Mulcahey v. Catalanotte

PETITIONER:Mulcahey
RESPONDENT:Catalanotte
LOCATION:Congress

DOCKET NO.: 435
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 353 US 692 (1957)
ARGUED: Mar 27, 1957
DECIDED: Jun 03, 1957

Facts of the case

Question

Audio Transcription for Oral Argument – March 27, 1957 in Mulcahey v. Catalanotte

Earl Warren:

Number 435, John F Mulcahey, District Director of Immigration and Naturalization Service, Petitioner versus Guiseppe Catalanotte.

Mr. Fisher, before you get in — into the details of that case, would you mind commenting on — on that last sentence in your — in your reply brief and the section of the law that Mr. Carliner just referred to where you say, “And the aliens abroad could even claim the preservation of a status of admissibility”?

Roger D. Fisher:

Yes, Your Honor, I’d be pleased too.

The statute contains as Mr. Carliner just pointed out, a specific provision that aliens who have received an immigrant visa shall be governed by the former law.

As Mr. Carliner suggests that the savings clause be construed that every alien in the world by or gather his instructions has a — his admissibility status shall be determined by the law at the time whatever he did when he was born, when he would lived, whatever the prior law was.

This would mean that all the provisions of the 1952 Act would have prospective effect only as to persons, aliens not yet born who presumably had not status of admissibility under the old law, that if any new — any change that was made between prior grounds and new grounds, and a new statute could not affect any living alien because in his view, an alien who was admissible under the old law of that status which would continue.

I believe that the expressed provisions, which he called Your Honors attention does apply to aliens who have filed, who have immigrant visa, it does not apply to aliens in general.

That if — I’m turning it to a former case which is the Carson case.

If he has had his status adjusted, if he had had something which made him non deportable, which is valid of the new law, the new law would apply and he’d be nondeportable.

Earl Warren:

You may now proceed with the other matter please.

Roger D. Fisher:

Thank you, if it please the Court.

Number 435, regarding Mr. — the respondent, Catalanotte, it’s the second of the two cases we start talking about yesterday and raises the same question of retroactivity of the deportation provisions.

Respondent Catalonotte entered the country in 1920 from Italy.

He, at no time became naturalized or had any — took any steps toward becoming American citizen.

Deportation proceedings were began in 1953 on two grounds, a narcotics conviction in 1952, and a conviction of two offenses involving moral turpitude, a 1924 conviction and 1934 conviction, as proceeding in stolen property and malicious threats to extort.

While the proceedings were pending, the 1952 narcotics conviction was reversed on appeal, the arraigning ground with the two prior crimes involving moral turpitude.

Respondent succeeded in having the 1924 and the Detroit Court opened up the 1924 case, changed his plea to not guilty and dismissed the 1924 conviction.

The immigration service then filed a charge, which is the sole basis for the present in the case at this time.

This was a conviction in 1925 of a narcotics violation.

It’s the violation of the Act of 1914, which was not a deportable offense in 1925.

And if I may come back to yesterday on the narcotics offenses, some narcotics violations were deportable offenses in certain federal step — first, to a certain one federal statute than it was a certain federal statute and the present Act makes any violation of any narcotics law a deportable offense.

The special inquiry officer in the Board of Immigration Appeals both found respondent deportable.

So, a habeas corpus where as the District Court denied, the Court of Appeals reversed and ordered the respondent discharged.

The Government sought certiorari to which this Court granted.

This is — it comes up from the Sixth Circuit of the same Court, which decided the Carson case.

The sole question in issue is whether the provisions of Section 241, here specifically 241 (a) (11) relating to prior convictions for narcotics shall be governed — where the deportability should be governed for narcotics conviction, should be governed by the new law or by the old law.

Listening to respondent in the previous case, he seems to imply that the — both the language can reasonably be read.

The language of statute may reasonably be read to apply only to future convictions of narcotics.

The new law does not apply to make anyone deportable who was not deportable before.

It seems to imply and the legislative history supports that construction.

Roger D. Fisher:

I believe he is grossly wrong on both counts as I’ll try and demonstrate to the Court.

He referred — he talked about numbers of sections of the Act to respondent’s counsel, but not in sections particularly here involved.

