# Rosenberg v. Fleuti/Dissent Clark

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Clark
United States Supreme Court
374 U.S. 449
Rosenberg v. Fleuti
Argued: March 26, 1963. --- Decided: June 17, 1963
Mr. Justice CLARK, with whom Mr. Justice HARLAN, Mr. Justice STEWART and Mr. Justice WHITE join, dissenting.
I dissent from the Court's judgment and opinion because 'statutory construction' means to me that the Court can construe statutes but not that it can construct them. The latter function is reserved to the Congress, which clearly said what it meant and undoubtedly meant what it said when it defined 'entry' for immigration purposes 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 * * *.' 8 U.S.C. § 1101(a)(13).
That this definition of 'entry' includes the respondent's entry after his brief trip to Mexico in 1956 is a conclusion which seems to me inescapable. The conclusion is compelled by the plain meaning of the statute, its legislative history, and the consistent interpretation by the federal courts. Indeed, the respondent himself did not even question that his return to the United States was an 'entry' within the meaning of § 101(a)(13). Nonetheless, the Court has rewritten the Act sua sponte, creating a definition of 'entry' which was suggested by many organizations during the hearings prior to its enactment but which was rejected by the Congress. I believe the authorities discussed in the Court's opinion demonstrate that 'entry' as defined in § 101(a)(13) cannot mean what the Court says it means, but I will add a few words of explanation.
The word 'entry' had acquired a well-defined meaning for immigration purposes at the time the Immigration and Nationality Act was passed in 1952. The leading case was United States ex rel. Volpe v. Smith, 289 U.S. 422, 53 S.Ct. 665, 77 L.Ed. 1468 (1933), which held that an alien who had resided continuously in the United States for 26 years except for a brief visit to Cuba made an 'entry' at the time of his return from Cuba. The Court there stated that the word 'entry' in the Immigration Act of 1917 '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. 667, 77 L.Ed. 1468. That conclusion was based on sound authority, since the Court had earlier held that a resident alien who crossed the river from Detroit to Windsor, Canada, and returned on the same day made an entry upon his return. Lewis v. Frick, 233 U.S. 291, 34 S.Ct. 488, 58 L.Ed. 967 (1914).
The federal courts in numerous cases were called upon to apply this definition of 'entry' and did so consistently, specifically recognizing that the brevity of one's stay outside the country was immaterial to the question of whether his return was an 'entry'. See, e.g., United States ex rel. Kowalenski v. Flynn, 17 F.2d 524 (D.C.W.D.N.Y.1927); Schoeps v. Carmichael, 177 F.2d 391 (C.A.9th Cir. 1949). A related but obviously distinguishable question did create difficulties for the courts, however, leading to conflicting opinions among the Circuits as to whether a resident alien makes an 'entry' when he had no intent to leave the country or did not leave voluntarily. It was decided by this Court in Delgadillo v. Carmichael, 332 U.S. 388, 68 S.Ct. 10, 92 L.Ed. 17 (1947), which held that an alien whose ship had been torpedoed and sunk, after which he was rescued and taken to Cuba for a week, did not make an 'entry' on his return to the United States. The Court discussed the Volpe case but distinguished it and others on the ground that 'those were cases where the alien plainly expected or planned to enter a foreign port or place. Here he was catapulted into the ocean, rescued, and taken to Cuba. He had no part in selecting the foreign port as his destination.' Id., at 390, 68 S.Ct. at 12. The Court specifically relied on Di Pasquale v. Karnuth, 158 F.2d 878 (C.A.2d Cir. 1947), where an alien who had ridden a sleeping car from Buffalo to Detroit, without knowledge that the train's route was through Canada, was held not to have made an 'entry' upon his arrival in Detroit.
These cases and others discussed by the Court establish the setting in which the Immigration and Nationality Act was passed in 1952. The House and Senate reports quoted by the Court show that the Congress recognized the courts' difficulty with the rule that 'any coming of an alien into the United States was an 'entry,' even when the departure from the country was unintentional or involuntary. The reports discuss the broad rule of the Volpe case and the specific limitations of the Di Pasquale and Delgadillo cases, citing those cases by name, and conclude with the following language:
