# Costello v. Immigration and Naturalization Service/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion White
United States Supreme Court
376 U.S. 120
Costello v. Immigration and Naturalization Service
Argued: Dec. 12, 1963. --- Decided: Feb 17, 1964
Section 241(a)(4) of the Immigration and Nationality Act of 19 2 provides that 'Any alien in the United States * * * shall, upon the order of the Attorney General, be deported who * * * at any time after entry is convicted of two crimes involving moral turpitude * * *.' The single question to be decided in the present case is whether this provision applies to a person who was a naturalized citizen at the time he was convicted of the crimes, but was later denaturalized.
The petitioner, born in Italy in 1891, was brought to the United States when he was four years old and has lived here ever since. He became a naturalized citizen in 1925. In 1954 he was convicted of two separate offenses of income tax evasion, and the convictions were ultimately affirmed by this Court. Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397. In 1959 his citizenship was revoked and his certificate of naturalization canceled on the ground that his citizenship had been acquired by willful misrepresentation. This Court affirmed the judgment of denaturalization. Costello v. United States, 365 U.S. 265, 81 S.Ct. 534, 5 L.Ed.2d 551.
In 1961 the Immigration and Naturalization Service commenced proceedings to deport the petitioner under § 241(a)(4), and it is those proceedings which have culminated in the case now before us. The Special Inquiry Officer found the petitioner deportable; the Board of Immigration Appeals affirmed; and the Court of Appeals dismissed the petition for review, holding that the petitioner was subject to deportation under § 241(a)(4) even though the two convictions relied upon to support deportation both occurred at a time when he was a naturalized citizen. 311 F.2d 343. We granted certiorari to consider an important question of federal law. For the reasons which follow, we reverse the judgment of the Court of Appeals.
At a semantic level, the controversy centers around the use of the present tense 'is' in the clause '((a)ny alien) who at any time after entry is convicted * * *.' The petitioner argues that this language permits deportation only of one who was an alien at the time of his convictions. The Court of Appeals totally rejected such a contention, holding that this statutory language, considered along with the phrase 'at any time after entry' and with the broad legislative history, clearly permits deportation of a person now an alien who was convicted of the two crimes in question while he was a naturalized citizen. 'There is no ambiguity,' the court wrote, and 'no room for interpretation or construction.' 311 F.2d at 345. The court found additional support for its conclusion in United States ex rel. Eichenlaub v. Shaughnessy, 338 U.S. 521, 70 S.Ct. 329, 94 L.Ed. 307, a case which held that under a 1920 deportation law aliens who had been convicted of specified offenses were deportable even though the convictions had occurred at a time when the aliens held certificates of naturalization.
We take a different view. The statute construed in Ei henlaub differs from § 241(a)(4) in several important respects. The law there involved was the Act of May 10, 1920, which provided that 'All aliens who since August 1, 1914, have been or may hereafter be convicted' of violations of the Espionage Act of 1917, as amended, were to be deported, provided the Secretary of Labor after a hearing found them to be undesirable residents of the United States. The Court read this language as unabiguously authorizing deportation, regardless of the aliens' status at the time they were convicted. It is evident from what was said in the opinion that the Court was aided considerably in its search for the proper construction of the statute by Congress' use of the past tense in the phrase 'have been or may hereafter be,' and the fact that the only limitation which Congress placed upon the time of conviction was that it be 'since August 1, 1914.' The Court also found specific legislative history to support its conclusion. As the Congressional Committee Reports demonstrated, the 1920 law was a special statute dealing with sabotage and espionage, originally enacted in order to deport 'some or all of about 500 aliens who were then interned as dangerous enemy aliens and who might be found, after hearings, to be undesirable residents, and also to deport some or all of about 150 other aliens who, during World War I, had been convicted of violations of the Espionage Act or other national security measures, and who might be found, after hearings, to be undesirable residents.' 338 U.S., at 532, 70 S.Ct., at 334, 94 L.Ed. 307. The Court therefore concluded that Congress, when it enacted the statute, had expressed a clear intent to group together denaturalized citizens along with aliens who had never acquired citizenship and to deport them for specific crimes involving national security occurring after a specific date at the beginning of World War I.
Neither the language nor the history of § 241(a)(4) lends itself so easily to a similar construction. The subsection employs neither a past tense verb nor a single specific time limitation. The petitioner's construction-that the language permits deportation only of a person who was an alien at the time of his convictions, and the Court of Appeals' construction-that the language permits deportation of a person now an alien who at any time after entry has been convicted of two crimes, regardless of his status at the time of the convictions-are both possible readings of the statute, as the respondent has conceded in brief and oral argument.
