LOCATION:First Unitarian Church of Los Angeles
DOCKET NO.: 396
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit
CITATION: 357 US 193 (1958)
ARGUED: May 20, 1958
DECIDED: Jun 16, 1958
Audio Transcription for Oral Argument – May 20, 1958 (Part 2) in Rogers v. Quan
Solicitor General made for the first time in this Court.
It had been the position consistently of Immigration and Naturalization service that there was no power in the hands of the Attorney General to withhold the deportation of an alien to a country in which he would be physically prosecuted because he had no statutory power for it.
Today in this Court, he concedes that he can keep an alien in the United States and whether he’s physically in the United States, I put to decide for the moment, but he concedes that he does have the power to say it excluded aliens from deportation.
He says that he has it under the provisions of Section 212 (d) (5) of the statute, namely the parole provisions of the statute.
In his brief, he also calls attention to the fact that he may have it but he does not specifically and explicitly say he has it, but on page 26 at the footnote to the petitioner’s brief, the Solicitor General refers to Section 237 of the Immigration and Nationality Act which gives to the Attorney General the power to say the deportation of an excluded alien where it is practicable or proper.
And as a matter of fact, the Attorney General has drafted regulations which give the District Directors of Immigration and Naturalization service that authority.
So actually, this is not an enormous case at all at this point.
All it is as a — as a determination of what technical basis the Attorney General must seek out in order to justify withholding deportation of an excluded alien to a country in which he shall be physically persecuted.
That of course is nevertheless an important question, but we believe that it takes a great deal of the problem which Mr. Justice Frankfurter particularly has been concerned with out of this case if the Attorney General has the power.
I suggest to even further —
Why does he take it out of the case even narrow — he’d be strongly tempted not to have his hands tied?
Your Honor, I think that the fact that the — that the Government’s attorney has indicated that his policies may change if this Court renders a decision in favor of the petition — petitioner.
It’s an impermissible argument that he may make it but it’s an impermissible consideration for the Court that hold the kind of (Inaudible) sword over the Court.
I thought the — I thought one of the most important consideration in construing a statute is to contemplate the consequences, a one construction rather than another.
I think Your Honor is absolutely correct.
I believe that it maybe helpful to Your Honor if Your Honor will recall the argument that was made to this Court in the case of Tom Lee Shang which the counsel for the Government adverted to.
There, it was said that habeas corpus was the only remedy which an excluded alien could have enough declaratory judgment and if this Court decided adversely to the Government and granted the alien declaratory judgment as a remedy, it would have the effect of keeping all excluded aliens in detention at the threshold of United States that none of them would be released to — in the bounds of this country, because if they were released within the bounds of this country, they would have a privilege which they did not previously have, namely the right to bring a declaratory judgment action.
That argument did not deter this Court as I recall as unanimous opinion of this Court.
It certainly was not.
I beg your pardon sir.
It did not deter to the majority of this Court from holding a declaratory judgment action was available to an excluded alien.
The question is deterrent.
This isn’t a question of deterrent.
It’s a question of relevance of argument and an argument maybe irrelevant or tenures in one situation and power from another.
Well, I suggest with humility, Your Honor that it is an irrelevant argument because I suspect that no one will believe that the Attorney General will refuse to parole aliens into the United States merely because the possibility may arise that that alien, in some time in the future, may request to stay of deportation to a particular country upon the ground that if he is deported to that country, he will be subject to physical persecution.
Not if you state it?
Not as you stated in an individual case, but general tendency, general occurrence of it, legislation, general occurrence that’s brought on their heels of the most powerful considerations in the conduct of cabinet officers and another.
Well, it maybe Your Honor and it maybe that if this Court feels that the — a — a speculation as to the future conduct of the Attorney General is a relevant consideration, all that I can do is to submit for our part that it is speculative as to what the Attorney General looked to and that at — for our part, I suggest respectfully, that it does imply a proper consideration in the case.
Well, I believe that the matter can be disposed of upon much narrower grounds.
The most fundamental problem it seems to be with which the Court is concerned is the thrust which a determination that these aliens are within the United States for the purpose of the 243 (h) would have upon the historic and well settled distinctions between exclusion and deportation and upon the reading of an opinion based on that concept and upon granting the petitioner’s — upon granting the respondents upholding the decision below on the impact it may have upon historic decisions of the Ekiu decision and Ju Toy.
