Earl Warren: Number 71, Luis Alvara Ceballos, Petitioner, versus Edward J. Shaughnessy. Mr. Kansas, you may continue.
Sidney Kansas: Mr. Chief Justice and Associate Justice of the Court. May I, this time, take one or two minutes to refer back to question number one, not for argument just --
Earl Warren: Well, of course, of course, you may.
Sidney Kansas: -- just to take the relief.
Earl Warren: Yes.
Sidney Kansas: And as much as the Government does not approve the decision of the lower court that the Attorney General as an indispensable party and thereby concedes that he is not indispensable in the present case. And then as much as the District Court dismissed solely on the ground that the Attorney General was not made a party and which decision was approved by the court below. I, therefore, ask for relief that the decision of the court below and the District Court to be reversed as to the indispensability of the Attorney General in order that the case maybe remanded to the District Court, in order to proceed that they hear the petition on the merits. Now, I'll proceed to the second phase of it. Now, there -- to me, that's -- it is a very simple matter. There are two sections of the law required interpretation. I am guided in my interpretation of the Selective Training and Service Act and Section 315 by the unanimous decision of the Court of Appeals of the District of Columbia and other federal courts. Now, the point involved here is whether this alien forfeited his right to naturalization and whether he is no longer eligible for him to apply. Why? Because he has merely filed an application which was not accepted, quite the contrary, he was placed in Class I-A, ordered to appear for preinduction and physical examination. And therefore, and so the Court of Appeals hold, he was not exempted. Now, in the application for a certificate of naturalization, it doesn't necessarily follow that it will be granted. It may be denied. That's only the preliminary step. There are some of the other things that he must comply with, so many other rules and regulations, such as showing that as a question of good moral character as the Court is well familiar with those requirements and it must reside a minimum period of time and that he is not connected with any subversive activities and many others. Before, the naturalization service will be granted. Likewise here, if it is found that he is eligible for naturalization that doesn't mean that he may apply for naturalization even in the near future. But that eligibility gives him the privilege of applying for a suspension of his deportation. Without that eligibility, he cannot even apply for suspension of his deportation in this case. Now as I stated yesterday, this man is a highly intellectual man, well-educated, has a home of his own in (Inaudible) and he is married to a woman who was born in the United States and they have three small children all born in the United States. Now, what we are trying --
Earl Warren: Now, Mr. -- Mr. Kansas, you -- you were making an analogy between the naturalization statute and this particular one. What does this statute say that he shall be ineligible for citizenship if he is granted immunity from the draft or does it say he shall be ineligible if he --
Sidney Kansas: Well --
Earl Warren: -- request it?
Sidney Kansas: -- we'll read it --
Earl Warren: Yes.
Sidney Kansas: -- we'll read the statute exactly and I will also like to reply to Justice Douglas' question about the Section 315 as it fits in there. Now, Section 315, I'm reading now page 4 of my brief, the bottom of page, Section 315 of the Immigration and Nationality Act of 1952, (a), subdivision (a) --
Earl Warren: Is that the one -- is that the one he functioned under?
Sidney Kansas: Yes, sir, that of the other Act on page 3. At the bottom of the page 3, which is Section 3 (a) of the Selective Training and Service Act of 1940.
Earl Warren: And how did that read at the time he made his application?
Sidney Kansas: Virtually, the same as 315 and here's what it reads. Here -- here's how it reads at the time he made his application.
Earl Warren: All right.
Sidney Kansas: Except as otherwise provided in this Act, every male citizen and every other male prisoners residing in the United States who is between the ages of 19 and 45 shall be liable for training and service in the land, the naval forces of the United States, provided, that any citizen or subject of a neutral country shall be relieved from liability for training and service under this Act if, prior to his induction into the land or naval forces, he has made application to be relieved from such liability in the manner prescribed by and in accordance with rules and regulations prescribed by the President, but any person who makes such application shall thereafter be debarred from becoming a citizen of the United States, providing, he is exempted and relieved.
Earl Warren: Well, are you reading the statute (Voice Overlap) --
Sidney Kansas: I just read the statute and finished it.
Earl Warren: Oh, those last few words --
Sidney Kansas: No, that last part is my own. I -- I --
Earl Warren: Yes.
Sidney Kansas: -- I should have said end of quotes.
Earl Warren: Yes.
Sidney Kansas: I'll repeat that again. But any person who makes such application shall thereafter be debarred from becoming a citizen of the United States.
Earl Warren: Did this man make such an application?
Sidney Kansas: He made an application but it was not granted.
Earl Warren: Well, does the Act say it must be granted?
Sidney Kansas: Yes.
Earl Warren: Where?
Sidney Kansas: Top of page 5 of my brief at subdivision (b) of Section 315. The records of the Selective Service System, all of the National Military Establishment shall be conclusive as to whether an alien was relieved or discharged from such liability for training or service because he was an alien. And right here, he doesn't say that he is neutrally, he merely mentions as an alien. So, that if he was not discharged, he hasn't forfeited his right to apply for naturalization. If he was discharged, that's there is to it. There's nothing can be done about it. That was the will of Congress. But if he was not discharged and on the contrary placed in I-A order to appear for preinduction and physical examination, that's not a discharge.
Earl Warren: Well, is that Section used in the same sense with this other Section you've just read is?
Sidney Kansas: That of a Section 315, are you referring to, Your Honor?
Earl Warren: The one you just read before this.
Sidney Kansas: The Section (b), the record of the Selective Service System.
Earl Warren: The one that said that -- that if he makes a -- a (Voice Overlap) --
Sidney Kansas: Yes, that's under the brief --
Earl Warren: To make a request for -- for --
Sidney Kansas: All right.
Earl Warren: -- or merely from the draft he is debarred.
Sidney Kansas: All right. Now, let's read Section 315, which clarifies and I'll go into a little bit further as to why we bring in the 315 here. Notwithstanding, it's virtually the same as I have read under Selective Training, notwithstanding the provision of Section 405 (b), which I will explain later, any alien who applies or has applied for exemption or discharge from training or service in the Armed Forces or in the National Security Training Corps of the United States on the ground he is an alien, and is or was relieved or discharged from such training or service on such ground, shall be permanently ineligible to become a citizen of the United States. It's virtually the same wording as the one in Selective Training. Our contention --
Hugo L. Black: It -- it doesn't look like the same wording to me. It looked like it's quite different.
Sidney Kansas: Well --
Hugo L. Black: One of them says when he is relieved, that's the first thing.
Sidney Kansas: Relieved or (Voice Overlap) --
Hugo L. Black: But a later Act comes along and says, on the ground that he was relieved and he is or was relieved or discharged.
Sidney Kansas: Yes, that's at page 15.
Hugo L. Black: Certainly.
Sidney Kansas: All right. Now, what's the other one? He says -- the other one says, he has made application to be relieved from such liability in the manner prescribed by and in accordance with rules and regulations prescribed by the President. But any person who makes such application shall thereafter be debarred from citizen of the United States. There is a slight differences in the word insofar as using the word discharge if -- if that's what Your Honor is referring to.
Hugo L. Black: No, what I meant was and I don't know what the answer to it. You have an Act, in fact, I guess in 1940, I believe you said that --
Sidney Kansas: Yes, sir.
Hugo L. Black: -- which provided at that time that an alien who applied for relief would be ineligible that he then would be barred from citizenship --
Sidney Kansas: Yes, that's true.
Hugo L. Black: -- if he applied.
Sidney Kansas: There -- there's where the trouble comes in.
Hugo L. Black: All right, but then just wait a minute. If he applied, that was a 1940 Act and along comes the -- the (Inaudible) Act of 1950 -- 1952?
Sidney Kansas: That's right.
Hugo L. Black: And it says that he'd be debarred if he is or was relieved or discharged from such training or service on such ground. Now, they are quite different.One is a -- certainly more hardship to the alien than the other. It may be that both are in effect. Certainly they are -- one of them -- the President wouldn't -- would allow a man to be deported unless there's harsh or a much harsher ground.
Sidney Kansas: That is true, (Voice Overlap) --
Hugo L. Black: And it seems to me that when you say they are the same, I don't quite get you.
Sidney Kansas: Well, there --
Hugo L. Black: That seems to me they are quite different.
Sidney Kansas: There is a difference, yes, Your Honor, there is a difference.
Hugo L. Black: And it's a question of which statute is to govern or whether you're going to apply both of them.
Sidney Kansas: Well, if -- if all that Congress intended was to deprive this man of the right to apply for citizenship, it could easily have said, but any person who makes an application to be relieved, shall thereafter be debarred from becoming a citizen of the United States, but they said a whole lot more than that.
William J. Brennan, Jr.: Well, is your -- is your argument that the 1940 Act should be read as if there was in it the language on the 1952 Act and is or was relieved or discharged?
Sidney Kansas: As Justice Black said, yes. My answer would be yes, I'd combine both.
William J. Brennan, Jr.: Well, I know but are -- are you asking us to read the 1940 statute?
Sidney Kansas: I'm asking this Court to read it --
William J. Brennan, Jr.: The same way as the -- as the 1952 statute actually reads, that is both application and relief are the same.
Sidney Kansas: The 315 should prevail for this -- for this --
William J. Brennan, Jr.: As to my question, are you asking us to read the 1940 statute as if it read like the 1952 statute?
Sidney Kansas: Well, I would have to fill in a word there to make it exactly -- to read exactly. But as Justice Black pointed out, there's quite a difference there. My answer to Your Honor would be that I would say yes, to ask you to read that Section by implication of the Act of 1940 would be about the same. Not -- they're not the same, it's true, but --
Hugo L. Black: What you have is an Act of 1940 which permits a man -- bars a man from being eligible for citizenship if he applies to be relieved from army duty.
