Immigration and Naturalization Service v. Errico

PETITIONER:Immigration and Naturalization Service
RESPONDENT:Errico
LOCATION:Hayden Residence

DOCKET NO.: 54
DECIDED BY: Warren Court (1965-1967)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 385 US 214 (1966)
ARGUED: Oct 20, 1966
DECIDED: Dec 12, 1966

Facts of the case

Question

Audio Transcription for Oral Argument – October 20, 1966 in Immigration and Naturalization Service v. Errico

Earl Warren:

Number 54, Immigration and Naturalization Service, petitioner, Giuseppe Errico.

Mr. Solicitor General.

Thurgood Marshall:

Mr. Chief Justice and may it please the Court.

This is one of two cases that have been set down one to follow the other.

This case, the Court of Appeals for the Ninth Circuit vacated the decision of the Board of Immigration Appeals which had affirmed an order of deportation issued against Giuseppe Errico.

Errico had entered the United States in 1959 by fraudulent representation made in order to bypass the then quota requirements for his native country of Italy.

The decision of the court below is in direct conflict with that of the Second Circuit in Scott against Immigration Service which is the case to follow.

The issue in both cases is much the same.

It is whether a relief provision of the Immigration Act of 1961, intended we think to be a relatively narrow applicability actually waives the deportation of Errico.

The Government contends that the provision Section 241 helps in the Immigration Act does not authorize the waiver of deportation in each of these cases.

A conclusion we say is supported by the text of the statute, the intention of Congress and the overall statutory scheme of the nationality acts.

As to the facts, Errico is now 32, is a native and citizen of Italy and because at the time he sought entry as of the present time, the Italian quota was substantially oversubscribed.

Indeed, we point out in the brief that at the time of his entry, the waiting list was some 162,612 and he made this false statement in order to obtain entry into the United States.

He falsely represented that he was a skilled mechanic with experience in repairing foreign automobile and because of that representation, he was granted a first preference status under the Italian quota.

And under the then existing preference system and those are Section 203 (a) and (1), he was admitted in the United States in October of 1959 and he has resided continuously in Portland, Oregon since his entry.

William J. Brennan, Jr.:

Mr. Solicitor, has all of these been changed by each provisions or something?

Thurgood Marshall:

The recent provision of course changes the whole quota system that’s gone and as of now he could qualify to come in but there’s still would be I think it’s 20,000 for Italy.

But as it now stands we’re applying the law as it was at the time he came in and at the time he —

William J. Brennan, Jr.:

Well, I was just wondering how big a problem is this in number any idea?

Thurgood Marshall:

Well, the number, it’s pretty hard, the best example, I don’t know how we do it these figures there, there are some 3 million resident aliens in the country as of now.

As to how many of them run to this, I don’t know.

And — but on the other point if you’re interested on what would happen to him if this case stands and the deportation stands as to the area code, he has parents here and it’s not clear in the record as to whether they are citizens yet.

And he has brothers and sisters eight at least, at least eight brothers and sisters not more, and as he stands he would not be entitled to preference.

But while he’s in the United States, he could ask for discretionary relief and he could apply for adjustment of status.

But that would be under the Attorney General so it’s not a certainty that he wouldn’t have to go back at all.

William J. Brennan, Jr.:

Could he (Inaudible) re-enter under the (Inaudible) Act?

Thurgood Marshall:

He could.

The way I am advised by the Revenue Service that under 245 which is 8 U.S. Code 1255 he could qualify for adjustment of status and the immigration quota for Italy is still pretty far back as to this amount and he would have to qualify for some of the preferences and that would depend as to whether or not his mother and father are citizens or the brothers and sisters wouldn’t help him too much but we don’t know those facts.

He would still have to qualify under the —

John Paul Stevens:

Why should that not that have been determined without coming all the way up here in this Court?

Thurgood Marshall:

He never applied for it.

And once the deportation is ordered upon him then he appealed straight up.

I in the hearings, I don’t see why this was ever raised at all.

You might have been but it doesn’t appear in the record.

And they just merely relied — Errico relied on this statute which is this later statute which gives him this absolute right to stay in the country if he’s got a spouse or a child who is a citizen.

And they relied on that because you see that does not require the attorney general’s waivers or the attorney general’s discretion.

Obviously, they didn’t want to submit to the attorney general’s discretion.

That’s the only way I can see.

I am told that even as of now, that there is a provision where even if this opinion is reversed of the Court of Appeals, there still is a waiver possibility but I can’t commit to attorney general as to what he will do and that depends on the status of his family as of now which we don’t know.

William J. Brennan, Jr.:

Now, let’s see he is the parent of the United States citizen.

Thurgood Marshall:

Yes.

William J. Brennan, Jr.:

That’s the child born to the marriage.

His wife was — came here with him?

Thurgood Marshall:

Came here with him and his child was born 10 months after their arrival, clearly an American citizen.

William J. Brennan, Jr.:

If he is otherwise admissible then he comes within 241 (f), is that it?

Thurgood Marshall:

If he’s otherwise admissible no question about that, he comes on —

Potter Stewart:

And he has also had a son of at least to the aliens lawfully admitted for permanent residents.

Thurgood Marshall:

Yes, both the mother and father are lawfully —

Potter Stewart:

So he’d come under that way too even if there were no child.

Thurgood Marshall:

But the — oh you mean as to his existence?

Yes.

Yes, sure.

Potter Stewart:

He’d come out of the statute —

Thurgood Marshall:

There’s no question that he has the familial ties efficient to qualify under that section.

There’s no problem there.

The only problem is that one as to what is meant by the grounds for and the whole argument between the Ninth Circuit and the Second Circuit as to whether or not that includes quota and the word is used over and over again in the Ninth Circuit of its automatic and I think that the best way we can do that is to go back to the statute itself.

William J. Brennan, Jr.:

Well, let’s seem — I just want to get this clear.

His argument is at the time he came he might have come as a quota immigrant is that it?

Thurgood Marshall:

No sir.

He must admit that he could not come in —

William J. Brennan, Jr.:

Because it was oversubscribe.

Thurgood Marshall:

It was oversubscribe —

William J. Brennan, Jr.:

Now, what is — what is — why does he say he was otherwise admissible?

Thurgood Marshall:

He says because otherwise admissible providing you deliberately misstate a fact.

Congress said that you can stay providing you’re otherwise admissible and otherwise admissible does not include the quota.

That otherwise admissible the quota, qualitative and quantitative are all the same, that’s his argument.

William J. Brennan, Jr.:

I see.

Thurgood Marshall:

And we say that Congress couldn’t possible have meant that.

Abe Fortas:

But General on the other hand can you suggest a type of misrepresentation or fraudulent statement that would be material and that would not affect his admissibility as in the time of entry.

Now, what kind of thing could come as it contemplated here if it didn’t relate to his qualification for entry?

Thurgood Marshall:

We have some set out in our brief in page 34 and 36 in our brief.

We have several possibilities and the — I say quite frankly the only thing I’m sure of, it doesn’t apply to cases of this type.

You notice down at the bottom of 34 because this particular act and its immediate predecessor, there were words in the Congress in the reports and in the debates that was supposed to apply to Mexicans who would come over the line.

Abe Fortas:

Alright, I read that but it seems to me that these categories would or might very well affect his admissibility as of the time of entry and in circumstances are very much like this case or the next case the Scott case that were treating up next when he says pass activities well, suppose there’s a misrepresentation about his communist party affiliation in the past.

Wouldn’t that affect his eligibility as of the time of entry?

Thurgood Marshall:

It certainly would but we try to explain it.

We’ve got that one here under (e).

Since he was otherwise admissible is from misrepresentation is waived by 241 (f).

Abe Fortas:

Well, —

Thurgood Marshall:

It could be — I’m not sure but these are possibilities we — we’re not certain of them —

Abe Fortas:

Well, I know but here this fellow said that he is a good mechanic on foreign cars, that’s what he said.

Thurgood Marshall:

That’s right.

Abe Fortas:

And I suppose there’s been a finding that makes it clear that he wasn’t a mechanic — automobile mechanic or something like that.

Thurgood Marshall:

As I read the record, it wasn’t contested.

Abe Fortas:

Alright.

Now, so he was allowed coming in this country and he’s been working ever since then but not as a mechanic on foreign cars, is that right?

Thurgood Marshall:

Well, I assume.

Abe Fortas:

So the agency started out as the (Inaudible) on foreign cars but why is that different from some — any of these other situations?

Thurgood Marshall:

It’s because but for this misrepresentation, he couldn’t have gotten in.

Abe Fortas:

Alright, now, suppose a Mexican says that he’s got a thousand dollars or whatever to acquire him and he then get but for that misrepresentation, he couldn’t get any either.

Thurgood Marshall:

Yes he could have because — well, let’s put it this way.

If at the moment he started across the line somebody handed him a thousand dollars, he couldn’t come in.

Abe Fortas:

Well, then —

Thurgood Marshall:

But this man, you couldn’t have handed him the knowledge of this cause.

Abe Fortas:

Well, you mean to say that if this statute, the statutory provision and should be confined misrepresentations that are not material and not important because they are subsequently corrected.

Thurgood Marshall:

No.

Abe Fortas:

But there was a misrepresentation that would affect his eligibility for entry as of the time he made it.

Thurgood Marshall:

Yes, the line we are trying to draw which is the only line we submit you can draw when you look through.