The question is — it relates to 241.

I was glad to hear Mr. Carliner say, “There need not be a stated exception to the — to the savings clause, just something that indicates strong congressional intent that the new policy shall apply notwithstanding the general policy in favor of preservation and status quo.”

I would like to look in the — invite the Court’s attention to the language of 241 (d) and the language of 241 (a) (11).

This appears on pages 89, 85 in the back of the Government’s reply brief.

241 (d) says, “Except as otherwise specifically provided in this section.”

In looking for the standard of what is required by otherwise specifically provided, I would take what the standard that respondent here has suggested.

In 241 (d), the phrase, “otherwise specifically provided” is met in respondent to Carson’s view by the language hereafter, which appears in various sections of 241.

In his brief, page 28, he concedes that wherever the word “hereafter” is used, it takes it out of 241 (d).

In other words, the word hereafter, standing by itself is a clear not the indication of a contrary congressional policy to take a clause out of a requirement that it must be specific, otherwise, specifically provided.

Now, I submit that if otherwise, if the word hereafter is enough to take the first sentence of 11, subsection 11 out of 241 (d), the word that the — there’ll be same language and the second phrase, “at any time” is enough to take it out of the general savings clause for the test if it’s identically the same, unless otherwise specifically provided.

Now, to find out what is required, what we’re looking for — I’d like to refer to the Court’s language in the Shomberg case as to standard to be laid down as to this specific savings clause.

The Court said in using the “notwithstanding” language in these sections, Congress clearly manifested its intent that certain policies should override the otherwise broad and pervasive principle of the savings clause, then skipping a sentence, “We would be lax in our duty if we did not give recognition, also the congressional purpose to override the savings clause when other considerations were thought more compelling than the preservation of the status quo.”

We’re looking in 241 now for a manifestation of congressional intent that something should overcome the status quo.

Looking at the very section at which the respondent, Catalanotte in this case is charged, the language which appears on 85, reply brief.

“An alien is to be deported, who is or hereafter at anytime after entry has been a drug addict.”

It seems to me a clear intent that the “hereafter” shows that this new law as to addicts is not to apply to anyone who is an addict prior deduction of the statute.

I might — I might mention the medic —

Earl Warren:

I didn’t get that last inference of yours.

Roger D. Fisher:

The — the suggestion as of the first clause of 11 which says that “Aliens should be deported who is or hereafter anytime after entry has been a narcotic drug addict.”

Earl Warren:

Yes.

Roger D. Fisher:

It shows a clear intent that as to addicts, as to those who have been drug addicts, the new grounds of deportability shall only apply to persons who hereafter have been addicts.

Earl Warren:

I see.

Charles E. Whittaker:

(Inaudible)

Roger D. Fisher:

Is — yes, is —

Charles E. Whittaker:

(Inaudible)

Roger D. Fisher:

— right, right is at the time.

Charles E. Whittaker:

(Inaudible)

Roger D. Fisher:

I accept the correction, anyone who is at the time of the adaption of the statute of addict or thereafter starts bingo and goes on prospectively.

Roger D. Fisher:

Now, contrasted immediately following language or who at anytime has been convicted of a violation of any law or regulation related to the illicit traffic in narcotic drugs.

Respondent, Catalanotte, has concededly been convicted at anytime of a crime relating — convicted in 1925 of a crime relating for traffic in narcotic drugs.

I — you cannot read those two phrases which immediately follow each other, and which in the course of the legislative history started out to say, “Anyone who has been convicted,” then it was said, “Any — anyone who is or anytime after entry is been an addict.”

“And then, the final draft, the word “hereafter”, was inserted as to addicts and was not inserted as to those who’ve been convicted on narcotics offenses.

Now, addicts were not deportable prior to this Act.

Those who’d been convicted of violations of some federal statutes were similarly not deportable.

It depended on which Act you had violated.

This said, “Anyone who at any time has been convicted of a violation of any law or regulation relating to the elicit traffic narcotic drugs.”

I fail to see how you could have a more specific manifestation of intent on the phase of the very section, but Congress thought that might not be enough.

So, in 241 (d), they put some more language in.

