Earl Warren:

    — between this record, you ought to know what’s in this record.

    Oscar H. Davis:

    Perhaps you’re right, Mr. Chief Justice.

    But I don’t — I think this is a — an unclear statement of the — of what the Assistant United States Attorney said, because he did say the burden is upon the Government to respond to any defense they have to make.

    And then the —

    Earl Warren:

    Is that — is that put — does that mean that they have the burden to prove the — the basic fact here?

    Oscar H. Davis:

    I think that means that the United States has the burden of proving that he expatriated himself.

    And then the Court went on to say, the burden is established as soon as he established that he — he is a citizen.

    And then, if the Court desires to have this proven, his admissions and so forth.

    And then, may I also call the attention of the Court to what Judge Harrison said a little later on.

    He says, “Haven’t you to burden — haven’t you the burden to prove that he lost his citizenship?”

    And I think that is the view that Judge Harrison took of this proceeding.

    He —

    Earl Warren:

    Yes.

    But look — look here at the top of page 21.

    The Court says, “I am looking at it this way, counsel.

    I am not questioning — questioning the facts you made — that he made those statements.

    That is, I don’t question the Government’s records and I feel that his denial of those statements breaks down his own testimony here.

    But haven’t you a burden to prove that he has lost his citizenship?”

    Mr. Grean, is United States Attorney, isn’t he?

    Oscar H. Davis:

    Yes.

    Earl Warren:

    It is very simple to prove he has lost his citizenship by calling the Immigration and Naturalization Service to show that they have excluded him on the ground that he lost his citizenship to expatriation.

    That is the purpose of this suit.

    That is the reason why we are here.

    Now, doesn’t he mean by that that the — that the burden is on — on the plaintiff in this case to show that he has not lost his citizenship?

    Oscar H. Davis:

    I don’t read it that way, Mr. Chief Justice.

    Earl Warren:

    How do you read it?

    Oscar H. Davis:

    I read it at meaning that Mr. Grean thinks, and we would agree, that the Government sustains its burden when it brings in the record of the three prior hearings which he did have before the Immigration Service and which are contained in Exhibit A in — in the record which isn’t lodged with the clerk, as Mr. Wirin said.

    My understanding is, that Mr. Grean was taking the position that when — when he, on behalf of the Government, brought in those admissions, he had sustained the Government’s burden.

    And then they went on to discuss whether uncorroborated admissions would be sufficient.

    That that is the way I read the record.

    But in any case as I make, as I pointed out before, I think, it’s clear that Judge Harrison took the position that the burden was on the Government.

    That he thought it had been sustained here.

    For instance, if you read the colloquy of the Court, the statement of the Court, the oral statement of the Court from page 32 to 34, it’s clear that he says, “I don’t believe the petitioner when he testified that he hadn’t evaded the draft in this Court.

    I believe that he was stating the truth when he testified before the Immigration Service.”

    And then a the very end of page 33, Judge Harrison says, “I don’t know how you can ask counsel.

    Oscar H. Davis:

    Ask me to find for the plaintiff here, in view of his admissions and statements before the immigration officer.

    Earl Warren:

    But if you’ll take his language a little further up on that same page, he says, “I feel that the plaintiff failed to make a case here.

    I think that he has not established his citizenship.”

    Oscar H. Davis:

    That — that is true.

    Earl Warren:

    Doesn’t that mean —

    Oscar H. Davis:

    I think that’s —

    Earl Warren:

    — that burden is on him to establish his citizenship in this proceeding?

    Oscar H. Davis:

    I think not, Mr. Chief Justice.

    Earl Warren:

    What is it you think?

    Oscar H. Davis:

    (Voice Overlap) — if you read it all together, if you read what Judge Harrison said from the very beginning, to the very end, I think all his meaning is that the plaintiff is the plaintiff in this case and that he, Judge Harrison came to — had the firm conviction based on what he thought was convincing, clear, unequivocal evidence that the plaintiff was not telling the truth when he testified before him but that he was telling the truth when he spoke before the Immigration authorities.

    That that —

    Earl Warren:

    That he had not established his citizenship.

    Oscar H. Davis:

    I think that’s a summary statement of meaning that he is entitled — that — that he is not entitled to a judgment in the case.

    I think that’s just the way it — it a — a man would say, I think he is not entitled to a judgment.

