 CHAPTER XA. THE ADMINISTRATIVE ADMINISTRATIVE AGENCY. The Commission recommends, one, that a commission on immigration and naturalization be created to be appointed by the President subject to Senate confirmation responsible for the administration of all immigration and naturalization laws, two, that present duplication of functions between the consular officers in the Foreign Service of the Department of State, and the immigrant inspectors in the Immigration and Naturalization Service of the Department of Justice be eliminated, and that a consolidated service under an administrator of immigration and naturalization responsible to the proposed commission be substituted, three, that a Board of Immigration and Visa Appeals be created under the proposed commission with final administrative appellate authority, except in cases involving the exercise of discretion, in all cases of visa denials, exclusions, deportations, and other related matters. PRESENT ADMINISTRATION OF IMMIGRATION ACTIVITIES Under present law, the various functions relating to immigration and naturalization are committed to two separate departments of government, both administering and interpreting parts of the same law and applying them to the same persons. THE IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE The Immigration and Naturalization Service exercises its functions in connection with the law, principally within the United States, in the admission or exclusion of immigrants seeking to enter this country, the apprehension and removal of deportable aliens, the conduct of naturalization proceedings, and the preparation of denaturalization cases. Federal administration in the field of immigration began with the Act of 1864, which established a commissioner of immigration whose function was to encourage immigration. This law was passed in a period of manpower shortage during the Civil War, and it was repealed in 1868. Thereafter there was no federal agency charged with the supervision of immigration until the first general immigration law of 1882 was enacted. The 1882 Act vested responsibility for its administration in the Secretary of the Treasury, but actual enforcement was entrusted to state boards or officers designated by him. Federal administrative enforcement began with the passage of the Act of 1891, when Congress provided that there should be in the Treasury Department a superintendent of immigration, whose title was later changed to that of Commissioner General of Immigration. The Bureau of Immigration was transferred from the Treasury Department to the Department of Commerce and Labor upon its establishment in February 1903. The Naturalization Act of 1906 inaugurated federal supervision of naturalization and established a consolidated agency known as the Bureau of Immigration and Naturalization. In 1913 the Consolidated Bureau was moved to the new Department of Labor and was divided into the Bureau of Immigration and the Bureau of Naturalization. At the head of the Bureau of Immigration was a Commissioner General of Immigration, while at the head of the Bureau of Naturalization was a Commissioner of Naturalization. Both bureaus were placed under the immediate direction of the Secretary of Labor. The two bureaus continued to function separately until 1933, when the President, acting pursuant to Congressional authority, directed by executive order that they be merged as the Immigration and Naturalization Service, headed by the Commissioner of Immigration and Naturalization. From 1933 until 1940 the service functioned under the direction of the Secretary of Labor. In 1940 the President submitted to Congress a reorganization plan which proposed to transfer the Immigration and Naturalization Service from the Department of Labor to the Department of Justice. The plan was approved and the transfer became effective June 14, 1940. Since then the Immigration and Naturalization Service has functioned as part of the Department of Justice under the direction of the Attorney General of the United States. Foreign Service, Department of State The Immigration Act of 1924 vests the performance of the visa function which consists of the granting or denial of visas in consular officers of the American Foreign Service abroad which operates under the control and direction of the Department of State. Under the Act of 1952 the authority to issue or deny visas is clearly and exclusively vested in the consular officers and the statute directs that they shall not be subject to the supervision of the Secretary of State in this regard. The requirement of a visa to enter this country is relatively new and dates only from World War I when it was established essentially as a wartime security device. This requirement to obtain visas from American consular officers abroad was given statutory recognition in the Act of 1918. Under the Immigration Act of 1924 however, immigrant aliens seeking to come to the United States were required to establish in advance their eligibility under all the immigration laws and to obtain a visa from an American consul stationed abroad before embarkation. An immigrant was prohibited from entering the United States unless he was in possession of an unexpired immigration visa. However, the issuance of such a visa by an American consular officer does not guarantee his admission to the United States. Other statutes have given additional responsibility under the immigration laws to the Secretary of State. Thus, under the Passport Act of 1918 as amended, the Secretary of State with the concurrence of the Attorney General is authorized during the time of war or emergency to describe classes of aliens whose entry would be prejudicial to the United States. The Alien Registration Act of 1940 empowers the Secretary of State in emergency cases to waive documentary requirements for aliens seeking to enter this country. To aid in the performance of the visa functions abroad under the immigration laws, a visa division was created in the Department of State. The visa division provides technical guidance and assistance to consular officers who themselves must determine initially the alien's admissibility to the United States. In the final report of the Senate Judiciary Committee following its recent study of the immigration system of the United States, the following recommendation was made. Because of the close relationship of the visa and passport divisions of the Department of State and their importance in the control of immigration problems, the subcommittee recommends the establishment of a Bureau of Passports and Visas as an independent unit of the Department of State, headed by a director with the rank of Assistant Secretary of State and subject to general supervision by the Secretary. To meet objections of the Department of State, the bill was revised to establish a Bureau of Security and Consular Affairs responsible to the Secretary of State and closely integrated within the Department's framework. It was enacted in this form in the Immigration and Nationality Act of 1952. Board of Immigration Appeals, Department of Justice A third agency which functions in the immigration process is the Board of Immigration Appeals. During virtually all of the period when the Immigration and Naturalization Service was in the Department of Labor, there was no independent Board of Appeals. Originally the Secretary of Labor was aided by an advisory committee in making his determinations under the Immigration and Naturalization Laws. In 1922 a five-man Board of Review was established in order to review all immigration cases and to make recommendations to the Secretary of Labor. The Board of Review had no power to make decisions, and was responsible to the Secretary of Labor whom it advised. The Board of Review offered an opportunity for oral argument, submission of briefs, and more careful consideration. Also it relieved the Secretary of Labor of the burden of considering a large volume of appeals. When the Immigration and Naturalization Service was established as a consolidated agency in 1933 the Board of Review became responsible to the Commissioner, and its recommendations were reviewed by him before being transmitted to the Secretary of Labor. With the passage of time the procedures and the anomalous position of the Board of Review were subjected to increasing criticism. In 1931 the Wickersham Commission, studying the enforcement of federal laws, advocated the creation of an independent tribunal so that the prosecuting and administrative functions in immigration matters would be completely separated from the judicial duties. The latter duties would be vested in an independent tribunal composed of men of judicial calibre to be appointed by the President. The Commission stated, the creation of such an independent tribunal for the determination of deportation cases seems to be the logical development of the present system itself. The Department of Labor has found it advisable to create a Board of Review within its own organization. As has been shown this Board has developed certain embryonic judicial tendencies, although the growth of these tendencies has been hampered by the subordinate position in the Department which the Board occupies. The next step in development seems clear. The dichotomy should be made complete. The Board of Review should be lifted out of its place in the Department of Labor and should be made an independent tribunal. Perhaps the closest analogy in structure to such a proposed tribunal is the Board of Tax Appeals, an independent governmental agency created by Congress in 1924. The Board neither initiates nor prosecutes the cases which are brought before it, but in effect sits as a court. Its hearings are public and its decisions are reported. It has some power of appointment and is working out an elastic organization. Appeals are allowed in the respective circuits. The independence of this Board and the satisfactory nature of its decisions are generally conceded. There seems to be no good reason why we should not proceed at least as far in the establishment of a satisfactory system with respect to the important personal rights involved in deportation as we have with respect to the property rights involved in taxation. From 1938 to 1940 the Secretary of Labor's Committee on Administrative Procedure made an exhaustive study of the Immigration and Naturalization Service. Its reports stressed the necessity of freeing the Board of Review from any other than quasi-judicial duties, stating that the agglomeration of duties placed on the members of the Board was indefensible, and that it is folly even to talk of fair hearing by individuals