I’ve said there are several things in 241 (d) which demonstrate conclusively that this is to be a specific provision that shows a conclusive, congressional intent that prior — that events were to be governed by this law, not by prior law.

First, except as otherwise specifically provided in this section, a clear recognition by Congress that the rules into this section are different as they are from two other parts of the Act.

This section has a different policy unless it’s provided differently in this section, these facts shall apply.

That language is ignored and I submit it cannot be — it must be deleted from the Act if respondent’s construction was adopted.

You have to pretend it’s not there.

Then, it goes on to say, “Except as other –“ I’m reading starting over again, “Except as otherwise specifically provided in this section, the provisions of this section shall be applicable to all aliens belonging to any of the classes enumerated in subsection (a).”

How more complete could you be?

They went on.

“They shall be applicable notwithstanding that any such alien enter the United States prior to be of an enactment or the facts.”

And again, I’m putting “notwithstanding” over too, “not withstanding that the facts by reason of which he belongs to those classes enumerated occurred prior to the date of the enactment of this Act.”

This is recognition that there’s a general policy that you don’t govern acts by a law now adopted.

It’s a recognition that this section shall apply notwithstanding that provision.

Earl Warren:

Mr. Fisher, do you have any idea how many cases of this kind the department has initiated?

Roger D. Fisher:

Yes, Your Honor, I’ve checked that by telegram last week with all the field officers of the service and there are 108 pending deportation cases at any stage in the administrative process of which they know where the retroactive feature of Section — of 241, that’s all 700 clauses of Section 241.

Earl Warren:

A small number amazes me.

There must be thousands and thousands of — of cases where under your theory they would be eligible for deportation.

Roger D. Fisher:

I’ll try to find out I was —

Earl Warren:

(Inaudible)

Roger D. Fisher:

I was surprised but I’ll try to find out.

The answer appears to be that most persons who came in illegally, originally which is the category of one — one of the categories that Carson came in under.

Roger D. Fisher:

After 1924, they were all allowed to adjust their status and have a — on a registry proceedings to say they’ve come in legally if they were of good moral character and so forth, and most everybody did.

The — there are comparatively small number of cases.

Also, I believe they have not gone through the general — alien registration cards to find out everything.

These cases are — cases they know about, or their cases of persons who have been incarcerated and they have a system of letting the immigration service know when they get out of jail.

If an alien is about to be released from a narcotics offense may not be —

Earl Warren:

Do you mean — do you mean they would use this just for special cases and that —

Roger D. Fisher:

No, no, they were —

Earl Warren:

— and all those who come in —

Roger D. Fisher:

No, they’re going after every case they know about that they have not, I say taken every alien in the United States and then investigated to see whether — no, they’ve conducted a — an FBI type of investigation in all the aliens if not in that.

This is being applied across the Board as the immigration services vested their ability of doing it, and they’ve come up — since 1952, I’ve met currently 108 cases.

The — I would like to mention that in the Wong case, (Inaudible) case referred to in page 19 of our brief, Judge Edgerton picked this Section 241 (d) as the single and presumably, the best example he could find if otherwise specifically provided.

In finding that in other clause, he’d say, “Do you think this was specific,” he said, unless you compared it with what Congress meant when they really were specific as in 241 (d).

His — his general concern for the lot of aliens knows in his selection of this clause was an example of what was specifically provided.

I think it shows a good deal.

Now, what happened to this language under respondent’s construction?

You cannot make it fit.

Perhaps, this is why counsel devoted at little attention to the wording of the statute as he did.

The language just doesn’t fit.

He says, “Oh, the statute is retroactive, all right.

It just doesn’t apply.”

The new law, if I may read it, we admit that to the court below that some provisions are retroactive, others are not.

However, we do not reach the retroactive provisions of the new law unless the new law applies.

Now, under his definition, it’s like you can go swimming but don’t go near the water.

The new law applies, except whatever would be applicable doesn’t apply.

Wherever there’s a slightest change that the old law applies.

The — if anyone’s intent had to been to carry forward what — meaning that old conducts should be governed by old law, they would not have said, “Except as otherwise provided in this section.

The provisions of this section shall be applicable to aliens for higher conduct if facts had occurred prior to his adoption.”