    And if you read it in connection with this —

    Earl Warren:

    I thought of this summary statement was at the bottom where he said, “I feel, therefore, that the Government is entitled to a judgment (Voice Overlap) —

    Oscar H. Davis:

    Well, I think that —

    Earl Warren:

    So that is (Voice Overlap) —

    Oscar H. Davis:

    I think it’s the repetition.

    I think what he is saying above is — is along the same lines.

    And if you read in connection with the specific statements that he makes about what he believes and what he disbelieves on what he believe has been proved.

    Our view is that he — that Judge Harrison accepted the view that the burden was on the Government to prove expatriation.

    And as I say, that is the burden we accept in this Court.

    It’s not been fulfilled.

    We have not met our case.

    Tom C. Clark:

    Mr. Davis, did he go to Mexico at two and stay there for 17 or long number of years?

    What was the (Inaudible)

    Oscar H. Davis:

    He was taken when he was an infant of less than two in about 1925 or 1926.

    He was born in 1924.

    And he stayed in Mexico until he returned to this country in April 1946.

    Oscar H. Davis:

    He never returned to the United States at all.

    Hugo L. Black:

    That’s — how long that he’d been away when he claimed that he stayed there to evade service.

    Oscar H. Davis:

    When it was claimed?

    Well, he — the claim wasn’t made until he tried — until about 1947.

    He’d been there from —

    Hugo L. Black:

    What – what year was it that he is accused of evading service?

    Oscar H. Davis:

    Well, at — he was required to register under the President’s proclamation in December 1943 because he was 18 by that time.

    Hugo L. Black:

    Is that the basis of the charge?

    Oscar H. Davis:

    That’s right.

    Hugo L. Black:

    That actually he had been there since he was two old year in Mexico.

    Oscar H. Davis:

    Yes.

    Hugo L. Black:

    He failed — he stayed away from here in order to evade the draft.

    Oscar H. Davis:

    No, that he remained abroad.

    Hugo L. Black:

    He remain where?

    Oscar H. Davis:

    He remained abroad.

    And as I will try to point out, we believe that the record is clear.

    One, that he knew that there was a war on.

    He knew that he had to register and he did not register.

    Hugo L. Black:

    How would you — when you do get it, I hope you will point out there for all of us which justify the finding by clear and convincing proof that he stayed there, in a state mind which was based on his desire to evade the draft.

    That’s your issue here?

    Oscar H. Davis:

    Yes, Mr. Justice.

    Hugo L. Black:

    But you have that evidence by clear and convincing proof?

    Oscar H. Davis:

    That’s right.

    That — that —

    Hugo L. Black:

    You have anything except the statement he made to the officer?

    Oscar H. Davis:

    I will try to expatiate with the length of time I have, Mr. Chief — Mr. Justice Black.

    Hugo L. Black:

    Was there any other officer, any other testimony (Voice Overlap) —

    Oscar H. Davis:

    No, the only — the only evidence in the case of the — are the statements were made by him before the Immigration authority which are contained in — in Exhibit A, plus the evidence which is in — in the record which was only his — his testimony.

    Hugo L. Black:

    So, whether — whether they had proven by clear and convincing proof depends entirely on the statements that he made to the immigration officer.

    Oscar H. Davis:

    Plus what corroboration there was in the unadmitted facts such as the fact that he did stay abroad, he came to the United States —

    Hugo L. Black:

    That he stayed abroad from the time he is two until he was 18.

    Oscar H. Davis:

    No, he stayed abroad until he was 21 and a half.

    Hugo L. Black:

    Well, he kept staying then?

    Oscar H. Davis:

    That’s right.

    Hugo L. Black:

    Yes.

    Oscar H. Davis:

    Plus other admitted facts which I would like to go into.

    But before I do that, I think I’d like mention the fact that a good part of this case depends upon the kind of person petitioner was.

    And, of course, the District Judge had an opportunity to observe him.

    And his statements, we think, are — are very significant.

    He said, “This man was an intelligent man.”

    Earl Warren:

    Boy.

    Oscar H. Davis:

    Intelligent boy, Mr. Chief Justice.

    That he was not a peon by any means.

    That he was far above the ordinary intelligence of many of his people.

    That he was a pretty bright young fellow.

    And with due deference I would suggest to the Court that a reading of his statements before the Immigration authorities would support that — that view.

    “He seems from these statements, and there is no reason to believe that they were not translated accurately.

    Incidentally, he was not illiterate.

    He is literate in Spanish at the time not — not in English.

    He was not illiterate at all.

    He seems to be astute and quick, and determined, and proud.

    He — this record does not reveal a man who was cowed by the Immigration authorities, quite the contrary.

