 CHAPTER XIII. A. THE DEPORTATION OF ALIENS The United States has the legal right to expel any alien at any time. In practice, every alien admitted in accordance with law is permitted to remain so long as he observes the conditions laid down by Congress. If he elects to become a citizen and successfully meets the required qualifications, he acquires a new status, with immunities, privileges, and rights not vested in an alien. Here, as with other discussions of complaints against the immigration laws, it is well to remember that it is for Congress to establish the terms and conditions under which aliens are permitted to enter and remain in the United States. It is for Congress to determine what measures affecting aliens are best suited to meet the needs and promote the security of the nation. The position of the resident alien has been fruitful of much controversy through the years in this and other countries. Most immigrants, except visitors and non-immigrant laborers, enter the United States with the intention of remaining permanently and becoming citizens, and most of them do become citizens. Others remain indefinitely, some for life, but never renounce allegiance to their native countries and never become citizens. Congress could require all aliens, after a specified length of time, to become naturalized citizens or to leave the country. But Congress has not seen fit to enact such a requirement, and the Commission makes no such recommendation. Congress has chosen to allow aliens, legally admitted, to remain, and has even made provisions at times for permanent residence by those who are here illegally. It will be agreed so long as the law permits aliens to remain in this country without time limit that a moral, if not a legal, obligation exists to treat such people fairly. Especially where, as in this country, the alien is permitted to become a full-fledged member of the community in which he lives, to be employed, to own property, to marry and raise a family, to pay taxes, to serve in the armed forces, and otherwise to participate in all activities, including those reserved for citizens, such as voting. It is clear, therefore, that to aliens who have lived in the United States for many years, who have become integrated into its community life, and whose ties to their mother country may have become remote and purely technical, a deportation order becomes the most severe and cruel penalty imaginable. It may be the equivalent of banishment or exile, and the Supreme Court has pointed out that deportation may result in the loss of both property and life, of all that makes life worth living. A few examples illustrate types of hardships resulting from our immigration laws with respect to deportation. Case 1 The alien came to the United States in 1921, at the age of sixteen. Within five years after his entry he was involved in an automobile accident which resulted in the death of a child. He was convicted of manslaughter, served a sentence, and was paroled. More than five years later he was ordered deported. Case 2 The alien entered the United States with his grandparents in 1916, at the age of thirteen. In 1922 he married a native-born American and they had two sons. During World War II his son served honorably in the armed forces of the United States. He was a good worker and family man, and never had been arrested for any offense. In applying for naturalization in 1949 he voluntarily disclosed that he had been a member of the Communist Party for a few months in 1934 or 1935, had paid about ninety cents to that organization, had dropped out of it, and had had nothing to do with it since. His deportation was ordered. Case 3 The alien entered the United States with his parents in 1913, at the age of three months. His three brothers and two sisters were born in the United States. In 1930, when seventeen years of age, he was convicted of attempted larceny and in 1932 was convicted of robbery. He was ordered deported. Case 4 The alien came to the United States in 1913 and left in 1921, returning again in 1925 without a visa. For failing to disclose his absence from the United States between 1921 and 1925 he was convicted of perjury. He has been steadily employed in steel mills since 1933 and his conduct in other respects has not been questioned. His family is in the United States and his two sons are American citizens. Many years after his conviction for perjury his deportation was ordered. These random examples could be multiplied indefinitely. In each of these instances courts publicly criticized the unreasonable harshness of the deportation statute but they were powerless to mitigate its effect. A substantial number of responsible organizations and individuals urged the Commission to recommend abolition of all deportation except where entry into the United States had been obtained by fraud. They pointed out that Australia grants complete immunity from deportation, in peacetime, to aliens with three years residence. In other countries such as Belgium and Brazil certain groups of aliens are exempt, especially where they have tied their future to the country by residence or marriage. The Commission believes that the suggested abolition of all deportation is much broader than necessary to accomplish its purpose. The suggestion really aims at two grievances. 1. Some of our present substantive legal requirements for deportation are unreasonable. 2. Some of our present procedures for administrative and judicial review of deportation orders and for the exercise of discretionary relief are inadequate. The Commission believes that appropriate changes to remedy these wrongs rather than the total abolition of deportation is the desirable solution. The first of these grievances relating to the substantive provisions of law on deportation is discussed in this chapter. The second is covered by the Commission's recommendation for the establishment of a statutory board of immigration and visa appeals, chapter 10, and the recommendation for a statutory method of appealing from such board's decisions to the courts, chapter 11. These recommendations, and the additional recommendations made in this chapter, the Commission is convinced would meet most of the complaints against the injustices of our present deportation system and still retain necessary and adequate provisions for protection of the United States. The following table indicates the operation of the deportation process for the last three years for which figures are presently available. Table 14. Deportations, 1949, 1950, and 1951. Aliens deported from the United States by country or region to which deported. Years ended June 30, 1949, 1950, and 1951. Country or region to which deported. All countries, 1949, 20,040, 1950, 6,628, 1951, 13,544. Europe, 1949, 983, 1950, 947, 1951, 1537, Asia, 1949, 225, 1950, 244, 1951, 238. Europe, 1949, 869, 1950, 737, 1951, 1100, Mexico, 1949, 16,903, 1950, 3,319, 1951, 8,928. Central America, 1949, 152, 1950, 144, 1951, 163. South America, 1949, 149, 1950, 160, 1951, 269. Africa, 1949, 39, 1950, 47, 1951, 46. Other countries, 1949, 374, 1950, 308, 1951, 192. Table 14. Deportations, 1949, 1950, and 1951. Aliens deported from the United States by cause. Years ended, June 30th, 1949, 1950, and 1951. Cause. All causes. 1949, 20,040, 1950, 6,628, 1951, 13,544. Criminals, 1949, 1024, 1950, 790, 1951, 1036. Immoral classes, 1949, 76, 1950, 53, 1951, 67. Violators of narcotic laws, 1949, 70, 1950, 55, 1951, 62. Mental or physical defectives, 1949, 82, 1950, 53, 1951, 45. Previously excluded or deported, 1949, 3,815. 1950, 553, 1951, 940. Remained longer than authorized, 1949, 1,379. 1950, 1,661, 1951, 3,289. Entered without proper documents, 1949, 998. 1950, 1,352. 