United States v. Witkovich
United States v. Witkovich
Opinion of the Court
delivered the opinion of the Court.
Appellee was indicted under § 242 (d) of the Immigration and Nationality Act of 1952, 66 Stat. 163, 208, originally part of § 23 of the Internal Security Act of 1950, 64 Stat. 1010, on the charge that, as an alien against whom a final order of deportation had been outstanding
The Section, as amended, 68 Stat. 1232, 8 U. S. C. (Supp. II) § 1252 (d), is as follows:
“(d) Any alien, against whom a final order of deportation as defined in subsection (c) heretofore or hereafter issued has been outstanding for more than six months, shall, pending eventual deportation, be subject to supervision under regulations prescribed by the Attorney General. Such regulations shall include provisions which will require any alien subject to supervision (1) to appear from time to time before an immigration officer for identification; (2) to submit, if necessary, to medical and psychiatric examination at the expense of the United States; (3) to give information under oath as to his nationality, circumstances, habits, associations, and activities, and such other information, whether or not related to the foregoing, as the Attorney General may deem fit and proper; and (4) to conform to such*196 reasonable written restrictions on his conduct or activities as are prescribed by the Attorney General in his case. Any alien who shall willfully fail to comply with such regulations, or willfully fail to appear or to give information or submit to medical or psychiatric examination if required, or knowingly give false information in relation to the requirements of such regulations, or knowingly violate a reasonable restriction imposed upon his conduct or activity, shall be fined not more than $1,000 or imprisoned not more than one year, or both.”
The District Court construed § 242 (d) as conferring upon the Attorney General “power to supervise the alien to make sure he is available for deportation, and no further power.” Accordingly, it held that clause (3) of this subsection is to be restricted to require only “such information as is necessary to enable the Attorney General to be certain that the alien is holding himself in readiness to answer the call to be deported when it comes.” 140 F. Supp., at 819-820. The court found that the questions listed in the indictment, which are set forth in the margin,
The Government does not support the questions put to the alien on the basis of the construction that the District Court placed upon § 242 (d). This construction authorizes all questions reasonably appropriate to keep the Attorney General advised regarding the continued availability for departure of a deportable alien. The Government contends that the District Court misconceived the scope of the statute. It points to what it characterizes as “the eloquent breadth” of clause (3), whereby the alien is to give “such other information, whether or not related to the foregoing, as the Attorney General may deem fit and proper.” This, says the Government, establishes a requirement “in the broadest possible statutory terms for the furnishing of information by the alien.” And this view, it maintains, fits into the statutory scheme. In the circumstances defined by § 242 (a), an alien may be detained pending determination of deportability; and § 242 (c) authorizes such detention for six months after the alien has been found deportable. So, the Government argues, § 242 (d), though it does not authorize detention after six months, is an attempt to accomplish in a modified form the ends that would justify detention in the earlier stages of the deportation process. Our decision in Carlson v. London, 342 U. S. 524, is heavily invoked. If, so the argument runs, detention of active alien Communists pending deportation hearings was sustainable under § 242 (a), the national interest in avoiding recurrence of past Communist activity for which appellee is being deported should at least require him to answer questions regarding any present Communist relationships. For this view of the purpose of supervision, support is found in two other statutory provisions:
The language of § 242 (d)(3), if read in isolation and literally, appears to confer upon the Attorney General unbounded authority to require whatever information he deems desirable of aliens whose deportation has not been effected within six months after it has been commanded. The Government itself shrinks from standing on the breadth of these words. But once the tyranny of literalness is rejected, all relevant considerations for giving a rational content to the words become operative. A restrictive meaning for what appear to be plain words may be indicated by the Act as a whole, by the persuasive gloss of legislative history or by the rule of constitutional adjudication, relied on by the District Court, that such a restrictive meaning must be given if a broader meaning would generate constitutional doubts.
