William H. Rehnquist: We'll hear argument next in Number 95-938, Immigration & Naturalization Service v. Yueh-Shaio Yang. Ms. Brinkmann, you may proceed.
Beth S. Brinkmann: Thank you, Your Honor. Mr. Chief Justice and may it please the Court: This case involves respondent's request for a waiver of deportation under section 241(a)(1)(H) of the Immigration and Nationality Act. The act commits that decision to the discretion of the Attorney General. Exercising her discretion in this case, the Attorney General properly considered numerous frauds committed by respondent, including his fraudulent application for naturalization, fraudulent marriages, fraudulent divorce, and his participation in the fraudulent obtaining of documents for his wife's fraudulent entry into the country. The Attorney General did not, again as a matter of discretion, consider the fraud respondent committed at entry.
William H. Rehnquist: I take it under the statute, the Attorney General would have been perfectly free to consider that fraud.
Beth S. Brinkmann: That's correct, Your Honor, and in fact the Seventh Circuit has expressly recognized that. In Rodriguez-Barajas, Judge Easterbrook explained that the Attorney General's under no compulsion to disregard that initial fraud, and that any limitation on that has arisen out of the Attorney General's exercise of her discretion.
Sandra Day O'Connor: Well, you think, then, that the statute places no outer limits whatever on the discretion of the Attorney General? If the Attorney General took the position that the fact of a fraudulent entry by the alien is a factor weighing against waiver, then nobody would be entitled to a waiver any time.
Beth S. Brinkmann: Well, Your Honor--
Sandra Day O'Connor: I mean, that condition exists in every one of these cases.
Beth S. Brinkmann: --That's correct, Your Honor. The aliens that are in the pool of eligible aliens for this type of waiver share several common characteristics. They all have three factors weighing in their favor. They have to be the relative... the parent, son or daughter or spouse of a citizen or a permanent resident alien. They also must have presented themselves for entry. They have to have a validly, facially valid document, and they have to be otherwise admissible. They also share the fact--
Sandra Day O'Connor: But for the fraud.
Beth S. Brinkmann: --Yes. They also share the fact that they all committed entry fraud. Now, looking at that pool of applicants, the Attorney General has to decide who amongst that she should exercise her discretion to give a waiver to, and our submission is that it's certainly proper for the Attorney General to favor a person who has been law-abiding since their initial entry over someone who's perpetrated a series of frauds. We would also submit, Your Honor, although it has not come up in the typical kinds of cases that have come before the board, if, for example, the entry fraud was intertwined with violence, for example, we certainly think the Attorney General in her discretion could take that into account.
Sandra Day O'Connor: Well, could take into account the circumstances of the particular fraudulent entry.
Beth S. Brinkmann: Yes, Your Honor.
Sandra Day O'Connor: But not the mere fact that there had been a fraudulent entry, I take it?
Beth S. Brinkmann: I'd look to the... for example, the Court in the Rios-Pineda case, when the Court was looking at the Attorney General's authority whether or not to grant suspension of deportation there, I think characterizes looking to the nature and severity of the factor, so I would think that that would clearly be appropriate for the Attorney General to take into account.
William H. Rehnquist: Well, just because Congress has given the Attorney General the power to waive fraud, certainly you don't concede that the Attorney General couldn't say, I have the power but I decline to waive any kind of fraud.
Beth S. Brinkmann: That's correct, Your Honor. In fact, particularly in the immigration context there may be other matters of foreign affairs or international relations that at a particular point in time the Attorney General would choose not to exercise her discretion in favor of waivers under this provision.
Anthony M. Kennedy: The statute does circumscribe discretion in one respect, does it not, or perhaps not, because the sentence is difficult. The last sentence of sub (H), a waiver of deportation for fraud granted under this subparagraph shall also operate to waive deportation based on the grounds of inadmissibility at entry. What's the function of that sentence, other than to circumscribe or control the discretion of the AG? Maybe you'll tell me--
Beth S. Brinkmann: If I under--
Anthony M. Kennedy: --it's an interpretation of the discretion once exercised.
Beth S. Brinkmann: --I think, if I understand your question correctly, Your Honor, it's clarifying some confusion that had existed under their previous provision, and it makes clear that if the Attorney General grants a waiver of deportation under this provision, that waiver of deportation waived the grounds of inadmissibility for the fraud and also for inadmissibility grounds that directly result from that, that being a fraudulent visa or fraudulent labor certification.
Anthony M. Kennedy: Would that be relevant in a later application for citizenship, or something like that? Is that why it's important?
Beth S. Brinkmann: Well, in fact--
Anthony M. Kennedy: Because it seems to me to just restate that a waiver's a waiver.
Beth S. Brinkmann: --Well, Your Honor, I think I can give an example to explain it. There is some fraud at entry that doesn't involve fraudulent documents or labor certificates. Misrepresenting your marital status, perhaps, in an interview. Some people obtain their visas based on false information at a consulate beforehand, and then when they arrive at the port of entry, they continue to stand by what's in that visa, but perhaps they've been unmarried... they've been divorced or married in the meantime, so they would be committing a fraud at entry, but that would not necessarily relate to any fraudulent document. If they had an independently based fraudulent document, that could be a ground of inadmissibility, and it would not be waived because it would not directly result from their fraud, and I think what the statute was trying to get at was that any of the grounds of inadmissibility at the time of entry that directly result from the entry fraud are also waived.
Anthony M. Kennedy: May I-- --But then that is a narrowing of the Attorney General's discretion.
Beth S. Brinkmann: No. We would simply say that describes what the effect of the grant of the waiver is. The Attorney General grants a waiver, and it specifies that it waives deportation based on those grounds. That's what the effect of a 241(a)(1)(H) waiver--
Anthony M. Kennedy: Well, it circumscribes the Attorney General to some extent in that it does control the extent of the waiver.
Beth S. Brinkmann: --The effect of it, yes, Your Honor. On the other hand, we would submit that as in my previous discussion of how the Attorney General could take into account the nature and severity of the initial fraud, the Attorney General certainly also as matter of discretion could take into account the nature and severity of the other grounds of inadmissibility on the fraudulent labor certificate or visa, the means by which that was procured.
John Paul Stevens: I have to confess I'm still a little puzzled about your answer to Justice O'Connor. I understood you to say that the Attorney General could not take into account the mere existence of some fraud, could take into account the nature of the fraud, but are you saying that if... say there's the mildest kind of form in the... fraud in the world, that the mere fact there was a fraud could not be taken into consideration?
Beth S. Brinkmann: No, I'm sorry, I misspoke if I--
John Paul Stevens: No matter how mild it is, the Attorney General has discretion.
Beth S. Brinkmann: --That's--
John Paul Stevens: Otherwise, it seems to me a person could commit a fraud and then claim a right to remain.
