 Section 19 of Whom We Shall Welcome. Part 4 Chapter 11c. The Issues Reconsidered. The deportation process has come a long way since 1893, when a Chinese alien could be expelled from the United States, unless the legality of his stay was attested by one white witness. Or even since the 1920s, with the shocking spectacle of flying squadrons of inspectors moving about the country, a single official regularly making the investigation, holding the hearing and recommending a decision. Indeed, with some conspicuous exceptions, both admission and expulsion procedures have advanced steadily toward the achievement of greater fairness. The Commission observes these advances, but notes that some of the shortcomings that repeatedly have been subjected to heaviest assault by responsible and informed observers are still unremedied. 1. Uncertain status of Board of Immigration Appeals. To the Commission it seems inexplicable that the Board of Immigration Appeals is not specifically sanctioned by statute, and owes its existence only to a regulation of the Attorney General. Several studies of the immigration process and very considerable testimony before the Commission have condemned this situation, and have urged that such Board be given statutory recognition. A proposal to give such status to the Board was passed by the House of Representatives in the course of its consideration of the 1952 Act, but was eliminated by the Senate. The tenuous status of the Board of Immigration Appeals, underlined by repeated changes in its allotted jurisdiction, is clearly undesirable. A quasi-judicial agency that exercises virtual life and death authority over thousands of human lives, should be free to exercise its responsibilities in an atmosphere of stability and protection from pressures. In its proposals for organization of immigration functions, Chapter 10, the Commission recommends a statutory Board of Immigration and Visa Appeals, with specific legislative authorization to make final administrative decisions in a wide variety of cases. The adoption of this proposal would be a step toward assuring fair hearings for aliens. Aliens should be entitled to bring appeal to the Board of Immigration and Visa Appeals without the payment of fees. 2. Cummingled Judicial and Prosecuting Functions A striking phenomenon in the jurisprudence of our day has been the crystallization of concepts for fair dealing in the administrative process. These concepts have been formulated by scholars, by the legal profession, by official studies, by the courts, and in the legislatures. They have included a universal condemnation of the situation in which one official or group of officials acts as investigator, prosecutor, and judge. This practice has been characterized as obnoxious to elementary standards of fair procedure. Those who have appraised the immigration process likewise have condemned its mixture of prosecuting and adjudicative functions. They have described it as a roadblock to impartial consideration. The Supreme Court said recently that the administrative deportation hearing is a perfect exemplification of the practices so universally condemned. But the attainment of insulation between prosecution and adjudication has been resisted, and is today not yet a reality. The deportation process, although it touches countless human lives, thus has lagged behind other aspects of administrative justice. The major burden of the testimony of the American Bar Association was to urge the application of the Administrative Procedure Act to deportation proceedings. The current hearing procedures should be examined in the light of the mandates of the Administrative Procedure Act. First is the need for restricting hearing officials to adjudicative functions, so that they will not be committed to the attitudes or aims of investigation and prosecution. In this connection the Administrative Procedure Act provides, 1. that hearing officers shall perform no duties inconsistent with their duties and responsibilities as hearing examiners, 2. that investigative and prosecuting officers shall not participate in any decisions. From these requirements it would necessarily follow, 3. that separate officers shall prosecute and preside at hearings. Present practice conforms only partially with this first objective of 119 full-time hearing officers in the Immigration and Naturalization Service on October 1, 1952, only two performed extraneous duties, however several hundred other officers, principally immigrant inspectors, are assigned part-time to conduct hearings in exclusion cases. With regard to the above item 2, the Immigration Statute now provides, like the Administrative Procedure Act, that special inquiry officers shall not conduct proceedings in those cases in which they have participated in investigating or prosecuting functions. In regard to the above item 3, the Departure from Administrative Procedure Act is even more complete than under item 1. The Act of 1952 provides that a special inquiry officer shall have complete authority to prosecute, hear, and decide exclusion and deportation cases, except that in some special classes of cases, fixed specifically or by regulation, an additional immigration officer may be assigned to present the evidence on behalf of the United States. The regulation does not require the assignment of an additional officer in any specific category of cases, but leaves the assignment to the discretion of the officer in charge of the district. In practice, an examining officer was seldom designated, and the vast majority of deportation hearings were conducted entirely by a hearing officer prior to the Act of 1952. The present hearing procedure in deportation and exclusion cases fails to conform to the now generally accepted standards for fair hearings. The normal practice in both exclusion and deportation cases under the Act of 1952 is to have the entire proceeding conducted by a special inquiry officer who acts as both prosecutor and judge. Furthermore, officers normally performing investigating and prosecuting duties are authorized to conduct immigration hearings. Another major facet of the Administrative Procedure Act is the removal of hearing examiners from the supervision of officers performing prosecuting and investigative functions. This goal likewise is not fully met by current immigration practices. Even full-time hearing officers are subject to the immediate supervision of the district director of the Immigration and Naturalization Service in administrative arrangements at the local level, and to overall policy supervision of the assistant commissioner in charge of the inspections and examinations division. Both of these officials are concerned with enforcement. Under such an arrangement, the hearing officer inevitably will tend to tailor his determinations to the wishes of his superior officers, whose sphere of action encompasses enforcement duties. Indeed, the 1952 Act explicitly declares that special inquiry officers shall be subject to such supervision and shall perform such duties not inconsistent with this Act as the Attorney General shall prescribe. 3. Independence and Competence of Hearing Officers Another major objective of the Administrative Procedure Act is to assure to hearing officers a measure of independence. This is done, in addition to the methods already discussed, by placing their appointment, ratings, compensation, and removal within the domain of the Civil Service Commission, independent of control in the agency in which they serve. None of these objectives is reached by current immigration policies. Hearing officers enjoy no such independence of status. They are civil service officers and are subject to the normal powers of the Attorney General as head of the Department of Justice to appoint, compensate, rate, promote, and remove them. The sponsors of the Administrative Procedure Act contemplated that the hearing examiner would be an officer with a high level of competence and that the scale of his compensation would be adequate to attract outstanding individuals. Current immigration administration falls short of these objectives. In the previous studies of the Immigration and Naturalization Service, there has been a recurring recommendation for improvement in the caliber of hearing officials. Through the years there undoubtedly have been marked improvements in personnel, but many have said that such improvements have not progressed far or fast enough. The present complaint seems to be directed far more to the low concept of the role and function of such officers than to the officers themselves, some of whom are recognized as meeting the generally accepted standards for such important positions. The Dimmock Committee reached the conclusion in 1940 that it was a mistake to recruit all hearing officers, as was done in 1940 and is still being done in 1952, through promotion from within the service. Of the 119 hearing officers now employed by the service, 74 formerly were immigrant inspectors, 18 were investigators, and 27 occupied miscellaneous positions such as naturalization examiner, patrol inspector, and officer in charge. Only 16 hearing officers are members of the bar, and five possess law degrees but are not admitted to the bar. Thus, less than 18 percent of the hearing officers have legal training. Thirty-two hearing officers possess college degrees. This means that approximately sixty percent of the hearing officers do not have college degrees or legal training. The Commission is in accord with the conclusions of previous studies that it is of the utmost importance that hearing officers be possessed of adequate training and experience properly to discharge the duties assigned to them, requiring knowledge of intricate laws, regulations, and court decisions, and the capacity to deal justly with human rights and