1951, 5,322. Entered without inspection or by false statements. 1949, 12,094. 1950, 1,734. 1951, 2,293. Likely to become public charges. 1949, 20. 1950, 38. 1951, 14. Subversive or anarchistic. 1949, 4. 1950, 6. 1951, 18. Miscellaneous. 1949, 149. 1950, 109. 1951, 160. Source, Immigration and Naturalization Service, Annual Report for 1951, page 61. These figures do not include a large volume of illegal entrance, principally from Mexico, who depart voluntarily in lieu of deportation. The commission has been informed that a substantial proportion of deportations are based on technical violations of the laws which prescribe the formal procedures that must be followed in entering the United States. Deportation is an aspect of exclusion. The deportation power compliments the power to exclude. When an alien enters or remains in the United States in violation of immigration laws, the statute should enable him to be deported within a reasonable period. However, certain revisions of existing laws should be made. Technical violations. Our immigration statutes contain many complex prerequisites for admission to the United States. By the same token, an alien who has entered may be deported at any subsequent time if it is discovered that his entry was irregular in any particular. This may be true under the present situation, even though the alien was entirely blameless. Many of the immigration requirements are highly technical. Thus, the law requires, for example, a correct determination of nationality for quota purposes, the issue of particular types of entry documents, and the execution of appropriate agreements by transportation lines which bring aliens to contiguous territory. In many such cases, the alien himself has nothing to do with the actual compliance with the technicalities of law. A failure to observe these, or a multitude of other technical requirements, makes the alien's entry irregular and therefore, under present law, renders him subject to expulsion. The commission believes that if the alien acts in good faith and is passed by immigration officers, there is no substantial reason why his status in the United States should continue to be insecure because of the error of the administrative officials. The commission recommends that when an alien is admitted for permanent residence in the United States by immigration officers, he should not, in the absence of any fraud or other illegality for which he is to blame, be subject to deportation for technical defects in connection with his entry or status. Statute of limitations. That it is wrong to keep the threat of punishment indefinitely over the head of one who breaks the law is a principle deeply rooted in the ancient traditions of our legal system. The law requires that criminal prosecutions, except for capital offenses, such as murder and treason, be brought within a fixed period of time or not at all. A similar dispensation covers the enforcement of civil liabilities. Prosecutions for many serious crimes under federal law generally are precluded unless brought within three years after the crimes were committed. The three-year statute of limitations applies to bribery, counterfeiting, forgery, extortion, male fraud, perjury, and robbery. Prosecutions for frauds against the United States generally are governed by a six-year statute of limitations. Under the Immigration Act of 1917, aliens who entered in violation of law were subject to deportation only if expulsion proceedings were commenced against them within five years after the improper entry. In connection with the Grounds for Deportations specified in the 1924 Act, no statute of limitations applied. The Act of 1952 eliminated the provision of the 1917 Act, and therefore an alien now is subject to deportation at any time for even minor technical violations. The statement in the Congressional Conference Report that the conferees have provided for a statute of limitations as contained in the House version in accord with humanitarian principles refers only to the exceedingly narrow provision that mental disease or economic distress after entry will justify deportation at any subsequent time only if it occurred within five years after entry. Under the Act of 1952, deportation proceedings for any cause specified in the statute can be brought at any time after entry and are not subject to any statute of limitations. Indeed, the 1952 statute retroactively rescinded the limited statute of limitations fixed by previous law. An alien who entered the United States 25 years ago and whose entry involved a purely technical violation enjoyed immunity from deportation for the last 20 years. Under the 1952 Act, he is now again subject to deportation. That act threatens the security of many aliens and their families. Their immunities have been removed and they may be torn out of their accustomed places in the communities in which they live, no matter how exemplary their conduct over a long period of years. Instead of being a humanitarian measure as the Congressional Conferees on the Act of 1952 characterized it, the new act actually restores the threat of cruel and inhuman punishment for offenses long since forgiven. This undue severity is underscored by the fact that although prosecutions for aggravated criminal violations of the immigration laws are subject to a three-year statute of limitations, deportation proceedings for such violations as well as for infractions which offend no criminal law are governed by no statute of limitations and may be brought more than say 20 or 40 years after an alien entered the United States. No one has suggested any sound reason why the purpose of limitations, recognition of the unfairness involved in requiring a person to make a defense long after the event when it is difficult or impossible to assemble witnesses and evidence does not apply to immigration matters at least with equal forces to prosecutions for serious crimes. It is said that the existence of a statute of limitations would encourage aliens to enter the United States in violation of the immigration laws. A person who enters or remains in the United States in violation of the immigration laws should be subject to deportation from the United States but the consequences of such a violation should be enforced against him within a reasonable time. There is a fundamental public purpose which is served by statutes of limitations for crimes and in civil actions. This is just as important an objective of law enforcement as the avoidance of violation of law. A statute of limitations on deportations has been part of our laws for 65 years. The five year period of limitations was in our immigration laws since 1917 and until removed by the act of 1952. The commission believes that a period of 10 years within which proceedings must be brought after the commission of an act for which deportation is provided is ample for the government to ascertain that a violation had occurred and to take action against the offender. The commission recommends that the immigration statute should provide that a deportation proceeding may not be commenced against any alien more than 10 years after the violation occurred. Deportation for reasons of security is discussed in Chapter 15. Residents who have been temporarily absent abroad, the re-entry doctrine. Chapter 12 discusses the re-entry doctrine which holds that the excluding provisions of the immigration laws apply fully to an alien resident of the United States who returns from a temporary visit abroad however brief. The unreasonableness of this rule is illustrated most graphically in deportation cases. The facts often come to light in naturalization proceedings. Questioning sometimes reveals that the applicant once