Immigration and Naturalization Service v. Errico/Dissent Stewart

by Potter Stewart

United States Supreme Court

385 U.S. 214

Immigration and Naturalization Service  v.  Errico

 Argued: Oct. 20, 1966. --- Decided: Dec 12, 1966

Mr. Justice STEWART, with whom Mr. Justice HARLAN and Mr. Justice WHITE join, dissenting.

The facts in one of these cases (No. 91) vividly illustrate the effect of the Court's interpretation of § 241(f) of the Immigration and Nationality Act. The petitioner, a resident of Jamaica, paid for a sham marriage with an American citizen. A ceremony was held, but the petitioner and her 'husband' parted immediately and have not seen each other since. However, the pretended marriage served its purpose; the petitioner was admitted into this country as a nonquota immigrant upon her false representation that she was the wife of a United States citizen. After this fraudulent entry she managed to become the actual parent of a United States citizen by conceiving and bearing an illegitimate child here.

The Court holds that this unsavory series of events gives the petitioner an unqualified right under § 241(f) to remain in this country ahead of all the honest people waiting in Jamaica and elsewhere to gain lawful entry. ^[1] I can find no support in the statute for such an odd and inequitable result.

'The provisions of this section relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as aliens who have sought to procure, or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation shall not apply to an alien otherwise admissible at the time of entry who is the spouse, parent, or a child of a United States citizen or of an alien lawfully admitted for permanent residence.'

It seems clear to me, for two separate and independently sufficient reasons, that this statute does not operate to bar the deportation of the aliens in the cases now before us. In the first place, § 241(f) has application only to the deportation provisions which are based upon fraudulent entry, and the aliens in these two cases were not ordered to be deported under those provisions. Secondly, even if it were generally applicable, § 241(f) does not cover the aliens involved in these two cases, because neither of them was 'otherwise admissible' at the time of entry.

Section 241(f) by its terms neutralizes only those 'provisions * * * relating to the deportation of aliens within the United States on the ground that they * * * sought to procure * * * entry into the United States by fraud or misrepresentation * * *.' Although the aliens in these two cases could have been deported under those 'provisions,' the deportation proceedings in both cases were in fact brought on grounds unrelated to their procurement of fraudulent visas. Both aliens were ordered to be deported, not because of their fraud, but because they were not properly within their countries' quotas.

The plain terms of § 241(f), therefore, do not even potentially apply to these aliens. ^[2] To hold that § 241(f) is relevant to these cases is tantamount to holding that it is applicable to bar deportation based on any ground at all so long as the alien lied about that ground at the time of his unlawful entry. ^[3] I think nothing could be further from the statutory language or the congressional purpose.

But even if § 241(f) were generally applicable, these aliens could not claim its benefits because they were not within their respective national immigration quotas and therefore were not 'otherwise admissible' at the time they entered the United States. That is the clear import of the statutory qualification, if its words are to be taken at their face value. That, too, has been the uniform and consistent administrative construction of the statute. See Matter of D'O-, 8 I. & N. Dec. 215 (1958); Matter of Slade, 10 I. & N. Dec. 128 (1962).

To except quota requirements of admissibility from the statutory qualification of 'otherwise admissible' would undercut the elaborate quota system which was for years at the heart of the immigration laws. Yet the legislative history of the predecessor of § 241(f), § 7 of the 1957 Act, makes clear that the limited relief given by the statute was to have no effect at all on the quota system. ^[4]

Moreover, the consistent use of the same qualifying phrase, 'otherwise admissible' in other sections of the Immigration and Nationality Act makes clear that, as a term of art, it includes quota admissibility. The term typically follows a definition of grounds for admissibility or for exceptions to deportation, to insure that all the other relevant requirements of the Act are imposed upon the alien. ^[5]

