Reid v. Immigration and Naturalization Service – Oral Argument – January 20, 1975

Media for Reid v. Immigration and Naturalization Service

Audio Transcription for Opinion Announcement – March 18, 1975 in Reid v. Immigration and Naturalization Service

del

Warren E. Burger:

We’ll hear arguments next in 73-1541, Reid against the Immigration Service.oo

Mr. Globman, you may proceed whenever you’re ready.

Benjamin Globman:

Mr. Chief Justice and may it please the Court.

Mr. and Mrs. Reid who are petitioners in this specific case are natives of British Honduras.

They are citizens of British Honduras.

Both of them entered the United States through a port of entry at Chula Vista, California.

They each in individual cases presented themselves before the immigration authorities inspectors and announced themselves as US citizens.

They were admitted and entered the United States and took up their life here in the United States.

Subsequent to their entry, they become parents of two American born children, citizens of the United States.

Warren E. Burger:

Did they ever report to the Immigration Service their true status from the time they entered until the time this litigation arose?

Benjamin Globman:

Litigation arose by a voluntary faction upon the part of the Reid’s.

They presented themselves to the Immigration Service at Hartford, Connecticut voluntarily.

Warren E. Burger:

After they had two children?

Benjamin Globman:

Yes, Yes after they had two children, they presented themselves in Hartford before the service and since that date they have filed their annual report.

Now, they presented themselves, submitted to the authority of the service and were placed on charges.

They were charged with having entered under false claim of citizenship and without inspection.

They —

Warren E. Burger:

When is the date?

Do you remember the date when they presented?

Benjamin Globman:

At least that goes back to 19 —

Warren E. Burger:

Three or four years?

Three or four years after their entry?

Benjamin Globman:

No, about two years after their entry.

Mr. Reid entered in 1968 in November and Mrs. Reid entered in ’69, either January or February.

And after the birth of the first child and while Mrs. Reid was pregnant, they reported to the service.

The hearing before the SIO, the special inquiry officer, I believe was held in 1970 or ’71.

William H. Rehnquist:

Does the record show either why they happened to come in at Chula Vista or how they ended up in Connecticut?

Benjamin Globman:

The record does not show.

In any event, the Reid’s went through the entire hearing process before the Immigration Service.

At their hearing, deportation hearing, they requested termination of proceedings based upon Section 241 (f) of the Immigration and Nationality Act.

Benjamin Globman:

Now, this Section has been adjudicated by this Court in the Errico case.

Now, at the hearing, they were denied this termination of proceedings based upon the Attorney General’s decisions in the Lee case.

This decision of the special inquiry officer who entered an order of voluntary departure and an ultimate order of deportation was appealed to the Board of Immigration Appeals and the Board of Immigration Appeals once again on the basis of the Lee case denied the appeal and entered the same order as the special inquiry officer.

Then this case came before the Second Circuit in New York and we are presently here on the matter today.

Now, in the record, it’s spelt out that both Mr. and Mrs. Reid have never been arrested, have never been a member of any subversive organization or communist organization and that they have — no, I might say for the benefit of the Court that ever since their entry into the United States, they have been gainfully employed and have always supported each other and their children have never been upon the welfare roles of any agency of the Government or any private agency.

Byron R. White:

What have they been employed in?

What kind of adaptation?

Benjamin Globman:

They are working in factories, bench hands, machine hands and they’ve been gainfully employed at all the — there throughout the period.

Potter Stewart:

How long they had been in Hartford, have they been in Hartford the whole —

Benjamin Globman:

They are in Danbury, Connecticut.

Potter Stewart:

Alright.

Benjamin Globman:

They’ve been there since very shortly after their entry.

Potter Stewart:

They entered —

Benjamin Globman:

They entered at Chula Vista, California.

Potter Stewart:

From Mexico, did they not?

Benjamin Globman:

That’s correct.

Potter Stewart:

And does the record show what brought them up to New England?

Benjamin Globman:

The record does not show but they have had friends in the area and after they entered they’ve decided that they would make their life in the Connecticut area where they have friends.

William J. Brennan, Jr.:

Exactly what was the fraud?

Benjamin Globman:

That they were claimed to be US citizens when in fact they were not US citizens and on the basis of their claim, they were admitted.

William J. Brennan, Jr.:

They claimed that to the immigration authorities?

Benjamin Globman:

Yes, they presented themselves to the US immigration authorities at Chula Vista and announced themselves as US citizens and were then admitted.

Potter Stewart:

I suppose there’s no official contemporaneous record of that is there because that would just be an oral representation?

Benjamin Globman:

That’s correct, an oral representation.

Potter Stewart:

So, what we have is their — is their statement that that is what they announced —

Benjamin Globman:

That is correct.

Potter Stewart:

— is that it?

Benjamin Globman:

That is correct but this has been found in the record by the special inquiry officer that they were —

Potter Stewart:

That that is in fact how they —

Benjamin Globman:

That is correct.

Potter Stewart:

— entered the United States?

Warren E. Burger:

Now, if they had disclosed at that time that they were citizens, British citizens of Honduras, then what would have happened to them at that time?

Benjamin Globman:

Then they probably would not have been admitted.

They would have been sent back to go through the application room to apply —

Warren E. Burger:

They have to go back to the consul and —

Benjamin Globman:

To the US consul in —

Warren E. Burger:

Honduras —

Benjamin Globman:

British Honduras.

Warren E. Burger:

And try to get a Visa?

