Leng May Ma v. Barber

PETITIONER:Leng May Ma
RESPONDENT:Barber
LOCATION:Shotwell Manufacturing Co.

DOCKET NO.: 105
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 357 US 185 (1958)
ARGUED: May 20, 1958
DECIDED: Jun 16, 1958

Facts of the case

Question

Audio Transcription for Oral Argument – May 20, 1958 in Leng May Ma v. Barber

Earl Warren:

Number 105, Leng May Ma, Petitioner versus Bruce G. Barber, District Director, Immigration and Naturalization Service and Number 396, I see those would be argued — no.

They’re to be argued separately.

So you’ll proceed with yours sir.

Mr. Hertogs

Joseph S. Hertogs:

Mr. Chief Justice, Associate Justices of the Supreme Court, may it please the Court.

We are here today, seeking reversal of a judgment entered in the District Court and affirmed in the Court of Appeals for the Ninth Circuit.

The petitioner in the instant case was born in China in about 1938.

Some time prior to the Communist invasion, she and other members of the family moved to Hong Kong and took up residence in Hong Kong.

In 1951, when she was 12 and a half years of age, her father submitted in her behalf an application for documentation with the American Consulate General at Hong Kong.

American Consulate General issued documentation in the case and the girl proceeded to the port of entry of San Francisco, California.

Subsequent to the time of her arrival in 1951, the Immigration and Naturalization Service determined that she had failed to reasonably establish her claimed relationship to her citizen father and therefore, her claim to United States nationality.

As a result, they ordered her excluded and deported from the United States as an alien, not in possession of a proper immigration visa authorizing her admission for permanent residence.

How old she was?

Joseph S. Hertogs:

She was 12 and a half years of age at the time of her arrival.

During the interim, prosecution had taken place.

The Government in the prosecution contended that the parents and one other member of the family had committed perjury in a primary and preliminary statements made to officials of the Immigration and Naturalization Service.

Those members of the family were indicted and they were acquitted.However, during the interim, they saw fit to parole her into the United States.

As a result, the proceedings in the instant case were not concluded for a considerable period of time.

The ultimate decision of the Board of Immigration Appeals was not arrived at until 1953.

In the early part of 1954, the petitioner received a notice to surrender for deportation to Communist China.

And merely after following such notification, there was filed in her behalf with the District Director of the Immigration and Naturalization Service who is the respondent in the instant proceeding, an application for a stay or deportation on the grounds of physical persecution.

Such application was filed, presumed to regulations and in effect.

It was contended in that petition that this — this petitioner would suffer physical persecution, probable death and at least would be required to adhere to predispose to which she did not believe.

The Immigration Service refused to accept such application, stating that she was not a person eligible for that relief, that merely following notification of that decision, a petition for a writ of habeas corpus was filed in the United States District Court of San Francisco.

The Court, in its decision, reached a conclusion that the pleadings did not state facts sufficient to warrant the issue — issuance of a writ of habeas corpus.

The Circuit Court of the Ninth Circuit affirmed it.

And I might state that at no time was the petitioner ever given a hearing.

That no time was an order to show cause ever issued by the District Court.

No hearing was ever held.

Therefore, the only thing which we have before this Court are the pleadings on a petition for writ of habeas corpus.

Joseph S. Hertogs:

The similar question was presented to other — two other Circuits.

The Second Circuit held similar to the Ninth Circuit that persons excluded from admission to the United States were not persons within the United States, within the statutory language of Section 243 (h) of the Immigration and Nationality Act of 1952.

Felix Frankfurter:

Would you mind explaining a phrase you used earlier that she was paroled into the United States?

Isn’t that —

Joseph S. Hertogs:

That is the word I used.

That is the word in phraseology used by the Immigration and Naturalization Service.

Felix Frankfurter:

Yes.

Joseph S. Hertogs:

It is a release from detention.

At the time of arrival detention facilities were available in the appraisers building located in the city.

Felix Frankfurter:

The thing she was — she came in by ship, I take it out.

Joseph S. Hertogs:

That is correct.

Felix Frankfurter:

And she was physically detained at the place of reception —

Joseph S. Hertogs:

For 15 months.

Felix Frankfurter:

— in San Francisco harbor whatever — wherever that maybe.

Joseph S. Hertogs:

Yes.

Felix Frankfurter:

(Inaudible) in San Francisco, is that right?

Joseph S. Hertogs:

That is correct.

Felix Frankfurter:

And then — then, go on from there.

What happened?

Joseph S. Hertogs:

After 15 months of detention, she was released from custody upon filing a bond.

She was permitted to come physically into the United States, remain in the United States and subsequently —

Felix Frankfurter:

What — what — on what ground she’s actually deported?

Such parole is — parole is the technical term, is it?

Joseph S. Hertogs:

That is correct, Your Honor.

Felix Frankfurter:

On what ground — what ground it’s asserted?

What — what bases — on what ground may the power be exercised?

Joseph S. Hertogs:

At that time, there was no statutory language providing it for the parole of such aliens.

Since that time, after enactment of the Act of 1952 which became effective in December 1952, there was statutory provisions provided.

However, the release in this case occurred prior to the 1952 Act.

Felix Frankfurter:

And was that — was that a recognized administrative discretion?

Joseph S. Hertogs:

They did it in a number of other cases.

A similar case was the one which I have previously before this Court which was reversed in the suggestion of mootness, the case of choosing who have lived in this country for many years.

He was an armory discharged veteran of the Armed Forces of the United States and who was under likewise had been ordered to surrender for deportation.

A similar situation, it where — where there has been lengthy detention and in a case of a young girl such as this, they assumed the authority to release from detention.

Felix Frankfurter:

Well, does that go way back in the enforcement of the immigration laws, namely that people are held one week or other takes time and they let them out on bar.

Joseph S. Hertogs:

That is correct.

Felix Frankfurter:

I mean, there’s no —

Joseph S. Hertogs:

Normally, Your Honor, they do not release them.

Felix Frankfurter:

I understand that, but I’m talking about power.

Joseph S. Hertogs:

Yes, sir.

Felix Frankfurter:

This is an implied — an implied exercise by the immigration authority, the physical — the physical — the opportunity of leaving the place, the physical detention to walk freely about the streets of New York to San Francisco under giving of a bond.

Joseph S. Hertogs:

That’s right.

The interest of justice in fairness and that is what occurred in this case.

Now, the Court has —

Felix Frankfurter:

What is the statute?

What — what is the statute?

What chages that —

Joseph S. Hertogs:

This is (Voice Overlap) —

Felix Frankfurter:

— immediately just grab the administrative practice.

Joseph S. Hertogs:

Yes, Section 212 (d) (5) of the new Immigration Act of 1952.

Felix Frankfurter:

It just — it just recognized it.

Joseph S. Hertogs:

Yes, it does, Your Honor.

Hugo L. Black:

Are the geographical limits for the area (Inaudible)

Joseph S. Hertogs:

No, Your Honor.