Sidney Kansas: Well, was that the intention of the Congress just by mere application?
Hugo L. Black: And the second -- the second provides that he is to be debarred from citizenship, not if he applies but if he applies and is relieved and discharged from duty.
Sidney Kansas: That's true.
Hugo L. Black: And one of them was passed many years as to the other and I supposed that whether you consider a modification or -- or --
Sidney Kansas: Clarification.
Hugo L. Black: -- infused together or something that -- that you got to have some kind of (Voice Overlap).
Sidney Kansas: It's a clarification.
Hugo L. Black: And I would suppose that may be you are arguing at some extent that since it's pretty harsh on the -- pretty harsh thing to do to deport a man that since Congress, his last expression is then that he has to be relieved and discharged, if that governs.
Sidney Kansas: Well then, let me just go on for a few minutes in order to clarify a situation. On page 3 of my brief, the top of the page, at the time of the discussion prior to the enactment of the 1952 Act, it is my privilege to have -- had the number of discussions with the late Senator Pat McCarran on that subject. They were concerned somewhat with the large number of suspension cases that was then pending as to how we are going to bring him into the 1952 Act. Prior to the 1952 Act, all suspension cases were brought under the 1917 Act, Section 19 (c) thereof. The 1924 Act was known as the Quota Law, restrictions of entering the United States according to quotas. But the real contents of our Immigration Law is with the 1917 Act. Now, under that Act, I'm reading now page 3, on top of the page of my brief, Section 19 (c), the Immigration Act, in case of any alien who is deportable under any law of the United States and who has proved good moral character for the preceding five years, the Attorney General may suspend deportation of such alien if he is not ineligible for naturalization. If he finds that such deportation would result to serious economic detriment to a citizen who is the spouse or minor child of such deportable alien. Now, in order to carry over the suspension cases into the 1952 provisions, so that the benefits of the 1952 Act would inure to the suspension cases then pending, a new Section was placed to the law, Section 405 (a) and that's in the middle of page 3 of my brief. Now, that Section reads, an application for suspension of deportation under Section 19, which I just read, of the Immigration Act of 1917 as amended which is pending on the date of the enactment of this Act, shall be regarded as a proceeding within the meaning of this subsection. And nothing in this Act shall be construed to affect the validity of any proceeding which shall be valid at the time that this Act shall take effect. Then follows the Selective Training and Service Act which we have just read. Now therefore, the intent of Congress both as to suspension and the 1940 Act may be included in that, if Your Honor pleases, to be carried over under the 1952 Act, so that the suspension cases replaced on the 405, Section 405 and Section 315 clarifies the preceding Act under the Selective Training and Service Act. Therefore, in this instance, all that we are seeking here is the -- the proper application and the proper interpretation of these two Sections will give us the answer. And as I repeat, I am guided in the interpretations by the unanimous decision of the Court of Appeals in the District of Columbia where they held and to refresh the Court memory, I -- may I read that again? At the top of page 16 of my brief, here's the interpretation placed by the Court of Appeals, page 16, to debar the appellee from citizenship, the statute requires proof not only that he applied for exemption on the grounds of alienage, but also that he was relieved from serving for that reason. And the examiner's legal conclusion that appellee was relieved from military service because of alienage is not supported by any evidence in the present record. We think the total absence of any such essential evidence is a sufficient basis for affirming the District Court's order granting naturalization. There, the situation was the same as ours. This alien applied for relief and exemption. Nothing was done by the Selective Service Board here for over a year, so he applied for naturalization in the District Court, District of Columbia. And the District Court granted it and the Government appealed and there's a decision as the result of the -- of the appeal. Now in our case, it's even stronger than the one that I addressed in the (Inaudible) case because in -- in the present case, one of the bar, he was actually placed in Class I-A and ordered to appear for preinduction and physical examination. Therefore, not being debarred or relieved, he hasn't offered his right to apply for naturalization. Now, I made the comparison a little while ago and Your Honor mentioned about naturalization certificate and this certificate. The filing of this certificate for the right makes some eligible to file for a right. The proper interpretation would be this doesn't give him citizenship by -- by granting this right of filing for naturalization. In itself, it doesn't give him a -- he has to first file his application for citizenship and it may be denied. He may not be able to comply with the requirements.
Speaker: Well, isn't it true that he was drafted not because his application had been denied but because the status of Colombia had changed from that of a neutral country to a belligerent.
Sidney Kansas: Well, that's the assumption of the Government.
Speaker: That was a fact, isn't it?
Sidney Kansas: It is not a fact, sir, because they claimed here. May I refer you to the top of page 5 of my brief where the records of the Selective Service System or of the National Military Establishment shall be conclusive as to whether an alien was relieved or discharged, what difference does it make whether Colombia was a cobelligerent or not. All it says here was that he was an alien, regardless of what country and I believe that answers the question. It so happened perhaps --
Speaker: (Voice Overlap) --
William O. Douglas: The difficulty that I see with your case is that this application for a suspension of deportation was made before the 1952 Act came into effect, is that right?
Sidney Kansas: Yes, that's true.
William O. Douglas: Now, you -- you read 405 (a) --
Sidney Kansas: Yes, sir.
William O. Douglas: -- of the 1952 Act to us but you didn't read it all. And it seemed to me if you read it all that the meaning of 405 (a) is that -- that an application for a suspension of deportation shall be governed by the -- the law of the time of the making of the application for a suspension.
Sidney Kansas: Yes. And that it also says -- if I may read it again --
William O. Douglas: That is that the old law should continue this, the new -- new law should not affect. I'm reading from 405 (a) in the Government's brief, page 50 which has the -- the full --
Sidney Kansas: But I --
William O. Douglas: -- most of the Section there.
Sidney Kansas: I should like -- to the pertinent part. Yes, nothing contained in this Act shall -- all right, let's read that one, it's -- it's quite a lengthy one. And nothing contained in this Act, unless otherwise specifically provided therein, shall be construed to affect the validity of any, then it goes on warrant of arrest, order of warrant for deportation proceeding which shall be valid and so on. We -- we got -- we come down to where --
William O. Douglas: Or to affect any prosecution suit, action or proceeding.
Sidney Kansas: Yes, which doesn't apply to -- to us at all and that's why I read that, of the part that you're reading, if Your Honor pleases, on page 50 down a little further, it says, “Or an application for suspension of deportation under Section 19 of the Immigration Act of 1917 as amended which is pending on the date of the enactment of this Act shall be regarded as a proceeding within the meaning of this subsection.” That's the --
William O. Douglas: That's right. And you go back there and read about the -- the -- or to affect any proceeding, similar criminal (Inaudible) or existing at the time this Act should take effect.
Sidney Kansas: That's right.
William O. Douglas: But as to all such proceedings, the statutes or parts of statute repealed by this Act are, unless otherwise specifically provided for hearing, hereby continue to enforce in effect.
Sidney Kansas: That's right. And they carried over to the 1952 Act. That's just my point and the -- the benefits of the 1952 Act will inure to the cases brought over under this Section 405 (a) and (b) and it was clearly the -- the intention of Congress from the -- from the Act itself that they desired to carryover what was then pending and that would include all that we have just read in application for suspension deportation, all the -- the -- otherwise warrant of arrest and warrant of deportation. We -- we're not concern with that in the present case though. I just took the pertinent part out of it and placed it in my brief and that is why I've got it on page 3, Section 405, an application for suspension of deportation. Now, the -- I would like to refer to the (Voice Overlap) --
Hugo L. Black: When -- when was this application --
Sidney Kansas: I'm sorry?
Hugo L. Black: When was this application filed?
Sidney Kansas: Just what I'm -- I'm going to file --
William O. Douglas: It wasn't filed prior to the 1952 Act.
Sidney Kansas: Yes. His -- now, on page 14 of the respondent's brief, page 14, near the top of the page, here's what it says, both his application for exemption and his letter -- application for suspension of deportation were made before the enactment of the 1952 Act.
William O. Douglas: That's right, isn't it?
Sidney Kansas: That's correct and that of -- then that was carried over because that suspension of deportation was then pending amongst the many cases. They were concerned with as to what's to be done with all those cases pending and that was among them or was carried over prior the 1952 Act. It was carried over into the 1952 and is now governed by it.
William J. Brennan, Jr.: When you say carried over, you mean merely that it's --
Sidney Kansas: Well --
William J. Brennan, Jr.: -- ought to be determined under the 1952 Act?
Sidney Kansas: Yes, sir. To be determined and processed under the 1952 because they couldn't complete the processing under the old law. It was out, then we had a new law in effect. So they have to process that under the 1952 Act. It was quite a lot of cases pending at that time. They couldn't reach and process them all before the enactment of 1952 Act, so that -- it is abundant. I'm trying to cover here hurriedly. I don't want to take up too much on this. The fact that he was not exempted and -- or relieved and discharged in accordance with the laws, rules and regulations. Now, the cases cited on my brief on page 11 and cited also in the index of the respondent here are all cases where the exemption was granted and he was relieved and he was placed in Class IV-C and therefore the Court have no other alternative what they decide against the alien. You ask for a relief and you've got it and that's all there is to it. There's nothing could be done about it. But -- and -- and furthermore in --
William J. Brennan, Jr.: Mr. Kansas, may I ask just one other question?
Sidney Kansas: Yes.
William J. Brennan, Jr.: I'm looking at page 50 also in the Government's brief.
Sidney Kansas: Yes.
