Earl Warren: Ms. Lowenstein.
Edith Lowenstein: If it please the Court. The nature of this case is -- is strictly one of statutory construction, of construction of Section 249 of the Immigration and Nationality Act. Ivan Mrvica filed an application to become a permanent resident of the United States under that provision. Section 249 which incidentally together with all the other statutory provisions which are relevant for this case as reproduced on pages 22 and 23 of the petitioner's brief provides that a record of lawful admission for permanent residence maybe granted to aliens who entered the United States prior to June 28, 1940 who have had residence in the United States continuously since such time, persons of good moral character and not ineligible to citizenship, also, who are not of certain undesirable categories. Now, Ivan Mrvica came to the United States in 19 -- in January of 1940. He was born in Dalmatia which at that time of his birth in 1906 was a part of Austria, Hungary but which later became Yugoslav. And in 1939, he left his home for the last time and then he came to the United States. Shortly, after he entered the United States, Yugoslavia was overrun by the Germans and his own government, the Yugoslavia Government under King Peter went into exile in England. In 1942, Mrvica who overstayed and decided not to return to Europe was placed under deportation. And at that time was also -- when he was found deportable as an overstayed crewman, granted advance permission to return under the provision of the 1917 Immigration Act. Such permission was granted in order to do -- enable bona fide crewman who have overstayed to return to the United States without -- without encountering the felony of entering without permission after deportation. Mrvica voluntarily departed on a Yugoslav vessel in October 1942. He stayed on that vessel for about two months and then reentered in San Francisco from where he had originally come.
Arthur J. Goldberg: (Inaudible)
Edith Lowenstein: That was a war time trip.
Arthur J. Goldberg: (Inaudible)
Edith Lowenstein: On a merchant -- on a merchant vessel which was under Yugoslov flag and at that time I would say that who was really the Government of Yugoslavia was to say the least, a very murky question although King Peter was in England and apparently was recognized but there were Mihailović and Tito fighting in Yugoslavia and also the Germans had occupied Yugoslavia so that there might have been several interpretations of who was really in charge of Yugoslavia at that time.
Arthur J. Goldberg: (Inaudible)
Edith Lowenstein: Yes. I think that's a -- no question about that. Now, after Mrvica returned according to the record, he was admitted for medical -- medical treatment. And in this context I have to apologize to the Court because I had made an erroneous statement which is caused by the fact that to the -- the counsel for the alien at some times is rather difficult go keep our effects together because of the so-called record file of the Government is not in the possession of a counsel for the alien but only available -- at its very brief for -- to the Assistant United States Attorney's Office and I slipped on the fact that actually he did not get readmitted as a crewman but rather was readmitted for medical treatment. I also took from one of the opinions in the case, one of the special inquiry of these opinions that he was an Italian before he became a Yugoslav but -- meanwhile, researched that subject and I believe that he was a Yugoslav at the time when he entered the United States. I do not believe that any of these facts have any bearing on the case however because the own -- the application having been piled, it was denied by the Government on the ground that the departure under order of deportation, no in -- in 1942, he was found deportable as overstayed crewman. And the Government took the position that the departure under the order of deportation which executed the deportation order was by as a matter of law and interruption of the residence, of the continuous residence required by Section 249. Now the -- before I --
Potter Stewart: You don't -- you don't take issue with the fact that his departure was an execution of the order -- order of deportation?
Edith Lowenstein: No. I don't take issue with that and I think it's completely irrelevant to the --
Potter Stewart: I understand that.
Edith Lowenstein: Yes. I don't take issue with that. The law is very clear on that.
William J. Brennan, Jr.: (Inaudible) rather than involuntary, is it?
Edith Lowenstein: No. Because -- because I do believe that the definition of the statutes of what is residence under the Immigration and Nationality Act takes away all the elements of whether it was voluntary, involuntary under deportation or otherwise because Section 101 (a) (33) as shown on page 22 of petitioner's brief defines the term residence as a place of general abode. The place of general abode of a person means his principal, actual dwelling place in fact without regard to intent. Therefore the only issue here is whether or not, an -- dwelling place in fact can be terminated by what I consider a legal fiction, namely, the execution of a deportation order or whether regardless of what happens to the deportation order. The question remains whether or not in fact the petitioner remained in the United States. Now, in this connection before I go -- go into the definition of residence any further, I would like to point out that the Immigration and Nationality Act usually in discretionary relief requires periods of physical presence rather than residence. For instance, on the suspension of deportation, persons have to have physical presence in the United States for a certain period of time. And if this physical presence is interrupted, the person would not be eligible statutorily. However, this particular provision, Section 249 does not allude to physical presence but only to residence and that appears to me -- it makes quite a difference in the construction of this statute. The definition of -- the history of Section 249 as such, that the fact that there wasn't interruption of the physical presence as well as the fact that the petitioner was illegally in the United States should not militate against him. The Immigration service and the Government in general has gen -- conceded and has in a number of opinion stated that an alien illegally in the United States who reenters can nevertheless be eligible for Section 249 and the only exemption is made if the alien departed under a deportation order. Now, in other words, if the petitioner had been in exactly the same posture he was without a deportation proceeding, if he had sailed out and return in the same manner, there would be no question that he would be eligible for the relief. And it's only because of the injection of the deportation order that the residence in fact is alleged to be interrupted. Now prior to 1958, the question of deportability was essential because the law prior to 1958 precluded a person who was deportable from exercising the right of adjustment of status under that provision. But in 1958, Congress deleted this particular bar from the statute and thereby took away the owners from illegal presence. Nevertheless, the courts below both in the Southern District of New York and on the Second Circuit as well as in the First Circuit and on the Ninth Circuit have supported the Government's position that a person who departed under deportation order was not eligible for discretionary relief. And all of them agreed with the Government's opinion that Section 101 (g) of the Immigration law which is free --
William J. Brennan, Jr.: (Inaudible)
Edith Lowenstein: No. There's no view at least -- at least which I have found with this contrary but unfortunately, the Supreme Court has not expressed itself to that.
William J. Brennan, Jr.: Is it only -- this is only because the departure under an order for deportation that they've presented.