committed a minor offense or suffered a disability from which he has completely recovered. Although these circumstances do not in themselves make the alien deportable, if he ever went on a trip to Havana, Montreal or Tijuana for example, he becomes subject to deportation as an alien who was excludable when he re-entered the United States. Legally, every return of an alien to the United States is regarded as if he were coming to the United States for the first time. The impact of the re-entry doctrine on resident aliens of the United States is illustrated by the following two cases which are typical of hundreds of others. Case one, the alien was lawfully admitted to the United States for permanent residents in 1932. In 1939, on a plea of not guilty, she was convicted of a theft charge. She was fined $1 and costs. This conviction did not make her deportable. In December 1939, she re-entered the United States after a short visit to Mexico. An alien who committed the crime of theft before entering the United States is inadmissible to the United States. By departing from the United States and then re-entering, the alien was herself in the position of a person who committed theft before entry and was deportable. In 1940, she was arrested in deportation proceedings on the ground that she had committed theft, a crime involving moral turpitude, prior to her last entry in December 1939. The alien's husband and her three native-born children reside in the United States with her. She had no other police record. She was found deportable, but the Attorney General ordered cancellation of the proceedings under discretionary authority. Case two. The alien, a native of Yugoslavia, was 55 years old. He first came to the United States in 1909, but there was no record of his entry. Through administrative process, his entry was registered as 1939 and his status as a lawfully resident alien confirmed. In 1924, he had been convicted of larceny and placed on a year's probation. This matter was considered when his status was adjusted to that of a lawfully permanent resident alien and found not to be a bar to that action. In 1939, he left the United States for the purpose of settling an estate in Yugoslavia. He was re-admitted in the same year. In the same year, a warrant of arrest was issued, charging him with being deportable as one convicted of a crime prior to entry. The alien was found deportable, but he was permitted to remain in the United States under discretionary authority. In the past, the law has permitted relief in such cases through the so-called Seventh Proviso, which authorizes the administrative authorities to waive grounds of inadmissibility and thus deportability for aliens who have been seven years residence in the United States. Relief under the Seventh Proviso was granted to the majority of qualified aliens who applied for it. Although it accomplished a desirable purpose, this process has generally caused needless trouble and expense to the government and to the alien. The commission recommends that the re-entry of an alien returning to a lawful permanent residence in the United States following a brief absence shall not be regarded as a new entry under the immigration laws. Such brief absence should not be a factor in the determination as to whether he is subject to deportation. The re-entry doctrine produces many shocking results. Until a contrary opinion was obtained from the courts, the administrative authorities ruled that where an alien unknowingly passed over Canadian territory on a train trip between two points in the United States, he had left the country and made a new entry when the train again reached the United States. In another case, the same situation occurred when a sailor was taken to a nearby foreign port by a ship which rescued him as a survivor of a torpedoed American vessel during World War II. The Supreme Court said that these interpretations were capricious and that the right to reside in the United States should not become the sport of chance. The act of 1952 wrote into law provisions which, except for aliens who are lawful permanent residents, will produce the results denounced by the Supreme Court. The commission recommends that the law in effect prior to 1952 be restored so that a return following an involuntary absence, even in the case of an alien not lawfully admitted for permanent residents, should not be deemed an entry under the immigration laws. End of section 23. Section 24 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 5, Chapter 13B. Deportation as Punishment. In 1910 a statute was passed sanctioning expulsion at any time of an alien found identified with the business of prostitution. Eventually the concept of deportation as punishment for misconduct spread rapidly. Today it is predominant in the deportation statute. In 1917 deportation for criminal violations in the United States was authorized. The deportation of subversives was the subject of legislation in 1918 and 1920, as well as of the Alien Registration Act of 1940 and the Internal Security Act of 1950. The Act of 1952 codified and considerably enlarged the grounds for deportation as punishment for misconduct in the United States. Difference in treatment of aliens and citizens. If a citizen violates a law of the United States, he may be imprisoned for a specific period of time. If an alien violates the identical law, he likewise may be imprisoned, but in addition he may be banished from the United States. Judge Augustus Hand has observed that for an alien, however serious his crimes, deportation is to him exile, a dreadful punishment, abandoned by the common consent of all civilized people. Such indeed it would be to anyone. Subject to conditions discussed elsewhere, there does not seem to be any sound basis, especially after the lapse of many years, for adding deportation as punishment for an alien to the penalties provided by the criminal laws. Wrongdoers produced by our society. Alien children of tender years come to the United States with their parents, often as babes in arms. In some instances they grow to maturity here and then turn out badly. Because of the punitive provisions in our immigration statutes, the wrongdoing of such individuals makes them subject to deportation, in addition to any other penalties the criminal laws may impose. The following are illustrative cases among many that could be cited. Case one. The alien, a native of Canada, was brought to the United States as an infant in 1913. In 1931 he was convicted of breaking and entering and stealing an automobile. He was placed on probation for two years. About a month later he committed a robbery and was sentenced to a reformatory for seven years. He was found deportable on the ground that he had been sentenced more than once for crimes involving moral turpitude. He was ordered deported in 1941. He left behind him a United States citizen wife and two citizen children, all of whom were dependent upon him. Case two. The alien, a native of Air, was brought to the United States by his parents in 1909 at the age of five years. His entry was lawful and he has since lived in the United States continuously. Until 1935 he had believed that he had acquired citizenship through the naturalization of his father. In that year he learned he was an alien. He is single. He has no relatives or friends in air. His mother, two brothers and a sister reside in the United States. In 1922 when about 18 years of age he was convicted and sentenced on a charge of larceny of property of the value of $152. In 1927 he was convicted of larceny of property of the value of $200 and of larceny of property of the value of $83. He served a sentence of four years for these convictions. In 1935 he