William J. Brennan, Jr.: All these things that it says shall be followed, that's gone under the earlier Acts ends up with, “Unless otherwise specifically provided therein are hereby continued enforce in effect.” Now, what follows dealing with an application for suspension under Section 19 of the 1917 Act --
Sidney Kansas: Well --
William J. Brennan, Jr.: -- how do -- how do you say that that now is broader --
Sidney Kansas: This is --
William J. Brennan, Jr.: -- than the 1952 law?
Sidney Kansas: Yes. As a new Section 405, it was made for that very purpose and I again will read for clarification the -- of Your Honor. An application for suspension of -- I'm reading on page 3, the middle of the page on my brief, an application for suspension of deportation under Section 19 of the Immigration Act of 1917 as amended which is pending on the date of the enactment of this Act shall be regarded as a proceeding within the meaning of this subsection, subsection 405, that's under the 1952 Act.
William J. Brennan, Jr.: Yes, but immediately, hasn't it -- doesn't it say that such a proceeding is to be processed under the old law and must the old law otherwise specifically provides? (Voice Overlap) --
Sidney Kansas: That's it -- you're reading from there.
William J. Brennan, Jr.: I'm reading -- isn't what you have at page 3 --
Sidney Kansas: Yes, sir.
William J. Brennan, Jr.: -- the same thing I'm reading at page 50 of the Government's brief at the end of the fuller Section 405 (a)?
Sidney Kansas: 405 Section (a), but the preceding is not pertaining to criminal status and so forth for your -- it's not going to do their problem at the present time. The only thing that's pertinent in there, it's a little bit further down where it says an application for suspension of deportation under Section 19 of the Immigration Act in 1917 as amended which is pending on the date of the enactment of this Act.
William J. Brennan, Jr.: Shall be regarded as a proceeding.
Sidney Kansas: Yes, as a proceeding within the meaning of this subsection. Well, that's a proceeding, suspension proceeding. What else were the names to be given? So that if -- if carried over, that's -- that's why I used the word carried over. Perhaps, that isn't the -- the best way to use but brought over or taken over under this Section, so that we are governed by this Section 315. Now -- now, if this is granted, all he gets here can derive from this -- the -- the permissions first that he was not exempted. Therefore, he had not offered his right to apply for citizenship. Again, I say it may be that eventually it may be denied if he doesn't comply with all the requirements of the naturalization law. But at least, he is not ineligible to file for it because he was never exempted. Now, the -- the respondent in his brief here while the Court properly rested it's substantive holding -- I'm reading now on page 8 of the respondent's brief on two, where the Court of Appeals dismissed the petitioner's complaint. While the Court properly rested its substantive holding on the ground that the statute, Section 3 (a), the Selective Training and Service Act, imposed debarment from citizenship upon the Act of the alien and making application for exemption regardless of whether the alien actually receive relief from service we suggest first that this issue may not be reached since petitioner did actually obtain exemption. There is no scintilla of evidence anywhere from the record that he -- he obtained exemption quite the contrary. His application for exemption was disregarded and he was ordered to -- and placed in Class I-A. There's -- there's no reference to any record. There's no citation. This is simply the opinion of the person who prepared this brief. And furthermore, again on page 9 under (b), it says, in any event petitioner received actual exemption from this Board. That's not so. The -- the petitioner takes the position that because the Selective Training and Service Act or the Selective Board did nothing for a year or more that that is tantamount to an exemption in his brief. Now, I don't know how he arrives with that but that's what he phases it out. So there is no -- no citation, no reference to the record here. But I should think that the -- on page -- this is the -- the price winner as I call it on page 17 at the bottom of the page of the brief with the respondent. Now, here's what he said, upon the making of a proper application, the relief becomes effective under the Act or sustained. No rules or regulations can prevent and no further steps are necessary to the effectiveness of the application to relieve the applicant from service. Now, who says that? There's no reference to the record. There's no citation and again simply the equational opinion of the -- one pair of the brief because in -- in view of the clear statement of the Act itself, on page -- here, page 3, page 4, page 4, I'm reading, the Act itself, and I'm now referring to the Selective Training and Service Act. In the manner prescribed, he shall be relieved from such liability in the manner prescribed by and in accordance with rules and regulations prescribed by the President. And yet, we have this here where it says, “That no rules or -- or -- there's no rules or regulations can prevent and no further substance is necessary.” How can he make that statement when he's got that thing in front of him there? It just -- it just doesn't work out. Now, the rules and regulations referred to are found in the Code of Federal Regulations, Title 22, Section 622 and 623. They provide the rules. I have it here in front me on page 18, in middle of the page, if the Court pleases. Now, the -- the regulations operated under the time the petitioner signed this Form 301 established the specific modus operandi to affect under the Selective Service law and then the exemption from the military service because of alienage. What does it say? Section 622 of -- of 32 CFR, provided that an alien registered of a neutral country who files Form 301, he uses the word neutral here but I'll try to explain that the subsequent reference to that simply said alienage and that answers the neutral part of it.
Earl Warren: Does the Government have any -- any different rights or -- or does it say, is it draftees, rights changed by reason of a change of his country from a neutral status to -- to a cobelligerent?
Sidney Kansas: No.
Earl Warren: Is there anything in the law on that subject?
Sidney Kansas: Not -- here's what -- here's -- there's nothing in the law that says that a -- a status would change because its country became a belligerent. I couldn't find any words, (Voice Overlap) --
Earl Warren: Do you consider that to be absolutely immaterial (Voice Overlap) --
Sidney Kansas: Immaterial because the waiting of -- I'm reading on --
Earl Warren: But I won't take anymore of your time, I'll ask counsel for the Government.
Sidney Kansas: All right. And -- and --
Earl Warren: (Voice Overlap)
Sidney Kansas: One -- one more, all these cases I started to say and I repeat are those where exemption has been granted. And no reported case was a penalty of debarment imposed where normally for military service is granted, not a single case and I haven't found them under the respondent brief either. These all cases where it hasn't granted your relief to set aside you through, that's all there was to it. But here, he was not granted the exemption and relief. I guess my time has run off.
Earl Warren: Mr. Davis.
Oscar H. Davis: May it please the Court. On the issue of the indispensability of the Attorney General as stated both in our briefs in opposition to petition for certiorari and our brief on the merit, we do not support the holding of the Court of Appeals on that ground. We think that that holding or that aspect of the holding of the Court of Appeals is in conflict with the rationale of the Pedreiro case decided by this Court about two years ago. And so we do not support the -- that aspect of the holding of the Court of Appeals and as stated in our brief, directions have been given that this issue, this defense is not to be raised in any future case. That bring --
Earl Warren: Well, how about this case, if that was the sole ground upon which the -- the court below denied it --
Oscar H. Davis: We would have to (Voice Overlap) --
Earl Warren: -- then i believe relief, wouldn't you have to go back to -- to have that determined?
Oscar H. Davis: Yes, Mr. Chief Justice, but the Court of Appeals rested its --
Felix Frankfurter: (Inaudible)
Oscar H. Davis: Pardon me?
Felix Frankfurter: I understood you say (Voice Overlap) --
Oscar H. Davis: If that were the sole ground, we would contest our -- but that is not the sole ground. The Court of Appeals put its determination on two alternative holdings.
Earl Warren: But how about the Court, the trial court?
Oscar H. Davis: The trial court did not. But since it's an issue of law in our view which has been passed upon by the Court of Appeals and which has been presented here, we think that it is appropriate for this Court to pass upon that issue of law since the Court of Appeals did pass upon it.
Earl Warren: Even though the -- the trial court (Voice Overlap) --
Oscar H. Davis: Even though -- well, it's --
Earl Warren: -- no evidence in --
Oscar H. Davis: Well --
Earl Warren: -- and made no findings in the subject?
Oscar H. Davis: It's an issue of law, Mr. Chief Justice, in our view. That is, it does not depend upon findings that would be made by the -- by the trial court. The issue was -- was presented to the trial court but he permitted it is because of his view as to the defensibility of the Attorney General. On the substantive issue, we view the case in somewhat different light from petitioner. We think it has a relatively narrow compass, indeed quite a narrow compass as I would try to explain. If the Court would bear with me for a moment, I would like to state categorically certain propositions which I will try to develop in the course of the argument. And the first thing I'd like to express is that this is not a naturalization case. This is a suspension of deportation case and the -- and the importance of that is if this were a naturalization case, it would be governed by the 1952 Act because it is a suspension of deportation case in which the application for suspension was made before the 1952 Act as I shall try to development in detail. It is governed by the prior law. In other words, in our view this entire case is governed by the law prior to the 1952 Act. And if I can summarize the opposing positions of counsel and myself, he relies almost entirely upon the wording of Section 315 of the 1952 Act which we do not think is in the case at all and we rely upon the wording mainly of Section 3 (a) of the 1942 Act which we think is the controlling statute. The third statement which I'd like to make categorically at the beginning is that it -- in our view it does make a difference that petitioner was the -- was a subject or citizen of a neutral country. We think that it's crucial and Colombia was first neutral and then became a cobelligerent and ally of the United States. And since the Chief Justice has asked that question, I would like to make a short answer by first pointing out that under the Selective Service and Training Act of 1940, as it was amended in -- in December after Pearl Harbor, perhaps I should go back and say that when it was first enacted in 1940, in October or September, all citizens were subject to the draft and all declarant aliens, only declarant aliens. And it didn't make any distinction. Of course, there weren't any neutral countries or we -- since we weren't in the war, we were neutral as well. And we didn't make any distinction between declarant aliens of any country. After the war, shortly after Pearl Harbor, the statute was amended to provide for the drafting, not only of citizens, but of every other male person residing in the United States and that covered, of course, all aliens. Then, the statute all aliens, neutral or cobelligerent, then the statute went on to make a special exemption for neutral aliens. It says that any citizens who are subject of have a neutral country. It doesn't say anything about a cobelligerent and the practice during the war, and throughout the war was to draft the citizens of cobelligerent countries, allied countries unless there were some special arrangements with the country by which the alien would serve in the forces of that country rather than in our country. So it is crucial to the case in our view that Colombia, the country of the nationality of the petitioner at that time was first a neutral country and did not become a cobelligerent until November 26, 1943 which was some three or four months after he had filed his application for exemption as a neutral alien.