Edith Lowenstein: Well that is what is said but I --
William J. Brennan, Jr.: But that's -- that's the argument.
Edith Lowenstein: That's the argument of the Government.
William J. Brennan, Jr.: Yes.
Edith Lowenstein: The provision in the law which is being use as for the purpose of this Act, and the alien ordered departed carries out his deportation order but it doesn't seem to me that there's any compelling reason that this would be admitted into the concept of residence.
Byron R. White: Could he -- could he --
Potter Stewart: Suppose --
Byron R. White: Excuse me. Go ahead.
Potter Stewart: (Inaudible)
Byron R. White: Did he arrive back in the United States on the same ship?
Edith Lowenstein: Yes. He never -- the record does not indicate and I -- I happened to know that he never left the ship.
Byron R. White: And where was it headed when he left?
Edith Lowenstein: It was on the west coast from San Francisco --
Byron R. White: -- where was the ship when he -- when he boarded the ship? Where was it --
Edith Lowenstein: To South America, that's the West Coast. He went -- he went to Chile and returned.
Byron R. White: And did they know he's going to come back here from Chile?
Edith Lowenstein: I assume so. There's -- I wouldn't know but there are -- there are -- certainly the Government in its brief indicated that during the war we departed persons to England, to the governments in exile, but I'm sure that nobody was departed --departed from San Francisco to England during the war. And so I assumed that the ship just followed its destined route and that -- that there was absolutely no possibility, practical or otherwise that he could have gone any place except where the ship went. And there was also no possibility that he could have remained on the ship because the ship just went back to San Francisco. Now --
Potter Stewart: What were the -- what was he legally permitted to do when he took that ship to San Pedro, California?
Edith Lowenstein: Well --
Potter Stewart: So far as -- so far as coming back into this country?
Edith Lowenstein: Well, theoretically what he was permitted to do is to come back to the country and ship out within 30 days.
Potter Stewart: Just as a -- as any foreign sailor, (Voice Overlap).
Edith Lowenstein: As any foreign seaman and that he didn't do. He did not sail out again. In other words, he overstayed again after he came back. But -- and the Court below seem to feel that since at the later dates, in 1952 to be exact, he admitted that when he returned he only wanted to ship out an American ship. So when he found out that he couldn't ship out in American ships, he didn't want to ship out at all. Then he turned out to be a mollified crewmen and therefore he had done the same thing twice, namely entered in violation of law. The court below stated that -- they felt that one couldn't add two illegal presences together and make one continuous residence out of that. However, these all the -- it seems to me Mrs. -- the point of the definition of residence as it is now in the immigration law. And in this context I'd like to address myself to Rosenberg versus Fleuti which has been decided by this Court some time ago. That case is not really irrelevant either because it addresses itself to an -- a construction of the term entry under Section 101 (a) (13) of the statute. And there the Court ruled that the proviso of the term entry means -- should not -- new entry should not be applied when there was an involuntary entry of any kind when the alien has -- in the flow of this case was unaware of the consequences of this Act and was a casual departure. Now, I do not want to draw any analogy between these cases particularly, since in Section 101 (a) (13) there's a proviso which says that the exception of that provision does not apply to anybody who departs under a deportation order. But our appeal that that is not adverse to petitioner's position for the following reason. Section 101 (a) (13) for the first time inserted the element of intent and the definition of entry. On the other hand, Section 101 (a) (33) for the first time deleted the definite -- the existence of an intent from the definition of residence. Now therefore, while in the Fleuti case, it was quite necessary to -- for Congress to express its opinion on involuntary departure because it would have been very easy if a person is departed, he usually leaves involuntarily. And any person who was departed could then turn around and say, "Well, I came back and I didn't make a new entry because my deportation was involuntary and therefore I come within the exception of Section 101 (a) (13)." Therefore, obviously it would be appropriate to put that proviso in here. But that should not carry over in the definition of residence because there, just the contrary took place, namely, the element of intent was removed. And therefore whether Mrvica haven't concealed intention to return and to remain, or whether the immigration service had an open intention to get rid of them is really completely irrelevant to the question of whether he was a resident of the United States because that was purely a matter of fact. Now, the Court below admitted that it was rather difficult to visualize and then taking changing residence from the United States to a merchant vessel in time of war and a thing that he transferred as residence to such a merchant vessel just because he was under order of deportation. The Government seems to put great weight on it that this particular merchant vessel was of -- of Yugoslav nationality. I think that also has absolutely nothing to do with the case. The only question is whether it's conceivable that the man could have gone any place except back to the United States. And the facts as far as I can see are very clear on that he could not have gone any other place except where he did go, namely to the United States. Now, the Government states that after all that this man has been treated very kindly has been here for 25 years because nobody was tough enough to deport him at particular time under this presumptuous of him now to ask for permission to remain here altogether. Now, I appeal that that has no argument at all in connection with the humanitarian aspect of Section 249. Because, if the immigration service had depart -- deported him in 1942 and had deported him to England, he might be dead today or he might be in Yugoslavia and very miserable but he would not be in the responsibility of the United States. But he has been permitted to remain here for 25 years and therefore it seems to me that the statute with regard to the point of residence should be liberally construed in his favor rather than against him.
William J. Brennan, Jr.: (Inaudible) -- is it that -- it's not possible to have this voyage considered a break in residence because the voyage was from San Francisco to Chile and back to San Francisco, is that it?
Edith Lowenstein: Well, the definition of residence is the place of general abode and the place where the man had its principal actual dwelling place in fact. That is my position.
William J. Brennan, Jr.: Well, that was the United States when he left.
Edith Lowenstein: And it was when he returned. And the -- generally speaking, you do not break up your residence by temporary absence.
William J. Brennan, Jr.: Well I thought -- I thought the -- you put some emphasis on the fact that he had to come back to the United States.
Edith Lowenstein: That is right. And then --
William J. Brennan, Jr.: Well, is -- is that established? Did he have to come back to the United States? Might he not have took the ship in Chile?
Edith Lowenstein: Well, he didn't get off the ship and although the Government filed -- said something about that he had a Yugoslav passport from our own experience with these so-called Yugoslav passport that that's a paper saying that he's Yugoslav and except to -- to the Yugoslav Government but it certainly wouldn't have admitted him to any other country. There is no passport in the file. I haven't seen the passport and as the man himself has no recollection of ever having had a passport.
