Rabang v. Boyd


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


  • Oral Argument – May 01, 1957 (Part 2)
  • Audio 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

    Earl Warren:

    Number — Number 403, Henry Ragonton Rabang, Petitioner, versus John P. Boyd, District Director, Immigration and Naturalization Service.

    Mr. Caughlan.

    John Caughlan:

    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.

    Felix Frankfurter:

    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?

    Felix Frankfurter:

    They have been the power to that — those aliens were excludable at the time or are you merely saying they were potentially excludable?

    John Caughlan:


    I — I think the decision of this Court made clear that the — its potential excludability, in other words, the alien, Mr. Justice Frankfurter, according to the decisions of this Court surely has issued a conditional license to enter and remain which license Congress may revoke by a subsequent change of laws.

    But the source of the power, it seems to me, from a constitutional point of view, must be implied from the exclusion power.

    Felix Frankfurter:

    What is the — what is the constitutional — this inability in this case?

    What is the constitutional limitation which you’re invoking against the Constitution?

    John Caughlan:

    First of all, Mr. Justice Frankfurter, we don’t think that we really need to reach the constitutional question here, but I’m — I will say this, because —

    Felix Frankfurter:

    But I — the Lord knows I don’t want to reach it, but I thought you permit in the constitutional argument.

    John Caughlan:

    We suggest that the, that Congress hasn’t exceeded constitutional limitations in this case, but no constitutional power exist.

    Felix Frankfurter:

    To do what?

    John Caughlan:

    To deport one who has the right to be here and stay here already.

    Congress can’t pass a law denationalizing a citizen or a national.

    And then say, this person is subject to exclusion to – to expulsion from the United States, because he’s never been potentially subject to exclusion.

    Felix Frankfurter:

    Your starting point is going to be argued at great length in cases that will concede you here.

    John Caughlan:

    I — I beg your pardon?

    Felix Frankfurter:

    Your starting point about the power of Congress to denationalize will be argued, as I understand it, at great length today and tomorrow or today.

    John Caughlan:

    Very well.

    I — I’m not referring to the power to denationalize.

    Felix Frankfurter:

    Well, I thought —

    John Caughlan:

    — but only to the power to — to deport as — as arising out of the original power to exclude, the potential power to exclude.

    There is no other place in the Constitution that I can see and I believe that this Court has ever found.

    Felix Frankfurter:

    Are we dealing here with the denationalized — with the – with a person whom Congress first denationalized in order to be deported?

    John Caughlan:

    I’m accepting that as the — I think the Government accepts that as the position.

    The — this man came to United States as a national.He was a national.

    He entered and remained here.

    He came here and was here as a national.

    According to the contentions —

    Felix Frankfurter:

    You mean, he was an American citizen?

    John Caughlan:

    No, he came as an American national.

    Felix Frankfurter:


    John Caughlan:

    According to the — we think he still remains a national.

    But according to contention of — of the Government, he is now an alien by reason of the operation of the 1934 Philippine Independence Act.

    So, he was here as a matter of right.

    Now, he’s been denationalized and — according to Government’s contention.

    And now they say, he is subject to deportation.

    We say that part does not exist.

    Felix Frankfurter:

    So he may have been here as a matter of right.

    That doesn’t tell us what status he had in being here while he’s allowed to be here.

    John Caughlan:

    Well, I think it’s conceded that he came here.

    Felix Frankfurter:

    Do we have to — do I have to decide whether, a Filipino, being here because he was a Filipino and the particular connection to be in the Philippine Islands had the relation they had because that’s all that’s expected that they would be set free and independent?

    Must I decide in this case that Congress, by allowing Filipinos to come in because of our relation to those islands, that therefore, he had the same status as a citizen of the United States beside these islands?

    John Caughlan:

    Oh no, I don’t think it’s necessary to decide that the status of nationals and Filipinos is identical on this case or any other case.

    I would – I would say no, sir.

    Moreover, I don’t — I beg your pardon.

    (Voice Overlap)

    William O. Douglas:

    You say he’s still a national.

    Is that your position?

    John Caughlan:

    We do take that position.

    We say that there’s nothing that can be read in the — in the 1934 Act.

    The fair reading of the Act that would – would denationalize those who were here resident, as nationals.

    And that is our position in this case.

    Felix Frankfurter:

    Well, even so, you’re very careful to say he was a national, not a citizen.

    John Caughlan:

    Oh no, he was not a citizen.