He — if by his construction eliminates at any retroactive feature of a statute, of the deportation provisions, and then said, “It’s retroactive but it doesn’t apply.”

I — the language is — what — what you do with the, “Except as otherwise provided in this section.”

What do you do with the language in 241 (a) (11) dealing with narcotics offenses and the contrast between hereafter as to addicts and that anytime as to persons who have been convicted with narcotic offenses?

Roger D. Fisher:

The whole section as I suggested yesterday might just as well have began hereafter.

And all these careful wording as to which offense had occurred when would have been left out.But perhaps, if the general saving statute was not being adequate if we think it is and perhaps if the respondent’s construction of the — if this savings act step clause was not adequate, they might have a special clause saving persons deportable under — prior offenses shall remain deportable.

That’s not what this language says and it’s unusual to believe that in using this explicit language which cannot be reconciled to that position, that’s all Congress intended.

Now, I take one more section, which I think illustrates as clearly than anything else, if Congress intended these provisions to be specific exceptions to the savings clause and to be retroactive.

Section 17, subsection 17 says, Attorney General to deport anyone who we find to be undesirable etcetera, etcetera by reason of the fact that he has been convicted of,” and that lists a series of statute.

This appears on pages 86 and 87.

Let me take one example from 87, grounds for present deportation of the new Act shall be a violation, a conviction of violation of the Selective Training and Service Act of 1940.

That Act was in effect between 1940 and 1947.

It was not a deportable offense at the time the Act is in effect.

Anyone convicted of violation of that Act could not have been deported for — prior to this statute.

And yet, the statute of limitations on prosecutions of that Act had also expired, so that we’re — we’re faced with the fact that Congress saying, “A person shall be deported, if the — if he is found to be undesirable by reason of having been convicted of the selected violation of a Selective Training and Service Act of 1940.”

Under respondent’s theory, this section, the specific provision could never apply.

Anyone who commit a violation will have a nondeportable status unless he could not use — he could not be deported under this language.

I submit the wording of the statute does not fit respondent’s construction.

The language manifests a clear congressional intent that the new law should be applied to prior events.

Now, does the legislative history show anything to the contrary?

I heard some of yesterday’s argument in the preceding case where you’re considering the hearings of a (Inaudible) laborer convention — what they have said to interpret what they have requested, what — interpret what the Committee have proposed, interpret what the Congress have enacted.

Fortunately, we’re not faced with any such problem here.

We have the views of the Government, stated to Congress as to what the Act meant.

We have the views of the Congress and we have the views of the President, the views of this Court, I submit.

Could I ask you a question?

Roger D. Fisher:

Your Honor.

As I understand it, from the discussion yesterday, you would agree that anyone who would had a private bill or who would had some affirmative benefit conferred on it by action under the old law would be safe from the application of this Act.

Now, what I’m wondering is this, can — does it make sense to say that the savings clause 405 applies only to status in a sense that the status was something that was conferred by action under the old law and that it does not apply to a status that is achieved simply by the absence of that law that would have made him deportable.

Does that reconcile all of these confusions?

Roger D. Fisher:

No, that does not reconcile them all, Your Honor, I agree.

The — we — we take a — a second position which is discussed in the brief that a person in his position has no status.

But my argument as to 241 (d), it does not help the Government as to private bill even on that.

We say a private bill is a status, and I think it is.

I still had to come back and meet my own point, but 241 (d) is the specific provision of the deportability, so that we come to, if not whether a private bill confers a status.

Roger D. Fisher:

In my view, it’s not the controlling question.

The controlling question is whether 241 (d) specifically provide that persons who have done things, and then have private bills shall be deported.

And I read 241 (d) as the United States say I — I’ll say the Government brief 241 (d) has meaning, you hold the standard of present law up to the — the events.

Just exactly what the language of the statute says?

And I think the facts by reason of which any such alien belongs to a class, not withstanding the facts occurred prior that they — of its enactment and I say notwithstanding the facts by reason of which any alien belongs or does not belong to such a class occurred prior to the date.

This, we take anything before it happened, whether it’s a private bill, a suspension of deportation or adjustment of status.

And you say, “If all those events had occurred under the new law, would he be deportable?” Clearly not.