William J. Brennan, Jr.: Well then I am -- I am correct in appreciating your argument to be that there could have been no break in United States residence because this departure was a departure which had at the end of it a return in the United States.
Edith Lowenstein: That is correct. I think there was as a matter of fact, no other way for him to end his voyage.
Byron R. White: Well, wouldn't you -- would you have the same argument if they (Inaudible) then to England?
Edith Lowenstein: Well if it -- I had been to England and England had accepted him, if there's evidence that England would have accepted him, I would --
Byron R. White: Yes. What if he had signed on for the round trip? He signed on -- he signed the articles on a Yugoslav ship that is bound for England then return. Then he came back.
Edith Lowenstein: Well, I would say that probably, I would take the same position because of the following reasons. The general definition of residence is that -- that's where you live. Now the fact that he went to Chile instead of to England makes really no difference except --
Byron R. White: Well the same argument would apply -- apply if he went to Yugoslavia and came back.
Edith Lowenstein: Well, that's quite possible. I don't think that that's negates my position. That's only unlikely that it practically would happen. And actually the reason why his position is stronger than such a person's position would be is because there was no practical possibility for him to go any place. Now, there are cases cited in the Government's brief which say that it is perfectly possible to establish your residence on a foreign vessel. Now I read these cases and I feel that they are much in support of my contention because on all of these situations, the man spent, let us say, anywhere between 12 -- 10 months on the vessel and two months in the United States or he spent two months or eight weeks in the United States and the rest of the time in his old home country. And --
Byron R. White: Well, you wouldn't suggest though that they couldn't have deported him to England, you said he wanted to.
Edith Lowenstein: I think they couldn't deport them on that particular trip because that vessel didn't go there.
Byron R. White: Well, I know but they could've deported him to England.
Edith Lowenstein: If they had deported them to England, we would've another set of facts and that was --
Byron R. White: So, it isn't the fact that he wasn't -- that they couldn't force him to leave the country because --
Edith Lowenstein: (Voice Overlap) --
Byron R. White: -- there was no place to go. There was some place for him to go.
Edith Lowenstein: Well, that is what the Government says.
Byron R. White: But it says that on his trips --
Edith Lowenstein: I have no knowledge.
Byron R. White: -- they say -- it's just that on this trip you say he didn't go anywhere else.
Edith Lowenstein: Well, I have no knowledge that actually people were deported to England because my recollection at that time is that it was quite difficult to get ships across the ocean to England. And they said (Inaudible) for deportations purposes, they carried other things. But, I do not know -- I mean, if they had taken him to England and England had accepted him, they could've deported him. But I think in this case, as the question of fact and the record does not indicate that she had any possibility of this type.
Potter Stewart: Is there any indication that he knew the destination of this vessel when it sailed away from San Pedro in 1942?
Edith Lowenstein: Well, there's nothing in the record. But on that (Voice Overlap) --
Potter Stewart: As the -- when you're drawing on your recollection of that era, I'm drawing on my own recollection of that era, sailors just didn't know where their ships were going because this was a matter of security.
Edith Lowenstein: That's -- that's quite possible, yes.
Potter Stewart: And they were not told.
Edith Lowenstein: But that -- well, I don't know.
Potter Stewart: Even junior officers were not told.
Edith Lowenstein: No. But there have been -- if you're in San Francisco, the chances that you're going to England is unlikely in --
Potter Stewart: (Inaudible)
Edith Lowenstein: -- or doing that period. I mean, I think anybody could've figured that possibly hard. I mean, that's perfectly true and -- I mean, I don't know anything about these deportations to England. And I don't know whether this -- well, I think Peter was among the people who were rated to deportees into England. I have no idea that just -- the Government's case. And may I be permitted to reserve the rest of my time for this?
Earl Warren: Mr. Schmude.
Richard W. Schmude: Mr. Chief Justice, may it please the Court. Section 249 of the Immigration and Nationality Act of 1952 as amended in 1958, authorizes the Attorney General in his discretion to create records of lawful admission for permanent residence for certain long time resident aliens in the United States where a record of admission for permanent residence is not otherwise available and where the alien in question establishes to the satisfaction of the Attorney General that he has met each of the specified eligibility requirements. To be eligible for Section 249 relief registry as it some time is called, the applicant must establish that he entered the United States prior to June 28th, 1940 and then he has resided in this country continuously since that entry. Section 101 (a) (33) of the 1952 Act defines residence as the place of general abode, meaning, the principal actual dwelling place in fact without regard to intent. Now, petitioner's application for registry was denied by the respondent in April 1960 on the ground that his 1942 deportation operated as a severance of his -- of the continuity of his residence in the United States for purposes of statutory eligibility. The Regional Commissioner in Burlington, Vermont affirmed this determination and the lower court also sustained it. The question presented by this case as we view it is simply this, whether the departure of the petitioner from the United States in October 1942, as a crewman on board in Yugoslav vessel after entry of an order of deportation to Yugoslavia. And, the subsequent absence of some 84 days during which the vessel in which he departed docked at two foreign ports, interrupted the continuity of his residence in the United States for purposes -- for purposes of statutory eligibility under 249.
Arthur J. Goldberg: (Inaudible)
Richard W. Schmude: Yes sir.
Arthur J. Goldberg: What country was he deported to?
Richard W. Schmude: He was deported from the United States Mr. Justice Goldberg. And under Section 1 (b) of the Act of March 4th, 1929, any alien ordered deported who has departed from the United States, Congress specified that this shall be a deportation irrespective of the country to which he has departed. Now, this --
Arthur J. Goldberg: (Inaudible)
Richard W. Schmude: -- this petitioner Mr. Justice --
Arthur J. Goldberg: (Inaudible)
Richard W. Schmude: No Your Honor. We treat this as a voluntary deportation case. We distinguished between the enforced or the compelled ejection by the Government, the voluntary deportation, and then, there is the third category of voluntary departure in lieu of deportation where voluntary departure is present which is a privilege granted by the administrative officials. That is not regarded as a deportation. There is no outstanding order of deportation in question and should he return to the United States, he could not be prosecuted for illegal reentry.
