Mrvica v. Esperdy/Dissent Goldberg

by Arthur Goldberg

United States Supreme Court

376 U.S. 560

Mrvica  v.  Esperdy

 Argued: March 5, 1964. --- Decided: March 30, 1964

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

Congress humanely designed § 249 of the Immigration and Nationality Act of 1952, as amended by the Act of August 8, 1958, 72 Stat. 546, 8 U.S.C. § 1259, to permit the Attorney General, if specified conditions are satisfied, to regularize the status of certain categories of aliens illegally in the country. Among the prerequisites for obtaining permanent resident status-' registry' as it is commonly termed-are (1) entry prior to June 28, 1940, (2) continuous residence in the United States thereafter, and (3) good moral character.

The Court acknowledges that petitioner has satisfied the entry and character conditions of the statute. It holds, however, that the continuous residence requirement has not been satisfied because petitioner must be considered, as a matter of law, to have been deported in October 1942 when he sailed as a crewman aboard the Yugoslavian vessel S.S. Dubravka on a round trip voyage of two and a half months' duration between California and Chile.

The difficulty with the Court's conclusion is that it rests, as I shall show, entirely on a legal fiction. I am unwilling to attribute to Congress, in enacting this remedial provision designed to regularize the status of long-res dent aliens illegally in the country, an intent to deport them on the basis of legal fictions refuted by facts.

The warrant of September 4, 1942, on which the Court relies, directed petitioner's deportation to Yugoslavia. The Government concedes, as indeed it must, the 'practical impossibility' of deporting petitioner to Yugoslavia in 1942 in the midst of the war. Yugoslavia was then overrun and occupied by enemy forces. Petitioner could not have been, and was not in fact, deported to Yugoslavia. The Government suggests that it could have deported petitioner to Great Britain which was then the seat of the Yugoslav Government in exile. In fact, however, while other Yugoslav seamen stranded in the United States were deported to Great Britain during the war, petitioner was not. The Government does not claim that it actually executed the warrant in this way. The warrant itself shows that petitioner was not deported to Yugoslavia, Great Britain or any other foreign country. In returning the warrant as 'executed,' and immigration official scribbled on its face 'Reshipped.' ^[1] He also caused to be typed after the printed word 'Executed' on the warrant, 'October 6th, 1942 Jogo Slav MS Dubravka.' The record also contains the following telegram from agents of the Service to the Commissioner of Immigration and Naturalization:

'Ellis Island, N.Y.H., October 21, 1942-99563/665.

'Immigration & Naturalization Service,

'Philadelphia, Pa.

'ATWAR Ivan Mrvica * * * RESHIPPED.

'W. J. Zucker,

'Acting District Director

'New York District

'By

'J. A. CHRISTOPHERSON

'Inspector in Charge

'Law Division'

'The alien reshipped foreign October 6, 1942, ex MS Dubravka, from San Pedro, California. Original warrant of deportation, appropriately executed, is attached.c

In light of this record of what actually occurred, there is no support for the Court's conclusion that: '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.' Ante, at 567. On the contrary, the record clearly shows that petitioner was not actually deported to Yugoslavia in accordance with the terms of the warrant. Equally untenable is the Government's argument that by taking the single brief round-trip voyage to South America petitioner terminated his continuous residence in the United States: 'because the vessel he boarded flew the Yugoslav flag * * * it may be said that petitioner at once resumed his former Yugoslav residence. * * * His actual dwelling place in fact was his ship.'

The definition of residence in the Immigration and Nationality Act refutes the view that by his 'physical presence' on the ship petitioner abandoned his American residence. ^[2] The statute, § 101(a)(33) of the Immigration and Nationality Act of 1952, states that the 'term 'residence' means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact * * *.' There can be no doubt that in fact petitioner's dwelling place was not the ship; his 'place of general abode' was on shore in the United States where it has been continuously since January 1940. Ever since he entered and overstayed his leave in January 1940, petitioner has sought by all available means to remain in the United States. His single aim from which he has never deviated has been to regularize his status in the country. ^[3] The Court's view that petitioner by ship ing to South America departed the United States is a legal conclusion under the circumstances here, a mere legal fiction. It must be remembered that the voyage which is said to have terminated petitioner's residence was a wartime voyage on a privately owned ship which, although flying a Yugoslav flag, was then part of the allied merchant marine under the effective control of the United States.