    Felix Frankfurter:

    Very well.

    Then, we’ve got another problem.

    Would you open them up if you’re going to deal with this rather than go to the legislation?

    The power of Congress over, people who were here were not citizens, and you came here rightfully when they came here.

    John Caughlan:


    Felix Frankfurter:

    The whole problem of — that’s a very complicated problem.

    John Caughlan:

    I — I agree, Your Honor.

    John Caughlan:

    I — and I will say this, I don’t —

    Felix Frankfurter:

    This would (Voice Overlap) instead of shares.

    John Caughlan:

    I don’t think we need to reach that in this case.

    And I — if I may well proceed to the — what I think is the — the Act which covers the situation, I believe, completely.

    The Act of February 18th, 1931, provides that any alien, who after the enactment of the Act, shall be convicted for a violation or conspiracy to violate a narcotics law, this appears on pages 7 and 8 of the brief, shall be taken in custody and deported in the manner provided in Sections 19 and 20 of the Act of February 5th, 1917.

    Now, it’s clearer that this Act has no provisions, whatsoever, in and of itself, for deportation.

    The acts of — the manner of deportation, which Congress had in mind at that time, is set forth in Section 20 of the Act of 1917.

    This Section, which is quoted in — full on pages 28 and 30 of our brief, discusses in detail the picking up of the alien, the expense of his deportation, his detention, the hearings which are to be taken place in – in the case and the — his release upon bail while hearings are pending.

    The Section 20 makes two classes of aliens for purposes of deportation, for the manner of deportation.

    Class one, aliens as to whom deportations’ proceedings are instituted at any time within five years after entry.

    And Class two, aliens as to whom deportation proceedings are entered at any time later than five years after entry.

    That appears in the middle of page 29.

    There are only those two classes.

    Obviously, as far as this Section is concerned, there is no manner of deporting a person who never entered the United States as this case — as in this case.

    Because this is the same Act which was construed in the Barber case, and there is nothing in Section 20 to indicate that entry has any different meaning than it did in Section 19.

    Felix Frankfurter:

    How do you go to procedural provisions for deportation?

    Instead of what I might call a substantive provision of the Act of 1931 could be an alien under that Act.

    John Caughlan:

    Well, if Your Honor —

    Felix Frankfurter:

    You say he is or he isn’t.

    You claim he isn’t an alien under that Act.

    John Caughlan:

    We do claim he’s not an alien but —

    Felix Frankfurter:

    But isn’t that – isn’t that — if you established that couldn’t even bother about anything else, can you?

    John Caughlan:

    That’s true.

    We — we didn’t bother by anything else.

    If he’s not an alien, then he’s not deportable.

    Felix Frankfurter:

    Well that was the matter, isn’t that?

    John Caughlan:

    But we do feel that this case has been directly decided by Barber, the question as to whether Filipinos are or are not now aliens has not been decided by this Court.

    It’s a very important issue.

    It’s something that, perhaps, should be decided.

    But, we don’t think that even that question needs to be decided here if the Court doesn’t choose to decide it because of the very clear provisions, Congress must have had in mind that — the 1931 Act applied only to those who entered.

    John Caughlan:

    I might say this.

    It’s very obvious that in 1931, Mr. Justice Frankfurter, Congress couldn’t have intended the Act to apply to Filipinos.

    Felix Frankfurter:

    The 1931 Act?

    John Caughlan:

    In 1931, because they were not aliens in 1931.

    At best, they became aliens in 1946.

    Of course that doesn’t mean that the language of the statute might not be broad enough to phrase some class not been included.

    But certainly, they weren’t included at that time.

    Tom C. Clark:

    When he came as — commit this offense, what your —

    John Caughlan:

    He committed the offense, Mr. Justice Clark, in 1951.

    Tom C. Clark:


    John Caughlan:


    So that the Government contends he was then an alien and it makes no difference why he stayed this way before.

    We also wish to call attention to Section 19 which is also referred — referred to in a manner of deportation in the 1931 Act.

    Now, as a matter of fact, Section 19 does not have anything to do as a manner of deportation.

    Section 19 simply catalogues a class whose section is — is quoted in full on pages 26, 27, and 28, and in part on pages 14 and 15 of our — I beg your pardon, pages 9 and 10 of our brief.

    This Act simply catalogues the various types of aliens who were subject to deportation.