Benjamin Globman:

That is correct.

Warren E. Burger:

They definitely show that they either had employment assured here or that they had means of support here and a great many other things will have to be demonstrated, would they not?

Benjamin Globman:

Well, yes.

Let me say for the record that they probably could never have entered the United States but we’re talking about coming by means of a labor certification, which means that they had obtained a certificate from a labor department saying that they were needed in the American economy because there were no other labors available to fill the specific job to which an employer had sought them.

They would never have entered the United States because the quota was backed up for years.

So, have they had a labor certification, they could not have obtained a visa at that time.

Now, they’re here, having gone through the entire procedure and we’re confronted this morning with their right to remain here under the statute.

This Court has faced this particular Section of the statute, Section 241 (f) in the Errico case and made its pronouncement in that specific area that the Government here this morning says that the judgment of the Court should be confined strictly only to quota discussion on the Section.

Their claim is that the Reid’s are not entitled to the 241 (f), the exception or exemption from deportation because they failed to submit that to inspection they say that this is not an inspection and they say also that they failed because they did not have a Visa.

The Government says that there are two requirements, that first of all that there be a Visa in the possession of the intending agent.

And secondly, that in presenting this Visa at the port of entry, he announced himself as an Alien and then be put through the examination procedure whatever it might be at that time.

Now, the examination at the port of entry can be either rigid or be perfunctory.

If a person comes in with a Visa regardless of whether this Visa was obtained legal and without fraud and submits himself at the port of entry to an immigrant — immigration officer, the immigration officer can do one of two things.

He can merely take the man’s passport, open it up to the Visa’s page, see that it has stamp and feeling assured in his own mind that this is a genuine Visa that is not a forgery or phony, admit him and this would be the entire inspection procedure at the port of entry or he can go to the entire again — and once again take out the papers, go through it question by question, where were you born, produce the birth certificate to show it and the status of your health, if he wanted to at that time he could require him to have a new physical examination.

He could require that any documents which he might have in his possession showing that he would not become a public charged be updated and can do any one of this things that the counsel has already done prior to his arriving at the port of entry.

Now, for the most part however, examinations at the port of entry are strictly perfunctory.The immigration officer opens the passport, sees the Visa stamped in the passport then if he feels, assured that this is a genuine passport, this is about the sum of it, takes his papers and that’s the answer.Now, though we claim here that any person coming into the United States under a claim of US citizenship and meeting the other requirements being otherwise admissible and having in this specific case US children is –

Byron R. White:

How were the petitioners otherwise admissible for purposes of the statute?

Benjamin Globman:

In the record, —

Byron R. White:

Now you told us earlier that they could — not possibly qualify for a Visa even if they’ve had laborers?

Benjamin Globman:

Only under labor certification that they would have had to wait for a Visa until sometime late in the future but at the factual situation, at the time of their entry, the quota for six preference, they had to come in under the sub quota of Great Britain and there are only 200 Visas issued annually under this sub quota and they would be in the six preference have they had a labor certification.

This would be their only disqualification if you want to call it that.

Benjamin Globman:

That they did not have —

Well, I known but —

Benjamin Globman:

— a labor certification.

But the requirement of the section is they must not alone have children but also be otherwise admissible?

Benjamin Globman:

Yes, the qualitatively —

Now, tell me again how the — other — they were otherwise admissible at the time of entry.

Benjamin Globman:

Yes.

First of all, there was no moral question.

The SIO, the special inquiry officer found that they had the moral qualifications.

They have the physical qualifications.

They were not members of any subversive organization.

No criminal record.

And were therefore under 212 (a) admissible.

Notwithstanding the backed up —

Benjamin Globman:

Quota.

Quota.

Benjamin Globman:

Yes.

Potter Stewart:

And that was — that’s the Errico case, isn’t it?

I mean —

Benjamin Globman:

Yes, Errico says —

Potter Stewart:

But were on that track on the area —

Benjamin Globman:

— on the quantitative, on the quantitative admissibility, yes.

Potter Stewart:

And there was a dissenting opinion that was or it was a dissenting opinion that said that otherwise admissible meant more than the — meant more than what the Court decided there.

Benjamin Globman:

That is correct.

Potter Stewart:

Right.

Warren E. Burger:

Now, are the two cases parallel in terms of the quota aspects?

Benjamin Globman:

They are parallel, yes.

Warren E. Burger:

Parallel or the same or —

Benjamin Globman:

They’re the same, they’re the same because of the actual fact of the quota at that time.

And as a matter of fact, the quota today is still backed up in British Honduras.

Warren E. Burger:

But you had indicated in your earlier response that for all tactical purposes they could never have been admitted to the United States —

Benjamin Globman:

Based on the quota.

Warren E. Burger:

— fraud?

Benjamin Globman:

Yes, based on a quota.

William H. Rehnquist:

Mr. Globman, I’d like to ask you a question about the statute which I guess is set forth at page two of the Government’s brief and its probably set forth in your brief too.

When you get down to the language, an alien otherwise admissible at the time of entry who is the spouse, parent or a child of the United States citizen of an alien lawfully admitted for permanent resident.

Isn’t at least a permissible construction of that statute that at the time of entry you have to have been the parent or the spouse?

Benjamin Globman:

No, I don’t believe that that is so at all.

I think the statute — reenactment of the statute was basically for the purpose of correcting situations that had already taken place.

William H. Rehnquist:

That the man gets in and then marry?