aspirations. Closely related to the independence and qualifications of hearing examiners is their compensation. Manifestly, officers of high caliber cannot be attracted to these positions unless they are offered reasonable compensation and commensurate with their responsibilities. The compensation scales of immigration hearing officers during recent years have never attained the reasonable levels fixed in most other agencies. Recommendations The deficiencies in the immigration hearing process seem clear. In large measure they result from a commingling of prosecuting and investigating functions, from the absence of real independence in the officers who hear and decide cases, and from what is said to be the inadequate qualifications of some of the hearing officers. The Commission believes it imperative, not only that immigration hearings accord a maximum of fairness, but also that they give others confidence of fairness. In order to improve immigration administration, to ensure greater impartiality in rendering judgments, and to bring to the decision of these cases under immigration laws a fresh and more humane point of view, the Commission makes the following recommendations. Separation of Organization In the recommendation for a commission on immigration and naturalization, Chapter 10, provision is made for a division of organizational responsibility between an administrator of immigration and naturalization and a Board of Immigration and Visa Appeals. The Board of Immigration and Visa Appeals would be a statutory Board whose members would be appointed by the Commission. The Board would be concerned exclusively with the adjudication of cases arising under the immigration laws. The entire process of adjudication would be concentrated in the Board, which would be independent in deciding cases. Its decisions would be administratively final on all issues of law and fact, and would be subject to review by the new proposed Commission only in regard to the exercise of discretionary authority. Separation of the Hearing Function The Commission recommends that the examiners who hear and decide exclusion and deportation cases be separated from any enforcement functions. This would be accomplished principally by placing such examiners under the supervision of the Board of Immigration and Visa Appeals and removing them from the control and direction of any enforcement officials. Such examiners would be prohibited from performing any duties outside of their responsibilities as hearing officers. A number of witnesses have urged also that the procedural requirements of the Administrative Procedure Act be applied to immigration hearings. The spearhead of this proposal is the American Bar Association, whose representative testified at the hearing in part as follows. We do not doubt the good faith of the service nor its disposition to give fair hearings. We do not deny that the Act is an improvement on the rider of 1951. But we return to the fundamental proposition that the provisions of the APA taken in their entirety represent a careful, well considered view of the minimal procedural protection needed in a trial involving accusatory elements. This is not less, but indeed more true, of deportation proceedings than of other proceedings to which the APA is applicable. The interest of a person about to be deported and of his relatives and close friends is among the weightiest and most significant that can be imagined. The need for invoking the purely procedural directives of the Administrative Procedure Act doubtless will be lessened by the adoption of the Commission's proposal for the separation of adjudicative functions from enforcement subject only to a limited right of appeal. It may perhaps be urged that there is still a possibility that immigration hearing officers, lacking the relative independence of examiners chosen in accordance with the Administrative Procedure Act, may ultimately come under the influence of enforcement officials. To minimize this possibility, to remove a constant source of needless controversy and litigation, and to bring the deportation process in line with the uniform administrative procedures established by the Administrative Procedure Act, the Commission recommends that deportation hearings be conducted in conformity with the procedural requirements of the Administrative Procedure Act. All this would entail, in addition to the division of functions an organization recommended, is that a prosecuting officer be assigned to assemble and present evidence before the deportation examiner. There can be no substantial objections to making this a routine rather than the exceptional requirement it is under the 1952 Act. The practical difficulties would be negligible and the added costs inconsiderable. In reaching the conclusion that the added costs will be inconsiderable, the Commission has not lost sight of the estimates given to the Congress by the Immigration and Naturalization Service, that the increased cost for that particular year would be almost four million dollars, and that if all aliens charged in deportation cases demanded hearings, the extra annual expense might reach twenty-five or thirty million dollars. These calculations were on the theory that in the case of every alien apprehended because illegally in the United States, a hearing would have to be given him by an independent hearing officer with the aid of a prosecuting officer. For the last fiscal year, the Immigration and Naturalization Service completed 42,252 deportation hearings. At the same time, voluntary departure without a hearing was allowed in 694,200 cases. If hearings were conducted under the Administrative Procedure Act, it would still be permissible for the service to permit voluntary departure without bringing the case to a hearing, as is the practice today. No factual basis whatever has been offered to support the conclusion that every alien apprehended because illegally here, or any number of aliens greater than those now accorded hearings, would demand a hearing if operating under the Administrative Procedure Act. Actually every alien charged in deportation proceedings at present has a right under the United States Constitution to demand a fair hearing, so that the opportunity for delay exists even now for those disposed to resort to delitory tactics. It has been suggested that a deportation hearing under the Administrative Procedure Act would be more time consuming, and therefore more aliens would demand a hearing in order to remain in the United States longer. It is difficult to perceive the validity of such an assumption. In fact it would seem that as a hearing officer under the Administrative Procedure Act would be relieved of the duty of studying a case in order adequately to act as a prosecuting officer, with that function being placed in another official, hearings should be less time consuming than is now the case. Clearly applying the Administrative Procedure Act to deportation proceedings will be somewhat more costly than is true under existing law and regulations. That cost, however, should be limited to the expense involved in hiring additional personnel to act as prosecuting officers. Judging this added cost against the benefits of a completely impartial and objective hearing, the commission is of the opinion that fiscal considerations should not operate against the adoption of the Administrative Procedure Act in deportation proceedings under the immigration laws. The commission believes its recommendations in connection with deportation hearings meet the substantive requirements for a fair hearing and comply fully with the spirit and purpose of the Administrative Procedure Act. The exclusion process seems to be governed by somewhat different considerations. It deals with an alien who is outside the United States and who is not in a position to claim procedural protections equal to those accorded to an alien who has established residence in the United States. The American Bar Association has not officially favored application of the Administrative Procedure Act to the exclusion process. Moreover, in the admission process at the numerous ports of entry along the sea coasts and land ports of the United States, there is special need for speed and flexibility in passing upon cases. The application of the Administrative Procedure Act to the exclusion process would seem to hamper effective administration, and the commission does not recommend that course now. It believes it would be advisable to study the results of experience under the proposals it has made before reaching a decision as to the need for additional measures. In the meantime, under the plan recommended by the commission, the hearing officers who consider applications for admission would be responsible to the Board of Immigration Appeals and not to the enforcement officers. In addition to the other reasons against the application at this time of the Administrative Procedure Act to exclusion, the commission believes that it would be inappropriate to attempt to use that act to control the procedure of visa issuing officers stationed overseas. The proceedings before such visa officers should be free from unnecessary complications. Generally their determinations would be made on a written record, consisting of an application and supporting documents. Unless extended inquiry is found necessary, there would be no need for any formal hearing in such cases. The visa issuing officers' determinations would be subject to review by the proposed Board of Immigration and Visa Appeals. This procedure would provide appreciably greater assurances of fair play to the applicant for a visa than is available under present law. Improvement in Caliber of Examiners Such improvement will follow to some extent from the severance of adjudication from administration, freedom from ties with