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

  • Oral Argument – February 24, 1959 (Part 1)
  • 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.

    William B. Mahoney:

    Now, I would point out to the Court that the word “immediately” in there is significant and “legal admission” is significant and if Congress were of the trend of thinking that the Government attempts to suggest at the present time, it would seem to me as though they could have readily enacted some specific provision in here showing that such was their intention, namely, that lawful entry and physical presence for a year had to be consecutive.

    Charles E. Whittaker:

    Do you think Congress (Inaudible)

    William B. Mahoney:

    I certainly do, Your Honor, because you can appreciate that there are a number of individuals who are in the United States and have been lawfully admitted but not for permanent residence.

    They put those people of permanent residence in one category.

    And I think in this order that they had mind that any of those individuals who were in the United States and had been in lawfully at any time as long as they did what was necessary to be done under Section 1440a, namely, that they lent their services whether it was mental, moral, physical to the Armed Forces of the United States during the Korean conflict.We held this out to those people that there would be a reward attached to the services that they render.

    Charles E. Whittaker:

    Could I ask you one question?

    (Inaudible)

    William B. Mahoney:

    I would think that it would be as broad as that, yes, Your Honor.

    Charles E. Whittaker:

    (Inaudible)

    William B. Mahoney:

    I can’t see that under the circumstances that are contained in this statute and I am not just limiting it to the phraseology that you’ve pointed out to me but to the statute in toto that I can’t see under those circumstances where there would be any difference, as long as he came into the country legally at some time prior to the physical presence in the United States for a period of a year and that he had served beyond 90 days which is the minimum requirement of the statute and that he was honorable discharged.

    I just don’t go for and I can’t conceive that a court would accept a solution of a situation of this kind where we hold out these rewards or anticipated rewards to aliens with some subtle variations to them that spring up after we’ve taken from the individual that which they were capable of giving under the Selective Service Act.

    That just doesn’t seem to savvy with the policy of the United States.And that’s why I say that the time element would make no difference in this particular matter.

    Felix Frankfurter:

    Well, one thing is clear that mere service in the army and honorable discharge, that alone isn’t sufficient to be — get naturalization.

    That’s clear, isn’t it?

    William B. Mahoney:

    That alone is not sufficient.

    Felix Frankfurter:

    Isn’t that true?

    William B. Mahoney:

    I think you’re quite right.

    Felix Frankfurter:

    So that Congress did want something in addition to the great service that a man does by joining the army when he can — thought of it and serving it faithfully and honorably.

    William B. Mahoney:

    And they wanted physical presence in the United States for a period of one year prior to his induction or his — and I think, for the opportunity of ascertaining from his record as to whether or not —

    Felix Frankfurter:

    I’m merely suggesting that — that citizenship, the right to citizenship isn’t — isn’t wholly correct to say but that’s the reward for serving Uncle Sam.

    William B. Mahoney:

    Oh, no, I say standing alone, Your Honor, I definitely would accede to that query.

    Felix Frankfurter:

    (Voice Overlap) but I’m — I’m pointing out that there isn’t that equation (Inaudible)

    William B. Mahoney:

    Not one bit.

    Now, in addition to what I’ve just stated to the Court here, relative to the legislative history, I would merely call to the Court’s attention that in cases of this kind where there is an ambiguity and certainty, there is an ambiguity in Section 1440a, and I think quite a substantial one, it would seem to me that the trend of thinking of this particular Court has been to resolve that ambiguity in favor of lenity.

    And the Court will recall that in Bell against the United States that that was a principle who has stated and also it was recently reiterated in the matter of Bonetti against Rogers in this particular Court.

    But another factor that I think should be taken into consideration in this particular matter is this factor.

    You will recall what I said that in September 1953, the exclusion section of the Immigration Department knew of the fact that this man was in the military service of the United States.

    In January of 1954 with the order of deportation when they suspended the delivery bond, they knew that he was in the Armed Forces of the United States.

    They continued to allow him to serve for 19 months after the verification of September 1953, they allowed him to serve 16 months after the deportation order was served and then they allowed him to continue in the United States from May of 1955 until December of 1955 when he filed his petition under Section 1448 of Title 8 of the United States Code.

    In the — in the interim they just allowed everything to abate.

    Felix Frankfurter:

    Mr. Mahoney.

    William B. Mahoney:

    Yes, Your Honor.

    Felix Frankfurter:

    May I suggest to you that if none of these facts are true, that we — we may have cases where not one of those facts that you’ve just recited happened or took place, and yet, the problem would be exactly the same.

    You — you — these facts indicate hardship and — are appealing.

    But they seem to me just as irrelevant as the — to the issue as Mr. Justice Whittaker’s hard case put to you of a child coming here — firstly, coming here as a child and then leaving and then smuggling himself in and then serving, isn’t that true?

    You said quite correctly.

    From my point of view, it makes no difference from yours.

    William B. Mahoney:

    I don’t think it makes any difference.

    Felix Frankfurter:

    Suppose these — these merciful elements that you just narrated are equally indifferent to the problem, aren’t they?

    William B. Mahoney:

    I think that they only sort of —

    Felix Frankfurter:

    It’s just to point up — point up the hardship.

    William B. Mahoney:

    That is a point up of the hardship and I think that they have some relevance as to the ambiguity which I assert is contained in this particular statute.

    Felix Frankfurter:

    Well, but Justice Whittaker’s case also points up the — the [Laughs] non-appeal in the other case.

    William B. Mahoney:

    That’s very true, I merely like to say this, Your Honors, and just cite this last factor to you, and this is on the proposition that when an ambiguity is existent under those circumstances that ambiguity is always resolved in favor of lenity.

    We had a similar — somewhat of a similar situation in Fong Haw Tan against Phelan in 333 U.S. 6.

    And in that particular situation with an opinion by Justice Douglas, he said that we resolve the doubts in favor of that construction because deportation is a drastic measure and at times, the equivalent of banishment or exile.

    It is the forfeiture for misconduct of a residence in this country, that was somewhat dissimilar from our factual background but such forfeiture is a penalty.

    And I say that what was read into this particular Boubaris case in the first instance and carried over into Tak Shan Fong was strictly an infliction of a penalty upon Tak Shan Fong in writing into Section 1440 (a), the fact that lawful entry and physical presence in the United States must be immediately consecutive.

    And I ask the Court, for those reasons, to reverse the circuit court and reinstate judge Murphy’s order.

    Earl Warren:

    Mr. Davis.

    John F . Davis:

    Mr. Chief Justice, may the Court please.

    Felix Frankfurter:

    Before you launch into your argument, I haven’t looked at the brief, you may have told me there the Act.

    Do we know that the problem is approximately how many potential cases of this sort are involved?

    John F . Davis:

    No, we don’t —

    Felix Frankfurter:

    I don’t mean to suggest that would move one way or the other.

    John F . Davis:

    No, I can’t tell you how many cases are involved.

    The statute tells —

    Felix Frankfurter:

    Potentially I said.

    John F . Davis:

    The statute itself has expired.

    The applications had been made before December 1955.

    John F . Davis:

    We do know that under this statute, about 40,000 aliens were naturalized.

    Felix Frankfurter:

    Had been already.

    John F . Davis:

    Had been.

    Well, none can be now.

    I mean the applications had to be filed.

    Felix Frankfurter:

    Well, it may not have come up here.

    So —

    John F . Davis:

    Well, yes, I would — I wouldn’t think that we would — there’d be any volume of litigation in this matter now.

    I would think it was — there’s enough time that’s passed since the application from —

    Felix Frankfurter:

    Well, this is a few cases, is it?

    John F . Davis:

    So far as I know —

    Felix Frankfurter:

    These — these two cases or —

    John F . Davis:

    There — there has been — in New York, there’s been a series of these cases under this statute.

    I — I know of no others.

    I — I don’t know whether there’d be any or not.

    There might be some applications to — to terminate naturalization on — on the ground that it was improperly granted but I don’t know of any.

    Felix Frankfurter:

    You mean go back on the 40,000 so that non-jurisdiction —

    John F . Davis:

    Yes.

    Felix Frankfurter:

    — there is no jurisdiction or something.

    John F . Davis:

    I — but I — I think it is not a large problem as far as volume of — of (Voice Overlap) —

    Felix Frankfurter:

    They’re raising to the appellant.

    John F . Davis:

    Pardon?

    Felix Frankfurter:

    They’re raising to the petitioner.

    John F . Davis:

    It’s very important to the fellow.

    And we must remember in these cases that we’re dealing not only with 1440 (a) of the — of Title 8, but we are dealing with an individual, an individual Chinese who — whose interests are very really at stake in this case.