was sentenced to serve two years for stealing mail matter. Since then he has had a good record. In 1942 deportation proceedings were brought on the ground that he had been sentenced to imprisonment more than once for a term of one year or more for the commission subsequent to entry of a crime involving moral turpitude. His deportation to air was ordered. Case three. The alien came to the United States in 1913 when he was three months old and has lived there since that time. In 1930 when 17 years of age he was convicted of attempted larceny and in 1932 was convicted of robbery. His three brothers and two sisters were born in the United States. An order for deportation was entered and was challenged in court in 1935. The court observed his deportation will be tantamount to exile from a country in which he has always lived to a country in which he will be a stranger. These are circumstances however which cannot be considered by this court. Each of these aliens is the product of our society. Their formative years were spent in the United States which is the only home they have ever known. The countries of their origin which they left in two cases during infancy in another at the age of five years certainly are not responsible for their criminal ways. Their criminal careers are American, not foreign products. If such a person offends against our laws he should be punished in the same manner as other citizens and residents of the United States and should not be subject to banishment from this country. We cannot expect other countries to take and continue to take undesirable people who have no real tie with them. The commission recommends that no alien shall be subject to deportation if he was lawfully admitted to the United States for permanent residence before reaching the age of 16 years or if he was lawfully admitted for permanent residence and has resided in the United States for 20 years. Excessive penalties. Some offenses for which deportation may be ordered under the law do not warrant such an excessive punishment. Deportation may result from trivial offenses for misbehavior many years after entry into the United States without any limitation of time and for wrongful conduct of the remote past without any consideration as to whether there has been reformation or expiation. Retroactive penalties. The Act of 1952 retroactively makes aliens deportable for specified causes involving conduct that violated no law and warranted no punishment when it was committed. For example, the Act of 1952 subjects to deportation, an alien who entered the United States without proper inspection in 1918, in whose case the statute of limitations 20 years ago forbade deportation and who also could have been naturalized before December 24th, 1952, after his original entry had been legalized by an administrative registry process. An alien may engage in an activity which is perfectly lawful today and yet may be deported 20 years hence because a statute passed in 1970 may declare the Act he performs today to be criminal. Witnesses in the commission's hearings objected to this retroactive provision as a form of ex post facto law forbidden by the Constitution of the United States. The Supreme Court has decided that deportation is not criminal punishment and that the constitutional prohibition against ex post facto laws does not invalidate retroactive deportation requirements. Nevertheless, such retroactivity has no place in the laws of the United States. The commission recommends that the blanket retroactive provision in section 241D of the 1952 Act be repealed. Specific categories. Subversives. Deportation for reasons of security is discussed in chapter 15. Violators of criminal statutes. The provisions dealing with violators of the criminal laws are among the principal punitive features of the deportation statutes. Before 1917, there was no statute authorizing deportation for conviction of crime in the United States. As a result of recommendations made by the Immigration Commission in 1911, the Act of 1917 authorized expulsion following convictions under certain conditions for crimes involving moral turpitude. The Act of 1952 increased the application of these penalties. Criminal offenders before entry. The commission believes that the laws providing for the deportation of aliens who enter the United States in violation of the provisions excluding criminals should relate to original entries and not to re-entries after brief absences. And further, the deportation for such offenses should be subject to limitations of 10 years as discussed elsewhere. Conviction of one crime after entry. The Immigration Act of 1917 provided for the deportation of aliens convicted of a crime involving moral turpitude committed within five years after entry, where such conviction was followed by a sentence to imprisonment for one year or more. However, if the court suspended sentence on the belief that the crime was committed under circumstances which did not warrant imprisonment, the alien was not subject to deportation. Under the Act of 1952, however, such an alien would be deportable. A recommendation to continue the provisions of the 1917 Act was made in the report of the Senate Judiciary Committee. This recommendation was not adopted. The commission recommends restoration of the provision of the Act of 1917. Unlike the previous law, the Act of 1952 makes confinement in a corrective institution a ground for deportation. So where a person sentenced is a minor who was confined principally for educational and corrective purposes, he becomes subject to deportation. A person under 21 who commits a criminal offense and who is placed upon probation, parole, or in a correctional institution, primarily for corrective and educational purposes, should not be subject to deportation solely for that reason. The commission recommends that an alien convicted for one crime involving moral turpitude should be subject to deportation only if the offense was committed within five years after the alien's original entry into the United States for permanent residence and resulted in a sentence to a penal institution for one year or more. Although the designation of crimes involving moral turpitude is not completely satisfactory, the commission believes, as previously stated in Chapter 12, that this descriptive term has not caused too much difficulty and that it should be retained. Where there has been a conviction for a crime involving moral turpitude, deportation does not result if there has been a pardon or if the court recommends against deportation. However, the Act of 1952 lists an additional number of crimes for which deportation may be ordered without regard to whether they involve moral turpitude. In connection with such crimes, no provision is made for clemency in worthy cases. As is done with crimes involving moral turpitude as a result of pardons or court recommendations against deportation. In one instance, involving activities by aliens in aiding other aliens to enter unlawfully, no court conviction is necessary and the administrative officers are required to determine whether a crime has been committed. The commission recommends that wherever the statute requires deportation for criminal offenses, deportation shall not be ordered where there has been a pardon or a recommendation by the court against deportation. The commission recommends further that even where an alien is subject to deportation because of a conviction and sentence for one offense, deportation should be ordered only if the head of the agency administering the immigration law also finds the alien to be an undesirable resident of the United States. CONVICTION FOR MORE THAN ONE CRIME The Act of 1917 required deportation