Thus the plain meaning of the 'otherwise admissible' qualification, as well as legislative policy and legislative history, all indicate that the term serves the same basic function in § 241(f) as in other sections of the Act. Fraud is removed as a ground for deportation of those with the requisite family ties, and 'otherwise admissible' insures the integrity of the remainder of the statutory scheme. ^[6]

The Court justifies its disregard of the plain meaning and consistent administrative construction of § 241(f) by resort to the spirit of humanitarianism which is said to have moved Congress to enact the statute. No doubt Congress in 1957 was concerned with giving relief to some aliens who had entered this country by illegal means and established families here. But the people who were to benefit from this genuine human concern were those from countries like Mexico, which had no quota restrictions, and those who had misrepresented their national origins in order to avoid repatriation to Iron Curtain countries. There is nothing to indicate that Congress enacted this legislation to allow wholesale evasion of the Immigration and Nationality Act or as a general reward for fraud.

I respectfully dissent.

Notes

1. When 'Mrs. Scott' made her fraudulent entry in 1958, Jamaica had an annual quota of 100 immigrants and a waiting list of 21,759 hopeful applicants. The corresponding figures for Italy in 1959, the year of Mr. Errico's entry, were 5,666 and 162,612.
2. The Court states that the Government 'concedes' and that 'administrative authorities have consistently held that § 241(f) waives any deportation charge that results directly from the misrepresentation.' Ante, at p. 217. But this concession and administrative practice fall far short of covering these cases. For here the grounds for deportation did not '(result) directly from the misrepresentation.' They antedated and were the reason for the misrepresentation. The 'administrative authorities' cited by the Court turned upon this distinction. In Matter of Y--, 8 I. & N.Dec. 143 (1959), for example, the Board of Immigration Appeals broadened § 241(f) enough to cover fraud-related administrative procedural defects in the alien's entry. It is this construction of § 241(f) which the Government concedes, not the Court's construction which broadens the statute to excuse all disqualifications for entry.
3. Thus, a Communist who had lied to the immigration authorities about his party membership at the time of entry could invoke § 241(f) and remain in this country, while one who had told the truth, but was admitted by virtue of an administrative error, could be deported. See § 212(a)(28), Immigration and Nationality Act.
4. Senator Eastland, Chairman of the Committee which sponsored the 1957 amendments to the Immigration Act, stated, 'the bill does not modify the national origins quota provisions.' 103 Cong.Rec. 15487 (Aug. 21, 1957). See also 103 Cong.Rec. 16300 (Aug. 28, 1957) (remarks of Congressman Celler), '(The bill) makes no changes-no changes whatsoever, in the controversial issue of the national origins quota system.'
5. See, e.g., §§ 211(a) and (b): The War Brides Act, 59 Stat. 659.
6. Under § 7 of the 1957 Act certain aliens had to establish both that they were 'otherwise admissible' and that they had not lied to evade quota restrictions. The Court reasons from this that quota restrictions are not embodied in the 'otherwise admissible' qualification. But this reasoning is inconsistent with the Court's conclusion concerning the general applicability of § 241(f), discussed in Part I of this dissent.

Section 7 of the earlier Act provided as follows:

'The provisions of section 241 of the Immigration and Nationality Act relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as (1) aliens who have sought to procure, or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation, or (2) aliens who were not of the nationality specified in their visas, shall not apply to an alien otherwise admissible at the time of entry who * * *.' (Emphasis supplied.)

If the present meaning of 'otherwise admissible' is to be determined by the 1957 Act, so then must other parts of the statute be similarly determined. Section 241(f) begins with words almost identical to those quoted above. But the second ground of applicability-to 'aliens who were not of the nationality specified in ther visas'-is omitted. Thus, lies about nationality were not forgiven by the first part of the 1957 Act and are not, by the Court's reasoning, excused by § 241(f), the successor statute. And since there is nothing to distinguish lies about nationality that avoid quota restrictions from other lies with the same effect, the reasoning that leads to the Court's conclusion that the aliens were 'otherwise admissible' leads also to the conclusion that § 241(f) is not applicable at all in these cases.