Benjamin Globman:

Yes.

William H. Rehnquist:

So gets in then has children?

Benjamin Globman:

That is correct.

The purpose of this statute was to protect certain small groups of individuals who found their way into the United States and that the statute comes into a fact long after the breech has been committed.

The violation has been committed.

It’s a remedial statute and it was introduced to soften the harsh provisions of the statute.

This is not —

William H. Rehnquist:

But of course, if your construction that you’re urging, this case is right, isn’t it pretty much just an open door policy, if you can just get through in some way and have a child, you’re okay?

Benjamin Globman:

Only Your Honor if the entry is, actual entry is gained by fraud.

The inspector service procure entry by fraud.

It gives many and they’re all in the disjunctive, it’s not a conjunctive qualification.

It’s disjunctive mean giving the individuals in each of these categories of the protection of the law.

William H. Rehnquist:

But assuming those are the only one who should need relief.

The once who get in there lawfully don’t need to worry about deportation.

Benjamin Globman:

Then you have a problem —

William H. Rehnquist:

When you submit by fraud to do —

Potter Stewart:

Well, the statute does not cover those smuggled in?

Benjamin Globman:

No.

Potter Stewart:

Those who get in surreptitiously and that’s the very large group available in this entry.

Benjamin Globman:

That’s correct.

Benjamin Globman:

This is a procure entry by fraud or misrepresentation.

And there —

Then I gather in Errico it was obtaining a Visa —

Benjamin Globman:

Visa.

— by fraud —

Benjamin Globman:

That is correct.

By fraud not misrepresentation.

Benjamin Globman:

That is correct and we’re —

While then here you didn’t obtain a Visa, your clients evaded —

Benjamin Globman:

That is correct.

Potter Stewart:

You obtained an entry by fraud.

Benjamin Globman:

Pardon?

You obtained your entry by fraud as I understand your argument.

Benjamin Globman:

That is correct.

Your argument I gather is that there can’t be any difference in light of the literal —

Benjamin Globman:

Translation of the statute.

— warning of the statute.

Benjamin Globman:

That is correct.

The —

How about the legislative history?

How far is the legislative history?

Benjamin Globman:

Let me say, that the Court in the Second Circuit admitted that under the literal translation, literal interpretation of this statute that the Reid’s are entitled to this relief.

Now, in the history of the statute, the Errico case I think is complete on the history.

There is very little involved.

It traces the history from the refugee acts, the displaced persons acts.

And, it takes up to 1952 with the McCarran Act which was a harsh law and then it takes it back to the present act, this specific section in ’61.

Now, perhaps if I could refer to the material.

Alright, the Court in the Errico decision said, the misrepresentation section was not the only provision of the 1952 legislation that was widely thought to be unnecessarily harsh and restrictive, and in 1957, Congress passed legislation alleviating in mental respect the restrictive provisions of the earlier legislation.

The purpose of the 1957 Act is perfectly clear from us terms as well as from the relevant house and senate committee reports.

The most important of the act provide for a special none quota status for the adopted children or illegitimate children of immigrant parents and for orphans who have been or are to be adopted by United States citizens.

Benjamin Globman:

Then it goes on to says, the intent of the act is plain that you grant exceptions to the rigorous provisions of the 1952 Act for the purpose of keeping family units together.

Congress felt that in many circumstances, it was more important to unite families and preserve family ties than it was to enforce strictly the quota limitations or even the many restrictive sections that are designed to keep undesirable or harmful aliens out of the country.

Now, —

William H. Rehnquist:

Mr. Globman, if we uphold your position here, what’s to prevent any number of people from coming in surreptitiously and then testifying two or three years later yes I did go to the customs agent at Chula Vista and I said I was an American citizen and presumably, if its an informal contact, no one will be able to say no to that and just get in under this provision.

Benjamin Globman:

Then I think you’re involved in the credibility of the individuals.

William H. Rehnquist:

But someone who would commit fraud in the first place I presume may have some doubts as to his credibility in general?

Benjamin Globman:

I think you take the whole person in this specific case.

When he — when the person becomes involved with the immigration authorities, he goes through an exhaustive investigative process by the investigation department before charges are brought.

There’s an investigation of the applicant or in this case the alien and upon the basis of the investigation made by the investigators in the immigration service, charges are brought.

Now, then these charges are tried before what is present and known as an immigration judge form of the — formerly the special immigration, special inquiry officer and at this hearing, the burden of proof is upon him to prove himself.

In other words, the credibility of the individual is considered by the immigration judge.

Warren E. Burger:

Well, but that’s all been bypassed here.

There is no probable about credibility here as you conceded that your clients got in by falsely representing that they were American citizens?

Benjamin Globman:

Yes.

Warren E. Burger:

Now, how does credibility come into play in a situation like this or the hypothetical that Mr. Justice Rehnquist has dictated?

Benjamin Globman:

Well, my answer is that in answer to Mr. Justice Rehnquist’s question, hypothetic question is that there’s the opportunity for a judgment of credibility.

The justice asked now three or four years after a man gets into the country no matter how he gets in, he then says before the department of a service that he presented himself as a US citizen at an entry point.

My answer is that could take the total person, it’s a question of credibility.

He proves himself out.

William H. Rehnquist:

He proves that he committed fraud.

Benjamin Globman:

He proved that he has committed fraud but he also proved what the fraud is.

Warren E. Burger:

Not voluntarily however, it is done to the compulsion of being deported if he doesn’t do some explaining?

