Respondent is an alien who was admitted to this country for
permanent residence in 1952 and has been here continuously since,
except for a visit of "about a couple hours" duration to Ensenada,
Mexico, in 1956. After administrative proceedings, he was ordered
deported on the ground that, at the time of his return in 1956, he
was "afflicted with psychopathic personality" within the meaning of
§ 212(a)(4) of the Immigration and Nationality Act of 1952, and,
therefore, was excludable under 241(a)(1). The District Court
sustained the deportation order, but the Court of Appeals set it
aside on the ground that, as applied to respondent, § 212(a)(4) was
unconstitutionally vague.
Held:
1. This Court ought not to pass on the constitutionality of §
212(a)(4), as applied to respondent, unless such adjudication is
unavoidable, and there is a threshold question as to whether
respondent's return to this country from his afternoon trip to
Mexico in 1956 constituted an "entry" within the meaning of §
101(a)(13) of the Immigration and Nationality Act of 1952, so as to
subject him to deportation for a condition existing at that time,
but not at the time of his original admission before the 1952 Act
became effective. Pp.
374 U. S.
451-452.
2. It would be inconsistent with the general ameliorative
purpose of Congress in enacting § 101(a)(13) to hold that an
innocent, casual and brief excursion by a resident alien outside
this country's borders was "intended" as a departure disruptive of
his resident alien status, so as to subject him to the consequences
of an "entry" into the country on his return. Pp.
374 U. S.
452-462.
3. Because attention was not previously focused upon the
application of §101(a)(13) to this case, and the record contains no
detailed description or characterization of respondent's trip
to
Page 374 U. S. 450
Mexico in 1956, the judgment below is vacated, and the case is
remanded for further consideration of the application of that
section in the light of this opinion. Pp.
374 U. S.
462-463.
302 F.2d 652, judgment vacated and case remanded.
MR. JUSTICE GOLDBERG delivered the opinion of the Court.
Respondent Fleuti is a Swiss national who was originally
admitted to this country for permanent residence on October 9,
1952, and has been here continuously since except for a visit of
"about a couple hours" duration to Ensenada, Mexico, in August,
1956. The Immigration and Naturalization Service, of which
petitioner Rosenberg is the Los Angeles District Director, sought
in April, 1959, to deport respondent on the ground that, at the
time of his return in 1956, he "was within one or more of the
classes of aliens excludable by the law existing at the time of
such entry," Immigration and Nationality Act of 1952, § 241(a)(1),
66 Stat. 204, 8 U.S.C. § 1251(a)(1). In particular, the Service
alleged that respondent had been "convicted of a crime involving
moral turpitude," § 212(a)(9), 66 Stat. 182, 8 U.S.C. § 1182(a)(9),
before his 1956 return, and had, for that reason, been excludable
when he came back from his brief trip to Mexico. A deportation
order issued on that ground, but it was discovered a few months
later that the order was invalid because the crime was a petty
offense not of the magnitude encompassed within the statute. The
deportation proceedings were thereupon reopened, and a new charge
was lodged against respondent: that he had been excludable
Page 374 U. S. 451
at the time of his 1956 return as an alien "afflicted with
psychopathic personality," § 212(a)(4), 66 Stat. 182, 8 U.S.C. §
1182(a)(4), by reason of the fact that he was a homosexual.
Deportation was ordered on this ground and Fleuti's appeal to the
Board of Immigration Appeals was dismissed, whereupon he brought
the present action for declaratory judgment and review of the
administrative action. It was stipulated that among the issues to
be litigated was the question whether § 212(a)(4) is
"unconstitutional as being vague and ambiguous." The trial court
rejected respondent's contentions in this regard and in general,
and granted the Government's motion for summary judgment. On
appeal, however, the United States Court of Appeals for the Ninth
Circuit set aside the deportation order and enjoined its
enforcement, holding that, as applied to Fleuti, § 212(a)(4) was
unconstitutionally vague in that homosexuality was not sufficiently
encompassed within the term "psychopathic personality." 302 F.2d
652.
The Government petitioned this Court for certiorari, which we
granted in order to consider the constitutionality of § 212(a)(4)
as applied to respondent Fleuti. 371 U.S. 859. Upon consideration
of the case, however, and in accordance with the long established
principle that "we ought not to pass on questions of
constitutionality . . . unless such adjudication is unavoidable,"
Spector Motor Service, Inc. v. McLaughlin, 323 U.
S. 101,
323 U. S. 105;
see also Alma Motor Co. v. Timken-Detroit Axle Co.,
329 U. S. 129;
Neese v. Southern R. Co., 350 U. S.
77;
Mackey v. Mendoza-Martinez, 362 U.
S. 384; we have concluded that there is a threshold
issue of statutory interpretation in the case, the existence of
which obviates decision here as to whether § 212(a)(4) is
constitutional as applied to respondent.
That issue is whether Fleuti's return to the United States from
his afternoon trip to Ensenada, Mexico, in
Page 374 U. S. 452
August, 1956, constituted an "entry" within the meaning of §
101(a)(13) of the Immigration and Nationality Act of 1952, 66 Stat.
167, 8 U.S.C. § 1101(a)(13), such that Fleuti was excludable for a
condition existing at that time even though he had been permanently
and continuously resident in this country for nearly four years
prior thereto. Section 101(a)(13), which has never been directly
construed by this Court in relation to the kind of brief absence
from the country that characterizes the present case, [
Footnote 1] reads as follows:
"The term 'entry' means any coming of an alien into the United
States from a foreign port or place or from an outlying possession,
whether voluntarily or otherwise, except that an alien having a
lawful permanent residence in the United States shall not be
regarded as making an entry into the United States for the purposes
of the immigration laws if the alien proves to the satisfaction of
the Attorney General that his departure to a foreign port or place
or to an outlying possession was not intended or reasonably to be
expected by him. or his presence in a foreign port or place or in
an outlying possession was not voluntary:
Provided, That
no person whose departure from the United States was occasioned by
deportation proceedings, extradition, or other legal process shall
be held to be entitled to such exception."
The question we must consider, more specifically, is whether
Fleuti's short visit to Mexico can possibly be regarded as a
"departure to a foreign port or place . . . [that] was not
intended," within the meaning of the
Page 374 U. S. 453
exception to the term "entry" created by the statute. Whether
the 1956 return was within that exception is crucial, because
Fleuti concededly was not excludable as a "psychopathic
personality" at the time of his 1952 entry. [
Footnote 2]
The definition of "entry," as applied for various purposes in
our immigration laws, was evolved judicially, only becoming encased
in statutory form with the inclusion of § 101(a)(13) in the 1952
Act. In the early cases, there was developed a judicial definition
of "entry" which had harsh consequences for aliens. This viewpoint
was expressed most restrictively in
United States ex rel. Volpe
v. Smith, 289 U. S. 422, in
which the Court, speaking through Mr. Justice McReynolds, upheld
deportation of an alien who, after 24 years of residence in this
country following a lawful entry, was held to be excludable on his
return from "a brief visit to Cuba,"
id. at
289 U. S. 423.
The Court stated that
"the word 'entry' . . . includes any coming of an alien from a
foreign country into the United States, whether such coming be the
first or any subsequent one."
Id. at
289 U. S. 425.
[
Footnote 3] Although cases in
the lower courts applying the
Page 374 U. S. 454
strict reentry doctrine to aliens who had left the country for
brief visits to Canada or Mexico or elsewhere were numerous,
[
Footnote 4] many courts
applied the doctrine in such instances with express reluctance and
explicit recognition of its harsh consequences, [
Footnote 5] and there were a few instances in
which district judges refused to hold that aliens who had been
absent from the country only briefly had made "entries" upon their
return. [
Footnote 6]
Reaction to the severe effects produced by adherence to the
strict definition of "entry" resulted in a substantial inroad being
made upon that definition in 1947 by a decision of the Second
Circuit and a decision of this Court. The Second Circuit, in an
opinion by Judge Learned Hand, refused to allow a deportation which
depended on the alien's being regarded as having reentered this
country
Page 374 U. S. 455
after having taken an overnight sleeper from Buffalo to Detroit
on a route lying through Canada.
Di Pasquale v. Karnuth,
158 F.2d 878. Judge Hand recognized that the alien " acquiesced in
whatever route the railroad might choose to pull the car,"
id. at 879, but held that it would be too harsh to impute
the carrier's intent to the alien, there being no showing that the
alien knew he would be entering Canada. "Were it otherwise," Judge
Hand went on,
"the alien would be subjected without means of protecting
himself to the forfeiture of privileges which may be, and often
are, of the most grave importance to him."
Ibid. If there were a duty upon aliens to inquire about
a carrier's route, it
"would, in practice, become a trap whose closing upon them would
have no rational relation to anything they could foresee as
significant. We cannot believe that Congress meant to subject those
who had acquired a residence to the sport of chance when the
interests at stake may be so momentous."