I might say that’s to prior bill the case has come up and the Attorney general has ruled that he cannot be deported.

The issue was raised and that he had a ruling on it, so that — there’s no question of our going back and holding up, ignoring events that have made some deportable before.

I’ll save the doubts in my time if I may for rebuttal.

Earl Warren:

Mr. Hopping.

Louis M. Hopping:

May it please the Court.

If I may, I would like to say something by way of rebuttal first to a point or two, which Mr. Fisher has been making just now.

The first point that he makes that I want to say something about is, what do you do with the language which says, “Unless otherwise provided in this section, the man shall be deportable.”

Well, just briefly, I will point out to the Court that the savings clause, which we ask the Court to consider says, “Just as definitely, nothing contained in this Act shall affect any condition or status,” so that those things would balance in my opinion.

The second point that he made that I want to refer to briefly is his reference to the Selective Service and Training Act which he said was in effect from 1940 to 1947 and for violation of which an alien would not be deportable.

Just briefly, I consider that in this particular reference, the Solicitor General was making my argument that I was making in the early stages of our defense, except this.

He must also establish under that section that the alien in that case is presently an undesirable person, not simply convicted.

Now, the third point that I want to cover by way of rebuttal in this brief refers is he says, “The answer to Mr. Justice Harlan’s question is that you apply the standard wholly under the new Act,” or as I heard Mr. Justice Harlan’s question yesterday, “it would include this situation, Catalanotte was convicted in 1925 of a violation of the Narcotic Act.”

That makes him deportable under the new Act.

I can’t understand yet how the Government says that it would not have the power under the new Act to deport Catalanotte even though he had had a special bill since then, because he is still convicted under that Act which is the sole ground of deportation.

I suppose you could say that the general legislation as to yield with the specific culture.

Louis M. Hopping:

Yes, that might be an answer, if the Court please.

But so far as the language is concerned, I think it does appear that way.

Now, in our brief, we have said that the Court of Appeals followed the decisions of this Court in Menasche and Shomberg and that we rely on those decisions.

Briefly, in Menasche, we would say it follows that the only time you need a savings clause is when a new statute attempts to take away an advantage which an alien had under the old law.

That would be the only time you’d need to ask for the help of the savings clause, and we do ask for it.

I would like to explain briefly if I can how we think Shomberg applies in our situation.

Mr. Justice Clark, in delivering the opinion of the Court stated from Shomberg, “The precise issue in this proceeding is whether petitioner who filed his petition for naturalization two days before the effective date of the Immigration on Nationality Act of 1952, 66 Stat.163 and so forth, may compel a final hearing on the same before the determintion of deportation proceedings instituted after the effective date of the Act and based solely on grounds initiated by that Act.”

Section 318 quoted on a footnote at page 541, contains the phrase, “Notwithstanding the provisions of section 405 (b),” I’m jumping a little bit.”

Louis M. Hopping:

No person shall be naturalized against whom there is outstanding a final finding of deportability.”

This raised the question of the relationship between Section 318 and Section 405.

In Catalanotte, we do not have the same sections involved but we have a relationship between 241 (a) (11) and Section 405.

The Court said at page 542, “Petitioner was eligible for citizenship under the prior law and remains eligible under the new Act, but under the prior law, petitioner was not deportable.”

The Court held at page 543, “That Section 318 specifically accepts rights under prior law from protection of Section 405 when those rights stem from a petition for naturalization or some other step in the naturalization process.”

And right here, the Court place to footnote at page 543, “This is not to say that petitioner cannot challenge the authority of the Attorney General to deport him under Section 241 (a) of the 1952 Act,” and there are small words but that’s the pertinent part of that.

Now, the Court of Appeals in the Catalanotte case expressly quoted this Court’s opinion in Shomberg and stated among other things, “It was held in Shomberg versus United States 348 U.S. 540 that such intent,” meaning the intent to make 405 inapplicable “is clear where it is specifically provided that a provision be effective ‘notwithstanding’ the terms of a savings clause.”

The Court of Appeals in the Sixth Circuit, the Catalanotte case and then in Carson, there appended a footnote to its decision, calling attention to the analysis of this Court at page 547 of this Court’s opinion in which this Court cited five instances in the 1952 Act in which Congress used specific language of that exact kind using the word, “notwithstanding Section 405 (b) in Sections 311, 313 (a), 315 (a), 331 (d) in addition to Section 318.”