However, the bond was — the bond agreement which she signed required her to appear at anytime when called upon was a sufficient notice by officers of the Immigration service.

Felix Frankfurter:

Well, it’s implied that — that she wouldn’t be allowed to go to New York —

Joseph S. Hertogs:

No, it was not.

There was no restriction placed at all (Voice Overlap).

She did stayed right in San Francisco.

Felix Frankfurter:

Yes, but I’m not talking about this case.

Joseph S. Hertogs:

No, there wasn’t —

Felix Frankfurter:

Isn’t it the implication that you just stated it that at any time that the immigration authorities want physically to get hold of the incoming person, he should be made available.

Joseph S. Hertogs:

That is correct on written notice.

Earl Warren:

Mr. Hertogs is there no distinction at all between parole as that term is used in this another cases and on the other hand, release on bond?

Joseph S. Hertogs:

Normally, the chief phraseology, “release on bond” applies in the warrant of arrest case.

The — a parole case is normally one which is not — there’s no bond exactly.

However, it’s been a customary practice in San Francisco for a number of years to always exact the bond where a Chinese person is involved.

Earl Warren:

What — in what amount — what money?

Joseph S. Hertogs:

It varies, Your Honor.

In this particular case, it was $500.

In other cases, it goes as high as $2000.

Now, the Court of Appeals for the District of Columbia reached a contrary decision.

The Court of Appeals for the District of Columbia held that this type of person is a person within the United States and entitled to a relief sought.

The Court held that she was entitled to — that — that man was — was entitled to a hearing before the Immigration and Naturalization Service.

Earl Warren:

And —

(Inaudible)

Joseph S. Hertogs:

There never was any hearing.

They held that she was not eligible and refused to accept the application.

There were never was any hearing.

They know they have no power to —

Joseph S. Hertogs:

That is correct, Your Honor.

Felix Frankfurter:

Yes.

Am I right and I don’t mean to make any implication whatever on the problem that’s before us.

And am I right in inferring from what you have said that if he’d been physically if he continued in the physical custody of the detention place in San Francisco, you wouldn’t be here?

Joseph S. Hertogs:

I would be here.

Felix Frankfurter:

Please — please.

Joseph S. Hertogs:

No, I would stay —

Felix Frankfurter:

— don’t draw any inference from that.

I just want to know if that —

Joseph S. Hertogs:

I was going to come to that, Your Honor.

Joseph S. Hertogs:

There’s a difference of positions between counsel in the following case and myself without — with that regard.

I think that there are four points in this case.

One is the human rights, whether any humanitarian consideration will be given to deportation of any alien to a communist dominated country where they — they are likely to suffer physical persecution.

The other three points are all one of statutory construction of the provisions of the Act.

There are three questions involved in the statutory construction problem.

The first is what is the meaning of deportation?

Secondly, what is the meaning of the phrase, “any alien” as used in Section 243 (h), the Section under which the application was filed.

The third question is what is the meaning of, “within the United States,” as used in the same section of law?

I only passed over lightly the first one because I think we can reach a decision — the Court can reach a decision on the statutory construction angle.

However, I believe that as Mr. Justice Frankfurter stated, “If a person were detained and they were to be deported to a Communist country and all of the evidence and it could be clearly established that they would suffer physical persecution and probable death.”

I don’t think the Courts were — are without power to interfere to the administrative discretion.

Felix Frankfurter:

What you are saying I think is that in a proper case, you –you would have this Court to recognize the constitutional right of exile?

Joseph S. Hertogs:

That is correct, Your Honor.

Earl Warren:

What country would this — would this petitioner be returned?

Joseph S. Hertogs:

She would — there’s no question about where she was to be returned.

It was admitted and it’s submitted in the pleadings that she was to be returned to Communist China.

She was to be taken by boat to Hong Kong.

She had a transit — they had obtained a transit visa through Hong Kong.

She was to be placed on the train, taken up to the border and physically put over the border in the Communist China.

Earl Warren:

Well, wouldn’t the Hong Kong — doesn’t the Hong Kong authorities have a say about that?

Joseph S. Hertogs:

They have issued a transit visa and a transit visa only.

I am going to come to that particular question afterwards because I think it is one involved in the statutory construction, because this petitioner came from Hong Kong.

It is true that she is a native and citizen of China, but she came to the United States from Hong Kong and the excluding provisions, the law relating to exclusion says that they shall be immediately deported back to the place from whence they came.

That is not what they — is occurring in this particular case.

It is a contention of the Government that she is deportable from the United States as an excluded and deportable alien.

Now, the Section relating to that particular Section, which was in effect at the time that she arrived was Section 18 of the Act of 1917.

That Act itself said they shall be immediately deported to the place from whence they came.

Now, the Court of Appeals in the Ng Weng Cheong case that was at the Court of Appeals in the District of Columbia held that where there was no immediate deportation, that the person have to be deported under Section 20 of the same Act.

That is the Act of 1917.

Now, the act of that Act provided that they could not only be deported from the place from whence they came, but to the place of the nationality, to a country in close proximity thereto or to any other country of a choice if that country would accept him.

Felix Frankfurter:

Just be noted that I may have no doubt about it.

The statute that you think is governing has what precise words as to the place and from, a place to which the alien has to be sent.

What are the precise words of the applicable statute?

Joseph S. Hertogs:

To whence they came.

Felix Frankfurter:

Whence they came?

Joseph S. Hertogs:

Yes, Your Honor.

Felix Frankfurter:

That’s all?

Joseph S. Hertogs:

Yes, Your Honor.

Felix Frankfurter:

So that to be either if she came from Hong Kong that should be awareness.

So, if she came to Hong Kong from China, that could be awareness.

Joseph S. Hertogs:

I would say that if she came through and was in transit to in Hong Kong, there would be no doubt she was coming from China, but that is not true in the instant case.

Felix Frankfurter:

And then she came without — just in transit in the technical sense?

Joseph S. Hertogs:

No, not in this particular case.

Those facts — those are facts which we could definitely prove at the time that the hearing were granted in the lower court.

This person lived in Hong Kong for a considerable period of time prior to obtaining documentation from the American Consulate in Hong Kong.

Felix Frankfurter:

Now, the decisions — have the decisions construed when she came — when she came to mean the last port from which —

Joseph S. Hertogs:

Yes, Your Honor, the —

Felix Frankfurter:

What — what is it?

What does this argue?

Joseph S. Hertogs:

Yes.

I — that’s only on the Immigration Service decision because that same Section provides that the carrier shall take the individual back to the same port and that the carrier shall be liable for the expenses.

Felix Frankfurter:

And the carrier here was a fellow — the carrier from Hong Kong.

Joseph S. Hertogs:

That is correct, Your Honor.

Now, one of the things which is causing confusion in the instant case is the fact that we had two sections of law and the fact that the time of arrival of this applicant in 1951, at the time of the conclusion of the final decision of the administrative agency, the Immigration and Nationality Act in 1952 had been passed.

There are two similar sections contained in the new Act, Section 237 and Section 243.