I believe that the suggestion that was made earlier in argument that the phrase in the United States with which we are concerned with here has been one which has been finally decided and actually decided by Courts in previous decision is an erroneous one.
As Mr. Justice Douglas indicated as regard to Kaplan against Tod, the specific question, two questions there were these, one, whether a person was dwelling in the United States so as to become a naturalized citizen.
Well, we do not contend that these petitioners here or I mean these respondents here are dwelling within the United States.
All they need to be for the purpose of this statute is in the United States.
Now, the second question in Kaplan against Tod was whether they were — and Mr. Sand pointed this out to the Court was whether they were found within United States in the violation of the immigrant authority.
That is verbatim from the Kaplan against Tod decision, and also whether they had entered the United States in violation of the immigrant authorities.
Well, no contention is made here that these aliens have entered the United States.
This Court has the problem of entry now before in the Bonetti case and I can see that the word entry is a word of art which must be construed within the meaning of the Immigration and Nationality Act, indeed it is defined in the definition section of the Act.
We do not contend that these aliens have entered in the United States.
We don’t contend either that they have been found in the United States in violation of the immigrant authorities.
As a matter of fact, they had been permitted to come into the United States with the expressed consent of the immigrant authorities.
So, whatever Kaplan v. Tod may hold, it does not — it does not determine a statutory construction, a definition, an interpretation of the phrase in this statute in the United States.
Now, we have to be concerned with the earlier decisions, Ekiu, Ju Toy and other later decisions let’s say among others.
Now, those questions Your Honor I believe are far more difficult, but they too are distinguishable from the ones here.
In the Ekiu case, the Court specifically held that an alien who had been removed from his vessel, but who was detained at a mission house had not landed in the United States.
And it was upon the basis of the immigration statute in effect in 1892 that such removal shall not constitute a landing that the Court held that the fact that the alien geographically was in a mission house in the State of Washington, Oregon did not placed her within the United States for the purposes of the Due Process Clause.
Now, that latter clause raises another — creates another problem.
I’m of course conscious to the fact that the Court is going to avoid constitutional considerations.
There are no constitutional considerations here.
It maybe one thing to hold that an alien is in the United States when he/she has been excluded for the purposes of the Due Process Clause, but it’s quite another thing to say that she is in the United States for the purposes of a very specific statute.
Only yesterday, this Court held in Perez against — the United States against Perez that in construing a question of venue, whether a seaman who had been amended in the United States, but not admitted to the United States, that distinction is important that an alien who had been — a seaman who had been landed in the United States could be prosecuted in any district where he had remained in this country.
The Court said the word remains permits no connotation other than continuing presence.
I suggest Your Honors that the word in the United States for the purposes of our argument, permits no connotation other than being in the United States that the distinction which the Government itself has recognized innumerably — innumerable times.
The case of Ju Singh for example which was before this Court once and was vacated because of mootness.
It was made moot because that alien and this is an anomalous situation, which I think the Court should recall, who had been excluded from the United States, as an alien who could not be permitted to be admitted to this country was paroled into the United States for the specific purpose of being naturalized as an American citizen and the case was mooted because being a United States citizen, he cannot be deported as an alien and certainly cannot be deported to China.
The Congress of the United States only last fall, in Public Law 85-316 in various amendments of the Immigration and Nationality Act provided that aliens who are paroled into the United States for the purposes of under the provisions of Section 212 (d) (5) of the law could be adopted by courts of competent jurisdiction provided they were orphans.
Now obviously, this Court is aware that in many States, you cannot be adopted as an orphan unless the Court has jurisdiction over the orphan himself and in order to have jurisdiction over the orphan himself, you must have a residence in the State of that Court’s jurisdiction.
So, the Congress of the United States has recognized that persons who had been paroled into the United States may be physically in the United States.
So I believe that the question is that narrow whether that naked narrow phrase in the United States in the — this particular statute gives the alien presence in this country for the sole purpose of being saved from deportation, not to any country.
He could be deported to Hong Kong we believe.
He could be deported to Formosa.
He could be deported to any other country in the world which would take him, but he could not be deported to a country in which he will be subject to physical persecution.
