RESPONDENT:Edward J. Shaugnessy, District Director, Immigration and Naturalization Service, et al.
DOCKET NO.: 29
DECIDED BY: Warren Court (1955-1956)
ARGUED: Oct 19, 1955
DECIDED: Oct 24, 1955
Audio Transcription for Oral Argument – October 19, 1955 (Part 1) in Nukk v. Shaughnessy
Number 29, Michael Nukk, et al., versus Edward J. Shaugnessy, et al.
If the Court please.
The argument in this case falls into two very distinct categories.
The first is a jurisdictional threshold question relating to justiciability and the second is the merit of the attack, the constitutional attack upon the statute involved.
I will discuss for the Court the threshold question and my associate Mrs. Freedman will discuss the merits when I have finished.
The appellee in this case is the District Director of Immigration and Naturalization in the Third Immigration District, which is where these appellants had deportation orders began against him and where the action against these appellants which is being here contested was began.
The appellants are all aliens.
There are outstanding orders of deportation against these aliens.
The grounds of the deportation orders were membership after entry into the United States of the Communist Party of the United States.
The validity of these orders of deportation are not being contested for the purposes of this case.
More than six months have elapsed since the issuance of the final administrative orders of deportation.
In fact, much more than six months has elapsed.
These orders have not been effectuated because they either may not or cannot in fact be effectuated.
The Immigration and Nationality Act of 1952 by Section 242 (d) thereof, that’s found in Title VIII Section 1252 (d), provides in Section (a) — well, at least 1252 provides in Section (a) and (b) for that period of time before the issuance of a final administrative order of deportation and for time up to six months after a final order of deportation.
The contested Section 1252 (d) governs that time after six months after the making an issuance of a final order of deportation.
The provisions of that statute are that aliens in such circumstances may be subjected by the Attorney General of the United States to what is called supervision.
They may be supervised in four ways under the terms of that statute.
They may be required to report for identification.
They may be required to submit to medical and psychiatric examination when called and if necessary.
They may be required to give information under oath concerning their nationality, circumstances, habits, associations and activities and any other question deemed fit and proper by the Attorney General, whether or not it relates to the enumerated class in that subsection.
Then there is a carte blanche section, whereby the Attorney General is given the power to impose such other restrictions on the conduct and activity of those aliens as he may deem fit and proper.
The Attorney General, after the passage of this Act, delegated the power granted to him by Section 1252 (d) to the District Director of Immigration in the district where the appellant had either, theretofore been retained, maintained or released on bail or parole conditions.
The delegation of power to the District Director is in words or substantially in words of Section 1252 (d) itself.
The regulation does not provide for any procedure for the modification of an order of supervision which is issued under the regulation.
It does not provide for appeal.
It makes — it sets up and creates no administrative remedy by which the validity or the reasonableness of an order of supervision may be contested.
This as the Court shall see will become important in terms of the argument made by the Government on justiciability.
The appellants here were placed under orders of supervision when six months had elapsed after the issuance of their deportation orders.
The order is handed to them sir.
They are usually requested to sign an order of a — clause at the end of it, which says they understand what the order means.
These appellants, although they accepted the orders when they were handed to them did not sign, stating among other reasons that they did no understand what the order meant.
Have they been out on bail at the time the order was served?
Some of them had and some of them had not.
For instance, Mr. Sklar had been in jail just prior to the issuance of this order.
They are all out under the orders of supervision.
The statute, the Immigration and Nationality Act does not permit the Attorney General to detain them after the six months period.
That is correct.
There is Gannet, Bittleman, and Jones —
Well, this — at least two of these people, Bittleman and Gannet are what one would call stateless people, so that these orders would be in effect upon their release from prison.
As to Ms. Jones, it’s quite likely that it would be moot.
As a matter fact she is to be released from jail this Sunday and is subject to deportation because she is a citizen — or subject to the British West Indies.
I’ll trouble you to name the people who are in jail, who are now physically detained (Inaudible)
It is the second group of appellants, Your Honor.
Gannet, Bittleman and Jones.
— Bittleman and Jones.
Thank you very much.
The orders of supervision were handed to each of the individual appellants here.
The orders were made for each individual.
It was not a blanket regulation posted on a bulletin board in the Immigration Service.
It’s as if they had been served with any process of either the administrative agency or of a court.
They provided substantially the same things.
There were differences among the individuals but substantially, they required that the alien report to an agent of the administrative — of the Immigration Service at Ellis Island once weekly.
We’ll recess now Ms. —