'The bill defines the term 'entry' as precisely as practicable, giving due recognition to the judicial precedents. Thus any coming of an alien from a foreign port or place or an outlying possession into the United States is to be considered an entry, whether voluntary or otherwise, unless the Attorney General is satisfied that the departure of the alien, other than a deportee, from this country was unintentional or was not voluntary.' H.R.Rep.No.1365, 82d Cong., 2d Sess. 32; S.Rep.No. 1137, 82d Cong., 2d Sess. 4; U.S.C.ongressional and Administrative News 1952, p. 1684.
Thus there is nothing in the legislative history or in the statute itself which would exempt the respondent's return from Mexico from the definition of 'entry'. Rather, the statute in retaining the definition expressed in Volpe seems clearly to cover respondent's entry, which occurred after he knowingly left the United States in order to travel to a city in Mexico. That the trip may have been 'innocent, casual, and brief' does not alter the fact that, in the words of the Court in Delgadillo, the respondent 'plainly expected or planned to enter a foreign port or place.' 332 U.S., at 390, 68 S.Ct. at 12.
It is true that this application of the law to a resident alien may be harsh, but harshness is a far cry from the irrationality condemned in Delgadillo, supra, 332 U.S. at 391, 68 .s.Ct. at 12. There and in Di Pasquale contrary results would have meant that a resident alien, who was not deportable unless he left the country and reentered, could be deported as a result of circumstances either beyond his control or beyond his knowledge. Here, of course, there is no claim that respondent did not know he was leaving the country to enter Mexico and, since one is presumed to know the law, he knew that his brief trip and reentry would render him deportable. The Congress clearly has chosen so to apply the long-established definition, and this Court cannot alter that legislative determination in the guise of statutory construction. Had the Congress not wished the definition of 'entry' to include a return after a brief but voluntary and intentional trip, it could have done so. The Court's discussion of § 316 of the Act shows that the Congress knows well how to temper rigidity when it wishes. Nor can it be said that the Congress was unaware of the breadth of its definition. Even aside from the evidence that it was aware of the judicial precedents, numerous organizations unsuccessfully urged that the definition be narrowed to accomplish what the Court does today. Thus, it was urged that the Act's definition of 'entry' 'should, we believe, be narrowed so that it will not be applicable to an alien returning from abroad, after a temporary absence, to an unrelinquished domicile here.' Other groups complained also that '(t)he term 'entry' is defined to mean any coming of an alien into the United States. It is recommended that this be narrowed to provide that a return, after a temporary absence, to an unrelinquished domicile, shall not constitute a new entry.' Despite such urging, however, the Congress made no change in the definition. Further, this Court in 1958 specifically recognized that the word 'entry' retained its plain meaning, stating that 'a resident alien who leaves the country for any period, however brief, does make a new entry on his return * * *.' Bonetti v. Rogers, 356 U.S. 691, 698, 78 S.Ct. 976, 980, 2 L.Ed.2d 1087.
All this to the contrary notwithstanding, the Court today decides that one does not really intend to leave the country unless he plans a long trip, or his journey is for an illegal purpose, or he needs travel documents in order to make the trip. This is clearly contrary to the definition in the Act and to any definition of 'intent' that I was taught.
What the Court should do is proceed to the only question which either party sought to resolve: whether the deportation order deprived respondent of due process of law in that the term 'afflicted with psychopathic personality,' as it appears in § 212(a)(4) of the Act, is unconstitutionally vague. Since it fails to do so, I must dissent.

## Notes

* ↑ Statement of Edward J. Ennis, Representing the American Civil Liberties Union, printed in Joint Hearings before the Subcommittees of the Committees on the Judiciary on S. 716 H.R. 2379, and H.R. 2816, 82d Cong., 1st Sess. 143.
* ↑ Recommendations and Suggestion With Respect to Titles I and II of S. 716 and H.R. 2379, printed in Joint Hearings, supra, note 1, at 617. See also Testimony of Stanley H. Lowell on Behalf of Americans for Democratic Action, id., at 445.
* ↑ See, e.g., Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952); Hall, General Principles of Criminal Law (2d ed. 1960), 105-145; Prosser, Torts (2d ed. 1955), 29-30.
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