Number one, Congress has never failed to recognize quotas.

Quotas up until recently had been up a most in any discussion of immigration legislation.

Abe Fortas:

The next case is not a quota case, the Scott case.

Thurgood Marshall:

Oh, yes.

Sure.

You see that Jamaica was then — wasn’t an independent country when she came in.

It was under Great Britain.

Abe Fortas:

But she made some misrepresentations about her marital status.

Thurgood Marshall:

She said her marital status which gave her the preference under the quota and in this we say that Congress insists on drawing the line on the quota because if the misrepresentation there’s no way for him to be otherwise admissible if he is not an automobile mechanic.

Abe Fortas:

I don’t want to take a lot of your time but let me see if I understand this now.

Is the only qualification which supports the Government contends on which and he seems to be the wording of the statute, that the immigrant has to have been eligible for entry as a matter of quota.

Now, if that is satisfied then you construe the statutory language as in effect the excusing or waiving any other misrepresentations of whatever nature.

Thurgood Marshall:

It says so if the language is but specifically says on misrepresentation and it’s limited only by otherwise admissible so I think —

Abe Fortas:

You say the only limit — is it the Government’s position that the only limitation is the — is that the person must have been eligible for entry as a numerical manner under the quota.

Thurgood Marshall:

I think that that would be our position because we saw clearly that’s what this case is.

And it’s the only thing.

The only reason in this case, we insisted that these people are deported.

Abe Fortas:

So far as I am concerned that’s a kind of an importance as to say whether the Government says that that language is limited only by a quota consideration.

Thurgood Marshall:

In all of the other questions, Mr. Justice Fortas, in every one that we were able to think of, the attorney general can waive most of the other provisions where you.

Abe Fortas:

I’m not talking about that, I’m talking about what does this statute mean and what does this statute says.

Thurgood Marshall:

This statute says on the ground that and otherwise admissible as it only two features that we think of here.

Abe Fortas:

Well, I will —

Thurgood Marshall:

It’s on page — the statute is on page 4.

Abe Fortas:

Well, I assume there wouldn’t be any misunderstanding so far as I am concerned, I would assume a lesson until otherwise advised by you that the Government’s position is that you don’t — there are no other, in no other situations where you go to the basic circumstances at the time of entry except as to a matter of quota.

Thurgood Marshall:

I — Mr. Justice Fortas, I can’t comment the Government that far.

I just don’t know.

Under this statute I would say that it goes to any otherwise admissible.

It goes to any ground you would have to show you’re admissible but my real trouble Mr. Justice Fortas I can’t think of these different examples that I wouldn’t want to —

Abe Fortas:

Well, that would seem to me that would describe the statute that it’s the only kind of a misrepresentation that a person is likely to make as one that relates to in the terms of admissibility.

Thurgood Marshall:

Not at all Mr. Justice Fortas and one that brought these statutes about was whether people lied about the country they came from.

That’s what was brought the statute on.

And in the earlier statutes they said specifically that this shall not apply to the quota provisions and they lasted out of this one but this is a statute which is giving relief and I think Congress has a right to limit the terms upon which it would give its relief in immigration matters.

I think Congress has the right.

(Inaudible)

Thurgood Marshall:

As being practically automatic once you show that you made them a statement and you show your familial ties, that’s it.

And you don’t have to show the quantitative.

You show the quantitative you only show quality and Judge Duniway in a concurring opinion attempted to limit it that this was a word of ought, words of ought rather the otherwise admissible but in the broad language of the opinion it seems to me that all you have to show is that (1) you have made them a statement and (2) you have the basic ties or family ties and that’s it.

Potter Stewart:

I think even — I don’t know but I would think even the Ninth Circuit would give this otherwise admissible summary, in other words —

Thurgood Marshall:

Yes —

Potter Stewart:

— if I am not mistaken —

Thurgood Marshall:

Judge Duniway did.

Potter Stewart:

Somebody with a certain kind of disease is simply not admissible.

And I suppose that if it turned out that this person had that kind of disease that he would simply be not otherwise admissible and even in the Ninth Circuit’s reasoning he could be — he could come out of this —

Thurgood Marshall:

Well, there are specific, tuberculosis is one —

Potter Stewart:

Yes, yes.

Thurgood Marshall:

I think that was the one you were thinking about.

Yes and many others.

Potter Stewart:

Yes

Thurgood Marshall:

But I think the language is what we are worried about the Ninth Circuit language is so broad.

On the — getting back to the point, you bear in mind that this Section 241 (f) which is on page 4 as I remember and I have to once more say that it’s on the ground that the alien was excludable at the time of his entry and it appear, it would appear that it was for procured documents of forgery and what have you and then it says otherwise admissible and that’s our whole case and Judge Duniway as I mentioned felt that it was otherwise admissible was a term of our attorney referring only to qualitative grounds and not to quantitative and that’s his whole basis and I view his opinion as an effort to so limit the two judges opinion so that it would stand up but we say that falls too and Judge Duniway we point out, beginning on page 26 that the only basis for his assertion is Section 211 (a) which we have set out in our appendix and he assumes that since 211 (a) used a specific language about quota that the fact that it didn’t use it in our statute makes it clear that it didn’t intend it.

But our reading of 241 (f) waives only deportability for misrepresentation and not any additional grounds because if there are additional grounds you can go through the other sections of the statute.

And when we look at 241 in (f) in the overall statutory scheme which I like to do for a change, you remember that way back prior to 48, they had put in provisions, there was no provision as a matter of fact and if there was a misrepresentation, the only means of deportability was the courts would determine that you didn’t have a visa and you only because you lied to get a visa.

Thurgood Marshall:

And then the Displaced Persons Act of 1948 said that anybody who lies shall forever be barred from admission and then in 1952 and 1957 and eventually the one that we get up here 1251 it would show that throughout this, Congress has never meant to throw out the quota system and we spelled that out in our brief and we stand on that particular point as stated.

Every other way provision in the Immigration Act is hinged with applying to the attorney general of the United States and proving that you are entitled to get the attorney general to exercise a discretion.

And I don’t believe we can assume the Congress in this one intended to give absolute authority on misrepresentations that normally would have had to go through the other section of the statute.

Abe Fortas:

Well, then when you talk about quota system, you’re talking about the basic quota system, aren’t you?

For example, at the time that this respondent came into the country was there a numerical limitation on the number of skilled people who could be brought in over the quota?

Thurgood Marshall:

Over the quota?

Abe Fortas:

Yes.

Thurgood Marshall:

It’s within each party, you mean the quota.

Abe Fortas:

There was a number of them.

Thurgood Marshall:

Yes.

Yes, yes.

Abe Fortas:

So that is it your position then that this misrepresentation could not be waived because he could not — because out of the existence of this particular specific quota for skilled persons?

Thurgood Marshall:

That he could, that he could not fit in there —

Abe Fortas:

Well, he certainly could, if he had in fact then a skilled person, he would come within that part of the quota.

Oh!

Yes, yes.

Yes, no question.

If I understand your position, perhaps I don’t, it is that you would have to qualify that unless there was an open number in the basic quota system for non-skilled people that this probably is deportable.

Thurgood Marshall:

I think that’s our position.

I think that’s what the statute clearly means.

Abe Fortas:

So we’re not — that’s right.

That is your position.

Thurgood Marshall:

That’s my position.

Abe Fortas:

On the other hand, that there had been a — if there had been some open numbers in this basic quota, presumably this probably wouldn’t have to lie.

Thurgood Marshall:

And he wouldn’t — I would assume he wouldn’t have.

Abe Fortas:

And then he’d just apply for a quota number and come in under the regular quota.

Thurgood Marshall:

And wait —

Abe Fortas:

And you believe that that’s what the statute means.

Thurgood Marshall:

I think that when the statute means otherwise admissible it means that once you have the misrepresentation you have made created your preference status, you obviously are not otherwise admissible.

Abe Fortas:

Except that if you forget about it you waive this misrepresentation then you can –- and if you waive that misrepresentation, I assume that otherwise in fact waive it, perhaps and arrive to the assumption that fellow was in fact a skilled mechanic.

Abe Fortas:

He came in under this special quota for skilled mechanics.

Thurgood Marshall:

No, sir.

Mr. Justice Fortas my point is all you can waive is the fact that he lied, lied period.

But you can’t waive the fact that in reality he wasn’t admissible as a mechanic.

Abe Fortas:

Well that’s it and then the question is whether that language can be construed in that fashion which substantially narrows it down.

Thurgood Marshall:

Well, that’s — the way we try to spell it out in the brief if I could but that’s — it’s just — if waiving the lie can be done, but waiving what the Ninth Circuit says we waive the fact, the fact is that he was not a qualified —

Abe Fortas:

What you’re doing is — what you’re doing is on this theory you may be coming close to waiving unnecessary perjury but not waiving necessary perjury.

Thurgood Marshall:

Well, I am glad you didn’t use the word material, Mr. Justice Fortas that really would have trouble me.

Chief Justice, I can save a little of my time.

Earl Warren:

Yes, you may Mr. Solicitor General.

Mr. Ierulli.

Frank M. Ierulli:

Mr. Chief Justice Warren, Associate justices and may it please the Court.

The respondent in this case feels that the issue is concisely stated on page 17 of the petitioner’s brief and I quote from that, in short, to be otherwise admissible at the time of entry, the applicant for relief under Section 241 (f) must show that he could have been admitted even if he had not lied.