Arthur J. Goldberg: (Inaudible)
Richard W. Schmude: Yes sir, a voluntary deportation, a self-deportation, so to speak.
Arthur J. Goldberg: (Inaudible)
Richard W. Schmude: Well, he deported himself Your Honor from the United States to a foreign place. And the foreign place in this particular situation was Chile. The boat reached Chile. There is no evidence that he got off at Chile but the statute does not require him to get off the boat and to establish a residence in a foreign country. As long as there is an -- it turns on objective considerations as we view it Mr. Justice Goldberg, has an order of deportation been entered? And if so, has he departed from the United States. And the courts have said that when those two conditions are present, this -- I mean, that is a voluntary deportation.
Arthur J. Goldberg: (Inaudible)
Richard W. Schmude: I didn't hear that Mr. --
Arthur J. Goldberg: Had now given the deportation order (Inaudible)
Richard W. Schmude: No, we would not. Under Section 249 Mr. Justice Goldberg, temporary absences from the United States do not interrupt the continuity of the residence and they are credited to you, administrative holdings to that effect where temporary stays abroad have -- have no adverse bearing on a claim. But, the crucial difference in this case that a deportation order was entered and he did leave and every case that we have been able to find on the subject. The uniform administrative interpretations, Corsetti versus McGrath, the illegal reentry prosecutions, United States versus Maisel which I would like to get to court a little later. Have all reached the conclusion that if there is an order of deportation and a departure from the United States after that order, that is a deportation and that's what the statute says and Congress specifically Mr. Justice Goldberg, on page 11, Footnote -- Footnote 7 if I may read a portion of the footnote to the Court. Owing to the inadequacy of the appropriations now made for enforcement of deportation provisions under existing law, the Department of labor has in many cases after a warrant of deportation has issued restrained from executing the warrant and deporting the alien at the expense of the appropriation to the country to which he might be deported, upon the condition that the alien voluntarily at his own expense leave the United States. Some doubt exists, whether an alien so departing has been deported. Subsection (b) of Section 3 of the bill therefore removes any possible doubt on this question by providing that in such cases, the alien shall be considered to have been deported in pursuance of law. So we submit, if it please the Court, that where the order of deportation has been entered and there has been a departure from the United States to a foreign place that that executes the order of deportation and constitutes a voluntary -- excuse me -- a valid voluntary deportation under the law as Congress intended. And this has been carried forward in Section 101 (g) of the 1952 Act.
Arthur J. Goldberg: (Inaudible)
Richard W. Schmude: Excuse me. Yes, Mr. Justice Brennan?
William J. Brennan, Jr.: This probably hasn't any real relevancy but I'm just curious. How does this thing come to ahead anyway? This didn't come about sometime in 1960?
Richard W. Schmude: Oh, could I give the --
William J. Brennan, Jr.: I -- I may say frankly, this seems to me rather a technical application and I just wonder why even 25 years here, why are you sending him away?
Richard W. Schmude: If I may recite just a few of the facts in the exhibit to familiarize the Court with the facts surrounding his residence in the United States. He entered in January 1940 as a crewman on board a Yugoslav vessel. He was given shore leave and he overstayed that leave and was subsequently ordered deported from the United States. This was on September 4th, 1942. A month later, he departed from the United States on this voyage, remained away 84 days. He was subsequently on December 31st, 1942 readmitted for hospi -- or for medical treatment. And the hearing officer in 1952 then noted, that for the next seven -- for the next period of more than seven consecutive years, he remained unnoticed in this country. Apparently in 1952, we caught up with him and a deportation proceedings were instituted against him. He was found deportable but was given the privilege of voluntary departure. This was by the hearing officer in 1952. That was affirmed by the assistant commissioner. And then in 1954, May 26th, the Board of Immigration Appeals upheld this and upheld the grant of voluntary departure. Now, the petitioner pursuant to this voluntary departure privilege did not leave the United States. He was given until May 9th, 1954 to depart and he did not leave. We extended that to December 19th and he did not leave. On December 20th, 1954, an order of deportation to Yugoslavia was entered against him.Petitioner then, retained new counsel and then moved to reopen the deportation proceedings and he sought for the privilege of that voluntary departure again. This was denied and then stays were given pending this. However, in August of 1956, the Board of Immigration Appeals which through the outstanding order of deportation had granted him the privilege of voluntary departure. He did not depart at that time even. And subsequently, an order of deportation was entered on October 19th, 1959. And shortly thereafter, he obtained new counsel and then instituted the registry proceedings. Now, if I may --
William J. Brennan, Jr.: (Inaudible)
Richard W. Schmude: That's correct sir and --
William J. Brennan, Jr.: Was a declaratory judgment (Inaudible)?
Richard W. Schmude: Yes sir, right. From the denial of this proceeding. In this -- this registry proceeding Mr. Justice Brennan was denied on the ground that as I've indicated, it was 1942 deportation severed the continuity of his residency.
William J. Brennan, Jr.: Yes.
Richard W. Schmude: And I -- as I will indicate a little later, deportation is basically inconsistent with the retention of residence in the country.
Tom C. Clark: (Inaudible) statutory action?
Richard W. Schmude: Yes Mr. Justice Clark, right. He would have to establish statutory eligibility in order to be in a position where the Attorney General could favorably exercise discretion.
Tom C. Clark: (Inaudible)
Richard W. Schmude: That's correct sir. Attorney General could still turn him down.
Arthur J. Goldberg: (Inaudible)
Richard W. Schmude: That's correct. That's correct Mr. Justice Goldberg.