enforcement doubtless will tend to alter the outlook of the hearing officers. But changed organizational management will not in itself meet the need to which many of the studies called attention for improvement in the caliber and the competence of some of the hearing examiners. Section 20 of Whom We Shall Welcome This is LibriVox Recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Recording by Andy Glover Whom We Shall Welcome Report of the President's Commission on Immigration and Naturalization, Part 4, Chapter 11D. Judicial Review With the growing complexity of modern life, it has been necessary to develop specialized administrative agencies of government, many of which take on quasi-judicial functions which previously were conceived of as being holy within the area of court action. This development of administrative justice has raised the important problem of the relationship of such quasi-judicial administrative agencies and the normal court system. There has been some uncertainty as to the precise extent to which the courts would, or even should, inquire into the merits of issues which have been resolved by the quasi-judicial administrative process. This same uncertainty has been present in immigration. The legal scholars, in general, seem to agree that in the area of administrative law, including immigration, there has been a steadily widening zone of intervention by the courts. The issues are twofold. First, whether there should be any judicial review of the action of immigration officials. Second, whether such judicial review should be limited to a determination of the reasonableness of executive action or should re-examine the merits. These issues arise in different phases of the immigration process. Deportation Orders The statutes never have directly sanctioned judicial examination of deportation orders. On the contrary, they always have confided to administrative officers the function of determining whether an alien should be deported, and have provided that the determination shall be final, such as still the provision of the 1952 Act. The courts have supported this grant of authority to administrative officers. The Supreme Court has stated that they are authorized to function without judicial intervention. Although the immigration law lacks a specific statutory authorization for judicial review of deportation, the courts have held that an alien could question a deportation order through a writ of habeas corpus. The proceeding affords to each person deprived of his liberty, a speedy and effective means of testing the legality of his detention. But it is not a full judicial review of the issue. It only enables the courts to ascertain whether the deportation order was supported by substantial evidence, was issued on the basis of legal authority, and after a fair hearing. The courts have not attempted to decide in habeas corpus proceedings whether the administrative findings were wrong, but rather have determined whether the proceedings were fairly and legally conducted. Until the enactment of the administrative procedure act in 1946, the courts uniformly held that the writ of habeas corpus was the exclusive method of contesting a deportation order. Since then, the legal situation has been somewhat confused. Efforts have been made to invoke court remedies under the Administrative Procedure Act and under the previously enacted Declaretory Judgment Act, and both forms of proceedings have been sanctioned in some of the lower federal courts. Perhaps by the time this report is completed, the Supreme Court will have ruled on the matter. The 1952 Act contains no specific provision concerning judicial review of deportation orders. The Congressional Conference Report on that bill stated that, The safeguard of judicial procedure is afforded the alien in both exclusion and deportation proceedings, but it does not explain or indicate just how. The attempts to enlarge the remedies that might be pursued to question orders of deportation doubtless have been engendered in large measure by a conviction that the relief afforded through the writ of habeas corpus is inadequate. No one would dispute that the writ of habeas corpus has furnished sturdy protection to individual rights in deportation cases. However, that writ can be obtained only by a person who is actually in physical custody. The alien, therefore, is unable to bring court proceedings until an attempt is made to enforce the order of deportation. This has meant that he was obliged to undergo detention before he could obtain a court ruling. The Commission requested the advice of the United States Solicitor General's Office concerning the possibility of improving and clarifying the avenues for judicial review of deportation orders. The views expressed in the Acting Solicitor General's response were formulated with the concurrence of the Immigration and Naturalization Service of the Department of Justice. The Acting Solicitor General stated, I am strongly of the opinion that the form and other incidents of the judicial review of deportation orders should be clarified by legislation. He recommended clarification of the existing uncertain situation by a statutory substitute of a single, fair and expeditious review. For the habeas corpus proceeding, he observed, it is inconvenient to the alien and of no corresponding benefit to the government that he cannot challenge a deportation order, which is otherwise final, until he has been taken into at least nominal custody. He also suggested that the statute include assurances for speedy consideration of such cases and reasonable safeguards against dilatory and multiple litigation. The Commission agrees with these views and recommends the creation of a statutory form of judicial review of orders of deportation. Just how this should be developed is a matter for legislative draftmanship. The Commission is not wedded to any particular means of providing a clear and precise procedure for judicial review of orders of deportation. However, as some indication of what such proposal might involve, the following is suggested as one means of accomplishing this recommendation. A. The immigration statute should include specific authorization for judicial review of deportation orders after the administrative decision has become final. Although the precise designation of such a court proceeding is unimportant, this remedy could appropriately be called a petition for judicial review. B. Enforcement of the order of deportation should be subject to the right to file a proceeding for judicial review within a period of 60 days. C. Although there is a logical justification for channeling review proceedings directly to the United States Courts of Appeals, the heavy volume of such cases might overburden those courts. On balance, therefore, it might be preferable that the petitions for review be brought in the United States District Courts. If this view be taken, such suits should be maintained in the district of the plaintiff's residence rather than in the District of Columbia in order to avoid a concentration of cases in one court. D. Because of protracted calendar delays in the trial of civil actions in some federal courts, the statute should make provision for simplified pleadings and expedited consideration in the same manner as habeas corpus proceedings are now expedited. Moreover, the statute should preclude multiple attacks upon deportation orders by providing that this special review proceeding shall be the exclusive remedy. Such procedure will give the alien respondent in deportation proceedings a prompt and effective remedy, but will restrict him in common with all other litigants to a single mode of review. E. Because deportation will continue to be an administrative rather than a judicial function, court review should be restricted to an appraisal of the legality and fairness of the decision and should not reconsider the merits of the controversy. Therefore, the scope of review of deportation orders could continue to be governed by provisions of the Administrative Procedure Act, which substantially conforms with the scope of judicial inquiry fashioned by the courts themselves in deportation cases. Exclusion Orders Under present law and court rulings, the alien applying for admission to the United States, who is stopped at the port of entry, does not have status or legal protections equivalent to those granted to an alien already admitted into the United States. However, the Supreme Court long ago decided that an alien so-barred from the United States had the right to institute habeas corpus proceedings to determine whether the exclusion was ordered on grounds prescribed by Congress. The availability of habeas corpus has been an important privilege to aliens whose exclusion has been ordered. The excluded alien ordinarily remains in confinement at the port of entry and the writ of habeas corpus seems a suitable vehicle for obtaining a court ruling. Moreover, the Commission is not aware that the form of the remedy has caused any real difficulty. Consequently, the Commission recommends that there be no change in existing formulas for review of exclusion orders after final administrative review by the proposed Board of Immigration and visa appeals. This would mean that the writ of habeas corpus will continue to be the appropriate remedy open to an alien excluded at a port of entry who wishes to challenge a final order of exclusion. Denial of visa. Although the precedents are meager, it seems doubtful whether under present law a rejected applicant for a visa can bring court proceedings to question the adverse determination. Elsewhere, the Commission recommends that the proposed Board of Immigration and visa appeals review determinations denying visas. One of the objections to granting such administrative review has been the apprehension