    But we also must realize that Congress has set a policy on what people can come in, and we shouldn’t necessarily give — if — if the man comes in illegally, we are not really doing any good by — by giving him rights, which we don’t give to people who wait patiently for their term to come in and wait under the quarter.

    So —

    Felix Frankfurter:

    I didn’t mean to suggest the — the legal relevance, just want to know what the scale of the problem was.

    Tom C. Clark:

    (Inaudible) have any idea of applying the facts of the 40,000?

    John F . Davis:

    Oh, I have no — I have no idea that any of them are wrong.

    John F . Davis:

    I mean as far as I know, those are — those are properly granted.

    I didn’t — I didn’t mean that they would be thrown out on this case.I don’t say that there were 40,000 people who came in illegally and were naturalized.

    I’m — I’m just merely saying that there were 40,000 aliens.

    And undoubtedly, only a handful of cases, if any, that there — where we would claim that there was anything improper about the grant.

    Tom C. Clark:

    You don’t know of any?

    John F . Davis:

    I don’t — none.

    Tom C. Clark:

    (Inaudible)

    John F . Davis:

    I know of none.

    That’s the total number of cases of naturalization under the statute.

    On the facts, I think it first should be made clear that the entry in Honolulu was purely a temporary grant to a seaman to come on shore while his ship was in port.

    There was no formal approval of his character, no right to stay, merely a right to land, to walk around in — in Honolulu while the ship was in port.

    He had overstayed for 29 days leave (Inaudible)

    John F . Davis:

    I think we’d have a much more difficult case under this statute, then there would have been a legal entry and a physical presence in the term of the statute which would have been connected.

    And it would be difficult to say that he hadn’t fulfilled the terms of the statute, although the sponsors of the statute stated to the — to the Congress that he must be here lawfully, not only that he would have to be here physically but here lawfully.

    But under the words of the statute as enacted, if he came in lawfully and physically stayed after that lawful, overstayed his leave, in other words, we’d have a much more difficult case.

    What happened in this case, however, was that he left the country entirely and his landing at Newport News, had no connection whatsoever with the coming ashore in Honolulu.

    Potter Stewart:

    This question, Mr. Davis, is there — that — for the purposes of this statute, Honolulu or Hawaii, the Hawaiian Islands are the United States (Voice Overlap) —

    John F . Davis:

    No, that — that would be an entry into the United States under the statute.

    There isn’t really, I think, any dispute between Mr. Mahoney and myself, any dispute which has any legal significance as to the terms of his landing at Newport News.

    Mr. Mahoney claims that the alien had permission from an official, and this is based on his testimony in the immigration proceeding, he had permission from an officer on the ship to land, and that taking this as permission he came ashore and went to New York.

    This would not make his entry legal.

    He had no landing permit from the immigration people.

    He had no other permit from the immigration people.

    And if we accept what Mr. Mahoney says in full, his entry was still without — outside of the law.

    It may have to do with his — based whether or not he was trying to stay here, but it had nothing to do with whether or not he legally came into the country.

    Charles E. Whittaker:

    (Inaudible)

    John F . Davis:

    He is given — he is given an actual piece of paper, a landing permit which is given by the immigration authorities who go on board the ship when it comes in.

    And unless he has this landing permit, he is not — he — he has no right to come ashore at all.

    He has no right to leave the ship.

    Now, this landing permit is given by the immigration authorities to bona fide seaman.

    John F . Davis:

    It’s part of the part — it is considered part of the policy of the immigration law that — that these people should be permitted to get ashore and stretch their legs if they are bona fide seaman and if you believe that they are going to get back on the vessel and sail when it sails.

    Actually, they imposed quite a penalty on the ship when they don’t return to it, so they try to get the — the owners of the ship to help enforce the law.

    But if the man is a bona fide seaman and they have no reason to believe that he is going to do damage in the United States, this little — the man at the dock will give the seaman this landing permit.

    Charles E. Whittaker:

    (Inaudible)

    John F . Davis:

    It has been so held that it is an entry.

    It generally comes up in the case of a man overstaying his leave and the question is does he enter illegally and it’s been held he doesn’t enter illegally but he overstays his leave and can be thrown out on that ground.

    Now, historically, Congress has, for a long time, given special privileges with respect to naturalization to aliens who have served in the — in the Armed Forces.

