DOCKET NO.: 403
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the Ninth Circuit
CITATION: 353 US 427 (1957)
ARGUED: May 01, 1957
DECIDED: May 27, 1957
Facts of the case
Media for Rabang v. BoydAudio Transcription for Oral Argument - May 01, 1957 (Part 2) in Rabang v. Boyd
Audio Transcription for Oral Argument - May 01, 1957 (Part 1) in Rabang v. Boyd
Number -- Number 403, Henry Ragonton Rabang, Petitioner, versus John P. Boyd, District Director, Immigration and Naturalization Service.
Mr. Chief Justice, may it please the Court.
The petitioner in this case was born a United States National in the Philippine Islands in 1910.
He came to the United States as a non-excludable national in 1930 and has lived here ever since having acquired an American family and property.
In 1951, he was convicted on his plea of guilty of a minor and technical violation of the narcotics law of United States to which he was given a suspended sentence.
About a month later, deportation proceedings were commenced against him on the grounds that he was an alien subject to deportation, having been convicted of a narcotics offense, under the Act of February 18th, 1931.
And he was eventually ordered deported.
However, the proceedings to deport him were stayed in 1952 by reason of the then tendency in the Ninth Circuit Court of Appeals of the case of Mangaoang against Boyd and Gonzales against Barber, the latter case reaching this Court on the Government's petition for certiorari as Barber against Gonzales.
Following the decision by this Court of Barber against Gonzales, which rejected the Government's contention, that a Filipino who'd arrive in the United States before the 1934 Independence Act, was subject to deportation for an offense or for under -- on any grounds where statute provided for deportation after entry.
Following that decision, the regional director immigration moved to reopen these proceedings for the purpose of having the Board of Immigration Appeals terminate the proceedings due taking other appropriate action.
The Board, however, refused to do this on the grounds that the 1931 statute does not use in so many words the term, "entry", whereas the Act of 1917 uses specifically the terms after entry.
It is our contention in this case that the term "after entry" or "entry", as used in the Immigration Act of 1917, is incorporated by reference in the 1931 Act, and that this case is fully controlled by the case of Barber against Gonzales.
The -- in the Barber case, as I've already stated, the question was whether under Section 19 (a) of the Immigration Act, an alien was subject to deportation.
Section 19 (a) of the Immigration Act of 1917, which is quoted in full on pages 26 and 27 of the petitioner's brief, provides that any alien who is hereafter sentenced more than once to a term of imprisonment because of conviction in this country of any crime involving moral turpitude, committed in any time after entry shall be taken into custody and deport it.
And this Court held, of course, that entry means a coming into the United States from the outside and not simply an arrival here by a citizen or a national.
It is our contention that the 1917 Act, the very Act interpreted in Barber against Gonzales, applies to this case, first, because it is a necessary implication of any deportation statute that to be an entry that that is constitutionally implied.
Secondly, because the expressed language of reference in the 1931 Act does specifically incorporate the provisions of entry.
Before considering the particular language of the 1931 Act, we urge and suggest that the term "entry" has a somewhat deeper significance than a mere term of art used in the statute.
We believe that it expresses the relationship between -- or other person who is subject to deportation to the constitutional source of the power to deport.
But in another way, a person on entering United States, on passing the exclusion barriers, and being admitted into this country is given a conditional license to remain here so long as he abides by the conditions imposed, or if the broadest interpretation, if the broadest construction of congressional power is -- is given, until Congress revokes the license.
While terms of sovereignty has been used with regard to aliens, we suggest that that applies to the external relations of United States and that the distinction between exclusion and deportation has been recognized in a long line of decisions of this Court.
And that if the Tenth Amendment is to be given a force, the power to expel or deport must be implied from some provisions of the Constitution, from the standpoint of the internal policy of the United States.
As distinguished from its external policy, the power to deport is not unlimited.
The United States does not have the power to denationalize one with the right to be here, and thereupon, order him expelled to a foreign country or banished.
And we believe that this concept of sovereignty and distinguishing its internal and its external aspects has been well recognized from the earliest deportation cases after the present.
One rule applies to exclusion, and another to deportation, that deportation, in a sense, is simply a special instance of the power to exclude a reasonable and proper implication from the power to exclude and that absent of the power to exclude, there can be no power of any kind to deport.
We do not believe that Congress has ever suggested in any act that the power to deport exist apart from the power to exclude, and that deportation can be anything but a revocation of the license of the alien to come in to, to remain in the United States, it's not something separated in defendant because it's implied from the exclusion powers.
I must have misunderstood – I must misunderstand you.
Are you suggesting that the power to deport cannot be legislated authorized by Congress unless as to those aliens?