343 U.S.

169
72 S.Ct. 591
96 L.Ed. 863

UNITED STATES
v.
SPECTOR.
No. 443.
Argued March 6, 1952.
Decided April 7, 1952.
Rehearing Denied May 12, 1952.

See 343 U.S. 951, 72 S.Ct. 1040.

Provision of Immigration Act that alien, against whom order of
deportation is outstanding, shall be guilty of felony if he shall willfully fail
or refuse to make timely application in good faith for travel or other
documents necessary to his departure in view of emphasis on timely
application in good faith and lack of requirement that alien know visa
requirements of one or more countries, contains warning sufficiently
definite to free statute of any constitutional infirmity of vagueness.
Immigration Act of 1917, 20(ac), as amended, 8 U.S.C.A. 156(a
c); 18 U.S.C.A. 3731.
Mr. Robert L. Stern, Washington, D.C., for appellant.
Messrs. John W. Porter, A. L. Wirin, Los Angeles, Cal., for appellee.
Mr. Justice DOUGLAS delivered the opinion of the Court.

Section 20 of the Immigration Act of 1917, as amended, 39 Stat. 890, 57 Stat.

553, 64 Stat. 1010, 8 U.S.C. (Supp. IV) 156, 8 U.S.C.A. 156, contains
provisions designed to expedite the deportation of aliens. Section 20(a)
provides that the Attorney General shall direct the deportation 'to the country
specified by the alien, if it is willing to accept him into its territory'. Otherwise
the Attorney General shall direct the deportation to any one of a series of
specified countries or if deportation to any of them is impracticable,

inadvisable, or impossible, then to any country which is willing to accept the

alien. Section 20(b) grants the Attorney General powers of supervision over
aliens against whom deportation orders have been outstanding for more than
six months and fixes penalties for violations of the regulations which the
Attorney General has prescribed. Section 20(c) provides that any alien against
whom a specified order of deportation is outstanding 'who shall willfully fail or
refuse to depart from the United States within a period of six months from the
date of such order of deportation, or from the date of the enactment of the
Subversive Activities Control Act of 1950, whichever is the later, or shall
willfully fail or refuse to make timely application in good faith for travel or
other documents necessary to his departure, * * * shall upon conviction be
guilty of a felony, and shall be imprisoned not more than ten years * * *.'
(Italics added.)
2

The later (the italicized) provision of 20(c) is involved here. Appellee is an

alien who came to this country from Russia in 1913. An order of deportation
was entered against him in 1930 by reason of his advocacy of the overthrow of
the Government by force and violence. An indictment was returned against
him, two counts of which charged him with willfully failing and refusing to
make timely application in good faith for travel or other documents necessary to
his departure from the United States. The District Court sustained a motion to
dismiss these two counts. It held that the statute in question was
unconstitutionally vague and indefinite, because it did not specify the nature of
the travel documents necessary for departure nor indicate to which country or to
how many countries the alien should make application. 99 F.Supp. 778. The
case is here on appeal. 18 U.S.C. (Supp. IV) 3731, 18 U.S.C.A. 3731.

While a statute, plain and unambiguous on its face, may be given an application
that violates due process of law, we are not concerned with that problem in the
present case. The question here is whether the statute on its face meets the
constitutional test of certainty and definiteness. We think it does when viewed
in its statutory setting.

The statutory scheme seems clear and unambiguous. The choice of a country
willing to receive the alien is left first to the alien himself and then to the
Attorney General. Once the country willing to receive the alien is identified,
the mechanism for effecting his departure remains. The six-month period
specified in 20(c) makes clear what a 'timely' application is. The statutory
words 'travel or other documents necessary to his departure' will, of course,
have different meanings in reference to various countries. The forms to be filled
out, the deposits to be made, the number of photographs to be furnished, and
the information to be supplied will vary from country to country. But when the

country to which the alien is to be deported is known, any mystery concerning

the documents necessary to his departure vanishes. The words 'necessary to his
departure' when applied to deportations would normally refer to a lawful
departure from this country and a lawful entrance into another. the alien
satisfies the statute by making timely application for such documents as the
country in question requires for his admission.
5

