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United States v. Minker, 350 U.S. 179 (1956)
United States v. Minker, 350 U.S. 179 (1956)
179
76 S.Ct. 281
100 L.Ed. 185
No. 35:
Mr. Marvin E. Frankel, Washington, D.C., for the United States.
Mr. Jacob Kossman, Philadelphia, Pa., for respondent Minker.
No. 47:
Mr. George Morris Fay, Washington, D.C., for Falcone.
Mr. Justice FRANKFURTER delivered the opinion of the Court.
Section 235(a)1 provides that any immigration officer 'shall have power to
require by subpena the attendance and testimony of witnesses before
immigration officers * * * relating to the privilege of any person to enter,
reenter, reside in, or pass through the United States or concerning any matter
which is material and relevant to the enforcement of this Act and the
administration of the Service, and to that end may invoke the aid of any court
of the United States.' The controlling issue presented by these cases is whether
this section empowers an immigration officer to subpoena a naturalized citizen
who is the subject of an investigation by the Service, where the purpose of the
investigation is to determine if good cause exists for the institution of
denaturalization proceedings under 340(a) of the Act.2
3
In No. 35, the District Director of the Immigration and Naturalization Service
at Philadelphia, in accordance with 340.11 of the Service's regulation,3
instituted an investigation of respondent for the aforementioned purpose. In
furtherance of this inquiry into the legality of Minker's naturalization the
Director subpoenaed him to give testimony at the offices of the Service. Prior
to the required date of his appearance, he moved to quash the subpoena in the
United States District Court for the Eastern District of Pennsylvania upon the
ground, inter alia, that it was unauthorized by the Act. This motion was denied,
In re Minker, D.C., 118 F.Supp. 264, and no appeal was taken. When
respondent thereafter failed to obey the subpoena, the District Court, on
application of the District Director, ordered respondent to appear before the
Service and testify. He disregarded this order. After a hearing he was adjudged
in contempt for so doing and fined $500. The Court of Appeals for the Third
Circuit reversed, holding that while the power to subpoena under 235(a) was
available for investigations directed toward denaturalization proceedings,
respondent as a putative defendant in such a proceeding was not a 'witness'
within the meaning of the section, and the Service was, therefore, without
power to subpoena him.4 217 F.2d 350.
In No. 47, each petitioner was served with a subpoena issued by the officer in
charge of the Immigration and Naturalization Service at Syracuse, New York.
The subpoenas commanded petitioners' appearance and testimony, and required
them to produce specified documents. They appeared with documents as
ordered, but refused to be sworn or to testify. Thereupon an application for an
order of compliance was made by the Service in the United States District
Court for the Northern District of New York; but the court, denying the
Service's authority, refused to compel petitioners to appear and give testimony.
Application of Barnes, D.C., 116 F.Supp. 464. On appeal, to the Court of
Appeals for the Second Circuit, this judgment was reversed. 219 F.2d 137. The
court held that 235(a) of the Act permitted the immigration officer to
subpoena the petitioners in furtherance of the Service's investigation of them
under 340.11 of the regulations. The decision assumed, although the court did
not discuss the question, that each petitioner, even though a subject of
investigation, was a 'witness' within the meaning of 235(a).5
The 1952 Act in 235(a) retained the substance of this language in 16. But
the word 'alien' was changed to 'person,' and additional language extended the
subpoena power to 'any matter which is material and relevant to the
enforcement of this Act and the administration of the Service.' If the additional
clause, following the portion 'relating to the privilege of any person to enter,
reenter, reside in, or pass through the United States', had merely read 'and any
other matter which is material and relevant,' the doctrine of ejusdem generis
would appropriately be invoked to limit the subpoena power to an investigation
pertaining to questions of admission and deportation. The comprehensive
addition of the clause 'or concerning any matter which is material and relevant
to the enforcement of this Act and the administration of the Service', precludes
such narrowing reading. 'Act' encompasses the full range of subjects covered
by the statute. The Immigration and Nationality Act of 1952 brought together in
one statute the previously atomized subjects of immigration, nationality and
naturalization. The unqualified use of the word 'Act' in 235(a), if read as
ordinary English, embraces all of these subjects even though 235(a) is itself in
the immigration title of the statute. But 'the title of a statute and the heading of
a section cannot limit the plain meaning * * *.' Brotherhood of Railroad
Trainmen v. Baltimore & Ohio R. Co., 331 U.S. 519, 528 529, 67 S.Ct. 1387,
13911392, 91 L.Ed. 1646. Throughout this statute the word 'Act' is given its
full significance. The word embraces the entire statute.6 On the other hand,
when only a particular title is referred to, it is designated as such, and when the
reference is to a section, that word is employed.7 No justification appears for
treating 'Act' in 235(a) as meaning 'section.' Thus far the Second and Third
Circuits are in agreement.