by some that it might invite further review in the courts. Although the purpose to be served by such review is an old and cherished one, protection against arbitrary or illegal official action, the legal right recommended is a new one. The Commission believes it is desirable to await experience with its proposed administrative review of visa actions before consideration of judicial review. Therefore, the Commission recommends that at this time the review by the proposed Board of Immigration and visa appeals of a decision denying a visa should not be subject to judicial review. Bail. The immigration laws do not recognize an absolute right to release on bail for an alien against whom deportation proceedings are pending. Although the privilege of bail has been granted almost universally, there have been some instances in which bail has been denied. The legal authority to refuse bail prior to a determination of deportability was challenged in the courts and eventually was supported by the United States Supreme Court in Carlson v. Landon 342 US 524 1952. The Supreme Court was closely divided on this issue, but the majority sustained the denial as a necessary administrative weapon to be used against aliens who are active adherents of the world communist movement and declared that the aid of the courts could be invoked to determine whether this power was being arbitrarily or illegally exercised. The act of 1952 section 242 provides that courts shall have authority to review determinations denying bail in deportation proceedings, only upon a conclusive showing that the Attorney General is not proceeding with reasonable dispatch. This provision apparently attempts to preclude the courts from considering whether denials of bail have been arbitrary or illegal. The commission recommends that the courts be given specific authority to decide whether denials of bail pending hearings and determinations in deportation cases are arbitrary or illegal. In summary, apart from bail cases, no additional substantive judicial review is recommended by the commission. The procedure and form of judicial review in deportation cases should be clarified, but no new or additional judicial review or court procedures are recommended in exclusion or visa denials. Here, the commission believes that experience with the proposed new rights and procedures set up in connection with the proposed Board of Immigration and Visa Appeals should determine what, if any, further steps should be taken. End of Section 20. Section 21 of Whom We Show 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 Show Welcome. Report of the President's Commission on Immigration and Naturalization. Part 5. Other Major Aspects. Chapter 12A. The Admission of Aliens. The Immigration Law incorporates two different selective devices, group selection and individual selection. The Unified Quota System and the National Origin System both deal with immigrants by group characteristics. Once a group is selected, either in the non-discriminatory manner of the Unified Quota System or by the discriminatory method of the National Origin System, there still remains the problem of deciding whether a particular individual from that group is desirable and should be admitted. The President's directive to the Commission required that particular consideration be given to the requirements and administration of our immigration laws with respect to the admission, naturalization and denaturalization of aliens and their exclusion and deportation. As a sovereign nation, the United States has full power to decide which aliens it will admit and which it will permit to remain. These questions are resolved by Congress. The Commission's discussions of what should be done, therefore, are concerned not with the power of Congress under the Constitution, but with the nature of the provisions appearing in the law. A primary function of the restrictions in our immigration law is to protect the United States against aliens who are actually or potentially undesirable. But it is difficult to reconcile this sound and important aim with the excessive punishments contained in our immigration laws or with the attitudes of suspicion and distrust which seem to motivate them. Any objective study of the present grounds for exclusion of aliens makes it obvious that hostility to the alien is a major characteristic of our immigration statutes. The Immigration and Nationality Act of 1952 is unbelievably obscure, complex and permeated with burdensome and unnecessary detail. Opinions may differ concerning some of the substantive requirements of the Act of 1952, but there is a virtual unanimity of opinion to the effect that its draftsmanship leaves much to be desired. Although to some extent this may be attributed to poor technical arrangement, the major cause seems to be the attempt through excessive technicalities to minimize any opportunity for humane interpretations and to increase the opportunity for harsh results. The Act of 1952 consists, in an official edition, of 119 closely printed pages. There are seven pages of definitions of words and phrases. The statute has 143 separate sections, some of which have dozens of subdivisions, provisos and exceptions. One of the justifications given for enactment of the 1952 law was that it would clarify and simplify the previous law. However, former immigration laws, although not always models of clarity, were far more intelligible. Some of the formidable difficulties of interpretation and administration posed by the statute were described by the Attorney General of the United States in his testimony before the Commission, in which he observed, it is my opinion that the new Act does not achieve the simplicity of arrangement to be expected of an exhaustive codification. It may even bring about further complications of administration. Even immigration experts are appalled at the complexities of the Act of 1952. But to the non-expert, this legislation is all but incomprehensible. A professor of law at one of the leading universities testified before the Commission that he was compelled to read one of the sections 13 times before he thought he understood it. The Commission's objections to the law are much more fundamental. The Commission believes that aliens have a right to expect fair and just treatment by our laws and in their administration. Although it is true that the alien cannot claim as a matter of right, the protections of our Constitution were knocking at the gates of entry into the United States. Nevertheless, our immigration laws and administration must be governed by a high sense of decency, tolerance, and respect for the individual human being. In many of the present statutory grounds for exclusion of aliens, these qualities are now absent. The development of qualitative exclusions. The immigration laws have never directly described the type of individual who may enter the United States. Instead, our early immigration policies were founded on the premise that all immigrants were acceptable. The first century of free immigration was followed by the introduction of gradually increasing restrictions, which described only the unwelcome groups. Thus our immigration law today does not describe whom we shall welcome, but rather whom we shall reject. The tabulation of categories of unwanted aliens has grown through the years as more were added to the rules. In 1862, the first approach to federal regulation penalized traffic and coolly labor. In 1875, the importation of prostitutes and convicts was prohibited. The first general legislation of 1882 added bans upon paupers, lunatics, idiots, and persons likely to become public charges. Chinese were barred the same year, in legislation substantially retained in effect until 1943. Legislation after 1882 expanded the prohibited lists to include contract laborers, insane persons, paupers, and persons suffering from loathsome and contagious disease, epileptics, imbeciles, professional beggars, and persons suffering from tuberculosis, feeble-minded, physical defectives, and persons admitting commission of crimes involving moral turpitude. The codification of 1917 added to the excluded classes, illiterates, psychopaths, alcoholics, stowaways, vagrants, persons suffering a previous attack of insanity, and natives of a geographical area, commonly known as the Asiatic barred zone. Outstanding among subsequent enactments were the laws aimed at subversives. In the historic development of the immigration laws, there was bound to be an accumulation of legislative provisions that had become archaic and had proved to be unnecessary or inequitable. Consequently, a recodification of our immigration laws could have been especially useful in correcting manifest inequities and in bringing the law into line with modern needs. But the Act of 1952 failed almost entirely to achieve these salutary goals. Although it did affect one major improvement in terminating the complete exclusion of orientals, the new law overlooked or deliberately rejected the opportunity to strike out many obsolete and excessively severe survivals from the past. General criticisms. The commission recommends that the provisions of the Act of 1952 relating to the exclusion of immigrants should be revised so as to eliminate the unwise, the unfair, and the obsolete grounds now contained in the law. The commission believes that the Act of 1952 has failed as a purported codification and modernization of the immigration laws. Some of the reasons for these statements are excessive or irrational penalties. Shutting off the opportunity to come to the United States actually is a crushing deprivation to many prospective immigrants. Very often it destroys the hopes and aspirations of a lifetime, and it frequently operates not only against the individual immediately affected, but also bears heavily upon