Petition for A Writ of Certiorari — Commissioner of Immigration of Port of NY v. Gottlieb

tive and ordered the discharge of the aliens.

Inthe Supreme Court of the Bnited States

OctroBeR TERM, 1922.

COMMISSIONER OF IMMIGRATION OF PorRT

of New York, petitioner,

v.

GITTEL AND ISRAEL GOTTLIEB.

No. —.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS FOR

THE SECOND CIRCUIT, AND BRIEF IN SUPPORT

THEREOF.

Comes now the Solicitor General of the United

States and on behalf of petitioner prays the court to

grant a writ of certiorari to review the judgment of

the United States Circuit Court of Appeals entered

in the above-entitled cause.

QUESTION INVOLVED.

The question presented is whether the so-called

Quota Act of May 19, 1921 (42 Stat., chap. 8, p. 5),

forbids, after the quota is exhausted, the entry into

the United States of the wife and minor child of a

resident alien, to wit, a minister of the Gospel, who

has declared his intention to become a citizen of the

United States. The trial court and the Circuit Court

of Appeals have answered the question in the nega-

32494—23

RETR EPR L LN? I NET

2

STATUTES INVOLVED.

The pertinent parts of the so-called Quota Act of

May 19, 1921 (42 Stat. 5), are contained in Sections

2 and 4 thereof, and read as follows:

Sec. 2 (a) That the number of aliens of any

nationality who may be admitted under the

immigration laws to the United States in any

fiscal year shall be limited to 3 per centum of

the number of foreign-born persons of such

nationality resident in the United States as

determined by the United States census of

1910. ‘This provision shall not apply to the

following, and they shall not be counted in

reckoning any of the percentage limits pro-

vided in this Act: (1) Government officials,

their families, attendants, servants, and em-

ployees; (2) aliens in continuous transit through

the United States; (3) aliens lawfully ad-

mitted to the United States who later go in

transit from one part of the United States

to another through foreign contiguous terri-

tory; (4) aliens visiting the United States as

tourists or temporarily for business or pleasure;

(5) aliens from countries immigration from

which is regulated in accordance with treaties

or agreements relating solely to immigration;

(6) aliens from the so-called Asiatie barred

zone, as described in section 3 of the Immi-

gration Act; (7) aliens who have resided con-

tinuously for at least one year immediately

preceding the time of their admission to the

United States in the Dominion of Canada,

Newfoundland, the Republie of Cuba, the

Republic of Mexico, countries of Central or

—

South America, or adjacent islands; or (8)

aliens under the age of eighteen who are

children of citizens of the United States.

* * * * *

(d) When the maximum number of aliens

of any nationality who may be admitted in any

fiseal year under this Act shall have been ad-

mitted all other aliens of such nationality,

except as otherwise provided in this Act, who

may apply for admission during the same

fiseal year shall be excluded: Provided, That

the number of aliens of any nationality who

may be admitted in any month shall not exceed

20 per centum of the total number of aliens of

such nationality who are admissible in that

fiseal year: Provided further, That aliens re-

turning from a temporary visit abroad, aliens

who are professional actors, artists, lecturers,

singers, nurses, ministers of any religious de-

nomination, professors for colleges or semi-

naries, aliens belonging to any recognized

learned profession, or aliens employed as

domestic servants, may, if otherwise admis-

sible, be admitted notwithstanding the maxi-

mum number of aliens of the same nationality

admissible in the same month or fiscal year,

as the case may be, shall have entered the

United States; but aliens of the classes in-

cluded in this proviso who enter the United

States before such maximum number shall

have entered shall (unless excluded by sub-

division (a) from being counted) be counted in

reckoning the percentage limits provided in

this Act: Provided further, That in the enforce- —

ment of this Act preference shall be given so far

4

|as possible to the wives, parents, brothers,

sisters, children under eighteen years of age,

and fiancees, (1) of citizens of the United

States, (2) of aliens now in the United States

who have applied for citizenship in the manner

_ provided by law, or (3) of persons eligible to

United States citizenship who served in the

military or naval forces of the United States

at any time between April 6, 1917, and Novem-

ber 11, 1918, both dates inclusive, and have

been separated from such forces under honor-

able conditions.