We come then to the question upon which the two Courts of Appeals part ways
in their construction of 235(a), namely, whether Salvatore and Joseph Falcone
in the one case and Abraham Minker in the other, although each the subject of a
It is pertinent to note the breadth of 235(a) not only with respect to the type of
investigation in which a subpoena may be issued ('any matter which is material
and relevant to the enforcement of this Act'), but also with respect to the
member of the Service empowered to issue it. The power is granted 'any
immigration officer,' who in turn is defined in 101(a)(18) of the Act as 'any
employee or class of employees of the Service or of the United States
designated by the Attorney General, individually or by regulation, to perform
the functions of an immigration officer specified by this Act or any section
thereof.' This extensive delegated authority reinforces the considerations
inherent in the nature of the power sought to be exercised that make for a
restrictive reading of the Janus-faced word 'witness.' The subpoena power 'is a
power capable of oppressive use, especially when it may be indiscriminately
delegated and the subpoena is not returnable before a judicial officer. * * *
True, there can be no penalty incurred for contempt before there is a judicial
order of enforcement. But the subpoena is in form an official command, and
even though improvidently issued it has some coercive tendency, either because
of ignorance of their rights on the part of those whom it purports to command or
their natural respect for what appears to be an official command, or because of
their reluctance to test the subpoena's validity by litigation.' Cudahy Packing
Co., Ltd. v. Holland, 315 U.S. 357, 363364, 62 S.Ct. 651, 654655, 86
L.Ed. 895.
10
living.' Ng Fung Ho v. White, 259 U.S. 276, 284, 42 S.Ct. 492, 495, 66 L.Ed.
938. In such a situation where there is doubt it must be resolved in the citizen's
favor. Especially must we be sensitive to the citizen's rights where the
proceeding is nonjudicial because of '(t)he difference in security of judicial over
administrative action * * *.' Ng Fung Ho v. White, supra, 259 U.S. at page 285,
42 S.Ct. at page 495.
11
12
All these considerations converge to the conclusion that Congress has not
provided with sufficient clarity that the subpoena power granted by 235(a)
extends over persons who are the subject of denaturalization investigations;
therefore Congress is not to be deemed to have done so impliedly. Since this is
so, we are not called upon to consider whether Congress may employer an
immigration officer to secure evidence, under the authority of a subpoena, from
a citizen who is himself the subject of an investigation directed toward his
denaturalization. The judgment in No. 35 is affirmed; in No. 47, the judgment
is reversed.
14
15
16
410, 69 S.Ct. 170, 93 L.Ed. 100. And we have frequently set aside state
criminal convictions as a denial of due process of law because of coercive
questioning of suspects by public prosecutors and other law enforcement
officers in their official chambers. See, e.g., Watts v. Indiana, 338 U.S. 49, 69
S.Ct. 1347, 93 L.Ed. 1801; Harris v. South Carolina, 338 U.S. 68, 69 S.Ct.
1354, 93 L.Ed. 1815; Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84
L.Ed. 716. Yet power of the Attorney General and immigration officers to
compel persons, including suspects, to appear and subject themselves to
questioning by law enforcement officers in their private chambers is precisely
what the Department of Justice claims here. This is no less true because a
federal judge must be called on to 'aid' the immigration officer in subjecting a
summoned person to questioning. 235(a), 66 Stat. 198, 8 U.S.C. 1225(a), 8
U.S.C.A. 1225(a). For after a court order, as before, the person summoned
must go to an immigration officer's private chambers for questioning by him,
out of which may come a prosecution against the 'witness' for perjury or some
other crime. A purpose to subject aliens, much less citizens, to a police practice
so dangerous to individual liberty as this should not be read into an Act of
Congress in the absence of a clear and unequivocal congressional mandate. I
think the Act relied on here by the Department of Justice should not be so read.
