Robert REID and Nadia Alice Reid, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 171, Docket 73-1067
United States Court of Appeals, Second Circuit
Decided Feb. 13, 1974.
251
LICENSOR reserves unto itself and is hereby granted by LICENSEE a lien upon all the rights, privileges and licenses hereby granted to secure the prompt payment by LICENSEE of the royalties herein reserved . . . .
(Emphasis added). [C.T. 517].
A realistic and proper interpretation of paragraph 9, and the one we assume was given it by the Tax Court leads to the conclusion that it was intended to reserve a security interest in the patents for the benefit of the licensor to protect itself in the event of the failure of the licensee to make the royalty payments provided therein. Further, this construction is consistent with the interpretation of the Renegotiation Board‘s Ruling No. 5 insofar as it permits a security interest in the nature of a vendor‘s lien. The provisions of paragraph 9 which state the remedies of the licensor upon breach by the licensees of the royalty payment provisions are incidental to and in furtherance of the lien created in favor of the licensor as security of payment of the royalties. This construction is particularly appropriate in light of the comment of the Supreme Court in Littlefield v. Perry, 88 U.S. (21 Wall.) 205 at 220, 22 L.Ed. 577 at 579 (1874), where the Court stated:
The agreement to account and pay formed part of the consideration of the assignment, and was in effect an agreement to pay at a future time a sum to be determined by the number of articles made and sold. For the nonpayment or other nonperformance a forfeiture might be enforced as for condition broken, but until it was enforced the title granted remained in the assignees.
In light of the above this court cannot determine the Tax Court‘s findings to be arbitrary and capricious. Nor can this court find that the decision below was other than consistent with law.
The decision of the Tax Court is affirmed.
Benjamin Globman, Hartford, Conn. (Globman & Cooper, Hartford, Conn., of counsel), for petitioners.
Stanley H. Wallenstein, Sp. Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., S. D. N. Y., Joseph P. Marro, Asst. U. S. Atty., New York City, of counsel), for respondent.
Before LUMBARD, MANSFIELD and MULLIGAN, Circuit Judges.
Petitioners, Mr. & Mrs. Robert Reid, are natives and citizens of British Honduras who entered the United States at Chula Vista, California, which is on the Mexican border, falsely representing themselves to be United States citizens, with the result that they were not inspected as aliens by a United States immigration officer. Mr. Reid entered on November 29, 1968, and Mrs. Reid on January 3, 1969. Thereafter Mrs. Reid gave birth in the United States to two sons, one born on November 2, 1969, and the other on April 4, 1971, each of whom is a native born citizen of the United States.
On November 22, 1971, the Immigration and Naturalization Service (“INS“) began deportation proceedings against the Reids, alleging that they were deportable under
Holding that
DISCUSSION
The broad issue before us is whether
“(f) The provisions of this section relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as aliens who have sought to procure, or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation shall not apply to an alien otherwise admissible at the time of entry who is the spouse, parent, or a child of a United States citizen, or of an alien lawfully admitted for permanent residence.”
On its face the language of the statute does not appear to limit the type of fraud or misrepresentation that will be waived or the status claimed by the entrant. Reading the statute literally, therefore, one might conclude that as long as the alien was “otherwise admissible” at the time of entry the species of fraud or nature of the entry is immaterial. But, as Learned Hand has wisely warned, “[I]t is commonplace that a literal interpretation of the words of a statute is not always a safe guide to its meaning,” Peter Pan Fabrics Inc. v. Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960). Even more appropriate for present purposes are his remarks in Guiseppi v. Walling, 144 F.2d 608, 624 (2d Cir. 1944) (concurring opinion), where he stated:
“It does not therefore seem to me an undue liberty to give the section as a whole the meaning it must have had, in spite of the clause with which it begins. . . . There is no surer way to misread any document than to read it literally; in every interpretation we must pass between Scylla and Charybdis; and I certainly do not wish to add to the barrels of ink that have been spent in logging the route. As nearly as we can, we must put ourselves in the place of those who uttered the words, and try to divine how they would have dealt with the unforeseen situation; and, although their words are by far the most decisive evidence of what they would have done, they are by no means final.” (144 F.2d at 624.)