Arthur J. Goldberg: (Inaudible)
Richard W. Schmude: Mr. Justice Goldberg, the policy of the immigration service during World War II was to allow these overstayed crewmen to depart voluntarily in lieu of deportation if they were willing to do so. Because we had a tremendous problem and the deporta -- or the crewman overstaying the shore leave was -- was quite a tremendous problem. Ships were tied up in the harbor and if they were willing to reship, we allow them to reship. Subsequently --
Arthur J. Goldberg: (Inaudible)
Richard W. Schmude: -- and if they refuse to reship --
Arthur J. Goldberg: (Inaudible)
Richard W. Schmude: That's correct sir. Now, if they refuse to reship or made no effort to do so, then, deportation proceedings would be entered -- would be instituted against them. And they, pursuant to the practice which I will allude to a little later Mr. Justice Goldberg, they were deported to England where their provisional governments were located. And this arrangement was satisfactory to England and also to the provisional governments.
Arthur J. Goldberg: (Inaudible)
Richard W. Schmude: Yes sir, right. And this appears Mr. Justice Goldberg in the debates and also the hearings to the Act of July 13th, 1943 which allowed -- which specifically sanctioned this type of war time practice.
Arthur J. Goldberg: (Inaudible)
Richard W. Schmude: Well, Mr. Justice Goldberg, the order of deportation was entered against him in September 4th, 1942. On October 6th -- well, shortly thereafter, he left his New York residence, his New York employment, traveled to the West Coast and obtained a -- obtained employment on board this Yugoslav vessel. And the deportation forms were filled out and it was noted that he had a Yugoslav passport. And then, he reshipped. Now, he reshipped foreign 32 days after entry of the order. And his reshipment was verified by an immigration officer who marked the warrant as executed and the New York office was notified that the petitioner had a reship form. Now, since this happens so quickly after entry of the order, 32 days and he had made these preparations perhaps three weeks after it entered the order. There was no occasion for the Government to take steps and have him sent to England.
Arthur J. Goldberg: (Inaudible)
Richard W. Schmude: Yes.
Arthur J. Goldberg: In other words, (Inaudible)
Richard W. Schmude: Right.
Arthur J. Goldberg: (Inaudible)
Richard W. Schmude: Yes sir.
Arthur J. Goldberg: (Inaudible)
Richard W. Schmude: The only difference Mr. Justice Goldberg is that he would not reship until after an order of deportation had been entered. Then when he did so, that reshipment after entry of the order constituted in law a deportation.
Arthur J. Goldberg: I know that (Inaudible)
Richard W. Schmude: Yes sir.
Arthur J. Goldberg: (Inaudible)
Richard W. Schmude: Yes sir, right. He reshipped for and after entry of the order, yes.
Byron R. White: (Inaudible)
Richard W. Schmude: Right sir.
Byron R. White: He -- before he -- but before the deportation enter was -- that the last one was entered, what was he doing?
Richard W. Schmude: The -- before the -- the last deportation order was entered?
Byron R. White: Yes.
Richard W. Schmude: One of October of 1959?
Byron R. White: He was promising to leave but not.
William J. Brennan, Jr.: 1942.
Byron R. White: 1942.
Richard W. Schmude: Well, the 1942 deportation order, that does not appear in the record Mr. Justice White. On his registry forms, he indicated the -- that he was working in New York City and he was living in New York City at that time.
William J. Brennan, Jr.: And he was deported while living in New York City, was he?
Richard W. Schmude: Yes sir, right.
William J. Brennan, Jr.: Ordered deported.
Richard W. Schmude: Order deported and New York --
William J. Brennan, Jr.: And was an offer to reship made to him while he was living in New York City?
Richard W. Schmude: Mr. Justice Brennan, that does not appear in the record. I -- the immigration service has provided me with the transcript of the proceedings, the 1942 proceedings which are not in the record. And I will -- I would not go outside of the record unless the Court specifically requests it.
Hugo L. Black: That would reach the -- I understand (Inaudible)
Richard W. Schmude: Yes sir.
Hugo L. Black: (Inaudible)
Richard W. Schmude: Yes sir, right. And if I --
Hugo L. Black: (Inaudible)
Richard W. Schmude: Our --
Hugo L. Black: (Inaudible)
Richard W. Schmude: No sir. Authorizing him to reenter the Unites States from time to time as a bona fide crewman, you see.
Hugo L. Black: Well, he -- how long (Inaudible) on the trip?
Richard W. Schmude: That was entered Mr. Justice Black in the order of -- in the warrant of deportation.
Hugo L. Black: But how (Inaudible)
Richard W. Schmude: Well, that would be September 4th, 1942 and that would -- would be 32 days before he left.
Hugo L. Black: 32 days before he left?
Richard W. Schmude: Yes.
Hugo L. Black: (Inaudible)
Richard W. Schmude: A waiver under the Ninth Proviso, yes sir.
Hugo L. Black: (Inaudible)
Richard W. Schmude: Yes sir.
Hugo L. Black: (Inaudible)
Richard W. Schmude: Yes sir.
Hugo L. Black: And he came back to (Inaudible).
Richard W. Schmude: Right.
Hugo L. Black: And that is what you say (Inaudible) before.
Richard W. Schmude: Well, he -- he was -- he was ordered --
Hugo L. Black: (Inaudible)
Richard W. Schmude: A right to reenter not in an absolute sense Mr. Justice Black, but a right to reenter as a crewman. You see, Section 3 of the 1917 Act said or specified the classes of aliens who were excludable from the United States. And the 1929 Act said, if you had been previously ordered deported and have left, you are in a deportable category and you are excluded from reentry. Now, he came here as a crewman and he left as a crewman and we said simply provided in the Ninth Proviso that if you should ever return from time to time and are eligible for short leave except for prior deportation, excludability from prior deportation. But this basis of inadmissibility was waived so that if you are otherwise entitled to short leave, if you're a bona fide seaman, you can reenter for temporary short leave purposes.
Tom C. Clark: Just for shore leave?
Richard W. Schmude: Yes sir, right. Just for shore leave.
Tom C. Clark: (Inaudible)
Richard W. Schmude: Not a general admission, no sir.
Tom C. Clark: (Inaudible)
Richard W. Schmude: Generally speaking, during the war years Mr. Justice Clark, when crewmen had been deported to England or have effected their own deportations, it was the practice of the service to include in the warrants of deportation this waiver and waiver under the Ninth Proviso so that they could return to our shores and obtain shore leave.
Potter Stewart: All I did though is to give them rights equivalent to other foreign seamen who was --
Richard W. Schmude: Yes, right.