I would hold that immigration officers are wholly without statutory authority to
summon persons, whether suspects or not, to testify in private as 'witnesses' in
denaturalization matters. For this reason I concur in the Court's judgment in this
case.
17
The Department of Justice finds the sweeping power it claims in 235 of the
Immigration and Nationality Act of 1952, 66 Stat. 163, 198, 8 U.S.C. 1101,
1225, 8 U.S.C.A. 1101, 1225. That Act is a comprehensive codification of
laws relating to entry, exclusion, domestic control, deportation and
naturalization of aliens; the Act also provides the controlling rules and
procedures for denaturalizing naturalized citizens. Primary responsibility for
administration and enforcement of the Act is vested in the Attorney General,
acting chiefly through his subordinates in the Immigration and Naturalization
Service. 103, 66 Stat. 173, 8 U.S.C. 1103, 8 U.S.C.A. 1103.
18
This Court has drawn sharp and highly important distinctions between the
constitutional power of Congress to bar and exclude aliens and congressional
power to strip citizens of their citizenship. Former cases have held that
Congress has full power to bar or exclude aliens from the country. See, e.g.,
United States v. Ju Toy, 198 U.S. 253, 25 S.Ct. 644, 49 L.Ed. 1040; Harisiades
v. Shaughnessy, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586; Shaughnessy v.
United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956. But
citizenship, whether acquired by birth or by naturalization, cannot be taken
away without a judicial trial in which the Government carries a heavy burden.
See, e.g., Ng Fung Ho v. White, 259 U.S. 276, 42 S.Ct. 492, 66 L.Ed. 938;
Baumgartner v. United States, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525;
Gonzales v. Landon, 350 U.S. 920, 76 S.Ct. 210. Congress, apparently taking
note of these basic distinctions, divided the Act into different 'Titles' and
'Chapters.' Section 235, on which the Government relies here, appears in
Chapter IV of Title II. Title II as a whole contains provisions relating to
'Immigration' and Chapter IV of that Title contains the 'Provisions Relating to
Entry and Exclusion.' It is in the context of Chapter IV that 235 gives the
Attorney General and immigration officers, 'including special inquiry officers',
broad power to subpoena and require testimony of 'witnesses' as to 'the privilege
of any person to enter, reenter, reside in, or pass through the United States or
concerning any matter which is material and relevant to the enforcement of this
Act and the administration of the Service * * *.' I think that context indicates
that 235 was designed to apply only to the examination of 'witnesses' by
immigration officers in relation to 'entry and exclusion' of aliens, and matters
material and relevant to entry and exclusion. Such a reading makes the
subpoena power given fit into the carefully devised pattern of Title II, which
deals with aliens and immigration, not with naturalization or denaturalization.
Even if limited to matters pertaining to the entry and exclusion of aliens,
compulsory private examination of 'witnesses' might be invalid. The broad
powers here claimed by the Attorney General and his immigration officers
could be more nearly defended, if they can be defended at all, by confining use
of the powers to the field of treatment of aliens, where this Court has said
Congress has most power.
19
produce his own witnesses.3 The designated hearing examiner is given the
power to subpoena witnesses by 335(b), 66 Stat. 255, 8 U.S.C. 1446(b), 8
U.S.C.A. 1446(b), and the naturalization judge is authorized to compel
compliance with the subpoena. After the hearing the examiner reports his
findings and recommendations to the Attorney General. The views of the
designated examiner, and of the Attorney General if in conflict, are then
reported to the naturalization court for its consideration. All of this persuades
me that reliance on the subpoena and private examination powers of
immigration officers under 235 would actually conflict with the public
hearing procedure Congress and the Attorney General have provided for
naturalization cases in 332335, 66 Stat. 252257, 8 U.S.C. 1443
1446, 8 U.S.C.A. 14431446, and 8 CFR 335.11335.13.