However, in Section 243, that is the one relating to certain types of classes of aliens and it is the contention of counsel for the respondent.

At Section 237, the one relating to exclusion and deportation of aliens is the one which is applicable in the instant case.

Now, Section 237 states in itself.

It refers to a person who has been excluded under this Act.

By this Act, they’re referring to the Act of 1952.

Joseph S. Hertogs:

This girl was not excluded under the 1952 Act.

She was excluded under the provisions of the Act of the — of 1917.

We also have and giving consideration to that argument, the savings clause which this Court has previously construed as being very broad and it preserves any rights, status, conditions or anything in the process at the time of enactment of the new legislation.

Now, Section 243 states that a person shall be deported whether pursuant to this Act or any other Act or treaty.

Now, since Section 237 refers to only deportation under this Act, that is the 1952 Act, she is not deportable from United States under that Section.

She is deportable under Section 243 (h), the Section that provides for the deportation of persons under the 1952 Act or any other Act or treaty.

It is very important because we are seeking here relief under Section 243 (h), yet, the Immigration Service and the courts below contend that she is not an alien eligible for that relief.

They are holding that even though she maybe deportable from the United States under Section 243 (a), she is not entitled to relief under a subsection of the same section of law.

Felix Frankfurter:

I don’t find the — the order of deportation is not in the record, is it?

Joseph S. Hertogs:

No, it is not, Your Honor.

Felix Frankfurter:

I suppose the — have you (Inaudible) or I suppose that’s the documents to which we have had.

Joseph S. Hertogs:

No, it is not.

Not an exclusion case.

It’s not a document.

Felix Frankfurter:

What is it?

Joseph S. Hertogs:

It already said that she had failed to reasonably establish, to claim relationship to United States citizens.

She should be deported from United States in the manner provided by law.

Felix Frankfurter:

Well, what I want to know is there a document which specifically directs to what place that indicates the geography of the termination of the journey which is commanded to be taken.

Joseph S. Hertogs:

The only — only indication and the only notification we received is a notice on a form letter from the Immigration and Naturalization Service —

Felix Frankfurter:

Do you mean, the one that’s exhibit (a) attached here?

Joseph S. Hertogs:

No, Your Honor.

It is one which was adopted subsequent to the institution of the — this proceeding.

Felix Frankfurter:

Where is that?

Joseph S. Hertogs:

It was filed after this proceeding has started.

Felix Frankfurter:

What I want to know is this.

Suppose that — there must be some piece of paper on which you as their attorney have told that she must be taken by some ship somewhere.

Joseph S. Hertogs:

Not — not at the time that this proceeding was filed.

No.

After that time, because there was objection to counsel to the practice of failing to notify not only aliens, but counsel where the person was to be deported.

They have adopted a new practice and may now issue a written notification stating the place to whence a person is to be deported.

Felix Frankfurter:

Well, (Voice Overlap) in this case?

Joseph S. Hertogs:

No, Your Honor.

Felix Frankfurter:

So you don’t know where she shall be — she will be shipped to Hong Kong or to China, mainland.

Joseph S. Hertogs:

Yes, Your Honor.

I — in this particular case, the only thing that the Court has —

Felix Frankfurter:

Is there a document which —

Joseph S. Hertogs:

No, Your Honor.

Felix Frankfurter:

— which would tell me that?

Joseph S. Hertogs:

No, Your Honor.

Felix Frankfurter:

This is all a matter of oral communication?

Joseph S. Hertogs:

That is right.

Felix Frankfurter:

But I don’t see that that’s the basis for judicial judgment.

Joseph S. Hertogs:

Your Honor, you — all you have before the Court is the pleadings.

The pleadings were not denied and in the pleadings, it is stated that I as counsel was notified by the official officer of the Immigration and Naturalization Service of San Franscisco that this alien was to be deported to Communist China.

That has never been denied and I don’t think there is any denial on the part of the Government at this time.

Felix Frankfurter:

But of course the letter for you that exhibit (a) is there asking for this (Voice Overlap) persons who made the letter (Inaudible) the decision based on allegation that physical persecution should deportation to China be effective.

What I want to know is suppose the Government now says, “We change.

We will now issue a formal order saying this woman should be sent to Hong Kong.”

After all, that ship that brought her can’t be asked to take her to China.

Joseph S. Hertogs:

That is correct.

Felix Frankfurter:

As a matter of law, it couldn’t be.

Joseph S. Hertogs:

That is right.

Felix Frankfurter:

As a matter of law, it would have to bear the expense of taking her back to Hong Kong.

Joseph S. Hertogs:

However, they have made arrangements as it states.

Felix Frankfurter:

As I understand that, my question is, suppose the — the inspector of the Immigration of the (Inaudible)

Joseph S. Hertogs:

District Director?

Felix Frankfurter:

No, General (Inaudible) would sign a piece of paper and say, “The ship is to carry her merely to Hong Kong,” and we have no further interest what happens to her after she gets to Hong Kong.

What will be your position?

Joseph S. Hertogs:

I would state that if arrangements have been made for her admission to Hong Kong, we would have no right to be before this Court.

Felix Frankfurter:

And that depends whether arrangements can be made.

Felix Frankfurter:

That depends upon the arrangement between the state department and the Government of Hong Kong.

Joseph S. Hertogs:

That is correct, Your Honor.

There are cases where persons have been returned to Hong Kong.

And in those cases, no action of this nature has been filed.

Felix Frankfurter:

So, if the Government gets up, I’m not — I’m trying to pull where this leads us to.

Joseph S. Hertogs:

Yes, Your Honor.

Felix Frankfurter:

Well, the difficulty for me is the — the Government gets up and certainly it authorizes to say the Government was trying to make arraignments for this woman’s deportation, physically carriage to Hong Kong and not beyond.

You said the case at the bottom was up, out of the case.

Joseph S. Hertogs:

That is correct.

I agree.

In this particular case, the decision below rest upon interpretation of the phrase within the United States as it is contained in Section 243 (h) of the Immigration and Nationality Act of 1952.

The Court of Appeals for the Ninth Circuit stated that this alien is not a person within the United States as contemplated in a congressional legislation.

Felix Frankfurter:

I don’t — I’m not sure I follow you.

If you are right in saying that if you are merely sent to Hong Kong, you would have no case.

Then, within the United States, it can’t change the — the reach of the job with which she can be sent.

Joseph S. Hertogs:

That is — I might be here for statutory construction, Your Honor, of the Section.

However, a person who is going to return to a country such as Hong Kong certainly could not contend that they would be subject to physical persecution and file an application for the relief as provided by that section of law.

Felix Frankfurter:

Therefore, what I’m suggesting is if she’s sent to — if she’s sent to China, she has no — the Government may have no right to send her to China no matter what within the United States means.

Joseph S. Hertogs:

That is my contention.

That is a —

Felix Frankfurter:

Well, that’s a very — that’s a very different case than this enormous case of suggesting a constitutional right of entry to the United State, whether the United States want to take them in or not.

Joseph S. Hertogs:

No, I am not contending that this person should be admitted to the United States Law free for permanent residence nor that she is entitled to admission for permanent residence.