at any time after entry of an alien convicted and sentenced more than once for crimes involving moral turpitude. This provision was intended to reach confirmed criminals. It applied to aliens who resided in the United States for five or more years. Under that Act, as construed by the Supreme Court, such an alien was deportable if at any time after entry he committed a crime involving moral turpitude for which he was sentenced to imprisonment and confined and then after serving the first sentence committed another crime involving moral turpitude for which he was convicted, sentenced and confined. The Act of 1952 changes the prior law and eliminates, one, the necessity for imprisonment and two, the necessity that the second conviction take place after the alien had been subjected to punishment. Thus an alien who has been found guilty under an indictment containing several counts arising out of one transaction is now subject to deportation even though the offense may have occurred many years after his entry into the United States and the court did not regard it as sufficiently serious to require a prison sentence. The commission recommends that the provisions authorizing deportation for two or more crimes involving moral turpitude be retained substantially as an effect prior to the Act of 1952 provided that deportation in such cases shall be directed only if the head of the agency administering the immigration law finds that the alien is an undesirable resident of the United States and provided that no alien should be subject to deportation who entered the United States for permanent residence before reaching the age of 16 years or who was lawfully admitted for permanent residence and has resided in the United States for 20 years. Violation of registration requirements. A new provision originating in the Act of 1952 makes an alien subject to deportation for failure to report his present address as required by law but permits relief from deportation upon a showing that the omission was reasonably excusable or was not willful. Conviction of the offense is not required. The Act also requires deportation upon conviction for other infractions of the registration statute regardless of whether the court imposed sentence. No provision is made for alleviation in the case of a pardon or a court recommendation against deportation. Convictions for infractions of the registration provisions carry substantial penalties. Sentences which may be imposed as a result of conviction should be an adequate deterrent without the additional penalty of deportation. Such additional punishment is entirely out of proportion to the nature of the offense. These provisions can have little effect upon aliens unlawfully in the United States as such aliens are subject to deportation on other grounds. Their only effect is to impair the status of lawfully resident aliens. The commission recommends that the provisions authorizing deportation for violations of the alien registration laws be eliminated as unnecessary and excessively severe. Narcotic drug addicts. The Act of 1952 requires for the first time deportation of any alien who is or at any previous time has been a narcotic drug addict. Previous legislation providing for the deportation of those convicted of violating the narcotic law had exempted from expulsion narcotic addicts who were not dealers in or peddlers of narcotic drugs. The statute makes no distinction between aliens who may be incurable, who may be curable or who may have been fully cured. The 1952 Act makes no allowances for length of residence in the United States before addiction occurred. Nor does it make any difference whether the addicts or former addicts have violated any law or have become a problem to the community. There was the case of a much decorated hero of World War II who became a drug addict as a result of drugs prescribed to alleviate pain resulting from his wounds. If such a person were an alien, he would be subject to deportation. It is unjust to apply the same yardstick to persons engaged in drug traffic and to their unfortunate victims. The commission recommends that applicable provisions for deportation be related solely to those engaged in the unlawful traffic in narcotic drugs as provided by law prior to the 1952 Act. Aliens Who Become a Charge on the Community Under the law in effect prior to the Act of 1952, an alien who became a public charge within five years after entry was subject to deportation unless he could establish that the cause arose after arrival in the United States. Where such a cause occurred within the five-year period, the law placed the burden on the alien to establish that his becoming a public charge was not the result of a condition which existed prior to entry. The 1952 law continues public charge as a ground of deportability but makes the determination dependent on the opinion of the immigration officer. The Act permits a finding of deportability for public charge to be based not on facts but on opinion, whereas other grounds of deportability must be supported by substantial and probative evidence. The legislative history of the 1952 Act does not indicate that there was any administrative difficulty in enforcement of the prior law, nor does it disclose the reason for making the public charge finding dependent on the mere opinion of the administrative officials. The commission recommends that a finding of deportability on the ground that the alien became a public charge within five years after entry for causes not affirmatively shown to have arisen subsequent to arrival in the United States be based upon fact and not upon opinion. End of Section 24. Section 25 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. Recording by Patrick McAfee, Evanston. Whom we shall welcome. Report of the President's Commission on Immigration and Naturalization. Part 5, Chapter 14. Relief in Deportation Cases. Deportation orders frequently affect many people in addition to those against whom action is taken. The aliens, spouse, and children, often citizens, are linked with the destiny of the deportee. The hardships caused in many cases by such an order have prompted measures for discretionary relief, some by statute, and some by administrative regulation or practice. The provisions for relief were well defined prior to the Immigration and Nationality Act of 1952. Although in many aspects, they were not entirely adequate, in general, they appeared to be reasonably satisfactory. The Act of 1952 restricted or eliminated practically every provision for discretionary relief. General deportation statutes cannot deal justly in every situation, and the Commission believes that a sound immigration law should continue to authorize the alleviation of excessive hardships in individual worthy cases. Three principal discretionary remedies existed prior to the Act of 1952. One, voluntary departure. Two, pre-examination. And three, suspension of deportation. In addition to these administrative remedies, there was a fourth one of a legislative character, the growing practice of introducing in Congress private relief bills to forestall deportation. Voluntary departure. In many instances, a person may be deportable for reasons which impute no personal blame. For instance, a temporary visitor may be prevented from or delayed in leaving the United States by causes beyond his control. A seaman discharged at an American port may be unable to find a new ship within the period of shore leave allotted to him. A student may be financially or physically unable to continue his studies. A diplomatic official may resign because his new home government is unfriendly to him and us. He may even be a defector from communism. In recent years, many