20
It seems even clearer that immigration officers' powers under 235 are not
applicable in denaturalization cases. Section 340 of Title III of the Act, 66 Stat.
260, 8 U.S.C. 1451, 8 U.S.C.A. 1451, provides for revocation of
naturalization. Responsibility for initiating such cases is placed on district
attorneys 'upon affidavit showing good cause therefor * * *.' Many of the
grounds for denaturalization are also grounds for felony prosecutions. Under
these circumstances it is not surprising that Congress expressly placed
responsibility for instituting denaturalization proceedings on district attorneys,
leaving them to summon persons to appear as witnesses in the traditional
manner before grand juries or courts. It would have been surprising had
Congress attempted to authorize the Nation's chief prosecuting officer and his
subordinates to compel a citizen to appear in government private offices to
answer questions in secret about that citizen's conduct, associations and beliefs.
Some countries give such powers to their officials. It is to be hoped that this
country never will.
21
22
While I agree with the result reached by the Court, I do not think this case is
comparable to those controversies that frequently rege over the scope of the
investigative power in support of administrative action. Cf. Cudahy Packing
Co. v. Holland, 315 U.S. 357, 62 S.Ct. 651, 86 L.Ed. 895 with United States v.
Morton Salt Co., 338 U.S. 632, 70 S.Ct. 357, 94 L.Ed. 401. Congress has
provided a special judicial procedure which must be followed, if a citizen is
denaturalized. That procedure is contained in 340 of the Immigration and
Nationality Act of 1952. 66 Stat. 163, 8 U.S.C. 1451, 8 U.S.C.A. 1451. It
provides for canceling a certificate of naturalization on the ground that it was
procured 'by concealment of a material fact or by willful misrepresentation.'
340(a). Suit may be brought by the United States Attorney in the District Court
'upon affidavit showing good cause.' Id. The citizen whose citizenship is
challenged has 60 days 'in which to make answers to the petition of the United
States.' 340(b). There is no pretrial administrative procedure provided in the
section governing denaturalization. One can search 340 in vain for any
suggestion that the judicial procedure is supplemented by a pretrial procedure.
So to hold would make the 60-day period for answer 'empty words,' as Judge
Foley ruled in Application of Barnes, D.C., 116 F.Supp. 464, 469. As Judge
Hastie, writing for the court below in the Minker case, said, the administrative
pretrial procedure is not consistent with the safeguards which Congress has
provided in the judicial proceedings. 3 Cir., 217 F.2d 350, 352. I agree with that
view and would, therefore, read s 235(a) to exclude witnesses who are potential
defendants in 340 cases.
23
There is another reason for reading the section narrowly. When we deal with
citizenship we tread on sensitive ground. The citizenship of a naturalized
person has the same dignity and status as the citizenship of those of us born
here, save only for eligibility to the Presidency. He is a member of a
community included within the protection of all the guarantees of the
Constitution. Those safeguards would be imperiled if prior to the institution of
the proceedings the citizen could be compelled to be a witness against himself
and furnish out of his own mouth the evidence used to denaturalize him. I
would require the Government to proceed with meticulous regard for the basic
notions of Due Process which protect every vital right of the American eitizen.
Section 235(a) in full provides: 'The inspection, other than the physical and
mental examination, of aliens (including alien crewmen) seeking admission or
readmission to or the privilege of passing through the United States shall be
conducted by immigration officers, except as otherwise provided in regard to
special inquiry officers. All aliens arriving at ports of the United States shall be
examined by one or more immigration officers at the discretion of the Attorney
General and under such regulations as he may prescribe. Immigration officers
are hereby authorized and empowered to board and search any vessel, aircraft,
railway car, or other conveyance, or vehicle in which they believe aliens are
being brought into the United States.