    It reveals a man who felt that he had a right to — to citizenship.

    First, he said, “Well, I’ve — I’ve made a mistake.

    I should have registered.

    Let me in and I’ll pay whatever penalty there was.”

    There was a man who was a man, who I think, was so proud that he didn’t want to admit that he was afraid of the draft.

    He said it was his mother who was afraid of the draft, as I will point out in the —

    Hugo L. Black:

    That might possibly be true but —

    Oscar H. Davis:

    It — it was quite — quite possibly true but originally —

    Hugo L. Black:

    That sometimes happens.

    Oscar H. Davis:

    That — that’s true.

    We think it’s not an excuse.

    Hugo L. Black:

    That’s true.

    Oscar H. Davis:

    Incidentally, in the discussion of the — of the burden of proof, there was one thing I should have mentioned but didn’t.

    And that is the question of duress.

    And now, I — I said the Government has the burden of proving that he committed an act of expatriation.

    That he remained abroad for this purpose.

    The issue then arises, can he excuse this act of expatriation on the ground of duress, as many people who voted abroad or served in the Italian Army tried excuses and have successfully excused and on the ground that they were under duress.

    The —

    Hugo L. Black:

    Is — is that the only question?

    Oscar H. Davis:

    No.

    I mean that is one of the questions.

    I’m — well, I’m just trying to say that on that issue, it may very well be that the Government does not have the burden of proving that he acted voluntarily.

    It may very well be and — and there seems to be a conflict of circuits at least.

    The Second Circuit seems to have held quite clearly that the burden of proving duress was on the — is on the plaintiff’s, not on the United States.

    But once the United States has shown that he committed an act, the burden of proving duress is on the — on the plaintiff, the person who claims that he did not expatriate.

    Hugo L. Black:

    Well, such a statute is made demotive, the criteria and I suppose it would be true that if he stayed away for some other reason rather than to avoid the draft, it’s immaterial what that reason was.

    Oscar H. Davis:

    Oh, that’s right.

    Hugo L. Black:

    You have to look at his motives.

    Oscar H. Davis:

    That — that is right Mr. —

    Hugo L. Black:

    So, that if he stayed away because of the closeness and the incloseness of his mother.

    Oscar H. Davis:

    Oh, that that — that is right.

    Hugo L. Black:

    That would be enough.

    Oscar H. Davis:

    That is right.

    And this seems an opportune time to purpose what I’m about to say about the record by saying that this case was before the Board of Immigration Appeals three times.

    And each time they upheld either the exclusion or the deportation.

    And that is the same Board of Immigration Appeals which in many — has many — had many other cases of this kind and has in those cases frequently held that there was no expatriation because other young men did stay in Mexico, not for the purpose of evading the draft but for the purpose of supporting their family.

    In this case, and on the basis of the information which I’m about to detail to the Court, the Board held, and we think quite properly that this man did stay in Mexico for that purpose.

    And not solely to support his family or to be with them or for some other reason which would not expatriate him.

    Oscar H. Davis:

    Now, what are the — what are the — the facts in the record?

    And by the record I mean this printed record plus the exhibit which is lodged with the clerk.

    And I think what I’m about to say must always be — must be heard against the background of the type of person a petitioner was, the way Judge Harrison described him and as I think his characteristics appear from these — these hearings.

    He knew he was an American citizen from the time he was 12 or 13.

    That is undisputed.

    He knew he was an American citizen and born in this country.

    It’s also undisputed that he wanted to come to this country from the time he was 13 or 14 because he was ambitious.

    And he felt that there were schools in this country which could supply him with mechanical training which is what he wanted to get.

    And he could, probably, couldn’t get in Mexico.

    So that he did want to come to this country.

    And there are admissions that he wanted to come to this country not only when he was — before the war but even from 1942 on.

    But that he wouldn’t come because his mother didn’t want him to.

    He knew, and I — on — on the basis of these admissions that the United States was at war at least from 1942.

    He knew that, too.

    He knew that he was required to register —

    Hugo L. Black:

    Where — where is this statement to that effect?

    Oscar H. Davis:

    It’s in the — in this exhibit.

    Hugo L. Black:

    So, it’s not here?

    Oscar H. Davis:

    No.

    It’s not.

    It’s in the — it’s not in the — in the — he didn’t in the — at the trial before Judge Harrison, he denied he knew the United States was at war.

    He said only —

    Hugo L. Black:

    I’m not talking about the United — United States was at war.

    Oscar H. Davis:

    Oh, I’m sorry.