The preoccupation of the entire subsection of which clause (3) is a part is certainly with availability for deportation. Clause (1) requires the alien’s periodic appearance for the purpose of identification, and clause (2) dealing with medical and psychiatric examination, when necessary, clearly is directed to the same end; and the “reasonable written restrictions on [the alien’s] conduct or activities” authorized by clause (4) have an implied scope to be gathered from the subject matter, i. e., the object of the statute as a whole. Moreover, this limi
The legislative history likewise counsels confinement of the mere words to the general purpose of the legislative scheme of which clause (d) is a part, namely, the actual deportation of certain undesirable classes of aliens. Section 242 (d), as it was reported by the House Judiciary Committee and passed by the House in 1949, was in its present state in all but one significant respect. It provided for indefinite detention of any alien who wilfully failed to comply with the regulations, to appear, to give information or to submit to medical examination, or who knowingly gave false information or violated a reasonable restriction upon his activity. H. R. Rep. No. 1192, 81st Cong., 1st Sess., pp. 2-3. The report of the House Committee, although in several places focusing only upon availability for deportation, does indicate concern over the threat to the national interest represented by undesirable but undeportable aliens. The Senate Judiciary Committee, while sharing the desire of the House
Acceptance of the interpretation of § 242 (d) urged by the Government would raise doubts as to the statute’s validity. By construing the Act to confer power on the Attorney General and his agents to inquire into matters that go beyond assuring an alien’s availability for deportation we would, at the very least, open up the question of the extent to which an administrative officer may inhibit deportable aliens from renewing activities that subjected them to deportation. See 70 Harv. L. Rev. 718. This is not Carlson v. Landon, supra, where the question was whether an alien could be detained during the customarily brief period pending determination of deportability. Contrariwise, and as the Senate and House Committees recognized in passing on § 242 (d), supervision of the undeportable alien may be a lifetime problem. In these circumstances, issues touching liberties that the Constitution safeguards, even for an alien “person,” would fairly be raised on the Government’s view of the statute.
The path of constitutional concern in this situation is clear.
“When the validity of an act of the Congress is drawn in question, and even if a serious doubt of*202 constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Crowell v. Benson, 285 U. S. 22, 62.
See also cases cited in the concurring opinion of Mr. Justice Brandeis in Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 348, note 8.
Section 242 (d) is part of a legislative scheme designed to govern and to expedite the deportation of undesirable aliens, and clause (3) must be placed in the context of that scheme. As the District Court held and as our own examination of the Act confirms, it is a permissible and therefore an appropriate construction to limit the statute to authorizing all questions reasonably calculated to keep the Attorney General advised regarding the continued availability for departure of aliens whose deportation is overdue. Accordingly, the judgment of the District °°urt is
Affirmed.
“(a) Q. Do you subscribe to the Daily Worker?
“ (b) Q. Mr. Witkovich, can you read in any other language other than Slovene and English?
“(c) Q. Since the order of supervision was entered on March 4, 1954, have you at any time visited the office of the ‘Narodny Glasnik/ 1413 West 18th Street, Chicago, Illinois?
“(d) Q. Since the order of supervision was entered on March 4, 1954, Mr. Witkovich, have you ever visited the offices of the Bohemian publication ‘Nova Dova’ or the Slovakian publication 'Ludovy Noviny/ 1510 West 18th Street, Chicago, Illinois?
“(e) Q. Do you know the editor of the ‘Narodni Glasnik’?
“(f) Q. Do you know Leo Fisher?
“(g) Q. Do you know Anton Minerich?
“(h) Q. Do you know Nick Rajkovich?
“(j) Q. Do you know John Zuskar?
“(k) Q. Do you know Calvin Brook?
“(1) Q. Since the order of deportation was entered in your case on June 25, 1953 have you attended any meeting of the Communist Party of the U. S. A.?
“(m) Q. Since the order of supervision was entered on March 4, 1954 have you attended any meeting of any organization other than the singing club?
“(n) Q. Have you addressed any lodges of the Slovene National Benefit Society requesting their aid in your ease, since the order of deportation was entered June 25, 1953?
“(o) Q. Have you distributed petitions or leaflets published by the Slovene National Benefit Society seeking aid for you, in your behalf, in your deportation ease since the order of deportation was entered June 25, 1953?
“(p) Q. Since the order of supervision have you attended any meetings or lectures at the Peoples Auditorium, 2457 West Chicago Avenue, Chicago, Illinois?
“(q) Q- Since the order of supervision was entered against you have you attended any meetings or socials at the Chopin Cultural Center, 1547 North Leavitt Street, Chicago?
“(r) Q. Have you attended any movies since your order of supervision was entered at the Cinema Annex, 3210 West Madison Street, Chicago ?