An alien like respondent Errico could not meet the quota requirements because he cannot make that showing.

In other words it is the petitioner’s position that Errico in this case because the truth of the fact is that he is not a specialized mechanic cannot enter.

Now it is respondent’s position that to interpret 241 (f) in this manner is to render it meaningless, to frustrate the intent of Congress and to inhibit purpose of the Act.

Respondent contends what Judge Jones in his dissenting opinion in the Second Circuit that in the Scott case I believe or Smith, Smith that the words otherwise admissible as used in 241 (f) are qualitatively restrictive but not quantitatively restrictive.

All of Section 7 of the Act which is the predecessor of 241 (f) which is the Section we’re now dealing with is set forth in the 1957 U.S. Code Congressional and Administrative News at page 709 under the heading nonquota status.

Respondent in supporting his position that otherwise admissible is quantitatively restrictive relies heavily on the presumption that 241 (f) was enacted for the benefit of a special class of Mexican nationals and the fact that they were nonquota immigrants.

It is our position that the Mexican nationals were only one of a group of an entire defined class that were contemplated by Congress.

A review of the House Report No. 1199 of the Judiciary Committee upon the 1957 U.S. Code administrative news page 2016 reveals that Section 7 of September 11, 57th Amendment to the immigration, the Nationality Act was enacted for two general class, subsection (b) for displaced persons and other immigrants who entered the United States immediately following World War II and subsection (a) for spouses, parents, children and children of United States citizens or local resident aliens who seek admission to the United States and who may have misrepresented their place of birth, national immigrant status and the like if their exclusion would work in extreme hardship on their family.

The latter category included Mexican nationals who entered the United States during a period when border control operations suffered from laxity who later established the family in this country and were subsequently found to reside illegally.

Approximately two years prior to the enactment of Section 7 border control forces had been strengthened and the Immigration and Naturalization Service had intensified its efforts in rounding up illegal entrance.

The immigration service argues that because Congress contemplated relief for these Mexicans and because they were not then and are not now subject to quota limitations otherwise admissible is quantitatively restrictive as well as qualitatively restrictively.

Now, Section 7 subsection (b) of the 1957 Act dealing with refugees and displaced persons specifically refers to them as entrance.

Now, this is part of the same act subsection (b) of Section 7.

And it states referring to them admitted to the United States between December 26 and November 1, 1954 and misrepresented, goes on to say it’s misrepresented their nationality place of birth their identity etcetera.

Now, this portion was made discretionary upon the attorney general and was specifically placed there for displaced persons entering this country during a specific period of time.

Now unlike Section (b), the first sentence which we referred to now which became 241 (f) and which the immigration service was feels enacted specifically for the Mexican national in no place referred to them specifically or in any way mentioned then nor does it mention any dates concerning the border crossing incidents referred to or anything of the like.

Now the House Report 1199 found in 1957 U.S. Code Congressional and Administrative News at page 2024 referring to this indicates as follows.

Frank M. Ierulli:

In respect to expulsion of aliens who are spouses, parents, children of the United States citizen who are lawfully resident aliens who are already in the United States, misrepresentations of any documentation for entry would not be a ground for deportation if the aliens were otherwise admissible at the time of entry under the immigration laws.

The latter category of aliens includes mostly Mexican nationals who are during the time went border control operation suffered from regrettable likes that they were able to enter the United States, established families in this country and were subsequently found to reside illegally.

Now, the committee on the judiciary for the House and the Senate have a considerable number of private bills before them which the conduct of such aliens considering their family situation would be condoned.

A great number of such private bills passed the Congress and were enacted in the law the last few years.

It appears to the committee as it is unfair to improperly commit the benefit of legislative relief solely to a few selected individuals who are in a position to reach Congress for redraft.

It is felt that the humanitarian approach should be extended to an entire defined class of aliens rather than to selected individuals.

Now, they don’t in any way refer to Mexicans and then in the 1961 amendment to this Act the House Judiciary Committee commented that there was no longer any need for subsection (b) which referred to displaced persons and persons that are trying to escape communism and so the 1961 amendment deleted that subsection (b), no longer referred to them at all.

Subsection (a) though, the first part of the Act referring to the Mexican nationals remained in the Act.

Now, certainly it’s nowhere been argued that in 1961 the need for the Mexicans continued.

However, it remained in the law, and as a matter of fact it remains in the 1965 law exactly as it was in 1957.

It has never been repealed and the need for it if it were simply just for Mexicans I think certainly by now would have passed.

But as I indicated before the language of it it’s absolutely general and therefore we think that if Congress meant exactly what it said when it wanted to expand that to an entire defined class rather than to any specific group.

Now, otherwise admissible and I don’t want to take too much time on this argument but in the Scott case has an excellent argument in it concerning the present 241 (f) as compared to the last section of Section 7 as it appears and we wholeheartedly agree with their position and feel that it reflects the intent of Congress again as we have stated.

Now, otherwise admissible, is used elsewhere in the Act also, 241 (f) and 241 (h) are set forth in the 1957 U.S. Code Congressional and Administrative News at page 709.

Now under the heading Immigration Nonquota Status indicating to me that clearly that that is not quantitative, it’s not considered under a quantitative section.

It’s under the nonquota section.

Now, another part of the act Section 12 of the 1957 Amendment sets forth another example of otherwise admissible meaning qualitative better than quantitative and I quote from that directly “any alien eligible for quota immigration status under the provisions of Section 23 — 203 (a) (1), (2), or (3) of the Immigration and Nationality Act, Section 1153 (a) (1), (2), (3) of Title 8 on the basis of petition approved by the attorney general prior to 1957, shall be held a nonquota immigrant and if otherwise admissible under the provisions of the act shall be issued a nonquota immigrant visa.

Now there clearly it stating that if he’s otherwise admissible he won’t be considered a nonquota immigrant.

Now, Judge Duniway in his concurring opinion points out another Section 211 (a) and from that section I would like to quote the following, “No immigrant shall be admitted into United States unless at the time of his application for admission he (1) has a valid unexpired, (2) he’s properly chargeable to the quota specified in the immigration visa, (3) is a nonquota immigrant if specified as such in the immigrant visa, (4) is the proper status on the quota specified in the immigrant visa, and then (5) is otherwise admissible.

So again clearly the words otherwise admissible here is qualitative rather than quantitative.

Now, Your Honor, example Section 5 without reading it entirely uses the word exactly the same way referring to it as quantitative exactly the same way referring to it as quantitative rather than qualitative.

Now, some questions were raised about the family status of the respondent and he is the eldest of seven children.

Six of these children entered the United States with the mother and father and were admitted because they were under 21 years of age.

He being the oldest boy and then over 21 years of age could not come in.

His father and mother are not citizens at this time, so therefore do not fit in the nonquota Section of the 1965 Act.

They would be — he would be under the 1965 Act admissible if under the fifth preference as a brother and sister are citizens.

I think the numerical limitations for that group is 40,800.

Now, as I indicated his mother and father are lawfully residing alien residents.

They are not citizens.

His oldest, the next oldest boy is Leo.

Frank M. Ierulli:

He resides in Portland, Oregon also and is a citizen, is married and has two children eight and seven in school.

His oldest sister Anna, 28, is a citizen resides in Portland, Oregon, has one child and is pregnant with another.

The next is Antoinette, 25, she is not a citizen.

She’s married, living in Portland, Oregon and is expecting a child.

The next brother Pat Errico, 23 years of age, works in Portland, is a citizen, was recently discharged from two-year service in the army, honorably discharged.

Paul Errico is 19, Maria Errico is 17, living with her folks, attending Parkrose High School in Portland, Oregon.

All of his close relatives, all of his aunts, all of his uncles, all live and reside in the United States most of them Portland, Oregon with the exception of two, I think the brother, one of his father’s brother and one of his mother’s —

William J. Brennan, Jr.:

How old was he you say when he came?

Frank M. Ierulli:

He was 32 when he entered but he was over 21 when his folks came so he stayed behind.

And then came in on this — came in on this special –-

(Inaudible)

Frank M. Ierulli:

Right.

Now, we feel that Congress contemplated this, a non discretionary relief specifically for a man in Errico’s category.

The only difference that I can see in the 1961 and 1965 amendments to the 1957 legislations is that in this particular category, in connection with deportation they removed the discretionary powers of the attorney general and made it absolute and we feel that Errico is entitled to this protection and we certainly whether or not he would be eligible under any of these other categories of course would depend on the number of applicants from Italy that have made, filed petitions and also would depend under the discretion of the attorney general.

And we feel that since he has an absolute right and since he has established the roots in this country that Congress intended this legislation to protect that it is not like in one of your very recent cases where two seamen, I think it’s one of the advance sheets of two seamen were here on a temporary visit and a woman was pregnant and the Court then held then that they just had one child and certainly they haven’t established the roots necessary for the relief and that was a discretionary type relief anyway I think under 11 (c).

But certainly in this case to send Mr. Errico back to Italy would work an extreme hardship on his family —

Abe Fortas:

Well suppose he’s subject to prosecution for false statement and a name?

Frank M. Ierulli:

You mean in the criminal courts, Your Honor?

Abe Fortas:

Yes.

Frank M. Ierulli:

Mr. Justice.