    In Costanzo against Dillingham, which is cited in the Government brief, the — this Court, considering the Section, noted that the legislative history shows that it simply group to various previous classes of deportable aliens into one section.

    It does contain, however, some general provisos which are applicable, some of them to all classes and others to particular classes.

    And one of the provisos that is involved in the Section states, very definitely, that the provisions of this Section, with the exceptions here and above noted shall be applicable to the classes of aliens therein mentioned irrespective of the time of entry.

    Now, the Ninth Circuit Court of Appeals, which did not consider the relationship of the 1931 Act to the 1917 Act at all in this case, nevertheless, in a line of earlier cases as held that references to Section 19 in Narcotics Acts, the Jones-Miller Act of 1922 and this 1931 Act was in effect an amendment of Section 19.

    And that a new class of aliens was added to those deportable under Section 19.

    The legislative history of the 1931 Act supports this view to the extent that the 1931 Act was introduced as a bill to amend — this appears on page 10 of our brief, is a bill to amend the Immigration Act of 1917 by providing for the deportation of an alien convicted on violation of the Harrison Narcotics Law.

    The Bill was passed without change in substance, although, after it was enacted by the House under that title, the Senate amended the title because the language of the Act is not strictly amendatory.

    Under that (Inaudible)

    John Caughlan:

    The general — the third general proviso which is applicable to all classes in that Bill does indicate the intent of Congress to make entry applicable to all classes because it states, and this appears in the middle of page 28, the provisions of this Section with the exceptions, here and before noted, shall be applicable to the classes of aliens therein mentioned, irrespective at the time of entering the United States.

    So that entry — there it says irrespective of the time of entry, Mr. Justice Harlan, but entry is certainly made applicable to all classes of aliens.

    And if these general proviso was applicable to the 1931 Act as the Ninth Circuit in the long line of cases dealing with the very similar Act and was one case dealing with this type of Act, over this particular Act, held those provisos are applicable to the Section 31 then entries involved here.

    Now, I do want to pass into the final point here, which we, as I suggested earlier, an answer to the question proposed by Mr. Justice Frankfurter, I don’t believe it is necessary even for the Court to reach but we certainly believe it’s here, and as the Court does reach it, we think that it — it would dispose with the case also.

    And that is, that the petitioner is not now an alien.

    Concededly, he came here as a national.

    John Caughlan:

    Concededly, he has done nothing voluntarily to change his status as a national.

    The question is whether Congress, by the provisions of the – of the Philippine Independence Act of 1934 made that Act applicable to Philippine persons who had come here as nationals and were then resident in the United States.

    The Act, of course, does not specifically so state.

    The Government in its brief, goes at some – in some considerable length to discuss the general relations of the United States with the Philippine Islands, the non-imperialistic policies, the belief that the conception that they would become independent —

    Felix Frankfurter:

    More than belief — more than belief is the formal expression, right?

    John Caughlan:


    That’s – that’s quite correct.

    The — the matter was a subject of debate for a long period of time that the — our Government had always expressed its view that they would become independent.

    Now, however, the — as indicated and as the Ninth Circuit court below has held or has stated, I should say, there is nowhere that can be found in the Act, anything to indicate the express intention of Congress to apply it to resident Filipinos.

    The provisions relating to Filipinos during the period of time between the — between 1934 and 1946 when the — the independence was eventually effectuated, states in this — it appears on page 25 of our brief.

    For the purposes of the Immigration Act of 1917, this Section and all other laws of the United States relating to immigration, exclusion, or expulsion of aliens, citizens of the Philippine Islands who are not citizens of the United States shall be considered as if they are aliens.

    For such purpose, the Philippine Islands shall be considered as a separate country and shall have for each fiscal year, a quota of 50.

    We contend that a reasonable construction of that Section is that it was intended to have a prospective effect to operate against Filipinos who would be coming to this country as immigrants and not to operate against national Filipinos who already were resident here and would come without restriction.

    Felix Frankfurter:

    Would you — would you agree that another relative — relevant consideration, the provision in the Filipino Independence Act, giving resident Filipinos the option of becoming American citizens, or, if not, automatically becoming Filipino national, Filipinos.

    Is that relevant at all?

    John Caughlan:

    Mr. Justice Frankfurter, with —

    Felix Frankfurter:

    If I’m right in recalling that that was a provision of the Act.

    John Caughlan:

    I — I do not, with due respect, I don’t believe that that provision could have been in the Act because, actually it was until 1947, that Filipinos were generally eligible for citizenship in the United States.

