Mr. Justice CLARK, with whom Mr. Justice HARLAN, Mr. Justice STEWART and Mr. Justice WHITE join, dissenting.
I dissent from the Court's judgment and opinion because 'statutory construction' means to me that the Court can construe statutes but not that it can construct them. The latter function is reserved to the Congress, which clearly said what it meant and undoubtedly meant what it said when it defined 'entry' for immigration purposes as follows:
'The term 'entry' means any coming of an alien into the United States, from a foreign port or place or from an outlying possession, whether voluntarily or otherwise, except that an alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purposes of the immigration laws if the alien proves to the satisfaction of the Attorney General that his departure to a foreign port or place or to an outlying possession was not intended or reasonably to be expected by him or his presence in a foreign port or place or in an outlying possession was not voluntary * * *.' 8 U.S.C. § 1101(a)(13).
That this definition of 'entry' includes the respondent's entry after his brief trip to Mexico in 1956 is a conclusion which seems to me inescapable. The conclusion is compelled by the plain meaning of the statute, its legislative history, and the consistent interpretation by the federal courts. Indeed, the respondent himself did not even question that his return to the United States was an 'entry' within the meaning of § 101(a)(13). Nonetheless, the Court has rewritten the Act sua sponte, creating a definition of 'entry' which was suggested by many organizations during the hearings prior to its enactment but which was rejected by the Congress. I believe the authorities discussed in the Court's opinion demonstrate that 'entry' as defined in § 101(a)(13) cannot mean what the Court says it means, but I will add a few words of explanation.
The word 'entry' had acquired a well-defined meaning for immigration purposes at the time the Immigration and Nationality Act was passed in 1952. The leading case was United States ex rel. Volpe v. Smith, 289 U.S. 422, 53 S.Ct. 665, 77 L.Ed. 1468 (1933), which held that an alien who had resided continuously in the United States for 26 years except for a brief visit to Cuba made an 'entry' at the time of his return from Cuba. The Court there stated that the word 'entry' in the Immigration Act of 1917 'includes any coming of an alien from a foreign country into the United States whether such coming be the first or any subsequent one.' Id., at 425, 53 S.Ct. 667, 77 L.Ed. 1468. That conclusion was based on sound authority, since the Court had earlier held that a resident alien who crossed the river from Detroit to Windsor, Canada, and returned on the same day made an entry upon his return. Lewis v. Frick, 233 U.S. 291, 34 S.Ct. 488, 58 L.Ed. 967 (1914).
The federal courts in numerous cases were called upon to apply this definition of 'entry' and did so consistently, specifically recognizing that the brevity of one's stay outside the country was immaterial to the question of whether his return was an 'entry'. See, e.g., United States ex rel. Kowalenski v. Flynn, 17 F.2d 524 (D.C.W.D.N.Y.1927); Schoeps v. Carmichael, 177 F.2d 391 (C.A.9th Cir. 1949). A related but obviously distinguishable question did create difficulties for the courts, however, leading to conflicting opinions among the Circuits as to whether a resident alien makes an 'entry' when he had no intent to leave the country or did not leave voluntarily. It was decided by this Court in Delgadillo v. Carmichael, 332 U.S. 388, 68 S.Ct. 10, 92 L.Ed. 17 (1947), which held that an alien whose ship had been torpedoed and sunk, after which he was rescued and taken to Cuba for a week, did not make an 'entry' on his return to the United States. The Court discussed the Volpe case but distinguished it and others on the ground that 'those were cases where the alien plainly expected or planned to enter a foreign port or place. Here he was catapulted into the ocean, rescued, and taken to Cuba. He had no part in selecting the foreign port as his destination.' Id., at 390, 68 S.Ct. at 12. The Court specifically relied on Di Pasquale v. Karnuth, 158 F.2d 878 (C.A.2d Cir. 1947), where an alien who had ridden a sleeping car from Buffalo to Detroit, without knowledge that the train's route was through Canada, was held not to have made an 'entry' upon his arrival in Detroit.