Beth S. Brinkmann: --That's right, and in fact, Your Honor, one of the ironies of the Ninth Circuit's ruling in this case is, it really gives the type of open-ended immunity to aliens who enter by fraud. By requiring that later frauds be considered as a part of or an extension of the entry fraud, those aliens are put at an advantage over an alien who enters lawfully and then commits later fraud which is not forgiven.
David H. Souter: But are you saying that the Attorney General would be within her discretion to say, I will never exercise my discretion to waive entry fraud?
Beth S. Brinkmann: We believe that if that were based on a reasonable exercise of her discretion--
David H. Souter: No, but that begs the question. The only fact you know is that she says, I'm adopting a policy. I will never exercise discretion, no matter what the circumstances, to waive entry fraud. Would that be lawful or not?
Beth S. Brinkmann: --Yes, Your Honor, we believe it would be. I guess in my initial answer I was trying to think of an example in which that might be the case, and I come back to the example of perhaps there are other immigration interests and other quotas that are so... so important, and as a matter of policy--
David H. Souter: No, but my question suggested that that was her across-the-board policy for all cases in which the statute might be applied. I'm not asking a question about subclasses. I'm talking about the entire class of possible waivers, and construed that broadly, would it be within her discretion to say, I will never exercise my discretion in favor of waiver?
Beth S. Brinkmann: --You mean waivers under 241(a)(1)(H)?
Speaker: Yes.
Beth S. Brinkmann: Yes, Your Honor, we believe it would be.
Sandra Day O'Connor: But in any event, the BIA has adopted a different standard, right?
Beth S. Brinkmann: That's correct, Your Honor.
Sandra Day O'Connor: And unless that standard is changed, I assume the Government would abide by the standard--
Beth S. Brinkmann: That's--
Sandra Day O'Connor: --that's been adopted.
Beth S. Brinkmann: --That's correct, Your Honor.
Sandra Day O'Connor: Is that right?
Beth S. Brinkmann: That's correct, and it's a reasonable approach. I think the board has found that the cases that have come before it, that entry fraud does seem to be of a common ilk, and has decided to treat like cases alike in that regard, and need not look at that initial factor. As I mentioned earlier, if a case arose in which a different type of entry fraud was involved involving violence, for example, we believe that would be certainly something which the board may very well--
Anthony M. Kennedy: But do you say you're free to depart from that rule and that practice at any time you want?
Beth S. Brinkmann: --Yes, Your Honor, I think to the extent that--
Anthony M. Kennedy: For no reason at all?
Beth S. Brinkmann: --I think to the extent that there is judicial review for abuse of discretion the board would be well advised to provide a reason. I have to hasten... have to... have to be quick to add at this point, Your Honor, at this point it's somewhat of a limited query, because the new statute that was passed a week and a half ago eliminates judicial review of the Attorney General's exercise of discretion under this provision.
Antonin Scalia: But currently, do I understand it correct... I must say, I was quite surprised to discover this, but the situation is, if you commit entry fraud and are successful, so long as you don't commit any other fraud, you're okay. Is that the current position?
Beth S. Brinkmann: You're eligible for a waiver. That doesn't mean you get it, Your Honor. At that point you can apply to the Attorney General. You have to be a relative--
Antonin Scalia: Well, you may not get it, but you won't be denied it simply because you got in fraudulently.
Beth S. Brinkmann: --It will... when the Attorney General, the Board of Immigration Appeals, the immigration judge exercise their discretion, the practice at this point is not to take into account the initial entry fraud.
Antonin Scalia: I find that extraordinary, myself. No matter how severe-- --I-- --I'm sorry. Why is that?
Beth S. Brinkmann: The fact of the matter is, Your Honors, when I've looked through all the cases, the typical case that has come forward involves very similar types of fraud, mainly people misrepresenting the fact they've been married, or been divorced, family relations. There have not been cases which involve incidences of violence, for example, and--
William H. Rehnquist: Well, why is it that in those kinds of cases... why does the BIA disregard that fraud?
Beth S. Brinkmann: --Well, to an extent, Your Honor, I think that it's taken as a matter of treating like cases alike, and that that's--
William H. Rehnquist: Well, you could treat like cases alike and say we'll... we will not disregard it in any of them.
Beth S. Brinkmann: --Right, and that's what the alien's coming forward to, as asking for forgiveness for, as the board has characterized it.
Ruth Bader Ginsburg: Ms. Brinkmann, there was one time when this kind of waiver for initial entry fraud was mandatory.
Beth S. Brinkmann: Yes.
Ruth Bader Ginsburg: And then it was urged that Congress drop it altogether. Instead, Congress came up with something in between. They said the entry by fraud may, in the discretion of the Attorney General, be waived, but if you can respond to the question that's been raised by several of the justices, why in the first place did Congress provide for initially a mandatory waiver and now a discretionary waiver for one who has gained entry by fraud?
Beth S. Brinkmann: Your Honor, initially, this was enacted as section 7 of the Immigration Act in 1957, and it was responding to entry by... immigrants were fleeing repression in totalitarian regimes, and had made misrepresentations in order to avoid repression, and that's when the provision was first enacted, added to the statute. Then it was somewhat modified in 1961. In between 1961 and 1981, that's when all the trouble and confusion started occurring, and that's what prompted Congress in 1981, or the proposals pending in Congress, to eliminate it altogether because it had caused such confusion. For example, persons who entered by an innocent misrepresentation some courts had held were not eligible for the waiver, whereas aliens who had entered through fraudulent misrepresentations were. That's something that the 1981 statute... amendment corrected. It also, of course, made it discretionary. It also made it clear, for example, that it was not going to waive deportation for aliens who entered without inspection. Now--
Antonin Scalia: --policy by discretion of the executive is that anyone who commits fraud successfully upon entry is okay.
Beth S. Brinkmann: --I wouldn't say it's okay, Your Honor, but it's enough like all of the other cases that have come before the board that it's a wash, and that the board look, and the immigration judges look at the other factors that underlie the interest in the stat... this provision--
Antonin Scalia: You get in under the provision of the law that says a spouse can get in, and you lie. You say I'm married to somebody. You are in fact not married to somebody. So long as you persuade the officer of the truth of that lie, it's okay. Once you're in, it's all right. That's the policy we now have in place.
Beth S. Brinkmann: --Right. Well, it dates back to 1978, Your Honor. There's a similar provision for waiver of exclusion grounds, and that's when the Commissioner of INS first articulated this.
Antonin Scalia: Well, I thought we were going to get serious about... about enforcing our borders, and I was really quite surprised to find that that's the policy.
Beth S. Brinkmann: Well, Your Honor, I have to say I think that in light of the statute that was recently passed, that Your Honor... certainly it's a situation I think now where Congress has eliminated this provision from judicial review, and the--
Antonin Scalia: Well, that doesn't save anything. The Attorney General can continue to let everybody in who's lied successfully, and there's no judicial review. It may make it worse.