    And how much benefit they have given has differed from time to time.

    During the civil war, they — in — I think in 1862, the first of these statutes was passed which cut down the period of required residence from five years to one year.

    That was the only — the benefit that was given.

    They gave privileges for expediting naturalization in World War I and again in World War II.

    And there are several reasons, and I think it’s important to — to understand these reasons for giving this right which is largely a right to expedite naturalization.

    One of the reasons is that, and this is particularly applicable when — when soldiers are going overseas, that if a — American member of the Armed Forces is captured overseas, it’s particularly important that that man be a citizen of the United States so that he will be entitled to all of the — the rights and the protections of being a citizen, so — so to speak, of the United States.

    A second reason that they expedite naturalization is in order to make available to the Armed Forces in — as officers as well as anything else, people who would otherwise be aliens.

    You sometimes get a situation where you have, and we had it in World War II, where you have people who had military training and could be useful to the Government in — in — as officers, but in order to be an officer, one must be a citizen of the United States.

    This is a second reason referred to by Congress for expediting naturalization.

    And the third reason is, of course, to add another incentive to people being — joining the Armed Force.

    It’s a — it’s an advantage which they get and it — it aids in recruitment, it gives them a benefit for — for service which they have performed for the United States.

    And that is the — that is the background which Congress considered this Act in 1953.

    They had tried to pass an act in 1952 but there was a difference between the House and the Senate as to the terms of the Act.

    The House had wanted to grant the — the privilege of naturalization to those who had come in temporarily and had joined the Armed Forces, while the Senate, largely on the — on the pressure from Senator McCarran felt that the man would have had to have been admitted for permanent residence before he should be given the privilege of the expeditious naturalization.

    Because of this difference, the legislation failed in 1952.

    This was a serious thing because at this time, the conflict in Korea was going on.

    We had soldiers there.

    And in 1953, it became apparent that it was necessary for the two houses to get together and they did pass this bill, which we have before us and which is set forth at page 2 of our brief.

    And it does grant the right of expeditious naturalization not only to those who have been lawfully admitted for permanent residence but it also granted the right to those who had been lawfully admitted under any circumstances, provided they spent — were physically present for one year at the time that they entered the Armed Forces.

    This relaxed the existing immigration law which required one that there’d be admission for permanent residence and two that there’d be a five-year resident — five-year residence.

    In both of these respects, it was relaxed by this new law.

    Now, we believe that a reasonable construction of this statute means that there must be a relationship, that there was intended to be a relationship between the lawful admission and the physical presence.

    We base this on two — on three — on three factors, one, the natural reading of the — of the statute and the structure of — of the entire Naturalization Act and two, on the legislative history and three, on the decision of this Court in the Bonetti case.

    John F . Davis:

    If we look at the words of the statute alone, we find that there are stated in conjunction, the two conditions having been lawfully admitted to the United States and having been physically present within the United States for a single period of at least one year.

    It seems to us that those two terms are reasonably read conjunctively.

    And this is particularly so when it appears that Congress could have had no — there is no apparent purpose in giving any recognition to a lawful admission for temporary — temporary admission only which has been passed.

    At no place in the present immigration law, not so far as I have been able to find in any of the past immigration laws, is any status given because of the fact that a person has been lawfully admitted for temporary period and then left.

    I mean if he leaves, he gives up whatever privileges he has.

    And I find no place anywhere in the law where Congress has said that this gives him any advantage and indeed, there is no reason why it should.

    And —

    Felix Frankfurter:

    Mr. Davis, may I ask you about the case put by Mr. Justice Whittaker.

    A kid is brought in by his alien parents and they then — and they stay here two years, the family stays here two years, then they go back for a month or two (Inaudible) go back.

    Now, and then he comes here unlawfully himself, stays less than a year or comes here lawfully and stays less than a year, does the — does the juvenile — does the minority here comes?

    What about that?

    I can follow your argument that the — that the lawful entry and a — and a year’s physical present conditions for getting naturalization should conjoin, that doesn’t make much sense in the case but I put — drawing it from Justice Whittaker.

    John F . Davis:

    What — I — I think some light is given on that by the reason for putting in the one year physical presence which would indicate that it had to be a year after the lawful entry rather than a year —

    Felix Frankfurter:

    But — but not — no connection with the — that the year can be wholly unrelated to the subsequent service in the army.