    Felix Frankfurter:

    What’s – what’s their provision —

    John Caughlan:

    There — there are racial exclusions against the —

    Felix Frankfurter:

    It was an ordinary provision giving Filipinos an opportunity upon a defendant to become American citizen?

    I may — I may have — have a false memory.

    John Caughlan:

    So far as I know, the only option given was the option to return to the Philippines at Government’s expense.

    Now, that was –-

    Felix Frankfurter:

    Well, it would be enough to determine.

    John Caughlan:

    It’s interesting to know that Section 14, which is operative upon complete withdrawal of the Philippine Islands, as distinguished from Section 8 which applies to exclusion, its immigration exclusion and expulsion relates only to immigration laws.

    Now, well that may be a general reference.

    We suggest that the Act was intended to imply only to Filipinos who prospectively would come to the United States as immigrants after 1934 and not to those there present.

    The Ninth Circuit Court of Appeals noted that the question was not in the Cabebe case which is cited in the brief.

    The question is not directly answered by special reference to inclusion or exclusion in any of these Acts, the Filipinos who are no longer residing in the islands on the date of their independence.

    John Caughlan:

    The Court does go on to say that it believed that Congress intended to apply it to all Filipinos.

    We do not believe, that a status as important as nationality, that a status as important as the right to remain, or that the deportation of an alien should be made to depend upon a statute which is capable of two different instruction — constructions, one favorable to the alien, and one requiring deportation.

    We think that applies both to the 1931 Act which certainly can properly be construed as incorporating the entry sections of Sections 20 and 19.

    We believe it equally applies to the Philippine Independence Act which can be construed has not applied to those Filipinos who came here as nationals.

    So that under either view, we submit that the petitioner in this case did not enter, came here as a national as a matter of right, is not subject to the exclusion power, and finally, we believe, is still a national of the United States and not an alien.

    In any event, he was not an alien when he arrived here.

    Earl Warren:

    Mr. Bishop.

    J. F. Bishop:

    A correction of way of beginning, this correction is on us.Unfortunately, in our brief and in the brief of petitioner, Sections 19 and 20 are set forth substantially as they were in the 1917 Act.

    We have asked the clerk to distribute among you a copy of the – of the 1917 Sections 19 and 20 as they appeared at the time of this offense and conviction that is just before the 1952 Act.

    That is of the importance, I may not be able to reach it but it does make perhaps, technically, and correct our statements, the 1917 Act as amendment.

    It is — as it appears in the body of the brief, it only states as amended to include the substitution of the Attorney General for the Secretary of Labor.

    But that sideslip will be the Act of the 1917 Act as it was in effect in 1951 and 1952.

    Now, one further outright error which has slipped in on both of us but which I don’t think is a — of any importance, whatsoever, but that’s for the Court to judge.

    Instead of the words “in the manner” the phrase is “in manner” provided in.

    That is —

    William J. Brennan, Jr.:

    That’s in the 1931 Act?

    J. F. Bishop:

    Pardon me.

    In the 1931 Act, that appears as an effort not only in our statement it slipped through but it also in the petitioner’s brief.

    I don’t think it has anything of importance but, as I say, I want the Court to be fully advised.

    Not incorrectly —

    Felix Frankfurter:

    You put in the “the” —

    J. F. Bishop:

    Pardon me?

    Felix Frankfurter:

    You put in the “the” —

    J. F. Bishop:

    It slips in unless there are —

    Felix Frankfurter:

    I may suggest — I mean, the “the” is the —

    J. F. Bishop:

    The “the” is not in there.

    Felix Frankfurter:

    All right.

    J. F. Bishop:

    It doesn’t belong in there.

    Felix Frankfurter:

    All right.

    J. F. Bishop:

    There are certain gremlins that slipped those things in despite of us.

    J. F. Bishop:

    Now, there are — just a couple of preliminary corrections that are not on our cite and that may or may not be of importance.

    I do not believe it’s of the importance in this case as to the sympathetic element that this is a minor and technical violation.

    There are no minor or technical violations and what Congress has enacted.

    Now, if that is deemed of any importance by the Court, I wish to say without argument, we just want to leave the citations to the record with the Court concerning this petitioner’s fine of a $100 on another offense, his seven arrests, and his operation under an alias.

    Now, those matters are in the record and if there’s any importance in what petitioner has placed in the brief and what the commissioner apparently rejected, I think that — that that maybe stated.