However, it is my contention that she’s entitled to a stay of deportation or a continuation abroad.

I don’t care which —

Felix Frankfurter:

Until China has a Government that we like, is that it?

Joseph S. Hertogs:

That’s — no, until such time these arrangements can be made to deport her to a country where she would not suffer physical persecution.

Felix Frankfurter:

Well, then, I’m suggesting that the narrower issue is that this order is wrong so far as there is an order before us and that she’s being sent to China when she ought to be sent to Hong Kong —

Joseph S. Hertogs:

That is correct.

Felix Frankfurter:

— no matter what her status is.

Joseph S. Hertogs:

No matter what her status is.

Joseph S. Hertogs:

They cannot send her to China because that’s not the place from whence she came.

Felix Frankfurter:

Only regardless if China were a paradise, you couldn’t (Voice Overlap) —

Joseph S. Hertogs:

Except, Your Honor, that Section 243 if — if you hold Section 243 of the new Act is the applicable deportation statute then they can deport her to China, because that Section provides that they cannot — they can be deported not only to the place from whence they came, but to the country of their citizenship and nationality to any country in close proximity thereto or to any other country that they may choose.

Felix Frankfurter:

Well, could — how is that — what are the finances of this thing if — if an — if an alien comes from a port to which alone, the Government can compel the carrier to take her, who pays for the expense that’s going on from there to the eventual land of citizenship?

Joseph S. Hertogs:

The Government was paying for it in this particular case.

Now, getting to the phrase within the United States, I would like to cover that before my time expires.

A lot of the argument will be covered by counsel representing the following case.

However, I would like to comment contrary to the decision of the Court of Appeals, I feel that within the United States applies in the instant case.

Now, relating to Section 262 of the same Act.

It states that any alien in the United States must comply with the Alien Registration Provisions and it uses the word “in”.

In Section 265 of the same Act, it provides that any alien within the United States must file an Alien Address Report Card in the month of January of each year.

Now, the Immigration and Naturalization Service admit that a person paroled in the United States is a person required to comply with the Alien Registration Provision and is a person required to file an Alien Address Report Card in the month of January of each year.

In addition, when Congress passed this enactment in 300 — Section 360, it provided that a person, any alien in the United States who’ve made a claim of United States citizenship could file a declaratory judgment suit in the United States District Court where they claimed permanent residence, except an alien excluded from United States.

Now, they said, “Any alien within the United States, except an excluded alien.”

Now, it would not be necessary to put the phraseology except and exclude alien into that piece of legislation, unless an excluded alien was an individual who was within the United States.

Felix Frankfurter:

Am I right in having the impression of the phrase within the United States, goes back to immigration legislation long before the present difficulty in connection or that have arisen (Inaudible)

Joseph S. Hertogs:

Of course, sir.

I disagree with — I disagree with the —

Felix Frankfurter:

I’m not saying what the construction was.

Joseph S. Hertogs:

Yes.

Felix Frankfurter:

I’m saying the phrase itself is an old phrase, is it not, within the United States?

Joseph S. Hertogs:

It has had many constructions, Your Honor.

Felix Frankfurter:

I’m not talking about the construction.

I’m saying the fact, the words within the United States —

Joseph S. Hertogs:

Has have been.

Felix Frankfurter:

— have been in legislation and in opinion of this Court long antedating these compassionate problems.

Joseph S. Hertogs:

That is correct, Your Honor.

For a long period of time.

Thank you.

Earl Warren:

Mr. Sand.

Leonard B. Sand:

Mr. Chief Justice, may it please the Court.

I would like to state at the outset that the issue which is now before this Court, which wholly want a statutory construction is whether the Attorney General has any power to act under a certain provision of the Immigration and Nationalization Act of 1952, which speaks of withholding deportation of any alien within the United States.

The question is whether he has any power to act under that particular Section of the statute.

There is presented in this case no question as to the validity of the orders excluding these aliens from the United States.

Some reference is made to the fact that there was no hearing in this case and I want to make clear that the counsel for petitioner there refers to the fact that there was no hearing held on the application under 243 (h), because the Attorney General took the view that he had no power to act under that statute.

There was of course a hearing on the earlier question of excludability of this alien and there is no question as to the validity of the orders which have excluded the alien in this case and in the succeeding case.

Felix Frankfurter:

You — are you saying that there is outstanding an in — an uncontested legally valid order of deportation, that the Attorney General out of the goodness of his heart can’t say, “Oh well, this is a hard case.I’ll give relief,” but he has no power to do that, but the Congress in 243 has given him power under certain circumstances that you find conditionally and that as a matter of law.

He has ruled that this case doesn’t come within those conditions.

Leonard B. Sand:

Yes, I’m saying — I’m saying almost that.

I’m saying that the Attorney General has said, that with respect to an alien who has been excluded from the United States albeit released on parole, there is no power to act under this particular Section of the statute.

Now, the Court will recall that on the motion of the Solicitor General, this case was held in advance, because the Solicitor General was of the view that there was power elsewhere in the statute, under which the Attorney General might grant parole, might continue parole, might continue the physical presence of the alien in this country.

And that in considering whether to exercise the discretion given in that other Section of the statute, which is 212 (d) (5) and which appears at page 3 of the Government’s brief, a relevant consideration would be whether the alien would be subject to physical persecution.

In other words, the question now before this Court, is not whether Congress has anywhere given the Attorney General power to act with respect to a claim of physical persecution by an excluded alien, but whether he has given — whether Congress has given the Attorney General power to so act under Section 243 (h).

Felix Frankfurter:

Well, that — I haven’t — you haven’t made clear to me at least why — why he couldn’t act under Section 212 (d)?

Leonard B. Sand:

He could and in fact what has — what has occurred is that while the case was pending in this Court, applications were made for relief by petitioner in this case and respondents in the succeeding case for relief under to 212 (d) (5).

Those applications have been denied by the Attorney General, acting through his delegate in the Immigration Service on the grounds among others that the petitioner failed to establish to the satisfaction of the service that she’d be subject to physical persecution in the country to which she was being sent.

Now, the action under 212 (d) (5) is not now before this Court and I make reference to it, simply to emphasize again that the question is not whether there is any power in the Attorney General to act with respect to such a claim on the part of an excluded alien.

The question is whether that power is contained in 212 (d) (5).

We agree that it is, whether it is also contained in 243 (h).

The Attorney General has taken the view that it does not — that the explicit phrase “deportation of any alien within the United States,” indicates that that provision has reference only to aliens who in legal contemplation, as well as in fact all within the United States.

Felix Frankfurter:

Is that the only difference between 212 — 212 (d) and — and 243, namely that 212 isn’t restricted by whatever within the United States may mean, whereas 243 is?

Leonard B. Sand:

That — that is the basis for the — for the distinction with respect to this relief, because 212 (d) (5) talks of parole into the United States and talks of applicants for admission to the United States.