Beth S. Brinkmann: --I would hasten to add, Your Honor, I mean, this waiver of deportation does apply to a limited pool of people. It applies to people who are immediate relatives of U.S. citizens, or permanent resident aliens, and the main thrust behind this provision was for family unification, as I initially pointed out to Justice Ginsburg, in '57, it had to do with the nature of countries that aliens were fleeing, but the real interest--
Antonin Scalia: Do they have to now be an immediate relative?
Beth S. Brinkmann: --Yes.
Antonin Scalia: I mean, suppose they lied when they came in and they said they were an immediate relative.
Beth S. Brinkmann: They have to be one. That's a statutory eligibility--
Antonin Scalia: They have to be one now.
Beth S. Brinkmann: --At the time of the application for the waiver and the grant of the waiver, yes, Your Honor, and that was really the interest underlying, so although I think at first blush it may sound frivolous to permit people who have lied or misrepresented, I think that Congress really envisioned an overriding interest in the unification of families.
William H. Rehnquist: Your position here, I take it, Ms. Brinkmann, is that although the Attorney General has exercised her discretion in this manner to forgive entry fraud, that she has control of just what that means, and it shouldn't be expanded by the courts.
Beth S. Brinkmann: That's right, Your Honor.
Anthony M. Kennedy: Well, but on the other hand, I take it that you're saying that what the Attorney General's position has been, which is to overlook the initial fraud, is suggested if not compelled by the statutory history. Isn't that what you're saying?
Beth S. Brinkmann: We don't believe that it is compelled by that, Your Honor, no. We think that to the extent the Ninth Circuit authority can be read that way, they're clearly wrong. We agree with Judge Easterbrook's opinion in the Seventh Circuit, which states that their statute imposes no compulsion on the Attorney General to disregard that initial fraud. That simply is one of the eligibility requirements. That's one of the factors I described earlier that all the aliens in the applicant pool have in common.
Anthony M. Kennedy: Well, that would make a lot of sense to me but for the way the Attorney General has administered the statute to date. I can't understand where it gets... where that policy derives from, and I thought your earlier remarks indicated it derived from the statutory history.
Beth S. Brinkmann: No, I think it actually derives from the history before the agency itself, Your Honor. As I explained, it actually piggybacks on an interpretation of waiver for exclusion under section 212(i) in 1978. The Commissioner of the INS set forth this policy and that's what eventually was incorporated into the Attorney General's interpretation of the deportation waiver. When that first statement was made about the exclusion waiver, the deportation waiver was not yet discretionary. It was mandatory. The exclusion waiver has always been discretionary, so once the deportation waiver became discretionary in 1981, and the Attorney General came to start interpreting that, she looked back to the interpretation that had been given to the exclusion waiver that was always discretionary.
Stephen G. Breyer: Am I right, I thought... I might not be, but I... my reading of this was initially there were a group of people who did lie when they wanted to come in, particularly people who came from Iron Curtain countries, and they lied about what country they were coming from because they were afraid that they'd be sent back and killed possibly, and Congress initially passed this statute because it wanted to say that people like that who had families here should be permitted to stay here.
Beth S. Brinkmann: Yes, Your Honor.
Stephen G. Breyer: And if that's so, then wouldn't it raise a legal question if the Attorney General said people just like that, or who tell equivalent lies to that, would all have to go back? That's why I wonder if there isn't some limitation arising out of the circumstances in this, where the history of this, that there were certain lies that would be told and the need to reunite families was such that that would be a limitation on the AG's discretion.
Beth S. Brinkmann: We don't believe so, Your Honor. I think looking at the text of this statute following the 1981 amendment, Congress was clear to write that the deportation may be waived in the discretion of the Attorney General.
Antonin Scalia: Regardless of the history, what the statute does is give the Attorney General discretion. That's what it says.
Beth S. Brinkmann: That's right, Your Honor. I think particularly against the backdrop of the history in 1981, where there had been proposals to eliminate it altogether. Also, I would add, Congress did set out the statutory eligibility requirements we've already discussed, and did not include any other even factors to consider in many provisions of the Immigration Nationality Act. For example, Congress has told the Attorney General specifically to consider hardship to family members and all that. This waiver provision contains none of that, and we think that bolsters our interpretation that it's left to the sole discretion of the Attorney General.
David H. Souter: Ms. Brinkmann, may I go to the other end of the spectrum and make sure I understand you on one point, and that is, I understand you to have said that the policy of waiving any initial fraud applies to any initial fraud regardless of what it's circumstances may be. In other words, there's no minor fraud versus major fraud. All frauds are equal if they are initial fraud, initial entry frauds, is that right?
Beth S. Brinkmann: It's difficult to answer that question, Your Honor, because the cases all have very comparable types of fraud. There just haven't been--
David H. Souter: All right, what if you had a fraud case in which you... it was shown that the documents were procured by the entrant by holding a gun to the head of officials in foreign countries to force them to produce the fraudulent documents, would that be like all other kinds of frauds? Would that be within the policy of waiving all initial entry frauds?
Beth S. Brinkmann: --I think that would be within... it would be within the discretion of the Attorney General, her delegates, to decide.
David H. Souter: No, but I want to know what her policy... I just want to understand what her policy is now, and would that fall within her policy of waiving initial entry fraud as you understand it?
Beth S. Brinkmann: That case simply has not come up, Your Honor, and I would not want to say that it would come within that, because I think that--
David H. Souter: So maybe not all frauds are equal for... initial entry frauds are equal.
Beth S. Brinkmann: --They may not be, Your Honor.
Speaker: Okay.
Beth S. Brinkmann: I think that's true, and I think the Attorney General would be free to change her policy and explain that in the future any entry frauds that have to do with violence certainly are going to be weighed much more severely, in fact--
Antonin Scalia: But that limitation doesn't exist right now. As far as we know now, and this is what I got from the brief, all entry fraud is not taken into account. Isn't that the rule as it now exists?
Beth S. Brinkmann: --Frankly, Your Honor, we also don't know the other way, because the case just has not arisen, and the Attorney General has not been presented with that situation.
Antonin Scalia: You don't know of a single case of entry fraud that has been taken into account.
Beth S. Brinkmann: No, Your Honor, certainly not in the reported cases I've seen. It might be, Your Honor, because in situations like that, the alien is more than likely going to be not otherwise admissible, will be inadmissible on other grounds.
Ruth Bader Ginsburg: And there's also a question of what is the entry fraud. If I understand the way this policy operates, in this case there was a sham divorce in Taiwan before the petitioner entered, and you count that as preentry fraud, so if I understand what the policy is correctly, all of the other... the later frauds postentry were just kind of surplus. It was enough to be outside this policy that there was a preentry fraud.
Beth S. Brinkmann: Your Honor, these are certainly I think a totality of circumstances when the Attorney General exercises her discretion, and any type of misdeed--
Ruth Bader Ginsburg: Well, I wasn't asking you that. I may understand her policy incorrectly, but I thought your explanation of the policy was, we will waive entry fraud but nothing before and nothing after, and here there was a before, and now you're saying no, I don't have it right, it's somehow a totality of the circumstances test and not, we'll zero in on the entry itself, I get there and say I'm from... I'm from Austria rather than from Poland.