    I’m sorry —

    Hugo L. Black:

    The other question, the other statement you made.

    Oscar H. Davis:

    Well, —

    Hugo L. Black:

    You knew, that he knew that it was not merely required at war but he —

    Oscar H. Davis:

    Knew that he was required —

    Hugo L. Black:

    — at that time was required to come back so he’d been living in Mexico all those years, was required to come back and register.

    Oscar H. Davis:

    This is filled — the — the record is filled with that.

    In fact some of —

    Hugo L. Black:

    That he knew that law?

    Oscar H. Davis:

    Yes, he did.

    In fact, some of the quotations which Mr. Wirin has included in his reply brief, stated.

    I don’t have them handy now, but they stated, I knew.

    For instance on page 16 of Mr. Wirin’s reply brief, fourth line, “I told him the truth that I knew all about it and I didn’t do it.”

    Hugo L. Black:

    Knew all about what?

    Oscar H. Davis:

    About requiring to register.

    The time is — is short and I can’t detail —

    Hugo L. Black:

    Well (Voice Overlap) —

    Oscar H. Davis:

    (Voice Overlap).

    But I will — I will cite categorically that there are statements in this exhibit —

    Hugo L. Black:

    That we will find and if we lack —

    Oscar H. Davis:

    That’s right.

    For instance on the — on page 7 of the Government’s brief, not of Mr. Wirin’s brief, the Government’s brief, “That the only true thing is and the only one that I give now is my mother’s fear of military service for me.

    I could have registered for it in Chihuahua, Mexico.”

    Chihuahua was the capital of the State and he — he went there several times.

    “I could have.

    I went there two or three times, the capital of the State.

    It was because of — of the fear of my mother that I did not do so before 1946.”

    (Voice Overlap) —

    Hugo L. Black:

    In your view — in your view it gets down to that one point?

    Oscar H. Davis:

    In my view of the facts, it does get down to that — that one point.

    That there isn’t any doubt that he knew.

    He also said he knew hostilities had ceased in 1945.

    So, I don’t remember when it was but I knew it was in 1945.

    Felix Frankfurter:

    How could he — doesn’t that contradict what he (Inaudible)

    Oscar H. Davis:

    No, this was not before Judge Harrison.

    Felix Frankfurter:

    That’s the —

    Oscar H. Davis:

    This was in the — in the Immigration inquiry.

    Felix Frankfurter:

    Later on — later on he said he didn’t know (Inaudible)

    Oscar H. Davis:

    That’s right.

    He denied that.

    But I — most of the statements that I’m talking about were made at one of the three hearings that he held.

    And then he admitted in detail and not simply in response to a leading question.

    “Did you stay abroad to — to evade the draft?”

    He admitted in detail, “Yes, I knew what I was doing.

    I didn’t want to.”

    Let me read to the Court just the very first one, first time the question was asked him, at his very first hearing.

    “Why did you not want to register for military service for this country in 1944, 1945 or 1946?”

    “Because I was afraid to register.”

    “Why were you afraid?”

    “I was afraid of military service during the war.”

    Then a little while later they asked him again and he said, “I just told you.

    Well, I will tell you again.”

    “I did not want to register.”

    “They asked him, “Why did you not register at the American consular in Chihuahua, near your home?”

    “Well, I will tell you again.

    I did not want to register.”

    So, we think it is clear that — that he knew of the requirement because he was — he — Chihuahua was a leading city and he went there.

    And as I think he was a — a relatively intelligent young man.

    We also think it’s clear from his own statements in — in this record that he didn’t stay abroad for the reasons which did occur in the other cases in which Mexican-Americans have not been expatriated.

    There have been cases where these — where the Boards have found that they stayed abroad for these other purposes to take care of their families or some other reason like that, may not even have known of the registration requirement.

    We think this petitioner is in an entirely different category and — and so —

    Sherman Minton:

    The evidence you rely upon is the evidence of his own admissions before —

    Oscar H. Davis:

    That is right.

    Sherman Minton:

    — the Immigration Commission although he denied him before the judge.

    Oscar H. Davis:

    That’s right.

    And it’s not —

    Sherman Minton:

    And you think that meets the standard of proof you’re required to make in this —

    Oscar H. Davis:

    Yes.

    Sherman Minton:

    — present case?

    Oscar H. Davis:

    I’m about — I’m about to touch on that subject.

    And it’s not only, If I may point out, it’s not only an admission to a leading question.

    It isn’t that.