    That will be found in the record at – I have the citations somewhere, commences at page 22.

    That was his own statement.

    Now, a third correction which is a matter of law.

    I believe that the case of Barber versus Gonzalez is of no assistance or pertinence in this case at all for the reason for — because of the distinction adduced by Mr. Justice Frankfurter.

    Barber-Gonzalez was — versus Gonzalez was not concerned with the question of the manner of deportation at all.

    It stemmed from a deportation because of the 1917 Act, a provision in that Act which said, which require after entry, no dispute about it.

    But our whole dispute in this Act is whether any requirement of entry is involved in this Act.

    And with that, I — I go to the body of our contention.

    The Government’s position is that we have two inquiries here.

    First, what did Congress say?

    Secondly, was there any reason why Congress was not empowered to say this?

    Because, I will probably not reach the second matter.

    I would also take a text from Mr. Justice Frankfurter in the sense that that second question, very extensively discussed in our brief, is a question of long history and I submit a very creditable page of history in which the United States from the outset, at all times, promised that Philippines’ independence can deliver.

    It did not promised that the Philippine people in the United States would be granted something in addition here beyond their own independence.

    And in fact, such a grant of something — of American citizenship taking them away from the Philippines would perhaps, in some degree, have been inconsistent with our protest nations and our actual conduct of giving them independence as we finally did.

    That history, as I say, and the citations of statutes in which from the outset, their whole status not only of the territory but of the peoples of the Philippines was left for future disposition and there was nothing, we submit, that could induce them ever to believe that they were going to get something permanent in the United States in addition to — or rather in contradistinction from their own country factor.

    Now, the question as to what this statute said, and in that, I think the Court would be much more interested in what the Congress said and what I have to say and I wonder in that — for that purpose the statute isn’t the best thing to look at.

    I might summarize it before I go to text in line, it — as our position being this, that that 1931 Act said that any alien –- any alien who after the enactment of the Act, which was February 18, 1951, any alien after February 1931 who should be convicted of a narcotics offense should be deported in the — in manner provided in Sections 19 and 20, in manner provided in.

    Now, that word “in manner” — just one further preliminary is — does not come to us naked.

    It comes with the gloss of the decision of this Court in Bugajewitz in which Mr. Justice Holmes had squarely before him the question of distinguishing the words “in manner” from “as provided in.”

    Felix Frankfurter:

    What case, Mr. Bishop?

    J. F. Bishop:


    Felix Frankfurter:

    Oh, yes.

    J. F. Bishop:

    That is cited yo our —

    Felix Frankfurter:

    (Voice Overlap)

    J. F. Bishop:


    And that, we can — we believe is a square holding that that is a red light in the statute but that does not mean that you incorporate the whole statute.

    That means that the substance, again by Mr. Justice Frankfurter’s distinction, the substance as distinguished from the procedure, and Justice Holmes used that word “procedure” is not embodied when you say “in the manner.”

    It means, in short, just what it says that you only go to elements of manner.

    Now, with that preliminary, I’ll try to divorce myself from the argument and go to the statute itself.

    On page 2 of our brief, you will find the February 18, 1931 statute set forth.

    And it says, I trust exactly what I said, any alien, and if I may stop there, we — we believe that that unquestionably is prospective as well.

    There were persons unborn at the time of that statute who were — who by now are aliens and non-questionably within it.

    I read on, any alien except an addict — and that is out of the — not involved here — who after February 18, 1931 shall be convicted for violation of or conspiracy to violate and I substitute narcotics acts.

    And I go down to the 14th line, “shall be taken into custody and deported” in the manner provided in Sections 19 and 20.

    Now, if I may impose on to Court to compare that statute, so that we may see what the Congress provided, with the earlier 1922 statute which you will find in petitioner’s brief.

    If you’ll obey that beside you on page 11.

    I think there is so not worthy, a change, exactly such a change as Justice Holmes spoke of, as this dispositive of the case in itself.

    On page 11, may I compare, page 11 of petitioner’s brief where the 1922 Act which preceded this lies there.

    If you — you have heard the arguments that somehow entry is embodied in this 1931 Act.

    Now then, what has happened is that in 1931, the Congress took entry out of the Act.

    Let me read from page 11 of petitioner’s brief.

    That former Act said, “Any alien who at anytime, after his entry, is convicted.”

    That phrase is not in the 1931 Act.