See also Federal Deposit Ins. Corp. v. Tremaine, 133 F.2d 827, 830 (2d Cir. 1943) (L. Hand, C. J.). (“There is no surer guide in the interpretation of a statute than its purpose when that is sufficiently disclosed; nor any surer mark of over solicitude for the letter than to wince at carrying out that purpose because the words used do not formally quite match with it.“) Apparently the Supreme Court had these principles of statutory construction in mind in Errico, supra, where it rejected a literal application of
The legislative history of
Nothing in the text or history of
“This section also provides for leniency in the consideration of visa applications made by close relatives of United States citizens and aliens lawfully admitted for permanent residence who in the past may have procured documentation for entry by misrepresentation” (emphasis supplied) 103 Cong.Rec. 16301.
Similarly Senator Eastland, Chairman of the Senate Judiciary Committee, in commenting on those sections of the 1961
“Sections 13, 14, 15 and 16 of the bill also incorporate into the basic statute provisions which have been contained in separate enactments. Those provisions relate to the waiver of grounds of inadmissibility and deportability in the cases of certain close relatives of U.S. citizens and lawful permanent residents involving convictions of minor criminal offenses, fraudulent misrepresentations in connection with applications for visas or admission to the United States.” (Emphasis supplied) 107 Cong.Rec. 19653-19654.
In short, Congress was concerned with fraud on the part of persons seeking to enter as aliens. An alien, whether seeking entry as an immigrant or as a non-immigrant (e. g., temporary visitor, temporary worker, foreign official, treaty alien, or the like) must first apply to the proper American authority abroad for a visa (immigrant or non-immigrant) or other prescribed documentary permission to enter. Next he must submit himself at the point of entry to an INS official for “inspection” as an alien. See Gordon and Rosenfield, Immigration Law and Procedure (1972) §§ 3.1 to 3.28, and
There is no evidence that Congress had in mind extending the waiver of deportation to an attempt to by-pass completely this immigration screening process and required “inspection” of aliens at the border. If petitioners had entered the United as aliens and had not falsely claimed to be citizens they would have been required first to undergo a screening process designed to ascertain whether they were admissible and to have submitted to an “inspection” of them at the border. To attempt years later to reconstruct the information that would have been obtained from that process in order to ascertain whether they would have been “otherwise admissible” at the time of entry is extremely difficult, if not impossible.
Petitioners concede that regardless how
Enforcement of
The United States consular officer is given broad discretionary authority in ruling upon visa applications. For instance, applications may be denied because the “aliens . . . in the opinion of the consular officer at the time of application for a visa . . . are likely at any time to become public charges,”
Assuming that a visa is issued by the American consul to an immigrant, the visa still represents only prima facie evidence of eligibility and does not assure the holder of admission into the United States. Upon arrival at the port of entry the alien is again examined, this time by INS officers who are also given broad authority to exclude him if found inadmissible. Again the immigrant is examined medically, undergoing quarantine inspection by medical officers of the Public Health Service,
In contrast to the foregoing detailed screening process developed for determination of the admissibility of immigrants, the returning United States citizen needs only to furnish evidence of his citizenship, usually in the form of a passport. Lesser evidence is required upon re-entry through land portals. While the inspector has the right to determine whether the citizenship claim appears to be valid, United States ex rel. Lapides v. Watkins, 165 F.2d 1017 (2d Cir. 1948), for obvious reasons the examination of re-entering citizens must of necessity be limited as compared with the detailed inspection of aliens seeking entry. Gordon & Rosenfield, Immigration Law & Procedure, § 3.16b, p. 3-93 (1973). To suggest, as does our dissenting brother, that since the INS has the power to verify a claim of United States citizenship made by an entrant, “the solution is in tightened security” overlooks the fact that with over 100 million American citizens re-entering the United States annually, of whom more than 95 million enter through bor-
