374 U.S. 449 (1963), 248, Rosenberg v. Fleuti

Docket Nº:No. 248
Citation:374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000
Party Name:Rosenberg v. Fleuti
Case Date:June 17, 1963
Court:United States Supreme Court

Page 449

374 U.S. 449 (1963)

83 S.Ct. 1804, 10 L.Ed.2d 1000




No. 248

United States Supreme Court

June 17, 1963

Argued March 26, 1963




Respondent is an alien who was admitted to this country for permanent residence in 1952 and has been here continuously since, except for a visit of "about a couple hours" duration to Ensenada, Mexico, in 1956. After administrative proceedings, he was ordered deported on the ground that, at the time of his return in 1956, he was "afflicted with psychopathic personality" within the meaning of § 212(a)(4) of the Immigration and Nationality Act of 1952, and, therefore, was excludable under 241(a)(1). The District Court sustained the deportation order, but the Court of Appeals set it aside on the ground that, as applied to respondent, § 212(a)(4) was unconstitutionally vague.


1. This Court ought not to pass on the constitutionality of § 212(a)(4), as applied to respondent, unless such adjudication is unavoidable, and there is a threshold question as to whether respondent's return to this country from his afternoon trip to Mexico in 1956 constituted an "entry" within the meaning of § 101(a)(13) of the Immigration and Nationality Act of 1952, so as to subject him to deportation for a condition existing at that time, but not at the time of his original admission before the 1952 Act became effective. Pp. 451-452.

2. It would be inconsistent with the general ameliorative purpose of Congress in enacting § 101(a)(13) to hold that an innocent, casual and brief excursion by a resident alien outside this country's borders was "intended" as a departure disruptive of his resident alien status, so as to subject him to the consequences of an "entry" into the country on his return. Pp. 452-462.

3. Because attention was not previously focused upon the application of §101(a)(13) to this case, and the record contains no detailed description or characterization of respondent's trip to

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Mexico in 1956, the judgment below is vacated, and the case is remanded for further consideration of the application of that section in the light of this opinion. Pp. 462-463.

302 F.2d 652, judgment vacated and case remanded.

GOLDBERG, J., lead opinion

[83 S.Ct. 1806] MR. JUSTICE GOLDBERG delivered the opinion of the Court.

Respondent Fleuti is a Swiss national who was originally admitted to this country for permanent residence on October 9, 1952, and has been here continuously since except for a visit of "about a couple hours" duration to Ensenada, Mexico, in August, 1956. The Immigration and Naturalization Service, of which petitioner Rosenberg is the Los Angeles District Director, sought in April, 1959, to deport respondent on the ground that, at the time of his return in 1956, he "was within one or more of the classes of aliens excludable by the law existing at the time of such entry," Immigration and Nationality Act of 1952, § 241(a)(1), 66 Stat. 204, 8 U.S.C. § 1251(a)(1). In particular, the Service alleged that respondent had been "convicted of a crime involving moral turpitude," § 212(a)(9), 66 Stat. 182, 8 U.S.C. § 1182(a)(9), before his 1956 return, and had, for that reason, been excludable when he came back from his brief trip to Mexico. A deportation order issued on that ground, but it was discovered a few months later that the order was invalid because the crime was a petty offense not of the magnitude encompassed within the statute. The deportation proceedings were thereupon reopened, and a new charge was lodged against respondent: that he had been excludable

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at the time of his 1956 return as an alien "afflicted with psychopathic personality," § 212(a)(4), 66 Stat. 182, 8 U.S.C. § 1182(a)(4), by reason of the fact that he was a homosexual. Deportation was ordered on this ground and Fleuti's appeal to the Board of Immigration Appeals was dismissed, whereupon he brought the present action for declaratory judgment and review of the administrative action. It was stipulated that among the issues to be litigated was the question whether § 212(a)(4) is "unconstitutional as being vague and ambiguous." The trial court rejected respondent's contentions in this regard and in general, and granted the Government's motion for summary judgment. On appeal, however, the United States Court of Appeals for the Ninth Circuit set aside the deportation order and enjoined its enforcement, holding that, as applied to Fleuti, § 212(a)(4) was unconstitutionally vague in that homosexuality was not sufficiently encompassed within the term "psychopathic personality." 302 F.2d 652.