So clearly, the relief within in that Section maybe accorded to — to one who is at the gates, whereas 243 (h) which talks of any alien within the United States has reference.

The Government submits to aliens who are legally within the United States who were subject to deportation rather than exclusion.

Felix Frankfurter:

Did I understand you to say that the application with 212 (d) was rejected, because as a matter of — on a finding of fact by the Attorney General, by the immigration federal, by the authorized officials, it was with the suggestion that she would be returned to a physically dangerous country which found (Inaudible) is that right?

Leonard B. Sand:

Well —

Felix Frankfurter:

Is that why it was rejected?

Leonard B. Sand:

It was rejected because among other reasons.

The petitioner failed to establish in the view of the service that she will be subject to physical persecution.

Felix Frankfurter:

Well, not the same — if that — if that would be an allowable finding of fact, why are we not discussing an abstract case here, in fact that would equally buy him from exercising power under 243 (h)?

Leonard B. Sand:

Well, when you say allowable finding of fact, Mr. Justice Frankfurter, this was a — it’s the same reason —

Felix Frankfurter:

Well, it’s (Voice Overlap) or it wasn’t found with reason.

If it was found with reason in 212 (d), it must equally be available under 243 (h).

Leonard B. Sand:

Yes, sir.

Felix Frankfurter:

And if it is wasn’t founded in reason for 243 (h) then although 212 (d) may not be before us, but it’s not a very attractive kind of a situation to present.

Leonard B. Sand:

Under — I think there would — there’s still a case before this Court, because under — under — the practice has been under 243 (h) to accord the — the alien a — a hearing and for findings to be made under 243 (h).

Under 212 (d) (5), there was no — the alien is permitted (Voice Overlap) —

Felix Frankfurter:

Is it just taking out of the alien (Voice Overlap) —

Leonard B. Sand:

No, the — the alien was — was afforded an opportunity to submit whatever material it saw fit and then there was the rejection of the claim by the — by the Director of Immigration in the letter to the alien which set — set forth the fact that because for other reasons — because among other reasons, petitioner has failed to establish in the view of a service that she will be subject to physical persecution.

The standards are not identical under the two Sections, sir.

Felix Frankfurter:

I must say you — you baffle me.

Leonard B. Sand:

Well —

Felix Frankfurter:

The Attorney General has been given under two sections with the important difference that you indicate, restricted within the other issue, this compassionate power, this power of — of relief in human situations.

And I have no doubt that that’s ought to be exercised with the appropriate anxiety with which such a power should be exercised, such a power of mercy.

And it troubles me to say that it was found unavailable under 212, because she hasn’t made out this danger, but maybe, she can make it out under 243.

That bothered me very much.

Leonard B. Sand:

Because among other reasons.

You see, under — under 243 (h), the only question is whether the alien would be subject to physical persecution.

The language which is set forth in 212 (d) (5) provides a different standard.

Felix Frankfurter:

I am aware of that, but you specifically used the language of physical danger?

Leonard B. Sand:

That — that was the language which we are told by the service and — and the petitioner was told with the grounds for the rejection of the (Voice Overlap) —

Felix Frankfurter:

So that the ground would have —

Leonard B. Sand:

— under 212 (d) (5).

Felix Frankfurter:

The basis for judgment made in 212 is the same as the basis for judgment in 243.

Leonard B. Sand:

But not necessarily, because there are other factors which may — may also be considering.

Felix Frankfurter:

Well I know, but other means in addition to and have excluded off —

Leonard B. Sand:

Yes, that’s correct.

Felix Frankfurter:

— not excluded.

Leonard B. Sand:

There are also maybe differences, Mr. Justice Frankfurter, with respect to the burden of proof which — to which —

Felix Frankfurter:

Well, I’m still bothered.

Felix Frankfurter:

The more you talk about saying, “there are all sorts of niceties of — of technical judgment of the same basis for judgment,” the more troubled I am.

Leonard B. Sand:

Well, I — I think what comes down to is this, that if — if it is found that there is power, if this Court should hold that there is power under 243 (h) for the Attorney General to act, it may very well be that — that the end result with be the same.

That — that is correct.

Felix Frankfurter:

That doesn’t help in this light.

That doesn’t help in this light because I don’t want to be pushed into giving a construction to settle — to a traditional phrase like within the United States, because of what appears, the — the way power is not exercised under 212 (d).

Earl Warren:

Mr. Sand, is it the position of the Government that — if this Court should decide the case in favor of petitioner that that would adversely affect the Immigration Service?

Leonard B. Sand:

Is it — yes.

Well, Mr. Chief Justice, that — that — I think that what petitioner in this case is basically attacking is the concept of parole.

I think that — that the — the only Court which is held at 243 (h) is applicable here, which is the District of — the Court of Appeals for the District of Columbia, held that the alien was within the United States by virtue of the parole.

Now, as — as counsel for petitioner stated in response to a question by Mr. Justice Frankfurter, the concept of parole is — is a longstanding one, which long antedates this statute and that it has been held by this Court in such cases, this Kaplan against Tod in 1925.

That parole did not bring the alien within the United States in — in contemplation of law, so that — so that what this case comes down to is whether the fact that the alien has been granted parole, will change her immigration status, so as to bring her within a different area of operation of the immigration statutes.

And that is a concept which we submit is hostile to the basic notion of parole and which will in the long run, not only operate to the judgment of the service, but — but to the detriment of the alien as well.

Felix Frankfurter:

Well, that — that is the point.

The Immigration Service isn’t — we’re not here concerned, at least I’m not whether something will help or harm some notions of the Immigration Service.

In the first place, there are specific immigration statutes which it is our duty to apply and enforce whether we like them or not.

In the second place, there’s a long tradition of construction of words — terms of art in the immigration laws.

And the third place, the one you’ve just indicated —

Leonard B. Sand:

Yes.

Felix Frankfurter:

— that leads to a very serious thing to make a ruling and to be asked to make a ruling, the upshot of which will be, people won’t be led out of the detention place, the places of detention, because it will then be suggested they’re within the United States, so that a particular case that may appeal to our emotion maybe of a greatest disservice to aliens coming into this country.

Leonard B. Sand:

Well, I think, I think that the — that the whole thrust of the argument which is advanced on behalf of the aliens in this case is that — is hostile, as I’ve stated, to this — to the concept of parole, because it would seek to attach to parole the consequences of changing the immigration status.

Felix Frankfurter:

Well, they won’t parole them a year after.

Leonard B. Sand:

It — certainly, it would have to be a factor in determining whether or not to parole an alien, what consequences that would have on the status of the alien and — and the whole — we — we’re dealing here with the legal fiction, the legal fiction being that an excluded alien paroled in the United States is not in the eyes of the law within the United States.

Now, I don’t think legal fiction is a term of disparagement.

It indicates, this is a concept which was invoked to serve a purpose and in determining whether or not, one looks to the physical fact that the alien is physically in the country, or to the legal fact.

One has to refer back to this purpose for which this legal fiction was created.

