Bonetti v. Rogers/Dissent Clark

by Tom C. Clark

United States Supreme Court

356 U.S. 691

Bonetti  v.  Rogers

 Argued: April 7, 1958. --- Decided: June 2, 1958

Mr. Justice CLARK, with whom Mr. Justice FRANKFURTER and Mr. Justice HARLAN concur, dissenting.

Petitioner entered the United States in 1923, being admitted for permanent residence at that time. From 1932 to 1936 he was a member of the Communist Party. In 1937 he voluntarily left the country to fight in the Spanish Civil War. A year later, in 1938, he returned and again was admitted. At that time our law did not exclude members or past members of the Communist Party.

In 1950 the Congress passed the Internal Security Act, § 22 of which required the Attorney General to deport all aliens who were Communist Party members 'at the time of entering the United States, or * * * at any time thereafter.' 64 Stat. 1008. As early as the Alien Registration Act of 1940, 54 Stat. 670, 673, the Congress had provided, as explained by the Senate Committee on the Judiciary, 'that any alien who has been a member of (a proscribed class) at any time after his admission to the United States (for no matter how short a time or how far in the past so long as it was after the date of entry), shall be deported.' S.Rep. No. 1796, 76th Cong., 3d Sess. 3. In enacting § 22 of the Act of 1950, the Congress stated, 'The purpose * * * is to strengthen the provisions of existing law with respect to the exclusion and deportation of subversive aliens.' S.Rep. No. 2230, 81st Cong., 2d Sess. 5. This report further declared, '(T)he conclusion is inescapable that * * * the Communist movement in the United States is an alien movement. * * * The severance of this connection and the destruction of the life line of communism becomes * * * an immigration problem.' Id., at 16. Additional classes of aliens were made deportable 'at any time after entry, whether or not membership in the class has ceased.' Id., at 23. The construction of the section as applying to membership after any entry-including the first as well as the last seems to be demanded by this legislative history. See also 84 Cong.Rec. 10448-10449 (remarks of Representative Hobbs), 86 Cong.Rec. 8343 (remarks of Senator Connally). That the Act applies retroactively to all aliens regardless of the time of their entry is admitted. See Galvan v. Press, 1954, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911. The simple test, therefore, is whether the alien was at any time a member of the Communist Party upon or after coming to the United States, regardless of how many entries he may have made. Petitioner was a Party member subsequent to his arrival in 1923, so the language 'at any time thereafter' clearly makes the section applicable to him.

But today the Court, in effect, writes the word 'last' into the statute. The result is that an alien who has been a member of the Communist Party in the United States is deportable only if 'at the time of last entering the United States, or * * * at any time thereafter,' he was a member. This cripples the effectiveness of the Act, permitting aliens to escape deportation solely because they happen to leave and then re-enter the country. It is conceded by the Court that had petitioner remained here he would have been deportable. Hence, the construction of the Court restricts the literal sense of the 1950 Act to aliens who have continuously remained in the United States.

This innovation is contrary to decades of uninterrupted administrative interpretation and practice, and also to prior cases of this Court. The Immigration and Naturalization Service has always construed 'entry' as meaning any coming of an alien from a foreign country to the United States. ^[1] The Congress recognized this interpretation when considering the Immigration and Nationality Act of 1952. H.R.Rep. No. 1365, 82d Cong., 2d Sess. 32; S.Rep. No. 1137, 82d Cong., 2d Sess. 4. ^[2] The Court, however, side-steps this authority by saying that 'the novel circumstances here' preclude our consideration of the 1923 entry because 'petitioner had abandoned all rights of residence under that entry.' But that is not the question. True, petitioner makes no claim under the 1923 entry and the 1938 admission is not dependent on the former but was a regular 'quota immigrant' entry. Nevertheless, petitioner is an alien who entered and 'thereafter' was a member of the Communist Party while in the United States. Any number of additional entries-in 1938 or otherwise-cannot wipe out that fact.

In United States ex rel. Volpe v. Smith, 1933, 289 U.S. 422, 53 S.Ct. 665, 77 L.Ed. 1298, the question was whether an alien's criminal conviction had occurred 'prior to entry' within the meaning of § 19 of the Immigration Act of 1917. 39 Stat. 889. The alien contended that 'entry' should be construed as meaning, in effect, 'first entry,' but the argument was rejected. The Court said, 'An examination of the Immigration Act of 1917, we think, reveals nothing sufficient to indicate that Congress did not intend the word 'entry' * * * should have its ordinary meaning.' 289 U.S. at page 425, 53 S.Ct. at page 667. See also United States ex rel. Claussen v. Day, 1929, 279 U.S. 398, 49 S.Ct. 354, 73 L.Ed. 758. Petitioner here makes the converse argument that the word 'entering' should be modified to read 'last entering.' I would not so amend the statute in disregard of the long and uniform judicial, legislative, and administrative history whereby 'entry' has acquired a definitive, technical gloss, to wit, its ordinary meaning and nothing more or less. Therefore, I would affirm the judgment of the Court of Appeals.

Notes

1. For a comprehensive review of administrative action with regard to re-entry of resident aliens, see Lowenstein, The Alien and the Immigration Law, 206-213.
2. Although the Act of 1952 is not directly involved here, it is significant that the meaning of 'entry' was codified in § 101(a)(13) as 'any coming of an alien into the United States, from a foreign port or place or from an outlying possession * * *.' 66 Stat. 167, 8 U.S.C. § 1101(a)(13), 8 U.S.C.A. § 1101(a) (13).