BONETTI v. ROGERS, ATTORNEY GENERAL, ET AL.
No. 94
Supreme Court of the United States
Argued April 7, 1958.—Decided June 2, 1958.
356 U.S. 691
Roger Fisher argued the cause for respondents. With him on a brief was Solicitor General Rankin. Beatrice Rosenberg was also on a brief for respondents.
This is а deportation case. It presents a narrow and vexing problem of statutory construction. The principal question here is which, if less than all, of several entries into this country by the alien petitioner was “the time of entering the United States,” within the meaning of § 4 (a) of the Anarchist Act of October 16, 1918,1 as amended by § 22 of the Internal Security Act of 1950.
The facts are clear and undisputed. Petitioner, an alien who wаs born in France of Italian parentage, was admitted to the United States for permanent residence on November 1, 1923, at the age of 15. He became a member of the Communist Party of the United States at Los Angeles in 1932 and remained a member to the end of 1936, when he voluntarily ceased paying dues and left the Party. He never rejoined it. On June 28, 1937, he departed thе United States—abandoning all rights of residence here—and went to Spain to fight with the Spanish Republican Army.2 He fought in that army for one year, was wounded in action and suffered the loss of his left foot. On September 19, 1938, he came to the United States as a new or “quota immigrant,” and applied for admission for permanent residence. He was detained at Ellis Island. A hearing was held by a Board of Special Inquiry on the issue of his admissibility. At that hearing he freely admitted that he had been a member of the Communist Party of the United States at Los
In October 1951, proceedings were instituted to deport him under §§ 1 and 4 (a) of the Anarchist Act of October 16, 1918, as amended by § 22 of the Internal Security Act of 1950, as an “alien who had been a member of the Communist Party of the United States after entry into the United States.” After a hearing, disclosing the facts above recited, the hearing officer ordered him deported, and the Board of Immigration Appeals affirmed.
Petitioner then brought this action in the United States District Court for the District of Columbia against respondent, praying that the order of deportation be set aside. Respondent moved for summary judgment. The district judge sustained the motion and dismissed the complaint. On appeal the Court of Appeals, finding that after petitioner‘s first admission for permanent residеnce on November 1, 1923, he admittedly had been a member of the Communist Party of the United States from 1932 through 1936, affirmed the judgment. 99 U. S. App. D. C. 386, 240 F. 2d 624. We granted certiorari. 355 U. S. 901.
The parties agree that petitioner‘s past Communist Party membership did not make him excludable “at the time of entering the United States” on October 8, 1938,
Section 1 of the Anarchist Act of October 16, 1918,4 as amended by § 22 of the Internal Security Act of 1950,5 deals with the subject of exclusion of aliens from admission and provides, in pertinent part, as follows:
“[Sec. 1] That any alien who is a member of any one of the following classes shall be excluded from admission into the United States:
“(1) ...;
“(2) Aliens who, at any time, shall be or shall have been, members of any of the following classes:
“(A) ...;
“(B) ...;
“(C) Aliens who are members of . . . the Communist Party of the United States . . . .
. . . .
“(H) . . . .” (Emphasis added.)
Section 4 (a) of the Anarchist Act of October 16, 1918, as amended by § 22 of the Internal Security Act of 1950, deals with the subject of deportation and, in pertinent part, provides:
“Any alien who was at the time of entering the United States, or has been at any time thereafter . . . a member of any one of the classes of aliens enumerated in section 1 (2) of this Act, shall,
upon the warrant of the Attorney General, be taken into custody and deported in the manner provided in the Immigration Act of Februаry 5, 1917. The provisions of this section shall be applicable to the classes of aliens mentioned in this Act, irrespective of the time of their entry into the United States.”6 (Emphasis added.)
The sense of the two amended sections, as applied to this case, is this: Any alien who was at the time of entering the United States, or has been at any time thereafter, a member of the Communist Party of the United States shall, upon the warrant of the Attorney General, be taken into custody and deported in the manner provided in the Immigration Act of February 5, 1917.
Petitioner contends that it was his entry of October 8, 1938, made after the administrative adjudication of that date that he was admissible “as a quota immigrant for permanent residence“—not his entry of November 1, 1923—that constitutes “the time of entering the United States,” within the meaning of § 4 (a); and inasmuch as he was not then, and has not since been, a member of the Communist Party he is not deportable under that section. Respondent, on the other hand, contends that § 4 (a) applies to any “entry into the United States” by petitioner, including that of November 1, 1923, and that inasmuch as he was a member of the Communist Party of the Unitеd States from 1932 to 1936 before departing from, and abandoning all rights to reside in, the United States on June 28, 1937, he is deportable under that sec-
To decide the question presented it is necessary to examine and construe the statutes involved. It seems plain that the referencе in § 4 (a) to the “classes of aliens enumerated in § 1 (2)” incorporates only the classes enumerated in subsections (A) through (H),7 and that the only one of those classes which is applicable here is class “(C),” namely, “Aliens who are members of . . . the Communist Party of the United States.” (Emphasis added.) There being no question about the fact that petitioner was not a member оf the Communist Party at the time of entering the United States on October 8, 1938, or at any time thereafter, the question is whether that entry—as affected, if at all, by his re-entry as a returning resident alien after his one-day trip to Mexico in September 1939—or the one of November 1, 1923, constituted “the time of [his] entering the United States,” within the meaning of § 4 (a), as amended by § 22 of the Internal Security Act of 1950. If it was the latter he is deportable, but if the former he is not.