Beth S. Brinkmann: --I'm sorry, Your Honor, I misunderstood. I wanted to say that the... some misdeed beforehand can certainly be considered. I just did not want to say that that was dispositive and meant that a waiver could not be granted.
Antonin Scalia: I must say, I don't understand this concept of preentry fraud. Who is the fraud being committed on? I mean--
Beth S. Brinkmann: On the United--
Antonin Scalia: --Well--
Beth S. Brinkmann: --States, Your Honor.
Antonin Scalia: --But it's only being committed on the United States at the time you present yourself for entry.
Beth S. Brinkmann: No, Your Honor--
Antonin Scalia: I mean, surely I can enter into a sham divorce if I want, and until such time as I applied for entry to the United States, it doesn't make any difference to the United States.
Beth S. Brinkmann: --Your Honor, respondent collaborated in obtaining fraudulent birth certificates and passports for his wife, and the reason that the divorce and remarriage under an assumed name that he also participated in was to commit a fraud in the United States of America as his wife coming in under the fraud of being a U.S. citizen. If he had never come to this country--
Antonin Scalia: It was her wife's entry that was the fraud. It wasn't the-- --His wife's. I mean, it was the wife's entry that he assisted that was fraud.
Beth S. Brinkmann: --That's true, and he--
Speaker: Okay.
Beth S. Brinkmann: --Yes. I also wanted to point out that respondent in the court of appeals agreed with this view and admitted that the naturalization fraud, for example, its fraudulent application could be weighed, and--
William H. Rehnquist: There was a fraudulent application for citizenship here too, wasn't there?
Beth S. Brinkmann: --I'm sorry, that's what I meant, Your Honor. I misspoke. Yes, in 1982.
William H. Rehnquist: And the Ninth Circuit said that was improperly considered by the Attorney General?
Beth S. Brinkmann: Yes, Your Honor.
Anthony M. Kennedy: You advised Justice Scalia that this was a very small class. I would have thought that numerically it's quite significant. Do you have any specific numbers as to how small this class is?
Beth S. Brinkmann: I actually do have some statistics from the... from fiscal year '95, Your Honor. I've been informed by... this is from the Executive Office of Immigration Review. These were decisions on... they classified them as 241(f) waivers, but it's now at 241 (a)(1)(H), and last year there were a total of 30... this was for immigration judge rulings, 37 waivers with a grant rate of approximately 84 percent.
Anthony M. Kennedy: Thank you.
Beth S. Brinkmann: Thank you.
William H. Rehnquist: Thank you, Ms. Brinkmann. I take it you want to reserve--
Beth S. Brinkmann: I'd like to reserve the rest of my time. Thank you.
William H. Rehnquist: --Mr. Hom. Am I pronouncing your name correctly?
Howard Hom: That's correct, Your Honor. Mr. Chief Justice, and may it please the Court: There are two basic points that we need to address. Number 1, this case, the facts of this case boils down to just one simple fact. Mr. Yang's assumed identity as the husband of a United States citizen, just one basic fact. Secondly, this is not a case of abuse of discretion. This is a case of statutory construction. This is a case of statutory construction because the plain language of the statute, the INS's own interpretation, prior case precedents, legislative history, and the policy and the purpose behind this waiver all indicate that the original fraud must never be weighed in the decision to grant or deny a waiver.
William H. Rehnquist: As a matter of... you say part of your argument to that effect is based on statutory construction. Where in the statute do you find that?
Howard Hom: Yes, it's subparagraph (ii) of 241(a)(1)(H), and the petitioner's brief at page 5a and 6a is the section of law, and in subparagraph (ii) on page 6a it states that the alien was in possession of an immigrant visa or equivalent document and was otherwise admissible, and that's the key phrase, otherwise admissible.
William H. Rehnquist: Well-- --Why isn't the key phrase, "fraud may, in the discretion of the Attorney General, be waived? " Yes.
Howard Hom: Because the purpose of the waiver was to--
William H. Rehnquist: We're talking about statutory construction now.
Howard Hom: --Oh, yes, sir.
Speaker: Yes.
Howard Hom: Right. The waiver serves to take away that fraud. That's why that phrase, "otherwise admissible", that's what that refers to. Otherwise, other than the fraud. Otherwise admissible means other than the fraud that charges or that renders the alien to become excludable.
David H. Souter: Well, that sets a condition upon the-- --Yes. --exercise of discretion... but it does not, it seems to me, to address the substance of what that discretion may consider.
Howard Hom: If I could answer the question this way, Your Honor, there are three steps in the processing of an application for a waiver before the immigration judge. The first step is, is there a requisite family relationship, the second step, subparagraph (ii), is the alien otherwise admissible? In other words, is he a criminal? Has he committed other heinous acts but he cannot be neither waivered because of the fraud, which is 212(a)(6)(C), and that's what otherwise admissible refers to--
William H. Rehnquist: Well, why do you... that isn't at all clear to me. I mean, why isn't the otherwise... just a threshold requirement, and once you meet that threshold, then you can invoke the Attorney General's discretion, but the statute doesn't say how it should be exercised.
Howard Hom: --Yes, Your Honor. Once we reach that threshold that the fraud is taken off the table and not to be considered in order for the alien to apply for the waiver, then for the Immigration Service to turn around and look at that very same act would really nullify subparagraph (ii). It wouldn't even have to be there at all if the Attorney General had absolute unfettered discretion. The language of the waiver would merely say, if the alien has a family relationship, then in the discretion of the Attorney General the waiver may be granted, so there must be some meaning--
William H. Rehnquist: So you say the fact that Congress has imposed additional conditions over and above the family relationships actually limits the Attorney General's discretion. That seems rather strange.
Howard Hom: --And that's why I say, it's not a matter of discretion, Your Honor, it's really a matter of statutory construction. Subparagraph (ii) takes--
Ruth Bader Ginsburg: But construing the statute, mustn't we take into account first the words that say "may, in the discretion of the Attorney General. " then the history that at one time the waiver was mandatory, and Congress changed it to make it discretionary. You seem to be... your statutory interpretation argument appears to be based on the pre-1981 statute, when the waiver was mandatory. Are you saying that Congress... that these words are meaningless?
Howard Hom: --Your Honor, the change to add the word discretion in 1981 did not change the intent and purpose of the waiver. Even prior to the 1981 waiver change there was a separate exclusion ground with a parallel waiver, section 212(i), which permitted the Immigration Service to grant a waiver in its discretion for similar types of frauds. The Immigration Service adopted the position in the parallel deportation waiver in now 241(a)(1)(H) that otherwise admissible means you put aside the initial fraud that renders him excludable in deciding whether or not to grant the waiver, and then the immigration judge, or the Immigration Service, may look at other adverse factors. For example, if the immigrant had killed somebody to obtain that person's passport, or visa documentation, that would render the immigrant excludable under other acts, sections of the act, so that's the purpose of otherwise admissible, to account for the concern that Your Honors have expressed previously that there may be certain factors in the commission of the fraud that are so heinous that we as human beings would not accept.