Benjamin Globman:

No question but —

Warren E. Burger:

Now, going back to this language that someone else asked about and following the exact language of the statute, 241 (f) shall not apply to an alien otherwise admissible at the time of entry who is the spouse.

Well, do you say that it cannot be read as meaning that he was the — is the spouse, parent or child of the citizen at the time of the entry?

Benjamin Globman:

I say that is how the Errico case read it.

That is how the —

Warren E. Burger:

Speaking about the language of the statute now.

Benjamin Globman:

Yes.

I suppose it can be read that way.

Benjamin Globman:

I mean, even the clearest language means different things to different readers.

The — to me it doesn’t read that way.

Warren E. Burger:

Well, but its understandable that a person might have a parent in the United States or a child in the United States and come from another country, present himself for admission and be otherwise admissible in all respects but at the very time that the misrepresentation is made of this qualifying condition of having parent or child —

Benjamin Globman:

I think —

Warren E. Burger:

— on the other side, on our side of the border.

Benjamin Globman:

I think if that is what the section is saying, I think it would say it in this manner.

Who is at the time of entry a spouse, parent or child?

That to me, that would be lucid in carrying out your question.

Warren E. Burger:

Well, you’ve got at the time of entry just preceding it.

Benjamin Globman:

Yes.

Warren E. Burger:

And you’re going to — you say it should be repeated again.

Otherwise admissible at the time of entry, who is at the time of entry, you would want that repeated again to have the meaning that I suggest.

And the Court of Appeals in the Second Circuit read somewhat the way I was suggested.

Benjamin Globman:

Well, now, at the time of inquiries, I — there are readers who are excludable at the time of entry, yes.

I take the other attack that it would be lucid if it’s stated that to follow out your thought, to carry out your thought or your construction of a statute, it should read who at the time of entry is or who is at —

Potter Stewart:

Was.

Was, is what you want because everything else is in the past tense.

Your strongest argument is that everything else is in the past tense.

They were — they were excludable at the time of entry or have procured Visas or other document.

See, it’s a — if its talking about the time of entry, its in the past tense or the perfect tense and this is in the present tense and statute — and the statutory provision has to do with deportation of aliens within the United States and since this is the present tense, it would seem to view and argued that it means now, they have spouses or children who are citizens.

Benjamin Globman:

Well, —

Potter Stewart:

If you’re talking to the time of entry that’s —

Benjamin Globman:

Yes.

Potter Stewart:

Lets try the provision, it’s always either in the past tense or the perfect tense, not in the present tense.

Then —

Benjamin Globman:

But I feel that if this is what the meaning of this —

Potter Stewart:

I know what — I know what you feel the meaning is and that —

Benjamin Globman:

Right.

Potter Stewart:

To make it mean what the Chief Justice suggested might mean, you would argue that the “is” would have to be a “was.”

Benjamin Globman:

I say what the statute is saying, who shall not apply to an alien otherwise admissible at the time of entry and then says who presently is, the spouse, parent or child of a United States citizen.

Benjamin Globman:

I think I am consistent in my argument that this present tense carries out at the time of —

Deportation.

Benjamin Globman:

Time of deportation, yes and bringing it up to the time when the Government is calling to account the alien.

Warren E. Burger:

But I understood you to say earlier that he was not otherwise admissible if he had told that he would not have been otherwise admissible had he told the truth?

Benjamin Globman:

Had he told the truth –

Warren E. Burger:

He would not have been admitted?

Benjamin Globman:

He would not have been admitted, no.

Warren E. Burger:

So that’s the first hurdle that you have to get over, isn’t it?

Benjamin Globman:

Yes.

However, we’re saying that we’re in the same situation —

William H. Rehnquist:

Why is it — why under the statute isn’t a person who just smuggled in entitled to the benefits of the statute?

Benjamin Globman:

A smuggler doesn’t overtly, orally present himself for inspection and commit a misrepresentation.

William H. Rehnquist:

Well, he doesn’t present himself for inspection if he says I’m a citizen of the United States either?

Benjamin Globman:

He does.

William H. Rehnquist:

Well, he doesn’t.

He does — as an alien he doesn’t permit — he doesn’t submit himself to inspection as an alien.

Benjamin Globman:

Under the statute, under the Immigration Act —

William H. Rehnquist:

Under the prior law prior to this — prior to this, when people misrepresented their nationality, they had to show that it was for the purpose of avoiding some kind of persecution in some country which and I suggest — I suggest that the contrary argument is that –is that the statute intends the alien to have submitted himself as an alien.

Benjamin Globman:

Of the language —

William H. Rehnquist:

And because submitting him — saying that he’s a citizen is just like, is not submitting himself as an alien at all.

Benjamin Globman:

The act does not say that he presents himself as an alien.

William H. Rehnquist:

I know, it says entry?

Benjamin Globman:

Yes.

William H. Rehnquist:

The entry is defined as an entry by an alien?

Benjamin Globman:

No, the coming — you see, every immigration inspector have the right to examine any individual whether he claims to be a citizen or whether he claims to be an alien and even citizens can be held and made to prove their citizenship.

They can be held, detained and held until such time as they sustained the burden of proving their US citizenship.

I understand that, I’m just suggesting perhaps the statute should be construed to me that — that if benefits are extended to those who submit, who enters as aliens.

And in the process commit fraud, fraudulent Visa or some other kind of false documentation.

Benjamin Globman:

I think exquisitely the statute does not read that question.