Earl Warren: Mr. Davis, I -- I understood you to say that it was the practice to -- to summon under the draft the nationals of all neutral countries.
Oscar H. Davis: All cobelligerent countries.
Earl Warren: All cobelligerent?
Oscar H. Davis: Cobelligerent.
Earl Warren: Oh, I thought you said neutral.
Oscar H. Davis: No -- no, Mr. --
Earl Warren: I see.
Oscar H. Davis: -- Chief Justice, it was the practice to -- not to exempt national to cobelligerent countries of allies countries --
Earl Warren: Yes.
Oscar H. Davis: -- unless there was an arrangement with the country itself by which that particular -- that alien would serve in the forces of that country in World War II rather than the forces of our country.
Earl Warren: Is that --
Felix Frankfurter: Out of curiosity, was all of the executive arrangements in this?
Oscar H. Davis: I believe they were, Mr. Justice. I have stated these issues categorically and I would try to develop them as I go along. Excuse me. May I state a little more in detail and has been done up to now the actual facts of the case. A petitioner is a man now about 43 years of age, so in 1942, he was about 25. He is a -- he was then a subject of Colombia in South America. He entered the United States for permanent residence. There's no dispute about that in February 1942, after Pearl Harbor and after the statute had been amended as I have said to a -- to make everybody liable for the draft but to exempt neutral aliens subject to proviso about debarment from citizenship. In May 1942, he registered under this Draft Act. And then for reasons that -- for the record does not reveal, he was not troubled by the Draft Board, though he was a single man of about 25. Apparently for quite sometime, there -- and some indication that were discussions by him with the Draft Board, but all we can say as a matter of hard fact is that in June 1943, about a year after he applied, he registered under the draft, he was given an alien statement, a personal statement which aliens were asked to fill out. And in the course of that statement, one of the questions is, I do or I do not object to service in the Armed Forces of the United States and the alien was required to fill any of his own handwriting either the word, “I do or I do not.” This alien filled in with his own handwriting, the word “Do”, I do object to service in the Armed Forces of the United States. Then, about two months later in August 1943, he filled out a regular form which the Selective Service had developed under this Section 3 (a) of the -- of the 1940 Act called Application by Alien for Relief from Military Service.
Felix Frankfurter: August of year?
Oscar H. Davis: August 1943.
Felix Frankfurter: When did Colombia get into the war?
Oscar H. Davis: November 26, 1943, three or four months later. This -- in August 1943, he filled out a regular form, Application by Alien from -- for Relief from Military Service which on its face shows that it's applicable only to neutral aliens. And also on its face, it says, "I -- I understand that the making of this application the relief from such liability will debar me from becoming a citizen of the United States." This application was signed by the petitioner in August 1943. I have here the immigration file which was largely at the District Court, it is not part of the court record, but for the convenience to the Court, I will leave it with the clerk so that if any justice wishes to look at -- at a photostat of the actual application which was signed by Mr. Ceballos. That was in August 1943. Now, the reason this case is here is that for reasons unknown to us, the local Draft Board did not then process the application in the way they were usually done. That is they did not send him a card saying you are now in Class IV-C which was the class for neutral aliens who are exempted from the draft after they had filed this application for relief. They did not do that.
Earl Warren: Did the regulation require that?
Oscar H. Davis: The regulations required it. But as I will try to point out later, the regulations did not make it in our view, a prerequisite to the exemption from the draft, which we think was an automatic consequence of the statute that there was no discretion. In other words, in the Draft Board to decide whether the man should or should not have been exempted that once he had filed an application in proper form as he did because it was under the -- in the form which the Selective Service System had itself authorized that he was not automatically exempted from the draft. If he were, in fact, the citizen of Colombia as to which there was dispute then or now.
Hugo L. Black: Suppose --
William J. Brennan, Jr.: Was there any procedure or form or record or anything else by which that was recorded?
Oscar H. Davis: This is part -- that application became part of the Selective Service files.
William J. Brennan, Jr.: No, I meant on the application, the local board office or anything else. Was there any kind of record made as to status?
Oscar H. Davis: As far as this record shows there was none. This was accepted. In fact, it was sworn to before the chief clerk of the local board whose signature appears on it. It became part of (Voice Overlap) --
William J. Brennan, Jr.: (Voice Overlap) for example which indicate it as --
Oscar H. Davis: That's the reason the case is here, Mr. Justice. The record does not show that there was any card that was sent to him and the record does not show that the local board on its roles put him down in anything at the time, either in -- in Class IV-C or any other class.
William J. Brennan, Jr.: Would that be the Class IV-C?
Oscar H. Davis: IV-C would be the class for a neutral alien exempt.
William J. Brennan, Jr.: Ordinarily, did we all get cards? (Voice Overlap) --
Oscar H. Davis: That -- that is true and -- and the reason this case is here and also the reason why I say that it's of such a narrow compass is that at least under the record on which we are here, that was not done. It was done in almost all cases. But on this record that was not done.
Felix Frankfurter: Do I infer -- am I right in inferring of what you just said that the declaring statement automatically to be modeled by a (Inaudible)
Oscar H. Davis: That is our view of the statute.
Felix Frankfurter: You mean that is your position?
Oscar H. Davis: That is our position. We have two ultimate positions, Mr. Justice.
Hugo L. Black: May I ask you about that position, Mr. Davis?
Oscar H. Davis: All right.
Hugo L. Black: To see how crucial whether it's not as crucial. Suppose you're wrong on that and it did not automatically grant any relief.
Oscar H. Davis: Yes.
Hugo L. Black: Would he -- would he be right in his contention here?
Oscar H. Davis: No, sir, for two reasons.
Hugo L. Black: Yes.
Oscar H. Davis: One, we say secondly, that as a matter of fact so found by the Board of Immigration Appeals that even though the Board did not send him a card or even though there is no record that even on the Board's own file, they made any notation, he was in fact exempted until after his country Colombia had entered the war at the end of November and the local board had been informed to that fact by the Central Office of the Selective Services System. And -- and the memorandum from the Selective Service System informing the local board that Colombia had entered the war, it didn't go out until December 20. It wasn't until after that until January 1944 that he was classified I-A. And so -- so we say that as a matter of fact, he was relieved from service for the period at least from the period when it went (Voice Overlap) --
Hugo L. Black: Was he notified about this?
Oscar H. Davis: No, he was -- he was -- he was notified only of being classified in I-A.
Hugo L. Black: Now, if you are wrong on that (Inaudible)
Oscar H. Davis: Then, we have another position which is that under the wording of the statute, which we think is the controlling statute here Section 3 (a) of 1940 Act, the mere making of the application is sufficient debarment.
Hugo L. Black: That's automatic?
Oscar H. Davis: Automatic.
Hugo L. Black: That you're wrong on that.
Oscar H. Davis: If we're wrong at all those three, then we lose --
Hugo L. Black: It seems to me at two --
Oscar H. Davis: Well --
Hugo L. Black: -- or three?
Oscar H. Davis: Well, first that the statute automatically --
Hugo L. Black: That's right.
Oscar H. Davis: -- exempted him from service.
Hugo L. Black: Yes.
Oscar H. Davis: So that he -- even if the Draft Board did nothing or even if they gave him a I-A and he would still be exempted until that he was -- as a matter of fact, exempted by the Draft Board because they did not call him for service until after his country had become a cobelligerent. And three, that regardless the mere filing of the application by him is enough to debar him from citizenship.
Felix Frankfurter: May I ask you about (Inaudible) filing, just tell me the physical fact of what -- what that means. Where -- did he deposit by mail or by hand or by personal messenger a document and it go where?
Oscar H. Davis: As the record reveals, he first signed the statement that I referred to before --
Felix Frankfurter: He must've -- somebody must have sent that.
Oscar H. Davis: Yes. No, first he signed the statement saying, "I do object to service in the (Inaudible)
Felix Frankfurter: But I mean -- yes, but he got the statement from somebody, didn't he?
Oscar H. Davis: Well, that statement -- there were two documents. The first document came from the Draft Board which is a statement of alien's personal history and he had to fill it in. And a part of that statement, there was the phrase, “I do or I do not object.”
Felix Frankfurter: I understand --
Oscar H. Davis: He filled in “I do.” He then sent that back --
Felix Frankfurter: He got that request. He got an official request to make out a questionnaire or a statement.
Oscar H. Davis: That's right.
Felix Frankfurter: He then -- (Voice Overlap) --
Oscar H. Davis: He -- he filled that in and sent it back to the Draft Board.
Felix Frankfurter: I may (Voice Overlap) --
Oscar H. Davis: If I may, that was far as we can tell.
Felix Frankfurter: No question about that.
Oscar H. Davis: He -- he then says he received from the Draft Board by mail this other -- this application for relief from Military Service, Form 301.
Felix Frankfurter: That was the derived problem and based upon this statement did --
Oscar H. Davis: That he does object.
Felix Frankfurter: The declaration on which he -- which he filed, is that correct?