The Government petitioned this Court for certiorari, which we granted in order to consider the constitutionality of § 212(a)(4) as applied to respondent Fleuti. 371 U.S. 859. Upon consideration of the case, however, and in accordance with the long established principle that "we ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable," Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 105; see also Alma Motor Co. v. Timken-Detroit Axle Co., 329 U.S. 129; Neese v. Southern R. Co., 350 U.S. 77; Mackey v. Mendoza-Martinez, 362 U.S. 384; we have concluded that there is a threshold issue of statutory interpretation in the case, the existence of which obviates decision here as to whether § 212(a)(4) is constitutional as applied to respondent.

That issue is whether Fleuti's return to the United States from his afternoon trip to Ensenada, Mexico, in

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August, 1956, constituted an "entry" within the meaning of § 101(a)(13) of the Immigration and Nationality Act of 1952, 66 Stat. 167, 8 U.S.C. § 1101(a)(13), such that Fleuti was excludable for a condition existing at that time even though he had been permanently and continuously resident in this country for nearly four years prior thereto. Section 101(a)(13), which has never been directly construed by this Court in relation to the kind of brief absence from the country [83 S.Ct. 1807] that characterizes the present case,1 reads as follows:

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 that an alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purposes of the immigration laws if the alien proves to the satisfaction of the Attorney General that his departure to a foreign port or place or to an outlying possession was not intended or reasonably to be expected by him. or his presence in a foreign port or place or in an outlying possession was not voluntary: Provided, That no person whose departure from the United States was occasioned by deportation proceedings, extradition, or other legal process shall be held to be entitled to such exception.

The question we must consider, more specifically, is whether Fleuti's short visit to Mexico can possibly be regarded as a "departure to a foreign port or place . . . [that] was not intended," within the meaning of the

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exception to the term "entry" created by the statute. Whether the 1956 return was within that exception is crucial, because Fleuti concededly was not excludable as a "psychopathic personality" at the time of his 1952 entry.2

The definition of "entry," as applied for various purposes in our immigration laws, was evolved judicially, only becoming encased in statutory form with the inclusion of § 101(a)(13) in the 1952 Act. In the early cases, there was developed a judicial definition of "entry" which had harsh consequences for aliens. This viewpoint was expressed most restrictively in United States ex rel. Volpe v. Smith, 289 U.S. 422, in which the Court, speaking through Mr. Justice McReynolds, upheld deportation of an alien who, after 24 years of residence in this country following a lawful entry, was held to be excludable on his return from "a brief visit to Cuba," id. at 423. The Court stated that

the word "entry" . . . includes any coming of an alien from a foreign country into the United States, whether such coming be the first or any subsequent one.

Id. at 425.3 Although cases in the lower courts applying the

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strict reentry doctrine to aliens who had left the country for brief visits to Canada or Mexico or elsewhere were numerous,4 many courts applied the doctrine in such instances with express reluctance and explicit recognition of its harsh consequences,5 and there were a few instances in which district judges refused to hold that aliens who had been absent from the country only briefly had made "entries" upon their return.6

Reaction to the severe effects produced by adherence to the strict definition of "entry" resulted in a substantial inroad being made upon that definition in 1947 by a decision of the Second Circuit and a decision of this Court. The Second Circuit, in an opinion by Judge Learned Hand, refused to allow a deportation which depended on the alien's being regarded as having reentered this country

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after having taken an overnight sleeper from Buffalo to Detroit on a route lying through Canada. Di Pasquale v. Karnuth, 158 F.2d 878. Judge Hand recognized that the alien " acquiesced in whatever route the railroad might choose to pull the car," id. at 879, but held that it would be too harsh to impute the carrier's intent to the alien, there being no showing that the alien knew he would be entering Canada. "Were it otherwise," Judge Hand went on,

the alien would be subjected without means of protecting himself to the forfeiture of privileges which may be, and often are, of the most grave importance to him.

Ibid. If there were...

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