* * * * *

Src. 4. That the provisions of this Act are in

addition to and not in substitution for the

provisions of the Immigration laws.

The Circuit Court of Appeals bases its opinion

largely upon the closing portion of Section 3 of the

Immigration Act of February 5, 1917 (39 Stat. 874,

876), and while we believe it can be demonstrated

that said statute has no place in the solution of the

question presented, it is nevertheless deemed advis-

able to set it forth at this point. The provision

reads as follows:

The provision next foregoing, however,

shall not apply to persons of the following

status or occupation: Government officers,

| ministers, or religious teachers, missionaries,

lawyers, physicians, chemists, civil engineers,

teachers, students, authors, artists, merchants,

and travelers for curiosity or pleasure, nor

to their legal wives or their children under

sixteen years of age who shall accompany

a re CIS >: ‘

wy ig RM A ee hr ae ar RN Oe eM Dae a ae Pe a _—

24 A ate Fae 8 de advil; Pet leben CTY Pit ee

5

them or who subsequently may. apply for |

admission to the United States, but such

persons or their legal wives or foreign-born

children who fail to maintain in the United

States a status or occupation placing them

within the excepted classes shall be deemed

to be in the United States contrary to law,

and shall be subject to deportation as provided

in section nineteen of this act.

REASONS FOR GRANTING THE WRIT.

1. The decision of the Circuit Court of Appeals in

this case materially affects the administration of the

so-called Quota Act, in that a principle of construc-

tion is announced which will open the door to the

entry of many aliens who are able to establish a

right of entry under the earlier immigration laws,

although their entry when tested solely by the Quota

Act is forbidden.

2. The decision of the Circuit Court of Appeals is

demonstrably in error, and does not represent a

possible construction of the law which should be

acquiesced in because it maintains the unity of the

family.

ARGUMENT.

The Circuit Court of Appeals, in its opinion, asserts

(1) that the Quota Act, in Section 4, provides that

such Act is “in addition to and not ia substitution

for the provisions of the immigration laws’’; (2) that

Section 3 of the Immigration Act of 1917, supra,

specifically permitted the entry into the country,

Becera carer: AE ees

6

among others, of ministers, “their legal wives, or

their children under sixteen years of age”; and (3)

therefore construing the two provisions as being in

pari materia, the omission from the Quota Act of

wives and children of exempt aliens can not be con-

strued to take away the right which, the court con-

tends, such wives and children possessed under Sec-

tion 3 of the Immigration Act. The court appears

to have adopted this reasoning because of what is

conceived to be the legislative intent not to separate

families.

The error in the court’s ruling may be shown by

the following propositions:

1. The very structure of Section 3 of the Immigra-

tion Act, supra, compels the conclusion that the right

to enter therein conferred upon the wives and chil-

dren of ministers was incorporated into the section

as an exception only to the previous provision therein

relating to the exclusion of aliens coming from certain

defined geographical limits. The aliens here in-

volved do not come from that zone, and therefore do

not fall within the exception here dealt with.

2. Conceding, arguendo, that the court below cor-

rectly interpreted the exception contained in Sec-

tion 3 as covering aliens from whatsoever country

they might come, its ruling is still open to attack,

for when the fundamental nature of immigration

laws is borne in mind the right of an alien to enter,

where that right is specifically granted by statute,

stands upon no higher plane than the right of an

7%

alien to enter where such right exists because no pro-

vision of law can be found denying admission. This

being so, and there is no escape from its correctness,

then the principle announced by the court below

would, if adhered to, work a substantial destruction

of the Quota Act, which, by its very terms, reveals

its purpose to absolutely close the doors to the ad-

mission of all aliens after the maximum percentages

are reached, except those specifically mentioned in said

Quota Act. Otherwise, if the rule announced by the

court below be sound, it was not necessary for the

aliens here involved to place their finger upon some

specific provision of the immigration laws permitting

their entry, but the burden rather rested upon the

Government to point out some specific provision

of said laws denying their entry. This, of course,

the Government could not do, because, as hereinbe-

fore indicated, immigration laws are fundamentally

exclusion laws, and all aliens may enter who are not

by the clear terms of such laws denied admission.