who are struggling under such a load. The several thousand of admissions and deportation cases which would be referred to the Board under the arrangements we are suggesting are as much as its members can possibly consider with any semblance of fairness. These recommendations were accepted and put into effect. In 1939 the Board of Review was removed from the control of the Commissioner and was made responsible only to the Secretary of Labor. When the Immigration and Naturalization Service was transferred to the Department of Justice in 1940 the Board of Review became the Board of Immigration Appeals and was placed under the immediate direction of the Attorney General. Unlike the Board of Review which could only make recommendations, the Board of Immigration Appeals was empowered to make final decisions subject to possible review by the Attorney General. Since 1940 it has continued to function as an arm of the Attorney General independently of the Immigration and Naturalization Service whose decisions it reviews. The Board of Immigration Appeals, composed now of a Chairman and four Associate Members, never has been recognized by statute. It continues to function at the pleasure of the Attorney General and for his convenience. Its jurisdiction is defined in regulations which have been changed on a number of occasions during recent years. Its primary function is to hear and decide appeals in exclusion and deportation cases. However, since there is no statutory restraint the Attorney General could at any time abolish the Board of Immigration Appeals or modify its jurisdiction in any regard he deems appropriate. Unnecessary Duplication of Functions The requirements of the Immigration Act of 1924 that approval must be obtained overseas before the alien could embark for the United States was an important improvement over earlier procedures. It enabled the alien to obtain an advance but not final determination of his eligibility before he pulled up his roots and undertook the long and expensive trip to the United States. While acknowledging the distinct advances in administration made possible by this improved procedure, many have pointed out the resulting disadvantages. There is an obvious duplication in function between the Consular Officer overseas and the Immigration Officer at the Port of Entry. The Consul must determine the alien's admissibility to the United States before he can issue a visa. The Immigration Official likewise must determine the alien's admissibility before he can permit him to enter the United States, both interpret and apply the same law. An additional consideration concerns the qualifications of Consuls to make such determinations. The Consular Function is an old and important one in international relations. The Consul's traditional duties have related primarily to protecting the property and personal interests of American citizens in foreign countries and to the promotion of trade and commerce. The function added, after World War One, of passing upon an alien's admissibility to the United States under the immigration laws has been regarded by some as a secondary one. The personnel to whom this function was assigned generally were insufficiently equipped at first by training and experience. Thus the Department of State has reported to the Commission that only three percent of visa officers have had legal training, despite the fact that the visa-issuing officer is required to deal with a great body of complex laws and regulations. It is important to note that the Consul's negative decision on a visa application is final and unreviewable. Soon after operations commenced under the Immigration Act of 1924, it became apparent that Consular officers often lacked adequate training and background to discharge their new responsibilities under the immigration laws. These deficiencies resulted in a considerable volume of rejections at ports of arrival in the United States of aliens who had been granted visas. In order to aid the Consul's immigrant inspectors were sent abroad in 1925 under an agreement with the Department of State, and were attached as technical advisors to the Consulates at London, Southampton, Liverpool, Glasgow, Belfast, Dublin, and Queenstown. Although the Consular officer had final authority in determining whether a visa was to be issued, he was usually guided by the advice of the immigrant inspector. This system was successful in operation and was extended to the Scandinavian countries, Poland, Czechoslovakia, the Netherlands, Belgium, Italy, Germany, and Austria. The reduced immigration during the depression of the 1930s resulted in a decrease in the number of technical advisors. In 1934, for example, there were nine immigration technical advisors stationed in Europe, each of whom was assigned to areas in Europe and traveled on a circuit between the different consulates in that area. The technical advisor system was terminated at the outbreak of World War II in Europe and has not since been reinstated. During the Displaced Persons Program, immigration inspectors were stationed overseas and, in effect, passed upon the immigrant's admissibility after documentation with a visa, just as is ordinarily done at American ports of entry. In 1949, the Hoover Commission on Organization of the Executive Branch of the Government recognized the deficiencies of the present system under which there is a dual control of immigration and recommended that the visa division of the Department of State be transferred to the Department of Justice. The Hoover Commission made two pertinent recommendations. One, the State Department as a general rule should not be given responsibility for the operation of specific programs whether overseas or at home. Two, the functions of visa control should be transferred from the State Department to the Justice Department. The Hoover Commission Task Force report on foreign affairs elaborated in two statements. One, all visa responsibility, therefore, except with respect to diplomatic visas, should be placed in the Justice Department. Visa work presently performed by the Foreign Service abroad should be continued but in accordance with policies established by the Justice Department in consultation with the State Department. Two, the logical solution to the visa problem lies in the transfer of the visa division functions to the Department of Justice. Diplomatic visas, however, should remain under the jurisdiction of the Secretary of State. Following publication of the Hoover report, the Department of State organized several committees to study the various recommendations. One of these committees was the Visa Task Force which presented its findings in a report, March 31, 1949, in answer to the Hoover Commission recommendations on location of the visa functions. This State Department report counseled against acceptance of the Hoover Commission's recommendation to consolidate immigration functions. The study of the Senate Judiciary Committee, which preceded the introduction and enactment of the Act of 1952, likewise took cognizance of this duplication. However, the committee declined to recommend any substantial changes, and stated, among the principal points of criticism aimed at the present immigration structure has been the contention that the multiplicity of control by several agencies of various immigration activities should be eliminated. In general, the subcommittee has come to the conclusion that although there are some points in the mechanism where coordinated action is necessary and duplication must be eliminated, the overall structural pattern ought to be maintained. The subcommittee is persuaded to the position on the grounds that, one, the distribution of responsibility places additional barriers in the way of undesirable aliens, additional fences of protection which the alien must surmount, and, two, the present system operates satisfactorily and the suggested modifications will eliminate most of the existing difficulties. The Senate Judiciary Committee likewise addressed itself specifically to the recommendations of the Hoover Commission, and stated, the subcommittee has given serious consideration to the proposal advanced by the Hoover Commission for a transfer of the visa division to the Department of Justice and its merger with the Immigration and Naturalization Service. As already pointed out, the subcommittee is persuaded to continue the visa process separate from the immigration procedure as an additional barrier to the entry of inadmissible aliens. The Act of 1952 made no appreciable change in the organizational setup, except to establish in the Department of State a Bureau of Security and Consular Affairs. Provision was made within that Bureau for a general counsel of the visa office, authorized to maintain liaison with the appropriate officers of the Immigration and Naturalization Service, with a view to securing uniform interpretations of the provisions of this Act. Feasibility of Consolidating Functions All witnesses who addressed themselves to this problem in the Commission's public hearings urged that the functions of consular and immigration officers should be consolidated. The Commission agrees that this is a desirable goal. There is no reason why there should be two independent determinations on the same issue, except upon the basis of mistrust and fear. Every national purpose would be fully served by one thorough and trustworthy examination and determination. The best available information indicates that this costly, unwieldy, and un-business-like duplication serves no reasonable purpose. It is hardly more than a historical accident which has become to some a principle. An informal study in the Department of State a few years ago disclosed that in less than one-half of one percent of all cases where visas were issued by consular officers were the applicants rejected at ports of entry in the United States. The 1951 annual report of the Immigration and Naturalization Service supplied the following information concerning the number of aliens excluded at the border. Table 13, Aliens Excluded from the United States by Cause, year ending June 30, 1951. For all causes, total number excluded 5,647. Of those, 1,868 border crossers, that is, aliens seeking admission at land borders for less than 30 days, and 3,784 other aliens. Broken down by cause. Without proper documents, total 3,963. 