Ibid. Concluding, Judge Hand said that, if the alien's
return were held to be an "entry" under the circumstances, his
"vested interest in his residence" would
"be forfeited because of perfectly lawful conduct which he could
not possibly have supposed would result in anything of the sort.
Caprice in the incidence of punishment is one of the indicia of
tyranny, and nothing can be more disingenuous than to say that
deportation in these circumstances is not punishment. It is well
that we should be free to rid ourselves of those who abuse our
hospitality; but it is more important that the continued enjoyment
of that hospitality, once granted, shall not be subject to
meaningless and irrational hazards."
Ibid.
Later the same year, this Court, because of a conflict between
Di Pasquale and
Del Guercio v. Delgadillo, 159
F.2d 130 (C.A.9th Cir. 1947), granted certiorari in the
Page 374 U. S. 456
latter case and reversed a deportation order affecting an alien
who, upon rescue after his intercoastal merchant ship was torpedoed
in the Caribbean during World War II, had been taken to Cuba to
recuperate for a week before returning to this country.
Delgadillo v. Carmichael, 332 U.
S. 388. The Court pointed out that it was "the
exigencies of war, not his voluntary act,"
id. at
332 U. S. 391,
which put the alien on foreign soil, adding that
"[w]e might as well hold that, if he had been kidnapped and
taken to Cuba, he made a statutory 'entry' on his voluntary return.
Respect for law does not thrive on captious interpretations."
Ibid. Since "[t]he stakes are indeed high and momentous
for the alien who has acquired his residence here,"
ibid.,
the Court held that
"[w]e will not attribute to Congress a purpose to make his right
to remain here dependent on circumstances so fortuitous and
capricious as those upon which the Immigration Service has here
seized. The hazards to which we are now asked to subject the alien
are too irrational to square with the statutory scheme."
Ibid.
The increased protection of returning resident aliens which was
brought about by the
Delgadillo decision, both in its
result and in its express approval of
Di Pasquale, was
reflected in at least two subsequent lower court decisions prior to
the enactment of § 101(a)(13). In
Yukio Chai v. Bonham,
165 F.2d 207 (C.A.9th Cir. 1947), the court held that no "entry"
had occurred after a ship carrying a resident alien back from
seasonal cannery work in Alaska made an unscheduled stop in
Vancouver, B.C., and, in
Carmichael v. Delaney, 170 F.2d
239 (C.A.9th Cir. 1948), the court held that a resident alien
returning from wartime service with the United States Maritime
Service during which he had stopped at many foreign ports made no
"entry" because all of the movements of
Page 374 U. S. 457
the ship to which he had been assigned were pursuant to Navy
orders. [
Footnote 7]
It was in light of all of these developments in the case law
that § 101(a)(13) was included in the immigration laws with the
1952 revision. As the House and Senate Committee Reports, the
relevant material from which is quoted in the margin, [
Footnote 8] make clear, the major
congressional
Page 374 U. S. 458
concern in codifying the definition of "entry" was with "the
status of an alien who has previously entered the United States and
resided therein. . . ." This concern was in the direction of
ameliorating the harsh results visited upon resident aliens by the
rule of
United States ex rel. Volpe v. Smith, supra, as is
indicated by the recognition that "the courts have departed from
the rigidity of [the earlier] rule," and the statement that "[t]he
bill [gives] due recognition to the judicial precedents." It must
be recognized, of course, that the only liberalizing decisions to
which the Reports referred specifically were
Di Pasquale
and
Delgadillo, and that there is no indication one way or
the other in the legislative history of what Congress thought about
the problem of resident aliens who leave the country for
insignificantly short periods of time. Nevertheless, it requires
but brief consideration of the policies underlying § 101(a)(13),
and of certain other aspects of the rights of returning resident
aliens, to conclude that Congress, in approving the judicial
undermining of
Volpe, supra, and the relief brought about
by the
Di Pasquale and
Delgadillo decisions,
could not have meant to limit the meaning of the exceptions it
created in § 101(a)(13) to the facts of those two cases.
The most basic guide to congressional intent as to the reach of
the exceptions is the eloquent language of
Di Pasquale and
Delgadillo themselves, beginning with the recognition that
the "interests at stake" for the resident alien are "momentous,"
158 F.2d at 879, and that "[t]he stakes are indeed high and
momentous for the alien who has acquired his residence here," 332
U.S. at
332 U. S. 391.
This
Page 374 U. S. 459
general premise of the two decisions impelled the more general
conclusion that "it is . . . important that the continued enjoyment
of [our] hospitality once granted, shall not be subject to
meaningless and irrational hazards." 158 F.2d at 879.