Of course where an alien is subject to a warrant of deportation and with the permission of the Government knowingly and voluntarily leaves the country in order to avoid the consequences of enforced deportation, he will be deemed to have 'left the United States,' within the meaning of the statute applicable at the time of petitioner's voyage. 8 U.S.C. (1940 ed.) § 180(b). This statute, however, like all the provisions of the Immigration Law, 'cannot be 'mechanically applied," Costello v. Immigration and Naturalization Service, 376 U.S. 120, 130, 84 S.Ct. 580, 586, to a situation where, as here, the facts negate voluntary departure.

There is nothing in the record of this case to show that petitioner was advised or notified that he was being deported when he shipped on the Yugoslav vessel. To the contrary the record shows, in the language of an immigration officer, that petitioner 'reshipped.c Nor can it be said that he did so 'voluntarily.' The Government frankly states, what is commonly known, that there was a shortage of merchant seamen during the war, and that all available means were used to insure that foreign seamen stranded in this country would 'ship foreign,' i.e., on allied merchant ships. I imply no criticism of the Government's efforts to man needed ships under the exigencies of war. I do maintain, however, that the circumstances negate the claim that petitioner 'voluntarily' departed or left the United States when he 'reshipped.'

The petitioner and the Government both knew when he sailed, moreover, that because of the prevailing wartime conditions and the limited itinerary of the voyage, he would shortly return and would be readmitted to the United States. Indeed in the warrant itself, petitioner was given express permission, notwithstanding the alleged deportation, to receive shore leave on returning. ^[4] Under these circumstances, it is my view that petitioner in fact never gave up his residence in the United States. ^[5] Since he never abandoned his residence in fact, he cannot, under the express terms of § 101, be deemed to have given it up 'as a matter of law.' For under this section residence is one's 'actual dwelling place in fact' to be determined not by petitioner's physical presence on a ship for a short voyage nor by the Government's 'intent' to terminate his residence here-an intent 'executed' merely by making a warrant calling for petitioner's deportation to Yugoslavia 'reshipped §§ Dubravka.' ^[6] Since petitioner, in my view, remained a resident of the United States u der § 101 notwithstanding his brief voyage, it follows that he has met the continuous residence requirement of § 249 and is entitled to registry.

In Costello v. Immigration and Naturalization Service, 376 U.S. at 130, 84 S.Ct. at 586, decided less than two months ago, this Court said that 'in the absence of specific legislative history to the contrary, we are unwilling to attribute to Congress a purpose to extend this fiction (the relationback concept) to the deportation provisions * * *.' We should similarly be unwilling to attribute to Congress a purpose to deport an alien of good moral character who has been a long-time resident of this country and who is otherwise eligible for the relief afforded by § 249 of the Act, by the fiction that he deported himself by shipping, with Government encouragement, as a seaman on a two-and-a-half-month round-trip voyage to South America during the war. In Rosenberg v. Fleuti, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000, we refused to construe 'entry' so mechanically as to impute to Congress the intent 'to exclude aliens long resident in this country after lawful entry who have merely stepped across an international border and returned in 'about a couple of hours." Id., 374 U.S. at 461, 83 S.Ct. at 1812, 10 L.Ed.2d 1000. Here, too, we should refuse to define departure so mechanically as to impute to Congress the intent, contrary to the humane purpose of § 249, to permit the deportation of an alien resident in this country almost a quarter of a century.

Notes

1. The Court's statement that the notation 'Reshipped' was 'made by an unidentified person for an unknown purpose * * *,' is difficult to understand. Ante, at 564, n. 5. The notation appears on the warrant which has continuously been in the exclusive possession of the Government. That this notation could have been and was made only by an immigration official is confirmed by the telegram of October 21, 1942.
2. Section 101(a)(33) provides that:
3. Petitioner never concealed himself from the authorities, either before or after his voyage in 1942. On the contrary, he registered both as an alien and for selective service and was at all times willing, as he testified under oath at the immigration hearing, to 'fight for the United States Government.' He has a brother and other relatives in the United States; and his wife and children, to whom he regularly sends $200 a month in Yugoslavia, have an application pending for a visa to the United States and are awaiting regularization of his status to join him here.
4. The Government correctly argues that such permission did not constitute 'an invitation' to return. This fact does, however, confirm what is clear from the surrounding circumstances, that the Government was fully aware that he would be returning to the United States.
5. While on the ship, petitioner maintained all his ties in the United States, including his bank account and his union membership.
6. In support of its contention that 'a seaman can have his residence aboard a ship,' the Government cites a number of statutes, such as the Act of May 9, 1918, 40 Stat. 542, giving residence credit to a seaman who serves for 'three years on board of merchant or fishing vessels of the United States * * *.' No one questions the power of Congress to grant such credit. The Government points to no statutes or cases, however, which indicate that a single limited round trip voyage by a seaman converts the ship into 'his principal, actual dwelling place in fact.'