The statute might well be a trap if, for example, it required the alien to know
the visa requirements of one or more countries. But the emphasis of the present
statute is on a 'timely application in good faith' for such documents as the
country in question may require. Though the visa requirements for entrance
into a particular country are in constant change, the command of the statute
remains simple and intelligible. We conclude that the warning contained in the
statute is sufficiently definite to free it of any constitutional infirmity of
vagueness. Cf. United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed.
1877; Jordan v. DeGeorge, 341 U.S. 223, 71 S.Ct. 703, 95 L.Ed. 886.

Another question of constitutional law is pressed upon us. It is that the statute
must be declared unconstitutional because it affords a defendant no opportunity
to have the court which tries him pass on the validity of the order of
deportation. That question was neither raised by the appellee nor briefed nor
argued here. If it had been, we might consider it. See United States v. CurtissWright Corp., 299 U.S. 304, 330, 57 S.Ct. 216, 225, 81 L.Ed. 255. But when a
single, naked question of constitutionality is presented, we do not search for
new and different constitutional questions. Rather we refrain from passing on
the constitutionality of a phase of a statute until a stage has been reached where
the decision of the precise constitutional issue is necessary. See United States v.
Petrillo, supra.

It will be time to consider whether the validity of the order of deportation may
be tried in the criminal trial either by the court or by the jury, cf. Yakus v.
United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834; Cox v. United States,
332 U.S. 442, 68 S.Ct. 115, 92 L.Ed. 59, when and if the appellee seeks to have
it tried. That question is not foreclosed by this opinion. We reserve decision on
it.

Reversed.

Mr. Justice CLARK took no part in the consideration or decision of this case.

10

Mr. Justice BLACK, dissenting.

11

The only thing certain about 20(c) of the Immigration Act of 1917, as
amended, is that violation of its terms is a felony punishable by ten years'
imprisonment. An alien ordered deported by the Bureau of Immigration is
subject to this ten-year penalty if he 'willfully fail(s) or refuse(s) to make timely
application in good faith for travel or other documents necessary to his
departure'. To avoid punishment an alien must guess with unerring accuracy
what answers a judge or jury1 might someday give to the following questions:
(1) When is an application 'timely'? (2) What constitutes a 'good faith'
application? (3) What kind of 'documents' are 'necessary to his departure'? (4)
To whom must he apply for these documents?

12

Aliens living in this country are not necessarily sophisticated world travelers
familiar with the present-day red tape that must be unwound to get from one
country to another. Congress should at least indicate when, to whom, and for
what the alien should apply. If, for example, the statute merely required an
alien to report at a certain time and place to sign 'documents' collected by the
American Department of State, the affirmative conduct demanded would at
least be clear and specific. But the present statute, in my judgment, entangles
aliens in a snare of vagueness from which few can escape. I think the
Constitution requires more than a 'bad' guess to make a criminal.2

13

Mr. Justice JACKSON, with whom Mr. Justice FRANKFURTER joins,

dissenting.

14

I think this Act to punish an alien's unlawful presence in the United States is
unconstitutional for reasons apparent on its face.1 It differs in subtlety but not in
substance from one held unconstitutional more than half a century ago in a
decision repeatedly and recently cited with approval. Wong Wing v. United
States, 163 U.S. 228, 16 S.Ct. 977, 41 L.Ed. 140.2 The Act there stricken down
was simple and direct. It provided that any Chinese person or person of
Chinese descent adjudged by any justice, judge or commissioner of the United
States not lawfully entitled to be or to remain in the United States should first
be imprisoned at hard labor and thereafter removed from the United States. The
Court conceded that it would be competent for Congress to declare that an alien
remaining unlawfully in the United States could be criminally punished 'if such
offense were to be established by a judicial trial.' 163 U.S. at page 235, 16 S.Ct.
at page 980, 41 L.Ed. 140. However, it said:

15

'But when congress sees fit to further promote such a policy by subjecting the
persons of such aliens to infamous punishment at hard labor, or by confiscating
their property, we think such legislation, to be valid, must provide for a judicial
trial to establish the guilt of the accused.