his family in and out of the United States. The United States should protect itself against the entry of aliens who are dangerous, diseased, or otherwise undesirable to the good order and welfare of our country. The immigration statutes necessarily must exclude those aliens who are subversive, criminal, or suffering from serious mental or physical disabilities. But no rational purpose is served by excluding aliens forever for mistakes of the past, if they now are respected members of society. These are broad generalizations, but they describe situations unfortunately too prevalent in our immigration statutes. For example, an alien is permanently barred from entering the United States if, 20 years ago, he stole a loaf of bread to feed his hungry family and was convicted for that offense. The fact of an exemplary life since has no bearing upon his admissibility. Excessively broad catch-alls Throughout the exclusionary provisions of the immigration laws, there are vague restrictions, which may result in undue penalties in barring aliens. Examples of this type of restrictive discretion include A. The authority granted to the President for such period as he shall deem necessary to suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants or impose on the entry of aliens any restrictions he may deem to be appropriate. Section 212 E B. The exclusion of aliens who, in the opinion of the Counselor Officer or the Attorney General, are likely at any time to become public charges. Section 212 A, 15. And C. The barring of aliens who the Counselor Officer or the Attorney General has reason to believe are seeking to enter the United States to engage in prejudicial activities. Section 212 A, 27 and 29. The Commission believes that latitude and administrative action is frequently a desirable objective. However, such discretionary authority should not be limited to permitting flexibility only for the purpose of imposing additional restrictions. Moreover, such discretionary authority should not be nebulous and undefined, but rather should contain some standards controlling the administrative action. Lack of sufficient discretion to cope with hardships. The Act of 1952 has either deleted or severely curtailed discretionary authority to alleviate hardships, although it is written in such a way as inevitably to produce situations of great inequity. The Commission recommends that the head of the agency administering the immigration laws be authorized in individual cases subject to certain exceptions to exercise discretion to admit otherwise inadmissible aliens upon a finding that the case is a meritorious one and that the alien's admission would not be detrimental to the United States. In relation to new immigrants seeking permanent residence, this would not include authority to wave inadmissibility in cases involving present subversive activity or affiliation, serious medical, or other named reasons. It is intended that such discretionary authority would be subject to adequate safeguards and would be exercised in relatively few cases. The Commission's proposal has precedent in the immigration law which now sanctions waivers of the documentary requirements on a limited basis and, prior to the 1952 Act, authorized waivers of inadmissibility under certain circumstances. The expansion of administrative authority to ameliorate hardships in exceptional cases would introduce into the law a highly desirable element of flexibility. Such provisions have abundant precedent in the immigration processes of Great Britain, Canada, Australia, and of most other countries which confer upon immigration officers the power to waive any immigration requirements in individual cases. The grant of limited discretionary authority to immigration officers in the United States would be a desirable step in the direction of an enlightened immigration policy. Returning Lawful Residence Under present law, every time an alien living in the United States leaves the country, no matter how brief his absence, his legal immigration status on return is as if he had never been in the United States. Under this so-called re-entry doctrine, an alien residing in the United States for 25 years who crosses the border to view Niagara Falls, to shop or visit in Windsor, or to take a short excursion to Cuba or business trip to Europe is subject to the same exclusionary injunctions as an alien coming to the United States for the first time. These identical restrictions apply even to an alien who is obtained from the immigration authorities an official re-entry permit before leaving the United States. Thus, if a lawfully resident alien becomes afflicted with tuberculosis in the United States, he is not deportable for that reason. But if he happens to cross the frontier, he is regarded as inadmissible on his return, perhaps a few hours later, because as an immigrant suffering from tuberculosis he must be barred, even though he may have resided lawfully in the United States for many years and contracted the disease here. Similarly, if a lawfully admitted alien is convicted of theft ten years after he entered but has a good record otherwise, he is not deportable and may in fact be eligible for naturalization. Yet, if he leaves the United States on a short visit, he is deemed inadmissible on his return as an immigrant who has previously committed a crime involving moral turpitude. He is consequently precluded from re-entry, even though he has a re-entry permit, as resided in the United States for many years, may have a family, home, and job here, and may be concededly a person of good character. The grounds for exclusion in the immigration laws were designed to bar newcomers whose entry would be harmful to the United States. Aliens who are admitted lawfully are permitted to remain unless an offense committed in the United States renders them deportable. The Commission cannot find any reasonable justification for the use of immigration laws to entrap residents of the United States who were not amenable to deportation so long as they continue to be physically in the United States but who happened briefly to cross the international boundary line. The Commission recommends that the provisions directing the exclusion of aliens shall not be applicable to aliens who have established lawful, permanent residents in the United States and who are returning from a brief absence. If there are causes which would warrant the deportation of such aliens had they continued to remain in the United States, these causes should be the basis for deportation proceedings. If these causes would not have made them aliens subject to deportation had they remained in the United States, their brief absence should not create basis for exclusion. A re-entry permit issued by the appropriate federal official should assure a resident alien the privilege of return to the United States. Aliens returning to irregular domicile in the United States. The re-entry doctrine has been applied to aliens lawfully in the United States who seek to return following temporary absence. However, another situation concerns aliens whose original entry was irregular but who may have resided in the United States for many years and who may have established a home and close family ties here. Recognizing the important humanitarian considerations involved in such cases the so-called seventh proviso in the Immigration Act of 1917 authorized the waiver of Grounds for Inadmissibility in the cases of aliens returning to a domicile in the United States which had been maintained for a period of seven years. It has been held by the immigration authorities that such relief was available to an alien whose original entry was irregular. This ruling has made possible the alleviation of many hardships. The 1952 Act has sharply reduced the opportunity to grant such relief. The statute permits amelioration only when the departure abroad was not under an order of deportation and when the alien is returning to a lawful domicile. These restrictions foreclose any opportunity for relief to many aliens who may have resided in the United States for many years and who may have their homes and families here. Examples of cases that have arisen in the past will illustrate the effect of the law. Case 1 The alien, a native and subject of England, was forty years of age. He had resided in the United States continuously with the exception of visits to Canada since the age of eighteen when he had entered illegally. He was the father of five native-born children. His family was totally dependent upon him for support. He had been employed in Detroit, Michigan for about fourteen years and was earning seventy-five dollars a week. He was buying his own home and had war bonds. Twenty years ago, on a plea of not guilty, he had been convicted on a charge of simple larceny for the theft of a newspaper valued at three cents. He had no other arrest record. The record reveals the alien has led an exemplary life in the United States. He could readily obtain an immigration visa if the crime, the ground of inadmissibility, were waived under the Seventh Proviso. He was granted such waiver, which also permitted him to re-enter the United States to join his wife and family when in possession of the visa. Under the act of 1952, no relief would be available to the alien in either exclusion or deportation proceedings. Case 2 The alien was a forty-one-year-old married woman, a native of Ireland, and last a subject of Great Britain. Twenty-four years before, at the age of seventeen, she was convicted in Toronto, Canada, for stealing various articles of apparel and was sentenced to a prison term of which she served about one year. She entered the United States unlawfully in 1924 or 1925 and resided in the United States except for short visits to Canada. She last re-entered in 1937. Since 1926 she has been entirely dependent upon her husband, a legally resident alien who was then an applicant for naturalization. She had no arrest record other than the one concerning the conviction in 1922. This ground of inadmissibility was waived under the authority of the law, and the alien was admitted into the United States. After the act of 1952 the alien would be inadmissible. No discretionary authority is allowed to admit her. The 1951 annual report of the Immigration and Naturalization Service reveals that, from 1947 to 1951, inclusive, a total of 1,162 applications for exercise of seventh proviso relief were received. 