Oscar H. Davis: That's right. He apparently kept the -- that form several days, signed it and returned it to the Draft Board, I gather by mail.
Felix Frankfurter: And do I infer, again, you weren't clear about it, if they could have pass this notice, there would be no case.
Oscar H. Davis: Yes, I think that that --
Felix Frankfurter: (Voice Overlap)
Oscar H. Davis: -- petitioner has not made any point that if they had sent him the notice that he would then have been relieved from service and there would be no case.
Hugo L. Black: But I gather that that would be the case if it's governed by the 1940 Act.
Oscar H. Davis: That's right.
Hugo L. Black: But not if it's governed by the 1952 Act.
Oscar H. Davis: No, because the 1952 --
Hugo L. Black: That's a separate issue.
Oscar H. Davis: No, no, Mr. Justice. The 1952 Act says, application and discharge. If they had sent him the notice, he would have been relieved from service. So that the 1952 Act would have been fulfilled as well as the 1940 Act and there would be no problem either under the 1940 Act or under the 1952 Act.
Speaker: (Inaudible)
Oscar H. Davis: Well first, I'd say that issue isn't here. The second -- well, the reason why I --
Speaker: (Inaudible)
Oscar H. Davis: Because it may very well be that an application by a man who is not a citizen of a neutral country is not an application. In the Kristensen case which before this Court about --
Speaker: (Inaudible)
Oscar H. Davis: It's filing of a proper application Mr. -- Mr. Justice, filing of a proper application. Now, let me recall the Kristensen case which was before this Court about five years ago. Kristensen was a man who was a temporary resident of the country. He was caught here and he was a Dane. He was caught here by the -- by the -- or -- I think Norwegian or Dane. He was caught here by the war. He filed an application and he then applied for suspension of deportation and the Government contended that he was ineligible for citizenship. This Court held that since he was a temporary resident and temporary residence were not covered by the draft his application was -- as if it were no application even though he had physically filed. So it's possible to hold that a man who makes an application even though where he isn't covered by, that is where he can go, but there's no proper application -- hasn't made an application and therefore, he isn't debarred from citizenship. And that was the holding with relation to a man who was not a permanent resident in the McGrath against Kristensen case.
Speaker: Well, that's just another way of saying, the application of certain application that (Inaudible)
Oscar H. Davis: No, Mr. Justice, I think that -- I would say that the way of saying it is that it must be an application which is a proper application under the rules and regulations that it's by man who is a permanent resident of the country and a subject or citizen of a neutral country. And --
Speaker: This is your whole point (Inaudible)
Oscar H. Davis: The filing of a proper application that is by man who is really subject to the Act. If a man -- if a citizen of Great Britain filed the application, Great Britain not being a neutral country, I don't think that -- that we would take the position, though some lower courts have. And I -- I don't -- the issue isn't here. I perhaps shouldn't preclude the Government because some lower courts have taken the position that -- when a man files an application, perhaps in the mistaken belief that his country was neutral and that he had a right to -- to a relief. He has indicated by that his lack of concern for this country. And -- and therefore, the debarment provision of the statute should apply. All I really want to indicate now at this point is that I think that's a different distinguishable question which can be decided separately if it ever should arise before this Court.
Felix Frankfurter: Mostly if it's a complicated international question, the Draft Board is hardly the right tribunal to pass this onto.
Oscar H. Davis: Well, that's right, Mr. Justice. They ordinarily accepted this unless some higher authority tell them otherwise. Well, I believe that I've -- in -- in effect stated what the facts were, that is Colombia became a -- he -- petitioner filed this application for exemption in August 1943. Colombia became a cobelligerent, entered the war in November -- November 26, 1943. The Draft Board were informed of this fact at the end of December 1943 and this man was drafted or he was -- I should say classified in -- in I-A in January 1944.
Speaker: And then what happened?
William J. Brennan, Jr.: I'm just curious really I suppose that this was not a general practice was it of all Draft Boards --
Speaker: No.
William J. Brennan, Jr.: -- not to provide a card?
Speaker: No, it is -- it is a lapse, if you can call it, which is unique to this case as far as we know. And that again is why I think that the case has a very limited significance in actual facts because they're -- we only know of -- of -- well, there are very few cases in which this was an actual fact. A few cases arise on the pleadings and since neither party have pleaded that a form had been sent, they have decided as if no form had been sent. But the issue -- but the factual situation is -- is relative narrow and I would say almost unique to this and the few other cases. Now, in -- the present case arises because this petitioner came into this country in 1951, in April 1951 with only a transit visa. He had since become a citizen of Mexico. He became a citizen of Mexico in 1940 and had married his American wife. And as Mr. Kansas said yesterday, he was not given a permanent entry visa in April 1951. He was only given a temporary transit visa for I think 21 days. He did not depart from Mexico as required by the visa and so he was subject to deportation. I think he even made disclosure of the -- of that fact to the Immigration Service. And in accordance with the provisions of the law, the Immigration Service brought a deportation proceeding against him as a man who overstayed his temporary visa who had -- should have gone to Mexico at the end of 21 days and did not. He did not contest that he was deportable. He was clearly deportable under the law and he did not, in real fact, contest that issue. He made an application for suspension of deportation and that is what the substance -- summon substance of the whole case is.
Earl Warren: Oh, I understand you say he went after -- after this claim of exemption he went to Mexico and --
Oscar H. Davis: Yes, he --
Earl Warren: -- and obtained citizenship there?
Oscar H. Davis: Yes, he did. He -- he -- in January 1944, as I said, he was classified I-A but he was rejected for physical disability.
Earl Warren: Yes.
Oscar H. Davis: He then received permission from his Draft Board to leave the country because he had a business mostly in Mexico and some other countries. And after he left the United States, apparently very many times during that period, he stayed away for period of time. Apparently in 1950, he became a citizen of Mexico having once been a citizen of Colombia, then he came back to the United States. And in January 1951, I believe, married an American girl. Then shortly thereafter, they went on -- immediately thereafter, they went on a honeymoon to Paris and returned to the United States in April 1951. She with, of course, the right to enter the country without limit because she was an American citizen, but he, only with a transit visa for Mexico which was the country of his then nationality and because they decided to stay in this country. She was pregnant at the time and she wanted to have her child in the United States. Because they decided to stay in this country rather they continue on to Mexico where he had substantial interests and where he had a divorced wife and three children because he had previously -- in Mexico, married a Mexican citizen and had three children by her and had then divorced her or been divorced by her, I'm -- I'm not sure which. And had then come back to United States and married this American lady. But as I say, they decided not to go on to Mexico as his visa originally required to stay in United States. And since he was clearly deportable, the only way that he could prevent his deportation was to secure its suspension within the discretionary relief granted to the Attorney General.
Speaker: Apart from the -- his alleged disqualification to apply for discretionary relief was the -- was he otherwise found eligible --
Oscar H. Davis: Yes.
Speaker: -- for discretionary relief?
Oscar H. Davis: Under the old Act and that's why I want to stress that because the provisions for suspension of deportation under the pre-1952 Act are quite different from what they are under the 1952 Act. The Immigration Service and the Board of Immigration Appeals process this as we think quite properly under the provisions of the old law. And that old law was much more favorable to the alien in many respects but it was unfavorable in one respect that is ineligibly for citizenship. Let me -- let me spell that out. The old law said that you could get suspension without any period of residence in the United States if you merely proved a good conduct for five years and it didn't require that you have been physically present in the United States for that five-year period. The new law requires in some cases that you -- and requires in all cases that there'd be a period of physical presence in the United States, sometimes five years, sometimes 10 years, continuous physical presence in the United States at the new law, sometimes five years, sometimes 10 years, which was not true under the old law. Under the old law, you could get -- you are eligible for suspension if there were a serious economic detriment to your wife or your children if they were American citizens. Under the new law, you have to prove exceptional and extremely unusual hardships. So that standard is tougher under the new law than it was under the old law. But there was one factor in which the old law was more rigid if you might say than the new law. The old law required that you'll be eligible for naturalization and that's why this issue arises. Under the new law, you do not have to be proved eligible for naturalization. And so we do not take the position that if Mr. Ceballos applies under the new law and can meet the other requirements of residence in extremely and exceptionally unusual hardship to his family that he would be debarred from suspension of deportation under the new law.
Stanley Reed: Well, I -- I don't understand yet why -- why it is that it is processed under the old instead of the new law to immigrants?
Oscar H. Davis: Well, the reason, Mr. Justice Reed, is that in the Savings Clause of the 1952 Act which this Court have before in several cases, Congress vary specifically provided that applications for suspension should be continued to be processed under the old law if they were filed under the old law and that comes about --
Stanley Reed: I thought it gave them merely the -- the benefits of the existing law at the time of the enactment of 1952.
Oscar H. Davis: No, Mr. Justice. I think if you read Section 405, the Savings Clause which is in the Government's brief at page 50 and recognizing that by the specific statement of the Congress, an application for suspension which was pending on the date of the enactment is a proceeding. You will see that it's governed wholly by the old law rather than by the new. First, the statute says that nothing in the new Act shall affect the validity of any proceeding which was valid at the time. Then, it goes on to say, nor shall it affect, nothing in the new law shall affect any proceeding about five lines or six lines from -- from the beginning of Section 405. It shall not affect any proceeding.
Stanley Reed: Which shall be valid and shall take effect or to affect any prosecution.
Oscar H. Davis: Prosecution, suit, action or proceeding. It shall not affect any proceeding which was done or existing at the time the 1952 Act shall take effect. And then, it goes on --
Stanley Reed: (Voice Overlap) depending at the time of the 1952 Act took effect --
Oscar H. Davis: That's right.
