Mrvica v. Esperdy/Opinion of the Court

This case involves construction of the provisions of § 249 of the Immigration and Nationality Act, 66 Stat. 163, 219, 8 U.S.C. § 1259, which in certain circumstances permits an alien illegally in this country to apply for a record of lawful admission into the United States for permanent residence.

The petitioner is a native and citizen of Yugoslavia, who entered this country under a temporary landing permit in January 1940, as a nonimmigrant crewman attached to a merchant ship. He remained beyond the period allowed by the permit without permission until September 4, 1942, when a warrant for his deportation was issued. Soon thereafter, he signed as a member of the crew of a Yugoslav ship about to depart from the United States. The ship sailed with the petitionr on board on October 6, 1942, and, after calling at several ports in Chile, returned to the United States on December 19, 1942. The petitioner was detained on board ship for several days, but was then allowed to go ashore for medical treatment. He has not left the country since.

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 petitioner's appeal. Other proceedings followed, which ultimately resulted in 1959 in an order that the petitioner be deported to Yugoslavia. The petitioner's application for the status of a permanent resident under § 249 of the Immigration and Nationality Act was denied on the ground, explained more fully below, that his departure in 1942 made him ineligible for such discretionary relief because it deprived him of the prerequisite continuous residence in the United States since 1940. In 1960 the petitioner brought this action in the United States District Court for review of the administrative ruling and a declaratory judgment that he was eligible for relief under § 249. The District Court granted summary judgment for the respondent, 202 F.Supp. 214, which the Court of Appeals affirmed, 317 F.2d 220. We granted certiorari, 375 U.S. 894, 84 S.Ct. 171, 11 L.Ed.2d 123, and now affirm the rulings below.

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, 19 4, 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      inadmissible 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.

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 ' * *  * any 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). Any possible doubt of the import of this provision is removed by H.R.Rep.No. 2418, 70th Cong., 2d Sess., 6, which explained the provision as follows:

'Owing to the inadequacy of the appropriations now 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 has a Yugoslavian passport.

The petitioner challenges none of the above. He pitches his argument on the statutory definition of 'residence' as 'the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.' Immigration and Nationality Act, § 101(a) (33), 66 Stat. 170, 8 U.S.C. § 1101(a)(33). The petitioner argues that the statute makes 'residence' a question of observable fact, and that, on this basis, his residence throughout the 1942 voyage must be taken as having remained in the United States. He points to various circumstances surrounding his departure which, he argues, establish that his 'residence,' as defined above, was not interrupted in 1942, although he was physically absent from the United States for the period of the voyage.

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.'

This clause, included in the warrant pursuant to statutory authority, relieved the petitioner of the combined effect of provisions making arrest and deportation a basis for exclusion and depriving an alien seaman subject to exclusion of landing privileges. The petitioner suggests that due to wartime conditions deportation to Yugoslavia was impossible in 1942 and that the order of deportation was therefore in reality but a formality or fiction, everyone involved understanding, as the 'Ninth Proviso clause' is said to attest, that he would be readmitted when his ship returned.

This argument contradicts what is plainly shown by the record. 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. No reason is suggested why the immigration authorities should have gone through a meaningless ritual of deportation for the purpose of not deporting the petitioner. The ameliorative clause on which the petitioner relies indicates, if anything, that the petitioner was not intended to be readmitted as a resident; his admission was conditioned on a finding that he was 'a bona fide seaman and entitled to shore leave' and was authorized only 'for such time as the alien may be admitted as a seaman.'

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,      13 S.Ct. 1016, 1028, 37 L.Ed. 905.

It would be quite impossible to consider that a deported alien, whose re-entry into this country within a year of deportation would be a felony, nevertheless continues to reside in this country.

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.

Affirmed.

Mr. Justice GOLDBERG, with whom Mr. Justice BLACK and Mr. Justice DOUGLAS join, dissenting.