And it’s perfectly clear from the history of the immigration statutes and from the cases decided by this Court such, as Kaplan against Tod that the purpose was to permit the alien to enjoy the greater liberty and freedom which parole offers without altering the immigration status.

And that is the concept which Congress explicitly recognized in the Immigration Act of 1952.

Felix Frankfurter:

You call that a legal fiction.

This — this Court had at the beginning long before the parole problem (Inaudible) and it has very serious consequences in the kind of rights to be accorded to a fellow who is waiting to be — waiting at (Inaudible) to have the authority to decide whether she’d be let in or not —

Leonard B. Sand:

Well —

Felix Frankfurter:

— the — the whole line of cases from Ju Toy.

The difference between incoming and resident aliens, the whole structure of the immigration law is based on that.

Leonard B. Sand:

Well, that’s — that’s correct, Mr. Justice Frankfurter.

The Nishimura Ekiu against United States in 1892 held that an alien in the detention center was not legally within the United States.

And then — then, as Mr. Justice Holmes said in Kaplan against Tod, the prison bounds were expanded.

The alien was permitted to — to enjoy parole, but legally, she was regarded as still being on the vessel which brought her to the — to the United States.

And this was a concept, which was to the benefit of the alien.

This is the concept, which permitted the alien not to be forced to remain physically on the vessel, not to be forced to be — to remain in the detention center.

Since November 1954, it has been the policy of the Attorney General, through the Immigration Service to grant parole as to all aliens, except those thought likely to abscond and — and security risks.

And as the Court — the Court may judicially note, the large detention centers have been closed.

This is a policy which we think is a — a beneficial one, a humanitarian one.

And we shrink from any construction of the immigration laws, the consequence of which is going to be to require a — a change in the immigration status of the alien by virtue of parole, because the whole concept of parole is that the status quo of the alien remains unchanged.

Earl Warren:

Well Mr. Sand, suppose that this young woman, instead of coming into the country by parole had sneaked across the border and had been in this country for the same length of time and the Attorney General wanted to send her back, the country she came from, say it was the same country, would he have jurisdiction under 243 (h) there to — to consider her case?

Leonard B. Sand:

He — he would, Mr. Chief Justice —

Earl Warren:

Yes.

Well, why —

Leonard B. Sand:

— because —

Earl Warren:

Why then — why then wouldn’t he have it — would he have it here?

Leonard B. Sand:

Well, because it’s basic to the Government’s argument that there has always been in the immigration laws of this country, a distinction between the excluded alien and the alien who is in the eyes of the law in the United States.

This is a distinction which — which is reflected as I say in — in the earliest — in the earliest cases and in every case in which that distinction has been made and there are several that can be said, “Oh, if — if the alien had not been stopped at the port, but had sneaked to cross the border,” then it would be different.

Yes, it would be different because then — then, there was never available to the — to the Government the — the power to — to keep the alien at the border.

What’s involved here is the question whether where the Government has the power physically as well as legally to exclude the alien from the country, but for the benefit of the alien permits her to come in on parole.

She is then to be regarded as legally within the United States.

Earl Warren:

Well, she wouldn’t be legally within the United States as she sneaked towards the border (Voice Overlap) would she?

Leonard B. Sand:

She would be — you’re right, Mr. Chief Justice.

She would be within the United States though — the fact that she was in the United States would be — would be legally cognizable.

We would not engage in this — in this concept that the excluded alien, though paroled, is not legally within the United States.

Earl Warren:

In other words —

Leonard B. Sand:

A concept which as I have said —

Earl Warren:

In other words, you based your — your argument on the fiction as to whether this — this young woman is actually within the United States now or not?

Leonard B. Sand:

I base my argument, Mr. Chief Justice, on the fact that reading the Immigration Act of 1952, the Government finds in it over and over again instances that Congress has adhered in this statute as it has in old prior statutes, to the fact that there is a difference between an excluded alien, who is subject to exclusion and — and an alien who is within the United States and in subject to deportation.

And that this particular statute, 243 (h), deals only with aliens who are subject to deportation.

One finds that in the Immigration Act of 1952, that there are separate provisions, separate chapters which deal with exclusion and those which deal with deportation.

Earl Warren:

Yes, but referring back to your — to your fiction, don’t you believe that the — that the fiction as to whether one who sneaks into the country is — is in the country and one who is here under parole is not within the country, becomes a distinction without a difference when the Government permits the person to come into the country and permits the person to remain here for a period of time for the purpose of — of — for any purpose, whether it’s for the purpose of — well, for any purpose.

And she remains here for — for a period of years, so far as the fiction of whether she is in the United States or not.

And whether that fiction should keep should keep her out of the — out of the country, put her out of the country regardless of what persecution she might meet when she goes home, disappears.

Leonard B. Sand:

Well, I — I think Mr. Chief Justice, that when we’re dealing with this fiction and — and I — I think is not term of disparagement.

I think it’s —

Felix Frankfurter:

I just want to disassociate myself from your notion that it’s a fiction —

Leonard B. Sand:

Well —

Felix Frankfurter:

— in a derogatory sense.

Leonard B. Sand:

I — I will.

Well, I thought —

Felix Frankfurter:

A fiction that has no reality.

It has great reality.

Leonard B. Sand:

I want to associate my —

Felix Frankfurter:

I know about this, because I came on an immigrant ship.

It makes all the difference in the world, whether you have to stay on that ship or allowed to go off it.

Leonard B. Sand:

I — I want to join in — in associating myself from — from any notion that’s a term of disparagement.

This is a —

Felix Frankfurter:

All that it — that — that it’s a harsh term whether it’s irrelevant to this Court’s determination of what statutes mean?

Leonard B. Sand:

I think it’s in a humanitarian term.

I think it is — it is the only device, the only method by which it is possible for the United States which must of course maintain control over who will and who will not come to this country.

It is the only device by which the United States can permit a — a screening of these aliens, a determination of which aliens are admissible and which will be excluded.

The only way that that can be done without requiring the aliens physically to be kept aboard the ship or — or in — in the detention center, and in — in further answering your question, Mr. Chief Justice, whenever you have to determine, the Government submits, whether you will adhere to the concept that an excluded alien, though paroled is not within the United States.

You have to go back to this basic concept that this is the device which permits the alien to enjoy this greater liberty while her immigration status is being determined.

And — and I think that that if you say, “Well — well, she’s here.”

Then, you — then you’re compelling in essence, those who are entrusted with the administration of the immigration laws to say, “Well, then, we can’t let her be here.

We must keep her on the boat.

We must keep her in the detention center.”

Leonard B. Sand:

It’s anomalous.

It’s a paradox that in this case, the argument which is hostile to the concept of parole, but be — hostile to that concept because it reasons from the mere fact of parole.

There is a change in the immigration status that that argument is advanced here on behalf of the alien.

Earl Warren:

Well, how can you say that there’s such a great danger of the change of status when all she ask for is to have the same kind of consideration under Section 243 (h) that you say the Attorney General is entitled to give her under the other Sections?

Now, what grave consequence is this?