16

'No limits can be put by the courts upon the power of congress to protect, by
summary methods, the country from the advent of aliens whose race or habits
render them undesirable as citizens, or to expel such if they have already found
their way into our land, and unlawfully remain therein. But to declare unlawful
residence within the country to be an infamous crime, punishable by
deprivation of liberty and property, would be to pass out of the sphere of
constitutional legislation, unless provision were made that the fact of guilt
should first be established by a judicial trial. It is not consistent which the
theory of our government that the legislature should, after having defined an
offense as an infamous crime, find the fact of guilt, and adjudge the punishment
by one of its own agents.' 163 U.S. at page 237, 16 S.Ct. at page 981, 41 L.Ed.
140.3

17

Thus the Court held that the Constitution prohibited for criminal purposes a
judicial determination without a jury that the alien was illegally present in the
United States. It held that the facts which made his presence illegal must be
established to the satisfaction of a jury, although the actual case before it seems
to have presented only the narrowest and simplest issues, namely, whether the
alien was a Chinaman and whether he was here. If so, his entry and his
presence at any time were illegal. In contrast, this act incriminates those whose
presence here is entirely legal but for guilt of some forbideen conduct since
entry. Certainly illegal presence under present laws involves a much more
trialworthy issue than in Wong Wing's case.

18

This Act creates a crime also based on unlawful residence in the United States.
The crime consists of two elements: one, an outstanding order for deportation
of an alien; the other, the alien's willful failure to leave the country or take
specified steps toward departure. The Act does not permit the court which tries
him for this crime to pass on the illegality of his presence. Production of an
outstanding administrative order for his deportation becomes conclusive
evidence of his unlawful presence and a consequent duty to take himself out of
the country, and no inquiry into the correctness or validity of the order is
permitted.

19

The subtlety of the present Act consists of severing the issue of unlawful
presence for administrative determination which then becomes conclusive upon
the criminal trial court. We must not forget that while the alien is not
constitutionally protected against deportation by administrative process he
stands on an equal constitutional footing with the citizen when he is charged
with crime.4 If Congress can subdivide a charge against an alien and avoid jury
trial by submitting the vital and controversial part of it to administrative
decision, it can do so in the prosecution of a citizen. And if vital elements of a

crime can be established in the manner here attempted, the way would be open
to effective subversion of what we have thought to be one of the most effective
constitutional safeguards of all men's freedom.
20

Administrative determinations of liability to deportation have been sustained as

constitutional only by considering them to be exclusively civil in nature, with
no criminal consequences or connotations. That doctrine, early adopted against
sharp dissent has been adhered to with increasing logical difficulty as new
causes for deportation, based not on illegal entry but on conduct after
admittance, have been added, and the period within which deportation
proceedings may be instituted has been extended.5 By this Act a deportation
order is made to carry potential criminal consequences.

21

If the administrative adjudication that one is liable to deportation and the

resulting orders are not exhausted when they have served as warrant for the
authorities to eject the alien but become conclusive adjudications of his
unlawful presence for the purpose of his criminal prosecution, quite different
principles come into play.

