would be inconsistent with the policy and law of the United States to permit the plaintiff governments to sue as parens patriae in this case. The Court concluded that the remedy plaintiffs sought, if it could be made available at all, must come from Congress which was "best able to weigh its economic and political consequences and to consider alternative means of enforcing the antitrust laws of the United States." (at p. 620.)

For discussion of standing of the Republic of Viet-Nam (or its successor) as party to the suit, see ante, Ch. 2, § 3, pp. 30-33.

Inheritance of Property

In De Tenorio v. McGowan, 510 F.2d 92 (1975), cert. denied 44 U.S. Law Week 3206 (1975), the United States Court of Appeals for the Fifth Circuit held, on March 1, 1975, that the Honduran widow of an American citizen property owner, who for 12 years after her husband's death had failed either to make any inquiry about or to sell the land which he had owned in Mississippi, was deprived of any interest in that land under Mississippi law and the terms of the 1927 U.S.-Honduras Treaty of Friendship, Commerce and Consular Rights (TS 764; 45 Stat. 2618; 8 Bevans 905; entered into force July 19, 1928).

The Mississippi statute provided that "non-resident aliens shall not hereafter acquire or hold land. . . . " Article I of the U.S.Honduras Treaty of 1927 provides, in part:

The nationals of each High Contracting Party shall enjoy freedom of access to the courts of justice of the other on conforming to the local laws, as well for the prosecution as for the defense of their rights, and in all degrees of jurisdiction established by law.

The nationals of each High Contracting Party shall receive within the territories of the other, upon submitting to conditions imposed upon its nationals, the most constant protection and security for their persons and property, and shall enjoy in this respect that degree of protection that is required by international law. Their property shall not be taken without due process of law and without payment of just compensation.

Article IV of the Treaty provides, in part:

Where, on the death of any person holding real or other immovable property or interests therein within the territories of one High Contracting Party, and such property or interest therein would, by the laws of the country or by a testamentary disposition, descend or pass to a national of the other High

Contracting Party, whether resident or non-resident, were he not disqualified by the laws of the country where such property or interests therein is or are situated, such national shall be allowed a term of three years in which to sell the same, this term to be reasonably prolonged if circumstances render it

necessary.

The case came to the Court of Appeals on an appeal by Hamilton E. McGowan, the defendant below, and a brother of Elbert J. McGowan, deceased, from a judgment by the District Court vesting an undivided one-half interest in 37 acres of land in Mississippi in plaintiff Dorotea Zaldivar V. De Tenorio, a non-resident alien. Plaintiff-appellee De Tenorio claimed the land by inheritance from her deceased sister who, in turn, allegedly inherited the land from her deceased husband, Elbert J. McGowan, a United States citizen. Both appellee and her deceased sister were resident citizens of Honduras.

Appellant McGowan argued that the widow lost her interest in the land by failing to comply with the requirements of the 1927 Treaty between the United States and Honduras. He requested that title be confirmed in the defendants-cross-complainants.

The Court of Appeals reversed the judgment and remanded the case to the District Court.

Elbert J. McGowan had held record title to the property in fee simple from 1915 to his death in 1957. During most of that time he lived in Central America, while his brother Hamilton used the land and paid the taxes on it. Elbert married a Honduran national in 1940. He died in Panama in 1957. His brother Hamilton was notified of his death and that his effects had been placed in the hands of his widow. After Elbert's death, no member of the family communicated with the widow or advised her concerning the land in Mississippi. She died intestate in Honduras in 1969, survived by a brother and sister.

In 1968 Hamilton McGowan filed suit in Mississippi asserting title to the land by adverse possession and seeking confirmation of his alleged title. Elbert's widow, in Honduras, was not named as a party to the suit, nor was she served with notice or process. A decree was entered on the complaint by default, and this decree was asserted by the defendants-appellants as res judicata. The District Court held that this decree was ineffective against Maria, Elbert McGowan's widow and appellee's sister, for lack of due process of law guaranteed by the Fifth and Fourteenth Amendments to the Constitution and applicable under the terms of the 1927 Treaty. The District Court further held that the widow's interest in the land formerly owned by her husband could not be divested from her in the absence of due process of law and without

just compensation. It concluded by a "liberal interpretation" of the Treaty that the widow's heir, Dorotea, was entitled to the same protection.

The Circuit Court of Appeals rejected the view that the alien heir must know of the terms of the Treaty or the three-year limitation would not run against her. It declared that the Article I provision on just compensation applied only to the taking of property by a government, not by a private party. As for Article IV, it held that the only circumstances rendering it necessary to prolong the term for a reasonable period were circumstances existing during the three-year period, such as inability to satisfactorily clear title, inability to sell for a fair market value, willful frustration of effort to sell, or like events. The Court stated:

Represented by counsel, as she was, in an estate which was formally administered in Panama, we must hold that Mrs. McGowan's failure over a period of nearly twelve years to have the records examined, or to make any inquiry whatever, although assisted by counsel, totally negates the existence of circumstances necessitating a prolongation of the three-year period in which she had the clear right to sell this land and receive the proceeds.