See also
Delgadillo, supra, at
332 U. S. 391. Coupling these essential principles of
the two decisions explicitly approved by Congress in enacting §
101(a)(13) with the more general observation, appearing in
Delgadillo as well as elsewhere, [
Footnote 9] that "[d]eportation can be the equivalent
of banishment or exile," it is difficult to conceive that Congress
meant its approval of the liberalization wrought by
Di
Pasquale and
Delgadillo to be interpreted
mechanistically to apply only to cases presenting factual
situations identical to what was involved in those two
decisions.
The idea that the exceptions to § 101(a)(13) should be read
nonrestrictively is given additional credence by the way in which
the immigration laws define what constitutes "continuous residence"
for an alien wishing to be naturalized. Section 316 of the 1952
Act, 66 Stat. 242-243, 8 U.S.C. § 1427, which liberalized previous
law in some respects, provides that an alien who wishes to seek
naturalization does not begin to endanger the five years of
"continuous residence" in this country which must precede his
application until he remains outside the country for six months,
and does not damage his position by cumulative temporary absences
unless they total over half of the five years preceding the filing
of his petition for naturalization. This enlightened concept of
what constitutes a meaningful interruption of the continuous
residence which must support a petition for naturalization,
reflecting as it does a congressional judgment that an
Page 374 U. S. 460
alien's status is not necessarily to be endangered by his
absence from the country, strengthens the foundation underlying a
belief that the exceptions to § 101(a)(13) should be read to
protect resident aliens who are only briefly absent from the
country. Of further, although less specific, effect in this regard
is this Court's holding in
Kwong Hai Chew v. Colding,
344 U. S. 590,
that the returning resident alien is entitled as a matter of due
process to a hearing on the charges underlying any attempt to
exclude him, a holding which supports the general proposition that
a resident alien who leaves this country is to be regarded as
retaining certain basic rights.
Given that the congressional protection of returning resident
aliens in § 101(a)(13) is not to be woodenly construed, we turn
specifically to construction of the exceptions contained in that
section as they relate to resident aliens who leave the country
briefly. What we face here is another harsh consequence of the
strict "entry" doctrine which, while not governed directly by
Delgadillo, nevertheless calls into play the same
considerations, pp.
374 U. S.
454-456,
374 U. S.
458-459,
supra, which led to the results
specifically approved in the Congressional Committee Reports. It
would be as "fortuitous and capricious," and as "irrational to
square with the statutory scheme,"
Delgadillo, supra, at
332 U. S. 391,
to hold that an alien may necessarily be deported because he falls
into one of the classes enumerated in § 212(a) when he returns from
"a couple hours" visit to Mexico as it would have been to uphold
the order of deportation in
Delgadillo. Certainly when an
alien like Fleuti, who has entered the country lawfully and has
acquired a residence here, steps across a border and, in effect,
steps right back, subjecting him to exclusion for a condition, for
which he could not have been deported had he remained in the
country seems to be placing him at the mercy of the "sport of
chance" and the "meaningless and irrational hazards" to which Judge
Hand alluded.
Di
Page 374 U. S. 461
Pasquale, supra, at 879. In making such a casual trip,
the alien would seldom be aware that he was possibly walking into a
trap, for the insignificance of a brief trip to Mexico or Canada
bears little rational relation to the punitive consequence of
subsequent excludability. There are, of course, valid policy
reasons for saying that an alien wishing to retain his
classification as a permanent resident of this country imperils his
status by interrupting his residence too frequently or for an
overly long period of time, but we discern no rational policy
supporting application of a reentry limitation in all cases in
which a resident alien crosses an international border for a short
visit. [
Footnote 10]
Certainly if that trip is innocent, casual, and brief, it is
consistent with all the discernible signs of congressional purpose
to hold that the "departure . . . was not intended" within the
meaning and ameliorative intent of the exception of § 101(a)(13).
Congress unquestionably has the power to exclude all classes of
undesirable aliens from this country, and the courts are charged
with enforcing such exclusion when Congress has directed it, but we
do not think Congress intended to exclude aliens long resident in
this country after lawful entry who have merely stepped across an
international border and returned in "about a couple hours." Such a
holding would be inconsistent with the general purpose of
Page 374 U. S. 462
Congress in enacting § 101(a)(13) to ameliorate the severe
effects of the strict "entry" doctrine.
We conclude, then, that it effectuates congressional purpose to
construe the intent exception to § 101(a)(13) as meaning an intent
to depart in a manner which can be regarded as meaningfully
interruptive of the alien's permanent residence. One major factor
relevant to whether such intent can be inferred is, of course, the
length of time the alien is absent. Another is the purpose of the
visit, for if the purpose of leaving the country is to accomplish
some object which is itself contrary to some policy reflected in
our immigration laws, it would appear that the interruption of
residence thereby occurring would properly be regarded as
meaningful. Still another is whether the alien has to procure any
travel documents in order to make his trip, since the need to
obtain such items might well cause the alien to consider more fully
the implications involved in his leaving the country. Although the
operation of these and other possibly relevant factors remains to
be developed "by the gradual process of judicial inclusion and
exclusion,"
Davidson v. New Orleans, 96 U. S.
97,
96 U. S. 104, we
declare today simply that an innocent, casual, and brief excursion
by a resident alien outside this country's borders may not have
been "intended" as a departure disruptive of his resident alien
status, and therefore may not subject him to the consequences of an
"entry" into the country on his return. The more civilized
application of our immigration laws given recognition by Congress
in § 101(a)(13) and other provisions of the 1952 Act protects the
resident alien from unsuspected risks and unintended consequences
of such a wholly innocent action. Respondent here, so far as
appears from the record, is among those to be protected. However,
because attention was not previously focused upon the application
of § 101(a)(13) to the case, the record contains no detailed
description or characterization of his
Page 374 U. S. 463
trip to Mexico in 1956, except for his testimony that he was
gone "about a couple hours," and that he was "just visiting; taking
a trip." That being the case, we deem it appropriate to remand the
case for further consideration of the application of § 101(a)(13)
to this case in light of our discussion herein. If it is determined
that respondent did not "intend" to depart in the sense
contemplated by § 101(a)(13), the deportation order will not stand,
and adjudication of the constitutional issue reached by the court
below will be obviated. The judgment of the Court of Appeals is
therefore vacated, and the case remanded with directions that the
parties be given leave to amend their pleadings to put in issue the
question of "entry" in accordance with the foregoing, and for
further proceedings consistent herewith.
So ordered.
[
Footnote 1]
Although there is dictum on the point of
Bonetti v.
Rogers, 356 U. S. 691,
356 U. S.
698-699, we regard it as not fully considered, since
resolution of the issue was not crucial to decision of the case.
Compare Shaughnessy v. United States ex rel. Mezei,
345 U. S. 206,
345 U. S. 213,
73.
[
Footnote 2]
The 1952 Act became effective on December 24, 1952, and Fleuti
entered the country for permanent residence on October 9, 1952, a
fact which is of significance because § 241(a)(1) of the Act only
commands the deportation of aliens "excludable by the law existing
at the time of such entry. . . ." Hence, since respondent's
homosexuality did not make him excludable by any law existing at
the time of his 1952 entry, it is critical to determine whether his
return from a few hours in Mexico in 1956 was an "entry" in the
statutory sense. If it was not, the question whether § 212(a)(4)
could constitutionally be applied to him need not be resolved.
[
Footnote 3]
Previous cases which contain the same general kind of language,
but which are distinguishable on their facts, are
Lapina v.
Williams, 232 U. S. 78;
Lewis v. Frick, 233 U. S. 291;
United States ex rel. Claussen v. Day, 279 U.
S. 398;
United States ex rel. Polymeris v.
Trudell, 284 U. S. 279; and
United States ex rel. Stapf v. Corsi, 287 U.
S. 129. The only one of these cases which involved an
absence from the country as extremely brief as Fleuti's is
Lewis v. Frick, and, in that case, deportation was
premised on the fact that, on his return from the trip in issue,
the alien had sought to bring a woman into the country for an
immoral purpose. 233 U.S. at
233 U. S.
297-300.
[
Footnote 4]
E.g., Ex parte Parianos, 23 F.2d 918 (C.A.9th Cir.
1928);
United States ex rel. Medich v. Burmaster, 24 F.2d
57 (C.A.8th Cir. 1928);
Cahan v. Carr, 47 F.2d 604
(C.A.9th Cir. 1931),
cert. denied, 283 U.S. 862;
Zurbrick v. Borg, 47 F.2d 690 (C.A.6th Cir. 1931);
Taguchi v. Carr, 62 F.2d 307 (C.A.9th Cir. 1932);
Ward
v. De Barros, 75 F.2d 34 (C.A.1st Cir. 1935);
Guarneri v.
Kessler, 98 F.2d 580 (C.A.5th Cir. 1938),
cert.
denied, 305 U.S. 648;
Del Castillo v. Carr, 100 F.2d
338 (C.A.9th Cir. 1938);
United States ex rel. Kowalenski v.