1,180 border crossers, 2,783 other aliens. Criminals, total 610, 273 border crossers, 337 other aliens. Mental or physical defectives, 434 total, 97 border crossers, 337 other aliens. Subversive or anarchistic, total 165, 136 border crossers, 29 other aliens. Stowaways, total 121, no border crossers, 121 other aliens. Had been previously excluded or deported, total 119, 72 border crossers, 47 other aliens. Likely to become public charge, total 116, 38 border crossers, 78 other aliens. Immoral classes, total 38, 23 border crossers, 15 other aliens. Previously departed to avoid military service, total 14, 10 border crossers, 4 other aliens. Unable to read over 16 years of age, total 3, no border crossers, 3 other aliens. Contract laborers, total 1, no border crossers, 1 other alien. Other classes, 63 total, 34 border crossers, 29 other aliens. Excluding from consideration border crossers and aliens without proper documents, this table reveals that during 1951 approximately 1000 aliens in possession of visas were excluded by immigration officers at the ports of arrival in the United States. The extent of unnecessary duplication is revealed when this is compared with some 206,000 immigrants admitted during that same period, in addition to visitors. In the commission's opinion, this duplication in visa issuance and immigration examinations is wasteful and unjustifiable. The commission cannot subscribe to the sentiment that this obstructive process is required as an additional barrier to the entry of inadmissible aliens. By the same token, such additional barriers can operate also to shut out desirable aliens. The relatively few inadmissible aliens it has stopped could be dealt with by a unified and more effective administration. Similarly, the commission is not impressed with the State Department's suggestion that the conduct of foreign relations requires the issuance of non-diplomatic visas by consular officers. The consular function did not until 1924 include the issuance of immigration visas, nor is the State Department suggesting that foreign policy requires the determination of admissibility by consular officers at the port of entry in the United States. The time has come to terminate the unnecessary and costly obstructions established by the duplication of visa and immigration examinations. This could be accomplished by eliminating overlapping and duplication through unifying these functions in a single process. The result will be a more effective administration of the law, a saving of government expenditures, and a better location of administrative responsibility. Operation of the Proposed System The commission agrees with the Hoover Commission that a large program of such an administrative operation as the immigration law has no place in the Department of State, whose primary responsibility is the conduct of foreign relations. The commission recommends that the primary determination overseas of an alien's application for a visa to the United States should be made by officials of the same agency which determines admissibility at the ports of entry. Presentation of such a visa at a port of entry in the United States should entitle an alien to be admitted without further inquiry except as to, one, identity, two, any medical condition developed since the visa was issued, and three, any evidence relating to subversive activities not previously considered. The commission believes that there should be no substantial difficulty in establishing such a system of unified determinations in foreign areas where there are large volumes of applications for visas. In such places visa issuance is a full-time job for visa officers. There may be some rearrangement necessary for operation in isolated areas from which few applications for visas originate, and where, therefore, full-time visa officers are not stationed. This is a problem of administrative management, susceptible of a variety of solutions. The commission believes that in such areas the agency responsible for the consolidated functions could follow the normal procedure used by many government agencies in connection with overseas activities. The consular officer could be designated as an agent of the immigration authorities to receive the application, which could then be forwarded with the requisite documents and evidence to the nearest overseas regional office of the consolidated agency. The determination would be made by an officer stationed in such a regional office. If the evidence is incomplete he could request the consul to conduct any additional interrogation or investigation deemed necessary, or, if advisable, the consular officer could, in these few cases, be authorized to act on behalf of the consolidated agency. It has been suggested that there may be some difficulty in stationing officers of the consolidated agency in some foreign countries. Immigration officers have already performed duties under our immigration laws in Germany, Great Britain, Canada, Italy, and in other countries. To satisfy any requirements of protocol such officers could be attached for technical purposes to our embassies or other accredited offices with conventional titles. The differences between present procedures and the consolidated procedure that Commission has recommended, including suggested appellate procedures, are illustrated in Chart 1. Chart 1. Comparison of present and proposed procedures. Type of action. Overseas, action on visa. Present program by American consular officer. Proposed plan by officer of proposed commission. Overseas appeal. Present program, no regular appeal provided. Proposed plan, appeal to statutory board of immigration and visa appeals. At port of entry, action on admission. Present program by immigration inspector with complete authority to review consular action. Proposed plan by inspector but limited to one identity, two health, three security. At port of entry, determination on questionable cases. Present program to board of special inquiry after December 24, 1952, to single special inquiry officer. Proposed plan to hearing officer under board of immigration and visa appeals. Type of action, appeal, initial. Present program to nonstatutory board of immigration appeals. Proposed plan to statutory board of immigration and visa appeals. Final appeal, present program, no further appeal but board of appeals may certify immigration cases to attorney general and attorney general may review on own motion. Proposed plan, review by proposed commission in selected cases involving discretionary relief. The consolidation of all immigration functions in one responsible agency is an essential aspect both of the new approach to immigration which the commission believes to be long overdue and of the efficiency in government which it was the purpose of the Hoover commission to reach. Whatever mechanical difficulties may arise from such a consolidation could with proper spirit and good will be overcome completely and promptly. End of Section 15. Recording by Maria Casper. Section 16 of Whom We Shall Welcome. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer please visit LibriVox.org. Whom We Shall Welcome. Report of the President's Commission on Immigration and Naturalization. Part 4, Chapter 10b. Proposed Administration of Immigration and Naturalization. Nature of Functions. As conceived by the commission there are three major functions to be performed by administrative officials of the government in the field of immigration and naturalization. 1. Enforcement. This includes visa issuance, inspection and exclusion at ports of entry, policing, investigation, deportation, administrative prosecution, and the administration of the naturalization laws. 2. Adjudication. This includes the determination of cases and of their appeals within the administrative process. 3. Policy Determination. This includes overall policy formulation, the issuance of regulations for allocation of visas within the statutory ceiling subject to change by the President and disapproval by the Congress, and making reports and recommendations to the President and Congress. Another aspect of this problem relates more to attitude than to specific functions. The commission is impressed by the suggestions it received that the administration of immigration laws should be such as to develop and maintain an atmosphere and spirit of friendship for immigrants. Whatever the cause, and often it is beyond the control of the administrative officials, the fact seems to be that the administrative procedures are unsatisfactory and are productive of unnecessary and wasteful delays and embarrassments at home and abroad. This factor is an important consideration in the development of any administrative structure in the field of immigration and naturalization. 3. Location of Functions. Throughout the course of Federal Immigration Administration there has been no certainty as to the proper place of immigration functions. Originally immigration enforcement was assigned to the Treasury Department. In 1903 it was transferred to the Department of Commerce and Labor. It was moved to the Department of Labor in 1913 and in 1940 it was shifted to the Department of Justice. Through the years immigration and naturalization functions have been handled either by two bureaus or by a single bureau. The review process was non- existent, then advisory, later part of the Immigration and Naturalization Service, and finally directly under the head of the Department. Additional proposals to shift immigration and naturalization functions from the Department of Justice to another agency have been made from time to time. During the Commission's hearings there was a diversity of sentiment on this subject. Some proposed that the Immigration and Naturalization Service be returned to the Department of Labor. Others suggested that a new agency be created. Still others urged that the matter be let alone. The Commission's recommendations introduce a new function not now vested in either of the two departments. This new element, the allocation of visas, requires reconsideration of the entire matter, since it is no longer a question of old functions remaining in Justice or State Department, but rather where new and consolidated immigration functions are to be placed. The Commission has already expressed agreement with the Hoover Commission that it is inappropriate to put these functions in the Department of State. In its recommendation that they be assigned to the Department of Justice, the Hoover Commission naturally did not consider the proposed new functions of visa allocation. It may be argued that these combined functions should be vested in the Department of Justice because the immigration law involves responsibilities related to the national security and that these logically fit into the Justice Department's sphere of activity. The Commission believes, however, that the arguments to the contrary