1,028 applications were granted, and 134 denied. In 1951, 140 applications were received, 121 were granted, and 19 denied. Of those granted, 22 cases involved physical or mental defects, 86 cases involved the commission of crime, nine cases involved illiterates, and in four the grounds were not shown. The average length of residence in the United States where favorable action was taken was 23 years. In the explanation of this new provision of the act of 1952, it is argued that the previous authority to ameliorate hardships only encouraged efforts at illegal entry. On the other hand, an illegal entry, which under the 1952 act would bar such ameliorative relief, could result from the purely clerical error of a council in assigning an incorrect quota nationality to the alien. The heaviest impact of such provisions in the act of 1952 falls on the wives and children of those aliens who cannot now be readmitted to rejoin them in the United States. The commission recommends that the 1952 act's restrictions upon the exercise of seventh proviso authority be repealed. Temporary Visitors. The law makes no significant distinction between exclusionary grounds applicable to aliens entering the United States for permanent residence and those who are temporary visitors. The prospective visitor to the United States, no matter how brief his intended stay, is subject to exclusion in the same manner as an immigrant seeking to come to the United States to spend the rest of his life. The general effect of this situation was called to the commission's attention in the hearings in connection with temporary and short-time visits of scientists, scholars, artists, and businessmen. It impedes the free movement of aliens who desire to enter the United States temporarily for legitimate purposes. Its impact has been unfortunate along the Canadian border where residents of Canada often are required to pass briefly through the United States en route from one point in Canada to another. It has caused embarrassments and annoyances to distinguished scientists, scholars, and others who have wished to visit the United States for brief attendance at professional meetings. It is desirable to permit an alien to pass through the United States from one part of Canada to another in order to avoid a difficult, and in some cases non-existent, passage through the neighboring regions of Canada. It likewise is desirable to encourage visits by aliens to the United States for business, study, or pleasure. The entry of such persons should not require the same standards that govern the admittance of persons who intend to take up permanent residents in the United States. The Air Transport Association of America testified before the commission, the encouragement of business and pleasure travel favours not only the carriers but promotes national interests of far-reaching importance. The councils can call for vast data from each alien whether good or bad and can make every requirement a reason for delay. Too many aliens already feel that this is the policy followed today. On the other hand, they can recognize that just as there are aliens who are obviously inadmissible, so there are also many more who are legitimate travelers whose visits should be encouraged. For those in this class, the application should be received immediately and the visa issued promptly. Many of the exclusionary provisions of the immigration laws are concerned with long-term political, moral, and economic risks. Manifestly, such long-term considerations aimed at the prospective permanent resident often are not relevant in dealing with an alien who seeks to come for a short stay. The Attorney General has had authority under the so-called Ninth Proviso to permit the temporary entry of otherwise inadmissible aliens. Similar authority, hedged in with considerable language and many restrictions, is continued in the Act of 1952, but the exercise of this discretion generally entails long delay, usually for a determination by an official in Washington, D.C. Such delays often cause cancellation of the visit. The Commission recommends that the law ordinarily should apply to non-immigrants or temporary visitors only such exclusionary grounds as are directly concerned with the health, safety, and security of the United States. The otherwise applicable provisions for waiver would be available to visitors and non-immigrants. ALIENS FROM UNITED STATES POSSESSIONS Alaska, Hawaii, Puerto Rico, the Virgin Islands, and Guam are regarded as part of the United States for the purpose of the immigration laws. This means that no alien can enter those territories until he has been thoroughly screened under the immigration laws and has satisfied every requirement for entry into the United States. In addition, since 1917, the immigration laws required that aliens coming from our insular possessions be subjected to the same restrictions as if they were coming from a foreign country. The 1952 Act continued this policy and extended it to Alaska, which was not previously included. In his testimony before the Commission, the Director of the Office of Territories of the Department of the Interior stated, We believe that no useful purpose can be served by requiring such a second examination. The requirement appears to us to be burdensome, valueless, and discriminatory. An alien residing in Alaska, which is a part of the United States as defined in the immigration law, should be as free to travel to Seattle as an alien residing in Seattle is now free to travel to Spokane. Each is traveling from and to points within the United States. There should be no greater burden upon one than upon the other. Introducing such complications to travel between the territories in the continental United States can produce no salutary consequences. Normal intercourse with the territories will be hindered, and this in turn may be expected to have an adverse effect on the rapidity of territorial development. Although the legislative history of Section 212d7 is not revealing, we surmise that the drafters were motivated by a belief that it would advance the security interests of the United States. We submit that security considerations are no less important in the territories than they are within the continental United States. This is surely particularly true of such strategic areas as Alaska, Hawaii, and Guam. A person who cannot enter the continental United States for security reasons should not be allowed to enter the territories. We would hope and anticipate that immigration officers would be as conscientious in the performance of their duties in the territories as they are in the continental United States, and that a second examination of the same alien would be mere duplication. Officials and others from Alaska pointed out to the Commission that these new provisions would require an examination of United States citizens as well as aliens traveling between continental United States and Alaska would impede travel and commerce between those two areas and had already aroused strong resentments. The Department of the Interior emphasised that like difficulties exist in other principal possessions, Hawaii, Puerto Rico, the Virgin Islands, and Guam. This discrimination against inhabitants of the possessions of the United States seems to be unsound. In view of the critical importance to the security of the United States, of Alaska, Hawaii, Puerto Rico, the Virgin Islands, and Guam, the sowing of distrust and resentment in those areas by the imposition of unwarranted discriminations seems directly opposed to the national interest in security. The greatest vigilance should be, and the Commission is informed, is exercised to prevent the admittance of undesirables into our territories. The Commission recommends that an alien lawfully admitted to permanent residents in any part of the United States including Alaska, Hawaii, Puerto Rico, the Virgin Islands, and Guam should not be again subjected to the requirements of the immigration laws when he travels to the mainland or to any other part of the United States. Obsolete Requirements In many instances, the immigration statute retains archaic language that no longer has any clear meaning. This failing appears in the medical exclusions, which the United States Public Health Service has described as outmoded and often meaningless. That service pointed out that the 1952 Act made little change in the medical criteria included in earlier legislation and recommended that the obsolete language of the statute be conformed to modern medical knowledge. Specifically, the Public Health Service has stated that the terminology insane, feeble-minded, and mental defect have no exact medical significance for modern diagnosis and may result in inequities. The Public Health Service has recommended that the terms idiot, imbecile, moron, and mental disease be substituted as more consonant with contemporary medical concepts. The Commission approves these recommendations of the Public Health Service. Other examples of obsolete requirements continued in the statute could be cited. Thus, for example, the statute purports to bar paupers, professional beggars, and vagrants. Groups now obviously comprehended within the general exclusion