Confronted with the burden of establishing that but for their fraud they were “otherwise admissible” at the time of entry petitioners, relying principally upon the Ninth Circuit‘s decision in Lee Fook Chuey v. INS, 439 F.2d 244 (9th Cir. 1971), suggest that they should now be permitted nunc pro tunc to show that if they had gone through the regular immigration screening process several years ago they would have been found to be admissible. Were we dealing solely with simple objective facts that could be easily ascertained after the passage of years, such as information recorded in birth or death records, it might be feasible to make a retroactive determination of an alien‘s qualitative admissibility. But a mere review of the numerous grounds specified by Congress as the bases for finding the alien to be ineligible to receive a visa or for excluding him upon attempted entry persuades us that a post hoc investigation would not be an adequate substitute for the exhaustive contemporaneous probe and examination required of the consular and INS services. In many if not most cases where
For these reasons we are satisfied that Congress did not intend to permit
Aside from these circumstances showing that Congress did not intend in enacting
If petitioners had not falsely claimed to be citizens, there would have been an “inspection” of them at the border. The initial question faced by us is whether the fact that immigration officials saw them at the time when they falsely claimed to be citizens at Chula Vista constituted an “inspection” within the meaning of
“There is, unfortunately, no definition of the term ‘inspection’ anywhere in the act. In addition to section 1255(a), section 1251(a)(2) uses the term in providing that anyone who enters the United States without inspection shall be subject to deportation. Some cases under this section and its predecessors have held that false statements to immigration inspectors have the effect of preventing meaningful inspection and, accordingly, render an alien deportable. E. g., United States ex rel. Volpe v. Smith, 7 Cir., 1933, 62 F.2d 808, aff‘d on other grounds, 289 U.S. 422, 53 S.Ct. 655, 77 L.Ed. 1298. Others have held to the contrary. E. g., Ex parte Gouthro, E. D., Mich., 1924, 296 F. 506, aff‘d sub nom. United States v. Southro, 6 Cir., 1925, 8 F.2d 1023. We find no case, however, holding that the acceptance of a false claim to United States citizenship, enabling an alien to enter the country without registering as an alien, constitutes inspection, or is equivalent to having been inspected. See, e. g., Ben Huie v. INS, 9 Cir., 1965, 349 F.2d 1014.” Goon Mee Heung v. INS, 380 F.2d at 236-237.
Relying on Errico and Lee Fook Chuey, petitioners urge, in an argument that has been accepted by our dissenting brother Judge Mulligan, that the humanitarian interest in family unity overrides the concern for a procedural system designed to insure immigration law enforcement. It is true that in Errico the Supreme Court, in construing
The argument that
In Lee Fook Chuey the Ninth Circuit, faced with the issue here confronted, held that
“A false claim of citizenship obviously frustrates a major policy of our immigration law which is the inspection of aliens. This petitioner not only brazenly pretended to be a United States citizen but used that lying assertion to leave and return to the United States on at least three occasions without being inspected as the alien he was and is. . . . In situations involving ‘otherwise inadmissible,’ there is nothing in Errico to justify the waiver of the documentary requirements for entry as petitioner seeks here. Matter of K, 9 I. & N. Dec. 585 (B.I.A.1962). This court in Bufalino v. Holland, 277 F.2d 270 (3 Cir. 1960), cert. den. 364 U.S. 863, 81 S.Ct. 103, 5 L.Ed.2d 85 held that under
8 U.S.C. § 1251(a)(5) , petitioner was ‘otherwise inadmissible’ at the time of the entry in question. 277 F.2d at 278. Errico dealt with a problem where the fraudulent citizenship representations were made to circumvent quota restrictions and not to destroy the primary purpose of the regulation, which was to force alien inspection (as in the instant matter).” 473 F.2d at 731-732.