    “Did you evade the draft?”

    Answer – “Yes.”

    Because in cases like that, the Boards have held, well the — the admissions of — to the leading — the admission as result of a leading question was overcome by the other statements.

    These are detailed, repeated statements again and again and again that he knew about the requirement to register and he didn’t do it because either of his own fear or — or his mother’s fear for him.

    Now, I come to the question of whether these — these admissions can be considered.

    I think there’s little doubt and I won’t spend much time on it, that they can be considered as substantive or affirmative evidence.

    There was some argument made below that they should only be considered as — as impeaching.

    And that they impeached his prior testimony but then the Government was left with nothing at all and, of course, had not sustained his burden.

    The universal rule is that they are admissible as — as affirmative or substantive evidence.

    And that’s true in criminal cases as well as civil cases.

    Then, the question arises whether corroboration is necessary.

    And on that we — we take the position, first, that corroboration is not necessary.

    And second, I will take the position that if it is required, it — it — there is corroboration here.

    On — corroboration has long been held unnecessary in almost every civil cases.

    In every — on the service civil case there are a few exceptions, mostly historical and some made by statute.

    But the — the requirement of corroboration has been limited almost entirely to criminal cases.

    Now, it is said at once, that expatriation is a severe penalty or — or severe consequence of action.

    And if the corroboration requirement should be carried over to that type of proceeding as well as obtaining only criminal cases.

    And to that, our answer would be that the Court had not done so.

    That there are many cases in which the alliance is really twofold.

    The Court had not done so.

    And second, that the higher standard, the clear convincing, unequivocal standard is intended to attain the same result without the adoption of a mechanical rule such as a corroboration.

    I said the Court has not done so.

    Denaturalization, expatriation, deportation cases have been before this Court many, many times and the Court has refused to carry over to those cases the — the various rules which do apply in — in criminal cases.

    Oscar H. Davis:

    The rules against self-incrimination, I mean the Court has held that inferences can be made from the silence of the accused if he’s called upon to testify.

    Chief Justice Stone and — and Justice Brandeis (Inaudible) case.

    The Court has applied the Rules of Civil Procedure in — in denaturalization cases.

    There has been no tradition of carrying over into this field the Rules of Criminal Procedure.

    Congress itself has adopted — has put into the statute of the Immigration law, provisions, allowing deportation just on the base of admissions alone.

    It’s long been the rule of the country that if an alien admits that he was guilty of a crime involving moral turpitude after entry or before entry, he is — he is deportable, admits.

    And those have always been interpreted as — as had been applied administratively and judicially as allowing for deportation on his sole, uncorroborated admission.

    And, of course, in Immigration cases, generally, both expatriation and deportation.

    There have used — admissions have been used and corroboration has not been required.

    Felix Frankfurter:

    So, deportation and denaturalization —

    Oscar H. Davis:

    That they are different.

    Felix Frankfurter:

    — are from different levels.

    Oscar H. Davis:

    They are different but I may point out, Mr. Justice, that deportation of an alien who had lived in this country 50 years, may be a greater sacrifice than —

    Felix Frankfurter:

    All I’m saying —

    Oscar H. Davis:

    — expatriation of this — of this young fellow who lived in the country, only two and not once —

    Felix Frankfurter:

    (Inaudible) all I’m saying that this Court has made to grant the difference in deportation proceedings and — and citizenship deportation proceedings.

    Oscar H. Davis:

    That — that is true.

    But insofar as the — insofar as the claim is that the — the proceeding is a severe one, you can’t get much help because of the deportation situation.

    Felix Frankfurter:

    To be totally honest with you on your (Inaudible) that this Court has laid down a rule of and via scrutiny —

    Oscar H. Davis:

    It had.

    Felix Frankfurter:

    — even in Schneiderman, the Baumgartner cases and this is often does not really qualify that at all after that by, at least your mechanical requirements.

    Oscar H. Davis:

    Well, that is my primary position but I go on, (Voice Overlap) —

    Earl Warren:

    In view of the purpose, was the purpose of this Act of expatriation punishment?

    Oscar H. Davis:

    Mr. Chief Justice, I can’t answer the question because I don’t — I — I think it was deterrence.

    Part of the purpose was deterrence.

    And if you mean by punishment to deter him and other people and that is one of the elements of punishment, I would agree.

    I think it has a dual purpose.

    I think at one, it — this effort was to deter petitioner here and others from trying to avoid or evade the draft.

    I also think that the purpose was, which you might call a consequence.