He may well be but certainly I am sure that he would welcome that if not that he could stay there.

That —

William J. Brennan, Jr.:

What do you mean that he’d welcome it?

Frank M. Ierulli:

Well he would, I am sure he would be able to — I think that we could make any court understand —

Abe Fortas:

But the question I am really asking you is this, I assume that underlying this rather remarkable provision is a desire to protect the family entity which has established itself in the United States.

Frank M. Ierulli:

Yes.

Abe Fortas:

And I assume too there is not a desire to benefit somebody who files a false statement.

Frank M. Ierulli:

Very true.

Abe Fortas:

And that what I am really asking you is whether it can be considered that what Congress has done is to say that in those cases, the recourse of the Government the punished person for false statement is to resort to the criminal process rather than to the process of deportation which would result in disrupting a family unity, does that or does it not accord with your understanding of the general theory here?

Frank M. Ierulli:

I would think it would certainly be the more humane approach to a problem if some redress had to be made.

Frank M. Ierulli:

I think though —

Hugo L. Black:

(Inaudible)

Frank M. Ierulli:

That’s true Mr. Justice.

There’s no question about that.

But I think that Congress contemplated that and thought that if this does happen and if the alien is in this country long enough to establish family roots that then he should be protected by Section 7 and I don’t think that Congress ever intended to have reward anybody for committing fraud at all.

Earl Warren:

Is there any question about whether it commit fraud or not?

Frank M. Ierulli:

Well there was some question Mr. Justice Warren but I appeared with him at the immig — and he speaks only Italian and very broken English.

I understand Italian somewhat but not really well and we had three sessions and I frankly, right now, don’t know exactly what happened and so but in any event he was not a specialized mechanic and we admitted that.

We tried to through an interpreter and through other means to show that he probably did not understand.

Mr. Errico to this date feels that he is a skilled mechanic.

He is not — he has such a — his attitude is such that he would never and could never be a skilled mechanic.

He doesn’t know — he can’t even do the most simple things but he went to this school to get this particular certificate and he felt that he —

William J. Brennan, Jr.:

Did he get the certificate?

Frank M. Ierulli:

Yes, he got the certificate, and —

Hugo L. Black:

Pay for it?

Frank M. Ierulli:

Yes, he did but we — the reason why we didn’t attack that position very much is that because he was not specialized mechanic and his employer submitted an affidavit to that effect I think that there is some serious question whether he committed willful fraud in this matter but he certainly was not a specialized mechanic.

William J. Brennan, Jr.:

He only attended for about four months.

Frank M. Ierulli:

I don’t recall.

He attended over a long period of time but not for any great period of time at any time.

He was not paid.

He was an apprentice.

And he would go in his spare time to help other mechanics and to try to learn this work.

Potter Stewart:

What’s an example of one of the so-called qualitative disqualifications that you say because that wouldn’t be forgiven on?

Frank M. Ierulli:

Alright, we feel that this simply removes the quantitative barrier.

Potter Stewart:

I understand but what’s an example of —

Frank M. Ierulli:

Any of the other qualitative restrictions, communist, prostitute moral turpitude —

William J. Brennan, Jr.:

Well wasn’t he asked those question when he arrived (Inaudible) and don’t they ask him, are you a communist or are you a prostitute or —

Frank M. Ierulli:

Yes.

William J. Brennan, Jr.:

Don’t they ask him all those questions?

Frank M. Ierulli:

Yes.

Frank M. Ierulli:

But he falsely swearing to that, excusing his fraud and the fact that he had lied would not remove the qualitative restriction.

While it would remove the quantitative and get him pass the quota system it would not remove that the fact that he was not otherwise admissible on a qualitative basis.

Potter Stewart:

So if the way you got into this country was lying about his former political beliefs or his political beliefs, he got in that way and then he had a child in this country and then they moved to deport him because of the misrepresentation, wouldn’t the statute affect him?

Frank M. Ierulli:

No.

Potter Stewart:

Why not?

Frank M. Ierulli:

You’re exactly referring to the Bufalino case.

It would only remove the quantitative restrictions and in fact in the Bufalino case, he was a nonquota immigrant.

And so that if by removing the quantitative requirement you are still otherwise inadmissible because of some qualitative restrictions and —

William J. Brennan, Jr.:

(Voice Overlap) confess those — those labels leave easily qualitative and quantitative.

Does that all amount anything more than that if there are personal characteristics which disqualify one from entry or make one excludable from it that lying about one of those is not forgiven by the statute —

Frank M. Ierulli:

That’s right, it is not.

Not if those —

William J. Brennan, Jr.:

And that’s — and to the quota, system does not set up any personal characteristics as basis of disqualification.

Is that what you mean by quantitative?

Frank M. Ierulli:

No the quota.

You may come in under as a nonquota immigrant or you can come in as a preferred quota immigrant.

Now, we simply say that the only thing that Section 7 protects you against is if you lied in order to make a different preference in order to avoid the quota system —

William J. Brennan, Jr.:

That’s (Voice Overlap) — if you lie about some personal characteristics, that is one’s belief or one’s condition of health or whether one is a prostitute or that sort of thing.

Frank M. Ierulli:

That is not excused by Section 7.

William J. Brennan, Jr.:

That’s what I say but why is that excused if lying about something which merely got you a better place or a preferential position to come in is that it?

Frank M. Ierulli:

Perhaps under making myself clear by saying —

William J. Brennan, Jr.:

Well, I say no one’s making clear to me what this distinction of those labels quantitative and qualitative suppose to mean.

Frank M. Ierulli:

The lie itself is excused in either situation.

However, if the truth of the matter, makes you otherwise admissible under some of these sections of the qualitative sections which you referred to prostitute, well then that is not removed because you are not otherwise admissible qualitatively but if you’re lying simply — he was not a prostitute of course, he was not involved —

William J. Brennan, Jr.:

Not a communist?

Frank M. Ierulli:

Nothing.

None of this —

William J. Brennan, Jr.:

He did not have tuberculosis or so?

Frank M. Ierulli:

He was not a skilled mechanic.

Byron R. White:

Well, isn’t that — that’s certainly a personal characteristic when he said that he didn’t have the skill.

Frank M. Ierulli:

But it is not a qualitative restriction.

It’s simply — the only thing that that does, as a matter of fact under Section 14 of the qualitative section —

William J. Brennan, Jr.:

No actually if one is a skilled mechanic, one man has a preference on entrance.

It’s not a disqualification on the contrary if a characteristic which assures your entry is —

Frank M. Ierulli:

Right and the only reason why he would not have been otherwise admissible would be that his regular quota was over subscribed and that statute forgives that and nothing else.

It’s quantitative and not qualitative.

Even in —

William J. Brennan, Jr.:

Well I wish you forget those labels if I can follow you easily if you do.

In other words he could come in and spend a no subscription under quota without that line, didn’t he?

Frank M. Ierulli:

Right.

You know I would like to mention the Bufalino case one more time because there is a case where there was no quota Justice Fortas at all.

He came in as nonimmigrant quota on s nonimmigrant quota and yet he lied about being a communist.

Well they deported him and Section 7 did not help him because it was a qualitative and rather than quantitative.

This is all what we’re saying.Our position doesn’t come into conflict with any other cases

Abe Fortas:

Well you mean because he was otherwise qualified?

Frank M. Ierulli:

He was not otherwise qualified.

Abe Fortas:

I mean he was not otherwise qualified and his in deference to my brother Brennan.

(Inaudible)

Frank M. Ierulli:

Well unfortunately the Ninth Circuit did go up in a little tangent on one portion of it.

But I think basically speaking that they also use a qualitative on that.

And I think this is that there have been six circuit judge — Court of Appeals judges that had looked at this question now and four of them agree with the respondent’s position.

Earl Warren:

Mr. Solicitor General.

Thurgood Marshall:

Mr. Chief Justice, may it please the Court.

On this Mr. Justice Brennan on qualitative —

William J. Brennan, Jr.:

We’re not going to use qualitative.

Thurgood Marshall:

Well, quantitatively we have covered those points and started on page 26 of our brief.

Qualitatively I’m along with you —

William J. Brennan, Jr.:

But doesn’t this come down to this Mr. Solicitor General, your argument as I understand on the other side is, if you lie about something as having a characteristic which is something we desire and you in fact don’t have it, the statute excuses it.

Thurgood Marshall:

That’s right.

William J. Brennan, Jr.:

But if you lie about something which is as to the characteristic which we don’t want you to have then the statute doesn’t excuse it.

William J. Brennan, Jr.:

That is if you lie about being a communist, if you lie about being a prostitute.

Thurgood Marshall:

We say that that cannot stand in the whole theory of immigration.

William J. Brennan, Jr.:

I know but you say — is that what the other side says?

Thurgood Marshall:

That’s how I understand it.

William J. Brennan, Jr.:

Well, that’s not the qualitative or quantitative role.

Thurgood Marshall:

But if you don’t agree with but you don’t think would excuse lying about these other things?

Some of it.

Not all of it but some of it.

It did have to be otherwise admissible.

Byron R. White:

Right.

Thurgood Marshall:

And I used — I have about three more minutes if I —

Earl Warren:

You might well finish this case.

Thurgood Marshall:

I was just pointing out the very touching and I agree with the situation of this family in the Errico case and it’s a type of case that should get discretionary relief but the language of the Ninth Circuit is not limited to a family of that size.