Our view that an alien entering the United States under a false claim of American citizenship should not be treated as one gaining entry as an alien but like one surreptitiously entering the United States finds support in Goon Mee Heung v. INS, supra, where the court stated:
“Whatever the effect other misrepresentations may arguably have on an alien‘s being legally considered to have been inspected upon entering the country, we do not now consider; we are here concerned solely with an entry under a fraudulent claim of citizenship. Aliens who enter as citizens, rather than as aliens, are treated substantially differently by immigration authorities. This examination to which citizens are subjected is likely to be considerably more perfunctory than that accorded aliens. Gordon & Rosenfield, Immigration Law and Procedure § 316d (1966). Also, aliens are required to fill out alien registration forms, copies of which are retained by the immigration authorities.
8 C.F.R. §§ 235.4 ,264.1 ;8 U.S.C. §§ 1201(b) ,1301-1306 . Fingerprinting is required for most aliens.8 U.S.C. §§ 1201(b) ,1301-1302 . The net effect, therefore, of a person‘s entering the country as an admitted alien is that the immigration authorities, in addition to making a closer examination of his right to enter in the first place, require and obtain information and a variety of records that enable them to keep track of the alien after his entry. Since none of these requirements is applicable to citizens, an alien who enters by claiming to be a citizen has effectively put himself in a quite different position from other admitted aliens, one more comparable to that of a person who slips over the border and who has, therefore, clearly not been inspected.” 380 F.2d at 237 (Emphasis added).
In our view there comes a point where, in construing
The petition for review is dismissed.
MULLIGAN, Circuit Judge (dissenting):
The issue before us is whether an alien who obtains entry into this country by falsely claiming United States citizenship, can qualify as “an alien otherwise admissible at the time of entry,” within the meaning of
INS has taken the position that the protection of the statute is extended only to those aliens who present themselves as aliens with fraudulent visas. Otherwise, we are advised, the elaborate system of visa issuance might be eroded. The difficulty with this position, which has been adopted by the majority, is of course that the statute makes no such distinction and the only other court to face the identical question has ruled that there is no such distinction. Lee Fook Chuey v. INS, 439 F.2d 244 (9th Cir. 1971).1 The statute is not limited to
Although the language of the statute is clear, the majority opinion, which apparently concedes that the Reids are literally within its protection, seeks to avoid the provision, invoking the shades of Learned Hand for the general proposition that it is somewhat dangerous to read the language of a statute literally. It is at least equally dangerous to take Learned Hand literally, without examining the problems of construction involved in the case he was deciding.2 Even the quoted excerpt from Giuseppi v. Walling, 144 F.2d 608, 624 (2d Cir. 1944), indicates that Judge Hand was referring to an “unforeseen situation,” not contemplated by the draftsmen of the statute. He still observed that the words employed are “by far the most decisive evidence” of the intent of the authors.
I cannot possibly imagine, in any event, that it was unforeseen that an alien might seek to gain entry to the United States by posing as a citizen. The alien can secure admission fraudulently either with a visa procured by misrepresentation or by falsely posing as an American citizen. The latter alternative could not realistically have been overlooked by the Congress and the language of the statute covers both situations.
In support of the position of INS, the majority argues that the Supreme Court “apparently” had the Hand principles of statutory construction in mind when it refused to apply Section 241(f) literally in INS v. Errico, 385 U.S. 214, 87 S.Ct. 473, 17 L.Ed.2d 318 (1966). If the Court had the Hand “principles” in mind in that case, it concealed that fact from all but the clairvoyant. The Court made no secret of its approach to the statute when it decided that an alien who misrepresented his status for the purpose of evading quantitative quota restrictions, was nonetheless entitled to the protection of
“We resolve the doubts in favor of that construction because deportation is a drastic measure and at times the equivalent of banishment or exile, Delgadillo v. Carmichael, 332 U.S. 388, 68 S.Ct. 10, 92 L.Ed. 17. It is the forfeiture for misconduct of a residence in this country. Such a forfeiture is a penalty. To construe this statutory provision less generously to the alien might find support in logic. But since the stakes are considerable for the individual, we will not assume that Congress meant to trench on his 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, 68 S.Ct. 374, 92 L.Ed. 433.