Stanley Reed: -- is not affected by it.
Oscar H. Davis: That's right. And then, it even goes more, it goes on further and says, but as to all such proceedings, the -- the statutes or parts of the statutes repealed by this, the 1952 Act, are continued in -- enforced and in effect. And we think that's as clear as can be a statement that a suspension of deportation which was pending at the time when the new Act went into effect is to be governed by the old law rather than the new.
William J. Brennan, Jr.: Mr. Davis, do you know -- is there any reason why there was special reference made to applications for suspension of deportation?
Oscar H. Davis: I don't actually know, Mr. Justice, but I guess that it's because this -- the criteria under the new Act, they are so much more stringent that the effort was being made to -- to govern the pending cases under the -- the more generous standards of the old law. As I say more generous except in relation to petitioner because the old law require this eligibility for naturalization and the new law did not, but the other standards are stricter under the new law than they were under the old law. And I -- I guess that was the reason for the -- for the provision.
Speaker: So it is clear that if he loses this case, he can then apply for a suspension and to be relieved with the difficulty he has in this case.
Oscar H. Davis: With -- be relieved of the difficulty as in this case if he can meet the other difficulty which are under the --
Speaker: That's good to know.
Oscar H. Davis: -- under the new law. And in that connection, I should --
Hugo L. Black: Five years continuous physical presence?
Oscar H. Davis: Well, he has that, Mr. Justice.
Hugo L. Black: Well, he does --
Oscar H. Davis: -- apparently.
Hugo L. Black: I thought he went away on his honeymoon.
Oscar H. Davis: But he came back in 1951. He came back in April 1951. But I -- I should -- at that point, I'll make it caveat to the last footnote in our brief at page 47, in which we suggest that it may be that he now has the residence requirements. We don't know what happened since 1951 but if you assumed that he's been present in the United States continuously for that time he would have five years residence. The caveat I want to make is that the 1952 Act as of that eight provisions as very complicated provisions in Section 244 as to suspension. And as to some of them, there's five years residence as to 10th some -- there is ten-year residence and we're not certain whether the five-year provisions apply to this petitioner or the ten-year provisions apply to this.
Hugo L. Black: He wouldn't have the ten-year.
Oscar H. Davis: He -- apparently, he would not have the ten-year provision.
William J. Brennan, Jr.: Did he also have to meet the economic hardship --
Oscar H. Davis: Yes, he has to meet the economic --
William J. Brennan, Jr.: That is he could -- the hardship must be that of his dependents, is that it?
Oscar H. Davis: Or -- or to himself. It says, either to the man himself or to his dependents but it has to be exceptional -- exceptional and extremely unusual hardship. The record reveals that he is a man of some wealth and it may be doubtful whether he could meet that standard.
William J. Brennan, Jr.: Well, as to himself at most but not by his dependents.
Oscar H. Davis: Well, that's an issue which isn't here but it may very well be that Congress didn't mean that any separation of an alien from his family was exceptional and extremely unusual hardship because that's the only case that the statute deals with it that suspension would be allowed and they went on to provide that he has to show exceptional and extremely unusual hardship.
Hugo L. Black: It doesn't say economic hardship, just hardship?
Oscar H. Davis: It says hardship.
Hugo L. Black: Yes.
Oscar H. Davis: It says exceptional and extremely unusual hardship. It doesn't say economic hardship.
Felix Frankfurter: (Inaudible)
Oscar H. Davis: Pardon? Excuse me sir?
Felix Frankfurter: (Inaudible)
Oscar H. Davis: I think in -- in the course of the discussion, I've -- I've covered what I meant to say to show how narrow this case is that it -- it's under the old law in our view and not under the new law. It involves only suspension of deportation under the old law and not naturalization under the new law which would be governed by this Section that Mr. Kansas stressed so much, Section 315. Now if I could, I'd like to go on to try to show that under Section 3 (a) of the statute, the -- a neutral alien who filed this application was automatically exempted without any further requirement of administrative ruling or determination by the Draft Board without the necessity of his receiving a card such as most of us received in those days. And -- and the reason why we say that is because the terms of the statute seemed to apply that. We printed the relevant portions on that in our brief on page 24 and it says, “Any citizen or subject to a neutral country shall be relieved from liability if he has made application to be relieved from such liability in the manner prescribed by and in accordance with the -- the rules and regulations prescribed by the President.” Now, the statement as to the rules and regulations prescribed by the President modifies the application. There were rules and regulations as to what the form of the application was to be and the Selective Service System on delegation with the President prescribed this form which the man filled out. So that what Congress said was that if a form was filed in the appropriate -- appropriate form prescribed by the President, then he shall be relieved from service. There is no question here that this man filed the appropriate form. It was on the form prepared by the Selective Service System. And in our view, that meant that he was automatically thereafter relieved from service. Now, this view is consistent with the legislative history and with the regulations at the time because the legislative history is certainly not compelling or conclusive and may not even be fully illuminating but to all the references are to a man who makes the application being relieved. Fairly, there was to be no discretion in the Draft Board. The Draft Board did not have the power to say, “Well, Mr. Ceballos shall not be relieved even though he filed that application on this form and he is in fact a citizen of Colombia which is a neutral country."
Earl Warren: Did they determine whether he was or was not a citizen of a neutral --
Hugo L. Black: Could they -- could they -- I think they could do that.
Earl Warren: (Voice Overlap)
Oscar H. Davis: I think they could do that but there was no question that he was a citizen of that -- of that country. And there was also no question at the time he filed it that Colombia was a neutral country.
Hugo L. Black: If we could pass on two things I suppose, one whether he was a citizen and one whether he has made application in the proper form that were prescribed --
Oscar H. Davis: That's right.
Hugo L. Black: -- and could decline to grant him an exemption if he failed to meet any of those.
Oscar H. Davis: I think that is right Mr. Justice. But our view is that if he met both of them as he did here, he was then automatically relieved from service.
Hugo L. Black: And if you could determine that later without having the Board determine it.
Oscar H. Davis: Well, we think that it's not a matter of -- since there was no discretion --
Hugo L. Black: Maybe you're right.
Oscar H. Davis: -- for the Board to -- it's a matter which is clear from the application which he presented plus the statute itself.
Felix Frankfurter: The underlying factor is not dispute, namely, that he was a not citizen, that he was a citizen of Colombia and that Colombia was a neutral country.
Oscar H. Davis: That's right. Those -- those are not in dispute.
Hugo L. Black: Well, what about the question as to whether he signed and prescribed regulations in the right way?
Oscar H. Davis: There is no dispute as to that. They -- they are -- it's -- the --
Hugo L. Black: That's never been determined.
Oscar H. Davis: But it's -- but it's never been disputed.
Hugo L. Black: Well, if the -- the District Court didn't get to the issue, didn't it?
Oscar H. Davis: Well, no I wouldn't think that the District Court would -- would have the power to do that. I would think it would be the Immigration Service and the Immigration Service did determine that he filed this in proper form, the Board of Immigration Appeals so found.
Hugo L. Black: In this particular case?
Oscar H. Davis: In this particular case and under the rules which of course I need not call the Court's attention. If its findings are supported by substantial evidence, we think they are because they're supported by the -- by the form itself which is before the Court or will be when I file this, then -- then its findings are conclusive. There's a reason for this -- for this position that we take that the application, a proper application automatically resulted in an exemption. And -- and the reason is this, for the whole history of our country, there has been a considerable strain over the issue of drafting aliens of neutral powers. It was one of the reasons for the War of 1812 when Great Britain insisted on drafting Americans who are living in Great Britain. We have always taken the position that under international law, there was a right or at least the State Department has taken the position that there was a right in aliens of neutral powers not to be drafted by this country. And we have insisted on that position in relation to our own nationals, our own citizens when they were abroad.So that there is an entitlement -- direct entitlement, not in matter of discretion, not a matter to be determined by the administrative agency in an entitlement of a man who is an alien to exemption from the draft. Now --
Speaker: Why -- why is it that this draft man can -- can't stay here permanently? I understand he's a citizen of Mexico but don't we allow Mexicans and Canadians to come in here and stay?
Oscar H. Davis: Only those who -- only those who can get a -- can enter the country. He can't properly enter the country because he is ineligible or he couldn't under the old law because he is ineligible to become a citizen. And therefore, he couldn't -- they would bar him -- if he went out again, they would bar him at the doors saying you're ineligible to come back to -- to -- at least for permanent residence.
Speaker: It's only those who are eligible for citizenship that can get permanent residence.
Oscar H. Davis: That's right. He could comeback if he -- if he voluntarily departs from the country rather than being deported. He can comeback for business, for a temporary purposes. But as I was saying, the -- the whole rationale, the whole foundation of this exemption would draw aliens is in accord with the view that the statute made it mandatory. It didn't leave anything to the discretion of the local boards. And particularly, I don't believe that it would be appropriate in view of this history for the local board to block or -- or contravene the policy which Congress enacted into the statute at urging of the State Department and to a court with our long national history. And those -- those in essence are the reasons why we think the statute in and of itself granted this man an exemption, even though the Draft Board may not have sent him the cards saying, you are now in IV-C, until of course, his own country, his own then country, Colombia, became a -- a belligerent power and entered the war and then he was no longer entitled to the exemption which Congress had provided.
Speaker: Well, it does not involve the question of fact. Supposing it develops that the Draft Board between August of 1943 in November, whenever it was, that Colombia became a belligerent, had not draft him because they didn't need anymore men. It didn't rely on this application at all.
Oscar H. Davis: I don't --
Speaker: Then -- then could you have said that he is -- relinquished him from the draft was the result of his application?