22

The adjudication that an alien has been guilty of conduct subjecting him to
deportation is not made by procedures constitutional for judgment of crime. It
is not made either by a jury trial or a court decision. All that is required by
statute is a hearing before an administrative officer and that may be before one
who acts both as the alien's judge and prosecutor.6 The finding that the alien is
guilty of conduct subjecting him to deportation does not require proof beyond
reasonable doubt but may be made on mere preponderance of evidence. If the
determination of deportability is subject to review under 10 of the
Administrative Procedure Act, 60 Stat. 243, 5 U.S.C. 1009, 5 U.S.C.A.
1009, a question expressly reserved in McGrath v. Kristensen, 340 U.S. 162,
169, 71 S.Ct. 224, 229, 95 L.Ed. 173, and not decided here, any evidentiary
attack raises only the question whether on the record as a whole there is
substantial evidence in support of the order. Universal Camera Corp. v. Labor
Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. No statute of limitations
applies in some cases and the offense which renders the alien deportable may
have occurred, but ceased, many years ago, 7 while under statutes applicable to
crimes, the same act, if a crime, long would have ceased to be subject to
prosecution.

23

Having thus dispensed with important constitutional safeguards in obtaining an

administrative adjudication that the alien is guilty of conduct making him
deportable on the ground it is only a civil proceeding, the Government seeks to
turn around and use the result as a conclusive determination of that fact in a

criminal proceeding. We think it cannot make that use of such an order.

24

It must be remembered that the deportation proceeding is an exercise of

adjudicative, not rule-making, power. The issue on which evidence is heard is
whether the alien has committed acts which are grounds for deportation. The
decision is whether he is guilty of such past conduct, and, if so, the legal result
is liability to deportation. This is not the type of administrative proceeding
which results in a rule or order prescribing rates or otherwise guiding future
conduct.

25

Experience in the Executive Department with the immigration laws made me

aware of a serious weakness in the deportation program which Congress by this
Act was trying to overcome. A deportation policy can be successful only to the
extent that some other state is willing to receive those we expel. But, except
selected individuals who can do us more harm abroad than here, what
Communist power will cooperate with our deportation policy by receiving our
expelled Communist aliens? And what non-Communist power feels such
confidence in its own domestic security that it can risk taking in persons this
stable and powerful Republic finds dangerous to its security? World conditions
seem to frustrate the policy of deportation of subversives. Once they gain
admission here, they are our problem and one that cannot be shipped off to
some other part of the world.

26

While we would not join in a strained construction of the Constitution to create

captious or trivial obstacles or delays to solution of this problem, we cannot
sanction sending aliens to prison except upon compliance with constitutional
procedures. We can afford no liberties with liberty itself.

27

The Court intimates that it might be compelled to agree with this constitutional
objection to the statute were the reasoning advanced by counsel. I abstain from
comment on this new squeamishness whereby the Court imprisons itself within
counsel's argument. Cf. Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93
L.Ed. 1131. It is our duty before reversing a judgment to examine any ground
upon which it can be sustained, even a ground which the court below may have
overlooked or expressly rejected. See Langnes v. Green, 282 U.S. 531, 51 S.Ct.
243, 75 L.Ed. 520, and Watts, Watts & Co. v. Unione Austriaca, 248 U.S. 9, 21
39 S.Ct. 1, 2, 63 L.Ed. 100. But this Court is reversing the lower court which
held this statute unconstitutional and is sending the Act forth limping with a
potential infirmity, because the Court has become too shy to take up a point not
sponsored by counsel, though, if well taken, it would support the judgment here
being overturned. The least that could be done would be to order the case
reargued.

'In earlier times, some Rulers placed their criminal laws where the common
man could not see them, in order that he might be entrapped into their violation.
Others imposed standards of conduct impossible of achievement to the end that
those obnoxious to the ruling powers might be convicted under the forms of
law. No one of them ever provided a more certain entrapment, than a statute
which prescribes a penitentiary punishment for nothing more than a layman's
failure to prophesy what a judge or jury will do. * * *' Williams v. North
Carolina, 325 U.S. 226, 278, 65 S.Ct. 1092, 1118, 89 L.Ed. 1577 (dissenting
opinion). Cf. United States v. L. Cohen Grocery Co., 255 U.S. 81, 89, 41 S.Ct.
298, 300, 65 L.Ed. 516.