Leonard B. Sand:

Well, the — the consequence is, Mr. Justice Warren, this is not a question of whether the Attorney General saw fit or did not see fit to act under 243 (h).

This is a question of whether the Congress of the United States which — which throughout the Act, recognize the difference between exclusion and — and deportation, whether the Congress of the United States has given the Attorney General any power to act under this statute.

And the legislative history of this statute is very illuminating, because prior to 1952, in this particular statute, there were not the words within the United States.

And in the 1952 Immigration Act, Congress specifically inserted in this provision the phrase within the United States.

Now, obviously, Congress doesn’t legislate extraterritorially.

There is no provision.

There is no occasion or purpose for Congress to — to provide the deportation of — of an alien from one foreign country to another.

And so, the phrase within the United States following the phrase deportation of any alien is completely meaningless.

It’s — it’s a redundant phrase which had no purpose when it was inserted, unless, it has reference, unless, it has reference to this concept that an alien who has been excluded is not legally within the United States.

What provision is this according to the (Inaudible)

Leonard B. Sand:

Well, three Courts of Appeals have — have passed upon this question.

The Second (Inaudible).

Leonard B. Sand:

The Second Circuit in (Inaudible) which is now pending on — on petition of certiorari has agreed with the Ninth Circuit in this case, that there is no power to act under this provision of the statute.

The District of — of Columbia in the case which the Court will next hear has held otherwise.

Was that the only conflict?

Leonard B. Sand:

That is the only conflict.

Harold Burton:

You’re in the whole view of the petitioner that (Inaudible)

Leonard B. Sand:

Well, Mr. Justice Burton, I would think logically that that would follow and that of course would wipe out from the — from the pages of this Court’s report, the countless cases which you held than an alien —

Earl Warren:

Well, this is a person — here’s a person who is in one of those detention centers under parole?

Leonard B. Sand:

Well, no he is not.

So, if he —

Earl Warren:

Well, that — that’s not requested in these cases.

They’re just asking as to those who are on parole.

Leonard B. Sand:

Therefore, Mr. Chief Justice, you come back to the proposition that if the United States had not exercised its discretion to grant parole in this case, there would be no question as to the status of the alien.

But by virtue of parole, despite the fact that Congress explicitly provided that parole should not change the status of the alien.

Leonard B. Sand:

You would be saying that — that the immigration status was changed.

I suggest and respectfully submit to the Court that such a contention would, in the long run, not be in the best interest of — of the — of aliens?

Felix Frankfurter:

Well, within the United States, must either be — have geographic content, must have a geographic meaning or a traditionally legally mean?

Leonard B. Sand:

And it could —

Felix Frankfurter:

And we’re not taking off a ship and taking to Ellis Island.

I was then physically, geographically within the United States, was it?

Leonard B. Sand:

Yes, Mr. Justice Frankfurter, and it could — you’re correct that it can only have —

Felix Frankfurter:

(Inaudible) I’ve been allowed to land at the (Inaudible)

Now, within the United States in any sense, that is read as a geographic term and if it isn’t a geographic term, then it must be a legal term.

Leonard B. Sand:

If I may just — just answer your question, Mr. Justice Frankfurter, I think that’s correct.

It can only be geographically illegal and it can’t be geographical, because Congress — the Congress of the United States has no power to provide for the deportation of any alien who’s not within the United States.

Charles E. Whittaker:

(Inaudible)

Leonard B. Sand:

Well, we could send — she could be sent back to Hong Kong of course, Mr. Justice Whittaker, only if the authorities in the Hong Kong would permit her to — to remain in Hong Kong.

Charles E. Whittaker:

(Inaudible)

Leonard B. Sand:

Well, she arrived from the Mainland of China via Hong Kong and the —

Felix Frankfurter:

(Inaudible) of time you think she arrived implies that it’s a part of a journey.

Was it part of a journey?

Leonard B. Sand:

The record does not indicate, Mr. Justice Frankfurter, the length of her residence in Hong Kong.

But had she been in Hong Kong long enough so that the Hong Kong authorities were satisfied that she had established permanent residence in Hong Kong.

Then – then, they would received her and —

Felix Frankfurter:

But if she — I think the other way around.

If she should be sent to Hong Kong, then the failure of the Hong Kong authorities or the refusal of the Hong Kong authorities to receive her doesn’t affect our power to send her elsewhere.

Leonard B. Sand:

We — well, in fact, the sending back of aliens to the mainland of China through Hong Kong is done through diplomatic relations which we have with the authorities in Hong Kong.

Of course –-

Felix Frankfurter:

That is the question that Mr. Justice Whittaker and I are interested in.

Namely, if her sole journey to Hong Kong was (Inaudible) that she should be sent to Hong Kong, then I suggest she can’t be sent to China —

Leonard B. Sand:

That is —

Felix Frankfurter:

— as a refusal of Hong Kong to take her, simply means that the we’ve got to keep her.

Leonard B. Sand:

This is — that’s right.

This is a – this is a question which — which the Hong Kong, the — the country from whence she came means the country of — of last permanent residence and if –-

Felix Frankfurter:

But you said, the record doesn’t enlighten us on that.

Leonard B. Sand:

Well, the — the record does not —

Felix Frankfurter:

And the charge — and the allegation is made the way I understand counsel for petitioner, not denied by the Government that that’s really where she established a solid footing.

Leonard B. Sand:

Well, as a matter of — there is —

Charles E. Whittaker:

(Inaudible)

Leonard B. Sand:

Well, Mr. Justice Whittaker, the — the United States has — is — is powerless to tell the Hong Kong authorities who they should — should permit to remain in Hong Kong and — and who they should not permit to remain in Hong Kong.

Felix Frankfurter:

I — I address you that that’s immaterial to our immediate problem.

Leonard B. Sand:

Well, in — in fact, the practice had been to obtain transit visas through Hong Kong and for the — the aliens who arrived from the mainland of China and who went through Hong Kong, but who were not in Hong Kong for so — on a period of time, that the Hong Kong authorities will — will permit them to remain.

Earl Warren:

Well, you do propose to return this young woman to China.

Leonard B. Sand:

Well, we propose to follow the procedure which is set forth in the –in an affidavit in a — which is in deportation case which is set forth in the appendix to the respondent’s brief in the next case.

Earl Warren:

Yes, well what is that?

Leonard B. Sand:

It is a procedure which — under which the Hong Kong Government grants a transit visa.

Under that visa, the — the alien is taken to Hong Kong and is presented at the — at the border.

If she as — is accepted into China as in — in fact has always occurred, well then she — she has been returned to China.

Earl Warren:

Well, you do —

Leonard B. Sand:

If she –-

Earl Warren:

— propose — you do propose to send her back to China, don’t you?

Leonard B. Sand:

Her ultimate destination is China.

That’s not denied, Mr. Chief Justice.

Hugo L. Black:

But then, some time ago, you made a statement that I was interested in that he just not (Inaudible)

You said as I understood you, has an expressed — explicit provision to the statute which prevents alien on parole from being considered as within the United States within the meaning of the statute.