of persons likely to become public charges. The Commission recommends that unnecessary duplication and obsolete requirements be eliminated from the law. Specific categories Subversives Because of the paramount importance of security protections during the present critical period, the provisions of immigration laws dealing with subversives are discussed separately in Chapter 15. Criminals and other groups The interest of our society in rejecting the criminal elements of other nations has always been an important factor in our immigration policy. The earliest federal statutes barred the entry of convicts, and a similar policy has been reflected in every subsequent federal enactment. The developing federal legislative design gradually has enlarged the restrictions aimed at criminals. An Act of 1891 prohibited the entry of aliens convicted of a crime involving moral turpitude. And an Act of 1907 introduced a prohibition against immigrants who admitted the commission of such crimes. In the 1952 Act these prohibitions are amplified and in addition exclusion is ordered in cases of aliens convicted of two offenses without regard to moral turpitude where aggregate sentences of five years or more were imposed. Permanent Bar for Single Crime The conviction of a single crime involving moral turpitude regardless of the circumstances under which conviction occurred and regardless of the length of the intervening period forever precludes an alien from admission to the United States. This law ignores the vast differences between kinds of offenses. It fails to recognize the possibility of redemption or reformation. It disregards the intervening family ties and neglects the effect of arbitrary action on the alien's family. It overlooks the fact that the most important asset an immigrant brings to us is his future, not his past. While the 1952 law grants some power to forgive youthful and discretions this authority is hedged in with so many limitations that it is virtually valueless. The commission recommends that the law provided administrative discretion to waive the ground for exclusion of an alien who has been convicted of a single crime involving moral turpitude where it is determined that the alien has been a person of good moral character for a given period of time such as, for example, five years, and that he is not a person of criminal tendencies. This proposal would make possible an assessment of whether his life evidences that he will be a decent, useful member of American society. In exercising such discretion the administrative officers would be required to take into account the gravity of the crime, the genuineness of the reformation, the alien's family ties, and other considerations. The commission does not recommend that there be any discretion to permit permanent entry where the alien has been convicted for two or more crimes involving moral turpitude arising out of separate criminal transactions. Such a history seems sufficient to demonstrate the criminal disposition of the applicant and to warrant his exclusion. At the same time the administration of the statute should take into account the irrationalities of criminal penalties in totalitarian countries. Although the statute excludes convictions for political offenses it is well known that totalitarian countries often make political punishments under the guise of prosecutions for ordinary criminal violations such as frauds against the state and larceny. Our immigration laws should not be used to enforce totalitarian justice. Therefore the commission recommends that where the conviction for a crime or crimes involving moral turpitude was rendered by a court in a totalitarian country the administrative officers should be authorized to inquire into the circumstances of the crime in order to determine whether the conviction actually was for a crime or crimes involving moral turpitude under American standards. Although the designation of crimes involving moral turpitude has not been entirely satisfactory it has not caused excessive difficulties. The principal problem in this connection is its indiscriminate application to both major and minor offenses. A youthful indiscretion in stealing seven shoelaces or a frantic father's theft of food to feed a hungry family are crimes involving moral turpitude. The commission recommends that the statute specify that minor infractions are not within the contemplation of crimes involving moral turpitude so as to bar entry. The immigration law should also permit consideration which it does not of any pardon or other form of clemency that may have been granted by the foreign government under whose laws a crime was committed. Conviction for two offenses A new provision in the act of 1952 prohibits the entry of aliens who have been convicted of two or more offenses regardless of whether they involve moral turpitude where aggregate sentences of more than five years were imposed. Despite the reservation in the congressional conference report the commission believes that this new provision in effect would penalize aliens who were subjected to false or trumped up charges in totalitarian countries. In his testimony before the commission the Attorney General of the United States urged amendment of this provision he said The practical problem of enforcement is that many aliens from the Iron Curtain countries undoubtedly contend that they were convicted of crimes when no crime has been committed and their sole offense was being politically opposed to those in power. It will be impossible to determine the truth or falsity of such claims. Trustworthy investigations to establish the truth or falsity cannot be made in the countries involved. Hence, I believe, there should be some clarification by statute of the nebulous middle ground between crimes and political offenses. Boris Shishkin speaking in behalf of the American Federation of Labor observed Even under the totalitarian law are guilty of no political offenses. A worker who is late to work in the Soviet Union may be thrown into jail. This is no political offense and should obviously be no grounds for exclusion from admission to this country. There are many other similar examples. The 1952 law, in effect, accepts Nazi and communist laws and the decision of Nazi and communist police officials and courts as the basis for excluding refugees from totalitarian countries from admission to this country. There can be no justification for such a provision. The law should be changed so that the principles of our own law and our own system of government should be the criteria used for determining whether to admit or exclude aliens. Walter Ruther recently elected president of the CIO commented, workers who protest speed-ups behind the Iron Curtain who sabotage red war production who organize free trade unions such as our own are criminals in the lands under red domination. If caught in these acts they become criminals in the eyes of the United States and are forever unable to come to our shores. The Commission finds these objections valid. There are also further reasons why this new provision of the Act of 1952 is objectionable. 1. It reiterates the philosophy that there can be no rehabilitation where an alien has once aired. 2. It does not require an alien to be convicted of what are regarded as crimes as distinguished from minor infractions. Conviction for any offense or violation of law is sufficient, walking on the grass, smoking in an unauthorized place, acts of juvenile delinquency, providing religious education to children in Iron Curtain countries, listening to the voice of America. Convictions for these offenses would be sufficient to bar the alien. 3. It does not require actual imprisonment for any period. Convictions where the sentence was suspended would suffice. 4. It makes foreign governments the final arbiters of American law. Where exclusions are based on the commission of crimes involving moral turpitude, the determinations are made by using standards applied in the United States. No such American standard is relevant in the provision requiring exclusions for the conviction of two offenses. Conviction and sentence are sufficient, regardless of the nature of the offenses. 5. Just as there are varying systems of justice in all countries, there are different standards controlling the sentencing of persons convicted of offenses. Courts in some countries may impose long terms of imprisonment and then suspend sentence or grant liberal parole. In other countries, the courts may impose short sentences but require them to be served. Thus, two aliens from different countries, although convicted of similar offenses, in one case may be barred from entering the United States while in the other would be admitted, yet the alien barred might be as desirable as the other in terms of American interests and welfare. The commission recommends that this provision be repealed. 