My belief that the statute is void for vagueness makes it unnecessary for me to
reach the constitutional question discussed by Mr. Justice JACKSON, although
I have not yet seen a satisfactory reason for rejecting his view. See my opinion
in Maggio v. Zeitz, 333 U.S. 56, 7881, 68 S.Ct. 401, 412413, 92 L.Ed.
476.

The pertinent portion of 20(c) of the Immigration Act of 1917, as rewritten in

23 of the Internal Security Act of 1950, 64 Stat. 1010, 8 U.S.C. (Supp. IV)
156(c), 8 U.S.C.A. 156(c) reads as follows: 'Any alien against whom an order
of deportation is outstanding under (various named statutes) * * * who shall
willfully fail or refuse to depart from the United States within a period of six
months from the date of such order of deportation, or from September 23, 1950,
whichever is the later, or shall willfully fail or refuse to make timely application
in good faith for travel or other documents necessary to his departure * * * shall
upon conviction be guilty of a felony, and shall be imprisoned not more than
ten years * * *.'

Harisiades v. Shaughnessy, 342 U.S. 580, 586, 72 S.Ct. 512; Li Sing v. United
States, 180 U.S. 486, 495, 21 S.Ct. 449, 453, 45 L.Ed. 634; Downes v. Bidwell,
182 U.S. 244, 283, 21 S.Ct. 770, 785, 45 L.Ed. 1088; Russian Volunteer Fleet
v. United States, 282 U.S. 481, 489, 51 S.Ct. 229, 231, 75 L.Ed. 473.

In Li Sing v. United States, supra, 180 U.S. at pages 494 495, 21 S.Ct. at page
453, 45 L.Ed. 634, the Court quoted Fong Yue Ting v. United States, 149 U.S.
698, 730, 13 S.Ct. 1016, 1028, 37 L.Ed. 905, as follows: '(An) order of
deportation is not a punishment for crime. It is not a banishment, in the sense in
which that word is often applied to the expulsion of a citizen from his country
by way of punishment. It is but a method of enforcing the return to his own
country of an alien who has not complied with the conditions upon the
performance of which the government of the nation, acting within its

constitutional authority, and through the proper departments, has determined

that his continuing to reside here shall depend. He has not, therefore, been
deprived of life, liberty, or property, without due process of law; and the
provisions of the Constitution, securing the right of trial by jury, and
prohibiting unreasonable searches and seizures, and cruel and unusual
punishments, have no application.'
The Li Sing Court then went on, however, to say that: 'It may be proper here to
mention that this court has held that, while the United States can forbid aliens
from coming within their borders, an expel them from the country, and can
devolve the power and duty of identifying and arresting such persons upon
executive or subordinate officials, yet, when Congress sees fit to further
promote such a policy by subjecting the persons of such aliens to infamous
punishment at hard labor, or by confiscating their property, such legislation, to
be valid, must provide for a judicial trial to establish the guilt of the accused.
Wong Wing v. United States, 163 U.S. 228, 16 S.Ct. 977, 41 L.Ed. 140.'
That Court thereby made it clear that there is a great distinction between
deportation itself and a deportation order that may be made the basis of
subsequent criminal punishment. It is that distinction which we press for here.
See Fraenkel, Can the Administrative Process Evade the Sixth Amendment? 1
Syracuse L.Rev. 173.
4

Harisiades v. Shaughnessy, supra, 342 U.S. at page 586, 72 S.Ct. 517.

Harisiades v. Shaughnessy, supra, 342 U.S. at page 587, 72 S.Ct. 517, 518.

Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 564, 94 L.Ed. 1336,
holding that the Administrative Procedure Act, 60 Stat. 237, 5 U.S.C. 1001 et
seq., 5 U.S.C.A. 1001 et seq., required separation of judging and prosecuting
functions, was subsequently set aside by Congress which specifically exempted
deportation proceedings from 1004, 1006, and 1007 of the Act. Public Law
843, 81st Cong., 2d Sess., 8 U.S.C. (Supp. IV) 155a, 8 U.S.C.A. 155a.

Harisiades v. Shaughnessy, supra.