    That is, a person who made a choice not to serve the country wasn’t a worthy citizen and — and shouldn’t be accepted.

    Oscar H. Davis:

    So, I think it had a dual purpose.

    Perhaps, many criminals statute do, too, but so do several remedies and, of course, deportation and other provisions of the expatriation law born of the same category.

    They may attempt to deter certain types of action, but they also impose condition subsequent upon the commission of the act, if you’re taking an oath of allegiance to a foreign country.

    Expatriation law wants to prevent that from being done and, of course, it imposes consequences.

    But getting to the point of whether there was corroboration.

    Now, the corroboration that we allege, it all consists of what petitioner himself admitted at the trial before Judge Harrison or the undisputed facts.

    He admitted that he had resided abroad until April 1946.

    That is, nine months after hostilities ceased, was the first time that he sought entry into — into the United States.

    He admitted this before Judge Harrison.

    It was clear that he was amenable to the draft.

    There was a provision requiring Americans resident in Mexico to register at the consulates or the embassies near them.

    And as I said, he — he admitted before the Immigration authorities that he knew of that provision but at least he was subject to it.

    There’s no —

    Stanley Reed:

    I don’t — I don’t understand the corroboration arising from the fact that he didn’t return until after the war.

    Oscar H. Davis:

    In the Opper and Smith cases last year in –in criminal cases, the Court laid down the rule that there must be substantial and other evidence fortifying restraint on it.

    I’m trying to argue that the admissions that he made before the Immigration authorities were fortified, one, by the admitted fact that he didn’t return to this country until after hostilities had ceased, when he was 21 and a half years of age.

    We think that’s a (Voice Overlap) —

    Stanley Reed:

    Suppose the hostilities were over.

    Oscar H. Davis:

    That’s right.

    Stanley Reed:

    Therefore —

    Oscar H. Davis:

    It was easy for him to come back.

    He wouldn’t be subject to service —

    Stanley Reed:

    I see.

    Oscar H. Davis:

    — in a place where he could be killed.

    Stanley Reed:

    I see.

    Oscar H. Davis:

    Then —

    Earl Warren:

    Had there been any other Act or any other Expatriation Act that had punishment as its purpose?

    Oscar H. Davis:

    Punishment?

    Earl Warren:

    Yes.

    Oscar H. Davis:

    Yes, Mr. Chief Justice.

    Earl Warren:

    Which one?

    Oscar H. Davis:

    Perhaps not today.

    Perhaps tomorrow, I’ll talk about the — the 1865 Statute which was passed at the end of the Civil War which — which said that deserters from the Army were those people who evaded the draft, lost their right, forfeited their right of citizenship.

    And that was clearly intended in its context and just the reading of it allow to deter people from evading the draft or from deserting the Army.

    Then that’s one.

    And that was in effect throughout — through the rest of the Civil War just a few months that were left.

    It was, in effect, throughout World War II and was the prototype of this statute which was enacted in 1944.

    Earl Warren:

    Well, did that — did that Act take away all of their —

    Oscar H. Davis:

    Yes.

    Earl Warren:

    — citizenship or did — did it just take away rights of citizenship?

    I thought that takes away the rights of citizenship.

    Oscar H. Davis:

    As — as construed both by Congress, I think, and administratively, it took away their nationality, their — and citizenship as a whole.

    Earl Warren:

    They have no nationality of any kind?

    Oscar H. Davis:

    They had — that those who had some other nationality had that left.

    The others were stateless.

    This is — this is the way the State Department construed it.And this is the way, I think, Congress construed it.

    It — it appeared in the Revised Statutes of 1871 under the Title, Citizenship.

    It appeared immediately before the section on expatriation, the general section which says that all Americans have the right to expatriate themselves.

    And it appeared under the Regular Heading Citizenship, along with other provisions which deal only with citizenship as a whole, with nationality.

    That is, all Americans born in this country are citizens with provisions of that type.

    It was so interpreted by the — by the State Department, as I say it, administratively for at least over 50 years.

    In 1906, the Citizenship Board was established at the request of Congress by the Secretary of State and it has very distinguished membership.

    James Brown Scott, then the solicitor, was the chairman and they issued a very voluminous report which was the basis for the 1970 Expatriation Act.

    And in their report, they say — they cite this 1865 statute as a — as a statute involving loss of nationality.

    At that time it was the only statutory provision for loss of nationality because the 1970 statute hadn’t yet been passed.

    Hugo L. Black:

    Was it a major crime then?

    Oscar H. Davis:

    Yes.