The Court of Appeals then said, “There is no such clear manifestation of intent apparent to us in the present case in Section 241 (a) (11).”

They quoted their opinion in Carson and applied it to Catalanotte as well.

To this extent, the Court of Appeals followed the Shomberg decision and the Manasche decision but either particular reference was to the Shomberg, but this is not the solely authority which they followed.

The Court of Appeals said further.

“If there be deemed to exist any reasonable doubt as to whether Congress intended to make an alien deportable, that doubt should be resolved in his favor,” and cited Fong Haw Tan versus Phelan in 333 U.S., at 6 and 10.

“If two conflicting interpretations of the deportation statute,” and now I’m paraphrasing that holding as quoted by the Sixth Circuit, and I’d like to add a parallel word.

“If two conflicting sections are inconsistent and one must yield this interpretation or parallel to the section which seems to make him deportable must yield to the one which clearly says he is not deportable.”

I cannot find in the Solicitor General’s briefs any place where he takes issue with the authority which the Court of Appeals cited in that connection.

May I recall briefly to the Court that the question from Fong Haw Tan case was the interpretation of the phrase in the old law, “Sentence more than once.”

The alien there was charged in two counts with murdering two men, convicted and sentenced in one — in one judgment to life imprisonment upon each case.

Mr. Justice Douglas, delivering the opinion for a unanimous court said in concluding their opinion, “We resolve the doubts in favor of that construction against deportability, because deportation is a drastic measure and at times equivalent to banishment or exile,” citing Delgadillo versus Carmichael 332 U.S. 388.

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

Such a forfeiture is a penalty.

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

If this Court in the case at bar, we’ll bear in mind that the members of Congress who voted for Section 241 (a) (11) also voted at the same time for Section 405.

You must choose which one is the controlling section if they are conflicting.

Now, I’d like to say a word about the second point if I may.

If a status exists, it is immaterial how it rises.

The statute itself makes no distinction in one status or another because of the manner of its creation.

Webster’s New International Dictionary, Second Edition Unabridged says, “Status, a condition of a person by which the nature of his legal personality and his legal capacities are determined.

And therefore, the nature of the legal relations to the State or to other persons into which he may enter including as commonly used, a persons condition arising out of age such as infancy or wardship, sex such as marriage, mental capacity, crime, alienates, or public petition.”

We start the interpretation of the long — the Catalanotte case with a formal finding by the highest administrative tribunal with the Board of Immigration Appeals that before the effective date of the 1952 Act, Catalanotte had the status or condition or liability of being nondeportable.

Louis M. Hopping:

At page 16 of the record, you’ll find the respondent actually did not become deportable because of the 1952 conviction until the effective date of the Immigration and Nationality Act of December 24, 1952.

This finding by the Board of Immigration Appeals was quoted by the court below in accepting a finding of status and said that the Board of Immigration Appeals was justified on this record in finding that that was his status.

The question whether respondent is deportable now depends solely on a charge, which was lodged at the reopen hearing on July 19, 1954.

This charge is based on respondent’s conviction in 1925 for a violation of Sections 1 and 8 of the Act of December 14th, 1914 as amended, at which time, he was sentenced to imprisonment for 60 days and was fined $1000.

That is also a statement of the Board of Immigration Appeals that appears in the record.

The respondent’s position was that this finding was sufficient on which to base his claim that 405 applies.

Leading up to the Board of Immigration Appeals decision, the respondent had presented to the Board and later to the District Court, the showing that the 1931 Act relating to the deportation of persons convicted of narcotic violation was expressly prospective.

Let me refer to the record to Your Honors to show that the issue in the District Court on the petition for habeas corpus was that the order of deportation was invalid for the reason that the Board of Immigration Appeals had made a misapplication of the law in the proceedings up to that time.

It was admitted in the answer to the petition.

It’s always in the petition that this petitioner’s — petitioner there and respondent here was a lawful resident of the United States since he was admitted for permanent residence on September 11th, 1920.

That appears on page 4 as well as elsewhere in the record.