It is obvious that Congress in enacting these statutes did not contemplate the novel factual situation that confronts us, and that these statutes are, to say the least, ambiguous upon the question we must now decide. Our study of the problem, in the light of the facts of this case, has brought us to these conclusions: The first phrаse of § 4 (a)—“Any alien who was at the time of entering the United States“—necessarily refers to “the time” of petitioner‘s adjudicated lawful admission, as affected, if at
In a different context this Court has said 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.” United States ex rel. Volpe v. Smith, 289 U. S. 422, 425. Whilе that holding is quite correct, it is not here apposite or controlling, for the question here is not whether petitioner‘s coming to the United States in 1923 constituted an entry. Admittedly
Of course, if petitioner had become a member of the Communist Party after the entry of October 8, 1938, or the re-entry of September 1939, he would have been deportable under § 4 (a). Galvan v. Press, 347 U. S. 522. But it is admitted that he was not a member of that party at those times or “at any time thereafter.” Likewise, if he had applied for entry after June 27, 1952, he would be excludable under
The Government argues that the construction which we adopt would enable a resident alien, who after lawfully entering the United States for permanent residence became a member of the Communist Party, to avoid deportation for that cause simply by quitting the party and thereafter stepping across the border and returning. While a resident alien who leaves the country for any period, however brief, does make a new entry on his return, he is then subject nevertheless to all current exclusionary laws, one of which, at present, excludes from admission any alien who has ever been a member of the Communist Party. Section 212 (a) (28) (C) (iv) of the Immigration and Nationality Act of 1952, supra. If he enters when excludable, he is deportable, even though he would not have been subject to deportation if he had
Though §§ 1 and 4 (a) of the Anarchist Act of 1918, as amended by the Internal Security Act of 1950, are quite ambiguous in their application to the question here presented, we believe that our interpretation of them is the only fair and reasonable construction that their clоudy provisions will permit under the rare and novel facts of this case. “When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity. And this not out of any sentimental consideration, or for want of sympathy with the purpose of Congress in proscribing evil or antisocial conduct. It may fairly be said to be a prеsupposition of our law to resolve doubts . . . against the imposition of a harsher punishment.” Bell v. United States, 349 U. S. 81, 83. And we cannot “assume that Congress meant to trench on [an alien‘s] freedom beyond that which is required by the narrowest of several possible meanings of the words used.” Fong Haw Tan v. Phelan, 333 U. S. 6, 10. Cf. Barber v.
As applied to the circumstances of this case, we hold that the phrase in § 4 (a), “Any alien who was at the timе of entering the United States, or has been at any time thereafter,” refers to the time the alien was lawfully permitted to make the entry and re-entry under which he acquired the status and right of lawful presence that is sought to be annulled by his deportation. Petitioner‘s entry of October 8, 1938, as affected, if at all, by his subsequent entry in September 1939 as a returning resident alien, constitutеd “the time of entering the United States” within the meaning of § 4 (a). Inasmuch as petitioner was not on October 8, 1938, or at any time thereafter—including September 1939—a member of the Communist Party, he is not deportable under §§ 1 and 4 (a) of the Anarchist Act of October 16, 1918, as amended by § 22 of the Internal Security Act of 1950, and the judgment must be reversed for that reason.
Reversed.
MR. JUSTICE CLARK, with whom MR. JUSTICE FRANKFURTER and MR. JUSTICE HARLAN concur, dissenting.
Petitiоner entered the United States in 1923, being admitted for permanent residence at that time. From 1932 to 1936 he was a member of the Communist Party. In 1937 he voluntarily left the country to fight in the Spanish Civil War. A year later, in 1938, he returned and again was admitted. At that time our law did not exclude members or past members of the Communist Party.
In 1950 the Congress passed the Internal Security Act, § 22 of which required the Attorney General to deport all aliens who were Communist Party members “at the time of entering the United States, or . . . at any time there-
This innovation is contrary to decades of uninterrupted administrative interpretation and practice, and also to рrior cases of this Court. The Immigration and Naturalization Service has always construed “entry” as meaning any coming of an alien from a foreign country to the United States.1 The Congress recognized this interpretation when considering the Immigration and Nationality Act of 1952. H. R. Rep. No. 1365, 82d Cong., 2d Sess. 32; S. Rep. No. 1137, 82d Cong., 2d Sess. 4.2 The Court, however, side-steps this authority by saying that “the novel circumstances here” preclude our consideration of the 1923 entry because “petitioner had abandoned all rights of residence under that entry.” But that is not the question. True, petitioner makes no claim under the
In United States ex rel. Volpe v. Smith, 289 U. S. 422 (1933), the question was whether an alien‘s criminal conviction had occurred “prior to entry” within the meaning of § 19 of the Immigration Act of 1917.