    The same statute which — which provided the loss of citizenship also made it a crime both to avoid — evade the draft and to desert the Army.

    Hugo L. Black:

    If this Act had been written to conform a — a — shall be a felony, that it should be a crime for any citizen to remain out of the country in order to evade the draft, punishable by taking away his citizenship and it said no more.

    You would have to have corroborative evidence, wouldn’t you?

    Oscar H. Davis:

    If it were — if we were put only in terms of — of —

    Hugo L. Black:

    That it just had what I said?

    Oscar H. Davis:

    Yes.

    But —

    Hugo L. Black:

    In other words, if the words had been that it should be crime for — for a citizen to remain out of the country to evade the draft, using the exact language as you have, punishable by deprivation of citizenship, then evidence could have had to have been never used to corroborate it.

    Oscar H. Davis:

    That’s right.

    And I haven’t finished arguing, but I think there was sufficient corroborative evidence in this case.

    Hugo L. Black:

    Well, while you’re — while you’re arguing it out, I’ll — I’d — I’d like you to refer because maybe you’d say I haven’t read the rest of it.

    I think the — to the evidence which particularly corroborates with that, not that he was away but that the purpose for which he remained away was to evade the draft rather than to obey what many people think is very important to turn you up to 21 his mother’s wishes.

    Oscar H. Davis:

    Mr. Justice Black, I can say quite frankly now that there is no statement before Judge Harrison in which he admitted that that was his —

    Hugo L. Black:

    Well, is there any corroboration of that from anybody else?

    Oscar H. Davis:

    There is — there is no testimony by anyone else.

    Hugo L. Black:

    That is a crucial part of your case, isn’t it?

    Oscar H. Davis:

    Yes.

    Just as in many criminal cases, the element of willfulness or the intent to — to perjure or lie is a crucial part but corroboration does not require someone coming up and saying, “The man told me –“

    Hugo L. Black:

    I — I understand that.

    But do you have anything to which you can point that would corroborate the time — a time that his purpose in remaining away was to evade the draft, rather, even his admission, rather than to do what his mother said.

    Oscar H. Davis:

    Yes, Mr. Justice.

    We take the whole complex of facts which — which — to which he admitted in — in before Judge Harrison does corroborate that admission, that he knew about his American citizenship, that he wanted to come to the United States long ago, that he did not come until after the war was over, did not come until after the war was over.

    He — the people had told him that the United States was at war.

    Before Judge Harrison, he said he didn’t learn until 1946.

    Hugo L. Black:

    You’re — you’re looking for his corroboration for the corroboration of that crucial point to other — they are parts of admission.

    Oscar H. Davis:

    No.

    I’m talking about admissions that he made before at the trial, not admissions before the Immigration authorities, testimony that he made at the trial.

    And we think it’s fair to use testimony that he gave at the trial in corroboration of his statements —

    Hugo L. Black:

    For that —

    Oscar H. Davis:

    — his extra judicial statements.

    Hugo L. Black:

    I’m trying to think that, too.

    Oscar H. Davis:

    There — there is no other evidence.

    I mean there isn’t — there is no evidence by anyone else.

    Oscar H. Davis:

    So that if we cannot find it in what he said, plus the objective fact that he — he was amenable to the draft, he didn’t come back until 1946, April, plus the fact that he knew he was an American citizen, plus the fact that he wanted to come to this country.He admitted he wanted to come to this country from an early age.

    If there is not corroboration in that, then we do not have corroboration.

    But it’s our position that that is sufficient corroboration.

    Hugo L. Black:

    But I think your corroboration of the willful purpose to his rights.

    Oscar H. Davis:

    That is, the draft.

    I — I would say that I think that that would be sufficient corroboration even in a criminal case of — with a man of this type, with a man who is as astute though not learned as — as —

    Earl Warren:

    [Laughs] We’ve got him astute now, have we?

    Instead of being not a — not very much of a peon.

    Oscar H. Davis:

    Well, I don’t mean to — to erase it but I — I wasn’t impressed, Mr. Chief Justice, by reading the — the record before the Immigration authorities.

    Earl Warren:

    I wasn’t.

    Oscar H. Davis:

    Well —

    Earl Warren:

    Or I wasn’t impressed by the statement of Judge Harrison —

    Oscar H. Davis:

    Well, I — I was —

    Earl Warren:

    Yes, but this was an intelligent man, an astute man, an able man and so forth.I never — I never got that impression.

    He said, “This boy is pretty smart.He isn’t — he isn’t a peon.