I think of an exquisite interpretation of the statute —

Well, I don’t know.

Warren E. Burger:

On Your theory, the person who affirmatively commits the fraud of lying about his American citizenship is in a better position than the fellow who doesn’t affirmatively commit any fraud but just to walks across the border at some isolated spot on the Canadian woods or —

Benjamin Globman:

That is correct because he has given the service and opportunity of checking his statements.

The fellow who crosses that a border where there is no border crossing point or who comes in the trunk of an automobile or as a stow away by the point of embarkation, never presents himself before a US immigration inspector.

Warren E. Burger:

Maybe you say because this man presented himself under the false colors of an American citizen, he is in a better position than a fellow who just walked across the border?

Benjamin Globman:

He is.

Lewis F. Powell, Jr.:

Suppose that Mr. Reid had had a forged American passport, would that make the case different?

Benjamin Globman:

A forged American passport?

Lewis F. Powell, Jr.:

Yes.

Let’s assume he bought it himself or forged it himself and he simply presented it at the port of entry.

In this case as I understand he had no papers, nobody asked him any questions, he said I’m a US citizen.

Well, he hands in a passport which says on its face that he is a US citizen but it’s a fraudulent document.

Benjamin Globman:

I say yes.

Lewis F. Powell, Jr.:

You’d say the statute does apply.

Benjamin Globman:

Yes.

Lewis F. Powell, Jr.:

Exactly like Mr. Reid?

Benjamin Globman:

Exactly because he’s presented himself for inspection.

Thurgood Marshall:

Can it be alright I have to get out of jail for having a forged passport I guess.

Benjamin Globman:

He would definitely be convicted, yes.

Thank you.

Warren E. Burger:

Mrs. LaFontant.

Mr. Chief Justice and may it please the Court.

I’d like to review the facts very briefly again.

Petitioners who are citizens of British Honduras and married to each other entered the United States at Chula Vista, California which is on the Mexican border by falsely stating that they were citizens of the United States.

The husband arrived in November ’68 and his wife followed January of ’69 and nine months thereafter she gave birth to her first child and in ’71 gave birth to her second child and of course their children are American citizens.

Three years after Mr. Reid’s arrival, he was — they were served with petition to show cause or an order to show cause why they shouldn’t be deported because they entered the United States as aliens deportable under 241 (a) (2) as aliens would enter the United States without inspection as aliens claiming being citizens of the United States.

They admitted that they had entered fraudulently by claiming United States citizenship.

They admitted that they had not secured the Visa upon entry and they also admitted that they did not present themselves to the immigration officer for inspections as aliens.

However, they denied the legal conclusion that they’re deportable, contending that Section 241 (f) of the Act waives deportation in the case of aliens otherwise admissible at the time of entry who have procured entry into the United States by fraud or misrepresentation and have close family ties in the United States.

The special inquiry officer upheld the charge that they were deportable and the Board of Immigration Appeals dismissed their appeal claiming that aliens who circumvent the entire Visa issuance process — inspection process are not eligible for relief under 241 (f).

The petitioners then applied for the privilege of voluntary departure and claimed that they would be willing to leave under the conditions and at the time set forth.

And I might add at this point, Mr. Justice Brennan, this is the point where the special inquiry officer for this purpose found them of good moral character and granted their petition of the — no special inquiry officer found them of good moral character at the time of entry, it was only in reference to this petition for voluntary departure.

They did not depart —

William H. Rehnquist:

Looking over the decision of the special inquiry officer and I just looked over the first time on that bench, I must say I don’t find any finding by him that these people presented themselves to an immigration officer in Chula Vista?

No, there is no finding at all that they admitted or showed themselves to an immigration officer in the finding special inquiry officer, none whatsoever.

Of course they —

Well, what is meant by each under the United States by forcedly claiming to be US citizen?

Where did the — where would they do that?

They false claimed United States citizenship they claimed to Chula Vista, on the border of Mexico when they entered.

But unto whom, but to whom?

So they must have said it to someone but there is no finding, in other words, I don’t think you can tell from this record whether they swam across or came over in a trunk and then later said we came claiming United States citizenship.

It seems to be taken to parameter —

Potter Stewart:

No, no, the finding is that they procured their entry by falsely claiming to be United States citizens.

Yes.

Potter Stewart:

And that doesn’t mean surreptitiously swimming or car —

No, what I’m doing is —

Potter Stewart:

It means by — they entered by way of that false claim.

I think that is something we must accept but I’m also saying that it ties in very well with Mr. Justice Rehnquist’s question, what is to prevent people who happen to come in by some other means, to come in and admit and say I entered by saying I was United States —

Potter Stewart:

Right.

— citizenship — citizen when they in fact did not.

Potter Stewart:

Because there’s no —

But I think we should have to accept the fact that they entered at the Mexican border and claimed when they came through, we are Americans, yes.

William H. Rehnquist:

In spite of the fact that the special inquiry officer didn’t so find.

I think it’s assumed but there is no finding of that.

Potter Stewart:

It’s a necessary implication of these finding is what he did find?

Yes.

Potter Stewart:

But your — certainly your argument is valid that there is no contemporaneous record of that since this —

Yes.

Potter Stewart:

— is oral at the border, you just at the Canadian, the Mexican border and therefore when these people get here, all you have is their say so.

Correct, that’s true.

Potter Stewart:

And therefore somebody who might in fact have swam across or waited across the river could later say well I didn’t do that bridge, I got here by falsely claiming I was a citizen and that is your argument?