Potter Stewart: -- has been deported from this country.
Richard W. Schmude: It -- it placed them inexcludable --
Potter Stewart: Or excludable from this country.
Richard W. Schmude: Right, right.
Potter Stewart: They just gave them up to 30-day shore leave, (Voice Overlap) --
Richard W. Schmude: Yes, sir.
Potter Stewart: -- otherwise been shore leave.
Richard W. Schmude: Yes, Mr. Justice.
Hugo L. Black: (Inaudible) is that taking it up to the nationality law?
Richard W. Schmude: Yes, sir. It's on page 4 of our brief, Mr. Justice Black.
Speaker: (Inaudible)
Speaker: (Inaudible)
Richard W. Schmude: Yes. I beg -- I beg your pardon Mr. Justice Black?
Hugo L. Black: (Inaudible) what page?
Richard W. Schmude: On page 4 of the brief.
Hugo L. Black: Your brief?
Richard W. Schmude: Of our brief, sir. If I may read the -- read along with the Court, this particular waiver under the Ninth Proviso. If the alien returns to the United States from time to time and upon inspection, is found to be a bona fide seaman and entitled to shore leave except for prior deportation, admission under the Ninth Proviso of Section 3 of the Act of February 5th, 1917. In reference to this ground of inadmissibility is hereby authorized for such time as the alien maybe admitted as a seaman.
Speaker: (Inaudible)
Richard W. Schmude: Except for prior deportation. You see, if he's found to be a bona fide seaman and entitled to shore leave, except for prior deportation. And under the 1929 Act, Mr. Justice Harlan, a -- a deported person was inadmissible on his return. As a matter of fact that he would commit a felony if he reentered without permission.
Arthur J. Goldberg: (Inaudible)
Richard W. Schmude: Yes, sir.
Arthur J. Goldberg: (Inaudible)
Richard W. Schmude: Yes, sir.
Arthur J. Goldberg: (Inaudible)
Richard W. Schmude: Yes.
Arthur J. Goldberg: (Inaudible)
Richard W. Schmude: Right.
Arthur J. Goldberg: (Inaudible)
Richard W. Schmude: There's nothing in the record Mr. Justice Goldberg and as I've indicated, I have the transcript of the 1942 proceedings but those that -- that particular transcript is not in the record. So, the record does not show that he was specifically advised of this. And of course, he was present at the deportation hearing and he knew --
Arthur J. Goldberg: (Inaudible)
Richard W. Schmude: He knew he was under an order of deportation.
Arthur J. Goldberg: (Inaudible)
Richard W. Schmude: This was a routine --
Arthur J. Goldberg: (Inaudible)
Richard W. Schmude: This was a routine form that was completed in these types of cases, Form 535.
Arthur J. Goldberg: (Inaudible)
Richard W. Schmude: Under the regulations at that time.
Hugo L. Black: (Inaudible)
Richard W. Schmude: The form was placed in his file, Mr. Justice Black.
Hugo L. Black: In his file.
Richard W. Schmude: In -- in the immigration file, yes.
Arthur J. Goldberg: (Inaudible)
Richard W. Schmude: There's nothing in the record to indicate that, sir, no.
Hugo L. Black: (Inaudible)
Richard W. Schmude: The right --
Hugo L. Black: (Inaudible)
Richard W. Schmude: Well --
Hugo L. Black: Does the record show that (Inaudible)
Richard W. Schmude: Well, he was given a hearing in the summer of 19th --
Hugo L. Black: (Inaudible)
Richard W. Schmude: Were -- were they in -- in need sir?
Hugo L. Black: (Inaudible)
Richard W. Schmude: Well, there were some dangers and -- and I believe that --
Hugo L. Black: (Inaudible)
Richard W. Schmude: Well, there were shortages of seamen, that's true, Mr. Justice Black. But the point I'm making, Mr. Justice Black, is that he was given a hearing in 1942. He was ordered deported and -- and certainly, he knew that he was under an order of deportation and -- and his conduct in leaving in his employment and -- and his residence in New York City, going to the West Coast. He's a Yugoslav national. He signs up on board a Yugoslav vessel and he goes and these objective considerations under Section 1(b) of the 1929 Act, constituted deportation. There was an order entered and he left.
William J. Brennan, Jr.: And he knew of the order?
Richard W. Schmude: And he knew of the order. I -- I --
William J. Brennan, Jr.: Incidentally, I gather when he returned to San Francisco and departed the ship, it is not as a sailor on shore leave --
Richard W. Schmude: No, sir.
William J. Brennan, Jr.: -- but because of illness or something.
Richard W. Schmude: Yes sir. When he came back, the ship arrived --
William J. Brennan, Jr.: -- I just wonder, did that take some special --
Richard W. Schmude: The statute --
William J. Brennan, Jr.: Of -- on the file of the United States Government that takes some special permission or what.
Richard W. Schmude: That was special permission, yes, sir.
William J. Brennan, Jr.: Well, who gave that, that's what I'm --
Richard W. Schmude: It must have been the -- the immigration officials at the port of entry in San Francisco.
William J. Brennan, Jr.: What -- was he hospitalized or something?
Richard W. Schmude: The record doesn't show it, Mr. Justice Brennan. He testified in 1952 that he came off the ship and he was sick and -- and they let him come in. And the hearing officer made a finding of fact that he was admitted, not as a bona fide seaman but as a person entitled or a person for --
William J. Brennan, Jr.: And that (Voice Overlap) --
Richard W. Schmude: -- an actual medical treatment.
William J. Brennan, Jr.: And that admission took some action on the part of the immigration (Voice Overlap) --
Richard W. Schmude: Yes, it did. Yes, sir.
Arthur J. Goldberg: (Inaudible)
Richard W. Schmude: No, sir. He was ordered deported on the ground that he was an overstayed crewman and he deserted his ship.
Arthur J. Goldberg: (Inaudible)
Richard W. Schmude: Well, he overstayed. The first shore leave by about a year and a half. We caught up with him and ordered him deported and he left pursuant to that. And --
Potter Stewart: Thereafter, your point is, he was ordered deported in a proceeding of which simply, he obviously had complete notice.
