DOCKET NO.: 35
DECIDED BY: Warren Court (1955-1956)
LOWER COURT: United States Court of Appeals for the Third Circuit
ARGUED: Nov 14, 1955 / Nov 15, 1955
DECIDED: Jan 16, 1956
Facts of the case
Media for United States v. Minker
- Oral Argument, Part 1: United States v. Minker - November 14, 1955 (35)
- Oral Argument, Part 2: United States v. Minker - November 14, 1955 (35)
- Oral Argument, Part 1: Falcone v. Barnes - November 14, 1955 (47)
- Oral Argument, Part 2: Falcone v. Barnes - November 15, 1955 (47)
Audio Transcription for Oral Argument, Part 1: Falcone v. Barnes - November 14, 1955 (47) in United States v. Minker
Audio Transcription for Oral Argument, Part 2: Falcone v. Barnes - November 15, 1955 (47) in United States v. Minker
Audio Transcription for Oral Argument, Part 1: United States v. Minker - November 14, 1955 (35) in United States v. Minker
Number 35, United States of America versus Abraham Minker.
Marvin E. Frankel:
May it please the Court.
This case, on certiorari for the Third Circuit in the Falcone case, which follows, presents the same problem.
The question in both cases is whether under Section 235 (a) of the Immigration and Nationality Act of 1952, the Attorney General and immigration officers have power to subpoena a person in an administrative investigation to determine whether judicial proceedings should be brought to seek revocation of that persons' naturalization on a ground that it was unlawfully procured.
Section 235 (a), which gives rise to the problem, appears in the Government's brief, beginning at page 51.
The particular sentence, on which the controversy turns, begins at the bottom of page 52.
Some six lines from the bottom of the page reads as follows, “Thus, the Attorney General and any immigration officer, including special inquiry officers, shall have power to require by subpoena the attendants and testimony of witnesses before immigration officers and special inquiry officers, and the production of books, papers and documents relating to the privilege of any person to enter, reenter, reside in, or pass through the United States, or concerning any matter which is material and relevant to the enforcement of this Act and the administration of this service.”
On page 11 of our brief, focusing on the particular words that are in dispute, we have used asterisks and set out the pertinent coercion of the statute as we read it.
The facts are not disputed and may be simply stated.
In September 1953, the respondent, Minker, was subpoenaed under Section 235 (a), and directed to appear before an immigration officer.
Before the date directed for his appearance, he moved in the Eastern District of Pennsylvania to quash the subpoena.
The motion to quash was denied in an opinion by Judge Welch that begins at page 13 of the record, and the primary issue there as it was below and as it is here, and as it is in the Falcone case which follows was whether Section 235 (a) authorized the subpoena of this kind for this kind of investigation.
Following the denial and the motion to quash, a letter was addressed to Minker, directing his appearance in accordance with the subpoena.
When he failed to appear, an order was sought in the District Court in accordance with Section 235 (a) to require to compel his obedience.
The order was issued and Minker again, failed to appear, disobeying the District Court's order.
On motion of the Government, he was held in contempt by the District Court and fined $500.
On appeal to the Court of Appeals for the Third Circuit, that judgment of contempt was reversed.
The Court of Appeals agreed with the Government that Section 235 (a) authorizes the use of subpoenas in investigations of the type involved here that is in investigations to determine whether a naturalization certificate has been fraudulently procured and whether proceedings in court for its revocation should be instituted.
The Court held, however, that the word “witnesses” in Section 235 (a) does not include in an investigation of this type, the persons whose certificate of naturalization is being investigated.
And on this ground held that there was no power to subpoena Minker, and as I say, reversed the judgment.
As I pointed out in summarizing the Court of Appeals' opinion, the problem here can be broken down into two parts.
First, the question whether in investigations of the type in these cases of the subpoena power in Section 235 (a) may be used at all.
And if that question is answered affirmatively, there was a further narrower question on which the court below decided the case, whether the person whose naturalization is under inquiry can be subpoenaed under that -- under Section 235 (a).
Does that -- on the brief, I don't know if the first -- your first question in controversy.
Marvin E. Frankel:
Well, the -- there are two cases, Your Honor.
The first question is not in controversy in this, the Minker case.
The Court of Appeals held that this kind of investigation was certainly -- the word the Court used was certainly a matter as to which Section 235 (a) applied, that is, it was an investigation of a problem, material and relevant in the enforcement of the Act, and therefore, came within that language of Section 235 (a).
And what I would like to do since these are two half-hour cases --
It agreed with the Second Circuit on that proposition.