Anthony M. Kennedy: Well, so then you're saying otherwise admissible is not important to your interpretation of the act because you've given it this other meaning.
Howard Hom: I'm not sure if that's--
Anthony M. Kennedy: That's what your whole... I thought your whole case turned on the otherwise admissible language, and you've just given what to me is a very plausible interpretation of it that the man can't be a heinous criminal, et cetera.
Howard Hom: --Correct, so--
Anthony M. Kennedy: I don't see how that helps your case.
Howard Hom: --Well, we're saying that if the alien is... in the determination of the waiver we look at other factors other than the fraud factor, which is 212(a)(6)(C), which is not listed there, but you could see the parallel exceptions for (5)(A) and (7)(A) of the statute, so if an alien is encompassed within the grounds of 212(a)(6)(C), 212(a)(5)(A) and (7)(A), those disqualifying factors cannot be held against the immigrant in the determination of the waiver, so the immigration judge is permitted only to look at other factors, other than those three factors.
Stephen G. Breyer: If that's so, I can understand... just... how you could say may means must in respect to the initial kinds of fraud that led Congress to grant the discretion in the first place, which is what you're arguing now, I think, but assuming for the sake of argument that that's so, how then do you get from the language which talks about a waiver being related... being a direct result of that fraud... it says, that fraud, and that fraud means the fraud that enabled the alien to procure a visa, which this alien procured in 1978. How do you get from that to saying that the Attorney General cannot take into account her view of a different fraud, i.e., one that happened in 1982 that led to the procurement of naturalization papers? Even if you're going to say they're all part and parcel of the same thing, I don't see how you escape the language.
Howard Hom: If we look at the initial language of 241(a)(1)(H) on page 5a, the provisions of this paragraph relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as aliens, described in section 1182(6)(C). So if you look at the classification described in 212(a)(6)(C), which is on the petitioner's brief at page 2a, the language there states... misrepresentation is the caption... any alien who by fraud or wilfully misrepresenting a material fact seeks to procure or has sought to procure or has procured a visa or other documentation or entry into the United States, those words there clearly show that acts could have occurred not just at the time of entry, but in the past in seeking the visa, or actually having obtained the visa, so it's very clear that the statute that grants the waiver is not limited to acts occurring at the time of entry, Your Honor.
John Paul Stevens: It's not the statute that grants the waiver, it's the statute that makes the immigrant eligible to request a waiver.
Howard Hom: That's correct, Your Honor.
John Paul Stevens: Yes. Right.
Howard Hom: And the historical development of the act... of the waiver--
Stephen G. Breyer: It's still referring to the fraud that led him to have procured the visa.
Howard Hom: --Well, that's not inconsistent with 212(a)(6)(C). The statutory language talks and uses words in terms of present tense and past tense, so that those acts which are related to the visa procurement, yes. If there are other acts not related to the visa procurement, then he would be otherwise inadmissible and the waiver could be denied, so I don't see that as inconsistent with our position, and I think that that should lay to rest a lot of concerns that the waiver is carte blanche to let immigrants come in, commit heinous crimes, and get away with murder.
Ruth Bader Ginsburg: Mr. Hom, if we looked at it from this point of view, let's say that there's something ambiguous about this, and a judge is trying to determine what the statute means and says, well... let's assume that one person who got into the United States without making any false representations, no fraud, and once in the United States engaged in the very same acts as occurred here, such a person would be deportable, but if in addition to engaging in those acts there had been a fraud at entry, that person is eligible for a waiver.
Howard Hom: No--
Ruth Bader Ginsburg: Is that a reasonable way to--
Howard Hom: --No, Your Honor.
Ruth Bader Ginsburg: --to construe what Congress did?
Howard Hom: No, Your Honor. The waiver that is being... the fraud that is being waived is the fraud to come to the United States. Frauds that are unrelated that occur afterwards... tax fraud, welfare fraud... all those are separate, independent acts which render the immigrant deportable under different sections of 241(a).
William H. Rehnquist: What about the 1982 fraud here, the citizenship?
Howard Hom: Citizenship, on the application Mr. Yang repeated the same statements, that his wife is Mary Wong--
William H. Rehnquist: But he repeated them 4 years later, didn't he?
Howard Hom: --That's correct, Your Honor. This is a case of an assumed identity, where the immigrant comes to the United States with a new identity as the husband of Mary Wong, and everything that he does after that is as the husband of Mary Wong.
William H. Rehnquist: Well, he's just continuing to make fraudulent representations, then.
Howard Hom: He repeats the same statement, Your Honor, that he is the husband--
William H. Rehnquist: Well, but, you know, I can repeat the same statements to defraud people time after time. That doesn't mean that all are subsumed under the first one. Each repetition is a new fraudulent representation.
Howard Hom: --Well, Your Honor, the... the INS has always interpreted the waiver to waive the conditions of the fraud, and until this case there has never been a slicing up of the fraud into subcomponents.
William H. Rehnquist: Well, but the INS didn't interpret it this way in this case.
Howard Hom: That's--
William H. Rehnquist: So I mean, this was not the Attorney General's view. This was the view, the Ninth Circuit said the Attorney General has to do this.
Howard Hom: --The Ninth Circuit looks at Mr. Yang's assumed identity as one fraud rather than individual acts.
William H. Rehnquist: And why... where did they get the authority to do that, when the discretion resides in the Attorney General, not the Ninth Circuit?
Howard Hom: Correct, but the statutory language and the intent of Congress in passing the waiver was to not only help displaced refugees, but there's a subsection that granted the waiver to people with family relations who may not have--
William H. Rehnquist: It didn't grant the waiver. I think--
Howard Hom: --Excuse me.
William H. Rehnquist: --It... they could have the threshold, and then the Attorney General may grant the waiver.
Howard Hom: That's correct, and if... after the threshold is made, the Attorney General looks at other factors other than the fraud, because that is the act for which he is being forgiven for.
William H. Rehnquist: But surely the Attorney General can look at a fraud that was committed 4 years after entry.
Howard Hom: But the--
William H. Rehnquist: Can the Attorney General look at a fraud that was committed 4 years after entry?
Howard Hom: --Only if it is not related to the initial entry.
William H. Rehnquist: Well, where do you get that from?
Howard Hom: The concept of the fraud that exists at the time of entry. This is the same fraud that exists at the time of entry.
William H. Rehnquist: Well, it's the same fraudulent statement, but it's repeated 4 years later.
Howard Hom: And for the same purpose of his immigration status. It's not to--
William H. Rehnquist: It wasn't to obtain entry, it was to obtain citizenship, so it isn't the same purpose.