Richard W. Schmude: Sure.
Potter Stewart: And he left the country and he could not thereafter lawfully return here to live.
Richard W. Schmude: Right.
Potter Stewart: And that --
Richard W. Schmude: He could -- he could --
Potter Stewart: Wasn't that interrupted his residence in this country?
Richard W. Schmude: Right. If he -- if he returned as a bona fide seaman and was entitled to shore leave, except for that prior deportation, we waive that prior deportation.
Potter Stewart: I know but he could not lawfully --
Richard W. Schmude: He could not lawfully become --
Potter Stewart: -- (Voice Overlap) in this country to live, (Voice Overlap).
Richard W. Schmude: That's correct. Yes, sir. Right.
William J. Brennan, Jr.: (Inaudible) I gather because he was granted permission to leave that ship because of illness.
Richard W. Schmude: Right.
William J. Brennan, Jr.: Though that -- to that extent, the entry at that time from the ship was lawful, wasn't it?
Richard W. Schmude: That's correct, right.
William J. Brennan, Jr.: Now, are there any terms of that entry, any time limits or anything else, speaks for it?
Richard W. Schmude: I -- I wish the record was more specific on this point, Mr. Justice Brennan. It is not. It's just his testimony that he was admitted --
William J. Brennan, Jr.: Well, it must have come a point though --
Richard W. Schmude: -- bona fide. The statutes and the regulations in effect stated that where the admission was for hospitalization or for medical treatment purposes that this was simply a temporary admission and that he was expected to reship.
William J. Brennan, Jr.: Well, which is only to say that there came a point after that lawful admission when his con -- continued stay here was unlawful.
Richard W. Schmude: That's correct.
William J. Brennan, Jr.: Now, when did that point arise?
Richard W. Schmude: That point arise -- arose, Mr. Justice Brennan when he had fully recuperated from his illness.
William J. Brennan, Jr.: And we -- do we know -- does the record tell us when this was?
Richard W. Schmude: No, it doesn't.
William J. Brennan, Jr.: So as far as this is concerned, he might still be to get a relief.
Byron R. White: There was the new deportation as of 1952, wasn't it?
Richard W. Schmude: Right, sir. Well, actually, in 1954, proceedings in 1952.
Byron R. White: (Inaudible)
Richard W. Schmude: Right.
Hugo L. Black: (Inaudible)
Richard W. Schmude: Right, yes, sir.
Potter Stewart: Despite two deportation orders.
Richard W. Schmude: Right. Despite -- despite three deportation orders.
Hugo L. Black: And that --
Richard W. Schmude: And we'd given him voluntary departure and he won't and had -- he has not left.
Hugo L. Black: How many times had he left? (Inaudible)
Richard W. Schmude: Yes, sir.
Hugo L. Black: -- on deportation?
Richard W. Schmude: Yes, sir.
Speaker: (Inaudible)
Richard W. Schmude: Right. If -- if I could -- if It please the Court, turn to the impact of these events upon the petitioner's claim of continuous residence. We submit that his deportation operated to terminate his prior residence in the United States. We submit that deportation and the retention of residence in the United States are mutually incompatible. As this Court has held on many occasions, deportation is simply the removal from the United States of particular aliens after exclusion or expulsion proceedings. One cannot, we submit, without negativing the purpose and essential character of deportation retain a principle, actual dwelling place, in fact, in a place from which he has been physically and lawfully excluded and to which he has no right to return. Moreover, the 1929 Act, as amended, provided that a deported person was excludable from the United States and that if he reentered or attempted to reenter United States, he was subject to the rigors of a felony prosecution for which he could be imprisoned of up to two years. It would be inconceivable, we submit, for Congress to have intended that a deported person could ret -- could retain a residence in the United States. But that any attempt on his part to physically come to, resume or be found at that residence would result in the commission of a felony. Finally, we submit that the acceptance of the petitioner's position would attribute to Congress a result which basically is inconsistent with Section 330 of the 1952 Act. Section 330 of that Act simply provides that honorable service by resident aliens of the United States on board certain American vessels shall be deemed residence and physical presence for purposes of -- of naturalization under Section 316. Since service on board foreign vessels may not be counted for purposes of residence under the Naturalization laws, we submit that it would not square with the statutory scheme for the petitioner to count his service on board a foreign vessel especially after entry of an order of deportation to count as a continuation of prior residence in the United States since the whole object of registry is to give the applicant permanent residence. And permanent residence as the Court well knows is one of the basic prerequisites to naturalization. For our concluding note, may I state that when the petitioner departed from the United States in 1942, he restored himself to the same residence status that he had prior to his entry. The only difference being that when he left, he left with the status of a deportee and was excludable except for shore leave purposes. He entered the United States as a crewman on board a Yugoslav vessel.He departed from the United States as a crewman on board a Yugoslav vessel. If he had a permanent residence after deportation, it was his home on the Island of (Inaudible) in Yugoslavia where --
Arthur J. Goldberg: (Inaudible) What you're arguing --
Richard W. Schmude: Well he had a --
Arthur J. Goldberg: (Inaudible)
Richard W. Schmude: I'm -- I'm stating Mr. Justice Goldberg that he simply had a permanent residence in Yugoslavia where he had a wife and three children, and he was supporting that wife and three children during this period.
Arthur J. Goldberg: (Inaudible)
Potter Stewart: Didn't you -- I didn't understand you to be arguing that he was sent home. You just told us where his home was, where his wife --
Richard W. Schmude: That's --
Potter Stewart: -- and three children were.
Richard W. Schmude: That's correct. And -- and we say, Mr. Justice Stewart that Congress with the -- with Section 1 (b) of the Act of March 4th, 1929, placed objective considerations on a departure after an order of deportation. If -- if an order has been entered and he departs, Congress specifically said that is deportation. And we submit Your Honor that if he's been validly deported and this petitioner was that that is inconsistent with the continuation of residence. A deported person can't have a residence and -- and -- but they specifically denied the right to come to that residence without committing a felony. The two are mutually incompatible.
Hugo L. Black: Do you (Inaudible)
Richard W. Schmude: Yugoslavia at that time was -- was occupied by German forces.