We agree with the Court of Appeals that the tense of the verb 'be' is not, considered alone, dispositive. On the other hand, we disagree with that court's reliance on the phrase 'at any time after entry' in § 241(a)(4) to support the conclusion that an alien is deportable for post-entry conduct whether or not he was an alien at the time of conviction. Since § 212(a)(9) provides for the exclusion of aliens convicted of crimes of moral turpitude, and any excludable alien who nevertheless enters the country is deportable under § 241(a)(1), it seems just as logical to conclude that the purpose of the phrase 'at any time after entry' in § 241(a)(4) was simply to make clear that § 241(a)(4) authorizes the deportation of aliens who were not originally excludable, but were convicted after entry.
There is nothing in the legislative history of § 241(a)(4) of so specific a nature as to resolve the ambiguity of the statutory language. The general legislative purpose underlying enactment of § 241(a)(4) was to broaden the provisions governing deportation, 'particularly those referring to criminal and subversive aliens.' But reference to such a generalized purpose does little to promote resolution of the specific problem before us, of which there was absolutely no mention in the Committee Reports or other legislative materials concerning § 241(a)(4).
Although no legislative history illumines our problem, considerable light is forthcoming from another provision of the statute itself. Section 241(b)(2), made specifically applicable to § 241(a)(4), provides that deportation shall not take place 'if the court sentencing such alien for such crime shall make, at the time of first imposing judgment or passing sentence, or within thirty days thereafter, a recommendation * * * that such alien not be deported.' As another court has correctly observed. 'It seems plain that the qualifying provisions of subsection (b) are an important part of the legislative scheme expressed in subsection (a)(4). While that section makes a conviction there referred to ground for deportation, it is qual fied in an important manner by the provision of subsection (b)(2) that if the court sentencing the alien makes the recommendation mentioned, then the provisions of subsection (a)(4) do not apply.' Gubbels v. Hoy, 9 Cir., 261 F.2d 952, 954.
Yet if § 241(a)(4) were construed to apply to those convicted when they were naturalized citizens, the protective provisions of § 241(b)(2) would, as to them, become a dead letter. A naturalized citizen would not 'at the time of first imposing judgment or passing sentence,' or presumably 'within thirty days thereafter,' be an 'alien' who could seek to invoke the protections of this section of the law. Until denaturalized, he would still be a citizen for all purposes, and a sentencing court would lack jurisdiction to make the recommendation provided by § 241(b)(2). We would hesitate long before adopting a construction of § 241(a)(4) which would, with respect to an entire class of aliens, completely nullify a procedure so intrinsic a part of the legislative scheme.
If, however, despite the impact of § 241(b)(2), it should still be thought that the language of § 241(a)(4) itself and the absence of legislative history continued to leave the matter in some doubt, we would nonetheless be constrained by accepted principles of statutory construction in this area of the law to resolve that doubt in favor of the petitioner. As the Court has emphasized, 'deportation is a drastic measure and at times the equivalent of banishment or exile, Delgadillo v. Carmichael, 332 U.S. 388, 68 S.Ct. 10 (92 L.Ed. 17). It is the forfeiture for misconduct of a residence in this country. Such a forfeiture is a penalty. To construe this statutory provision less generously to the alien might find support in logic. But since the stakes are considerable for the individual, we will not assume that Congress meant to trench on his freedom beyond that which is required by the narrowest of several possible meanings of the words used.' Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 92 L.Ed. 433.
Adoption of the petitioner's construction of § 241(a)(4) does not end our inquiry, however, for the respondent urges affirmance of the finding of deportability on an alternative ground, not reached by the Court to Appeals. The argument is that the petitioner is deportable because § 340(a) of the Immigration and Nationality Act of 1952, under which the petitioner's citizenship was canceled, provides that an order of denaturalization 'shall be effective as of the original date' of the naturalization order. Under this so-called 'relation-back' theory, it is said that cancellation of the petitioner's certificate of naturalization was 'effective' as of 1925, the year of his original naturalization, that he was therefore an alien as a matter of law at the time of his convictions in 1954, and that he is accordingly deportable under § 241(a)(4) even if that provision requires alienage at the time of the convictions.
We reject this theory for much the same reasons which have prompted our construction of § 241(a)(4). There is nothing in the language of § 340(a), and not a single indication in the copious legislative history of the 1952 Act, to suggest that Congress intended the relation-back language of § 340(a) to apply to the general deportation provisions of the Act. In view of the complete absence of any indication to the contrary, it would appear that in adopting the relation-back language of § 340(a) Congress intended to do no more than to codify existing case law. Several cases before 1952 had held that an order of denaturalization made the original naturalization a nullity, Johannessen v. United States, 225 U.S. 227, 32 S.Ct. 613, 56 L.Ed. 1066, and that, for the purpose of determining rights of derivative citizenship, denaturalization related back to the date of naturalization. Battaglino v. Marshall, 2 Cir., 172 F.2d 979, 981; Rosenberg v. United States, 3 Cir., 60 F.2d 475.