    That is not in it.

    The Congress substituted a fixed definite date and eliminated the element of entry.

    There are some other changes, if I get along far enough, that distinguished some of these cases further down the line.

    I’ll just touch on them here and the Court, if I reach it, may find its significance later.

    If you go back to the Government’s brief, you will see, “Shall be taken into custody and deported in the manner”, provided in the Sections 19 and 20.

    But if you go back to the 1922 Act, you will see, that’s on page 11 of petitioner’s brief, you will see that it says shall be taken into custody and deported in accordance –- no, I misspoke myself.

    Upon what – it — it provides what is not provided in the 1931 Act.

    It provides upon warrant issued by the Secretary of Labor.

    Now, let me just speak very quickly as to what that distinction means.

    The early cases — I’ll accept the last relied upon by petitioner, said that Section 19 must have been incorporated because Section 19 just didn’t have anything of manner in it.

    And it pointed out, those cases have pointed out, that the 1922, this earlier Act which has been changed, provided who should issue that warrant.

    J. F. Bishop:

    That is a matter of manner.

    And they said, well, Section 19 must have been incorporated because there was nothing of manner to put into it but the 1931 Act has changed that.

    It does not say who shall issue the warrant and who shall take him into custody and that is why we say that that manner provision now stands and you have to look to Section 19 to find out who it is that is to do — do the deporting.

    That’s a matter of manner.

    Now, I have finished with the 1931 Act and now I’m going to page 3 of the Government’s brief where we begin Section 19 (a).

    Now, in looking at that, there are two questions.

    One, is there something of manner in that Section 19 that is incorporated into the Act?

    How much, if it is carried over?

    And then the second question, is there so much talk, such exclusive talk of entry in there that the Congress in 1931 must have been talking about entry.

    My answer to the latter question is no.

    Section 19 is not so tied up with entry as I shall demonstrate.

    And — more – furthermore, there are elements of manner in here.

    Now, that —

    Earl Warren:

    Now, each time you use — each time you use that word “manner” —

    J. F. Bishop:


    Earl Warren:

    — are you using it in a different sense and you used it in your briefs and in the courts below when — when you use the word “the manner”?

    J. F. Bishop:

    I’m using it — I’m using the word “in the manner.”

    I think there’s no distinction.

    Earl Warren:


    Well, that’s – that’s what I was —

    J. F. Bishop:

    Yes, that’s (Voice Overlap)

    Earl Warren:

    You — you can’t say in manner – in manner and I — I wondered if you were making any distinction.

    J. F. Bishop:

    No, I am not.

    Earl Warren:

    All right.

    J. F. Bishop:

    I’m saying —

    Earl Warren:


    J. F. Bishop:

    I will – I will, if I may, depart from the statutory language from hereon and say “in the manner” because it seems inevitable (Voice Overlap)

    Earl Warren:

    Well, you — you just when you please only.

    I just want to know.

    J. F. Bishop:

    If I — it means the same thing.

    J. F. Bishop:

    Now then, I — I propose to go right down page 3 of the Government brief and demonstrate what we feel is manner, what is carried over into 1931 Act and thereby demonstrate that there is an element of manner so that you don’t have to look to elements or substance to carry them over.

    Now, at the top of – at the top of page 3 and all the way down, that page is all substance.

    It does not say how you shall deport, it says whom you shall deport.

    If the precedes that moment where the determination of substance is made that someone shall be deported.

    That is not an element of manner, whatsoever, and that whole page is devoted only to the question of who shall be deported.

    So, if there’s no reason for carrying any of that over, the Section 19 — the 1931 Act tells you clearly enough who shall be deported, any alien who commits this offense after 1931.

    And I go through — I go down at page 4.

    And — and there was no element of manner until you get to the 10th line from the bottom where it says — where it finally says what you shall do with these people whom the access shall be deported.

    And there you have the words, 10th line from the bottom of page 4, shall upon the warrant of the Attorney General be taken under custody.

    Now, that is an element of manner.

    That is carried over into the 1931 Act as if you were —

    William O. Douglas:

    But that’s already in the 1931 Act.

    It shall be —

    J. F. Bishop:

    It is not.

    It is not who shall do it.

    William O. Douglas:

    — shall be taken into custody.

    J. F. Bishop:


    But conspicuously in the 1931 Act, it does not tell who shall do the custody taken.

    It’s not left —

    William O. Douglas:

    On warrant of Attorney General, is that it?