Hugo L. Black: (Inaudible)
Richard W. Schmude: I imagine that --
Hugo L. Black: How could he have entered?
Richard W. Schmude: How could he have gone to Yugoslavia?
Hugo L. Black: (Inaudible)
Richard W. Schmude: Well, there was quite a bit of guerilla activity going on at that time. And I imagine that -- that there might've been a way to smuggle him in. I understand that --
Hugo L. Black: (Inaudible)
Richard W. Schmude: He -- he might have sir. Yes.
Hugo L. Black: (Inaudible)
Richard W. Schmude: Right.
Hugo L. Black: (Inaudible)
Richard W. Schmude: But he had a government in England and we were deporting people to Yu -- to England where the probational government --
Hugo L. Black: (Inaudible)
Richard W. Schmude: Well he's -- he was a Yugoslavia National, Mr. Justice Black and the Yugoslav Government Cabinet had -- had gone to England and was stationed in England at this time operating with their maritime courts and they specifically received back seamen.
Hugo L. Black: (Inaudible)
Richard W. Schmude: There's a statement to that effect in the brief of the petitioner Your Honor but the -- my research has disclosed that under Sections 3, the third and fourth paragraphs of Section 3 of the Treaty of Rapallo of November 11th, 1920 between Italy and Yugoslavia. Yugoslavia or Italy obtained only four islands in the Adriatic although they had been promised many islands including the petitioner's islands in the secret Treaty of London in 1915. So this did not actually change hands in the hist --
Hugo L. Black: (Inaudible)
Richard W. Schmude: He was born on the island of (Inaudible), which is in the --
Hugo L. Black: (Inaudible)
Richard W. Schmude: Austria-Hungary, right.
Hugo L. Black: (Inaudible)
Richard W. Schmude: Well if --
Hugo L. Black: (Inaudible)
Richard W. Schmude: Well after World War I, the -- the Empire broke up and the new Kingdom of the Serbs, Croats and Slovenes was setup and Italy claimed these offshore islands and all of Dalmatia, but these claims were not realized or partially realized until the Treaty of Rapallo. And at that point, Italy obtained just four islands in the Eastern Peninsula of Yugoslavia and the town of Zadar. And that was about it. And Yugoslavia retained the rest of the islands.
Hugo L. Black: (Inaudible)
Richard W. Schmude: Yes, sir, I'd be glad to do that claim. Thank you very much sir.
Byron R. White: What would be (Inaudible)
Edith Lowenstein: I will be -- I will be very brief. I have very little time. I know that but I would like to say one or two things about the man and his history. The representation of the Government although was basically correct, shows it's too much from the side of the Government. Now on page four of the petitioner's brief is the story why -- how he managed to stay here this long. But in our present discussion neither one of us mentioned that the petitioner left Yugoslavia before Yugoslavia was taken over by the Communist. The petitioner is anticommunist, he is a Catholic, he is a -- he is not a great intellectual and has no general ideas on Marxism but he does not want to go back to a communist country. And during the 1950s, he filed an application for stays of deportation because of persecution if he were to be returned. And during the 1950s, the Commission of Immigration had granted such a blanket stay to all Yugoslavs who made such a claim. So that that was part of the delay. Also I would like to say that there's nothing in the record to indicate that he in a sort of a slippery fashion went up to San Francisco to take that boat. As a matter of fact, there's nothing in the record to say by the heat of that boat, because he chooses though whether the Government told him to go to San Francisco and take it, so there's no indication that he was trying to out facts the Government by going to San Francisco. Also, I would like to emphasize the comment which Mr. Justice Goldberg made a while ago, where was he deported to. The order of deportation did not state England. The order of deportation stated Yugoslavia. So therefore -- or even if people were deported to England, technically, he could not have been deported to England because he was either deported to Yugoslavia. In addition to that, let us assume that when he left the ship and went on to a Yugoslav vessel, he went to Chile as my colleague -- he stated that as a foreign part of place that he had gotten off the ship. But its certain, it was not the destination of his deportation order and there's no indication that he went off the ship or that he could have gone off the ship.
Potter Stewart: I understood you on your earlier arguments Ms. Lowenstein, to concede -- to concede that when he left his country, it was an exit -- it was an -- it was tantamount to the execution of the order of deportation.
Edith Lowenstein: That's perfectly correct. I -- I concede that --
Potter Stewart: You've said that (Voice Overlap) --
Edith Lowenstein: -- because I think that is irrelevant to the position --
Potter Stewart: -- you are not.
Edith Lowenstein: -- of -- of permanent residence -- I mean of a residence in the United States. And then I only want to make one more point and that is the question of the illegal reentry. I mean I know that he did -- I mean, the Government found him to be not a bona fide crewman when he reentered. That however was only brought out at a time 1952 when he applied for a Refugee Visa and admitted that he didn't want to leave, that he would like to remain here. That is -- was decided in 1952 that he was not a bona fide crewman. And that's almost 10 years later. Now -- while it is quite possible that the special inquiry officer may have said that he was not noticed during these 10 years. If he was not noticed, it was not because he was hiding out. Because during this period, he had deductions from his income taxes and as a matter of fact there is a deduction from his income taxes in the record which is filed with a court in 1944. He also registered with selective service and he did not hide out. I think it is quite possible that during that time, the immigration service had a certain amount of sympathy with a crewman who came from countries which were overrun by the enemy. And I do not believe that it was necessarily his -- his smartness and slyness that he withdrew himself from immigration proceedings for 10 years. And I feel that since he now has been here for 10 years, he has an American citizen brother and all as soon as -- if that his petition should be granted for adjustment of status and that he --
Potter Stewart: Where -- where is his wife and three children now?
Edith Lowenstein: Well, they are waiting for him to become admitted and then they would join him. Their (Inaudible) -- their applications are pending -- (Voice Overlap)
Potter Stewart: They are waiting for him to come back to Yugoslavia?
Edith Lowenstein: Excuse me?
Potter Stewart: The -- they're waiting for him to come home to Yugoslavia?
Edith Lowenstein: No, I think they're waiting to come over here. I don't think -- I think they are all are very unhappy. So I ask the Court that the petition will be granted.