Flynn, 17 F.2d 524 (D.C.W.D.N.Y.1927);
United States ex
rel. Siegel v. Reimer, 23 F. Supp. 642 (D.C.S.D.N.Y.),
aff'd, 97 F.2d 1020 (C.A.2d Cir. 1938).
[
Footnote 5]
E.g., Jackson v. Zurbrick, 59 F.2d 937 (C.A.6th Cir.
1932);
Zurbrick v. Woodhead, 90 F.2d 991 (C.A.6th Cir.
1937);
United States ex rel. Ueberall v. Williams, 187 F.
470 (D.C.S.D.N.Y.1911);
Guimond v. Howes, 9 F.2d 412
(D.C.D.Maine 1925);
Ex parte Piazzola, 18 F.2d 114
(D.C.W.D.N.Y.1926).
[
Footnote 6]
In re Michael Bonadino, D.C.W.D.N.Y., unreported, Dec.
20, 1924;
United States ex rel. Valenti v.
Karmuth, 1 F. Supp.
370 (D.C.N.D.N.Y.1932);
Annello ex rel. Annello v.
Ward, 8 F. Supp.
797 (D.C.D.Mass.1934).
[
Footnote 7]
It should be pointed out, however, that the Ninth Circuit has,
subsequent to the decisions cited in the text, held specifically
that length of time outside the country is still irrelevant to the
question of "entry."
Schoeps v. Carmichael, 177 F.2d 391
(C.A.9th Cir. 1949),
cert. denied, 339 U.S. 914;
Pimental-Navarro v. Del Guercio, 256 F.2d 877 (C.A.9th
Cir. 1958).
[
Footnote 8]
The House and Senate Committee Reports preceding enactment of
the bill both contained the following relevant paragraph:
"Section 101(a)(13) defines the term 'entry.' Frequent reference
is made to the term 'entry' in the immigration laws, and many
consequences relating to the entry and departure of aliens flow
from its use, but the term is not precisely defined in the present
law. Normally an entry occurs when the alien crosses the border of
the United States and makes a physical entry, and the question of
whether an entry has been made is susceptible of a precise
determination. However, for the purposes of determining the effect
of a subsequent entry upon the status of an alien who has
previously entered the United States and resided therein, the
preciseness of the term 'entry' has not been found to be as
apparent. Earlier judicial constructions of the term in the
immigration laws, as set forth in
Volpe v. Smith,
289 U. S.
422(1933), generally held that the term 'entry' included
any coming of an alien from a foreign country to the United States
whether such coming be the first or a subsequent one. More
recently, the courts have departed from the rigidity of that rule
and have recognized that an alien does not make an entry upon his
return to the United States from a foreign country where he had no
intent to leave the United States,
Di Pasquale v. Karnuth,
158 F.2d 878 (C.C.A.2d 1947), or did not leave the country
voluntarily,
Delgadillo v. Carmichael, 332 U. S.
388, (1947). The bill defines the term 'entry' as
precisely as practicable, giving due recognition to the judicial
precedents. Thus any coming of an alien from a foreign port or
place or an outlying possession into the United States is to be
considered an entry, whether voluntary or otherwise, unless the
Attorney General is satisfied that the departure of the alien,
other than a deportee, from this country was unintentional or was
not voluntary."
H.R.Rep. No. 1365, 82d Cong., 2d Sess. 32 (1952); S.Rep. No.
1137, 82d Cong., 2d Sess. 4 (1952).
[
Footnote 9]
See Ng Fung Ho v. White, 259 U.
S. 276,
259 U. S. 284;
Bridges v. Wixon, 326 U. S. 135,
326 U. S. 147;
Fong Haw Tan v. Phelan, 333 U. S. 6,
333 U. S. 10;
Barber v. Gonzales, 347 U. S. 637,
347 U. S.
642-643.
[
Footnote 10]
Compare Bernard, American Immigration Policy (1950),
296; Gordon, When Does an Alien Enter the United States? 9 Fed.B.J.
248, 250, 258-259 (1948); Hofstein, The Returning Resident Alien,
10 Intra.L.Rev. 271, 273, 280 (1955); Konvitz, Civil Rights in
Immigration (1953), 92; Maslow, Recasting Our Deportation Law:
Proposals for Reform, 56 Col.L.Rev. 309, 327-329 (1956); Report of
the President's Commission on Immigration and Naturalization, Whom
We Shall Welcome (1953), 179-180, 199-200; Note, Rights of Aliens
in Exclusion Proceedings, 3 Utah L.Rev. 349, 350 n. 20 (1953);
Note, Limitations on Congressional Power to Deport Resident Aliens
Excludable as Psychopaths at Time of Entry, 68 Yale L.J. 931,
937-938 n. 25 (1959).