It would apply to a woman who arrived in here into the United States and had a baby one month after she arrived and having told the same type of lie it would be qualified.

That’s — I’m just – I give great sympathy for the Errico family but after all we have the law and we urge the Court to reverse this —

Earl Warren:

Naturalization Service.

Mr. Biervliet.

Julius C. Biervliet:

Mr. Chief Justice, members of the Court.

Muriel May Scott, the petitioner in this proceeding is a native of Jamaica, the West Indies.

She seeks reversal of the judgment below affirming a determination of the immigration service that should be deported from the United States because of the fraud perpetuated at entry.

This relief is being sought pursuant to Section 8 U.S.C. 1251 (f) and that she gave birth to and is the mother of a citizen of the United States.

The essential facts are as follows.

Petitioner then a native of Jamaica the British West Indies entered the United States on the non quota visa, that’s nonquota immigrant visa issued to her as the wife of an American citizen.

That was in 1958.

In 1964 the immigration initiated proceedings against solely for the purpose of against petitioner charging that she had entered into the marriage ceremony which got solely for the purpose of qualifying for a nonquota immigrant visa with all the intention of establishing a bona fide marital relationship which she never established in fact subsequently thereto.

The sole defense she raises to the case is that 1251 (f) prevents some deportation.

A comment, an entry was excludable for deportation.

That is why Section 1251 (f) is being raised as a defense 1251 (f) exempt persons that have obtained a visa by fraud or misrepresentation if they are otherwise admissible and they are the parent or child of a U.S. citizen.

In the court below it was held that petitioner was qualified in entry respect except that there was no quota available to her because the quota from Jamaica was over subscribed at that time.

This Court granted certiorari here and in Errico to resolve the differing interpretation says the Ninth Circuit held that the total defense was applicable and the Second Circuit did not.

Julius C. Biervliet:

The issue in this case is whether an alien who entered the United States as a non quota immigrant by means of a fraudulent marriage to a United States citizen who subsequently gave birth to a citizen child and was otherwise admissible at the time of entry and for the fraud in avoiding quota requirements.

The question for this is whether or not this particular individual is subject to the safe provisions of Section 1251 (f).

It is our contention that the purpose and language of the statute negate the possibility that otherwise admissible was intended to encompass the availability of quota status.

Well, before proceeding with my argument I certainly would like to answer Mr. Justice Brennan as to his question posed just before adjournment.

Section 1182 (a) of the Immigration Act specifically has placed standards, there are 20 standards criteria.

There are 20 in number which standards cannot be evaded because they are the qualitative standards says settled by the United States an admission.

William J. Brennan, Jr.:

Do you say — I gather does that mean or not and that persons presented are those characteristics are disqualified from entry or excludable from entry or whatever?

Julius C. Biervliet:

They may be disqualified or excludable.

William J. Brennan, Jr.:

And if they allow, whichever?

They are characteristics that we think the Congress has thought so undesirable that people posses of them shall not be admitted to the United States.

Julius C. Biervliet:

Precisely, Your Honor.

Precisely.

William J. Brennan, Jr.:

Whereas you are talking about — what we’re talking about the former who are characteristics that Congress thought so desirable that we wanted people like that to come into the United States.

Julius C. Biervliet:

Exactly.

Exactly Your Honor.

Now if I may proceed.

We don’t have to look far what the intent of Congress was than the enacted Section 1251 (f).

It was to maintain the integrity of the family unit that was a vital and paramount interest to our national policy.

Even beyond the benefit to the alien is the likelihood far from remote in this case that expulsion —

In your case, the congressional determination was that — is this right if someone who has merits in American citizen might come here with —

Julius C. Biervliet:

I will put it for you in proper perspective Your Honor if I may.

If I am married to a non citizen when they arrive in the United States I can go to the immigration service fill out I number 13 petition and demand a quota visa for my wife.

If she is outside of the United States she could do that to the consular service.

William J. Brennan, Jr.:

That’s because you are an American citizen.

Julius C. Biervliet:

That’s right, Your Honor.

William J. Brennan, Jr.:

And the congressional determination, we want people like that.

Julius C. Biervliet:

Exactly Your Honor.

William J. Brennan, Jr.:

And what — it takes years that your client went through a —

Julius C. Biervliet:

Through a fraudulent marriage, Your Honor.

William J. Brennan, Jr.:

What makes it — it was in fact a marriage but it was only for the purpose of qualifying —

Julius C. Biervliet:

Yes.

Yes Your Honor.

Expulsion of the alien will result in banishment of a citizen during the period of its minority.

Now, before I continue with my argument, the reason why we have used the word banishment Your Honor is that I want to give you an idea of a case that personally tried before the surface just last year.

A woman came here on a visa from British Honduras and once she was here she met an American sailor.

She became a fiancée of the sailor and she married the sailor.

The sailor did not want to fill the petition that I just explained to you, Your Honor for her but he was not also taking care of the woman.

The immigration service discovered that this woman had been employed outside.

And they apprehended the woman but the woman in the meantime given birth to a child.

The Red Cross called the legal aide and asked us whether or not you would not represent the woman before the immigration service.

I appeared before the service and I pleaded but I confronted the discretionary relief of the attorney general and the woman was ordered deported and I had the hardest time between the Red Cross illegally and if you please the army, Your Honor, to get this woman to stay here for a while longer to obtain an allotment.

The minute she obtained the allotment, the auditor deported her immediately and —

Abe Fortas:

What allotment was that?

Julius C. Biervliet:

Well she was entitled as a citizen of the — the child was a citizen of the United States was entitled to allotment from the father.

William J. Brennan, Jr.:

The father (Inaudible), isn’t it?

Julius C. Biervliet:

Yes, Your Honor.

Yes.

After the woman was deported, I discussed this case again with one of the members in the service so they said to me, “(Inaudible) we didn’t throw the American citizen out of the country.

The American citizen can stay here even if she’s — if he’s one month old” and I thought that was a horrible thing to do Your Honor because in every ordered law, you can go and appoint a guardian for an infant to take care of the infant’s property or a guardian for the infant alone.

But on the immigration law, you cannot appoint a guardian for a child to petition a relief on the parent and I think that the Congress had exactly these situations in mind when they said that this statute has to be applicable as a total defense and that no discretion of the relief should be granted to the attorney general in situations like this.

With the exception of the fraud by which you obtain for nonquota visa, petitioner was qualified as a person otherwise admissible since he falls with none of the groups that I just recited to Your Honor, the political group, the mental group, the political group of agents proscribed from receiving a visa.

However, the court below again says that Mrs. Scott is admissible in all other respect except that she is not otherwise admissible because there was no visa available for them because the British Honduras quota system for Jamaica was over subscribed.

We submit that this interpretation can only stand if you are prepared to attribute to Congress the intention of passing a law widely heralded as humanitarian which affects almost no one and which is inconsistent with other law’s contemporaneously passed.

The act of 1957, the first part of Section 7 of the Act of 1957 was carried forward as Section 1251 (f) and it dealt with affording relief from deportation to those person that would be expelled.

The second sentence of the same act carried forward as Section 15 affords exclusion for non resident alien with the same familial status as to citizen situated as petitioner andif I may I’d like to read the statute, sir.

“Any alien who is the spouse, parent or child of a United States citizen and who is excludable because (1) he seeks has sought to procure or has procured a visa or other documentation or entry to the United States by fraud or misrepresentation or (2) he admits the commission of perjury in connection therewith shall be granted a visa and admitted to the United States for permanent residents if otherwise admissible, if the attorney general in his discretion has consented to the aliens applying or reapplying for admission to the United States.”

This section using the same otherwise admissible language as the statute know before the Court for construction clearly and I emphasize that, it clearly does not contemplate the availability of a quota place since the familiar relationship which is the factor, which gives rise to the extension to the — from excludability also confers nonquota or if you please preferred status upon the alien.

For us to attribute the Congress the intention of incorporating into the quota system the familial extension would mean that the more fatal the exemption is granted to aliens outside of the United States than aliens in the United States.

And what we’re seeing that Congress is doing instead of tying the family together we are attributing the Congress that the Congress is saying now well, we are going to break up a family and the man that’s out will bring that in and send the man that’s out, and I cannot understand or think that Congress had planned to do this.

It is inconceivable that the same otherwise admissible language should success a sentence of the 1957 Act promote a national policy of uniting a non-resident alien British American family and yet required a break up or immigration of the American family of a resident alien.

Julius C. Biervliet:

It is all the more illogical to believe that Congress intended to compel expulsion without living any discretion to the attorney general to exempt certain individuals a discretion, if you please, which is given in the section where we don’t want certain people from that are proscribed from receiving visas.

It is true that the construction that we place upon the two statutes which stand in pari materia gives broader right of resident to the resident alien than the non-resident alien that is, we’re taking the position by the attorney general’s discretion is not involved in the form of situation but the only alternative that the governments render is the broader right to residence, for the non resident aliens.

Now, if we look at the legislative history, Your Honor, nowhere in the history and I have worked on the history with a number of law students for a number of months and we have read and read and read many books, no clear reference to the meaning of the words otherwise admissible appears in any of the records or reports accompanying the 1957 Act.

General reference to the effect by the entire 16 sections of the Act did not change the quota system were continuously made by Senator Eastland in the Senate and they were also made by Mr. — Representative Celler and Chellos in the House.