Howard Hom: --Every immigrant, Your Honor, comes to America for the purpose of settling here permanently, and citizenship is the ultimate, is the final step in his process in coming to the United States.
David H. Souter: Even on your theory of relationship, how do you relate the misrepresentation about the financial status?
Howard Hom: Well, that was a matter that the court of appeals remanded back to the immigration judge for redetermination. Cases have held that false statements to the immigration judge are properly considered in the exercise of discretion.
David H. Souter: And you agree with that?
Howard Hom: The general rule that false statements to the judge--
David H. Souter: You agree with that? You do not contest that general rule?
Howard Hom: --Statements to the judge, correct.
Antonin Scalia: Mr. Hom, could you help me with the statute here? I have trouble reading it. It's on page 5a and 6a of the Government's brief, and the crucial provision, the subsection (ii), Roman (ii), reads, was in possession of an immigrant visa or equivalent document and was otherwise admissible to the United States at the time of such entry except for those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A), and 1182(a) of this title, which were a direct result of that fraud or misrepresentation... what is that?
Howard Hom: Yes.
Antonin Scalia: That requires an antecedent, and I scanned this statute for any prior reference to fraud or misrepresentation, and I can't find any.
Howard Hom: Yes, what that refers to, Your Honor, is that if the immigrant had applied... you have two situations. The immigrant applies for his immigrant visa based upon a labor certification, for example, and he... if he properly processed that labor certification, but submitted fraudulent documents, then that is the kind of fraud that directs... directly results from that act.
Antonin Scalia: So you say it should read, except for those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A) which required labor certification.
Howard Hom: Correct.
Antonin Scalia: And section 1182, which is requirement of a visa.
Howard Hom: Correct.
Antonin Scalia: Except for those grounds... let's see, which involved fraud or misrepresentation and were a direct result thereof, is how it should have read.
Howard Hom: I'd like to... I think I hear what Your Honor's saying--
Antonin Scalia: My problem is the word that, a direct result of that. What fraud or misrepresentation? There's no fraud or misrepresentation mentioned.
Howard Hom: --Well--
Stephen G. Breyer: Isn't it right that that's in (6)(C)?
Howard Hom: --Correct. That's--
Stephen G. Breyer: And the reason that it's in (6)(C)... the reason that it's in (6)(C), as I read it, is in the preceding codification the words fraud and representation were at the top of (f), and they were broken out by Congress and moved to (6)(C), and so the antecedent for that is now (6)(C), is that right?
Howard Hom: --Thank you, Your Honor, but there's also one other aspect of that. If an immigrant had bought the visa outside of the consular context instead of in the process of applying for an immigration visa--
Stephen G. Breyer: But is what I said right? I don't want you to agree if it's not right.
Howard Hom: --Oh, that's correct, but there's another aspect to it. There are two explanations. I was... that's one, and the second one is, where the fraudulent documentation, say the fake passport was a counterfeit that he'd purchased down the street, so it was not part of a fraud to the United States Government. As Your Honor had pointed out earlier, if he had divorced his wife and had not made that representation or showed that divorce document to the consular officer at his visa interview, then that would not be the kind of fraud that's encompassed and would not be the kind of fraud that would be forgiven by this waiver, so this is not a charter of amnesty. There are cases of frauds and bad acts that may be punished, and properly so. There are criminal sanctions that would be available, and once criminal convictions are obtained, then the alien becomes inadmissible under various sections of 212(a), so that the integrity of the immigration system is preserved. There are not a whole lot of waivers granted under this particular section.
Ruth Bader Ginsburg: Mr. Hom, there's one problem that I have with your notion that the consistent repetition of the same misrepresentation is a wash. As long as you say the same thing every time, then it all must be forgiven. The statements about Mary Wong who was a dead soul, that were repeatedly made on documents signed by these people, were they not indictable crimes as false statements made to the United States?
Howard Hom: Possibly, but that's the very waiver that is... the reason why the waiver is there.
Ruth Bader Ginsburg: So what you're saying is that you could have these people engage in repeated criminal conduct and nonetheless the Attorney General must ignore that in determining their eligibility for a waiver.
Howard Hom: Yes, if the fraudulent conduct relates back to the initial one. The appropriate solution--
Ruth Bader Ginsburg: So if there is any ambiguity you say yes, we should interpret Congress to mean that people who have committed in the United States repeated criminal acts nonetheless must be eligible for this waiver.
Howard Hom: --Incorrect. The key phrase was eligible for the waiver. Subparagraph (ii) specifically states that if--
Ruth Bader Ginsburg: That's what I said, eligible for the waiver.
Howard Hom: --Right, but he would not be eligible for the waiver because he would have been convicted of crimes involving moral turpitude, which are other grounds enumerated in subparagraph (ii) which are not listed there, but that's what the reference--
Ruth Bader Ginsburg: So what you say is, although this conduct, signing a false statement, could be indicted, if it's not indicted, it must be treated as if it didn't happen.
Howard Hom: --Not necessarily indicted. If there are... if there's an admission that he had committed the elements of the act that involves--
Ruth Bader Ginsburg: Is there... is... are you denying that Mr. Yang signed papers and presented them to immigration officials saying that he was the husband of Mary Wong, a citizen of the United States?
Howard Hom: --He did sign those documents, and that's the purpose of the waiver.
Ruth Bader Ginsburg: And was it not true that at the time he signed those documents Mary Wong was a very dead soul?
Howard Hom: That's correct. His wife, Mr. Yang's wife had assumed the identity of Mary Wong. He did not represent that he was married to a deceased person. He was saying that his wife, his current wife, who used a new name, and that's why I've been trying to explain that this is a matter of an assumed identity as opposed to a... another type of elaborate fraud, as Your Honors have eluded to.
Ruth Bader Ginsburg: Well, it seems to me extraordinary that Congress would mandate that the Attorney General not consider what is concededly repeated crimes of false statements to the United States Government.
Howard Hom: Well, Your Honor, in this case there was one immigration examiner who was indicted and convicted for having received bribes, or soliciting bribes in this respect, and that's in the brief. If there was criminal acts that could be charged against Mr. Yang, I'm pretty sure that the FBI would have ferreted out those facts--
Ruth Bader Ginsburg: Well, I've just asked you, did he sign a document in which he said he was the husband of Mary Wong?
Howard Hom: --Yes, he did, but--
Ruth Bader Ginsburg: And he could not have been the husband of Mary Wong, as Mary Wong was dead.
Howard Hom: --That's correct, Your Honor. If there was evidence to lead to a criminal conviction, one should have been brought, and then he should have been convicted and, if convicted, deported on that basis, and not deported based upon some exception or some misconstruction of a statute that has very salutary purposes behind it just because of potential prosecution. If there was a prosecution, then he renders himself not to be otherwise admissible within the language of subparagraph (ii) and the person could be deported, so it's not a matter of denying the waiver.