See also Barber v. Gonzales, 347 U.S. 637, 642-643, 74 S.Ct. 822, 98 L.Ed. 1009
In sum, the canons of construction applied by the Supreme Court in Errico are not conjectural but are explicit and support the position of the Reids here. I submit that the statute is clear and that no construction is necessary at all. In Errico, the Supreme Court avoided a literal reading of Section 241(f) because it would thwart the humanitarian purposes of the statute.3 Here, a literal reading of the statute concededly supports the position of the Reids and fully comports with the humanitarian purposes of the legislation. I therefore fail to understand how Errico now compels a construction which would contort the plain language of the statute and thwart its humanitarian purposes.
The majority opinion appeals to the legislative history of Section 241(f) for support of the thesis that the congressional intent was not to waive the essential substantive or procedural steps to which an alien must submit in order to obtain a visa. Of course, legislative history is “a legitimate aid to the interpretation of a statute where its language is doubtful or obscure . . . But when taking the act as a whole, the effect of the language used is clear to the court, extraneous aid like this can not control the interpretation.” Wisconsin R. R. Comm‘n v. Chicago, B. & Q. R. R., 257 U.S. 563, 589, 42 S.Ct. 232, 237-238, 66 L.Ed. 371 (1922); accord, Holtzman v. Schlesinger, 484 F.2d 1307, 1314 (2d Cir. 1973).
I find the language lucid but in any event I find nothing in the legislative history to support the suggested dichotomy. Section 241(f) by its terms applies to aliens who have “procured . . . entry into the United States by fraud or misrepresentation.” This is the clause the majority has excised from the statute. The term “entry” into the United States is defined in
Moreover, the historical excursion in my view is fruitless. I have found nothing in the available legislative history to support the proposition now sought to be advanced by the majority. Even the emphasized language of Senator Eastland‘s statement set forth in the majori-
Aside from this, I cannot accept the argument that the Reids here, by the “brazen” statement that they were citizens of the United States, thus frustrated the screening processes of INS. If they are this porous, then the solution is a tightened security and not the mutilation of Section 241(f).
The argument of the majority that
U.S. citizens. A person claiming U.S. citizenship must establish that fact to the examining immigration of-
ficer‘s satisfaction and must present a U.S. passport if such passport is required under the provisions of 22 CFR Part 53. If such an applicant for admission fails to satisfy the examining immigration officer that he is a U.S. citizen, he shall thereafter be inspected as an alien. (emphasis added).
See also
It is also significant that
Whenever any person makes application for a visa or any other document required for entry, or makes application for admission, or otherwise attempts to enter the United States, the burden of proof shall be upon such person . . . (emphasis added).
In short, INS is not helpless in the face of a claim by an alien that he is a United States citizen. If he is suspected of being an alien, he must be inspected as an alien. I fail to see how recourse to Sections 1225(a) or 1361 advances the position of the majority by a jot or a tittle.6
The blunder7 of the constable here results, in effect, in the deportation of the petitioners as well as their native-born American sons.
I indeed agree that an alien who applies for a visa in advance of his entry into the United States is more readily investigated than one who poses as an American citizen at the point of entry. But this point is not raised in the legislative history and is not mentioned in the statute.8 The administrative inconvenience to INS in making a post hoc investigation of the Reids’ qualitative admissibility is de minimis, in my view, in contrast to what the dismissal of this petition accomplishes.