are more persuasive. Presumably the primary security tie to the Department of Justice would be the necessity of close relationship with the Federal Bureau of Investigation. Actual practice, however, does not justify such an argument. The Immigration and Naturalization Service conducts its security functions through its own investigative unit, which is completely separate from the Federal Bureau of Investigation. Its liaison with the Federal Bureau of Investigation could be just as close if the two investigative units were in different agencies. Furthermore, security functions concerning immigration were performed effectively by the Displaced Persons Commission and were closely related to the Federal Bureau of Investigation, the Central Intelligence Agency, and the Immigration and Naturalization Service, although the Displaced Persons Commission was an independent agency. The Department of Justice is primarily a litigating and prosecuting agency. It includes the Federal Bureau of Investigation and the Administration of Federal Prisons. But these are natural arms of its prosecuting functions. There seems to be no good reason why the Department of Justice should be concerned with such matters as the allocation of visas to such preferential groups as may be authorized by Congress, with the issuance of visas to individual applicants abroad, and the subsequent operations at ports of entry, or with citizenship education. None of these matters has any real relationship to the normal operations of the Department of Justice. The added responsibilities proposed by this commission remove it further from such relationships. On the other hand, there is every reason why many determinations made under Immigration and Naturalization laws should be removed from control by the Department of Justice. The Immigration and Naturalization Service has its own legal staff, separate from the various divisions of the Department of Justice, and conduct such matters in the same manner and to the same extent as do other departments of the Federal Government. If the existing and proposed new functions were combined in an independent agency, the Department of Justice would continue to handle at higher levels litigation originated in or with the independent agency in the same manner as is now done for other departments and agencies. There are those who believe that one of the present causes of criticism of the Immigration laws stems from the fact that the administration of those laws is centered in a prosecuting and litigating agency. No sound argument has been advanced for keeping it where it is. The new and combined functions do not properly fit in the Department of Justice. Nor is the commission convinced by those who urge returning the Immigration Authority to the Department of Labor. This is not to say that the Department of Labor has no interest in the subject, but the major aspects of Immigration and Naturalization policy and Administration are largely unrelated to the responsibilities of the Department of Labor. Furthermore, the Immigration policy of the United States cannot be based solely upon manpower or labor considerations, although such factors are undeniably important. Another suggestion is that Immigration and Naturalization functions should be located in the Federal Security Agency. That agency already plays a role in the Immigration process through the medical examinations of immigrants by the Public Health Service and because of the requirement of the Act of 1952 for reports on Social Security information for the Immigration and Naturalization Service. It is argued that such a change would be desirable in the light of the Federal Security Agency's interest in people as such, whether aliens or natives. The fact is, however, that the Administration of the Consolidated Immigration and Naturalization functions, coupled with the new responsibility for visa allocations, does not properly belong in any existing Department or Agency. It touches upon many, must work closely with some, but really has no basic connection to the primary responsibilities discharged by any of the other Departments and Agencies. The result is that the problems relating to Immigration and Naturalization do not command adequate thought and attention of the Cabinet Officers under whom either the Immigration and Naturalization Service or the Visa Division have been placed. Independent Agency. This leaves only one other alternative, an Independent Agency. As a general proposition, the Commission recognizes Government Administration should be organized within Departments under the supervision of Cabinet Officers, but this administrative design gives way to the principle that in a democracy, content should prevail over form. And so the Congress has established the Interstate Commerce Commission, the Federal Power Commission, and the Federal Communications Commission, among others which are not within Cabinet Departments. These Agencies, as with the proposed Consolidated Immigration Agency, exercise legislative, quasi-judicial, and administrative functions. Everyone will agree that the interests of the people are best served by that form of Governmental Administration which most effectively accomplishes the Governmental Purpose, and not that which is motivated purely by administrative expediency. The Commission believes that the major Immigration functions described in this report can be performed most effectively through an Independent Agency. The duties are so important, particularly in connection with the Visa Allocation Authority, that the public interest requires a definite pinpointing of responsibility, as well as the full-time attention which a Cabinet Officer cannot give. The Commission believes that the creation by Congress of a new and Independent Immigration Agency will assure the development of that fresh approach needed to change our immigration policy from a negative to a positive force. The expert study, knowledge and experience required for Visa Allocation Decisions, and for reports to the President and Congress, coupled with other proposed new and highly important administrative and appellate duties and powers, make it advisable, if not mandatory, that such authority be exercised by an Independent Agency headed by a Commission. Commission on Immigration and Naturalization The Commission recommends the establishment of a new and permanent Commission on Immigration and Naturalization to have control and supervision over the entire field of Immigration and Naturalization. This proposed Commission would be composed of three, five or seven members, as Congress may determine. They should be appointed by the President, subject to Senate confirmation. Under this proposed Commission, there would be an Administrator of Immigration and Naturalization appointed by and responsible to that Commission, and who would be charged with all phases of Administration and Enforcement, completely separate from the Administrator, but also appointed by and responsible to the proposed Commission, would be a Board of Immigration and Visa Appeals. That Board would have final authority to make necessary administrative adjudications in exclusion and deportation cases, subject only to a limited appeal to the proposed Commission in cases involving the exercise of discretion, but not on questions of law or fact, whenever that Commission agrees to accept such appeals. In addition to exclusion and deportation cases, the Board would hear appeals in visa cases and would also determine whether an alien may be excluded without a hearing in security cases in the manner described in Chapter 15. The Commission believes that such a plan would mark an important advance from the existing scheme of organization. It would produce much more effective and coordinated administration, and would assure the required high-level consideration of allocations to be made within the unified quota system. It would bring the immigration process into line with the separation of functions contemplated by the Administrative Procedure Act, generally recognized as the norm of fair administrative organization. If this Commission's recommendation for the creation of an independent Commission on Immigration and Naturalization is adopted, provision should be made for the personnel now employed by the Immigration and Naturalization Service and by the Visa Division, performing functions affecting immigration in Washington and in the Consular Offices overseas. The present employees of the Immigration and Naturalization Service should be transferred to the proposed Commission and assigned duties under the proposed Administrator of Immigration and Naturalization. Present staff of the Board of Immigration Appeals and hearing examiners of the Immigration and Naturalization Service should also be transferred to the new Commission and assigned to duties under the proposed Board of Immigration and Visa Appeals. The transfer of personnel working on Visa matters in the Department of State and exercising the Visa function abroad, likewise should present no serious difficulty. It should be ascertained which employees in the Bureau of Security and Consular Affairs and which of our Consular Officers in foreign countries are engaged primarily in Visa activities. Such employees should be transferred to the new Commission. Moreover, any transfer of personnel from the Department of State and the Department of Justice to the new Commission should be made without prejudicing any status, rights, or privileges of such employees. All pertinent records and files should be transferred to the proposed Commission, along with the transfer of functions and staff now vested in other agencies. Chart 2 Portrays the Plan of Organization Suggested by the Commission. Chart 2 Proposed Administrative Agency Commission on Immigration and Naturalization. 1. Makes Visa Allocations Subject to Review by President and Congress. 2. Makes Study of All Phases of Immigration and Naturalization and Sets Policy. 3. Reports Periodically to the President and Congress on Immigration and Related Matters. 4. Supervises the Administrator of Immigration and Naturalization. 5. Reviews decisions of the Board of Appeals on questions involving exercise of discretion in cases in which it agrees to accept such appeals. Administrator of Immigration and Naturalization. In charge of all activities relating to the Administration and Enforcement of the Immigration and Naturalization Laws, including 1. Visa issuance overseas. 2. Preliminary inspection at Port of Entry. 3. Investigations. 4. Physical Detention and Deportation. 5. Border Patrol. 6. Administration of Naturalization Process. 