    John F . Davis:

    Well, no, I think not.

    I think the year has to be —

    Felix Frankfurter:

    Immediately preceding the service?

    John F . Davis:

    Well, the — the term of the statute is — and having been physically present within the United States for a single period of at least one year at the time of entering the Armed Forces.

    Felix Frankfurter:

    Well, if I was here, as I was from, what, 1894 and 1895 and then my parents show and go back to the Vienna, I would have been here a year —

    John F . Davis:

    At the time of entering the service?

    Felix Frankfurter:

    What?

    John F . Davis:

    At the time of entering the service?

    You would have been here a year —

    Felix Frankfurter:

    At the time of entering, sure.

    John F . Davis:

    Now, there is one —

    Felix Frankfurter:

    Not — not immediately preceding the service.

    John F . Davis:

    There is — there is one case which — which puts such a construction on this, one District Court case.

    I suggest, however, that what Congress put in the year period because of a term in the Selective Service Act which says that an alien who was only temporarily resident here maybe called on for service if he is physically present here for a year.

    If an — if an alien is here —

    Felix Frankfurter:

    At anytime.

    John F . Davis:

    Well, I think it — I think this means at the time he is called on for service.

    Felix Frankfurter:

    That is the year must have — must have been at least a year at the moment that he is called out, is that right?

    John F . Davis:

    I think that is right, although I think that the Armed — that the Selective Service Act doesn’t say a single period and it’s possible that under the Selective — this don’t exactly match.

    Under the Selective Service Act, it may be that it could be interrupted by a trip back home, whereas this is a single period.But that’s — the Senate — the Senate which put this one year physical presence into the bill said they did this in order to have this Act working with the Selective Service Act.

    And it seems to me that means that it should be year at the time of induction.

    Otherwise, you don’t get this interest which the alien has in here.

    He is — he is only a visitor.

    He hasn’t got — there isn’t any reason to call upon him, no relationship to the country which would lead you to call upon him to — to go into the armed services.

    Felix Frankfurter:

    I’m — I feel in — clouding my own mind whether you say that the statute required that when he called out, he should have been continuously at least for a year preceding the call up been here rather than allowing a hiatus between the year plus — he may have been here after the call up.

    John F . Davis:

    Now, I think he —

    Felix Frankfurter:

    You say there must be continuity there, is that right?

    John F . Davis:

    I think that that is not — we have in fact cases only useful for analysis on our case.

    It’s not our case, of course.

    Felix Frankfurter:

    No, no, no.

    John F . Davis:

    But I would say that he had to be here one year just preceding his induction.

    That’s why I would read the statute (Voice Overlap) —

    Felix Frankfurter:

    No break in the time period?

    John F . Davis:

    That’s right.

    Felix Frankfurter:

    All right.

    I understand.

    John F . Davis:

    In addition to the — to the structure and the language of the Act, the Congressman who was sponsoring the Act in the House, Chairman of the — of the House Committee on inquiry from Congressman Walter specifically stated that this bill was supposed to grant citizenship to those who were lawfully in the United States.

    This seems to me to — to give support to the — to the — what I would say was the natural reading of the — of the —

    Felix Frankfurter:

    Have you printed that statement of (Inaudible)

    John F . Davis:

    Yes, that appears in —

    Felix Frankfurter:

    (Inaudible)

    John F . Davis:

    — of page 14.

    Congressman Walter, “Is this not the bill that is identical with the law as it existed during the war with the exception that it applied only to aliens who are legally and lawfully in the United States?”

    And Congressman Graham, who is the chairman of the Committee replied, I am reading from Page 14, “That is a correct statement.”

    Felix Frankfurter:

    At the time of the policy, it makes me so suspicious that a great weight be attached to this (Inaudible) interchanges.

    John F . Davis:

    That — I — I agree that if we were going to have to try to — to try to change the language of the statute by what was said, but this indicates rather a — a feeling on the part and it’s the same thing — it’s true in the Senate that they weren’t doing anything as violent as suggested on the other side to grant citizenship to those who were here illegally.

    John F . Davis:

    I —

    Felix Frankfurter:

    Would you mind reading again why — why the Senate — what — what statement we have from the Senate that’s authoritative as to the physical presence for a year?

    What was the reason?

    John F . Davis:

    Oh, the — the reason that I stated, and I’m not sure it’s stated in — in —

    Felix Frankfurter:

    I thought you said the Senate put that in.