William H. Rehnquist: But something he does 4 years afterwards, that wouldn't bear on his admissibility, would it?
Howard Hom: The waiver focuses on two points. Number 1, at the time of entry, is he within this classification of having committed this fraud, so he commits this one particular fraud, and he's warranted with it and it becomes an individual part of his new identity... there's just no way he could shake that. So when the person applies for his social security card he puts down on the form he's married. When he applies for... when he submits his income tax returns he says he's married, and I'm sure he put down he was married to Mary Wong. All these are incidental aspects of his having assumed this new identity in coming to America, and not some separate independent fraud that has no relationship. If he committed other frauds, of tax fraud, for example, then he would be deportable on those independently, and so we're not talking about a denial of a waiver in those cases, but the fact that he's deportable on some other ground.
William H. Rehnquist: Well, you're saying, as you've said before during your argument, that he can repeat the same fraud unendingly and there are no consequences to it.
Howard Hom: And that's the purpose--
William H. Rehnquist: And the Attorney General must grant a waiver.
Howard Hom: --Unless there are other adverse factors, other than that statement, Your Honor.
William H. Rehnquist: Just repeating the fraud is not sufficient.
Howard Hom: That's our position, Your Honor, the same fact. The purpose of the waiver is not to relieve Mr. Yang of any obligations. He could still be prosecuted criminally. His citizenship was denied.
John Paul Stevens: Would you comment on... go back to sort of a basic point of the... the statute in... before its most recent amendment said that the provisions of 241 and so forth and so on shall not apply to an alien otherwise admissible. Now it says with respect to those, the Attorney General may, in her discretion, waive. How do you get around the fact that one was a mandatory waiver and the other is a discretionary waiver?
Howard Hom: At the time there was a mandatory waiver of deportation. There is also a discretionary waiver for exclusion, and the Immigration Service's interpretation or application of the discretionary waiver was also to disregard the fraud that renders him inadmissible in deciding discretion, so that's the stage that was set when Congress in 1981 passed the new legislation to add on the word discretion for the deportation waiver. It conforms--
John Paul Stevens: And to take out the words, "shall not apply".
Howard Hom: --Correct, to make it discretionary, but nevertheless, that did not change Congress' understanding as to the interpretation, the proper application of the statute, because the Immigration Service had consistently in the Alonzo case in 1979, cited in our brief, where the Immigration Service said, yes, frauds--
William H. Rehnquist: So the change meant absolutely nothing, in your view.
Howard Hom: --Relative to the initial fraud, correct. It would permit the Attorney General to look at other factors, and we see from the discussion this morning that there are other factors that should render an alien inadmissible... excuse me, that should result in the waiver being denied, even though it does not render the alien deportable and inadmissible. So there are acts which don't amount to a deportable act, but which nevertheless I think we are agreed are reprehensible acts and should be punished with the waiver being denied. But in this particular case, we have to focus on the family. The waiver was for the purpose, was designed for the purpose of preserving families.
John Paul Stevens: What you're saying is that under the old statute reprehensible acts that were not sufficiently serious to be an independent ground of deportation could not be taken into consideration.
Howard Hom: Yes, Your Honor.
John Paul Stevens: That they may now be taken into consideration. That, you say, is the--
Howard Hom: Correct.
John Paul Stevens: --is the change.
Howard Hom: And there are some acts that are so reprehensible that even before the 1981 amendment to make it discretionary--
Speaker: Yes.
Howard Hom: --we see that persons who assisted in Nazi persecution or engaged in genocide were not permitted to apply for the waiver, and that was before it was made discretionary, so there were people who covered up their past involvement and came to the United States after World War II, and these people certainly should be thrown out of the country, but because the fraud was being forgiven, the INS had no way to deport those people. They had the relatives, and the waiver had to be granted. So Congress in 1978 added on paragraph (4)(D) relating to genocide and said those people, they do such terrible things, they don't even get a chance to talk about a waiver. Other people on the other hand, U.S. citizens' parents, children, spouses, they have a chance to ask that their loved ones be forgiven so that they may stay in this country, and that's the focus. It's not to reward bad acts, but to preserve family ties, to consider the feelings of U.S. citizens, and not the alien who committed the fraud.
John Paul Stevens: But I think your opponent agrees that there was... there would have been discretion to decide the case the other way, take into... give a greater weight to the family ties and all the rest. Am I wrong about that?
Howard Hom: Well, in the determination of discretion the depth of the family ties certainly would be a factor.
John Paul Stevens: In other words, the Attorney... the Immigration Service could have said, well, I think there were two separate frauds. The 4-year-later business relating to citizenship, I'll treat that as separate. Nevertheless, I think these family ties are so strong, and he's such a successful businessman and all these other things, I'm going to grant the waiver. They could have granted the waiver even if there are two separate frauds.
Howard Hom: That's correct.
Speaker: Okay.
Howard Hom: That's correct. Thank you.
William H. Rehnquist: Thank you, Mr. Hom. Ms. Brinkmann, you have 3 minutes remaining.
Beth S. Brinkmann: Thank you, Your Honor. There are two points I'd like to make. One goes to the separation of these frauds. It's clear these are separate frauds because they're false statements made for... to obtain different types of benefits, certainly for naturalization.
John Paul Stevens: Let me just interrupt if I may. Isn't it also true you'd take the same position even if they were the same fraud?
Beth S. Brinkmann: That's right, Your Honor. I just wanted to respond to Justice Ginsburg's concern about the possible criminal prosecution. It's clear that... well, depending on the actual facts that haven't been fully investigated, that they would have to be for a criminal prosecution. There are at least three provisions in title 18 that could give rise to criminal prosecution. 1001 for false statements to a U.S. agency, also 1015 having to do with fraud concerning naturalization, and then 1028 has to do with fraud related to identification documents, and depending on the scope of respondent's participation in the purchase of the fraudulent passport and birth certificate, that could also apply. And in sentencing, Your Honor--
Antonin Scalia: Some of those would also apply to the original fraud in obtaining entry in the first place, right?
Beth S. Brinkmann: --That's Your... correct, Your Honor.
David H. Souter: So it doesn't prove anything. You acknowledge that that's waivable. The later one may be, too.
Beth S. Brinkmann: But there's certainly factors that can be taken into account by the Attorney General. It's not that the Attorney General has to prosecute and imprison people rather than deporting them. Certainly if they can be taken into account, for example, in sentencing simply uncharged counts can also be taken into account under this waiver provision.
Antonin Scalia: When the Attorney General forgets about this initial fraud as the policy is, he doesn't then prosecute it criminally, I assume. He both allows the application under this provision and chooses not to prosecute, I take it.
Beth S. Brinkmann: I can't speak to that, Your Honor. I'm not aware of all instances. The other point I wanted to make had to do with the textual question about otherwise admissible. The... that term goes to other categories of people that are set forth in section 212 in 1182 as it's codified, of grounds of inadmissibility, excludability. That has to do with categories that are related to health, to criminal history, stow-aways, smugglers, national security reasons, those are all reasons that statutorily an alien could be inadmissible, and that is what gives meaning to those words, otherwise admissible, in the statute. Thank you. Your Honor.
