MRVICA v. ESPERDY, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE
No. 353
Supreme Court of the United States
March 30, 1964
Argued March 5, 1964.
376 U.S. 560
Richard W. Schmude argued the cause for respondent. With him on the brief were Solicitor General Cox, Assistant Attorney General Miller, Louis F. Claiborne and Beatrice Rosenberg.
MR. JUSTICE HARLAN delivered the opinion of the Court.
This case involves construction of the provisions of
The petitioner is a native and citizen of Yugoslavia, who entered this country under a temporary landing per
In 1951, new deportation proceedings were instituted against the petitioner, whose presence in this country apparently had meanwhile gone unnoticed by the immigration authorities. He was again found subject to deportation but was granted the privilege of voluntary departure. This decision of the hearing officer was affirmed by the Assistant Commissioner, whose order became final on March 22, 1954, when the Board of Immigration Appeals entered an order dismissing the peti
Section 249 of the Immigration and Nationality Act provides:
“A record of lawful admission for permanent residence may, in the discretion of the Attorney General and under such regulations as he may prescribe, be made in the case of any alien, as of the date of the approval of his application or, if entry occurred prior to July 1, 1924, as of the date of such entry, if no such record is otherwise available and such alien shall satisfy the Attorney General that he is not inadmissiblе under section 212 (a) insofar as it relates to criminals, procurers and other immoral persons, subversives, violators of the narcotic laws or smugglers of aliens, and he establishes that he—
“(a) entered the United States prior to June 28, 1940;
“(b) has had his residence in the United States continuously since such entry;
“(c) is a person of good moral character; and “(d) is not ineligible to citizenship.” 72 Stat. 546, amending 66 Stat. 219,
8 U. S. C. § 1259 .3
It is agreed by both sides that the petitioner satisfies all the specified criteria except the requirement of continuous residence since an entry prior to June 28, 1940. The question for decision is whether his departure from the United States in 1942 and his absence from this country for several months thereafter defeat his claim to a continuous residence here since 1940.
The petitioner, whose case has been earnestly and ably pressed before us, concedes that he was ordered deported in 1942 and that his departure “executed” the order of deportation. There can be no doubt that this latter point is correct. Legislation then applicable provided that “... аny alien ordered deported ... who has left the United States shall be considered to have been deported in pursuance of law, irrespective of the source from which the expenses of his transportation were defrayed or of the place to which he departed.” Act of March 4, 1929, § 1 (b), 45 Stat. 1551, 8 U. S. C. (1940 ed.) § 180 (b).4
“Owing to the inadequacy of the appropriations nоw made for enforcement of deportation provisions under existing law, the Department of Labor has, in many cases, after a warrant of deportation has been issued, refrained from executing the warrant and deporting the alien, at the expense of the appropriation, to the country to which he might be deported, upon the condition that the alien voluntarily, at his own expense, leave the United States. Some doubt exists whether an alien so departing has been ‘deported.’ Subsection (b) of section 3 of the bill [the provision quoted above] therefore removes any possible doubt on this question by providing that in such cases the alien shall be considered to have been deported in pursuance of law.”
The petitioner‘s departure was thus properly treated as a deportation by the Immigration and Naturalization Service, officials of which marked the warrant for deportation as “executed” and prepared papers, including a “Description of Person Deported,” recording his deportation and the manner in which it was accomplished. The latter document also noted that the petitioner had a Yugoslavian passport.5
The facts on which the petitioner relies are of two kinds. He points first to such typical indicia of residence as the maintenance of a bank account in this country and continued membership in a domestic union. More weight, however, is placed on the inclusion in the warrant for the petitioner‘s deportation in 1942 of a “Ninth Proviso clause,” which provided:
“If the alien returns to the United States from time to time and upon inspection is found to be a bona fide seaman and entitled to shore leave, except for prior deportation, admission under the 9th Proviso of Section 3 of the Act of February 5, 1917, in reference to this ground of inadmissibility is hereby authorized for such time as the alien may be admitted as a seaman.”
The petitioner had recently been through a deportation hearing. Just one month before his departure he had been ordered deported. In those circumstances, it can scarcely be maintained that he did not understand his departure to be pursuant to the warrant for his deportation. (Any doubts on this score must assuredly have been cleared up by his detention on board ship on his return.) Indeed, discussion of the manner of the petitioner‘s departure seems beside the point in view of his concession that his departure executed the warrant for his deportation. (If by his departure he managed to execute the warrant for his deportation but nevertheless remain undeported, he was able to improve his status by leaving the country. The suggestion is untenable.)
Once these arguments are laid to rest, the proper disposition of this case is clear and unavoidable. By express legislative directive, the petitioner‘s departure in 1942 is for present purposes to be regarded as a deportation. We think it beyond dispute that one who has been deported does not continue to have his residence here, whatever may be the significance of other factors in the absence of a valid deportation. In an early case, this Court stated:
“The order of deportation ... is but a method of enforcing the return to his own country of an alien who has not complied with the conditions upon the performance of which the government of the nation, acting within its constitutional authority and through the proper departments, has determined that his continuing to reside here shall depend.” Fong Yue Ting v. United States, 149 U. S. 698, 730.