“(s) Q. Are you acquainted with an individual named Irving Franklin ?
“(t) Q. Are you now a member of the Communist Party of U. S. A.?
“(u) Q. Are you now or have you ever been a member of the Slovene American National Council?
“(v) Q. Are you now or have you ever been a member of the United Committee of South Slavic Americans?”
Dissenting Opinion
dissenting.
The Congress has authorized the Attorney General to retain an alien in custody during the pendency of deportation proceedings. 66 Stat. 208, 8 U. S. C. § 1252 (a). This Court approved such custody in Carlson v. Landon, 342 U. S. 524 (1952). The Congress has also authorized the Attorney General to retain an alien in custody for six months subsequent to a final order of deportation within which to “effect the alien's departure.” 66 Stat. 210, 8 U. S. C. § 1252 (c). The section here in question further declares that an alien under a final order of
The majority reasons that the entire subsection of which clause (3) is a part is preoccupied with an alien’s availability for deportation. We believe, however, that “the danger to the public safety of [the alien’s] presence
The statute was motivated by national security problems with which the Congress felt impelled to deal. In § 1252 (d) Congress was not concerned with “actual deportation,” but with that class of deportees who could not be deported because no country would permit them entrance. It believed that an alien finally ordered deported but who could no longer be held in custody pending eventual effectuation of the order should be under the supervision of the Attorney General. All aliens, regardless of their status, are under some supervision and must answer inquiries in respect to: (1) the date and place of their entry into the United States; (2) the activities in which they have been and intend to be engaged; (3) the length of time they expect to remain in the United States; (4) their police or criminal record, if any; and (5) such additional matters as may he prescribed. 66 Stat. 224, 8 U. S. C. § 1304 (a). In addition, all aliens must register
The Court takes the position that any construction other than that today adopted “would, at the very least, open up the question of the extent to which an administrative officer may inhibit deportable aliens from renewing activities that subjected them to deportation.” But no such question is involved here. As the trial judge puts the issue, it is whether the Congress may constitutionally
However, since the majority has enlarged the issue to include the power to restrict the alien’s activities we feel it necessary to comment thereon. We believe that the purpose of the Act was to prevent a deportable alien from using the period of his further residence" for the continuation of subversive, criminal, immoral, or other undesirable activities which formed the basis of his ordered deportation. This is a part of the “congressional plan” with reference to control of subversive activities within the United States. Pennsylvania v. Nelson, 350 U. S. 497, 503-504 (1956). Several thousand alien Communists who have
In our view the power of the Congress with respect to aliens is exceedingly broad. Nothing points this out more forcibly than our own cases. Congress may expel any noncitizen it may determine is undesirable. The power given here is merely supplemental to that of expulsion and is a necessary concomitant thereof under the circumstances here presented. It gives to the- Attorney General supervision of alien deportees whose past record discloses, activities dangerous to our people. The appellee does not contest the charge as to his past activities. As we see it, the Congress has merely provided limited supervision which might prevent the alien from resuming the activity which brought on his ordered deportation. It may turn out that further limited supervisory precautions need not be exercised over appellee. However, we are in no position to know. The Attorney General himself does not know because he was prevented
To us jailing alien deportees on the basis of our safety pending deportation proceedings as well as for six months thereafter, admittedly valid, is largely futile if the Attorney General cannot subsequently supervise them effectively. Certainly the Congress intended no such stultification.
We regret that the Court has used the rule of avoidance of constitutional issues to strip the Attorney General of this important power so necessary in the performance of his duty to protect our internal security.
The alien registration form includes a long series of questions requiring answer under oath by the alien. It covers virtually every type of question involved here, except those directed at whether the
The President in his message to the Congress explaining his veto of the Internal Security Act of 1950 stated that he would “be glad to approve” § 23, the forerunner of the section here involved, “although the language of [§ 23] is in some respects weaker than is desirable.” H. R. Doc. No. 708, 81st Cong., 2d Sess. 3.
S. 4130, 81st Cong., 2d Sess. This substitute was proposed by Senators Benton, Douglas, Graham, Humphrey, Kefauver, Lehman, and the Chairman of the Senate Judiciary Committee, Senator Kil-gore. For a discussion of the effect of the bill on the problem here presented see the remarks of Senator Humphrey at 96 Cong. Rec. 14486.
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