376 U.S. 560 (1964), 353, Mrvica v. Esperdy

Docket Nº:No. 353
Citation:376 U.S. 560, 84 S.Ct. 833, 11 L.Ed.2d 911
Party Name:Mrvica v. Esperdy
Case Date:March 30, 1964
Court:United States Supreme Court

Page 560

376 U.S. 560 (1964)

84 S.Ct. 833, 11 L.Ed.2d 911




No. 353

United States Supreme Court

March 30, 1964

        Argued March 5, 1964




        An alien seaman, who first entered this country in January 1940, and who left as a seaman on a foreign ship in October, 1942, after a warrant for his deportation was issued, who then returned and has remained here since December, 1942, has not had continuous residence in the United States since his original entry within the meaning of § 29 of the Immigration and Nationality Act. He therefore cannot qualify under that provision for a record of lawful admission into the United States for permanent residence. Pp. 560-568.

        317 F.2d 220, affirmed.

        HARLAN, J., lead opinion

        MR. JUSTICE HARLAN delivered the 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

Page 561

in January, 1940,1 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 petitioner 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 [84 S.Ct. 835] days, but was then allowed to go ashore for medical treatment.2 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

Page 562

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, 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, 1924, 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;

Page 563

(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. § 1259.3

       It is agreed by both sides that the petitioner satisfies all the specified criteria except the requirement of continuous [84 S.Ct. 836] 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).4

Page 564

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.5

Page 565

       [84 S.Ct. 837] 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

Page 566

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...

To continue reading