7. Citizenship Education. 8. Preparation and Presentation of Evidence before Hearing Officer and Board. 9. Routine Determinations in Cases Not Requiring Hearings. 10. Preparation of Materials for Commission's Use in Making Visa Allocations. Board of Immigration and Visa Appeals. 1. All Appeals from Hearing Officers. 2. All Appeals in Visa Cases. 3. All Final Determinations that Hearing on Exclusion is to be denied on Confidential Information. 4. Such questions as are referred to the Board by the Commission for Advanced Determination. Hearing Officers. Conduct Administrative Hearings and Make Determinations in Exclusion and Deportation Cases and in all quasi-judicial matters arising under Immigration and Naturalization Laws. End of Section 16. Recording by Maria Casper. Section 17 of Whom We Shall Welcome. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Whom We Shall Welcome. Report of the President's Commission on Immigration and Naturalization. Part 4. Chapter 11a. Fair Hearing and Procedure. Americans treasure a person's privilege to fair consideration in proceedings conducted by a government official. The concept of fair dealing is enshrined in the Bill of Rights, which guarantees that no man shall be deprived of his liberty without due process of law. It is rooted in centuries of solid experience in Anglo-Saxon law. Testimony given at the Commission's hearings contains complaints by reliable witnesses to the effect that important aspects of our procedure for the consideration of applications by aliens to come into and of their right to remain in the United States are not fair. There are several problems which arise in this connection. First, the present lack of any formal review of a consular denial of a visa. Second, the adequacy of the procedure for review of exclusion and deportation orders. And third, the nature of court review of administrative decisions. Each of these problems involves the fairness of consideration given to an alien. The Commission recommends review of consular decisions that the denial of a visa to enter the United States should be subject to review by a Board of Immigration and Visa Appeals. Fair hearing and procedure in exclusion and deportation that a Board of Immigration and Visa Appeals be established by statute to be concerned exclusively with the adjudication of cases arising under the immigration laws. That hearing examiners in exclusion and deportation cases be separated from enforcement functions and placed under the supervision of the Board of Immigration and Visa Appeals. That deportation hearings be conducted in conformity with the Administrative Procedure Act. That the caliber of hearing examiners be improved. Judicial review. That an exclusive statutory form of judicial review be established in deportation cases. That habeas corpus continue to be the form of judicial review in exclusion cases. That there be no judicial review of actions denying a visa. That the courts be specifically authorized to decide whether denials of bail pending determination of deportability are arbitrary or illegal. Review of consular decisions. The preponderance of the testimony before the Commission is to the effect that in giving complete and unreviewable authority to consular officers the law and practice fail to conform with traditional American reliance upon fair hearings as a safeguard against abuse of power. Present system. Under the present system the Council occupies a unique position in American law and practice. By express provision of law no one can review his decision on a visa application. The Secretary of State is charged with the General Administration of the statutory provisions relating to the duties and functions of diplomatic and consular officers of the United States. However the Secretary of State has no power to control or direct the consuls in certain visa activities. The Act of 1952 made crystal clear the finality of the consular officer's power in visa issuance. By specifying that the Secretary of State could control all consular activities except those power's duties and functions conferred upon the consular officers relating to the granting or refusal of visas. It was repeatedly testified at the Commission's hearings that such administrative absolutism was unparalleled in the whole range of American law. In the Senate Judiciary Committee's study the Chief Purpose for vesting such complete authority in a subordinate official doubtless was the Committee's desire to place additional barriers in the way of undesirable aliens, additional fences of protection which the alien must surmount. The Committee evidently was unconcerned with the desirable aliens whose application might be improperly or unfairly denied if the consul's decisions were not reviewed. The Committee stated, the subcommittee concludes, however, that to allow an appeal from a consul's denial of a visa would be to make a judicial determination of a right, when in fact a right does not exist. An alien has no right to come to the United States and the refusal of a visa is not an invasion of his rights. Permitting a review of visa decisions would permit an alien to get his case into United States courts, causing a great deal of difficulty in the administration of the immigration laws. Every witness before the Commission who discussed the consul's absolute authority criticized it without reservation. The Chairman of the Committee on Immigration and Naturalization of the Administrative Law Section of the American Bar Association said, It has become a fundamental premise of our jurisprudence that the decision of weighty matters should almost never be placed in the power of a single individual free from the control of a superior reviewing body. We search in vain for any parallel in our institutions for this despotic consular absolutism. Relatively few decisions, even of federal judges, are free from the possibility of appellate revision. But the consul is not only immune from review, but from any other kind of check, even of publicity. If there is such a thing as an axiom of law, it is that where there is power there must be safeguards against the abuse of power. We have no doubt that consul's as a group are as conscientious and honorable as any other group of government officials. We may even assume that they are much more so. Still it is indefensible to give any man acting in secret in a remote land autocratic power to grant or withhold a privilege of such enormous value as that of entrance to this country. issuance or denial of a visa frequently involves complicated legal problems of eligibility and determinations of foreign law, such as whether a crime has been committed. Yet as stated elsewhere, only three percent of consular officials are attorneys. Consular officials are required to decide whether a prospective immigrant is likely to become a public charge, medical questions, complicated security issues, occasionally involving knowledge of foreign political, economic, and social movements, and a host of other issues involving technical knowledge and the wise exercise of discretion. And yet the visa-issuing consular officers are generally junior and subordinate officers in our consulates. An assignment to visa-issuing duties is not always regarded as a desirable post within the foreign service. The commission finds no persuasive reason why the determinations of a consular officer in visa cases should not be reviewed. The commission assumes that all consular officers are loyal, disinterested public servants, but human beings do err in interpreting law and assessing facts. It is undesirable to permit the possibility of control of human destinies by caprice, prejudice, or mistake, subject to no regulation or review. The commission is informed that existing practices permit some opportunities for informal reconsideration. However, such reconsideration, which is generally limited to aliens who are able to interest sponsors, attorneys, or members of Congress in their case, is palpably inadequate. The commission recommends that a formal appeal procedure be established by statute, giving opportunity for appeal on the denial of a visa, precedence for review of consular action. The commission has sought advice from those urging such review as to the methods by which it should be established. The commission is convinced that there are no substantial practical difficulties to be encountered in establishing such a review procedure which cannot be easily overcome. As a matter of fact, procedures have been established in comparable situations which are precedents for the commission's recommendations. World War II visa review procedures. Elaborate procedures to review applications for visas were in effect during World War II. Under such procedures, with few exceptions, all visa applications of aliens seeking to enter the United States, whether for temporary or permanent stay, had to be submitted in advance for central clearance in the Department of State. Such consideration was limited to security factors, and the determination was only as to whether the entry of the applicant would be prejudicial to the safety of the United States. The procedure for such review of prospective visa action required the alien to submit detailed information in writing. In addition, the review agencies had a complete record which included such items as recommendations from the consular officer handling the case abroad, intelligence reports bearing upon the alien concerned, statements and affidavits from the sponsor and others, and miscellaneous information regarding the alien and his sponsors. Three distinct visa review bodies were set up in this wartime procedure. The first was composed of interdepartmental committees comprising one representative from the Departments of State, War and Navy, from the Federal Bureau of Investigation, and the Immigration and Naturalization Service. These committees made recommendations to the Secretary of State. If accepted, they were sent on to the visa-issuing officers as advisory opinions. If rejected, the cases went on to the second link in the chain of review procedures, the interdepartmental visa review committees, composed of representatives of the same government agencies involved in the first committees. Here, oral argument and representation by attorneys was allowed. If the committee's opinion in any case was accepted by the Secretary of State, it became the department's advisory opinion. If not, the matter was referred to the third and last stage, the Board of Appeals, on visa cases, which considered the whole file. The Board of Appeals was composed of two persons appointed by the