persons in a temporary status in the United States have been unable to return to their home countries which have fallen under communist control. In other instances, personal fault is slight or difficult to assess. Some aliens who have come into the country for pleasure or business may have willingly or unwittingly failed to comply with the laws pertaining to entry. In all such cases, the aliens are subject to deportation. Until 1940, there was no specific statutory authorization to do anything but to deport such people. However, deportation involves a personal stigma and a person deported from the United States commits a crime if he re-enters without the specific permission of the attorney general. To avoid such situations to the extent desirable and to save the government the trouble and expense of deportation, the discretionary remedy of voluntary departure was devised by administrative officials. The discretionary remedy of voluntary departure is merely permission to the deportable alien to leave the United States within an allotted time and without a deportation order. Voluntary departure serves the needs of the government and of the alien in meritorious cases. The Alien Registration Act of 1940 required an alien to prove that he was a person of good moral character for five years before he could be allowed voluntary departure. It precluded the granting of such relief to persons deportable for various violations of law relating to subversives, criminals, prostitutes and narcotics. Although the Act of 1952 adopts the rule of the 1940 Act it gives unrestricted administrative authority to grant voluntary departure before deportation proceedings have been started. However, the Act of 1952 in effect limits the opportunities for granting this relief through an unreal definition of good moral character which is discussed more fully in relation to suspension of deportation and to deportation. The expedient of voluntary departure has been widely used. The large volume of illegal entries of Mexican agricultural laborers across the southern border of the United States has created a need for flexibility. It would be difficult and expensive to ascertain whether each such illegal entrant possessed particular qualifications before he could be permitted to depart from the United States. Deportation hearings are expensive for the government and burdensome upon the alien. Moreover, the expulsion of the alien entails large costs which are avoided if the alien is permitted to depart at his own expense. The commission recommends that administrative officials should have authority to permit aliens who are illegally in the United States to depart at their own expense. The conditions and circumstances under which that privilege is granted should be left to the sound discretion of the administrative officers without the unnecessary limitations now found in the statute. Pre-examination. In many instances, persons in a temporary or irregular status desire to establish permanent residence and are otherwise eligible to do so. Since under the immigration law, consuls are not authorized to issue immigration visas in the United States, an alien desiring adjustment of status to permanent residence was required to return to his country of origin for such visa. This was an expensive procedure which served no useful purpose either for the alien or for the United States. To meet this situation, the administrative authorities in 1935 devised a process known as pre-examination. An arrangement was made with Canada under which aliens who had been authorized such pre-examination in the United States could enter Canada to obtain an immigration visa at any American consulate in that country for the purpose of re-entering the United States immediately as an immigrant. The United States guaranteed to Canada that it would permit the immediate re-entry of such aliens. Pre-examination consisted merely in examining a prospective immigrant in the United States to determine his admissibility. Under this procedure, an alien took a short trip to Canada instead of a long and expensive trip to his home country. Pre-examination depended entirely on administrative regulations and practices. It was often coupled with an authorization for voluntary departure. Under the established procedure, an alien was not allowed pre-examination unless he demonstrated to the immigration authorities that an immigration visa was immediately available, which means that for a quota immigrant, a quota number must be currently available and that he was otherwise admissible under the immigration laws. An alien granted pre-examination could complete all his preliminary arrangements by mail. Usually, after receiving an appointment from a United States consul in Canada, he could enter Canada, apply for and secure his visa, and re-enter without being outside the United States for more than a day or two. Pre-examination did not eliminate the usual checks and procedures in issuing visas. No persuasive evidence seems to have been presented to justify a contrary view. In any event, any loopholes or other difficulties could have been remedied by the administrative authorities. The following are typical cases in which the privilege of pre-examination was authorized. Case one, the alien, a Norwegian, was admitted to transit in 1942 with other survivors of a torpedoed vessel on which he had been chief engineer. Because of unfitness foresee duty, he remained ashore. He became the president of a ship cleaning company which performed war work. He was eligible to first priority for a non-preference quota visa because of his services at sea during the early days of the war. He was allowed voluntary departure and pre-examination so that he could go to Canada and apply for his visa instead of returning to Norway. Case two, the alien became a citizen in 1926. He returned to Italy in 1930 and resided there until 1946, at which time he re-entered the United States as a citizen. Unknown to him, his naturalization had been canceled in 1935. It was concluded that he had obtained an American passport and re-entered the United States in good faith. Under the circumstances, the application was found exceptionally meritorious and pre-examination was authorized so that he could enter Canada and obtain his visa instead of returning to Italy to obtain it. Case three, the alien, a 29-year-old native and citizen of the Republic of the Philippines last entered the United States as a seaman on January 5th, 1947. He intended to remain permanently but had none of the necessary immigration documents. He had enlisted in the Army of the United States in Australia in 1942 and served until his honorable discharge in 1945. He is the holder of five decorations. His good moral character for a five-year period was established by the record. He was eligible for the issuance of a first priority non-preference quota visa. By reason of his war service, his case was found to be exceptionally meritorious. He was granted the privilege of voluntary departure and pre-examination so that he could go to Canada to apply for his visa instead of returning to the Philippines. During 1951, out of a total of 1,945 new applications for pre-examination, which were filed by aliens not subject to deportation proceedings, 1,201 were approved and 156 denied. 