On the other hand general reference to the effect that Section 7 was designed to leave hardship conditions were made by the then Senator Kennedy and Johnson and also by Senator Eastland.

The general tenet of all references to the 1957 Act in the House Report and I quote here “indicate that the Congress intended to provide for a liberal treatment of children and was consumed to keeping families of the United States, of United States citizens immigrants united.

Later in the House Reports, at page 10, 11, it stated that the exemption provision of Section 7 include the spouses, parents and children of United States citizens or lawfully resident aliens who may have misrepresented their place of birth, nationality, immigrant status and the like if their exclusion would work extreme hardship on their families in respect to extortion of aliens who are the spouses, parent, or children of United States citizens are lawfully resident aliens and who are already in the United States misrepresentation in obtaining documentation or entry would not be a ground for deportation if the alien will otherwise admissible at the time of entry.

I am quoting all of these from the records of the Congress ,Your Honors.

Earl Warren:

Are those in the — are those in the record Mr. Biervliet?

Julius C. Biervliet:

Yes, Your Honor.

I take it all of these went to congressional record, that’s the legislative history, Your Honor.

Earl Warren:

No I didn’t ask you that.

I asked you if we can find them in the record that we have here.

Julius C. Biervliet:

I think we have it in our brief, Your Honor.

Earl Warren:

In your brief?

Julius C. Biervliet:

Yes, Your Honor.

Earl Warren:

Where?

Julius C. Biervliet:

On page 7.

Earl Warren:

Page 7.

Julius C. Biervliet:

And page 8.

Earl Warren:

Oh yes.

Alright, that’s what I was — I didn’t see it.

Julius C. Biervliet:

The reports also stated that in the past considering the family situation had resulted in enactment of a number of private bills but that the more humanitarian approach wanted to be taken and give a whole class the benefit of this bill.

Now, somewhere the government argued that — now, the belief was also stated in this report at page 11 that most resident aliens falling into the latter category makes it the national the fact that a large in number Mexican nationals had gotten the benefit of this particular section and that Mexico was a nonquota country.

This does not show anything.

I mean, it’s just an accident.

Now, the effect of the statute as we see it is fourfold in nature.

In the Court of Appeals it was held that petitioner’s fraud would invite wholesale evasion of the quota system and I’m quoting from the decision.

Now, the ominous prediction of the effect is unwarranted.

First, it assumes wholesale undiscovered fraud — fraudulent practices as has been the case in this particular case.

Julius C. Biervliet:

Then it further assumes that immigrants intended a design of the fraudulent and the subsequently change of a familiar status in such a manner to acquire a citizen spouse and a citizen child.

We hardly think that petitioner at the time of her fraudulent and she planned to bear a citizen child or that she anticipated that the plan would be to release her off her fraud.

I would think that such an alien would really be a sophisticated alien to plan all of that.

Potter Stewart:

Now this would — this would cover aliens like the one in the last case.

And that would be the usual case and that I must say it seems to me the kind of case that this legislative history, these remarks in the Congress seemed to be addressed to, aliens who already have family in the United States.

This woman at the time she made a misrepresentation wasn’t — couldn’t possibly have been qualified under this statute because she had no family in the United States, isn’t that correct?

Julius C. Biervliet:

Yes, but —

Potter Stewart:

The only reason now that she’s qualified under the literal — under the words of the statute so far as familial connections though is that she had illegitimate child after she got her.

Julius C. Biervliet:

Yes, Your Honor.

Potter Stewart:

And after she got here fraudulently.

Julius C. Biervliet:

Yes, Your Honor.

And we take the position that this statute is applicable to her as a total defense, Your Honor.

Potter Stewart:

Yes, I understand your position.

Julius C. Biervliet:

There are few more examples that I would like to ask the Court if I could have five minutes to the attorney general but for one more point that I want to make.

Earl Warren:

Yes, you have more time.

You may reserve the rest of your time if you wish.

Julius C. Biervliet:

Thank you.

In the court below, the Government contended and the Court held that the otherwise admissible language included both qualitative and quantitative admissibility and availability of a quota placed at the time of entry.

The effect of this interpretation is to relieve of the fraud or material representation only those aliens who never had to perpetuate a fraud to gain admission nor do we see House Section 241 (f) of the immigration law under the new law at the present time where 45,000 visas are allocated for each quarter that if a person which says it’s a quarterly worldwide series for immigrants for the first three quarters of any — this any person who enters in a particular quarter of the year in which this worldwide sealing is filled under the government’s interpretation not otherwise be admissible.

However, if they waited until the fourth quarter when the other 45,000 visas were available and then make application and then he would automatically get a visa.

In short, the Government’s interpretation then of the exception provision either virtually meaningless or effectively according to a sliding scale of opportunity values which bears no relationship to Congress concerned for maintaining existing family unit.

We therefore would respectfully ask this Court to affirm the Errico decision and reverse the Scott decision in the Second Circuit.

Thank you, Your Honor.

Earl Warren:

Mr. Solicitor General.

Thurgood Marshall:

Mr. Chief Justice and may it please the Court.

I would like to go back to the point about the present relationship of both of these cases and if the Court would note on our brief the footnote on page 5, none of our brief Mr. Justice Brennan petition for certiorari, in Errico.

But the substance of it is that it is not limited to these cases because under the act which will become effective July 1 of 1968, the legislation provides a worldwide quota that still be an annual quota but it will be a worldwide one of 170,000 and a system of preferences and it appears that it also includes a limitation of 20,000 immigrants from anyone country per year so we still have the problem regardless of the removal of the existing quotas.

There, it’s really expected there’s of course no dispute as to the facts.

There is one additional fact which we have in our brief on page 3 on the question of family ties that we have here.

William J. Brennan, Jr.:

Which brief?

Thurgood Marshall:

Of our brief in the Scott case the brief on the merits.

On page 3 it’s pointed out that her sister is also up for deportation and the — it’s being of course judicial review has been sought in this Court of Appeals and it’s apparent that the Court of Appeals is waiting for this on.

The — I come again to the background of this Section 241 (f).

And I noticed that counsel is using the same language as the Ninth Circuit about this automatic provision.

And as I understand, what’s being argued here today is that if somebody has misrepresented a fact and they have anybody within the language of the statute they automatically remain here and I would assume that all you do in the case like that is file a marriage certificate or birth certificate and that’s it.

We’ve been invited to go through the legislative history.

I briefly went over but I think we can do a little examining.

The 1948 Act said in so many words that any person who willfully makes a misrepresentation for the purpose of gaining an admission shall thereafter be not admissible into the United States, ever.

That was of course harsh language.

As I pointed out this morning prior to that there was no grounds for mistakes and then in 1952 we had the softening of it that it continued on through but each one of the act as set out in our brief from the 48 Act up to the last one, there was no question they were lessening the rules.

In the act we now have in question was the effort to remove the complete harshness of the 48 bill as it was amended down the line.

It was a harsh bill and I assume that that was the reason that it would appear to just the reading of the statute without the legislative history to assume that it was to be automatic.

The statement has also been made that the phrase otherwise admissible is something new.

It’s in Section 241 (f), Section 211 (b), Section 211 (a), 212 (b), (e), (g), (h), (i) and etcetera.

It’s also on the statute.

I mean it’s — it’s not a new language and it means the same thing it meant in the immigration law all along.

Abe Fortas:

As I understand their adversaries in these two cases, they say that it’s used in these other places, so as not to include the quota and the corner case of restrictions, —

Thurgood Marshall:

I don’t know a single statute where it deliberately eliminates the quota system.

As a matter of fact the history, the legislative history always gets some one or two senator or one or two congressmen that always say we’re not going to touch the quotas.

They keep saying it over and over again up until the last act.

Abe Fortas:

You mean in connection with the use of the phrase otherwise admissible.

Thurgood Marshall:

No, sir in the general discussion.

Abe Fortas:

Oh that’s what I am talking about.

Thurgood Marshall:

In the general discussion.

Abe Fortas:

As I understand your adversaries, they are saying that wherever this phrase has been used, otherwise admissible, it refers to these qualifications other than quota.

Thurgood Marshall:

And then the Act also, the real section relied on the act restricts the quota deliberately and I think you have to take the two together.

William J. Brennan, Jr.:

Mr. Solicitor General how long — how does the quota system operate?

For how many years they had — do they fill quotas?q

Thurgood Marshall:

You mean on the past or in the future?

William J. Brennan, Jr.:

In the past.

Thurgood Marshall:

In the past, I think it’s on an annual basis.

When it’s used up, you start over again, you start over again on a new one.

There’s never been any question of most of them.

William J. Brennan, Jr.:

How do they — how do they accuse the first come, first served?

Thurgood Marshall:

First come, first served in the bracket of preference that you’re in.

They run in size five preference practice.

William J. Brennan, Jr.:

So in any year, — so the — when you say that he’s ineligible because the quota is over subscribed.

Thurgood Marshall:

That’s for that year.

William J. Brennan, Jr.:

That’s for that year?

Thurgood Marshall:

Yes, sir.

William J. Brennan, Jr.:

And if you’re on — if you’re in the quota for one year, can you come any time during that year?

Thurgood Marshall:

You mean your number might come up?

William J. Brennan, Jr.:

Well is that — you wait for your number to come up during the year and —

Thurgood Marshall:

That’s right.