Oscar H. Davis: Well, we think the draft -- it doesn't make any difference what the Draft Board did. The statute gave him the -- the --
Speaker: I know, you -- that's -- that's your last position --
Oscar H. Davis: That's my first position --
Speaker: Well --
Oscar H. Davis: -- if may say so. If the statute gave him -- if the statute gave him the authority and then the Draft Board had tried to -- to draft him, he could have sought mandamus or an injunction on the ground that he or he could have defend it in the other appropriate ways on the ground that they had no right to that he was statutorily exempt under the -- under that law as was the President of the United States, the Governors of the various states, Congressman and so forth who -- who are not subject to the draft. He was in the same sense, exempt from the draft, and -- and could not be -- could not be called. And if he were called improperly, he would have been able to -- we believe, he'll go to the courts to prevent this from happening. So, our first position is that no matter what the Draft Board did, no matter what the Draft Board thought or what it administratively decided, he received this exemption as a matter of the statute which Congress had enacted in 1940. Our second point is that if -- if the Court rejects or passes the first point, he was, as a matter of fact, not called for the reasons I've given. Now, it could be --
Speaker: Well, it's on that there would be a question of fact.
Oscar H. Davis: Yes, but it has been determined by the Board of Immigration Appeals. It had been determined, the Board of Immigration Appeals in holding that the man was ineligible and had received exemption placed its -- its decision on two grounds. One, that he had in fact had been exempted, and two on the ground that an application was enough even if he -- even if -- no exemption followed or no relief followed.
Speaker: Well, as to the first question, there's been no review of that by the District Court.
Oscar H. Davis: There's been no review of that but we think that the matter is sufficiently clear on the basis of this record that the Court itself can say that there was substantial evidence to support the finding of the Board of Immigration Appeals.
Felix Frankfurter: What is the finding?
Oscar H. Davis: The finding is that he was in fact deferred because he was the -- a subject of a neutral power (Inaudible)
Felix Frankfurter: Is there any -- is there any question anywhere challenging his entry under that circular in which it says -- which he claimed the exemption because he was an alien?
Oscar H. Davis: No, no.
Felix Frankfurter: Well, I don't understand what -- how did -- there is no review or what should be reviewed about (Voice Overlap) --
Oscar H. Davis: Well, for those -- for those, Mr. Justice, who take the position that there has to be an actual relief from service in order to --
Felix Frankfurter: Meaning by that, the Board would have to determine whether he's a (Inaudible)
Oscar H. Davis: Or that they have -- would not have to call him. And our position is that the Board didn't send him a piece of paper. You can show that they didn't call him by the facts and that the fact finder can infer.
Felix Frankfurter: You'd have to -- you'd have also to impeach his own declaration.
Oscar H. Davis: Well, all he said is he didn't want to serve.
Felix Frankfurter: He didn't want to serve and he says he's a -- he's a --
Oscar H. Davis: And he -- I claimed exempted --
Felix Frankfurter: -- subject of Colombia.
Oscar H. Davis: That's right.
Felix Frankfurter: Well, would -- you'd have to impeach all that.
Oscar H. Davis: I -- I don't think you have to impeach it, Mr. Justice.
Felix Frankfurter: I mean in order to undermine, you'd have to impeach it to say what is and what isn't so.
Oscar H. Davis: Well, that's right, you have to say that --
Felix Frankfurter: (Inaudible)
Oscar H. Davis: -- that -- that he really didn't want -- he changed his mind.
Felix Frankfurter: In other words, that what he declared had to be authenticated by the Board.
Oscar H. Davis: Well, that -- that's the -- that's his position in --
Felix Frankfurter: What?
Oscar H. Davis: That's his position.
Felix Frankfurter: Well, I mean in order that he could prevail, he would have to say that his own declaration shouldn't be taken at his own face value --
Oscar H. Davis: Because the Board rejected it.
Felix Frankfurter: -- to be verified by the Board.
Oscar H. Davis: That's right, that's right. And that I believe is the position of Mr. Kansas had been taking.
Earl Warren: Mr. Davis, do you attach any significance to this Section (b) of subdivision (b) of Section 315 as it appears on page 5 of the counsel brief, the part that he read, the records of the Selective Service System or of the National Military Establishment shall be conclusive as to whether an alien was relieved or discharged from such liability for training or service because he was an alien?
Oscar H. Davis: I attach no significance in this case because that Section in our view does not apply to this case. That's a provision of the new Act, of the naturalization immigrations of the new Act which does not apply to this case which has to be governed solely by the provisions of the prior law as to which there was no such requirement. If I were to discuss this particular provision, I would say that the records of a Selective Service System do show that because the -- do show that the alien was exempted because the records of the Selective Service System contained this application which he filed and -- and which was on filed with the -- with the system. I think the purpose of Congress in putting this Section in was to do away with certain lower court cases in which the alien had claimed that he -- he was put in Class I-A and the Draft Board said, “No, we put you in Class IV-C.” And there was a trial of the issue as to whether the -- they had put him in Class IV-C or as he claimed, they'd put him in Class I-A. Now, I think the purpose of Congress was to say that the view of the Selective Service System should prevail and to dominate. But as I say -- as I said at the beginning of my answer to your question, we don't think that Section applies to this case.
Speaker: Do you find any indication in the congressional legislative history that in making a change to include and relieved in the 315, the 1952 Act, that Congress has thought it was making any change or what the old 1940 Act meant?
Oscar H. Davis: Well, these vary so far as the legislative history on -- on the new Section, Mr. Justice. And -- and there's very little help one can get to the legislative history. I have some suggestions I can make as to the reason why the change was made. And the first thing is that the new Act applies to any alien who applies or has applied for exemption. It's not limited to neutral aliens. The old law was limited to neutral aliens. The law which we think applies here at Section 3 (a). The new law is broader in that respect. It applies to any alien who applies and there are other categories of alien. There were enemy aliens during the World War II and there were, of course, cobelligerent aliens, citizens of France or Great Britain, allied countries and that we think a very significant difference for this reason. During World War II, enemy aliens, German or Italian or Japanese citizens, who still were such, were not drafted if they object the service. They were not drafted because they -- the army didn't want to take them if they objected the service. And a great many of them were exempted from service not under Section 3 (a), but under other provisions of the law because the President had a general power to exempt any -- any class of persons that he wanted to from -- from the draft. And enemy aliens were exempted on -- if they said they didn't want to. Now, it may very well -- then the purpose of Congress to say that an enemy alien, not a neutral, but an enemy alien who did object to service should be debarred from citizenship but to require in this case that he also to be relieved, also be relieved because he -- he wasn't -- he didn't have a statutory entitlement to relief. It was a matter of discretion with the President of the army not in Selective Service System as a whole, not the local draft board but the Selective Service System. So that's one category of cases not covered by the old law which is covered by the new law. Then, there were other aliens who might have been deferred because the President, as I said, had the general power to exempt any classes of persons that he wished. I don't believe that he used it during World War II very frequently but there are some suggestion that he may have as to a certain few citizens or countries but it was again a matter of his discretion and it may very well then that Congress wanted to cover that class of aliens who would not have been debarred under the neutral provisions of Section 3 (a) because they weren't neutrals. They were cobelligerent or -- or somebody else. Then, it's possible also that this provision was intended to cover, to carry forward the 1918 debarment. In World War I, they had a comparable but differently worded provision and it may vary well be that they -- and there were some -- that -- that 1918 provision was repealed by the Nationality Act of 1940. There was dispute as to whether it continued, nevertheless, after its specific repeal or may very well have been that Congress by this provision wanted to cover that old 1918 debarment and there are other circumstances. But the main thing that I would like to communicate is that the new Act is broader. It refers to any alien not to any neutral alien and any alien could be an alien who applied and then was not given the exemption because the President didn't want to give it to him or the Selective Service System or the army wanted to take him anyway. And Congress may have thought that in those cases as to whom they were creating a debarment from citizenship for the first time that debarment for those aliens and exist under the prior law as to those aliens for whom they were creating a new debarment that they ought to require and not only the -- the application but an actual relief because those aliens didn't have what I think this alien had a specific statutory entitlement. If I may interject my own view, I -- I think that the best reconciliation of Section 315 which we think isn't here, I mean isn't present in this case, with the old law is to say that under -- under the old law, there was an automatic exemption the min -- the minute the man filed the application in proper form. There was an automatic exemption that would come under the new law because he would have filed the application and he would have been exempt from service automatically regardless of whether the Draft Board sent him a card or not. I think that's the best reconciliation of -- of the statute but there are these other situations which Congress may have been intending to cover. I haven't said too much except tangentially on the -- our position that the mere application is enough. That too follows in the word -- the words of the statute because as it's already been pointed out by the Court, the proviso of Section 3 (a), the very last part in the Government's brief at page 48, says in -- in expressed terms, any person who makes such application shall thereafter be debarred. And -- and the actual form signed by the alien says, I understand that in making this application, I will be debarred. It's on page 4 of the Government's brief. I understand that the making of this application for relief from such liability will debar me from becoming a citizen of the United States. And as I say this view is consistent not only with the terms of the statute, with the form of the application but it's consistent with everything said in the legislative history. As I said, the legislative history was probably not directed to this point but constantly there's reference to the fact that any man who makes an application will be debarred.
Speaker: That means that a man who files the application and then through some mistake, if you please, is drafted notwithstanding with the Draft Board and then who doesn't protest and goes into service of the armed forces he is debarred from citizenship.
Oscar H. Davis: Yes, with --
Speaker: Because if he stated the original state of mind?