    John F . Davis:

    The Senate did put it in.

    Felix Frankfurter:

    They gave no reasons for (Voice Overlap) —

    John F . Davis:

    Yes, yes, they did give reasons.

    They stated the reason they put it in was that an alien is not subject to induction under the Selective Service Act unless he has been here for a year.

    He’s — he has to register after he has been here six months, but he cannot be called up for service and that he has been here for a year.

    And they wanted to tie in the provision for granting citizenship with a provision of the Selective Service Act requiring military service.

    Felix Frankfurter:

    Now, in the Selective Service Act, the requirement is that he — at the time that he must — just call up, if that’s the term, he — he then was in the process of continuously having been and still being here and not a prior presence here, is that right?

    John F . Davis:

    That is my understanding of it.

    I wonder if I have the language of it here.

    This is — I am reading — this is from the Selective Service Act of 1948.

    I don’t have the code citation to it but it’s the present act, “Provided further that any male alien who is between the age of 18 years and six months and 26 years at the time of registration or attains the age after being registered who has remained in the United States in a status other than that of a permanent resident for a period exceeding one year.”

    I am not sure that’s much — much more definite than — than the naturalization statute.

    Felix Frankfurter:

    Read again the tense, who has been, what is it?

    John F . Davis:

    It says “Provided further that any male alien who is between the age of,” so and so and so and so, “who has remained in the United States in a status other than that of a permanent resident for a period exceeding one year shall be liable for training and service.”

    Felix Frankfurter:

    Who has remained, this is having been physically present.

    John F . Davis:

    Yes, I’m not sure that it makes — they feel is different.

    Earl Warren:

    Well, Mr. Davis, there — and this has a rather long legislative history that goes back into a previous session of the Senate.

    And at that time, Congressman Walter made it plain that he not — that it was to apply only to those who were lawfully in the United States at that time.

    And Senator Lehman objected to the word “lawful” and said that aliens who enter the service should be entitled to this relief even though they were — were not lawfully and at the time they didn’t pass that time, then Congressman Graham introduced his Bill 4233 and said, as you have stated that it applied only to aliens who are legally and lawfully in the United States and at the same time, the — the Department of Justice tried to make that very plain by having them insert “who have been lawfully admitted to the United States, who shall have been, at the time of entering the Armed Forces, lawfully within such area.”

    But that was rejected.

    John F . Davis:

    That’s right.

    Earl Warren:

    And that was not put in there.

    John F . Davis:

    That’s right.

    Earl Warren:

    And they left it in this — this rather nebulous state that it is now.

    John F . Davis:

    Well, may — may I comment on that?

    Earl Warren:

    Yes, yes, please.

    John F . Davis:

    With respect Senator Lehman’s position, which is set forth at page 16 of our brief, Senator Lehman was not urging that those who were here unlawfully should be given the privilege of expeditious naturalization.

    He was trying to get the same treatment given in the Senate that was given in the House to give those who were not admitted for permanent residence.

    The — the law at that time required permanent residence.

    The House was going to relax this to permit those who were admitted for temporary residences as well as permanent residence.

    Senator McCarran wouldn’t go along with it.

    Senator Lehman wasn’t talking about those who were here illegally, but he was talking about those who had been admitted only temporarily.

    And so that, we don’t find any — any senator who was urging that those who were here illegally should be granted naturalization in either House.

    There is no word of debate in either House that those were here illegally — who have entered illegally should be granted this thing.

    Then when the Department of Justice made its recommendation to both Houses, it was dealing with a bill which did not have the provision for one year’s physical presence in it.

    They were dealing with a separate — with a different bill, and I believe that there, the judgment must be read in the light of that different bill since I think they have — would — would not have been made, wouldn’t have the same connotation if they had had this one year’s physical presence which we are now concerned with.

    Now, the — the decision of this Court last term in — in —

    Earl Warren:

    What — what was the significance of the letter that the Deputy Attorney General tried to have?

    John F . Davis:

    Well, he was — he was referring, as I say, to the bill before it was amended to put in the one year of physical presence.

    He was dealing with the bill which merely said, “Legally admitted”.

    So that his — the — the Attorney General’s suggestions really have no reference.

    As a matter of fact in his own suggestion he said this bill is supposed to grant naturalization to those who are legally in the United States.