    J. F. Bishop:

    That’s right.

    And as I pointed out in the 1922 Act, it couldn’t have been manner for the 1922 Act because it was in the 1922 Act, but it is not in the 1931 Act.

    So, that I say when you look to what is the element of manner that is to be carried over into the 1931 Act, here it is, the designation of who is to do the deportee.

    I think that the question, who is to do the deportee, is a matter of manner, and that is carried over and that’s about all.

    But there are some — there are some provisos on page 4.

    I direct your attention right after this clause which I’ve just reached, the 10th line from the bottom, there is an asterisk.

    And I’m sorry, I regret now but we took that part out.

    It is not completely pertinent but it’s highly illuminated.

    That asterisk covers a passage which says that if a female, after immorality — after a certain statutory morality, marries a citizen, she does not gain citizenship.

    Now, that is clearly not manner, it isn’t even substantive on the subject of who shall be deported.

    J. F. Bishop:

    It is yet another aspect of Section 19 and obviously would not be carried over into 19 — into the 1931 Act.

    I again use this to demonstrate that there are things to be carried over into the 1931 Act and there are things not to be carried over and the only thing to be carried over is manner.

    Now that provision I’ve just adverted to is clearly not manner.

    And then, there is another proviso to the effect that the provision of this Section shall not apply, that is the two moral turpitude cases, shall not apply if there is a pardon or if there is a recommendation by the judge.

    Now that, as to the carry over of that to the 1931 Act, there has been a conflict.

    I am frank to say that I think that conflict arose on of very ill-advised lower court opinions which did not distinguish from the 1922 Act.

    Under the 1922 Act, as I’ve indicated, there was some ground for saying that when they said in the manner of 19 — Section 19, they must have carried over the whole Act and the cases relied on by petitioners say that because there was no element of manner to refer to and so they said “This must be manner.”

    I think that is wrong.

    The (Inaudible) case which we cite says it’s wrong.

    That’s another circuit.

    And in the 1952 Act, I may say that the Congress at least has indicated what that Congress felt about it irrespective of the propriety of past interpretations and it has provided specifically that those suspension and — and pardon provisions — I shouldn’t say suspension, I should say the pardon provisions of the judicial recommendation provisions do not carry over into the 1931 Act, whatever gloss that later opinion may give with its limitations.

    So that I submit to this Court that the – that the question of pardon and recommendation is not a matter of manner to carry over but it is not significant to the present case because they’re not trying to carry over any pardon or recommendation idea of that — nothing of a kind was given here.

    It is used by petitioner as an analogy.

    The petitioner’s argument, as I conceded, is that if you carry over to the 1931 Act, the partner as being a matter of manner with an entry also that there’s a broad purpose to carry over.

    Well, I think that that’s not applicable here.

    The case is unclear, they’re not imported to this case where they’re tying to carry over a sort of amorphous entry concept that is not there.

    Now, I am plotting along through here because I still think that that is what’s decisive.

    After that proviso, we — there is — there is one thing that’s a little closer to manner on page 5.

    About five lines down, you’ll see, “Nor shall any — any alien convicted as a aforesaid be deported until after determination of his imprisonment.”

    Now, that is a matter of time of deportation and might conceivably be an element of manner and carried over to the 1931 Act.

    That again isn’t conclusive here but it is pertinent to my contention that there were elements of manner that could be carried over and you don’t have to look elsewhere and drag in matters of manner that are not manner but substance.

    And then as you go down the — then we come to the provision on which petitioner places his greatest reliance, on page 5, provided further — I’m at line eight on page 5 of the Government’s brief.

    This is still the Section 19.

    And this is the one that petitioner thinks indicates that unless you have entry, 1931 could not function.

    But we think it could — can function very well and that this is not pertinent.Here is the proviso, provided further that the provisions of this Section with the exceptions here before noted, shall be applicable to the classes of aliens therein mentioned irrespective of the time of their entry in the United States.

    I have just two things to say about that.

    One, it is not a matter of manner, it is again a matter of substance.

    It says, “This person shall be deported whether or not he came in to the United States at a certain time.”

    In other words, it says who shall be deported not the manner of deportation at all.

    I don’t think it carries over into the 1931 Act.

    J. F. Bishop:

    But I have this further comment that even if it were carried over and written into that Act, it is still a negative thing.

    It just says something if it happens shall not apply.