    He — he’s — he’s had a little education and so forth.”

    That’s the way the judge characterized him.

    Now —

    Oscar H. Davis:

    I was referring to —

    Earl Warren:

    — from that I don’t get that he’s an astute man or —

    Oscar H. Davis:

    Well, perhaps —

    Earl Warren:

    — he’s is an able man —

    Oscar H. Davis:

    — that was an overstatement, Mr. Chief Justice.

    Earl Warren:

    (Voice Overlap) — and to think that —

    Oscar H. Davis:

    I — I withdraw that remarks.

    Earl Warren:

    (Inaudible)

    Oscar H. Davis:

    But I would think he was — he was quick, a quick young man.

    And I think he was a determined young man and a proud young man.

    And that bearing in mind the kind of young man he was, I think there was sufficient corroboration in this case.

    He was the head of his family.

    Oscar H. Davis:

    He was the oldest son and his father had died a long time ago and though that did impose certain obligations upon him, it also gave him a certain standard.

    And we think all those must be borne in mind.

    And now, in a minute or two left this evening, I’d like to talk about a parental influence.

    Of course, we think that — that Congress envisaged that a boy of 18 who was subject to the draft could not seek excuse from it on the ground that his — his parents didn’t want him to serve.

    The — it wouldn’t excuse a criminal violation of the Act, that is, the — if a man were prosecuted under the selective service statutes for a violation of failure to register or — or evading the draft, he couldn’t excuse that.

    I can feel quite sure by saying that his mother or his father didn’t want him to and were afraid that he might be killed or injured.

    And there were, of course, for many parents who had probable fears for their children and understandably so.

    But it is not the kind of — of influence that Congress recognized in the criminal statutes or we think should be recognized in the expatriation statutes.

    It’s clear, both from his own testimony before Judge Harrison and from — and Judge Harrison’s findings on the testimony before the Immigration authorities that his mother didn’t physically keep him in the house.

    And there might be some cases, of a person of a different type where that — where the person was locked in the house or kept — kept in the house in some way.

    And we think that — that’s clearly not true here.

    It was mostly the influence his mother had on him.

    She (Voice Overlap) —

    Sherman Minton:

    Did I misunderstand you when I — I thought you said that if he stayed that way from this country because his mother wanted him to, because of her fears but that was the — not staying away because he wanted to evade the war?

    Oscar H. Davis:

    If I said that Mr. Justice, I didn’t mean to.

    Sherman Minton:

    I thought I understood you to say —

    Oscar H. Davis:

    No.

    I —

    Hugo L. Black:

    I thought you said that —

    Oscar H. Davis:

    Well, then —

    Hugo L. Black:

    — in answer to my question.

    Oscar H. Davis:

    Well, I — if he stayed — if he — if he knowing that it was his desire to evade that — of his obligation to serve in the Army, and if he stayed away because his mother didn’t want him to serve in the Army, I think that would be a violation of the statute.

    Well —

    Oscar H. Davis:

    The only thing I said that if he stayed away because his mother wanted him to stay in Mexico to help support her or — or for some other reason like that.

    That would not be allowed.

    Hugo L. Black:

    Well, that’s rather crucial to me as to that, at least in one face, for this reason.

    The statute says he must stay away for the purpose of avoiding the draft.

    I think all others can understand that many young men, and I’m inclined to think, maybe more so, in Mexico and other countries like theirs are greatly influenced by their parents up to the time they get to be 21.

    And I would suppose that if — if he stayed away for that purpose, if that is here, that that you couldn’t prove under the statute because I think, you’d have to constrict very strictly as you would a critical statute.

    You wouldn’t be able to say that he stayed away for the purpose of evading the draft, even though that may not be a good excuse, that you couldn’t say either the act you had proven what the act required.

    Hugo L. Black:

    That’s what I’d like you to discuss right now.

    Earl Warren:

    Well, I — I also in this fact, I — I understood you to say earlier that the record showed rather clearly that from 1942 or 1943 on he wanted to come back to this country.

    Oscar H. Davis:

    The record in the — before the Immigration authorities shows that.

    Earl Warren:

    Yes.

    Oscar H. Davis:

    And —

    Earl Warren:

    That’s what he’s convicted of.

    Oscar H. Davis:

    Yes.

    Earl Warren:

    But he wanted to come back to this country.

    Oscar H. Davis:

    Well, that’s what it says.

    Yes.I — I —

    Earl Warren:

    All right, we’ll take that up in the morning.