dissenting.
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. *175228.2 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 offence were to be established by a judicial trial.” 163 U. S. at 235. However, it said:
“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.
“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 with the theory of our government that the legislature should, after having defined an offence as an in*176famous crime, find the fact of guilt and adjudge the punishment by one of its own agents.” 163 U. S. at 237.3
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 *177only 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 forbidden conduct since entry. Certainly illegal presence under present laws involves a much more trialworthy issue than in Wong Wing’s case.
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.
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 *178of what we have thought to be one of the most effective constitutional safeguards of all men’s freedom.
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.
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.
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 deter-*179initiation of deportability is subject to review under § 10 of the Administrative Procedure Act, 60 Stat. 243, 5 U. S. C. § 1009, a question expressly reserved in McGrath v. Kristensen, 340 U. S. 162, 169, 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. 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.
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.
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.
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 will*180ing 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.
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.
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. 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, and Watts, Watts & Co. v. Unione Austriaca, 248 U. S. 9, 21. 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.
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)) 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; Li Sing v. United States, 180 U. S. 486, 495; Downes v. Bidwell, 182 U. S. 244, 283; Russian Volunteer Fleet v. United States, 282 U. S. 481, 489.
In Li Sing v. United States, supra, at 494-495, the Court quoted Fong Yue Ting v. United States, 149 U. S. 698, 730, 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, and 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.”
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.
Harisiades v. Shaughnessy, supra, at 586.
Harisiades v. Shaughnessy, supra, at 587.
Wong Yang Sung v. McGrath, 339 U. S. 33, holding that the Administrative Procedure Act, 60 Stat. 237, 5 U. S. C. § 1001 et seq., required separation of judging and prosecuting functions, was subsequently set aside by Congress which specifically exempted deportation proceedings from 5 U. S. C. §§ 1004, 1006, and 1007. 64 Stat. 1048, 8 U. S. C. (Supp. IV) § 155a.
Harisiades v. Shaughnessy, supra.