To hold otherwise would be to say that the treaty makers intended that property rights within their respective jurisdiction may be left in limbo for so long as alien owners choose not to make inquiry as to the possible existence of title, open and available to the world. This could not further, but would damage, the property rights of the citizens of either jurisdiction, something they both had a duty to protect and no doubt intended to protect.

The Appeals Court also rejected the plaintiff-appellee's argument that the defendant Herbert McGowan was in a fiduciary relationship to the widow. It said their interests were mutually hostile and defendant had no fiduciary duty to notify the widow of her obligation to sell the property in three years or lose her interest, particularly where it appears that defendant himself had no knowledge of the Treaty provisions. Further, the Court rejected the argument that plaintiff-appellee had been denied equal protection of the law by reason of Section 842 of the Mississippi Code of 1942, which allows non-resident alien citizens of Syria or Lebanon to inherit property from citizens or residents of Mississippi but denies that right to all other non-resident aliens. The Court noted that the statute had a severability clause; and even if it were invalidated the legal status of the plaintiff-appellee would not be

changed by prior statute or even by common law, that is, she would still be prohibited from owning title to land in Mississippi.

In a nine-page dissent, Circuit Judge Godbold argued that Hamilton McGowan was indeed a fiduciary for his brother and for his brother's widow and should have notified her of her interest in the property which was the subject of the fiduciary relationship. He felt it necessary that the three-year period be reasonably prolonged in keeping with Article IV of the Treaty.

Plaintiff-appellee promptly appealed for rehearing and rehearing en banc. On May 27, 1975, the Court of Appeals held, 513 F.2d 294, that the Court's decision enforcing the three-year period of limitations expressly provided for under the 1927 Treaty with Honduras, in the absence of any showing of necessity beyond desire of the plaintiff to obtain legal title to land in Mississippi and its producing oil well, did not damage the fabric of United States treaty commitments of a similar nature with at least 23 countries.

Deportation

“Entry” into United States

On February 18, 1975, the United States Court of Appeals, Ninth Circuit, in Munoz-Casarez v. Immigration and Naturalization Service, 511 F.2d 947 (1975), affirmed a decision of the Immigration and Naturalization Service to deport an alien convicted of voluntary manslaughter of his former wife. The Court of Appeals held that deportation, which under Section 241(a) (4) of the Immigration and Nationality Act, 8 U.S.C. 1251(a) (4), could occur only if it took place within five years after entry of the alien into the United States, was proper when it occurred within five years after the alien had returned from a one-month trip into the interior of Mexico, despite the fact that the alien had never intended to abandon his residence in the United States.

Petitioner was a Mexican citizen, admitted to the United States for permanent residence in 1956. In July 1969 he went to Mexico to visit his parents and a sister who was ill, and was absent for about a month. In January 1970 he was convicted in California of voluntary manslaughter of his former wife in September 1969. Section 241(a) (4) of the Immigration and Nationality Act provides that any alien shall be deported, upon the order of the Attorney General, who "is convicted of a crime involving moral turpitude committed within five years after entry and either sentenced to confinement or confined therefor in a prison or corrective institution, for a year or more. . . . " The sole issue was whether the petitioner's return to the United States, following his one-month

absence in 1969, constituted an entry under § 241(a) (4). Entry is defined in § 101(a) (13) of the Act, 8 U.S.C. 1101(a) (13), as any coming of an alien into the United States, except that an alien having a lawful, permanent residence shall not be regarded as entering if he can satisfy the Attorney General that his departure was "not intended or reasonably to be expected by him" or was not voluntary.

The Court noted that in Rosenberg v. Fleuti, 374 U.S. 449 (1963), the word "intended" in that section was construed as referring to "an intent to depart in a manner which can be regarded as meaningfully interruptive of the alien's permanent residence.” In Fleuti the absence had been for a few hours and the return to the United States under those circumstances had been held not to be an entry. In the case at hand the Court held that the thirty-day absence was substantial, knowing, and purposeful inasmuch as the petitioner had planned and saved for the trip for five years and had traveled 1,000 miles into the interior of Mexico. To the petitioner's assertion that he had never intended to abandon his residence in the United States, the Court replied: "That . . . is not the test. It is not abandonment of residence that constitutes a return to this country an 'entry.' It is a departure which is 'meaningfully interruptive' of residence."

Fraudulent Entry

On March 18, 1975, the Supreme Court in Reid v. Immigration and Naturalization Service, 420 U.S. 619 (1975), affirmed the decision of the United States Court of Appeals for the Second Circuit (see the 1974 Digest, pp. 100-103), that Section 241(f) of the Immigration and Nationality Act, as amended (66 Stat. 163; 8 U.S.C. 1101) did not apply to aliens who had gained entry by falsely representing themselves to be United States citizens.

The Immigration and Naturalization Service (INS), relying on Section 241(a)(2) of the Act, had instituted deportation proceedings against petitioners, husband and wife, who had entered the United States after falsely representing themselves as United States citizens, and thereafter had two children who were born in the United States. Section 241(a) specifies, inter alia, that an alien shall be deported who (1) at the time of entry was within a class of aliens excludable by the law existing at the time of such entry, or (2) entered the United States without inspection.

Petitioners contended that they were saved from deportation by Section 241(f) which provides:

The provisions of this section relating to the deportation of aliens within the United States on the ground that they were