I believe that the Court approaches the issue in that light.
It can avoid the difficult problems which the Ekiu case and all the other decisions of this Court relating to the historic distinction between exclusion and deportation, it can avoid those problems and there’s no reason, I believe, that before this case with those questions.
Now, the second issue —
Was that — was your arguments extend to applying the statue to people in detention centers?
Well reluctantly, I must say Your Honor that we have a distinction between people who are in detention centers.
If the Court is going to say that people who are in detention centers or in the United States, I believe would have to disavow or distinguish language which appeared certainly recently in the Mitzi case, because the Court has held and more than that, the statute itself has held, provides that persons who have been removed from their ships and who are confined to detention centers shall not be considered to have landed in the United States and I would have to concede that a person who has not landed in the United States under the historic decisions of this Court is not within the United States.
As to our case, we do not have that situation.
These aliens are not in detention centers.
They have been paroled into the United States and I should note in passing that they have not been paroled merely to the City of New York or to San Francisco but they live wherever they will in the country.
There is no requirement upon them as to where they shall live, only that they shall give notice as to where they move.
I must say that if we’re going to sit here as party under the tree and does follow my own strong feeling, that strong feeling that goes to the root as much of this strictly.
If I follow those feelings, I wouldn’t be very comfortable to say that a fellow who is paroled is within the merciful statute, but the people in the detention aren’t because of that what you call as those supple distinction.
You — if we are to discard all, the whole pushing momentum of immigration laws in construction not for discarding it, not making these distinctions.
Well, I couldn’t agree more with Your Honor and as a matter of fact, Mr. Justice Clark, I noticed, observed in his footnote in the (Inaudible) case that the Ekiu decision should put it that strongly, but that the distinctions between deportation and exclusion are not as strong as they were when the Ekiu case was decided in 1892 and if Mr. Justice Frankfurter appeals and held to the start — to discard those distinctions —
I wouldn’t dream of discarding because I have a limited function and Congress has another function.
The fact that I don’t like statutes and I don’t like constructions by the Attorney General and I don’t like actions by many branch of the Government doesn’t set me above this.
Well, there is respectable authority at the time of those original decisions.
There were strong dissenting opinions which indicated —
Well, I know about dissenting opinions are not the decisions of this Court.
In any event, for purposes of our particular case, an alien who is in detention is — is not — we’re not concerned with him.
This alien has —
Well you — but you must be concerned if you ask this Court to construe a statute and to see its implications and to see what kind of harming there is or isn’t with the past.
You can’t pick and choose and ask this Court to construe the statute just to take care of your own particular case.
I do not call that law making.
Well, I ask this Court only to look at the statute in question.
Now, the statute in question at Section 233 provides that an alien who has been removed from his vessel upon which he arrived in the United States and is in detention at this port of entry cannot be considered to have landed in the United States.
This Court has consistently upheld that kind of statute against the challenge that it violated in certain instances, due process rights which persons have in this country.
Now, the Court wishes to adhere to that and I’m not asking today that the Court overrule that distinction.
But if the Court wishes to adhere to that, it does not affect the aliens in this case.
It does not affect Jimmy Kuan or the other aliens because they are not in detention.
The Attorney General has specifically paroled him into the United States.
Now, I come to another question, to the same question, but to another aspect of it in order to establish that what the Government contends is not matched by its proof.
The Government says in Section 212 (d) (5) and it said this I believe in (Inaudible), “It does not change his status in the United States.”
All that Section 212 (d) (5) says, if it please the Court, is that such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole have in the opinion of the Attorney General been served, the alien shall forthwith return or be returned from the custody from which he has — was paroled, and thereafter, his case shall be continued to be dealt with in the same manner as that of any other applicant for admission.
The significant word in that clause is admission to the United States.
Now, the Government has not discussed that at all, either in its brief or in its oral argument.
Admission is a — is a precise word of art in the statute because it is defined both in the definitions that at Section 211 of the statute, the immigration law provides specifically no immigrant shall be admitted into the United States unless at the time of his applications for admission, he possesses certain requisites, a valid, unexpired immigration visa and various other things.
All the 212 (d) (5) therefore says is that an alien who has been paroled in has not been admitted to the United States.
It in no sense provides that an alien who has been paroled into this country is not in this — in this United States.