The Second Circuit was alone among the federal courts in thinking that this nunc pro tunc concept which had been judicially developed in the denaturalization cases could properly be related to the task of construing a deportation statute. United States ex rel. Eichenlaub v. Watkins, 2 Cir., 167 F.2d 659; United States ex rel. Willumeit v. Watkins, 2 Cir., 171 F.2d 773. And when those cases came here, this Court pointedly declined to adopt the Second Circuit's reasoning. United States ex rel. Eichenlaub v. Shaughnessy, 338 U.S. 521, 529-530, 70 S.Ct. 329, 333, 94 L.Ed. 307. Following this Court's decision in Eichenlaub, the Sixth Circuit expressly refused to apply to a general deportation statute the relation-back principle of the denaturalization cases, in determining when there had been an 'entry' for purposes of the predecessor of § 241(a)(4) in the 1917 Act. United States ex rel. Brancato v. Lehmann, 6 Cir., 239 F.2d 663.
The relation-back concept is a legal fiction at best, and even the respondent concedes that it cannot be 'mechanically applied.' With respect to denaturalization itself, Congress clearly adopted the concept in enacting § 340(a). But in the absence of specific legislative history to the contrary, we are unwilling to attribute to Congress a purpose to extend this fiction to the deportation provisions of § 241(a)(4). This Court declined to apply the fiction in a deportation context in the Eichenlaub case, and we decline to do so now.
The argument is made that it is anomalous to hold that a person found to have procured his naturalization by willful misrepresentation is not subject to deportation, although he would be deportable if he had never been naturalized at all. But it is not at all certain that this petitioner would be deportable today if he had never acquired naturalized citizenship. The petitioner points out that if he had held alienage status at the time of his trial for income tax evasion, he could have offered to plead guilty to one count of the indictment in return for a nolle prosequi of the other counts, and that conviction on but one count would not have made him subject to deportation under § 241(a)(4). Even more important, had petitioner been an alien at the time of his convictions, he could have availed himself of the supplementary relief procedure provided for in § 241(b)(2). In other words, to hold that under the relation-back language of § 340(a) the petitioner was an 'alien' at the time of his convictions would go much further than merely preventing him from benefiting from his invalid naturalization; it would put him in a much more disadvantageous position than he would have occupied if he had never acquired a naturalization certificate at all.
Moreover, if the relation-back doctrine were applicable in this case, it would be applicable as well, as the respondent's counsel conceded in oral argument, in the case of one whose original naturalization was not fraudulent, but simply legally invalid upon some technical ground. In this area of the law, involving as it may the equivalent of banishment or exile, we do well to eschew technicalities and fictions and to deal instead with realities. The reality is that the petitioner's convictions occurred when he was a naturalized citizen, as he had been for almost 30 years.
If Congress had wanted the relation-back doctrine of § 340(a) to apply to the deportation provisions of § 241(a)(4), and thus to render nugatory and meaningless for an entire class of aliens the protections of § 241(b)(2), Congress could easily have said so. But there is no evidence whatever that the question was even considered. If and when Congress gives thought to the matter, it might well draw distinctions based upon the ground for denaturalization, the nature of the criminal convictions, and the time interval between naturalization and conviction, or between conviction and denaturalization. But such differentiations are not for this Court to make.
Reversed.
Mr. Justice HARLAN took no part in the consideration or decision of this case.
Mr. Justice WHITE, with whom Mr. Justice CLARK concurs, dissenting.

## Notes

* ↑ '(a) Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General, be deported who-
* ↑ The grant of certiorari was 'limited to Question 1 presented by the petition which reads as follows:
* ↑ The relevant paragraphs of the Act of May 10, 1920, read as follows:
* ↑ 'The proper scope of the Act of 1920 as applied to these cases is found in the ordinary meaning of its words.' 338 U.S., at 527, 70 S.Ct., at 332, 94 L.Ed. 307. 'The statutory language which says that 'aliens who since August 1, 1914, have been or may hereafter be convicted, * * *' (emphasis supplied) refers to the requirement that the deportations be applicable to all persons who had been convicted of certain enumerated offenses since about the beginning of World War I (August 1, 1914), whether those convictions were had before or after May 10, 1920.' 338 U.S., at 530, 70 S.Ct., at 333, 94 L.Ed. 307.
* ↑ Comparing the 'is' of § 241(a)(4) with the various forms of 'be' employed in other subsections of § 241(a) is hardly helpful. It is as likely that the differences in wording found in these subsections reflect differences in style attributable to the various antecedents of the several provisions, as it is that the use of the present tense in § 241(a)(4) reflects a specific congressional intent that that particular subsection, in contrast to the others, was not to be applied to people in the petitioner's position.
* ↑ 8 U.S.C. § 1182(a)(9).