The obvious purpose of deportation is to terminate residence. It would defy common understanding and disregard clear legislative intent were we to hold that that purpose had not been achieved in this instance.
The judgment is
Affirmed.
MR. JUSTICE GOLDBERG, with whom MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS join, dissenting.
Congress humanely designed
The Court acknowledges that petitiоner has satisfied the entry and character conditions of the statute. It holds, however, that the continuous residence requirement has not been satisfied because petitioner must be considered, as a matter of law, to have been deported in October 1942 when he sailed as a crewman aboard the Yugoslavian vessel S. S. Dubravka on a round trip voyage of two and a half months’ duration between California and Chile.
The warrant of September 4, 1942, on which the Court relies, directed petitioner‘s deportation to Yugoslavia. The Government concedes, as indeed it must, the “practical impossibility” of deporting petitioner to Yugoslavia in 1942 in the midst of the war. Yugoslavia was then overrun and occuрied by enemy forces. Petitioner could not have been, and was not in fact, deported to Yugoslavia. The Government suggests that it could have deported petitioner to Great Britain which was then the seat of the Yugoslav Government in exile. In fact, however, while other Yugoslav seamen stranded in the United States were deported to Great Britain during the war, petitioner was not. The Government does not claim that it actually executed the warrant in this way. The warrant itself shows that petitioner was not deported to Yugoslavia, Great Britain or any other foreign country. In returning the warrant as “executed,” an immigration official scribbled on its face “Reshipped.”1 He also caused to be typed after the printed word “Executed” on the warrant, “October 6th, 1942 Jogo Slav MS Dubravka.” The record also contains the following telegram from
“Ellis Island, N. Y. H., October 21, 1942—99563/665.
“Immigration & Naturalization Service,
“Philadelphia, Pa.
“ATWAR Ivan Mrvica . . . RESHIPPED.
“W. J. Zucker,
“Acting District Director
“New York District
“By
“J. A. CHRISTOPHERSON
“Inspector in Charge
“Law Division”
This telegram was confirmed as follows:
“The alien reshipped foreign October 6, 1942, ex MS Dubravka, from San Pedro, California. Original warrant of deportation, appropriately executed, is attached.”
In light of this record of what actually occurred, there is no support for the Court‘s conclusion that: “There is nothing in the order of deportation, in the endorsement of its ‘execution,’ or in any of the subsequent proceedings to indicate that the deportation order was not what it purported to be.” Ante, at 567. On the contrary, the record clearly shows that petitioner was not actuаlly deported to Yugoslavia in accordance with the terms of the warrant. Equally untenable is the Government‘s argument that by taking the single brief round-trip voyage to South America petitioner terminated his continuous residence in the United States: “because the vessel he boarded flew the Yugoslav flag ... it may be said that petitioner at once resumed his former Yugoslav resi
The definition of residence in the Immigration and Nationality Act refutes the view that by his “physical presence” on the ship pеtitioner abandoned his American residence.2 The statute, § 101 (a) (33) of the Immigration and Nationality Act of 1952, states that the “term ‘residence’ means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact. ...” There can be no doubt that in fact petitioner‘s dwelling place was not the ship; his “place of general abode” was on shore in the United States where it has been continuously since January 1940. Ever since he entered and overstayed his leave in January 1940, petitioner has sought by all available means to remain in the United States. His single aim from which he has never deviated has been to regularize his status in the country.3 The Court‘s view that petitioner by shipping to South America departed the United States is a legal conclusion—under the circum-
Of course where an alien is subject to a warrant of deportation and with the permission of the Government knowingly and voluntarily leaves the country in order to avoid the consequences of enforced deportation, he will be deemed to have “left the United States,” within the meaning of the statute applicable at the time of petitioner‘s voyage. 8 U. S. C. (1940 ed.) § 180 (b). This statute, however, like all the provisions of the Immigration Law, “cannot be ‘mechanically applied,‘” Costello v. Immigration and Naturalization Service, 376 U. S. 120, 130, to a situation where, as here, the facts negate voluntary departure.
There is nothing in the record of this case to show that petitioner was advised or notified that he was being deported when he shipped on the Yugoslav vessel. To the contrary the record shows, in the language of an immigration officer, that petitioner “reshipped.” Nor can it be said that he did so “voluntarily.” The Government frankly states, what is commonly known, that there was a shortage of merchant seamen during the war, and that all available means were used to insure that foreign seamen stranded in this country would “ship foreign,” i. e., on allied merchant ships. I imply no criticism of the Government‘s efforts to man needed ships under the exigencies of war. I do maintain, however, that the circumstances negate the claim that petitioner “voluntаrily” departed or left the United States when he “reshipped.”
The petitioner and the Government both knew when he sailed, moreover, that because of the prevailing war-