Yes.

Potter Stewart:

So all we have is there say so?

That’s correct Your Honor.

Although the privilege of voluntary departure was granted, the petitioners did not leave but instead filed a petition to review and the United States Circuit Court of Appeals for the Second Circuit affirmed the deportation order.

And since this decision is in direct conflict with two decisions of the Ninth Circuit, Lee Fook Chuey and Echeveria, the Government did not oppose the petition for certiorari and feels that this issue should be resolved by this honorable Court.

The petitioners in contending that they are not deportable under Section 241 (f) rely very heavily on the case of Immigration Service versus Errico.

Errico really involves two cases that were consolidated because of the one issue involved.

We respectfully submit that Errico is limited as distinguishable from this case and is limited to its own facts and stands for the proposition that quantitative limitations, that is quota restrictions cannot preclude an alien from being otherwise admissible within the meaning of 241 (f).

In one of the cases, Mr. Errico —

Is it —

A native —

Is it distinguishable because its limited to its own facts or I think you put it in the conjunctive.

And —

I think that your not very happy with the Errico decision?

Very not, not happy for but still we feel that even though in spite of our displeasure with Errico that it can be distinguished from this present, the instant case.

In the — a Mr. Errico, a native of Italy, in order to get a higher quota preference deliberately misrepresented to the immigration authorities that he was a skilled mechanic experienced in the repair of foreign automobile.

He was granted his first preference quota, he was lawfully admitted as a permanent resident and he and his wife entered the United States in 1959, and thereafter, a child was born.

Mr. Errico had gotten an immigrant Visa.

In the other case, a Ms. Scott, a native of Jamaica entered into a — in order to get a none quota status, entered into a sham bogus proxy marriage with an American citizen whom she never lived and with whom she never intended to live.

She thereafter had an illegitimate child in the United States after having been admitted here in 1958.

In both Scott and Errico, in seeking entry, they not only admitted their alienage that has put the immigration authorities on notice that here we are two aliens coming into the United States, they had to present valid unexpired immigrant Visas and prior to the issuance of that Visa, they both had to complete background questionnaires which went into the — cover the birth records, military records if anything, criminal record but have you.

Not only did they have to do that but they submitted photographs of themselves, they submitted to physical and mental examinations, they were registered and they were fingerprinted.

And they were also investigated by the American consul in Italy in the case of Errico and in Jamaica in the case of Scott, and after that and only after that, a passport was issued and thereafter they both were inspected at the port of entry into the United States.

Now, when it is said by petitioners that the Reid’s, the petitioners here were actually inspected at the border, that’s impossible because they’ve admitted that they falsely claim that they were citizens and although we don’t have any definition of inspection in the Immigration Act, we can just look at Black’s law dictionary and see what inspection means and we can use it.

Inspection is a critical examination, a close or careful scrutiny, a strict or prying examination or an investigation.

In the instant case, the petitioners concealed their alienage completely and thus avoided any investigation by the authorities.

Since citizens coming into the United States do not require to go through inspection, petitioners were able to evade any investigation.

And Mr. Justice White is perfectly correct when he states that entry concerns aliens.

The United States’ citizen really cannot make an entry under the Immigration and Nationality Act and I turn to Section 1101 of the Immigration and Nationality Act that defines entry as any coming of an alien into the United States, any coming of an alien into the United States from a foreign port of a place or outline possession.

Now, the purpose of the two step inspection process that is the Visa issuing on one hand and the inspection at the border is for the main purpose of determining whether or not an alien is admissible or excludable.

And it also serves the purpose of keeping tab on or keeping tract on aliens once they come in to the country.

And it is crucial to a lawful admission that an inspection be made.

Section 1225 of 8 United Code requires that all aliens shall be examined by immigration officers at the discretion of the Attorney General, but no such mandate was enacted as far as United States citizen is concerned.

Now, let’s look at the language of Section 241 (f) itself, which provides impertinent part.

The provisions of this section relating to the deportation of aliens on the ground that they were excludable at the time of entry as aliens, who have procured entry into the United States by fraud or misrepresentation shall not apply to an alien otherwise admissible at the time of entry who is a spouse, parent or child of a United States citizen.

The Government admits that Section 241 (f) is not intended to apply to petitioners and as the language indicates is quite limited in scope.

It doesn’t wave all grounds for deportation of persons who are closely related to United States citizens, but only waive deportability on the ground that they were aliens excludable at the time of entry, for having procured documents or entry through fraud.

Furthermore, it applies only if the aliens were otherwise admissible at the time of entry, and what does that mean?

If an alien avoids the entire Visa issuance inspection process, how can it be determined that he is otherwise admissible at the time of entry?

Were we dealing with simple objective facts that could be easily ascertained years afterwards, we wouldn’t have so much of a problem, and that was the situation in Errico.

But I submit it would be virtually impossible years later to determine whether or not the petitioners were in fact otherwise admissible at the time they entered this country in ’68 and ’69.

The important phrase is I submit Mr. Chief Justice is at the time of entry applies to otherwise admissible rather than whether or not the petitioners are the parents of children or married to an American citizen at the time of entry.

It refers the otherwise — admissible refers to aliens otherwise admissible at the time of entry.

We know —

Potter Stewart:

You say they were not otherwise admissible?

That’s correct.

Well, that I’m saying that it had to be determined at that time because with the passage of time —

Potter Stewart:

You’re saying they don’t — so you’re saying there’s no way to know —

Right.