Does it go for one year?

William J. Brennan, Jr.:

Let’s say I’m on the quota.(Voice Overlap)

Say I’m in the quota, that I’m listed.

Thurgood Marshall:

You’re listed.

William J. Brennan, Jr.:

I’m waiting for my number to come up.

But it might not come up for 100 years.

Thurgood Marshall:

Right.

William J. Brennan, Jr.:

So then I lie about my — then I go through a phony marriage with an American citizen.

Thurgood Marshall:

Yes, sir.

William J. Brennan, Jr.:

And then have a child over here and then illegitimate child.

I can stay?

Thurgood Marshall:

Yes, sir.

William J. Brennan, Jr.:

Section 7 will accept me.

Thurgood Marshall:

Yes, sir.

If there was a less — if there was a less of 1200 and you lied and come here

William J. Brennan, Jr.:

You don’t send them to wait for his number?

Thurgood Marshall:

No.

Actually that’s the argument that’s made here.

That he stays right here forever.

William J. Brennan, Jr.:

Well you so don’t send him back and wait for his number to ever come up and yet if he did — and yet his brother who did not have a number you send him back.

Thurgood Marshall:

Oh I don’t think the number matters too much.

If he —

William J. Brennan, Jr.:

Now, wait a minute, you’re saying that he’s deportable here because he wasn’t otherwise admissible and he wasn’t otherwise admissible because he — because the quota was oversubscribed and he wasn’t honored?

Thurgood Marshall:

That’s it.

William J. Brennan, Jr.:

He wasn’t entered, he didn’t have a number.

Thurgood Marshall:

Well so far as we know he didn’t have any number.

William J. Brennan, Jr.:

Yeah

Thurgood Marshall:

But in here she —

William J. Brennan, Jr.:

But in my example if I got a number even if I wont be here for a hundred years.

I can stay although my brother who doesn’t have a number I will send him back.

Thurgood Marshall:

I assume that in both cases, the applicant lied.

William J. Brennan, Jr.:

Sure I assume both cases the applicant has lied and one of them goes home and the other one doesn’t.

Thurgood Marshall:

Well, the first one would not have been — I would not consider that the person who was on the list is eligible to be admitted.

William J. Brennan, Jr.:

He isn’t?

Thurgood Marshall:

He’s not eligible until his number comes up.

Byron R. White:

Well, so now —

Thurgood Marshall:

As long as — no sir, as long as the quota is there I am not defending the quota.

The quota is there, that’s all.

And the quota says that this many people can come from Jamaica or Italy to be the case you want and that’s all.

Byron R. White:

Yes, but you satisfied quota eligibility, haven’t you, if you get a number?

Thurgood Marshall:

Oh no sir.

No sir because you are waiting in a group.

Byron R. White:

Some people can’t even get in the quota can they?

Thurgood Marshall:

I — but it does.

I guess that some could get on those that have some criminal records and things like that.

Byron R. White:

They have some qualifications.

Thurgood Marshall:

Criminal records and stuff like that.

Byron R. White:

But they’re eligible — it means that they’re eligible for entry?

Thurgood Marshall:

They’re not eligible —

Byron R. White:

At some time?

Thurgood Marshall:

Yes, sir.

That’s right, at some time.

But when you come in illegally, you have taken the position of somebody who was validly ready to come in.

Byron R. White:

Alright.

Now, let’s assume the phony marriage and the fellow was in the quota, he set a phony marriage or he lies about something else to get in this year and he wouldn’t have gotten in next year.

If that happen in two years later?

Thurgood Marshall:

Well, if he could have gotten in next year he would have waited for that year.

Byron R. White:

He was throwing – well, he was thrown out.

Thurgood Marshall:

I see that’s a discretionary point more than I believe it wouldn’t.

But I don’t think it’s automatic.

Byron R. White:

Well, you are saying it’s automatic though.

You are saying that — you’re saying the law says that in that, he was eligible for entry at the term — at the term but he’s deportable.

Thurgood Marshall:

Well, isn’t that the general law of immigration ever since we had immigration law?

Before there was no chance of —

Byron R. White:

Well that may be so but we’re dealing with Section 7.

Thurgood Marshall:

Well, I don’t believe that Section 7 said that somebody who comes into this country after misrepresenting themselves and the mere fact that by the own action of the person involved she has a child, she should be in a better position than everybody else?

Byron R. White:

Well that maybe so but we’re going — the Congress maybe didn’t agree with you.

Thurgood Marshall:

Well, the Congress could have said so and Congress did not.

Congress said otherwise admissible.

And just being on a list does not make you admissible.

What we mean by admissible is that you are ready to get your visa.

You are not admissible without a visa.

John Paul Stevens:

Isn’t it (Inaudible) in the last case?

Thurgood Marshall:

Oh in the last case.

John Paul Stevens:

Yes.

Thurgood Marshall:

No sir, in the last case the only thing was that you could forget the fact that he told a lie.

John Paul Stevens:

But then to give the quotas or they didn’t give him anything?

If he had a quota number he could have —

Thurgood Marshall:

Yes I am sure of it.

He could’ve come in and if he’s in a quota.

If his number had come up or if he was a qualified automobile mechanic either one he could have gotten in.

John Paul Stevens:

Well that section doesn’t help him at all?

Thurgood Marshall:

I don’t think it helps.

John Paul Stevens:

And then he used to — if the Congress arrives that if it does apply to him so it doesn’t accelerate his —

Thurgood Marshall:

I don’t think it helps him at all.

I think these are several other sections that could possibly help him and there are several other sections that could possibly help.

And Ms. Scott is a much better —

John Paul Stevens:

But if she had been from South America, it would have helped her.

Thurgood Marshall:

Sure.

If he come in South America because there is no quota there.

John Paul Stevens:

That’s right.

Thurgood Marshall:

But it still has–

John Paul Stevens:

But there is a large vast of people if this Section 7 does benefit.

Thurgood Marshall:

It was said in the debates that it was for the Mexicans and other continental countries.

Abe Fortas:

Mr. Solicitor General may I ask you again, what is your position exactly in the case.

Suppose he had been a communist (Inaudible) and he has filed an affidavit or representing that he was not a communist or that he has not a tubercular and an affidavit had been posed and let’s suppose which is unlikely that he would have been within the quota, does this Section of the statute relive him from the consequences in having been a communist or a tubercular?

Thurgood Marshall:

Well as to the tubercular, there is a specific section on that.

Abe Fortas:

Well I am asking if this —

Thurgood Marshall:

And I would say that that’s the point that I was trying to clear up this morning that where you have a specific section that gives relief, I don’t believe this section was meant to cover that specific point and I —

Abe Fortas:

Well I think you got to help me a little more than that.

Thurgood Marshall:

Well, I was getting ready to say and it would be on that basis that I would say that the Board of Immigration Appeals would say that you don’t qualify this because you get relief onto the other one.

Abe Fortas:

I am not interested in what the board would say.

I am interested only on what the effect of the statute.

You told us that unless that if the fellow is not eligible within that quota then this provision in the statute does not help him.

Now what I am asking is suppose he is not intelligible because he was communist or a tubercular or a criminal and he has made a false statement in those respect, the statute help him there.

Thurgood Marshall:

I — my point is yes, the statute would help on the communist on the other point but I would — there’s no decision on it that I know.

Abe Fortas:

Well we’re trying to find out what the statute means by your adversaries say that the effect of this provision in the statute is to allow a person to stay in this country if he has gotten in by means of false statement even though he was not eligible — his number had not come up within the quota you say, but that if he was a communist, if he had entered this disqualifications that he would be deportable, now that’s their position as I understand it your position is in précised conflict on each aspect of the case.

Thurgood Marshall:

Well my position on the communist as I understand it there is no waiver on that but that’s strictly for the communist and I am not too sure about the others.

I mean we spelled it out as best as we could.

Yes, I’ve been reminded that the criminal record that there is a provision for waiver.

Abe Fortas:

But here you’re saying —

Thurgood Marshall:

There’s a specific provision.

Abe Fortas:

Well let’s just say that the immigrant could stay in this country despite the false affidavit, regardless of the fact that he is personally disqualified of his being communist or tubercular on the one hand or that if he could stay in this country regardless of the fact that he was outside of the quota.

So lets just take one of the other those who may have take both of them that given much meaning for this provision wouldn’t it?

Thurgood Marshall:

Well the history of the statute says that the waiver was to cover the points that started in the 48 statute saying the mere fact that you tell a lie makes you forever ineligible for citizenship.

This as I understand the statute it says no longer can you use that as a sole basis for exclusion or for deportation.

Just the fact of lying alone is not enough and so the only thing, the immigration says has got against you is that you have lied.

They — and you have the family connection.

They waived that, providing you’re otherwise admissible.

Abe Fortas:

Otherwise admissible on all stores.

That is to say he was in the quota, you’re not a communist.

Thurgood Marshall:

Right.

Abe Fortas:

you’re not tubercular, and so on.

Thurgood Marshall:

That’s what I understand it to mean.

Abe Fortas:

And so that the Government’s position if I understand it is that he total effect of this provision in the statute in the sole fact of this provision of this statute is to excuse the false statement itself.

Thurgood Marshall:

Exactly, yes sir and now I footnote it by saying that a lot of these others have specific other waiver provisions.

No sir we’re not concerned with those, would that qualify the statement, I would say that’s our position.