30 pre-examinations were revoked. Effect of 1952 Act. Although the Act of 1952 did not inexpress terms abolish the practice of pre-examination, the Congressional Conference Committee stated that it contained a prohibition against pre-examination. The regulations issued by the Immigration and Naturalization Service adopt the conclusion suggested by the conferees and in effect abolish pre-examination. The theory of this action as explained in the conference report was, quote, that the pre-examination system was cumbersome, obsolete, and as practiced, contained certain loopholes for the admission for permanent residence of undesirable aliens, end quote. The pre-examination procedure was generally believed to be reasonably adequate. It seems somewhat strange that criticism of the procedure of pre-examination should have been based as the commission is informed on opinions expressed by the administrative officers who devised and operated it and who had ample authority to plug any loopholes in it and otherwise make it conform to proper practice. Congress, in eliminating pre-examination, did not supply a satisfactory substitute. It introduced a new procedure called adjustment of status of non-immigrant. In one important respect, this seems an improvement over former practices since it allows adjustment of status in the United States without requiring a trip to Canada. But the act of 1952 surrounds the new procedure with conditions and limitations which apparently permit only a few to qualify and which therefore may be self-defeating. For example, this new adjustment of status may be granted only to an alien lawfully admitted as a non-immigrant or temporary visitor and who is continuing to maintain that status. By denying adjustment to otherwise admissible aliens whose present status is irregular for one or another reason, the new procedure loses one of the major benefits in the old system of pre-examination. The only avenue provided for the great number who cannot meet such rigidly limited conditions is suspension of deportation. But this requires a finding that they are deportable and the procedure is slow, cumbersome, and expensive. In fact, in most such cases are rising under the 1952 Act, an alien who resides in the United States and who would be qualified immediately to immigrate to the United States if he lived overseas must again make the long and expensive trip to his homeland in order to obtain a visa and return. The commission recommends that an alien in the United States in a temporary or irregular status be given the privilege of having his status adjusted to that of a lawful permanent resident without being required to leave the United States if he is currently qualified to enter the United States under the immigration laws. This will entail mental and physical examination, security clearance, and satisfaction of all qualitative requirements, as well as the present availability of a quota number when it is required. The presence of such an alien in the United States should not give him any preference or advantage over prospective immigrants in foreign countries. Suspension of deportation. Congress has provided that hardships created by the inflexible provisions for deportation may be avoided through a procedure known as suspension of deportation. Most of the aliens who become legal residents follow the usual course of obtaining immigration visas abroad. For example, in the fiscal year 1951, 156,547 quota immigrants were admitted from abroad. Only 1,506 aliens became legal residents through suspension of deportation and charges were made against the proper quotas. During 1950, the respective figures were 197,460 and 833. After thorough consideration of the problem during several sessions of Congress beginning in 1934, the discretionary power to suspend deportation was finally enacted in the Alien Registration Act of 1940. The Attorney General was authorized to suspend deportation of a deportable alien who had proved good moral character for the past five years if deportation would result in serious economic detriment to the alien's citizen or legally resident spouse, parent, or child. This consideration was denied to aliens deportable as subversives, criminals, prostitutes, the mentally and physically deficient and aliens racially ineligible for naturalization. In each instance where deportation was suspended, a quota number was deducted from the current quota of the alien's home country. The Alien Registration Act of 1940 required that each case be reported to Congress and suspension of deportation became final unless by concurrent resolution, Congress disapproved. Amendments in 1948 enlarged the suspension authority but also introduced some restrictive features. A deportable alien who had resided here for seven years was made eligible even though he did not have the specified family ties but this provision was limited to aliens who were in the United States in 1948. The amendments also removed the previous bar on aliens racially ineligible for citizenship but instead of the previous requirement that suspensions of deportation were final unless the Congress passed a concurrent disapproving resolution, the Act of 1948 made them final only if Congress passed a concurrent resolution affirmatively approving them. Effect of Act of 1952. The Act of 1952 severely limits the authority to grant suspensions of deportation although it makes such relief available to groups previously ineligible for it. In place of the relatively simple previous procedure the Act of 1952 substitutes an involved statutory scheme in order to be eligible for suspension of deportation prior to the Act of 1952 an alien had to show serious economic detriment to specified close relatives unless he had resided here for seven years. The Act of 1952 requires that the alien must be quote a person whose deportation would in the opinion of the attorney general result in exceptional and extremely unusual hardship to the alien or to the specified relatives. The Senate Committee report makes it clear that the remedy quote should be available only in the very limited category of cases in which the deportation of the alien would be unconscionable. Hardship or even unusual hardship to the alien or to his spouse, parent or child is not sufficient to justify suspension of deportation. End quote. In commenting on this new language and the committee's explanation one distinguished witness testifying at the commission's hearing said quote rarely has there been a balder statement of a national purpose to be cruel. End quote. Even the technical experts have difficulty arriving at an understanding of the provisions of the Act of 1952 relating to suspension of deportation. The Act establishes five classes of aliens eligible for suspension of deportation and prescribes for each such class a continuous period of physical presence in the United States up to the date of application for suspension. The shortest period for which the alien must have continuously been physically present is five years. The longest is 10 years. The 10 year period indiscriminately covers subversives, criminals and prostitutes on the one hand and persons who merely violated purely technical provisions of the law on the other hand. Prior to the 1952 Act an alien who supported his American citizen wife could have obtained suspension of deportation no matter how short his stay in this country had been. The new Act requires five, seven or 10 years of continuous quote physical presence. End quote. The alien must prove that he has been a person of good moral character during the entire period. The new law contains a highly restrictive definition of good moral character creating many uncertainties. For example, the Immigration and Naturalization Service testified at the commission's hearings that the crime of adultery was inadequately defined in the Act of 1952. Except for persons who came to the United States before June 27, 1950. An alien may not be granted suspension if a final order of deportation has been entered in his case. This subjects the alien to the arbitrary requirement that the date of an order of deportation