6. Admissions of Crime Since 1917, the law has contained the authority to exclude aliens on the basis of an admission of crime involving moral turpitude. The Act of 1952 goes further than the previous law and authorizes exclusion when an alien admits acts constituting the essential elements of such crime. Thus, an alien may now be barred for a supposed infraction of the criminal laws of another country for which he has not been convicted and which he does not admit committing. The finding should be based upon admissions of acts constituting essential elements, whatever that means. The statute places upon the administrative officers an obligation to determine whether a crime has been committed, a function customarily performed by the criminal courts. Furthermore, the issue may involve a crime under foreign law. This adjudication will be made by immigration or counselor officers who ordinarily have no legal training. They will not be bound by constitutional protections surrounding criminal proceedings. Immigration or counselor officers will act as prosecutors, juries, and judges. The finding that an alien is guilty of committing a crime for which he was never convicted need not be made upon proof beyond a reasonable doubt or even upon a preponderance of the evidence. Copies of foreign laws are not ordinarily available to immigration officials. In such cases, the presumption is that the foreign law is the same as that prevailing in the United States. Thus, an alien may be excluded on the basis of events occurring in a foreign country which would not necessarily be a crime in that country. Indeed, he may be deemed guilty of a crime even where the foreign criminal authorities have not seen fit to institute prosecution or perhaps even where the courts of such foreign country have acquitted the alien. Immigration officials should not be given the function of balancing facts and deciding whether the facts established guilt of crime under foreign laws. The provision of the 1952 Act places an excessive burden on administrative authorities and lends itself to abuses in exacting admissions. The commission recommends that the revisions made by the Act of 1952 be eliminated and that an alien be subject to exclusion if he admits the commission of a crime or crimes involving moral turpitude. Conditions for waiver of inadmissibility should be the same for aliens who admit as for those convicted of a crime involving moral turpitude, except that the discretion to waive in cases of admission should not be limited to a single offense. False representations in applying for entry The Act of 1952 includes a new provision which forever bars an alien who has sought to enter the United States through fraud or willful misrepresentation. This statute continues and expands a similar provision of the Displaced Persons Act which perpetually barred displaced persons who had made willful misrepresentations when applying for entry into the United States. Of course fraud and willful misrepresentation of material information should be grounds for exclusion. The Act of 1952 however introduced the principle of perpetual exclusion. The Act of 1952 makes no provision for those cases in which misrepresentations may be prompted by fear or by an understandable effort to escape suffering and misery. The commission has been informed that refugees and displaced persons who, facing the possibility of being forced back behind the Iron Curtain or of reprisals against their loved ones who still lived there may have made false statements concerning their places of origin or former residence or other facts in their personal history. The report of the Congressional Conference Committee suggested that this provision be administered humanely and that its mandate should not serve to exclude or deport certain bona fide refugees who, in fear of being forcibly repatriated to their former homelands misrepresented their place of birth when applying for a visa. And such misrepresentation did not have as its basis the desire to evade the quota provisions of the law or an investigation in the place of their former residence. But the language of the law remains an open invitation to the perpetration of injustices. In its present form the statute imposes a penalty not reasonably related to any sound national interest. If the fact concealed affects the alien's admissibility it would in itself be a ground for excluding him. Thus it would appear that the statute penalizes the concealment of facts which in themselves are not material to the alien's admissibility. In the present state of the world with so many persons seeking to escape the oppressions and persecutions of communist dictatorships many have felt obliged so the commission is informed to resort to misstatements concerning their antecedents and identity. It does not seem reasonable to bar from the United States forever those who have made such misstatements. Even a former member of the Communist Party is not permanently barred under the act of 1952. The commission recommends that the bar against entry of those who have sought to enter on the basis of fraud or willful misrepresentation be retained but that the administrative authorities be given discretion to waive this ground of inadmissibility in meritorious cases. This would alleviate the inflexible rigor of the present requirement and would permit taking into account the circumstances of the case the length of time that has elapsed and the present worth of the applicant for entry. Economic Qualifications Although the best evidence available to the commission indicates that limited immigration does not increase or aggravate unemployment particular prospective aliens may be undesirable in that they may become economic liabilities upon the community. Therefore the exclusion of aliens likely to become a public charge is a reasonable and necessary element of our immigration policy. However the 1952 act permits this finding to be made on solely the basis of the opinion of the Attorney General or the Counselor Officers. Apparently it was designed to substitute subjective opinion for demonstrated fact and to lessen the opportunity for judicial inquiry. The statute allows much room for prejudice and for arbitrary action. Present practice in applying the public charge provision relies principally on evidence of the wealth of the sponsor. On September 8th, 1930 the President instructed the Department of State to adopt a strict interpretation of the public charge requirement. That course was said to have been dictated by the rise of unemployment in the United States. In complying with this directive the Counselor Officers required strong proof of economic reliability on the part of applicants for entry. This policy has never been published in any regulation but has continued to govern Counselor consideration of visa applications. Because of the absence of any published regulation there is no uniformity in current Counselor practices. Each Counsel establishes his own requirements for evidence of financial reliability. In the absence of personal means in his own right the prospective immigrant usually is required to submit to the Counsel the affidavit of at least one responsible person in the United States stating that the immigrant will not become a public charge. The sponsor customarily is required also to attach to the affidavit supporting evidence of his financial responsibility such as letters from his bank and his employer. Since the affidavit is not directly sanctioned by any statute or regulation it is quite doubtful whether it creates a legally enforceable obligation. So far as the commission is aware no attempt has ever been made to bring suit against a person who has signed such a sponsoring affidavit in cases where the immigrant actually became a public charge. Apparently the sponsoring affidavit has been regarded as useful for its moral persuasion and for establishing some tie with a responsible individual in the United States. The Displaced Persons Act of 1948, as amended, developed a new approach to the question of protecting the United States against public charges. There, in practice, the public charge provision was regarded as complied with when an alien had an assurance of a job and home which would not displace another person. The testimony before the commission indicated that this system worked well for the some 400,000 people admitted under that law. The commission believes that the law could be improved by adding affirmative criteria to guide administrative action. The commission recommends that the immigration law provide that no alien should be deemed likely to become a public charge who, one, has a firm assurance of employment in the United States and, two, has assurances furnished on his behalf by a responsible individual or organization in the United States that the alien will not become a burden in the community. In making this suggestion, the commission expresses no judgment on the merit of two features of the Act of 1952, owing to the fact that additional study of each subject is necessary. These subjects are the Contract Labor Clause. Since 1885 and until the 1952 Act, the immigration law excluded contract laborers from entry for permanent residents with certain exceptions and waiver provisions. This has always been regarded as one of the most important features of immigration restriction. The Displaced Persons Act waived this provision in the light of the job and housing assurances. The 1952 law eliminates the contract labor provision but authorizes exclusionary action upon a finding by the Secretary of Labor in connection with aliens seeking to enter to obtain employment. Concern was expressed by the Secretary of Labor that the elimination of the contract labor provision may put us in a position of acting too late to prevent unwarranted and economically harmful entry of foreign workers. Similar uneasiness was expressed by the American Federation of Labor whose spokesmen urged the commission to recommend restoration of the contract labor provision. Further study of the problem is desirable. Affidavits of Support Although the commission believes that it is desirable and necessary to retain in the law a provision excluding aliens who are likely to become a public charge, time has not permitted adequate study of the present method of administering this provision. Affidavits of Support are the principle method used to determine whether an alien is likely to become a public charge. Whether this is a satisfactory device to implement the public charge requirement is a matter which should be given further study. However, the commission believes that a satisfactory procedure should be adopted and codified in an appropriate regulation so that the administration may be uniform. End of section 22