dissenting:
Mr. Justice Butler and I cannot acquiesce in the disposition of this cause or in the supporting opinion just announced. It seems worthwhile briefly to indicate our views.
More than five years have passed since the alien respondent was arrested and ordered to show why he should not be deported. The record of the following proceedings before the Labor Department and in the courts, printed on eighty-four pages, is before us. It is not very difficult to understand. Without question we have power finally to dispose of the cause upon the merits notwithstanding *36any omissions or defects found in the petition for certio-rari. In the circumstances, we think that course should be taken. The District Court upon another view of the récord can ascertain nothing not open to us.
If this alien is guiltless of the charge against him he should be liberated without more ado; if guilty, the public should be relieved of his presence now. That he is an undesirable is made manifest.
The construction of the statute adopted by the Court seems both unwarranted and unfortunate. If by the simple process of resigning or getting expelled from a proscribed organization an alien may thereby instantly purge himself after months or years of mischievous activities, hoped-for protection against such conduct wiil disappear. Escape from the consequences of deliberate yiolations of our hospitality should not become quite so facile.1
Seven years ago, the Court of Appeals, Second Circuit, construed the statute under consideration in United States ex rel. Yokinen v. Commissioner of Immigration, 57 F. 2d 707-708. There the alien had been expelled from the Communist Party before his arrest, and for. that reason he unsuccessfully claimed exemption. The following excerpts from the court’s, opinion, with force and, directness, express our view concerning the true meaning of the enactment—
“It is true that he was not a member of the Communist Party when arrested. He had recently been expelled because of his attitude toward negroes, but that, did not remove him from the reach of the statute. We have nothing to do with shaping the policy of the law *37towards aliens who come here and join a proscribed society. Congress has provided that ‘any alien who, at any time after entering the United States, is found to have been at the time of entry, or to have become thereafter, a member of any one of the classes of aliens enumerated in this section’ shall be deported. 8 USCA § 137 (g). This alien concededly did become after entry a member of ‘one of the classes * * * enumerated’ and from that time became deportable. We are urged to ameliorate the supposed harshness of the statute by reading into it words that Congress saw fit to leave oüt and interpret it to apply not to aliens who become members, but only to those who become and continue to the time of their arrest to be members, of one of the enumerated classes. If the words used in the statute were equivocal or the intention of Congress for any reason uncertain, there might be room for such a construction as that for which the appellant now contends. Perhaps the sufficient answer is that had Congress intended membership at the time of arrest - to be the criterion it would have said so. It has the power to determine what acts of an alien shall terminate his right to remain here. Skeffington v. Katzeff et al. (C. C. A.) 277 F. 129. What it did do was to make the act of becoming a member a deportable offense without regard to continuance of membership and it did that in language so plain that any attempt to read in any other meaning is no less than an attempt to circumvent the law itself.
“Since the appellant admittedly had, after' entry, become a member of a proscribed organization, the undisputed evidence required the order from which this appeal was taken. All proof upon which he was held to be affiliated with the Communist Party was unnecessary, and while we do not mean to intimate that any evidence on that phase of the case was unfairly received and considered, in any event it did him no harm.”
*38A petition for certiorari asking this Court to review the judgment of the Circuit Court of Appeals was refused October 10, 1932 (287 U. S. 607). It stressed the point that — “A fair and proper construction of the statute requires that it be confined in its operation to aliens who are members of or affiliated with a proscribed organization at th<3 issuance of the warrant of arrest.”
The unusual importance of the question was not difficult'to appreciate.
In the presence of clear and positive expression of Congressional intent to the contrary we do not feel at liberty to conclude that an alien who after entry has shown his contempt for our laws by deliberately associating himself with a proscribed organization must be allowed to remain if he resigned or was debarred a day, a month or a year before his arrest. An experienced court years ago declared that would be “no less than an attempt to circumvent the law itself.”
Streeter, bom in Poland in 1888, wás admitted to the United States in 1912.
He joined the Communist Party November, 1932, but paid no dues subsequent to February, 1933. He claims that under the Party rules failure to pay for four weeks causes membership to cease. Warrant for his arrest issued in November, 1933.