To illustrate, the Quota Act exempts, among others,

attendants and servants of foreign representatives,

and also ‘aliens employed as domestic servants.”

The Quota Act specially exempts families of foreign

representatives. Is it reasonable to suppose that

it was intended by implication to extend the same

privilege of entry to the families of the menials just

mentioned? If the rule of the court below be

adopted, such rule must embrace such families, for

Presson eemeema ae ae Uns een IRENA eet aR CARES

8

there is no provision of the immigration laws exclud-

ing them.

3. The further contention of the Court of Appeals

that as the Immigration Act specifically permitted

the entry of ministers, and their wives and minor

children, such right was not intended by Congress to

be taken away by the Quota Act which in exempting

ministers failed to specifically mention their wives

and children, overlooks the fact that an analysis of

the Quota Act discloses that the omission was not

inadvertent, but intentional, e. g., observe that in

the closing portion of Section 2 provision is made

that where more aliens apply at one time than can

be permitted to enter because the maximum per-

centage would thereby be exceeded, a mere prefer-

| ence right of entry is accorded to such of them as

| happen to be wives, children, and others of specified

aliens. The aliens here involved fall definitely within

this mere preference provision of the Quota Act (see

clause “2” of paragraph ‘‘d,” section 2 of said Act,

supra), and not within the specified classes who are

granted absolute right of entry by Section 2, para-

graph “a” of the Act without regard to the percentage

\ limits.

4. The provision in Section 4 of the Quota Act

- declaring that said Act is “in addition to and not

in substitution for the provisions of the immigration

laws,” was undoubtedly introduced to preclude the

Quota Act from being interpreted as embracing the

sole test of entry, i. e., after an alien was able to

9

overcome the terms of the Quota Act, either by

bringing himself within its express exempting or

percentage provisions, said alien must still satisfy

the requirements of the Immigration Act as a con-

dition to gaining entry. The ruling of the court

below reverses the order of the statutes, and because

it finds what it regards as a right of entry under the

immigration laws, it therefore concludes that in

order to preserve such right it is justified in reading

into the Quota Act words which the structure of

the Act discloses Congress intentionally omitted.

The true relationship between the Immigration Act

and the Quota Act is not dissimilar in principle to

that existing between the Immigration Act and the

Chinese Exclusion laws, as pointed out by this court

in United States v. Wong You, 223 U. S. 67, 70.

In that case it was said:

To allow the immigration act its literal

effect does not repeal, alter, or amend the

laws relating to the Chinese, as it is provided

that it shall not, in § 43.

So here to allow the Quota Act its literal effect

would not cause it to repeal or alter the Immigration

Act.

If it seems desirable that cases like those here

involved should be exempted from the excluding

provisions of the Quota Act, such casus omissus can

be supplied only by legislative action. This court

has not, in the past, hesitated to so construe the

immigration statutes as to work hardships in the

PELE LENNIE LIE IS SI ES EE IM LTE L OIA ET LE LE TERETY LOED SELES TERT GIES UE

10

family relationship where it reached the conclusion

that the plain terms of the statute required such

construction. Zartarian v. Billings, 204 U. 8. 170;

Yee Won v. White, 256 U.S. 399.

JAMES M. BEck,

Solicitor General.

Joun W. H. Crim,

Assistant Attorney General.

Harry 8. RIDGELY,

Attorney.

FEBRUARY, 1923.

A SERA AICI A TAM AEE AT EE LENS NATED REE IOS EE TINO IEE a a