Mr. and Mrs. Reid are both gainfully employed in this country, have never been arrested since arriving and belong to no subversive organizations. There is no hint or suggestion that they are or have been qualitatively deficient in any of the categories mentioned by the majority. They have, moreover, become the parents of two native-born American boys who, by reason of their infancy (now ages 2 and 4), have no alternative but involuntary exile. The sins of the father are now literally visited upon the sons. I had thought that this was what the statute was designed to avoid.
At his deportation hearing, the petitioner Reid was asked if he had any-
I have got something to say, but I don‘t know whether it‘s going to make any difference. On the back of the form you say to show reason why you should not be deported. We have plenty reason why we shouldn‘t be deported. For one we have two kids and if we are deported we ain‘t got no home to go back to. Everything we had was abandoned. Taking two kids back there like sending two kids to die from malnutrition.
Even if the statute were ambiguous, I think it should be construed in favor of the Reids and their infant native-born sons. Where they are literally within its protection, as the majority admits, recourse to a supposed principle of construction which makes clear language suspect is neither convincing nor persuasive. I believe there is “plenty reason” to set aside the order of deportation and I emphatically dissent from the holding of the majority.
Notes
“(a) Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General, be deported who—
* * * * *
“(2) entered the United States without inspection or at any time or place other than as designated by the Attorney General or is in the United States in violation of this chapter or in violation of any other law of the United States; . . .” I do not overlook Bufalino v. INS, 473 F.2d 728 (3d Cir.), cert. denied, 412 U.S. 928 (1973), cited by the majority for the proposition that the Third Circuit has held that Section 241(f) is inapplicable to an alien‘s reentry into the United States on a false claim of citizenship. Judge McLaughlin‘s opinion, containing the language relied upon, expressed his view only. The separate concurring opinion of Judge Adams, concurred in by Judge Van Dusen, dismissed the petition for review there on other grounds and specifically found it unnecessary to determine the applicability of Section 241(f). See 473 F.2d at 739 n. 4.
“(a) Except as otherwise provided in this chapter, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States:
* * * * *
“(19) Any alien who seeks to procure, or has sought to procure, or has procured a visa or other documentation, or seeks to enter the United States, by fraud, or by willfully misrepresenting a material fact; . . .” We must read statutes “literally” just as we must so read the opinions of courts. We do it everyday. It is only when a literal reading would lead to some absurdity or grotesquerie that we are free to do otherwise. Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 202, 4 L.Ed. 529 (1819). Otherwise, of course, we would be anticipating Orwell by exactly a decade, and could sympathize with More‘s Utopians, who would have no lawyers amongst them since they considered it our profession to disguise matters.
“(a) The inspection, other than the physical and mental examination, of aliens (including alien crewman) seeking admission or readmission to or the privilege of passing through the United States shall be conducted by immigration officers, except as otherwise provided in regard to special inquiry officers. All aliens arriving at ports of the United States shall be examined by one or more immigration officers at the discretion of the Attorney General and under such regulations as he may prescribe. Immigration officers are authorized and empowered to board and search any vessel, aircraft, railway car, or other conveyance, or vehicle in which they believe aliens are being brought into the United States.” The Supreme Court stated:
The only specific reference to the part of § 7 that deals with close relatives of United States citizens or residents is in the House Committee Report, and it says only that most of the persons eligible for relief would be
“Mexican nationals, who, during the time when border-control operations suffered from regrettable laxity, were able to enter the United States, establish a family in this country, and were subsequently found to reside in the United States illegally.” H.R.Rep.No.1199, 85th Cong. 1st Sess. p. 11.
Without doubt most of the aliens who had obtained entry into the United States by illegal means were Mexicans, because it has always been far easier to avoid border restrictions when entering from Mexico than when entering from countries that do not have a common land border with the United States. There is nothing in the Committee Report to indicate that relief under the section was intended to be restricted to Mexicans, however. Neither does it follow that, because Mexicans are not subject to quota restrictions, therefore nationals of countries that do have a quota must be within the quota to obtain relief. 385 U.S. 214, 223-224, 87 S.Ct. 473, 479-480 (1966).