President with an alternate. It held no hearings and cases were decided on the basis of the written records, including statements and other materials available to the other review committees. The Board of Appeals operated for about three and a half years, from November 1941 to June 1945, and made definitive recommendations in 22,622 cases. In only one case did the Secretary of State not follow its recommendation. In over 73% of the cases, the Board of Appeals affirmed the interdepartmental visa review committees. In 26% of the cases, it recommended in favor of the visa applicant after the review committee had recommended otherwise. Present Visa Review Procedures Information supplied by the Chief of the Visa Division in the Department of State indicates that there is now in existence an informal procedure to review determinations in visa cases, both in advance of such determinations and after they are made. One entails a review by the Visa Division of the Department of State of visa cases still in the course of processing at a consular post abroad prior to final action by the Visa Officer. In certain categories of cases, such a review is mandatory. The other entails a review by the Division after final action has been taken by a Visa Officer in issuing or much more often in refusing issuance of a visa. Any visa case still under active consideration and before final consular action has been taken is reviewable either by the Visa Officer concerned or his superiors in the field or by the Visa Division upon request of the applicant or persons interested in his behalf upon presentation of good and sufficient reason. However, it is comparatively rare that such a request will be made by the applicant or other interested parties while the case is in progress. Although in theory there is a review of consular action prior to final determination, in practice this is a reconsideration requested either by the consul or his superior in the nature of purely administrative supervision and not a review requested by the applicant immigrant. The Chief of the Visa Division of the Department of State also advised the Commission of the procedures in effect concerning cases in which action has already been taken on a visa application. In cases of refusal, where there is more than one consular officer at a post, the refusals may be reviewed by such second officer as well as by the supervisor, all refusals of visas are reported to the Department with explanatory information. In addition, upon request by members of Congress, attorneys or other individuals on behalf of an alien, the case may be reconsidered in the Visa Division. However, there is no established or published procedure for the reconsideration of final consular action denying visas nor any power to reverse the original decision. Occasionally the file is sent for, and then each case is handled as a specific problem, but in any event this review process is inadequate because at most it can only result in an advisory opinion and the issuing consul cannot be directed to reverse his determination. These two so-called review practices are not in any sense appellate reviews, rather they partake largely of the nature of management or administrative supervisory and reporting devices. Neither procedure meets the normal requirements for fair administrative review of decisions, for the following reasons. One, the alien is not given a right of review in his case. Two, there is no definite review or appellate procedure. No specific review panels, appeal boards, or other similar formally established bodies function. If there is any review at all it may be made individually by an officer of the division, or by the chief of the division, or by an ad hoc panel of several division officers, depending upon the importance or complexity of the case. Three, there is no published information on the opportunity for such review or the steps to be taken to obtain it. The procedure is based on unpublished departmental instructions to its staff. Four, the consul is not bound by the advisory opinion. If the existence of these generally unknown and diverse methods of review have any value in this connection, it would seem that they are precedents for the creation of a more formal and improved review, one that would meet the test of fairness. One of the administrative problems to be solved in establishing a formal review procedure is the nature of the record upon which such review can be had. This problem apparently has been satisfactorily solved in the existing procedure for reconsideration of consular action. In such instances the record of a case submitted for reconsideration consists for the most part of the applicants dossier. This includes the data relating to him personally, biographical information and background data, together with statements offered in his behalf by interested parties, recommendations by the VISA officer abroad, and in general all material which bears directly upon the issue which enables the reviewing authority to formulate a reasoned advisory opinion. If the case is being reviewed on security grounds, the record must contain all data obtainable which relates to the applicant's status as a possible security threat, including intelligence agency reports and results of other investigatory bodies inquiries. If the financial responsibility of the sponsor is in doubt, then the record will include all possible available data relating to his financial status, so that the reviewing authority may decide if sufficient financial ability and responsibility is indicated. Review of cases involving claims to American citizenship. In addition to the precedents and procedure for reconsideration of consular VISA actions, there also are procedures to review consular actions in connection with passports. One, Board of Review. Since 1941 procedures have been available in the Department of State, permitting review of consular decisions denying passports. A Board of Review in the passport division was then established to consider appeals which deny an American passport to a person abroad claiming United States citizenship. The Board of Review has adopted no formal rules of procedure. The person's concerned may have their cases considered upon the basis of the material constituting the existing record, plus any additional evidence they may desire to submit, or they may request a formal hearing at which witnesses may appear and the interested person may be represented by an attorney. The Commission is informed that the facts in the Department's possession are disclosed in such hearings, and that the person concerned is given full opportunity to present his case. Board of Passport Appeals. As a result of considerable public criticism of the procedures of the Department of State in denying passports for security reasons, echoes of which appeared in the testimony before the Commission by some of our outstanding scientists, a Board of Passport Appeals was established by the Department of State in August of 1952. Provision is made for tentative disapprovals of passport applications accompanied by notice in writing of the tentative refusal and of the reasons on which it is based, as specifically as in the judgment of the Department of State secrecy considerations permit. The applicant is entitled to appeal to a hearing officer of the passport division to be represented by counsel and to submit affidavits and other evidence. If the decision of the passport division is adverse, the applicant is informed of such action and of his right to appeal to the Board of Passport Appeals. The Board is authorized to publish its rules of procedure and accords the applicant the right to a hearing and to representation by counsel. This Board's jurisdiction includes appeal from actions by consular officers in denying passports for reasons of national security. The Board of Review has jurisdiction to review actions by consular officers denying passports because of doubts as to American citizenship. 3. Denials of Certificates of Identity The law provides for the issuance of a certificate of identity to a person in a foreign country whose claim to United States citizenship is rejected and who desires to proceed to the United States in order to attempt to obtain a judicial declaration confirming his claim to American citizenship. The statute specifically provides that such an individual is entitled to appeal to the Secretary of State from a decision of a consular officer denying a certificate of identity. Where a consular officer refuses a certificate of identity and an appeal is taken to the Secretary of State, the case is reviewed in its entirety by the passport division. These precedents indicate the feasibility of procedures for reviewing consular actions on visa applications. 4. Recommendations The commission is convinced that there is no substantial reason for continuing the present system under which the consular officer's determinations in visa cases are final and not reviewable as of right. The Board of Immigration and Visa Appeals, the creation of which is proposed by this commission, should have the statutory authority to review all denials of visas with full authority to reverse such actions and direct issuance of visas. Where a visa is denied, either formally or informally, the alien should be informed in writing of the basis for such denial and of his right to have the matter reviewed by the proposed Board of Immigration and Visa Appeals. Upon the filing of such an appeal by an alien with a visa issuing officer, the latter should be required to forward to the Board a written report, accompanied by any pertinent affidavits or documents describing the facts and the basis for his action. There should be no requirement of a formal hearing before the visa issuing officer. The alien should not be authorized to come to the United States merely for the purpose of presenting his appeal. The alien should be entitled to know the grounds for refusal, except such as are determined by the Board to be unavailable for security reasons. The alien should be entitled to representation by counsel before the Board. End of Section 17, Recording by Maria Casper. Section 18 of Whom We Shall Welcome. Whom We Shall Welcome, Report of the President's Commission on Immigration and naturalization. PART IV CHAPTER XI B FAIR HEARING AND PROCEDURE IN EXCLUSION AND DEPORTATION Consular decisions concerning a visa take place outside of the United States and before an alien has severed his ties abroad. Immigration authority decisions on exclusion take place when the alien reaches the shores or borders of this country. Actors of deportation affect