    That term is — is included in this letter.

    But he was dealing with a situation where there was no period for one year’s physical presence.

    And he said that the — they didn’t need to exempt these aliens from their requirement of proving a continuation of their legal — of their legal entry.

    Then the Senate changed the bill to put in a provision for physical presence for one year and that — that makes the change which, I think, cuts — cuts the ground out from any — any reason for — for putting in what the Attorney General had suggested.

    The — changes of the situation, how much it changes it?

    I don’t know.

    Now, this —

    Felix Frankfurter:

    Do I understand — do I understand, I’m still hopping on that amendment of —

    John F . Davis:

    Yes.

    Felix Frankfurter:

    — the Senate.

    Was that — was that written in by the Committee as it reported the bill (Voice Overlap) —

    John F . Davis:

    Yes, it was in the — it was in the Committee Report.

    Felix Frankfurter:

    And — and permitted in the assembly except what you reported, namely, it should be more in alignment with the Selective Service.

    John F . Davis:

    That’s right.

    They did —

    Felix Frankfurter:

    There was no — I just want to know whether I get this.

    There was no discussion of that in the Senate, then they had to go back to the House and a Conference Committee had to be appointed, wasn’t it?

    John F . Davis:

    That’s right.

    Felix Frankfurter:

    And nothing was said in the Conference Committee on this subject at all, right?

    John F . Davis:

    No, they accepted — they accepted the —

    Felix Frankfurter:

    Without any comment?

    John F . Davis:

    That’s right.

    Felix Frankfurter:

    All right.

    John F . Davis:

    What — the reason that — one reason they wanted that year in was to prevent someone from getting a quick naturalization by coming in, getting a temporary entry and going into the armed service whether he was subject to the — to the Selective Service Act or not.

    They wanted to tie this in with the Selective Service provision.

    Potter Stewart:

    And Senator Lehman’s concern was with the problem that Justice Harlan put to you in the form of question early in your argument, the case of the student who entered legally but then overstayed his legal entry, was that it?

    John F . Davis:

    Well, he may not even above the State, he may still have been here.

    He may — he —

    Potter Stewart:

    That was —

    John F . Davis:

    — it would cover the period, Mr. Justice Stewart.

    Potter Stewart:

    His entry was lawful but who’s extend — extend his stay was perhaps unlawful.

    John F . Davis:

    It could have been lawful or unlawfully.

    It wouldn’t, under the Act as passed by the Senate, in either case.

    He had to be admitted for permanent residence.

    Hugo L. Black:

    Do you know whether or not there was any provision in the law under which an alien could come to this country and go right into the Army at that time?

    Was there any agreement or any — any way that he could just notify that he wanted to get out in the Army?

    John F . Davis:

    Now, I believe —

    Hugo L. Black:

    (Voice Overlap)

    John F . Davis:

    — I believe that the Army took the men only through the Selective Service System and the way he would come in, would come in and register with the Selective Service.

    I don’t think that — I think that the Army did not accept enlistments from aliens.

    I may be wrong on that, but I think that’s it.

    (Inaudible)

    John F . Davis:

    Yes.

    (Inaudible)

    John F . Davis:

    That — there is at present.

    It was — this is a little complicated.

    During World War II, there was a provision in order to take care of aliens who were serving abroad and that provision gave them a right to be naturalized and also naturalized in the field whether or not they came in legally at all.

    This was specific in the statute.

    It wasn’t in — I think enacted in 1944.

    The 1942 Act wasn’t — they didn’t feel — gave enough protection.

    In 1944, they amended it so that he could be naturalized from the field.

    Now, present —

    Felix Frankfurter:

    You wouldn’t have to come to this country at all.

    John F . Davis:

    No, he had to be in this country.

    He had to — he had to enter the service while he was in this country —

    Felix Frankfurter:

    Oh, yes.

    John F . Davis:

    — under that provision.

    Felix Frankfurter:

    But, for instance, Free French couldn’t join the American units?

    John F . Davis:

    No, not —

    Felix Frankfurter:

    No.

    John F . Davis:

    — under this provision.

    He could get —

    Felix Frankfurter:

    No, I mean under this provision, there was no other provision.

    John F . Davis:

    No, he — they couldn’t.

    Although if they thereafter were legally admitted to the United States, then that service would give them — would take the place of — of residence here.

