United States v. Campos-Serrano/Dissent Blackmun

Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE and Mr. Justice WHITE join, dissenting.

The Court today affirms the judgment of the Court of Appeals 'upon a discrete statutory ground' and does not reach the questions with respect to which certiorari was granted. This statutory ground was rejected by the District Court when it denied a defense motion to dismiss the indictment. It was also rejected by the Court of Appeals. 430 F.2d 173, at 175-176. I would reject it here.

The statutory issue to which the Court retreats is whether an alien registration card is a 'document required for entry into the United States,' within the meaning of 18 U.S.C. § 1546. The Court holds, somewhat to the surprise of the litigants I am sure, that the card is not such a document, and that Campos-Serrano's indictment, therefore, charged no offense under the statute. I feel that this conclusion has no support either in the statutory language and meaning or in the legislative history, and is certainly not supported by the practice, long in effect, at our Nation's borders.

* The parent of § 1546 is § 22(a) of the Immigration Act of 1924. 43 Stat. 165. That statute did not refer to 'any immigrant or nonimmigrant visa, permit, or other document required for entry into the United States,' as § 1546 does today. Instead, it spoke only of 'any immigrant visa or permit.' Nevertheless, even under the definition of 'permit' in this order and narrower statute, Congress specifically included a temporary re-entry paper issued to and used by a resident alien who wished to leave the country for a period of less than one year. Clearly, therefore, the statutory scheme, as far back as 1924, contemplated that knowing possession of an altered document useful only for reentering the United States was punishable as a felony.

The registration card came into being with Title III of the Alien Registration Act of 1940, 54 Stat. 673. At first it served only for identification of the alien who had complied with the registration requirements. Section 30 of the 1940 Act, however, authorized the use of a separate 'border-crossing identification card' by a resident alien in order to enable him to return to the United States after temporary travel to a contiguous country.

An INS regulation filed May 29, 1952, provided that a registration card, issued on or after September 10, 1946, 'shall constitute a resident alien's border crossing card' and could be used by the alien in effecting re-entry into the United States provided he had not visited any foreign territory other than Canada or Mexico. 17 Fed.Reg. 4921-4922. This was the first time a registration card, as such, was recognized as a re-entry document. But it was so recognized. Five years later its use was expanded with respect to re-entry from nations that were not contiguous. 22 Fed.Reg. 6377 (1957). Its use for this purpose has continued to the present time. 8 CFR § 211.1(b) (1971).

In addition to this administrative practice, the statutory language itself was expanded. Section 22(a) of the 1924 Act was repealed in 1948 and simultaneously re-enacted without significant change as 18 U.S.C. § 1546 and as part of that year's general recodification of the federal criminal laws. 62 Stat. 771, 865. Finally, § 1546 was amended to its present form by § 402(a) of the Immigration and Nationality Act of 1952. 66 Stat. 275.

There is no room for dispute that the 1952 change served to broaden, not to contract, the number of documents within the prohibition of § 1546. The 1924 reference to 'any immigration visa or permit' is obviously but a lesser part of the later and still current phrase, 'any immigrant or nonimmigrant visa, permit, or other document required for entry.' See United States v. Rodriguez, 182 F.Supp. 479, 484 n. 3 (SD Cal.1960), rev'd in part on other grounds, sub nom. Rocha v. United States, 288 F.2d 545 (CA9), cert. denied, 366 U.S. 948, 81 S.Ct. 1902, 6 L.Ed.2d 1241 (1961). From 1924 until the 1952 legislation, narrower statutory language nevertheless had covered a document used solely for re-entry. Surely nothing in the expanded language of 1952 suggests congressional intent thenceforth to confine the statute to initial-entry documents. Indeed, congressional intent to the contrary, that is, to enlarge the coverage of § 1546, is evident not only from the statute's words but, as well, from the definition of 'entry' in the 1952 Act, § 101(a)(13), 66 Stat. 167, 8 U.S.C. § 1101(a)(13):

'The term 'entry' means any coming of an alien into the     United States, from a foreign port or place or from an      outlying possession, whether voluntarily or otherwise, except. . ..' (Emphasis supplied.)

From this it inevitably follows that the phrase 'document required for entry' embraces a document used for re-entry into the United States. One document of that kind is the alien registration card.

This brief but clear administrative and legislative history, it seems to me, reveals and proves the intent of Congress and the meaning and reach of the statute. The alien registration card, Form I-151, became one of a number of documents specified and accepted and required for re-entry.

The Court's opinion, as I read it, seems to accept most of all this, that is, that there is no § 1546 distinction between 'entry' and 're-entry,' and that an alien registration card is a document 'required' for entry into the United States. Ante, at 298.

Having made this broad and, to me, sensible reading of § 1546, the Court, however, then reverses direction and conveniently restricts § 1546 to 'a very special class of 'entry' documents documents whose primary raison d'e tre is the facilitation of entry into the country,' and it accuses the INS of standing to gain 'an open-ended reference to future administrative regulations' if the Government were to prevail here. The reasons for this change of direction are not apparent to me. The Court's comparison of the registration card to a driver's license in this context is wide of the mark. A driver's license has nothing to do with immigration. A registration card has everything to do with immigration. It is authorized under the immigration statutes. It is required of a resident alien. 8 U.S.C. §§ 1301-1306. And for almost two decades it has been a re-entry document.

The fact that there may be some overlapping between § 1546 and 8 U.S.C. § 1306(d) does not prevent the application of § 1546 to the alien registration card. Section 1306(d) came into being as § 266(d) of the 1952 Act, 66 Stat. 226. It does refer specifically to 'an alien registration receipt card,' whereas § 1546 has no such specific reference. The two sections, however, have different purposes and relate to different aspects of immigration. Section 266(d) was a part of the Act's chapter that concerned 'Registration of Aliens.' It has to do with the implementation and protection of the alien registration scheme. It reached counterfeiting alone. Section 1546, on the other hand, is concerned with entry into the country and with the integrity of documents used in effecting entry. It is not restricted to counterfeiting. It also reaches knowing possession and alternation.

The Court's exclusion of the alien registration card from the reach of § 1546 leaves entirely free from punishment the alteration of a card and the possession of a card with knowledge of its altered or counterfeit character. Surely Congress did not intend to leave that loophole.

I therefore dissent from the Court's affirmance of the judgment of the Court of Appeals upon the 'discrete statutory ground.' I would decide that issue as the Court of Appeals decided it and I would go on to reach the questions we anticipated when we granted the petition for certiorari.