aliens already resident in the United States. Current hearing procedures. Exclusion. Examination upon arrival. No alien may legally enter the United States unless he undergoes examination and inspection by the Immigration and Naturalization Service acting for the Attorney General. Since 1893 Congress has provided for administrative hearings in cases of arriving aliens whose admissibility to the United States is questioned. The courts have declared that such hearings, whenever provided, must be fairly conducted and that exclusion can be ordered only on statutory grounds. Each such hearing is conducted by a special inquiry officer, previous to December 24, 1952, the effective date of the Act of 1952. The hearings were conducted by three member boards of special inquiry stationed throughout the United States. The procedure on the alien's arrival is set out in considerable detail in the statute. If the alien's right of entry is in doubt, the immigration officer may order his temporary removal for detention at a designated place. But such removal is not considered a landing in the United States. If the immigration officer questions the applicant's right to enter, he must refer the case to a special inquiry officer for a hearing. Proceedings before the special inquiry officer are conducted under oath and his determination must be based solely on the evidence produced at the inquiry. At such hearing, the alien may be represented by counsel. A complete record is made of the proceedings and of all evidence produced by the government and by the alien. The alien has a right to appeal to the Board of Immigration Appeals in the Department of Justice from the Exclusion Order of the Special Inquiry Officer. The filing of an appeal stays the execution of the Exclusion Order until a final decision is rendered. The decision on appeal must rest solely on the evidence adduced before the Special Inquiry Officer. Decisions of the Board of Immigration Appeals may be certified to the Attorney General for further review in exceptional cases upon request of the Attorney General, the Board, or the Commissioner of Immigration and Naturalization. Simultaneously with the inspection by immigration officers, persons seeking to enter the United States are required to undergo a physical and mental examination by medical officers of the United States Public Health Service. Generally, the determinations of medical officers are subject to review only by a Board of Medical Officers of the Public Health Service. Aliens whose exclusion is finally ordered by immigration or medical officers must be deported immediately to the country whence they came at the expense of the transportation line which brought them. Deportation Although some form of hearing has always been available to persons subject to deportation, no express provision existed in the statute until 1952. Nevertheless the Supreme Court has held that a requirement for a fair hearing necessarily was implicit in the immigration law relating to deportation. The Court has held that the provision of the Fifth Amendment, that no person shall be deprived of his liberty without due process of law, applies to all persons in the United States, citizens and aliens alike. This guarantees to each alien in the United States whether he be lawfully or unlawfully here a fair hearing before his deportation can be ordered. Deportation is not regarded as criminal punishment. However it often entails great hardship. Consequently the courts have insisted that deportation hearings must conform most scrupulously to the highest standards of fair play. Under the 1952 statute when a preliminary investigation indicates that an alien may be subject to deportation an application is made for the issuance of a warrant of arrest. Such warrants of arrest are issued only upon a determination that probable cause for deportation exists. When the alien is arrested he is furnished with a copy of the warrant of arrest and notified of his right to counsel and release under bond. In virtually every case the alien is released under bond. The hearing takes place before the Special Inquiry Officer, who is authorized to administer oaths, present and receive evidence, interrogate, examine and cross-examine the alien or witnesses and to make a determination as to the alien's deportability. In any case or class of cases designated by the Attorney General an additional immigration officer may be assigned to present the evidence on behalf of the United States before the Special Inquiry Officer. The statute directs that the alien shall be given reasonable notice of the charges against him, that he shall have the privilege of being represented by counsel, as well as a reasonable opportunity to examine the evidence against him, to present evidence in his own behalf and to cross-examine the government witnesses. No order of deportation is valid unless it is based upon substantial evidence in the record of the hearing. The alien is entitled to appeal to the Board of Immigration Appeals from an adverse decision of the Special Inquiry Officer. A decision of the Board of Immigration Appeals is subject to review by the Attorney General, only when such review is requested by the Attorney General, by the Board, or by the Commissioner of Immigration and Naturalization. If the alien's deportation eventually is ordered, he is taken into custody under a warrant of deportation, if not already in custody, and deported. The Issues The ordinary test applied to a law or to a procedure is not what is done under it, but what may be done, only in that way is it possible to determine whether it is open to abuse. Authorities in legal fields have long-condemned procedures under which the same officials, or officials acting under the same administration, appear as complainants, as witnesses on their own complaints, and finally as judges to determine the result. The main issue here is whether reviews or appeals from the initial findings should be decided by officers not directly connected with those responsible for such findings. The issue here involves proposals for an independent appeals board, the separation of prosecuting and judicial functions, and provision for independent hearing examiners. Past Studies of Immigration Procedures During the last forty years there have been at least eight appraisals of this issue by various individuals and groups. In general they have dealt with the separation of judicial and enforcement functions, and with the calibre of the hearing officials. The Hoover Commission on Law Observance and Enforcement A major study of immigration procedures was prepared by the so-called Wickershum Commission in 1931, the enforcement of the deportation laws of the United States. One of the principal criticisms in the Wickershum Report was addressed to the practice of having the immigrant inspector perform the combined duties of investigator, prosecutor, judge, and enforcement officer. The report was critical of the Board of Review, since reorganized as the Board of Immigration Appeals, on the ground that it was not a statutory board, and was the creature of the Secretary of Labor, who was authorized also to enforce and administer the immigration laws. It observed, additionally, that the Board lacked necessary discretionary power to alleviate hardships. In its conclusions and recommendations, the report sharply criticized the system of administration under which one agency of the United States government acts as investigator, prosecutor, and judge with despotic powers. It recommended that, a. the Department of Labor should be charged only with the duties of investigation and prosecution of aliens unlawfully in this country, and of execution of warrants of deportation when issued, d. an independent board with some name such as the Board of Alien Appeals should be created, composed of men of judicial caliber, to be appointed by the President. This board should be charged with the duties of issuing warrants of arrest, of conducting hearings on the warrants, and of deciding when warrants of deportation should be issued. Its findings should be published. e. the Board of Alien Appeals should have discretion to allow even deportable aliens to remain in this country, where deportation would result in unnecessary hardship to American families, or is otherwise found to be inadvisable. Discretion should also be given to admit aliens previously deported. f. this Board should have broad powers in affecting its own organization. It should have the right to appoint subordinate officials, such as masters or examining attorneys. These appointees would act as officers of the Board in the different localities, and would be under its sole jurisdiction. Van Vleck Study This study, the Administrative Control of Aliens, published in 1932, under the auspices of the Commonwealth Fund, was made by Dean William C. Van Vleck of George Washington University Law School. It criticized various exclusion and deportation procedures. It strongly objected to the combination in the immigration hearing officers of the functions of investigation, prosecution, and adjudication. It pointed out that few of the inspectors had legal training. It recommended that the personnel of boards of special inquiry be improved, that the Board of Review be given statutory authority, and that deportation be made a judicial rather than an administrative process. President's Committee on Administrative Management This group made the next major study of administrative procedure. While its scrutiny was not aimed directly at the immigration process, its report criticized the mixture of administrative and adjudicative functions in government agencies. It observed that such mixed duties constitute an unwholesome atmosphere in which to adjudicate private rights. The Committee also pointed out that the same men are obliged to serve both as prosecutor and as judge. This not only undermines judicial fairness, it weakens public confidence in that fairness. The Dimmock Committee Probably the most comprehensive analysis and criticism of immigration procedures was that made by the Secretary of Labor's Committee on Administrative Procedure, the so-called Dimmock Committee, which was appointed in 1938 and made its report May 17, 1940. The report pointed out that the serious problem in deportation administration is bias or suppression of bias resulting from confusion of function, which was a consequence of imposing upon the same inspector not only the duty of presiding over the hearing but of actually prosecuting it. The Committee also spoke of the need for a public guarantee of real insulation and independence of the