Further in this, I believe it’s significant to point out that the Government recounts the legislative history and what it asks for in obtaining the — the enactment of the Immigration and Nationality Act.
What it asked for and it’s set forth in its reply brief and it said — is that general power to parole shall be granted apart from the emergent medical reasons but for any reasons in the public interest or any emergent reasons.
And it provided that whenever the Attorney General into his discretion concludes the deportation of any alien paroled under this subsection is practicable or proper, that the alien shall be immediately taken into custody under the outstanding order of exclusion and deportation and shall be deported without further hearing in the same manner as other aliens who were excluded from the United States.
Now, that is not at all what Congress enacted.
It not only did not enact this in Section 237, but at Section 212 (d) (5), they changed what it had originally.
And its original version at Senate Bill 716, it provided that after parole had been revoked that the alien shall be deported in the same manner as other aliens who were excluded from the United States.
What it provided for was that they shall continue to be dealt with in the same manner as any other applicant for admission to the United States.
Now there again, that clause is not equivalent to the statement that his status shall be considered as one who is a — as an excluded alien who shall be deported in the United States immediately without a hearing.
I believe that is significant because the crux of our argument is that — the crux of the Government’s argument adversely is this, the Government says that Section 237 is exclusive as to excluded alien that no other provisions of the statute cover excluded aliens, that Section 243 is exclusive in dealing with aliens who are expelled from the United States.
We say this cannot be so.
We say it cannot be so first because 237 provides only for the deportation of aliens under this Act and it is conceded that the aliens here are not deported under this Act.
Secondly, we say that it provides only for the deportation of the aliens who are deported immediately.
Now, we don’t know how the word “immediately” shall be defined, but we do know that the significance of the word — we believe that the significance of the word immediate is that when deportation is immediate, the alien can be returned on the ship once he arrive and to the country once he came.
Now obviously, if an alien is deported as in this case, six years later, he cannot be deported on the ship once he arrived, nor can he very often and if we are to in construe the statutes to cover all situations, very often he cannot be deported to the country once he came.
I’ll discuss for a moment the country of Hong Kong, not the country, but the British Crown Colony of Hong Kong.
I believe this Court can take judicial notice of the fact that there are some 400,000 Chinese in Hong Kong who don’t have permanent residence there.
They’re living on roof tops.
They’re living in sewers.
It’s been a problem which has been concerning United Nations for some years now.
It has and it has happened.
The Government has indicated its annual reports that they couldn’t get travel documents to return Chinese to Hong Kong because the city is just over crowded with refugees.
And it’s for that reason that Hong Kong is willing only to give transit visas so that aliens can be returned to China.
They do not want anymore aliens in Hong Kong, whether they’re excluded aliens from the United States or whether they are deported aliens from the United States.
The Court can take judicial notice of the fact as to Kaplan against Tod that when the little girl Kaplan came here, she came here from Tsarist, Russia.
Presumably, she could be — or Poland.
She could return to that country.
But eight years later when the Government sought to return her, Tsarist, Russia had become Bolshevik, Russia who will not receive aliens.
Poland perhaps might have received them, but the political status of the country’s changed.
In the Mitzi case with which this Court has a — I’m sure a deep recollection.
Mitzi was an alien who was excluded from this — from the United States, who came to this country from France.
France wouldn’t take him.
Well, the Government as it — as it appears from opinion of this Court sought to return him not only to France which wouldn’t take him, but they tried to get Hungary to take him back on a theory that he was a citizen of Hungary.
They tried to get Great Britain where he had not lived ever, except in Gibraltar where he claimed to have been born.
They tried to get Great Britain to take him back on the theory that he was a national of Great Britain.
In this very case, or in Leng Ma May, they have sought to get China to take him back even though it appears on this record that the aliens have come from Hong Kong.
So, it is clear that the problems that the Government has been confronted with in — in connection with deporting excluded aliens and expellable aliens do not relate only to aliens who are residents of the United States and who are being expelled from the United States under an expulsion process, but they are concerned just as much with excluded aliens who may be stuck at Ellis Island or maybe stuck in the ports of entry in San Francisco or other places of the country who may have to stay here as Mitzi did for three or four years until finally, the Government in its grace decided to let him into this country.
