Tak Shan Fong v. United States

PETITIONER: Tak Shan Fong
RESPONDENT: United States
LOCATION: S.S. Guadalupe

DOCKET NO.: 110
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 359 US 102 (1959)
ARGUED: Feb 24, 1959
DECIDED: Mar 23, 1959

Facts of the case

Question

Media for Tak Shan Fong v. United States

Audio Transcription for Oral Argument - February 24, 1959 (Part 1) in Tak Shan Fong v. United States

Audio Transcription for Oral Argument - February 24, 1959 (Part 2) in Tak Shan Fong v. United States

Earl Warren:

Mr. Mahoney, you may proceed.

William B. Mahoney:

Thank you, Your Honor.

As I stated, Your Honor, the Boubaris case had reached the Circuit Court during the pendency of the appeal in this particular matter.

And in that particular case, Judges Lumbard and Waterman reversed the lower court that had held and held at that particular time that the provision in Section 1440a relative to lawful entry and the physical presence in the United States for a period of a year before induction into the armed services must be consecutive.

In other words, no breach could occur within the lawful entry and the physical presence of a year in the United States.

Potter Stewart:

(Inaudible) Judges Lumbard and Waterman with Judge Hincks --

William B. Mahoney:

Hincks --

Potter Stewart:

-- dissenting.

William B. Mahoney:

And Judge Hincks dissented.

And then when, as I said, that case was decided while this one was coming up on appeal and when it came up on appeal, again Justices Lumbard and Waterman sat, but Justice Moore sat in place of Justice Hincks on the Tak Shan Fong case.

And this, of course, Judge Murphy was unanimously reversed on the opinion or rather the decision in U.S. against Boubaris.

Now, in order to come to some analyzation of this particular statute, it would seem to me as though with the Government conceding practically everything in the case, namely, that Fong was physically present in the United States for a period of year prior to his induction into the service of the United States, that he served in the United States Army for a period of two years, that he was honorably discharged, and that he had made a lawful entry into the United States in August of 1951.

We come right down to the one question that the Government seems to base everything on and that is that the lawful entry and the physical presence was not continuous.

That's the only claim that they seem to make.

And may I say to the Court here that the statute doesn't say that the lawful entry and the physical presence for a year must be consecutive.

It -- it would seem to me as though that circuit court just wrote that particular provision into Section 1440a.

Now, resort to the -- the legislative history of this particular situation reveals this that when it was before the House Committee, Congressman Graham on the Committee on the Judiciary was asked as to who was excluded under the bill.

And his statement was, and this is taken from the first session of the House of Representatives for the 83rd Congress, subversives are excluded, a conscientious objector who performs no military duties or refuses to wear the uniform are excluded or a person discharged from service under oath other than honorable conditions are excluded or pursuant to an application for discharge made by him on the ground that he is an alien.

Now, that seemed to be the thinking of the members of the house as to who were excluded under this particular bill, although there was phraseology that its application was limited to those who were lawfully entered into the United States without designating any time element whatsoever.

However, when this bill was pending before the House, the Attorney General Rogers sent a letter to the House in which he tried to have incorporated the provisions of Section 1429 of 8 United States Code into the bill itself.

And it's under 1429, you'll recall, that the burden rests upon the applicant to show at the time that he applies for naturalization that he was lawfully admitted to the United States.

And the letters, just a short part of it, was to the effect since the bill would require the lawful admission of a person as a prerequisite to eligibility thereunder.

There would appear to be no reason why such a person should not be required to bear the burden of proving such lawful admission to the same extent as is required of petitioners for naturalization generally.

Now, that was definitely ignored by the House.

And in addition to it, it was definitely ignored by the Senate who had the same letter before it and that provision or anything bearing any comparability to it was enacted into the statute itself.

And it would seem that in view of the fact that he -- the Attorney General tried to continue the burden upon an applicant to show that his lawful entry or rather that his entry into the United States was lawful.

And when you find the House reacting to the suggestion of an Attorney General in this particular nature while lawful admission as an immigrant or a non-immigrant is held to be a prerequisite to naturalization, the Committee is of the opinion that the technicalities involved in connection with the continuance of such status at the time of entering the Armed Forces would place an unwarranted burden on servicemen and practically nullify the purpose of the legislation.

And as to the Senate itself, they merely stated that the proposal that the serviceman be required to have a lawful status at the time of entering the Armed Forces was not included in the bill, so much for whatever assistance that we might get from the legislative history behind this particular bill.

But I could point out to the Court at this particular time that if Congress were of the mind that the Government attempts at the present time to state what the thought of Congress was at the time, it would seem to me as though they could have legislated as they did relative to Section 392 (b) of the same Title 8 of the United States Code.

And you'll recall, this is found on page 9 of the petitioner's brief, that under those circumstances where they were endeavoring to confer citizenship on alien veterans relative to World War I, the Court will find that an alien in this particular Section 392 (b), an alien veteran is entitled at any time to naturalization upon the same terms and conditions except one that such alien shall be required to prove that immediately preceding the date of his petition, he has resided continuously within United States for at least two years in pursuance of a legal admission for permanent residence.