MR. JUSTICE CLARK, with whom MR. JUSTICE HARLAN, MR. JUSTICE
STEWART and MR. JUSTICE WHITE join, dissenting.
I dissent from the Court's judgment and opinion because
"statutory construction" means to me that the Court can construe
statutes, but not that it can construct them. The latter function
is reserved to the Congress, which clearly said what it meant and
undoubtedly meant what it said when it defined "entry" for
immigration purposes as follows:
"The term 'entry' means any coming of an alien into the United
States, from a foreign port or place or from an outlying
possession, whether voluntarily or otherwise, except that an alien
having a lawful permanent residence in the United States shall not
be regarded as making an entry into the United States for the
purposes of the immigration laws if the alien proves to the
satisfaction of the Attorney General
Page 374 U. S. 464
that his departure to a foreign port or place or to an outlying
possession was not intended or reasonably to be expected by him or
his presence in a foreign port or place or in an outlying
possession was not voluntary. . . ."
8 U.S.C. § 1101(a)(13). That this definition of "entry" includes
the respondent's entry after his brief trip to Mexico in 1956 is a
conclusion which seems to me inescapable. The conclusion is
compelled by the plain meaning of the statute, its legislative
history, and the consistent interpretation by the federal courts.
Indeed, the respondent himself did not even question that his
return to the United States was an "entry" within the meaning of §
101(a)(13). Nonetheless, the Court has rewritten the Act
sua
sponte, creating a definition of "entry" which was suggested
by many organizations during the hearings prior to its enactment,
but which was rejected by the Congress. I believe the authorities
discussed in the Court's opinion demonstrate that "entry" as
defined in § 101(a)(13) cannot mean what the Court says it means,
but I will add a few words of explanation.
The word "entry" had acquired a well defined meaning for
immigration purposes at the time the Immigration and Nationality
Act was passed in 1952. The leading case was
United States ex
rel. Volpe v. Smith, 289 U. S. 422
(1933), which held that an alien who had resided continuously in
the United States for 26 years except for a brief visit to Cuba
made an "entry" at the time of his return from Cuba. The Court
there stated that the word "entry" in the Immigration Act of 1917
"includes any coming of an alien from a foreign country into the
United States whether such coming be the first or any subsequent
one."
Id. at
289 U. S. 425.
That conclusion was based on sound authority, since the Court had
earlier held that a resident alien who crossed the river from
Detroit to Windsor, Canada, and returned on the same day made
Page 374 U. S. 465
an entry upon his return.
Lewis v. Frick, 233 U.
S. 291 (1914).
The federal courts in numerous cases were called upon to apply
this definition of "entry," and did so consistently, specifically
recognizing that the brevity of one's stay outside the country was
immaterial to the question of whether his return was an "entry".
See, e.g., United States ex rel. Kowalenski v. Flynn, 17
F.2d 524 (D.C.W.D.N.Y.1927);
Schoeps v. Carmichael, 177
F.2d 391 (C.A.9th Cir. 1949). A related but obviously
distinguishable question did create difficulties for the courts,
however, leading to conflicting opinions among the Circuits as to
whether a resident alien makes an "entry" when he had no intent to
leave the country or did not leave voluntarily. It was decided by
this Court in
Delgadillo v. Carmichael, 332 U.
S. 388 (1947), which held that an alien whose ship had
been torpedoed and sunk, after which he was rescued and taken to
Cuba for a week, did not make an "entry" on his return to the
United States. The Court discussed the
Volpe case, but
distinguished it and others on the ground that
"those were cases where the alien plainly expected or planned to
enter a foreign port or place. Here he was catapulted into the
ocean, rescued, and taken to Cuba. He had no part in selecting the
foreign port as his destination."
Id. at
332 U. S. 390.
The Court specifically relied on
Di Pasquale v. Karnuth,
158 F.2d 878 (C.A.2d Cir. 1947), where an alien who had ridden a
sleeping car from Buffalo to Detroit, without knowledge that the
train's route was through Canada, was held not to have made an
"entry" upon his arrival in Detroit.