    But it certainly doesn’t say that we shall carry over then that this has to happen.

    It just says that this has nothing to do with the case, the time of entry.

    Nothing more than that.

    So that if it were written into 1931, it wouldn’t mean anything.

    But I return again to my first comment, it has nothing to do with the manner of deportation.

    It says who shall be deported.

    Now, I’m at about line 12 now of page 5 in Section 19.

    It says, “Provided further that the provision of this Section shall also apply but —

    Earl Warren:

    But may I ask this before you go any farther.

    J. F. Bishop:


    Earl Warren:

    Is that — is that proviso that follows the one you just read have any bearing on — on the case?

    It says provided further that the provisions of this Section shall also apply to the cases of aliens who come to the mainland of the United States from the insular possessions thereof.

    Now, there’s a fact that they don’t say aliens and — and nationals indicate that they meant only aliens and not — not nationals?

    J. F. Bishop:

    I do not believe so.

    First of all, it isn’t carried over into the 1931 Act.

    It’s not a matter of manner, it’s a matter of who it shall apply to, who shall be deported, who shall be deported, not how.

    That’s the first thing I have to say about it.

    Secondly, the use of aliens in this particular, in Section 19, like the use of the word “entry” has a great number of — of tangential importances, none of which, I believe, apply here.

    In other words, I don’t believe that we should go beyond the actual structural basis of this Act and try to pick out a few words to build up a gloss which frankly is foreclosed by the word “manner.”

    This clause is clearly substance who shall be deported.

    Earl Warren:

    Well, let me ask you – let me ask you this, in that proviso which I just read, do you think that the word aliens includes nationals who came to Continent of United States?

    J. F. Bishop:

    I wouldn’t know without checking each of these some 14 proofs here of aliens who are provided in this case.

    I have the — the Immigration Acts are of such complexity that in each case, I think it’s necessary to do the — the hard day labor job that I’m trying to do here of applying it to the specific case.

    I don’t believe that it adds any gloss and I — I don’t think that I can give a — a comprehensive answer.

    I wouldn’t dare to try to answer that.

    It looks to me simply as showing that in — let me say this, there are so many of the substantive provisions in this Act that are dependent upon entry of an alien that I think this is a caveat that entry certainly shall apply if an alien comes from outside, from one of the – the —

    Earl Warren:

    Insular possessions.

    J. F. Bishop:

    Yes, it says insular possessions.

    Earl Warren:

    Yes, sir.

    I think it’s for that purpose.

    I don’t think it is — affects our problem in any respect even by tangential gloss.

    Felix Frankfurter:

    Do I – do I gather from your answer to the Chief Justice that alien means a Dutchman coming from the Southeast Indies as of that time by way of the Philippines — aliens, in other words —

    J. F. Bishop:

    Clearly —

    Felix Frankfurter:

    — excluding Filipinos.

    J. F. Bishop:

    I don’t think it seeks to exclude Filipinos, I think it seeks to assure that the fact that the Dutchman didn’t come from the – from the Indies.

    Felix Frankfurter:

    Yes, but I want to know whether it’s restricted to people in the position of a Dutchman.

    J. F. Bishop:

    And —

    Felix Frankfurter:

    I think just as to that or whether alien in this sense is — is more generically anybody who is not an American citizen.

    J. F. Bishop:

    I —

    Felix Frankfurter:

    And you say you can’t tell that without making us —

    J. F. Bishop:

    Well, I can tell that in this respect.

    Section 19 covers some cases that say so many years after entry, an alien coming in so many years after entry, it also has some cases in which they say any time after entry and it has some cases which I have hoped to reach which would — I will not reach unfortunately until after recess, in which no entry was required at all.

    Felix Frankfurter:

    But —

    J. F. Bishop:

    And so your Dutchman, the case would not be concerned at all by this provision and I have to point that out if I have time after recess — in those cases, he would not be concerned at all where entry is not involved.

    Felix Frankfurter:

    I’m not worrying about the Dutchman, if I may say so.

    I’m worrying about the Filipino, whether — whether alien in that —

    J. F. Bishop:

    The Filipino — let me say arbitrarily and I hope to explain later, the Filipino would be covered in cases where he does not have to make an entry —

    Felix Frankfurter:

    I see.

    J. F. Bishop:

    — where he has to make an entry then Barber versus Gonzalez would apply and seeing that it came from the then possession that would have —

    Earl Warren:

    We’ll recess now.