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
Facts of the case
Media for Rogers v. QuanAudio Transcription for Oral Argument - May 20, 1958 (Part 1) in Rogers v. Quan
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.