These cases and others discussed by the Court establish the
setting in which the Immigration and Nationality Act was passed in
1952. The House and Senate reports quoted by the Court show that
the Congress recognized the courts' difficulty with the rule that
"any coming" of
Page 374 U. S. 466
an alien into the United States was an "entry," even when the
departure from the country was unintentional or involuntary. The
reports discuss the broad rule of the
Volpe case and the
specific limitations of the
Di Pasquale and
Delgadillo cases, citing those cases by name, and conclude
with the following language:
"The bill defines the term 'entry' as precisely as practicable,
giving due recognition to the judicial precedents. Thus, any coming
of an alien from a foreign port or place or an outlying possession
into the United States is to be considered an entry, whether
voluntary or otherwise, unless the Attorney General is satisfied
that the departure of the alien, other than a deportee, from this
country was unintentional or was not voluntary."
H.R.Rep.No.1365, 82d Cong., 2d Sess. 32; S.Rep.No. 1137, 82d
Cong., 2d Sess. 4. Thus, there is nothing in the legislative
history or in the statute itself which would exempt the
respondent's return from Mexico from the definition of "entry."
Rather, the statute, in retaining the definition expressed in
Volpe, seems clearly to cover respondent's entry, which
occurred after he knowingly left the United States in order to
travel to a city in Mexico. That the trip may have been "innocent,
casual, and brief" does not alter the fact that, in the words of
the Court in
Delgadillo, the respondent "plainly expected
or planned to enter a foreign port or place." 332 U.S. at
332 U. S.
390.
It is true that this application of the law to a resident alien
may be harsh, but harshness is a far cry from the irrationality
condemned in
Delgadillo, supra, 332 U.S. at
332 U. S. 391.
There and in
Di Pasquale, contrary results would have
meant that a resident alien, who was not deportable unless he left
the country and reentered, could be deported as a result of
circumstances either beyond his control or
Page 374 U. S. 467
beyond his knowledge. Here, of course, there is no claim that
respondent did not know he was leaving the country to enter Mexico,
and, since one is presumed to know the law, he knew that his brief
trip and reentry would render him deportable. The Congress clearly
has chosen so to apply the long established definition, and this
Court cannot alter that legislative determination in the guise of
statutory construction. Had the Congress not wished the definition
of "entry" to include a return after a brief but voluntary and
intentional trip, it could have done so. The Court's discussion of
§ 316 of the Act shows that the Congress knows well how to temper
rigidity when it wishes. Nor can it be said that the Congress was
unaware of the breadth of its definition. Even aside from the
evidence that it was aware of the judicial precedents, numerous
organizations unsuccessfully urged that the definition be narrowed
to accomplish what the Court does today. Thus, it was urged that
the Act's definition of "entry" "should, we believe, be narrowed so
that it will not be applicable to an alien returning from abroad,
after a temporary absence, to an unrelinquished domicile here."
[
Footnote 2/1] Other groups
complained also that
"[t]he term 'entry' is defined to mean any coming of an alien
into the United States. It is recommended that this be narrowed to
provide that a return, after a temporary absence, to an
unrelinquished domicile shall not constitute a new entry. [
Footnote 2/2]"
Despite such urging, however, the Congress made no change in the
definition. Further, this Court,
Page 374 U. S. 468
in 1958, specifically recognized that the word "entry" retained
its plain meaning, stating that "a resident alien who leaves the
country for any period, however brief, does make a new entry on his
return. . . ."
Bonetti v. Rogers, 356 U.
S. 691,
356 U. S.
698.
All this to the contrary notwithstanding, the Court today
decides that one does not really intend to leave the country unless
he plans a long trip, or his journey is for an illegal purpose, or
he needs travel documents in order to make the trip. This is
clearly contrary to the definition in the Act, and to any
definition of "intent" that I was taught. [
Footnote 2/3]
What the Court should do is proceed to the only question which
either party sought to resolve: whether the deportation order
deprived respondent of due process of law in that the term
"afflicted with psychopathic personality," as it appears in §
212(a)(4) of the Act, is unconstitutionally vague. Since it fails
to do so, I must dissent.
[
Footnote 2/1]
Statement of Edward J. Ennis, Representing the American Civil
Liberties Union, printed in Joint Hearings before the Subcommittees
of the Committees on the Judiciary on S. 716, H.R. 2379, and H.R.
2816, 82d Cong., 1st Sess. 143.
[
Footnote 2/2]
Recommendations and Suggestion With Respect to Titles I and II
of S. 716 and H.R. 2379, printed in Joint Hearings,
supra,
374
U.S. 449fn2/1|>note 1 at 617.
See also Testimony of
Stanley H. Lowell on Behalf of Americans for Democratic Action,
id. at 445.
[
Footnote 2/3]
See, e.g., Morissette v. United States, 342 U.
S. 246; Hall, General Principles of Criminal Law (2d ed.
1960), 105-145; Prosser, Torts (2d ed. 1955), 29-30.