The Attorney General and any immigration officer, including special inquiry
officers, shall have power to administer oaths and to take and consider evidence
of or from any person touching the privilege of any alien or person he believes
or suspects to be an alien to enter, reenter, pass through, or reside in the United
States or concerning any matter which is material and relevant to the
enforcement of this Act and the administration of the Service, and, where such
Section 340(a) provides: 'It shall be the duty of the United States district
attorneys for the respective districts, upon affidavit showing good cause
therefor, to institute proceedings in any court specified in subsection (a) of
section 310 of this title in the judicial district in which the naturalized citizen
may reside at the time of bringing suit, for the purpose of revoking and setting
aside the order admitting such person to citizenship and canceling the
certificate of naturalization on the ground that such order and certificate of
naturalization were procured by concealment of a material fact or by willful
misrepresentation, and such revocation and setting aside of the order admitting
such person to citizenship and such canceling of certificate of naturalization
shall be effective as of the original date of the order and certificate,
respectively:
Provided, That refusal on the part of a naturalized citizen within a period often
years following his naturalization to testify as a witness in any proceeding
before a congressional committee concerning his subversive activities, in a case
where such person has been convicted of contempt for such refusal, shall be
held to constitute a ground for revocation of such person's naturalization under
The question whether respondent was required to obey the order of the District
Court irrespective of that court's power under 235(a) has not been raised. See
United States v. United Mine Workers of America, 330 U.S. 258, 67 S.Ct. 677,
91 L.Ed. 884.
The Court of Appeals for the Fifth Circuit has taken the same view. Lansky v.
Savoretti, 220 F.2d 906.
E.g., 215(g): 'Passports, visas, reentry permits, and other documents required
for entry under this Act may be considered as permits to enter for the purposes
of this section.' Section 241(a)(2): 'Any alien in the United States * * * shall,
upon the order of the Attorney General, be deported who* * * entered the
United States without inspection or at any time or place other than as
designated by the Attorney General or is in the United States in violation of this
Act or in violation of any other law of the United States.' Section 290(a): 'There
shall be established in the office of the Commissioner, for the use of the
security and enforcement agencies of the Government of the United States, a
central index, which shall contain the names of all aliens heretofore admitted to
the United States, or excluded therefrom, insofar as such information is
available from the existing records of the Service, and the names of all aliens
hereafter admitted to the United States, or excluded therefrom, the names of
their sponsors of record, if any, and such other relevant information as the
Attorney General shall require as an aid to the proper enforcement of this Act.'
'While the Nationality Act ( 333(a) of the 1940 Act) provides for subpena of
witnesses at a preliminary (naturalization) hearing and for calling of witnesses
in any naturalization proceedings in court, specific provision is not made for
subpenaing the petitioner. The subcommittee feels that the proposed bill should
contain the requirement that the petitioner be required to attend hearings and is
so recommending.' S.Rep. No. 1515, 81st Cong., 2d Sess. 739.
Section 236(a) provides: 'A special inquiry officer shall conduct proceedings
under this section, administer oaths, present and receive evidence, and
interrogate, examine, and cross-examine the alien or witnesses.'
10
Section 242(b) provides: 'A special inquiry officer shall conduct proceedings
under this section to determine the deportability of any alien, and shall
administer oaths, present and receive evidence, interrogate, examine, and crossexamine the alien or witnesses, and, as authorized by the Attorney General,
shall make determinations, including orders of deportation.'
11
Section 336(d) provides: 'The Attorney General shall have the right to appear
before any court in any naturalization proceedings for the purpose of crossexamining the petitioner and the witnesses produced in support of the petition
concerning any matter touching or in any way affecting the petitioner's right to
admission to citizenship, and shall have the right to call witnesses, including the
petitioner, produce evidence, and be heard in opposition to, or in favor of, the
granting of any petition in naturalization proceedings.'
Minker is respondent in No. 35. He and the petitioners in No. 47, Salvatore and
Joseph Falcone, raise the same questions, and what I say about Minker's case
applies also to that of the Falcones.
See 348, 66 Stat. 267, 8 U.S.C. 1459, 8 U.S.C.A. 1459; 18 U.S.C. 1621,
18 U.S.C.A. 1621. See also Gonzales v. Landon, 350 U.S. 920, 76 S.Ct. 210,
reversing 9 Cir., 215 F.2d 955. But see Boyd v. United States, 116 U.S. 616, 6
S.Ct. 524, 29 L.Ed. 746; majority and dissenting opinions in Feldman v. United
States, 322 U.S. 487, 64 S.Ct. 1082, 88 L.Ed. 1408; Adams v. Maryland, 347