John Paul Stevens:

Do you think Mr. Solicitor General or is it the Government’s position that in any event Mrs. Scott doesn’t come within the statute because the child was born to her after she came here.

Thurgood Marshall:

No sir.

We agree that she has a necessary —

John Paul Stevens:

In that respect?

Thurgood Marshall:

In that respect, but I should point out as I did in Errico that she can apply even for a suspension for deportation under Section 244.

John Paul Stevens:

That’s a discretionary.

Thurgood Marshall:

Yes sir and adjustment of status and if she’s actually deported there’s no question about it, it seems to me about it getting back, because she’s got an American citizen as a child.

I don’t think there has got to be a problem at all.

William J. Brennan, Jr.:

What gets her back?

Thurgood Marshall:

She has got an American citizen as her child is an American citizen.

William J. Brennan, Jr.:

But you’d have to wait for another 10 years.

Thurgood Marshall:

Well it’s the number will be too difficult for Jamaican and there’s also the question of immigrants with skills but —

William J. Brennan, Jr.:

Which might get a preferential basis?

Thurgood Marshall:

We – there’s a possibility but as we point out in our brief we don’t know.

I mean there’s no way for us to know. Well, I mean the Jamaica is an independent country we point out in our brief and has an independent country and in this hemisphere there is no quota involved there.

No longer.

William J. Brennan, Jr.:

Well.

Thurgood Marshall:

Yes.

William J. Brennan, Jr.:

Well then what does this mean then you send her back and she comes right back to the same shift?

Thurgood Marshall:

Not quite I think —

William J. Brennan, Jr.:

Why not?

Thurgood Marshall:

I think —

William J. Brennan, Jr.:

Why not?

Thurgood Marshall:

I think that she can apply for suspension and deportation right here.

William J. Brennan, Jr.:

Suppose that she doesn’t do that.

Thurgood Marshall:

She doesn’t do that —

William J. Brennan, Jr.:

Your position is sustained here and you send her back.

Does she just turn her back again?

I guess she come back by plane then.

Thurgood Marshall:

Well, if (Inaudible) fast plane.

William J. Brennan, Jr.:

Well, if there’s no quota why wouldn’t she?

Thurgood Marshall:

Oh she still has to have a visa and she has to qualify.

There are a lot of qualifications.

She has to fill out the forms to qualify

William J. Brennan, Jr.:

No i just —

Thurgood Marshall:

— not a single suggestion that I know of then I’ve had this check by immigration and they can find that.

There would be no — no quota restrictions as she applied now but it wouldn’t be immediate.

The usual red tape, I would assume, would be involved but I am interested in the part that she can apply a suspension of deportation and remain here now and I — I am not at all carried away by what allegedly happened in another immigration case.

I am not —

William J. Brennan, Jr.:

As a matter of interest but she just applied for suspension, get it and meanwhile processed that application, come in with quota or not quota or whatever it is.

Thurgood Marshall:

But she would have an adjustment of status at the same time she’d applied for just adjustment of status.

William J. Brennan, Jr.:

She wouldn’t have to leave.

Thurgood Marshall:

She would not have to leave but the — in all fairness there was an adjustment of status would not be granted because of the long standing time of litigation but I can — I mean I have nothing to do with that and I can’t —

William J. Brennan, Jr.:

Could she then go back and start over again?

Thurgood Marshall:

Sure she can always voluntarily deport.

As a matter of fact the original order gave him a right to deport voluntarily if she wanted to but instead she comes up on this and we insist that she should not be penalized merely because she came to the courts.

William J. Brennan, Jr.:

She has to go to Jamaica or could she go to Canada?

Thurgood Marshall:

Well, she named Jamaica.

If she had to go back she would go back to Jamaica, but I understand again from the regulations that the old idea of going to Canada and coming back of being found on she rather go back to Jamaica and come back.

It’s the matter of transportation.

William J. Brennan, Jr.:

Doesn’t take any longer does it?

Thurgood Marshall:

No not these days.

Theres no rules.

Abe Fortas:

Excuse me but could you imagine any situation in which the service could order to deport somebody for false statement that would be waived under what you say is a correct construction of provision.

It seems to me again that now that I think I am clear about your position which you are saying is that the statute waives the making of the false statement only whether false statement does not relate to matters of admissibility in other words where the person as of the time of entry in order for the person who have made the most statements here despite the statute, the person has to show that he had — the number was available within the quota.

He has to show that he was not a communist.

He’s got to show that he is not tubercular and all the rest of those qualifications.

So that the waiver would relate only to the area of unnecessary perjury, that we have talked about this morning.

Thurgood Marshall:

Well, as I said before, the wisdom of it I — it’s an Act of Congress and it was made to get rid of the statements that were made under pressure or would have you about the country you are from and all then tell you to go back to it and all of the — as the result of the refugees and it was just to get rid of that that’s what he was for.

But I don’t think it was to open the door.

Abe Fortas:

So we’re trying to find the meaning of this as far as I am concerned with the policy that if somebody from Austria or let’s say Italy came across the Mexican border and he said I am a Mexican and that was false and then under you construction he’s deportable despite the fact that he has a family here.

Thurgood Marshall:

Yes.

Yes sir.

William J. Brennan, Jr.:

As you pointed out in page 34 or 36 of your brief in the last case, there are many situations in which this statute would have application.

Thurgood Marshall:

Yes, sir we have our time in getting that many though.

I could see quite frankly and we barred some from Judge Kaplan’s opinion.

Abe Fortas:

Yes, as I read.

Thurgood Marshall:

But obviously there were some purpose in mind and we try to find it.

Abe Fortas:

Well, as I read those exceptions with all due respect, those instances you’ve cited where the statute might have a meaningful application it seems to me that mostly it would have to be on the eighth day of the week.

Thurgood Marshall:

Yes, I take the Fifth Amendment on that.

William J. Brennan, Jr.:

I just like to be fair Mr. Solicitor General, I gather Jamaica was –had a quota but is part of the British?

Thurgood Marshall:

Part of the British Colony.

It was very small.

William J. Brennan, Jr.:

But now —

Thurgood Marshall:

100.

William J. Brennan, Jr.:

But now, was it that certain, was that oversubscribed?

Thurgood Marshall:

100

William J. Brennan, Jr.:

Oh I see it.

It had a — as part of the British Empire it had an independent quota of 100.

Thurgood Marshall:

Right.

William J. Brennan, Jr.:

And that was oversubscribed?

Thurgood Marshall:

Oh Sure always.

William J. Brennan, Jr.:

But now there’s no quota?

Thurgood Marshall:

There are 68, but there’s no quota now – 65 and no quota now.

William J. Brennan, Jr.:

And this case was in process when this law was changed?

Thurgood Marshall:

Yes, sir.

William J. Brennan, Jr.:

But doesn’t this case often close to most witness?

But certainly,

Thurgood Marshall:

Well it’s not —

William J. Brennan, Jr.:

What case of controversy is left on this?

Thurgood Marshall:

I have the great difficulty in not agreeing in this case and I don’t is because of the present in value for the future as long as we have this overall quota for the whole world.

William J. Brennan, Jr.:

But is this going to be settled on the Errico case?

I am just wondering why we have to go citing this one under the circumstance, he is not?

Thurgood Marshall:

Well, I take the answer is that if the — either one had gone or one of the roots have gotten adjustment status and what have you there wouldn’t be any litigation in the first place but they insist on race in this point and if this point if it’s allowed to stand then it’s the end of the case.

William J. Brennan, Jr.:

You just have to stick to this case Mr. Solicitor General because otherwise there wouldn’t have been a conflict.

There wouldn’t have been a certiorari granted.

Thurgood Marshall:

Fifth Amendment again sir.

William J. Brennan, Jr.:

Yes it is.

Thurgood Marshall:

We submit.

Earl Warren:

Very well.

Julius C. Biervliet:

Your Honor, I just want to answer your question there is a quota system for Latin America and that it is specified in the law that these people are special immigrants and in order to be a special immigrant they have to comply with certain formalities.

For example, no Latin American can come in this country or anybody from the West Indies at the present time unless they obtain a legal clearance certificate from the United States Department of Labor provided that they do not fall in any one of the exempted categories.

Therefore, if Mrs. Scott goes back to Jamaica, I doubt that she will ever come back in the country and as to the five examples that Judge — Mr. Justice Fortas has addressed himself before, I am practically saying to you, Your Honor that these examples are examples born of the discretionary relief that the attorney general already has so they really have no theory on Section 1251 (f).

Here we are claiming that they we have a statute construction in which there are only two cases.

One is in favor of the statute and the other one is against the statute and the legislative history shows that there was sympathy at the heart of Congress when they enacted the statute and I cannot see that this statute should not be given a rather total effect than rather discretionary effect which the attorney general was praying for it.

I have been before the immigration service for the last six or seven years for the Legal Aid Society and I find it really pathetic, Your Honors, if what’s so impossible to see there is really a case that evokes sympathy and that sympathy is being materially denied.

And you can’t go to the federal court and say well this and this and this is this case but Your Honor has nothing to do.

Mr. Biervliet there’s nothing that we can do for you.

The service had not abused their authority so therefore you have no case.

The service is affirmed and it’s in that spirit that I am calling here to ask for help from this Court because I think we should really help Mrs. Scott.

Thank you very kindly.