Potter Stewart:

Whether they are otherwise admissible?

That’s right.

And then to try to reconstruct it six years later as in this case would be an impossible task because we know that evidence dissipates, witnesses move or die and we also have to remember that this information would have to be gotten from the alien’s homeland not from this country.

Potter Stewart:

Of course, in the Errico case, it wasn’t that there was no way to know that they were otherwise admissible, there was a way to know and the fact is they were not otherwise admissible and yet the Court held the statute applied to them.

They didn’t — they did not find, they were not morally, physically —

Potter Stewart:

No, that they —

— or mentally otherwise admissible.

Potter Stewart:

— it was clear that they were not within the quota and they were not otherwise admissible.

So they had no way to — they didn’t have to go any further.

They said that the quota restriction — they could determine that and —

Potter Stewart:

And under that they were not otherwise admissible?

Yes but they also in the Errico case, they also tied in the charge with the fraud and when they said otherwise admissible they meant otherwise they are not being eligible for the quota, which means in my interpretation of it, they meant otherwise admissible to apply to the qualitative part that is whether or not they were mentally, morally and physically admissible at the time of entry, but the quota they could — they took on its face that — and I’m not carrying a brief for Errico but —

Potter Stewart:

No I’m not either but I’m just —

— is limited, hang on a second —

Potter Stewart:

— agreeing or disagreeing or you’re saying what the hell.

— because you just send it — in it, yes.

Byron R. White:

Well, I gather Mrs. LaFontant, basically, in any way, your argument is that the statute can apply only to aliens who presented themselves —

Yes.

Byron R. White:

Even though at the time of presenting themselves exactly as a — just called presented some facts.

Yes.

Byron R. White:

Which then led to their admission and in Errico, I guess it’s true, he did present himself as an alien, he just falsified facts a little and he did get in.

Yes.

Byron R. White:

Only the Errico 5156.

That’s — that’s in to me that’s the big distinguishing — one of the big distinguishing factors.

Byron R. White:

5206.

That’s true and even in the —

Byron R. White:

I read that footnote that you presented.

I see.

Because even when we were trying to help the refugees with the Displaced Person’s Act and the Refugee Relief Act of ’53, even in that in those cases where we were trying to help, it was definitely stated that anyone who’ve misrepresented his nationality or made any misrepresentations would be forever barred from coming into this country and then later because of the rigidity of that, there was an alteration made but even then it said, they always had in their the otherwise admissible alien.

Warren E. Burger:

Well, Second Circuit seems —

So that they’ve never —

Warren E. Burger:

The Second Circuit seems to have distinguished Errico on the ground that the fraud was made there to avoid the quota restrictions and not to avoid the examination at the border.

That’s true.

Warren E. Burger:

No, the fraud at least in respect to the —

There was a fraud.

Well, the main fraud was —

Potter Stewart:

There were two companion cases —

— that he — they lied —

Potter Stewart:

But went on — went into a fraudulent marriage.

Right.

Potter Stewart:

There was — that was not the Errico case, there were two companion cases.

Well, when I referred to Errico, Scott —

Potter Stewart:

One Mr. 5347 occupational.

— it was consolidated with Errico —

Potter Stewart:

That’s right.

— so its —

Potter Stewart:

Mr. Errico misrepresented his occupational skills?

Correct.

Potter Stewart:

He said he was a skilled mechanic on foreign automobile?

Right Your Honor.

Potter Stewart:

And thereby got himself qualified and entered.

First co defendants.

Potter Stewart:

And the companion case, the woman in that case went through a fraudulent marriage with an American citizen and she never saw him again after the ceremony.

Right Your Honor.

Potter Stewart:

And then she got into this country and then very soon thereafter had an illegitimate baby and now therefore, she had a — she was related to that baby who was born in the United States and therefore she was related to the United States citizen and the Court held she could not be deported despite the fact of her fraudulent entry.

That’s correct, I mean —

That’s true.

Potter Stewart:

— those are the facts of those cases.

That’s true, but the charged brought against them was — let’s see — the exact charge in Errico was a fraudulently entering not being eligible for a quota, I don’t know how it was worded.

Warren E. Burger:

But by representing himself falsely as a skilled mechanic etcetera, he —

Got the proving reference, right.

Warren E. Burger:

— avoided the quota restrictions, not in this country but in getting the Visa from the US consul wherever he —

Well, he still had to go through all of the examinations and all.

He lied on one point about his ability but he did not evade the whole system and he was found qualified for admissibility on the basis of being physically, morally, and mentally fit.

Warren E. Burger:

And that he possesses skills needed in this market, this labor market.

So he —

Warren E. Burger:

That was the key factor that avoided the quota restriction, wasn’t it not?

Right, right.

And the key factor in the Scott case was that she —

Potter Stewart:

She was a wife of —

— who entered the marriage and was the wife of an American so that’s how she avoided the quota restriction, but I interpret Errico in discussing the otherwise admissible still did not reach the admissibility requirements that I’m discussing now of quality.

Potter Stewart:

Whether she had a communicable disease or —

Right.

Potter Stewart:

— prison record —

Or mental or —

Potter Stewart:

— mental —

— prostitute or they have 31 —

Potter Stewart:

Right.

— grounds for exclusion.

Potter Stewart:

Different disqualification.

Now, I’m not sure if I answered the question or not.