controls his right to be considered for suspension of deportation. Often an alien who does not qualify for suspension of deportation under the Act of 1952 will be able to return almost at once as a permanent legal resident of this country. Under other provisions of the law he may be entitled to a preferred immigration status for visa consideration by reason of his citizen or legally resident wife or children. In other cases, for lack of the remedy of suspension, the alien may suffer the disruption of his family. Many witnesses criticized the restrictions on the authority to deal with hardships imposed by the Act of 1952 as being repugnant to American principles of justice and humanity. Among them was the late Philip Murray representing the Congress of Industrial Organizations, CIO, who stated, quote, that the authorities administering the law should have sufficient discretion to enable them to take humanitarian considerations into account. These resident aliens about whom we are talking may have lived in this country for years, may have married spouses who are American citizens and may have children who are American citizens. Deportation of the alien may mean intolerable hardship for the family. The officials enforcing the laws should therefore have authority to look at the whole picture and decide whether in the light of all the circumstances the national interest will or will not be served by deportation of an individual. The laws should be administered in a liberal and humanitarian rather than a technical and punitive spirit, end quote. The commission believes that the statutory requirement for congressional approval of suspension of deportation actions is contrary to our fundamental constitutional doctrine of separation of legislative, executive, and judicial powers. The basic concept of our American system is that the Congress makes the laws, the executive administers them and the judiciary interprets them. Our form of government is built upon a tripartite system of checks and balances intended to assure that no one branch of government encroach upon any of the others. The failure of the Congress to follow the constitutional pattern is obstructive of good government and destructive of fundamental principles. In immigration matters, in particular, it frustrates proper administration and puts a premium on extraneous considerations in the determination of legal rights. The exercise of discretion, according to standards fixed by Congress, is peculiarly an executive function. The legislature is not equipped and not intended to be equipped to handle the details of administration. The provision for legislative approval of determinations in individual cases requires an administrative agency within the legislature itself attempting to redo what the administrative agency has already done, but without the safeguards which the Congress and the courts have insisted shall surround administrative action. This is wrong in principle and bad in practice. It is no more the function of Congress to pass upon individual cases involving suspension of deportation than it would be to pass upon the issuance of individual visas or, for that matter, upon the custom inspection of an individual alien's baggage. One searches in vain for a comparable example of intermingling of executive and legislative authority. The determination of the existence and extent of tremendous human and property rights is confided to the discretion of executive officials. For example, the selective service system periodically drafts tens of thousands of the youth of America into the armed forces, including aliens, without submitting all the individual cases to Congress for its approval. The Atomic Energy Commission has virtually unlimited discretion in affecting a crucial program affecting our survival. The Interior Department has large discretion in regulating the affairs of Indians. The Veterans Administration functions in many fields affecting veterans. The Mutual Security Agency and the Reconstruction Financing Corporation are empowered to allocate billions of dollars. The Interstate Commerce Commission, Federal Communications Commission, Civil Aeronautics Board, and Federal Power Commission have power to grant invaluable franchises and to fix rates affecting millions of people. And even the immigration laws themselves grant broad discretion in some respects to administrative officers to enforce restrictive requirements. Yet the Attorney General cannot suspend the deportation of one alien without reporting the case to Congress and obtaining its approval. The Commission recommends that any alien in the United States in irregular status who does not qualify for adjustment of status as above described, may be granted suspension of deportation in the discretion of the administrative officer upon a showing of good moral character for five years. And A, serious economic detriment to the alien's citizen or legally resident spouse, parent or minor child, or B, residence in the United States for seven years. These recommendations would restore the provisions for suspension of deportation substantially to their position prior to the Act of 1952. The Act of 1952 authorizes suspension of deportation for former subversives, criminals, and other groups previously denied this remedy. This authority should be continued subject to a limitation that such aliens must have resided in the United States for 10 years. The Commission recommends that administrative officials be given authority to exercise reasonable discretion to suspend deportation without the necessity for congressional action in individual cases. Special legislation. Another consequence of the inflexibility of the immigration laws is the enactment by Congress of private relief bills exempting named individuals from particular restrictive provisions. Until the past decade or so, private relief bills in immigration matters were virtually unknown. But during recent years, Congress has been deluged with an increasing flood of such bills. Thus, while only 163 private bills in immigration and nationality cases were introduced in the 78th Congress, there were 429 in the 79th Congress, 1,141 in the 80th Congress, 2,811 in the 81st Congress, and 3,669 in the 82nd Congress. The number of private bills has been a heavy burden on Congress. Moreover, it has added substantially to the problems of administration. In most instances, the introduction of such a bill has been followed by a request from a Committee of Congress to the Department of Justice for an investigation of the facts and a report. Under arrangements between the Department of Justice and Committees of Congress, deportation frequently has been withheld while a private bill is pending. The result is that the private bill device has afforded an opportunity to delay or defeat deportation and has overburdened Congress and the administrative authorities. The sponsors of the Act of 1952 have stated that its enactment would substantially diminish the volume of such bills, but others predict a different result in view of the many oppressive features of that legislation, including the severe limitations on the discretionary relief of adjustment of status and suspension of deportation. The increase in the number of private immigration bills introduced into and passed by the Congress is itself evidence that something is wrong with our immigration laws. The Commission believes that the unnecessary hardships which private bills seek to correct would better and more fairly be corrected by enactment of a reasonable immigration law, including adequate discretionary authority and the invested in responsible administrative officials. End of Section 25. Recording by Patrick McAfee, Evanston.