Now, after the decision of this Court, so the specific legislative problems, the specific policy considerations that the Government has talked about relates just as much to excluded aliens as they do it to expellable aliens.
And that, we submit if it pleases the Court is the reason that in 1950, the — the Congress of the United States expanded the range of countries.
Now, there is nothing in the Government’s recount of the legislative history which indicates that it shall not go — be applied to excluded aliens.
I say that because of this, the first part of the 1950 Act, the Hobbs Bill was designed to tighten up controls over deported — deportable subversives in the United States who are residents of this country.
While that Act was under consideration, it was — in answer to Mr. Justice Black’s question.
It was Senator Frank P. Graham of North Carolina who proposed in committee the provision with regard to physical persecution.
There is no suggestion in those committee hearings and unfortunately, they have not been printed, but there was no suggestion in those committee hearings that it applied only to expellable aliens rather than to excluded aliens.
But it was after this Bill which relate it true enough to aliens resident of the United States that the Bill was amended to provide that no alien shall be deported — who is deportable under this chapter shall be deported to a country in which he will be subject to physical persecution.
Well this chapter, as the Court of Appeals in this Circuit held in the Chong case, included both the excluded aliens and aliens who are being expelled.
So, it was clear that the original law could be held and was held by the District of Columbia Circuit in the decision which the Government did not ask to have reviewed by this Court, applied both to excluded aliens and to aliens being expelled.
May I go back to your reference to the legislative history.
You said something about a bill, the original bill that Senator Graham termed as book of resident aliens, where is that from?
No, Your Honor.
He did not speak of resident aliens.
You — you used that phrase.
The Bill and the Government has discussed it at long length on page 16 and 17 of its brief.
It refers to aliens unlawfully in the United States.
I’m not talking about that.
Didn’t you use the word resident aliens?
Yes, that the first — that the Hobbs Bill was — was devoted to the main portions of it.
The substance of it was devoted to tightening up supervision of aliens who were in the United States subject to expulsion process, required that they shall at the writ to which the decision overruled said that they should give reports as to where they are in the United States in the newspapers they read and so on.
That was the original purpose of the Hobbs Bill H.R. 10.
Well that — and that related to aliens who are in the United States subject to expulsion from this country.
Well now, it was Senator Graham’s amendment to that Bill?
Senator Graham’s proposal was included in — because that was the Internal Security Act which is rather an omnibus bill that included many things.
But — but his amendment was — was in conjunction with the Hobbs Bill, to those and his proposal was related to the Hobbs Bill, is that right?
Yes, but as you said, ultimately enacted — enacted in relation to Internal Security Act which was on the omnibus proposal —
But that was a separate chapter as I remember of the Internal Security.
Yes, Your Honor, it was a separate chapter.
But it provided and this appears on page 17 of the Government’s brief.
It is further provided that no alien, the rest of that relates to deportable aliens.
It says that no alien shall be deported to any country in which the Attorney General shall punish and be subject to physical persecution.
Hugo L. Black:
I noticed in the opinion of Judge (Inaudible) in the Chong case that this footnote to this effect (Inaudible) says that 1964 — 1950, amending 156 here as it referred to the amendment number 20.
It was enacted after the administrative determination that these cases had been reached.Did that have any connection to this, why this amendment was put in — after the Board —
I don’t know for certain.
Hugo L. Black:
— they are designed to admit these people after they had declined to — to consider and give them consideration about the expense deported to another country.
The Court of Appeals says that —
I don’t know for certain, Your Honor, because there isn’t any legislative history, I do know the service disagreed with the Chong decision even after it was —
Hugo L. Black:
They argued at that time that the — the man who was out on bond that these people are, did not get the advantage of — of being kept here.
That’s right, Your Honor.
Hugo L. Black:
And the Court held to the contrary putting which interest is on the words needed.
That’s correct, sir.
Now, one additional point which I think is very significant is this — that the language deportable alien, the Government interprets to mean only an alien who is expelled from the United States.
Now, there is no warrant for that at all in the legislative history of the Immigration and Nationality Act or in any other because an alien who is excluded from the United States is just as deportable as an alien who’s expelled from the United States.
Section 237 of the Act referring to excluded aliens refers to them precisely as being deportable and the Mitzi case points up the fact that these aliens who are excluded are also deportable.