United States v. Witkovich/Dissent Clark

Mr. Justice CLARK, with whom Mr. Justice BURTON joins, 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), 8 U.S.C.A., § 1252(a). This Court approved such custody in Carlson v. Landon, 1952, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547. 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), 8 U.S.C.A. § 1252(c). The section here in question further declares that an alien under a final order of deportation for over six months 'shall, pending eventual deportation, be subject to supervision under regulations prescribed by the Attorney General.' 64 Stat. 1011, as amended, 8 U.S.C. (Supp. IV) § 1252(d), 8 U.S.C.A. § 1252(d). The Attorney General has implemented this provision by a regulation requiring the alien, inter alia, to 'Give information under oath as to his nationality, circumstances, habits, associations and activities, and other information whether or not related to the foregoing as may be deemed fit and proper.' 8 CFR § 242.3(c)(3). This language was taken from subsection (3) of 8 U.S.C. § 1252(d), 8 U.S.C.A. § 1252(d), the source of the Attorney General's power of supervision. But today the Court has denied the Attorney General the right to question the deportee in regard to activities in conjunction with the deportee's prior conduct on which the deportation order was based. By its interpretation the Court has deleted the crux of this subsection from the Act and limited this phase of the Attorney General's 'supervision' of aliens under final deportation order for over six months solely to interrogation relevant to the availability of the alien for deportation. In this respect the construction places an alien who has been under a final order of deportation for more than six months in a more favorable position than one who is under no order at all. Other aliens are obliged to report to the Attorney General when called upon to do so. Indeed, they must testify or claim their privilege. No privilege was claimed here. The Congress could not have intended the anomalous result reached today, one which is entirely foreign to its over-all plan of control over resident aliens. For the power of the Attorney General over aliens generally see 66 Stat. 223-225, 8 U.S.C. §§ 1301-1306, 8 U.S.C.A. §§ 1301-1306.

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 within the community,' United States ex rel. Potash v. District Director of Immigration and Naturalization, 2 Cir., 1948, 169 F.2d 747, 751, was the basis on which the Congress placed this power with the Attorney General. In short, 'the alien's anticipated personal conduct * *  * (based on his past action) must be considered.' See the dissenting opinion in Carlson v. Landon, supra, 342 U.S. at pages 563-564, 72 S.Ct. at pages 545-546. And so here, highly relevant to the decision regarding any additional supervision that is to be placed over appellee, or the removal of any prior supervision, is information as to whether he has resumed his past activities in the Communist Party. Yet the Court does not allow inquiry into this and related areas unless it is necessary to determine appellee's availability for deportation. The Attorney General is thereby deprived of this information vital to the exercise of his supervisory duties.

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 inquires 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 be prescribed. 66 Stat. 224, 8 U.S.C. § 1304(a), 8 U.S.C.A. § 1304(a). In addition, all aliens must register and be fingerprinted, 66 Stat. 224, 8 U.S.C. § 1302, 8 U.S.C.A. § 1302; they must notify the Attorney General of their address annually and any change must be filed within 10 days thereof, 66 Stat. 225, 8 U.S.C. § 1305, 8 U.S.C.A. § 1305. Criminal penalties are imposed for willful failure to comply with any of these registration provisions, 66 Stat. 225, 8 U.S.C. § 1306, 8 U.S.C.A. § 1306. Congress thought that deportees should have closer supervision than other aliens. As the Court indicated in Carlson v. Landon, supra, 342 U.S. at page 538, 72 S.Ct. at page 533, 'aliens arrested for deportation would have opportunities to hurt the United States * *  * .' Deportees have a stronger motivation for carrying on subversive activities than other persons and are more likely to adopt old habits, return to old haunts, and resume old activities. Since 1939 Congress had been considering the tightening of controls over such aliens. Even then a bill introduced in Congress referred to 'the likelihood of the alien's resuming the course of conduct which made him deportable.' H.R. 5643, 76th Cong., 1st Sess.; 84 Cong.Rec. 5179. In the Eighty-first Congress a House Committee declared in comment on its bill which contained a provision similar to that here involved, 'The situation has now become so serious * *  * that the committee feels that the enactment of legislation of this type is a necessity, not only to the proper administration of the immigration laws, but from the standpoint of the national security of the United States.' H.R.Rep. No. 1192, 81st Cong., 1st Sess. 8. Before the presidential veto of the proposed Internal Security Act of 1950, H.R. 9490, 81st Cong., 2d Sess., of which this provision was a part, but to which the President expressed no opposition on constitutional grounds, a substitute bill had been offered in the Senate. This proposal contained the identical language which this Court now reads out of the Act, i.e., requiring the alien 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.' While this substitute bill was not enacted, the same language was included within the present Act, showing that the section here involved has long been acceptable to all sides. In view of the legislative history of the forerunners of the present provision it is surprising that the Court now reads out of the Act the identical language which has repeatedly been included by the Congress. In so doing the Court deprives the Attorney General of a power of supervision over deportees that he possesses and exercises every day over other aliens not under deportation orders.

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 give the Attorney General 'the unlimited right to subject a man to criminal penalties for failure to answer absolutely and question * *  * .' 140 F.Supp., at page 821. There is nothing in the record to indicate that the Attorney General attempted further to 'inhibit' the appellee 'from renewing activities that subjected (him) to deportation.' It may be that the Attorney General would have tried further to 'inhibit' appellee if the answers put to him had indicated any necessity therefor in the interest of national security. But that stage was never reached. All the Attorney General undertook was to question appellee. He got no answers. And the Court, in affirming, prevents the Attorney General from obtaining any answers to the questions. It is for this reason that we dissent. The scope of the Attorney General's right to inquiry is the sole issue here. The Congress beyond any question gave the Attorney General the authority he exercised. Whether it placed further authority in his hands to 'inhibit' the alien's activities is not involved. We, therefore, see no necessity of invoking the rule of avoidance of constitutional questions. There are none to avoid for the Attorney General clearly has the right to question as to activities indicated by past conduct. It will be soon enough to pass on other supervisory powers when they are here.

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. Commonwealth of Pennsylvania v. Nelson, 1956, 350 U.S. 497, 503-504, 76 S.Ct. 477, 480-481, 100 L.Ed. 640. Several thousand alien Communists who have been finally ordered deported will from now on, due to the Court's decision today, be under virtually no statutory supervision. Still they will, in all probability, remain among us for neither they nor the countries of which they are nationals wish them to leave. To their countries they are potential agents. The House Committee on the Judiciary recognized this danger in its report on facilitating the deportation of aliens. H.R.Rep. No. 1192, 81st Cong., 1st Sess. 8-13. Case histories set out in this report indicate that aliens ordered deported were refused visas by their native countries so that they might remain in the United States and carry on the very activities for which they were ordered deported. See also Hearings before the Senate Subcommittee on Immigration and Naturalization of the Committee on the Judiciary on S.1832, 81st Cong., 1st Sess. 323. Were the deportee to cease the activity, no doubt his native land would issue the requisite visa and deal with him when he was returned.

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 explusion 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 from requiring the alien to give him the information. It is vital to effective supervision by the Attorney General for him to have the information he sought here. We believe that the counterbalancing necessity of preventing further detrimental conduct, or at least providing the authorities charged with the internal security of our country with some warning signal of it, substantially outweighs 'issues touching liberties' which might be raised by the interrogation. Like 'the police establishment of fire lines during a fire * *  * the validity of the restraints *  *  * depends on all the conditions which obtain at the time *  *  * .' Hirabayashi v. United States, 1943, 320 U.S. 81, 99, 63 S.Ct. 1375, 1385, 87 L.Ed. 1774.

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.