Oscar H. Davis: Yes, I will -- I will try to explain why -- why we think that's true and there are certain qualifications or perhaps I should state the qualification first because it made such a man to draft. There is a provision of the statute relating to naturalization of persons in the arm services which does away with -- a lot of the requirements of other -- for the -- of -- of civilian naturalization. And it may be, it has been suggested, the case has not come to this Court, it hasn't come to any appellate court. It may be that that provision providing for naturalization while the man is in service does not carry with -- with it this debarment provision of this law. That is a man who's actually drafted may possibly be able to secure naturalization under that special provision without these qualifications just as he can get naturalization without the qualifications, other -- other qualifications ordinarily applicable to people who want to get -- become American citizens. That's one answer. The second and more broader answer is that the history of this provision, which first came into the law in 1918 but was mooted, discussed in -- in the Civil War is that the purpose -- historical purpose is that a man who -- who indicates in times of strife and struggle that he doesn't want to serve in the forces -- in the force of United States isn't the kind of man we want to have. It wasn't a penalty or what shall I say an encouragement. It wasn't meant to say to the man, "Now, look if you don't come into the army, we won't let you become a citizen." It was rather an indication that the man made this choice deliberately. These people -- many of them did. He wasn't the kind of man that -- that Congress wanted to have as a citizen and that's the -- the -- one of the primary threads that runs through the history of this -- of -- of this field. Such people aren't the right type to become citizens. And that -- that interpretation as a -- and which I say is a qualification for citizenship rather than a penalty imposed upon the man is also consistent with our international obligations. As I've said, we have international obligations in our view, under international law and some cases on a treaty because of countries, these neutral countries, not to draft their citizens. Perhaps, it would be inconsistent with that for us to say, we're going to try to force your citizens into the army by imposing penalties on them by saying if you don't come into the army, you will not be debarred from citizenship. It would certainly not be inconsistent with that -- with our position towards other country to say, "We control for ourselves what kind of persons we want to become nationals of the United States. We're not trying to force your men into the army but we just want -- want him to know that if he doesn't go into the army, he's not of the quality we deemed proper for American citizenship." In other words, if it's construed as a penalty imposed upon the man requiring -- trying to force him into the army, in some degree runs countered to our international obligation toward other countries. If it's not construed as a penalty but is imposing debarment on the basis of the application alone, then it comes with the category of our own domestic establishment of qualifications for naturalizations. And in the same connection, all the lower court cases, all the lower court cases and they are in five circuits, Courts Of Appeals and in many District Courts, they are all unanimous in holding that the fact -- that the mere fact that a man was once exempted and then has his exemption taken away or tries to remove the exemption himself, tries to take back his form does not or -- or shall I say remove the debarment, they are all unanimous in holding that. The First Circuit, the Second Circuit, the Third Circuit, the Ninth Circuit and the District of Columbia Circuit, District of Columbia reiterated it as recently as December 13th last year that as to an alien who was -- who filed the form and was exempted if he -- if he thereafter, because his country becomes a cobelligerent or for some other reason, is either classified in I-A or -- and subject to induction or -- or tried himself to withdraw his application later, generally, because he -- he realizes what he's done or sometimes because he's overage then and the withdrawal of the application won't -- won't affect it. Frequently, that's -- that's the reason. In any -- in any case, the courts unanimous in holding and there are many District Court cases that as I say courts in five circuits that unanimous in holding that the -- the withdrawal of the application on the fact that the man is later placed in I-A does not lift the bar.
Speaker: Do you refer to those cases in your brief --
Oscar H. Davis: Yes.
Speaker: -- and placed them in some place?
Oscar H. Davis: Yes, we -- they are on page 23 of our brief.
Speaker: Thank you.
Oscar H. Davis: And if I could add the latest one from the District of Columbia, Mr. Justice, it's a case called Giz, G-I-Z. The three cases, the first one which is Giz, G-I-Z against Brown now. It was decided December 13th, 1956. We don't -- actually in our brief it referred to the case from the Ninth -- Ninth Circuit.
Felix Frankfurter: Have you got the citation of the --
Oscar H. Davis: Of the Giz case?
Felix Frankfurter: Giz?
Oscar H. Davis: It hasn't been reported yet.
Felix Frankfurter: When --
Oscar H. Davis: December 13th, 1956. It's a Turkish name, (Inaudible) Giz, G-I-Z.
Speaker: Do you have the Court of Appeals?
Oscar H. Davis: Court of Appeals for the District of Columbia Circuit. And --
Earl Warren: What was that plaintiff's -- petitioner's name, Gail? Gil?
Oscar H. Davis: Giz, G-I-Z.
Earl Warren: Oh, Giz.
Oscar H. Davis: G-I-Z. And there are two cases from the Ninth Circuit which we don't put into our brief in which this Court denied certiorari on different points, the Barreiro case and the Bussoz case.
Earl Warren: Are there any of those that I don't know that it does directly on this but are there any of those cases that are in relation to withdrawal during the war? I mean would still ineligible to go into the --
Oscar H. Davis: Yes.
Earl Warren: -- in the service and they'd still hold that?
Oscar H. Davis: Yes, yes. And some of the District Court cases are very much like this case. There's a case involving a citizen of Iran who filed the application and five months later, Iran became a -- entered the war and he was drafted. I mean he wasn't drafted but he was subject to I-A. In that case, he was also just deferred because of physical disability. And he made the same argument petitioner does. His case was different because he had received the -- the card from the Board. That -- that was the only difference in that case.
Speaker: But I didn't get those, the two cases that you mentioned.
Oscar H. Davis: Barreiro, -B-A-R-R-E-I-R-O. Unfortunately, I don't have the citation Mr. Justice. It was -- the certiorari was denied, Number 382 in the October term 1954. This point wasn't raised in this Court but it was in the case. And the Bussoz, B-U-S-S-O-Z also from the Ninth Circuit, 218 F.2d 683. And certiorari was denied in Number 93 in the 1955 term.
Earl Warren: Mr. Kansas.
Sidney Kansas: (Inaudible) -- I had in mind the same with the Chief Justice didn't seem to be controlling on page 5. Just can't get away from this in just one moment. The records of the Selective Service System or of the National Military Establishment shall be conclusive as to whether an alien was relieved or discharged from such liability with training or service because he was an alien. There's no such record in their Selective Service System or anywhere. Quite the contrary --
Felix Frankfurter: This declaration was in the record?
Sidney Kansas: Part of the record? The declaration?
Felix Frankfurter: Yes, declaration five of this -- the app -- this -- this thing that he made out when he was asked the question. Is that part of the -- is that part of the record with the Board?
Sidney Kansas: I didn't see the -- the record, if Your Honor pleases. I don't know just what's got in there.
Felix Frankfurter: I don't know whether it is. Mr. -- Mr. Davis tells us that that -- he read from it as a part of the (Inaudible)
Sidney Kansas: It was a regular form, it's a Form 301 which they all filled out and sent to by mail. He fills it out and he mails it back.
Felix Frankfurter: And there it is.
Sidney Kansas: There it is.
Felix Frankfurter: Isn't part of the record here?
Sidney Kansas: It's -- I believe its part of the record, he has there. I didn't see it.
Felix Frankfurter: What?
Sidney Kansas: I didn't see it. It must be a part of the record. I didn't see that application, sir.
Felix Frankfurter: Well, it's available to you (Voice Overlap) --
Sidney Kansas: Well I -- I accept his word for this (Inaudible) but it's all -- this is a printed form and even the fact that he expresses that I hereby realized that I am to lose my -- that's all in small typed in form. They all sign for that regardless of whether they understand --
Felix Frankfurter: (Inaudible)
Sidney Kansas: -- the meaning of it.
Felix Frankfurter: But we all point to that, it has no significance, the whole (Inaudible)
Sidney Kansas: Well, it has. He should read it. I agree with you but how many can do it --
Felix Frankfurter: I don't know whether he should.He didn't sign it, didn't he?
Sidney Kansas: He signed it.
Felix Frankfurter: And he filed it.
Sidney Kansas: He signed it and he filed it, but I know --
Felix Frankfurter: As a part of the record of the Board.
Sidney Kansas: Record of the Board but some human experience, they don't need that small type. I agree with you. It's a legal document, it's true. It has legal effect.
Felix Frankfurter: But if the Board had said, "We received your declaration." Then it would have been a legal document.
Sidney Kansas: If he was placed in Class IV-C and notified, then it would be in accordance of the rules and regulation as prescribed by the President. That's what we're shouting about here. But this -- this, the record of the Selective Service System has no such record.
Felix Frankfurter: Well, I'm suggesting that it -- that a document filed with a law enforcement agency (Inaudible) by declaring as part of the record of that agency.
Sidney Kansas: Certainly, he is, sir.
Felix Frankfurter: All right.
Sidney Kansas: But that didn't exempt him by the automatic filing. That's our cry here.
Earl Warren: But I understand, Mr. Kansas, that the -- that the argument of Mr. Davis went to the fact that this subdivision (b), quoted on your brief at page 5, is in the 1952 Act and it's his position that the 1952 Act does not apply. And that this was not in the other -- in the Act under which he -- his case is to be dealt with.
Sidney Kansas: Well, it brings us back again the way where I tried to show that it was carried over and that it was an application.
Earl Warren: Yes, yes. Yes, I remember your --
Sidney Kansas: Carrying it right back in the -- the Section 315 is the controlling Act here.
Earl Warren: Yes, I remember your argument.
Sidney Kansas: We were back from the original question of Justice Black here about the difference -- we're combining them here and -- and -- well, you might say giving him the benefit or any advantages in this Act.