inspectors who sit as trial examiners, and remarked, to assure to every alien in a contested proceeding a fresh hearing before an official with the special experience standing and point of view of an administrative judge would do much to minimize the dangers of abuse. The Committee said, we recommend that the presiding inspectors be relieved of their present duties of presenting the case against aliens and be confirmed entirely to the duties customary for a judge. This, of course, would require the assignment of another officer to perform the task of prosecuting attorney. A genuinely impartial hearing conducted with critical detachment is psychologically improbable, if not impossible, when the presiding officer has at once the responsibility of appraising the strength of the case and of seeking to make it as strong as possible, nor is complete divorce between investigation and hearing possible so long as the presiding inspector has the duty himself of assembling and presenting the results of the investigation. Considerations such as these have led the overwhelming majority of other federal administrative agencies to adoption of the practice here proposed. Finally, the report urged the need to attract personnel who have the fresh outside viewpoint which this ingrowing immigration and naturalization service so badly needs. Attorney General's Committee on Administrative Procedure. This committee made a comprehensive study of all government processes not limited to procedures in immigration cases. Its final report submitted in 1941 stated that it had not undertaken a study of the Immigration and Naturalization Service because the Secretary of Labor's Committee had just completed an exhaustive analysis. However, the Attorney General's Committee likewise criticized the practice of combining the prosecuting and adjudicating functions in government agencies, and stated, a man who has buried himself in one side of an issue is disabled from bringing to its decision that dispassionate judgment which Anglo-American tradition demands of officials who decide questions. Clearly the advocate's view ought to be presented publicly and not privately to those who decide. These types of commingling of functions of investigation or advocacy with the function of deciding are thus plainly undesirable, but they are also avoidable and should be avoided by appropriate internal division of labor. For the disqualifications produced by investigation or advocacy are personal psychological ones which result from engaging in those types of activity, and the problem is simply one of isolating those who engage in the activity. Creation of independent hearing commissioners insulated from all phases of a case other than hearing and deciding will the committee believes go far toward solving this problem at the level of the initial hearing provided the proper safeguards are established to assure the insulation. A similar result can be achieved at the level of final decision on review by the agency heads by permitting the views of the investigators and advocates to be presented only in open hearings where they can be known and met by those who may be adversely affected by them. The committee also considered the advisability of completely severing adjudication from prosecution by creating separate agencies to handle each. It concluded that this would be too costly and cumbersome, and that the most feasible arrangement would be the severance of prosecuting from adjudicating functions within the agency itself. The Senate Judiciary Committee study. The inquiry of the Senate Judiciary Committee, which preceded enactment of the Immigration and Nationality Act of 1952, was intended as a full and complete investigation of our entire immigration system. However, in the voluminous report issued by the Senate Judiciary Committee at the completion of its inquiry, the committee merely described the prevailing exclusion and deportation processes. It submitted no recommendation for change in the deportation procedures. In regard to the exclusion process, it recommended merely that the three-man board of special inquiry be reduced to one officer. Several studies also dealt with the problem of the caliber of hearing officers. The Immigration Commission of 1907 submitted its report in 1911. Its recommendations included one to strengthen the certainty of just and humane decisions in doubtful cases at ports of entry. This it sought to accomplish by urging that the boards of special inquiry should be composed of unprejudiced men of ability, training, and good judgment. The character of these boards should be improved. The Jane Perry Clark Study of 1931, deportation of aliens from the United States to Europe, urged statutory recognition for the board of review and that its members and personnel be required to have legal training and higher qualifications. The Administrative Procedure Act A dominant note in many of these inquiries is their criticism of the failure to establish a clear division between the prosecuting and adjudicating functions of immigration officers. Such a severance has never been completely accomplished. Consequently, it is significant that a major zone of controversy in immigration matters during recent years has been the issue as to whether the procedural requirements of the Administrative Procedure Act should apply to immigration proceedings. The Administrative Procedure Act was enacted in 1946. It resulted from many years of debate and study concerning the need for improvements in federal administrative justice. At the heart of this legislation, intended as a broad charter to govern the procedure of all federal agencies, were its provisions for safeguarding the independence of hearing examiners. It provided that such examiners should be appointed for each agency only by the Civil Service Commission, that such examiners should perform no duties inconsistent with their duties as examiners, that their compensation should be prescribed by the Civil Service Commission independently of agency ratings or recommendations, and that they should be removable only for cause upon the determination of the Civil Service Commission. Moreover, the statute prohibited private consultation by examiners with agency officers, forbade officers engaged in investigative and prosecuting functions in a case from engaging in the decision of that case, and directed that no hearing officer should be responsible to any other officer engaged in prosecuting or investigating functions. These latter provisions are not applicable to the agency itself or members of the body comprising it. Recognizing the widespread mixture of prosecuting and adjudicating functions found in many federal agencies, the Administrative Procedure Act sought to achieve a limited separation of these functions within the framework of agency operations, and a substantial degree of independence in each agency's hearing examiners. According to the Supreme Court, the major purpose of the administrative procedure act was to curtail and change the practice of embodying in one person and agency the duties of prosecutor and judge. The statute did not affect a complete divorce of prosecuting and adjudicating functions, but its directives were intended no doubt as a long step in the direction of that goal. The Department of Justice took the position that the requirements of the Administrative Procedure Act were not intended to govern immigration proceedings. This resulted in litigation which eventually culminated in the Wang Yang Song case, where the Supreme Court concluded that deportation hearings were amenable to the Administrative Procedure Act. In its opinion, the Court declared, The Administrative Procedure Act did not go so far as to require a complete separation of investigating and prosecuting functions from adjudicating functions, but that the safeguards it did set up were intended to ameliorate the evils from the commingling of these functions as exemplified here is beyond doubt. And this commingling, if objectionable anywhere, would seem to be particularly so in the deportation proceeding, where we frequently meet with a voteless class of litigants who not only lack the influence of citizens but who are strangers to the laws and customs in which they find themselves involved, and who often do not even understand the tongue in which they are accused. Nothing in the nature of the parties or proceedings suggests that we should strain to exempt deportation proceedings from reforms in administrative procedure applicable generally to all federal agencies. The Supreme Court decision dealt only with deportation hearings. The Supreme Court has not yet passed upon the applicability of the Administrative Procedure Act to exclusion hearings. However, the lower federal courts found the requirements of that statute inapplicable to such exclusion hearings. However, the Congress, in a rider to an appropriation act enacted on September 27th, 1950, negated this Supreme Court decision by a statutory exemption of exclusion or expulsion of aliens from the provisions of the Administrative Procedure Act. The Immigration and Nationality Act of 1952 does not deal directly with the Administrative Procedure Act. It repeals the Appropriation Act rider, which specifically exempted immigration procedures. However, other directives of the statute forge a pattern which reveals an unmistakable purpose to exempt immigration hearings from the procedural requirements of the Administrative Procedure Act. Thus sections 236 and 242 specify that exclusion and deportation hearings are to be conducted before special inquiry officers, and that the procedure described in the statute shall be the sole and exclusive procedure for determining an alien's right to enter or remain in the United States. Moreover, Section 101B4 defines a special inquiry officer as any immigration officer who the Attorney General deems specially qualified to conduct specified classes of proceedings required by this act to be conducted by or before a special inquiry officer, and who is designated and selected by the Attorney General, individually or by regulation, to conduct such proceedings. Such special inquiry officer shall be subject to such supervision and shall perform such duties not inconsistent with this act as the Attorney General shall prescribe. The apparent purpose of these provisions was to establish an exemption from the procedural requirements of the Administrative Procedure Act without specifically mentioning that statute. The regulations recently promulgated by the Immigration and Naturalization Service under the 1952 Act have adopted that interpretation.