Warren E. Burger:

Yes, that it was the quota restriction, misrepresentation that led to his entry and he’s getting the —

Alright.

Warren E. Burger:

— in getting the Visa.

But even after the Visa as you pointed out, he still had to run the gauntlet of all this questions?

Yes.

Warren E. Burger:

The Visa was merely the starting point.

These people by lying at the point of entry if indeed they ever in fact made such an effort avoided all of these inquiries and didn’t give the Government an opportunity to check them until many years later, good many years.

Right.

I’d like —

Warren E. Burger:

Well, we’ll resume there after lunch Mrs. LaFontant.

Mrs. LaFontant, you have about 8 minutes left.

Mr. Chief Justice and may it please the Court.

Last week during the argument of a case before this honorable Court, Mr. Justice Blackmun asked the Solicitor General of the United States a question that went something like this.

Would it be a disaster if this Court ruled opposite to your argument?

If the same question were asked of me today, my answer would be yes, it would be a disaster.

Certainly, the sky would fall in on the Immigration and National Naturalization Service.

And yes, such an adverse ruling would cause a paralysis in international travel especially for the 260 million people who entered the United States, that’s the number of people who went to the United States in 1973.

It would be — represent a paralysis for all of the United States citizens and hundred million or more who entered this country every year.

It would be impossible for the immigration and naturalization of service to inspect all of these people and I might remind the Court that 232 million of these people who entered the United States each year come over to Canadian and the Mexican borders.

If petitioner’s position were sustained, aliens would be free to claim United States citizenship falsely and have an unassailable right remain here forever.

Indeed, it is quite possible that as we’ve alluded to before, aliens —

Potter Stewart:

Tell me they — its only if they —

Apply for 241 (f) relief.

Potter Stewart:

Yeah, and which means they have to have close relatives who are United States citizen.

Yes, yes, and if you ruled that otherwise admissible — admissible doesn’t mean anything, it would be — open the floodgate from these borders for the people to come in.

Potter Stewart:

That would be everybody, it will just — they’d have to have —

Close relatives, those who have — parents —

Potter Stewart:

Close relatives here —

Right.

Potter Stewart:

— who are United States citizens.

Definitely, definitely.

Warren E. Burger:

But you would — as I take it you’re point is that you’d have to do a much closer check on every person who crosses the border claiming to be a United States citizen.

And that’s an impossibility to —

Warren E. Burger:

And that would be over a hundred million people if in fact you undertook to it?

Yes.

Be a hundred million American citizens but you’d have to inspect all 260 million that come in.

232 million that come over the border, would be an impossible task I submit.

Warren E. Burger:

Well, they don’t all, all of that additional 132 million don’t claim to be American citizens, do they?

No, that’s true.

Warren E. Burger:

No, so your check would be — presumably you already checked, the Government already checked people who do not claim to be United States citizens.

That’s true.

So it would be another hundred —

Warren E. Burger:

Those avid check would be —

Definitely a hundred million who are bonafide American citizens, we don’t know how many more —

Warren E. Burger:

Whatever the difference is between that and the 232 million —

Right.

Warren E. Burger:

Wasn’t something like that tried at the Mexican border that created an international incident within the past year or two?

Yes, where traffic was backed up for miles and miles and miles but I don’t remember —

Warren E. Burger:

The Mexican Government at least has — I don’t know whether they judiciary noticed what appears in newspaper accounts but it was the Mexican Government made representations to the state department of the United States.

Yes sir.

And as we have alluded to before, these aliens with the required child or spouse could — well, he could slip over say in a car, in a trunk of a car and then acquire a spouse or a child and then say I came in as a United State citizen and therefore if petitioner’s position would be sustained would be able to say I’m entitled to 241 (f) relief because I lied about being a United States citizen.

This would produce a severe enforcement problem as is obvious because there are hundreds of thousand of illegal aliens that enter the United States yearly.

Another major enforcement difficulty would be presented for those who enter as none immigrants, that is visitors who come in as a none immigrant saying they are going to stay just for temporary period of time and then a year later say well, when I came, I really intended to stay forever so therefore I’m entitled to 241 (f) relief also.

Indeed, aliens who entered innocently could reasonably press for an equal and absolute right to remain on a theory that it would seem unfair to treat the innocent less favorably and the guilt finally would make a mockery of Congresses numerical limitations which we have to presume were reached after careful study and which also are supposed to tell us how many people this country can safely absorb.

So we will be doing away with the numerical limitations completely.

Potter Stewart:

So all of these arguments or most of them were made in the dissenting opinion in the Errico case?

That might be one of the reasons that I am repeating them here Mr. Justice Stewart and —

Potter Stewart:

Well, it appears to me that was a dissenting opinion and as I have said before up here, I had a professor at law school that used to tell that dissenting opinions were subversive literature.

In closing, we might — we want to ask this Court to consider Errico in its limited fashion, construe it narrowly and we also would like to ask the Court that to rule at Section 241 (f) certainly does not apply to aliens posing as citizens to evade the complete immigration inspection process and as Mr. Justice Stewart stated in the descent in Errico, there’s nothing to indicate that Congress enacted this legislation to allow wholesale evasion of the immigration and nationality act or as a general reward for fraud, therefore its respectfully submitted that the judgment of the Court, the Second Circuit Court of Appeals should be affirmed.

Thank you very much.

Warren E. Burger:

Thank you Mrs. LaFontant, thank you Mr. Globman.

The case is submitted.

We’ll hear argument —