The United States Attorney admitted that.

Now, the general allegation was the misapplication of the law by the Board of Immigration Appeals and the finding of the District Court was in these words that we had no protection by Section 405 as we had claimed throughout.

And this was what the Court’s order said, “In appearing from the study of all the proceedings that the petitioner is not protected by any immunity on his 1925 conviction and that the Immigration and Naturalization Service is within its proper jurisdiction to order his deportation of this alien under the Immigration and Nationality Act.”

In other words, they had made no misapplication of the law and Catalanotte had no protection from oral fine.

Now, upon — we appeal that and I might say the Chief Judge (Inaudible) had considerable difficulty in arriving at his decision as it will be apparent from the record where it shows hearings, rehearings and considerable time during which the Court was wrestling with the apparent contradictory considerations before it.

But when we got to the Court to of Appeals in contrast to the difficulty, which the District Court had, the Court of Appeals was unanimous in saying that there was no dilemma where the District Court had seen it for the reason that the plain language of 405 removed the other horn of the apparent dilemma.

You have a saving of the rights which Catalanotte had in which he was claiming.

Tom C. Clark:

That was just a rehearsal, restatement of what they just got into a holding however, in the Lehman case or Carson case.

Louis M. Hopping:

In — in the Carson case, yes Your Honor.

Under your construction of the Act as I understand it, 241 would be wholly perspective.

It couldn’t operate except the perspective of it.

Louis M. Hopping:

Well, if the Court please, I’m thinking only of Catalanotte and his situation.

Well, I appreciate that, but is it not a consequence in your position that you have to read as you read the Act 241 as being wholly perspective?

Louis M. Hopping:

Yes, but regard to Catalanotte, I think it cannot be otherwise and that would be true of many —

The whole — the whole damage of Section 241, wouldn’t it?

Louis M. Hopping:

Well, I would say of many other features of it.

I don t know —

Are there any that would?

Louis M. Hopping:

Well, I think that the Congress might have carved out a new ground of deportation, which would be a test of present undesirability depending on a whole course of past action, not simply on a conviction of an old offense.

Louis M. Hopping:

I — I think the argument as I said in the beginning, that the Solicitor General makes about the Selective Training and Service Act is an argument on my side as I see it for this reason.

We had said all along that if it’s purely adding the penalty of deportation to a conviction for which the man is already been sentenced and punished, it would be unconstitutional to say that Congress had the power to do it.

But whether they say that would reference to the Selective Training and Service Act, they coupled it with language which means they have to find that he is then presently undesirable.

So that it would be the conviction of that Act for something else, but may I at the same time leave with that the — the considerations which Mr. Justice Douglas pointed out in his dissenting opinion in Marcello where he says, “Solely for conviction of a narcotic offense seems to be adding a penalty now for something that was completed long ago,” and the only basis for deportation is that.

Could I ask you one more question?

Before 405 (a) was extended to deportation, was your man have been deportable under 241?

Louis M. Hopping:

No, Your Honor.

Would not have.

Louis M. Hopping:

May I — I don’t know the answer to —

There was a period, was there not when 405 (a) didn’t extend the deportation cases?

It was limited to naturalization.

Louis M. Hopping:

Do you mean, during the history of the Act?

There was a period when 241 (a) — 241 was not affected so far as deportation is concerned by 405.

Louis M. Hopping:

As I understand the history of the Act and I may say I thank the Court for allowing me to take advantage of the arguments of my brother counsel, predicament to Mr. Carliner.

I understand the history of the Act as such that there was period when —

Now, what I’m asking you is whether at that period that this case come up, was your man had been deportable?

Louis M. Hopping:

If you could say that 241 was effective and 405 was not, he would have been —

Well, 405 —

Louis M. Hopping:

Yes.

My hypothesis was not effective because it would apply to deportation.

Louis M. Hopping:

In that situation —

He would have been deported.

Louis M. Hopping:

If you could say that 241 apply and 405 did not, he would be deportable, yes Your Honor.

Earl Warren:

Mr. Fisher, bearing upon the question of what is status and what is not status?

Suppose the Government took off that five-year limitation on — on deportability when the person comes in illegally, would they be depriving into the status?