William H. Rehnquist: Thank you, Ms. Brinkmann. The case is submitted.


Earl Warren: Number 410, American Airlines, Incorporated versus North American Airlines, Incorporated. Mr. Westwood.
Howard C. Westwood: May it please the Court. This case is here on certiorari to the Court of Appeals for the District of Columbia Circuit. That Court reversed an order entered by the Civil Aeronautics Board. The Civil Aeronautics Act provides for judicial review of C.A.B. orders by Courts Of Appeals. The order of the Civil Aeronautics Board was entered on -- against the respondent here, North American Airlines, under Section 411 of the Civil Aeronautics Act. Section 411 is set forth at the bottom of page 3 of our brief. Our brief is the -- the yellow cover. That Section provides that the Board, may either on its own initiative or on complaint by an air carrier, if it considers that such action by it would be in the interest of the public, investigate and determine whether an air carrier has been or is engaged in an unfair or deceptive practice or unfair method of competition. Then, if after notice and hearing it is found that that -- that an air carrier has been engaged in such practice or method of competition, it is provided that the Board shall order the carrier to cease and desist therefrom. Preliminarily, I should say that Section 411 appears in the context of an elaborate regulation of common carriers by air, the Civil Aeronautics Act, which is modeled generally on Titles 1 and 2 of the Interstate Commerce Act and which is administered by the Civil Aeronautics Board. Now, Section 411 as Your Honors will recognize is generally similar to Section 5 of the Federal Trade Commission Act. Section 5 of the Federal Trade Commission Act is set forth in pertinent part in the footnote on page 4 of our brief. Now, the case arose before the Civil Aeronautics Board in this way. The respondent, North American Airlines, is a common carrier by air as is the petitioner, American Airlines, both subject to the Civil Aeronautics Act. The respondent had operating authority issued by the Civil Aeronautics Board in the name in which it -- which it formally held, that is Twentieth Century Airlines, authority issued to it in that name back about 1947. About four years later, the respondent began using the fictitious name North American Airlines. About a year after that in 1952, it advised -- it changed its name formally to North American Airlines, advised the Civil Aeronautics Board of the change in name and suggested that its operating authority should be amended accordingly from Twentieth Century to North American Airlines. Now, pursuant to a procedure, which is described in our briefs and which I shan't go into here, the petitioner, American Airlines, filed with the Civil Aeronautics Board a memorandum complaining that the adoption by the respondent of the name North American Airlines was causing the public to become seriously confused as to the identity of American Airlines and North American and misleading the public into the belief that North American was the same as American Airlines. And in the memorandum it was pointed out as, of course, the Board knew that the two carriers in fact did compete directly on one of the principal air routes of the nation that is between New York, Chicago and Los Angeles. Affidavits were submitted by the -- by American Airlines, the petitioner here, in support of its memorandum filed with the Board. The Board considered the matter and then entered an order instituting a proceeding under Section 411 and set the matter down for hearing to determine whether the respondent in engaging in air transportation under the name North American was engaged in an unfair practice or unfair method of competition because of the confusion caused to the public. The matter was set for hearing by the Board before one of its examiners. The petitioner here, American, became a party to the proceeding. Numerous witnesses were heard, some 16 in all and there was received by the examiner at the hearing also documentary evidence and by stipulation of the parties other documentary records of the Board were incorporated into the record. In due course, the examiner rendered his initial decision. In that decision, he made extensive findings of fact. He found that there was indeed very substantial confusion on the part of the public due to the similarity in the names between the two carriers. He found that American Airlines had been operating under the name American for some 20 or 25 years, that the public had become familiar with that name and had identified when that -- the name American Airlines is used in connection with air transportation, had identified it as meaning this particular carrier and that the respondent in -- in the use of the name North American Airlines, had created a situation whereby the public was led to believe that somehow or other the two carriers were either one and the same or somehow affiliated. And he recommended that the Board enter a cease and desist order substantially in the form ultimately adopted by the Board which would require that the respondent cease engaging in air transportation under the name North American or any other name involving the use of the word American. Exceptions were filed by the respondent. The matter was briefed and argued to the Board. The Board adopted many of the examiners findings, which indeed were set forth as an appendix to its opinion and made additional findings of fact of its own, which in the main were directed to various exceptions that the respondent had filed with the Board. The -- those findings bring out the facts, some of -- most of which had been dealt with by the examiner that there was a constant stream of people coming up to ticket offices thinking that the two carriers were the same, trying to check-in with the wrong carrier as a result of the similarity of names, people meeting airplanes at the wrong place, people calling the wrong carrier for reservations, people claiming baggage at the wrong counter and so forth.
Stanley Reed: Is -- is there another company in the name North American?
Howard C. Westwood: No, there were just the -- just the two, North American and American.
Stanley Reed: North American Aviation is different then?
Howard C. Westwood: Well, that -- that is a -- that is a manufacturer of aircraft, yes, Your Honor. The --
Stanley Reed: They don't -- they don't operate any plane?
Howard C. Westwood: No, Your Honor. The findings elaborated on the confusion, pointing out that actually the confusion went beyond even the traveling public. For example, a labor union having some kind of dispute or grievance against North American threatened to picket American Airlines. Three newspapers reporting a robbery that had occurred at North American attributed -- or stated that it had occurred at American Airlines. Tradesmen dunned American for bills owed by North American and so on. In other words, I mention that only to emphasize the fact that the confusion was extensive indeed. Now, the Board also, in its findings, found -- stated specifically that the public was very much concerned with this matter because the common carriers by air should be held to high standards of service and it was contrary to the interest of the public to be subjected to the kind of misleading confusion that the record showed, that the advantages of air transportation, which are speed, indeed could be defeated by the delays incident to people being misled into calling the wrong carrier and going to the wrong ticket office and so forth. And it was made very clear in the -- both in the opinion of the Board and in the findings of the examiner himself that the action which ultimately was taken, was taken on account of the Board's conception of the interest of the public in the matter and not simply to vindicate such private interest as American Airlines might or might not have in the dispute. And so, the Board entered the cease and desist order to which I have referred. The respondent appealed to the Court of Appeals for the District of Columbia. By a pre-hearing conference in that Court, the issues were precisely defined and limited by stipulation of the parties. At this stage in the case, the only issue that really remains in the case is the first that was set forth in the stipulation, and that issue was whether the findings of the Board make out a case of violation of Section 411 of the Civil Aeronautics Act on account of the use by the respondent of the name North American Airlines. The petitioner intervened in the Court of Appeals. The stipulation appears at -- I had it right here -- no, it's -- I'm sorry, at page 307.
Earl Warren: We'll -- we'll adjourn now, Mr. Westwood.