* ↑ 8 U.S.C. § 1251(a)(1).
* ↑ See Commentary on the Immigration and Nationality Act, Walter M. Besterman, Legislative Assistant to the House Committee on the Judiciary, 8 U.S.C.A., pt. I, p. 61. This commentator makes no reference to the problem before us, although he does refer to several innovations in the Act broadening its scope: 'Many of the grounds for deportation specified in the new law are retroactive in effect. They apply to the alien notwithstanding the fact that he may have entered the United States prior to the enactment of the 1952 law. Also, he may be found now to be deportable by reason of facts which occurred prior to the enactment of this Act (June 27, 1952).' Besterman, ibid.
* ↑ See H.R.Rep.No.1365, 82d Cong., 2d Sess., 60 (1952); S.Rep. No. 1515, 81st Cong., 2d Sess., 390-392 (1950); S.Rep. No. 1137, 82d Cong., 2d Sess., 21 (1952); H.R.Rep. No. 2096 (Conference Report), 82d Cong., 2d Sess., 127 (1952). See also Immigration and Naturalization Service, Analysis of S. 3455, 81st Cong., 2d Sess. (1950), Vol. 5, pp. 241-3 through 241-6; and Analysis of S. 716, 82d Cong., 1st Sess. (1951), Vol. 4, pp. 241-2 through 241-4. See generally, Besterman, note 8, supra, pp. 1-91.
* ↑ 'The provisions of subsection (a)(4) of this section respecting the deportation of an alien convicted of a crime or crimes shall not apply * * * (2) if the court sentencing such alien for such crime shall make, at the time of first imposing judgment or passing sentence, or within thirty days thereafter, a recommendation to the Attorney General that such alien not be deported, due notice having been given prior to making such recommendation to representatives of the interested State, the Service, and prosecution authorities, who shall be granted an opportunity to make representations in the matter.' 8 U.S.C. § 1251(b).
* ↑ In Gubbels the Court of Appeals for the Ninth Circuit held that court-martial convictions could not provide a basis for deportation under § 241(a)(4) because a military court is not so constituted as to make the privilege accorded by § 241(b)(2) available to a convicted alien.
* ↑ It has been suggested that the petitioner, or one similarly situated, was at the time of the conviction chargeable with knowledge that he had procured his naturalization illegally, and that he could have therefore proceeded to seek a recommendation from the sentencing judge under § 241(b)(2). This suggestion seems not only practically unrealistic, but technically untenable. It has been held that only a competent court in appropriate proceedings can nullify a status of naturalized citizenship. United States v. Stephan, D.C., 50 F.Supp. 445.
* ↑ The Eichenlaub statute carried with it no such qualifying provision, which reinforces the conclusion that the decision in Eichenlaub is of no basic relevance to the issue here. See note 3, supra. Section 19 of the Immigration Act of 1917, 39 Stat. 874, the predecessor of § 241(a)(4), on the other hand, did contain a relief provision similar to § 241(b)(2). See 39 Stat. 889-890.
* ↑ 'It shall be the duty of the United States district attorneys for the respective districts * * * to institute proceedings * * * for the purpose of revoking and setting aside the order admitting such person to citizenship and canceling the certificate of naturalization * * *, and such revocation and setting aside of the order admitting such person to citizenship and such canceling of certificate of naturalization shall be effective as of the original date of the order and certificate, respectively * * *.' 66 Stat. 260, 8 U.S.C. § 1451(a).
* ↑ The companion case, United States ex rel. Willumeit v. Shaughnessy, was decided in the same opinion. 338 U.S. 521, 70 S.Ct. 329, 94 L.Ed. 307.
* ↑ Brancato first entered the United States in 1914; he was naturalized in 1929; he then left the United States and returned in 1930; he was convicted of a crime involving moral turpitude in 1932; he was denaturalized in 1939. The question was whether his conviction in 1932 was within five years after an 'entry,' as defined by the statute. The Court of Appeals held that the cancellation of his citizenship in 1939 related back to 1929 for purposes of denaturalization, but not for purposes of the deportation statute, and that his return to the United States in 1930 was therefore not an 'entry' in that year.
* ↑ Section 340(a) was amended in 1961 to provide for cancellation of citizenship on the ground that it was 'illegally procured.' Act of September 26, 1961, § 18, 75 Stat. 656. In United States ex rel. Brancato v. Lehmann, 6 Cir., 239 F.2d 663, the appellant's citizenship had been canceled because his original petition for naturalization 'was not verified by the affidavits of two credible witnesses,' as required by the 1906 Act.
* ↑ See Mr. Justice Frankfurter's dissenting opinion in United States ex rel. Eichenlaub v. Shaughnessy, 338 U.S., at 533, 536-537, 70 S.Ct., at 335, 336-337, 94 L.Ed. 307.
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