    But in order to complete the — that — that question, I call Your Honors’ attention to the present provision of 8 U.S.C. 1440 which provide for those who didn’t actually get naturalized during World War I or World War II.

    And for some reason, and I don’t know why this is, in about 1948, Congress passed the provision saying that they too could be naturalized whether or not they entered legally.

    So, presently, on our books, we have a provision for naturalization of aliens who came in, actually came in illegally.

    This is — this is specific by — by the specific provision.

    Hugo L. Black:

    That’s 8 U.S.C. what?

    John F . Davis:

    1440.

    It’s the section in — in the U.S. Code which immediately precedes this one dealing with the Korean War.

    This was not the term — these were not the terms of the statutes during the war, these were something that was passed later on, and as I say, I think, in 1948.

    Hugo L. Black:

    Now, as you will know, this — a number of Americans went to Canada, in 1915 and 1916 and enlisted in Canadian Army (Inaudible) went to Canada from this country to enlist in Canadian units.

    I don’t what the legal machinery there was.

    We have had nothing like that as you say.

    John F . Davis:

    I believe — I — I checked with the Selective Service on this and I was told by the Selective Service that they — the only way they took aliens into the Army —

    Hugo L. Black:

    (Voice Overlap) —

    John F . Davis:

    — and I didn’t check on the Navy, but the only way they took it into the Army was through the Selective Service System itself.

    Just one more word and that is I wanted to say that — that this Court shouldn’t get the impression that this particular petitioner was dragged into the Army against his will and made to serve in the Army.

    He had an exemption from service, all he had to do is to claim his exemption as an alien and he could have been accepted immediately from service, and he didn’t go in there with any — under any contract implied or any otherwise that he could get citizenship.

    This particular statute was not on the books at the time he was inducted into the service.

    So, there is no — he went in then.

    There’s no misconception.

    There wasn’t any law which gave him any right at the time he was inducted.

    Earl Warren:

    Well, if that’s — if that’s of any importance at all, shouldn’t it redound to his credit rather than against it?

    John F . Davis:

    Well, I think it does redound to his credit —

    Earl Warren:

    Yes.

    John F . Davis:

    — but I think that it shows that there was no obligation —

    Earl Warren:

    Yes.

    John F . Davis:

    — no — no type of — of holding out to him —

    Earl Warren:

    Yes.

    John F . Davis:

    — on this case.

    Earl Warren:

    Yes.

    William J. Brennan, Jr.:

    Mr. Davis, can you tell me, is there any tracts of handling this kind of thing by a special bill?

    Has there been any in the Congress?

    John F . Davis:

    There had been a good many special bills with respect to deportation on an entry into the country.

    I don’t know about granting naturalization —

    William J. Brennan, Jr.:

    Pardon?

    John F . Davis:

    Although I must — I must, in order to be frank, say that the naturalization and the deportation probably go hand in hand in this case.

    And that if the man is not given citizenship, he will be subject to deportation.

    And — and in that case, frequently, you get (Voice Overlap) —

    Felix Frankfurter:

    But there have been special acts granting naturalization.

    John F . Davis:

    Well —

    Felix Frankfurter:

    I don’t mean at this time, I mean Congress has passed individual naturalization acts.

    John F . Davis:

    Yes, and in order to —

    Felix Frankfurter:

    There are a number of them.

    John F . Davis:

    Oh, of course.

    And in order — and in order to cut down, however, on special legislation on deportation, they have given authority, of course, to the — to the Department of Justice to suspend deportation when a man meets the requirements of — of the Act and then the — a report is made to Congress and Congress either reaffirms or — or lets it —

    Felix Frankfurter:

    Is this a suspendable case?

    John F . Davis:

    Not under the present law, Mr. Justice.

    Felix Frankfurter:

    Why not?

    John F . Davis:

    Because his — well, so far as I know, he has no dependence for one thing.

    For another thing, he didn’t have — come in legally, and when he doesn’t come in legally, he has to have 10 years residence before it’s a suspendable case.

    And I think there are other reasons, but I think it is not at present (Voice Overlap) —

    William J. Brennan, Jr.:

    Does it appear where he originated in China?

    John F . Davis:

    He came from Tianjin originally.

    That’s where he was born.

    He signed on this vessel from Hong Kong.

    And in the proceedings, he has indicated a desire — some of the deportation proceedings show that he would go back to Formosa.