Roger D. Fisher:

If they took it off the plot, after man — the five-years test period —

Earl Warren:

Yes.

Roger D. Fisher:

— the words that I would say in one sentence yes, in this 405 it says no.

Our position is that the word “status” of course can be used in any manner of meaning.

If it’s construed as broadly as respondents construe it, it will cover everything in the Act who hardly be even prospective in effect.

Roger D. Fisher:

I — I would — I think that the status question is less important because I think that the — the — there is much more reason, there’s not much to go on.

It’s not much — the word “status” was put in when the section concerned only naturalization, and persons requiring rights, and that’s when the word is put in.

Earl Warren:

(Voice Overlap) —

Roger D. Fisher:

There’s no reconsideration when the Section was moved five sections later.

Two or three specific deportation grounds were put in, nothing relating to deportation and warrants of arrest.

Earl Warren:

What I’d like to know if you consider, consider status?

Let’s say in this case, if they took off the five-year limitation that was in the other Act, and the Government sought to deport this man because he had come in illegally 32 years ago.

Would he have acquired the status that would have protected that this Act could have protected him?

Roger D. Fisher:

We say that our position is that he was not, that even within — because that’s the Carson — first ground of the Carson case.

Our position is that he would that a statute of limitations, he was illegally in this country throughout that entire period.

He made no efforts to adjust his status to a legal entry.

He could — he was illegally here in 1952 when the thing was on.

There was no provision requiring to deport such people.

Congress decided that persons illegal in this country, still here illegally, shall now be deported.

I think that being here, not subject to certain right we pushed out was not such a status.

Earl Warren:

But what is the status then for the purposes of this case, these cases that you said.

Roger D. Fisher:

I — I think a status has required by more than a — it would then the meaning of 405.

It must be an affirmative right toward citizenship, toward permanent residence, toward something above absolute zero.

There must be some —

Earl Warren:

Is the bill of Congress a bill?

Roger D. Fisher:

A bill — certainly a status, but a suspension of deportation of status that you have permanent residence then.

I would concede the old law should be status.

Earl Warren:

A finding of nondeportability?

Roger D. Fisher:

No, not a finding under what the old law was, not —

Earl Warren:

Why — why do you — wherein do you make the distinction?

That’s what I’m trying to —

Roger D. Fisher:

The — the Government dropped and case Mr. Carson’s case when the grounds — when he was received a conditional party.

He should be no more better off than that when somebody as to whom the Government never brought a case who had a conditional party.

I don’t think that the — the change should make any difference, but whatever the Court do should be on status, and I will — I think the Court might differ with me on that.

I cannot see how the Court can differ as to the construction of what Congress intended by the Act as a whole.

Roger D. Fisher:

And this leads — it reinforces my views on status.

If Congress had intended status to protect everybody who was nondeportable, they would not throughout the legislative history.

First, the Immigration Service stated at the bill to the two Congress in the first draft of bill.

This of course gives retroactive effect to the deportation provisions of this bill.

The final senate — senate report for the majority mentioned the fact that it was retroactive and went on to say, “Deportation proceedings are not similar nature, and therefore the ex post facto limitation of the Constitution are not applicable to the retroactive features of this provision.”

The minority, disagreeing in the Senate, disagreed because of the very reason, which the Chief Justice has referred that the five-year period was taken off.

As it presently stands, they said, “The statute making any alien who failed to conform to all applicable laws when he entered the United States deportable forever — it would make him forever deportable to the language of the minority report quoted on page 16 of our brief in Number 72.

When the President considered the bill and detailed it, he said,” Defects and mistakes in admission would serve to deport at any time because of the bill’s elimination retroactively, as well as prospectively of the present humane provision barring deportation on such grounds five years after entry.”

When that was passed over his veto, there was no occasion to find otherwise.

Mr. Justice Clark in Marcello case, speaking for the Court, pointed out on page 303 of 349 U.S. that these provisions make such conviction at any time the italics of that of this Court in construing this section of the Act.

This Act followed the 1940 and the 1950 Act.

The 1940 Alien Registration Act was retroactive.

The 1950 Act was retroactive and we submit the 1952 Act using the same language in a relevant provision says party membership is retroactive, and the Court should reverse these two cases.