Leonard B. Sand:

Yes, yes, Mr. Justice Black.

Hugo L. Black:

Would you mind referring us to that?

Leonard B. Sand:

Yes.

Well, I refer to —

Hugo L. Black:

I don’t care if you read it.

You just tell me where I can find it.

Leonard B. Sand:

Well, it appears at — at page 3 of the — of the Government’s — the brief of the respondent in this case, and I have reference to the last clause in Section 212 (d) (5).

Hugo L. Black:

You dealt with in the same manner that of any other applicant for admission to the United States.

Leonard B. Sand:

That’s right.

Leonard B. Sand:

In other words, the — the status quo, what — whatever condition the alien was in at the time she was paroled is the condition which — which she continuous to enjoy.

In the next case, I will deal with that at great length.

Felix Frankfurter:

Mr. Sand, would you be good enough to take care of — by appropriate memorandum of a couple in my mind.

If this record raises doubt, whether or not China is the place which on your construction of statute within, she can be and should be sent.

If that is a matter of doubt on the facts, and it may well be that she should — that Hong Kong is the place to which she should be sent under the statute.

I don’t — I’m saying it’s a greater doubt, if the — if that question is served, then I — I don’t think I want to reach your problem, the statutory problem, because then, under a different provision of the statute, she can’t be sent to China.

And I would like you to say what you have to say dealing with what I think has been generated as a substantial doubt on that question in this case.

Leonard B. Sand:

Well, I — I think that is not an issue in this case, Mr. Justice Frankfurter.

What — there is a complaint — the complaint in this case alleged that the alien was being sent back to China.

The Government did not controvert that allegation.

The only question which the record in this case raises is whether there is power on the part of the Attorney General —

Felix Frankfurter:

I understand that.

I am sorry to interrupt you.

I understand all of that, perfectly clear.

You made it clear.

It was clear before this and you made it clear.

But the question is, in my mind, that if it’s a matter of fact, she shouldn’t be sent to China that the place whence she came is Hong Kong, then I don’t propose to consider the issue that both of you want me to decide.

Leonard B. Sand:

Well, that would — that would depend on — on factual questions.

Felix Frankfurter:

Well, that’s what I’m suggesting that the sufficient doubt has been raised.

Leonard B. Sand:

But those —

Felix Frankfurter:

The factual questions exist which are not in the record —

Leonard B. Sand:

Yes, not in the record.

Felix Frankfurter:

It is your duty to put before the Court if they’re available, because questions of mootness do not necessarily have to appear in the record.

Indeed, most of the time, they don’t.

Earl Warren:

Number 39 — oh you have — I think you had a few moments Mr. —

Joseph S. Hertogs:

If I might —

Earl Warren:

Yes, you may.

Joseph S. Hertogs:

— Mr. Chief Justice.

Earl Warren:

Yes.

Joseph S. Hertogs:

There is one comment I would like to make in the argument by counsel for the respondent.

Joseph S. Hertogs:

He refers to exclusion and deportation as if they were two separate and distinct things.

They are not.

Exclusion and deportation is a phraseology used in the Immigration and Nationality Act and has been used for many years.

It refers to a type of deportation.

The other type which is referred to is expulsion and deportation.

However, whether it is exclusion or whether it is expulsion, they both result in deportation, which is the physical removal of a person from the United States.

Felix Frankfurter:

But that is — you’re leaving out of account or vast constitutional difference between procedures, between exclusion and deportation.

Joseph S. Hertogs:

There is a difference.

One —

Felix Frankfurter:

Well, then, why do you say that they’re — they’re the same thing?

Joseph S. Hertogs:

As far as — he said one is deportation and one is exclusion.

I hold that they both are deportation.

Felix Frankfurter:

Well, I know but they’re sent out, but the — the protective — the protection, the legal protection in the case of an incoming alien and one who is here and thought to be sent out are vastly different.

Joseph S. Hertogs:

That is correct, Your Honor.

Felix Frankfurter:

Well, then, don’t say they’re the same.

Joseph S. Hertogs:

Now, under — under one of the answering — one of the questions of Mr. Chief Justice with regard to whether or not a person who had sneaked in the United States would be eligible to fall in this Section.

The answer would have to be answered affirmative even though he had been in the United States for only one day.

It would not necessarily have to be in the United States for the period of time which this girl was here in — on parole.

Felix Frankfurter:

But we can’t construe these statutes according to the particular appeal of a particular case or how close a particular case on one side of the line comes to another side of the line.

I’ve just indicated to you with your agreement that the difference between not letting a fellow come in although he — in Ellis Island or a detention center in San Francisco where not and a fellow who’s in and is to be deported is profound in the law.

Joseph S. Hertogs:

But it’s —

Felix Frankfurter:

So, although you are saying they’re the same and yet, very different.

Joseph S. Hertogs:

Yes, Your Honor.

Felix Frankfurter:

And the fact that a person comes in and he’s here, doesn’t mean that the fellow who isn’t here, in the eyes of the law is here.

Earl Warren:

You — you may have two or three minutes —

Joseph S. Hertogs:

Yes, sir.

Earl Warren:

— if you wish to — to conclude.

Joseph S. Hertogs:

Thank you, Your Honor.

The one point which I want to refer to once again is the fact that construing the Immigration and Nationality Act of — as a whole, the 1952 Section.

The word “in” and “within” is used constantly throughout the legislation.

Joseph S. Hertogs:

And in every case, it refers to the fact of physical presence in the United States and a person on parole is construed as being a person who must comply with other provisions of the same piece of legislation.

The only other comment I would like to make is this.

The Immigration Service in ordering this alien deported to Communist China must have been directing deportation under Section 243 (a) of the Immigration and Nationality Act of 1952.

If such be the case, then certainly she is entitled to the benefits of a subsection of the same Section of law.

I thank you, Your Honor.

(Inaudible)

Joseph S. Hertogs:

Yes, Your Honor.

(Inaudible)

Joseph S. Hertogs:

Well, I think the first answer in the first problem, whether there is a distinction between 212 (d) (5) and 243 (h), I would answer that in the affirmative.

There is, with regard to the application which was submitted for relief under 212 (d) (5) when this case was taken off the counter to the suggestion of the Solicitor General.

There was just a written application submitted to the District Director in accordance with his regulations for relief under that provision.

No evidence was submitted.

No hearing was conducted.

Recently, the Immigration Service has determined that in a case filed under Section 243 that the person is entitled to a hearing before a special inquiry officer, at which time they are orally examined and an opportunity to support it for the introduction of evidence and we have a right of appeal to the regional commissioner.

And in those cases, of course, we rely upon many other things which are referred to in the petitioner’s opening brief, concerning the Korean situation, the fact the Congress saw fit to enact legislation for displaced persons, for refugees and prior decisions of the Immigration Service that people similarly situated would suffer physical persecution.

(Inaudible)

Joseph S. Hertogs:

No, under 2 (d) — 212 (d) (5), you have no hearing.

(Inaudible)

Joseph S. Hertogs:

No, Your Honor.