Rosenberg v. Fleuti

Decision Date17 June 1963
Docket NumberNo. 248,248
PartiesGeorge K. ROSENBERG, District Director, Immigration and Naturalization Service, Petitioner, v. George FLEUTI
CourtU.S. Supreme Court

Philip R. Monahan, Washington, D.C., for petitioner.

Hirman W. Kwan, Los Angeles, Cal., for respondent.

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 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, 83 S.Ct. 117, 9 L.Ed.2d 97. 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, 65 S.Ct. 152, 154, 89 L.Ed. 101; see also Alma Motor Co. v. Timken-Detroit Axle Co., 329 U.S. 129, 67 S.Ct. 231, 91 L.Ed. 128; Neese v. Southern R. Co., 350 U.S. 77, 76 S.Ct. 131, 100 L.Ed. 60; Mackey v. Mendoza-Martinez, 362 U.S. 384, 80 S.Ct. 785, 4 L.Ed.2d 812; 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 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 that characterizes the present case,1 reads as follows:

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 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, 53 S.Ct. 665, 77 L.Ed. 1468, 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, 53 S.Ct. at 666. 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, 53 S.Ct. at 667. 3 Although cases in the lower courts applying

the strict re-entry 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 re-entered this coun- try 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 a duty upon aliens to inquire about a carrier's route, it 'would in practice become a trap, whose closing upon them would have no rational relation to anything they could foresee as significant. We cannot believe that Congress meant to subject those who had acquired a residence, to the sport of chance, when the interests at stake may be so momentous.' Ibid. Concluding, Judge Hand said that if the alien's return were held to be an 'entry' under the circumstances, his 'vested interest in his residence' would

'be forfeited because of perfectly lawful conduct which he could not possibly have supposed would result in anything of the sort. Caprice in the incidence of punishment is one of the indicia of tyranny, and nothing can be more disingenuous than to say that deportation in these circumstances is not punishment. It is well that we should be free to rid ourselves of those who abuse our hospitality; but it is more important that the continued enjoyment of that hospitality once granted, shall not be subject to meaningless and irrational hazards.' Ibid.

Later the same year this Court, because of a conflict between Di Pasquale and Del Guercio v. Delgadillo, 159 F.2d 130 (C.A.9th Cir. 1947), granted certiorari in the latter case and reversed a deportation order affecting an alien who, upon rescue after his intercoastal merchant ship was torpedoed in the Caribbean during World War II, had been taken to Cuba to recuperate for a week before returning to this country. Delgadillo v. Carmichael, 332 U.S. 388, 68 S.Ct. 10, 92 L.Ed. 17. The Court pointed out that it was 'the exigencies of war, not his voluntary act,' id., at 391, 68 S.Ct. at 12, which put the alien on foreign soil, adding that '(w)e might as well hold that if he had been kidnapped and taken to Cuba, he made a statutory 'entry' on his voluntary return. Respect for law does not thrive on captious interpretations.' Ibid. Since '(t)he stakes are indeed high and momentous for the alien who has acquired his residence here,' ibid., the Court held that

'(w)e will not attribute to Congress a purpose to make his right to remain here dependent on circumstances so fortuitous and capricious as those upon which the Immigration Service has here seized. The hazards to which we are now asked to subject the alien are too irrational to square with the statutory scheme.' Ibid.

The increased protection of returning resident aliens which was brought about by the Delgadillo decision, both in its result and in its express approval of Di Pasquale, was reflected in at least two subsequent lower-court decisions prior to the enactment of § 101(a)(13). In Yukio Chai v. Bonham, 165 F.2d 207 (C.A.9th Cir. 1947), the court held that no 'entry' had occurred after a ship carrying a resident alien back from seasonal cannery work in Alaska made an unscheduled stop in Vancouver, B.C., and in Carmichael v....

To continue reading

Request your trial
335 cases
  • Cermeno-Cerna v. Farrell, Civ. No. 68-403-R.
    • United States
    • U.S. District Court — Central District of California
    • August 2, 1968 apply to an 1101(a) (27) (B) immigrant and that the regulation must be read against the background of Rosenberg v. Fleuti, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963). A reading of the challenged portion of 8 C.F.R. 211.1(b) (1) would indicate that it applies to (1) an alien, (2)......
  • Amos v. Corporation of Presiding Bishop
    • United States
    • U.S. District Court — District of Utah
    • January 11, 1984
    ...Federation of Labor v. McAdory, 325 U.S. 450, 461, 65 S.Ct. 1384, 1389, 89 L.Ed. 1725 (1945). Accord Rosenberg v. Fleuti, 374 U.S. 449, 451, 83 S.Ct. 1804, 1806, 10 L.Ed.2d 1000 (1963) (courts "`ought not to pass on questions of constitutionality ... unless such adjudication is unavoidable.......
  • Rafeedie v. INS
    • United States
    • U.S. District Court — District of Columbia
    • June 15, 1988 Chew.32 See Landon v. Plasencia, 459 U.S. 21, 33, 103 S.Ct. 321, 329-30, 74 L.Ed.2d 21 (1982); Rosenberg v. Fleuti, 374 U.S. 449, 460, 83 S.Ct. 1804, 1811, 10 L.Ed.2d 1000 (1963). The same rationale would apply here should plaintiff prevail on the merits of his constitutional claims. The......
  • Bufalino v. Immigration and Naturalization Service
    • United States
    • U.S. Court of Appeals — Third Circuit
    • January 30, 1973
    ...He asserts that these necessitate reconsideration of his deportability. He urges that in the light of Rosenberg v. Fleuti, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963), Woodby v. Immigration and Naturalization Service, 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966) and Immigration......
  • Request a trial to view additional results
1 books & journal articles
  • Retroactivity and immigrant crimes since St. Cyr: emerging signs of judicial restraint.
    • United States
    • University of Pennsylvania Law Review Vol. 154 No. 3, January 2006
    • January 1, 2006
    ...were not considered, upon their return, to be applying for "entry" into the United States. See id. at 395 (quoting Rosenburg v. Fleuti, 374 U.S. 449, 461-62 (1963) (interpreting 8 U.S.C. [section] 1101(a)(13))). IIRIRA replaced the term "entry" with "admission" and applied IIRIRA to residen......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT