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    "ocrText": "Ronald Reagan Presidential Library\nDigital Library Collections\nThis is a PDF of a folder from our textual collections.\nCollection: Roberts, John G.: Files\nFolder Title: Immigration and Naturalization\n(5 of 13)\nBox: 28\nTo see more digitized collections visit:\nhttps://reaganlibrary.gov/archives/digital-library\nTo see all Ronald Reagan Presidential Library inventories visit:\nhttps://reaganlibrary.gov/document-collection\nContact a reference archivist at: [email protected]\nCitation Guidelines: https://reaganlibrary.gov/citing\nNational Archives Catalogue: https://catalog.archives.gov/\nTHE WHITE HOUSE\nWASHINGTON\nFebruary 18, 1986\nMEMORANDUM FOR BRANDEN BLUM\nLEGISLATIVE ATTORNEY\nOFFICE OF MANAGEMENT AND BUDGET\nFROM:\nJOHN G. ROBERTS JJR\nASSOCIATE COUNSEL TO THE PRESIDENT\nSUBJECT:\nDepartments of State and Justice Draft Reports\non H.R. 3321, a bill to codify the provisions\nof Title 8 of the USC Relating to the\nImmigration and Naturalization Laws\nCounsel's Office has reviewed the above-referenced draft reports\nand finds no objection to them from a legal perspective.\nID #.\nCU\nWHITE HOUSE\nCORRESPONDENCE TRACKING WORKSHEET\n0 . OUTGOING\nH INTERNAL\nI . INCOMING\nDate Correspondence\nReceived (YY/MM/DD)\n/\n/\nName of Correspondent:\nJames mun\nMI Mail Report\nUser Codes: (A)\n(B)\n(C)\nSubject: DOS + DOJ graft reparts on H.R. 3321,\na bell to codify the procusions of\nTitle 8 of the USC relating to the\nimmigration d naturalization laws\nROUTE TO:\nACTION\nDISPOSITION\nTracking\nType\nCompletion\nAction\nDate\nof\nDate\nOffice/Agency\n(Staff Name)\nCode\nYY/MM/DD\nResponse\nCode\nYY/MM/DD\nCUHOLL\nORIGINATOR 86,02,12\n/ /\nReferral Note:\nCUAT 18\nR\n86,02,12\n$ 86,021\nReferral Note:\n/ /\n/ /\nReferral Note:\n/ /\n/ /\nReferral Note:\n/ /\n/ /\n-\nReferral Note:\nACTION CODES:\nDISPOSITION CODES:\nA Appropriate Action\nI . Info Copy Only/No Action Necessary\nA Answered\nC Completed\nC Comment/Recommendation\nR Direct Reply w/Copy\nB Non-Special Referral\nS Suspended\nD Draft Response\nS For Signature\nF - Furnish Fact Sheet\nX Interim Reply\nto be used as Enclosure\nFOR OUTGOING CORRESPONDENCE:\nType of Response = Initials of Signer\nCode = \"A\"\nCompletion Date = Date of Outgoing\nComments:\nKeep this worksheet attached to the original incoming letter.\nSend all routing updates to Central Reference (Room 75, OEOB).\nAlways return completed correspondence record to Central Files.\nRefer questions about the correspondence tracking system to Central Reference, ext. 2590.\n5/81\nEXECUTIVE OFFICE OF THE PRESIDENT\nSTATE THAT WHITED\nOFFICE OF MANAGEMENT AND BUDGET\nWASHINGTON, D.C. 20503\nSPECIAL\nFebruary 11, 1986\nSPECIAL\nLEGISLATIVE REFERRAL MEMORANDUM\nTO:\nDepartment of Justice\nDepartment of State\nDepartment of Health & Human Services\nDepartment of Transportation\nCentral Intelligence Agency\nDepartment of Education\nDepartment of Agriculture\nDepartment of Labor\nSUBJECT: Departments of State and Justice draft reports on H.R. 3321,\na bill to codify the provisions of Title 8 of the USC relating\nto the immigration and naturalization laws.\nThe Office of Management and Budget requests the views of your\nagency on the above subject before advising on its relationship\nto the program of the President, in accordance with OMB Circular\nA-19.\nPlease provide us with your views no later than February 21, 1986.\nDirect your questions to Branden Blum (395-3454), the legislative\nattorney in this office.\nJames UC/M C. Murr for\nAssistant Director for\nLegislative Reference\nEnclosure\nCC: John Cooney\nJim Barie\nRuss Neely\nFred Fielding\nTara Treacy\nSarah Brentlinger\nUnited States Department of State\nWashington, D.C. 20520\nDRAFT\nDear Mr. Chairman:\nThe Secretary has asked me to reply to your letter of October\n1, 1985, concerning H.R. 3321, \"A bill to revise, codify and enact\nwithout substantive change certain general and permanent laws,\nrelated to aliens and nationality, as Title 8, United States Code,\n'Aliens and Nationality'*\nThe Department understands that this bill represents another\nstep in a longstanding project by the Office of the Law Revision\nCounsel of the House of Representatives to revise, codify and\nenact into positive law each title of the United States Code. The\nDepartment, of course, perceives no objection to such enactments.\nThere are, however, certain aspects of H.R. 3321 which the\nDepartment finds troubling.\nAs the Committee is aware, there has existed for many years\nan informal codification of the Immigration and Nationality Act\nand other related laws which is in current use in legal\nproceedings and other legal documents arising under the applicable\nlaws. As an example, section 101 of the INA is informally\ncodified as 8 U.S.C. 1101; section 212(a) of the INA as 8 U.S.C.\n1182(a). In view of the long existence of this informal\ncodification and its wide currency and extensive use, the\nDepartment questions the desirability of radically altering it at\nthis time. The Department believes that the interests of all who\nwork with the INA, both within the government and in the private\nsector, will be served if the formal codification preserved the\nstructure of the informal codification.\nAlso, the Department is concerned about the changes in\ngrammar, style and English usage which appear throughout the\ncodification. The stated purpose of such changes is to substitute\nsimple current language for awkward and obsolete terms. The\nDepartment agrees that simplicity of usage is desirable, but\nbelieves that in a curious way the effort to achieve such\nsimplicity may, in this case, complicate matters. It is the\nThe Honorable,\nPeter W. Rodino, Jr., Chairman,\nCommittee on the Judiciary,\nHouse of Representatives\n- 2 -\nDepartment's observation that it is not so much the words of the\nINA which are confusing to the outside observer, but rather the\nmeaning which has been ascribed to them by various courts. It is\nnot uncommon that the courts will ascribe to certain words in the\nINA a meaning substantially different than the one which an\noutside observer would ascribe to them without the benefit of\nlegal research. To the extent that this is so, the grammatical\nand stylistic changes proposed in H.R. 3321 will add to, rather\nthan dispel, existing confusion. If these proposed changes are\nenacted, they will not have the effect of making any substantive\nchange in law, according to information provided by the Office of\nthe Law Revision Counsel. Taking this to be the case, the outside\nobserver seeking to find the substantive meaning of the new words\nwill have to, first, find the old words which have been replaced\nand then determine what meaning courts had ascribed to the old\nwords, in order to achieve an understanding of the meaning of the\nnew words. It does not appear to the Department that such a\nresult will facilitate the orderly administration of the law or\nserve to enlighten the public as to the meaning and import of the\nlaw.\nFinally, there are a number of specific proposed changes\nwhich the Department finds troubling in varying degrees. First,\nin H.R. 3321 the definitions of \"world communism\" (current section\n101(a)(4)) and of \"advocating\" (current section 101 (e) ) are\neliminated. This results in the repetition of the substance of\nthese definitions in the text of proposed new section 8 U.S.C.\n1308 on several occasions. The Department does not believe that\nthe clarity of the statute is improved by eliminating a definition\nif its elimination necessitates the repetition of the substance of\nthe definition several times elsewhere in the statute.\nSecond, in proposed Code section 101 (a) (6) (B) (ii) which would\nreplace current section 101 (b) (1) (F), the word \"emigration\" is\nreplaced by the word \"immigration.\" The Department believes that\nthese two words are not, and cannot by any standard of usage, be\nsaid to be synonymous and questions whether, in spite of the Law\nRevision Counsel's disclaimer, it can properly be said that the\nsubstitution is one having no substantive import.\nThe Department also notes what appears clearly to be a change\nof substantive import in proposed Code section 125, which defines\n\"naturalization\" and would replace current section 101 (a) (23).\nSection 101 (a) (23) defines \"naturalization\" as \"the conferring of\nnationality of a state upon a person after birth, by any means\nwhatsoever.\" Proposed Codes section 125 would define\nnaturalization as the \"conferring of citizenship of the United\nStates on an individual after birth under chapter 33 of this\ntitle.\" There is, thus, excluded from the statutory definition of\n\"naturalization\" the conferral of nationality by any state other\n- 3 -\nthan the United States. The Department notes that proposed Code\nsection 3501 (C) provides for loss of United States nationality\n\"through the naturalization of a parent having legal custody.'\nApplying the proposed definition of \"naturalization\" would be\ninconsistent with this provision, which applies to naturalization\nof the parent in a foreign country. The Department finds it\nimpossible to accept the assertion that no substantive change has\nbeen effected thereby.\nCurrent sections (a) (16) and (26) define the terms\n\"nonimmigrant visa\" and \"immigrant visa\", respectively. These two\nsections would be replaced by proposed Code section 142. The\ndefinition of \"immigrant visa\" currently contains the requirement\nthat the visa have been issued by a consular officer at his office\noutside the United States. No such language appears in proposed\nCode section 142. On the other hand, proposed Code section 1503\ncontains language to perpetuate this requirement. While no\nsubstantive change has thus been effected, the Department cannot\nperceive what benefit is to be derived from removing this language\nfrom the definition, where it has existed for more than thirty\nyears, and inserting it in this far-removed section.\nSection 201 (b) of the INA defines \"immediate relatives\" and\nprovides that \"The immediate relatives specified in this\nsubsection who are otherwise qualified for admission as immigrants\nshall be admitted as such, without regard to the numerical\nlimitations in this Act.\" Proposed Code 1111, which would replace\nsection 201 (b), says merely that \"The numerical limitations of\nthis subchapter do not apply to the immediate relative of a\ncitizen of the United States or The Department has always\ninterpreted the current text of section 201 (b) as indicating a\nspecific Congressional intent to require immediate relatives to be\nprocessed as such, in order to prevent them from using an\nimmigrant visa number under the annual limitation, even if also\nqualified as preference immigrants, to the prejudice of immigrants\nable to qualify only for preference status under the annual\nnumerical limitation. It does not appear to the Department that\nsuch an interpretation of proposed Code section 1111 could be\nsustained and the Committee should consider whether it wishes to\nperpetuate the existing statutory interpretation.\nCurrent section 203(a)(8) of the INA specifies that the\nspouse or child of an immigrant shall be entitled to the same\nimmigrant status and order of consideration if not otherwise\nentitled to an immigrant status and the immediate issuance of a\nvisa. Proposed Code section 1113, which would replace section\n203 (a) (8), does not include the language concerning the immediate\nissuance of a visa. An alien can be entitled to an immigrant\nclassification, either as a preference or nonpreference immigrant,\nand not be entitled to the immediate issuance of an immigrant visa\n- 4 -\nbecause the immigrant classification to which the alien is\nentitled is heavily oversubscribed. Thus, in order to give full\neffect to the intent of section 203 (a) (8), which the Department\nconsiders to be preventing the separation of families, it is\nnecessary to incorporate both concepts and not simply the one. It\nseems that this may be a case of unintentional substantive change\nresulting from an insufficient understanding of the technical\naspects of the law.\nCurrent section 301(d), 301 (e), 301(g), and 309(c) of the INA\nprovide for acquisition of United States nationality at birth by\npersons born abroad whose citizen parent was \"physically present\"\nin the U.S. for specified periods. The drafters of the INA\nintentionally used that term to avoid confusion arising from use\nof the term \"residence\" in previous legislation. Proposed Code\nsections (1) (B), 3104(a)(1)(c), and 3502(a)(2) eliminate\nthe adverb \"physically.\" This is a substantive change which could\nlead to a new judically-imposed concept of constructive presence,\nexpanding the application of the section to persons not eligible\nfor U.S. citizenship at birth.\nCurrent section 349 (a) (4) (A) of the INA provides for loss of\nUnited States nationality by foreign government employment if the\nperson \"has or acquires\" the nationality of the foreign state.\nProposed Code section 3501(4)(A) would provide for loss of\ncitizenship only by a person who \"becomes\" a national of the\nforeign state. This is a substantive change which would cease to\nprovide for loss of nationality by a person who had already\nacquired the foreign nationality before accepting foreign\ngovernment employment.\nThe language of the second sentence of proposed Code Section\n1114(a) (1) establishes the numerical limitation (now contained in\nsection 202 (c) of the INA) on immigration by natives of dependent\nareas. Section 202 (c) specifies that immigration under the\nnumerical limitation system by natives of a dependent area may not\nexceed 600 per year. Proposed Code section 1114(a) (1) simply\nstates that only 600 of the 20,000 limit for the governing country\nare chargeable to the dependent area. This is one of a number of\ninstances in which the existing prescriptive language of the\nstatute is replaced by language which is declarative in\ncharacter. While the Department again recognizes the Law Revision\nCounsel's assertion that changes in language in codification bills\ndo not produce changes in substance, we are concerned that, here\nas in a number of other cases, such a change may, in fact, be\ntaken to represent a substantive change from a specific directive\nby the Congress to the administrators of the statute to a simple\nstatement which does not have the same substantive import.\nProposed Code section 1305(a)(7), which would replace section\n212(a)(10) of the INA, omits the words \"actually imposed\" which\nnow appear in section (a) (10). These words form the basis for\nthe current interpretation under which the portion of a sentence\n- 5 -\nto confinement which is suspended or not served because the\nconvict was paroled is not counted in determining whether or not\nthe alien is ineligible under this section. Again, we are\nconcerned that the omission of these words could have the effect\nof eliminating this interpretation, in spite of the Law Revision\nCounsel's disclaimer.\nProposed Code section 1305 (b) would replace section 212 (h) of\nthe INA, which provides for a waiver of certain grounds of\nineligibility for certain classes of immigrants. In drafting the\ntext of this provision, the drafter included proposed Code section\n1305 (a) (9) as a ground of ineligibility which could be waived\nprovided that the ineligibility arose solely from a single offense\nof simple possession of not more than 30 grams of marihuana.\nProposed Code section 1305 (a) (9) would replace that portion of\nsection 212 (a) (23) of the INA which renders ineligible an alien\nunder whom the consular officer knows or has reason to believe is,\nor has been, an illicit trafficker in narcotics. The Department\ncannot imagine how a single offense of simple possession of such a\nsmall amount of marihuana could give reason to believe that the\noffender was a trafficker. Moreover, the Department strongly\nopposes allowing a trafficker to benefit from a waiver provision\nin any event. The Department urges that the reference to section\n1305 (a) (9) be stricken from section 1305 (b).\nProposed Code section 1315 (a) is an attempt to revise current\nsection 212 (d) (3) of the INA, which provides authority for a\nwaiver of ineligibility to permit the temporary admission as a\nnonimmigrant of an ineligible alien. Current section 212 (d) (3)\nstates simply that such authority may be exercised except in the\ncase of an alien ineligible under sections 212 (a) (27), (29) or\n(33). In redrafting this section, the drafter undertook to\nreverse the text and to specify which grounds of ineligibility\ncould be waived rather than to specify merely that any or all\ngrounds could be waived except the three specifically identified.\nThis effort has produced an anomalous result in that the text now\nspecifies that a nonimmigrant alien may be granted a waiver of\nsome grounds which do not even apply to nonimmigrants because by\ntheir very terms they apply only to immigrants. Consideration\nshould be given to restoring the original text which would avoid\nsuch a result.\nProposed Code section 1541 (c) which incorporates among other\nthings current section 221 (b) relating to the requirement that\nnonimmigrant aliens be fingerprinted reflects a substantial\nmisunderstanding on the part of the drafter. It appears that the\ndrafter believes that a diplomatic visa and a visa issued to an\nalien seeking admission as a foreign government official or\ninternational organization representative or employee are the\nsame. This is not the case. A diplomatic visa is a nonimmigrant\n- 6 -\nvisa bearing the superscription \"DIPLOMATIC\". Such a visa may be\nof any nonimmigrant classification, including, for example,\nvisitor for pleasure. The superscription is placed on the visa if\nthe alien occupies certain official positions in a foreign\ngovernment and is the bearer of a diplomatic passport or its\nequivalent. An alien may be issued a visa as a foreign government\nofficial or international organization representative or employee\n(current sections 101 (a) (15) (A) or (G) of the INA; proposed Code\nsections 127 (1) - (9) ) only if the alien is seeking to enter the\nUnited States for the specific purpose of acting in such capacity\nafter entry. Consideration should be given to rectifying the\nresults of this apparent misunderstanding.\nProposed Code section 1541 (d) also represents an apparent\nmisunderstanding. Current section 203 (e) of the INA authorizes\nthe Secretary of State to make estimates of anticipated immigrant\nvisa issuance and to rely upon those estimates in authorizing visa\nissuance under the numerical limitations on immigration. From\nthis provision, the Department has derived the authority to\nestablish and maintain immigrant visa waiting lists. In 1976 the\nCongress added to section 203 (e) a provision for termination of an\nintending immigrant's registration on an immigrant visa waiting\nlist if the alien failed to pursue the application within a\nspecified time period. In making this amendment, the Congress\nused the word \"registration\" which did not appear previously in\nthis section of law, but which appears in Departmental visa\nregulations and had become a commonly-used term in this context.\nThe term \"alien registration\" had long been in common use,\nderiving from sections 261 through 265 of the INA, and had a\ndifferent meaning altogether. The drafter of H.R. 3321 apparently\nsaw the word \"registration\" in section 203 (e), took it to have the\nsame meaning or import as in sections 261 through 265 and placed\nthe two entirely distinct concepts in a single section. This has\nthe effect of not only incorporating two entirely distinct\nconcepts in a single section, but also of separating the provision\nfor termination of registration of an intending immigrant from\nthat provision of law with which logic would most properly\nassociate it. Consideration should be given to rectifying this\napparent misunderstanding:\nFinally, the Department wonders whether it is timely to\nproceed with enactment of H.R. 3321 at this time in light of the\nsubstantial changes to United States immigration law which are\ncurrently under consideration by the Congress in S. 1200 and H.R.\n3810.\n- 7 -\nThe Office of Management and Budget advises that from the\nstandpoint of the Administration's program there is no objection\nto the submission of this report.\nSincerely,\nJames W. Dyer\nActing Assistant Secretary\nLegislative and Intergovernmental Affairs\nU.S. Department of Justice\nOffice of Legislative and Intergovernmental Affairs\nOffice of the Assistant Attorney General\nWashington, D.C. 20530\nDRAFT\nHonorable Peter W. Rodino, Jr.\nChairman\nCommittee on the Judiciary\nU.S. House of Representatives\nWashington, D.C. 20515\nDear Mr. Chairman:\nThis is in response to your request that we review the pro-\nvisions of H.R. 3321, a bill to revise, codify, and enact without\nsubstantive change certain general and permanent laws relating to\naliens and nationality, as Title 8, United States Code, \"Aliens\nand Nationality.\" While the purpose of H.R. 3321 is to codify\ncertain provisions of Title 8, in effect the bill proposes sub-\nstantive changes. We are concerned that the substantive revisions\nthat are contained in H.R. 3321 will fundamentally alter Title 8.\nWhile the purpose of H.R. 3321 is merely to codify certain provis-\nions of Title 8, in effect H.R. 3321 would make substantive chang-\nes in Title 8.\nSection 108. Border Crossing identification card\nThe revised language in subsection 2 which reads \"an alien\nresiding in foreign contiguous territory\" is substantively differ-\nent that the existing language which reads \"an alien who is a res-\nident in a foreign contiguous territory.\" In the revised language\nthe word \"residing\" has a different legal connotation than the\nword \"resident\". The purpose of the existing language is to fac-\nilitate the entry of Canadians and Mexican nationals. The revised\nlanguage would also permit entry to aliens of other countries who\nare temporarily \"residing\" in Mexico and Canada, a substantive\nchange with which we disagree.\nSection 109. Child\nThe definition of the word \"child\" has been the subject of\nunending litigation, and any \"technical\" changes to its definition\nwill undoubtedly cause further litigation.\n-2-\nIn subsection (6) (B) (ii), the word \"emigration\" should be\n\"immigration.\"\nSection 113. Entry\nThe words \"of an alien\" should be inserted after the word\n\"coming\" in line 11. In line 13, the words \"having a lawful\npermanent residence\" should be inserted in place of the revised\nlanguage which states \"an alien lawfully admitted for permanent\nresidence.\" An alien who may have been admitted for permanent\nresidence may, upon seeking readmission, no longer have a \"lawful\npermanent residence.\"\nSection 116. Good moral character\nIn subsection (1) (F), the words \"aggregate period\" have been\nomitted without an explanation. In our view this is a substantive\nchange because it is unclear in the revised language whether the\nnumber of days served in a penal institute can be aggregated to\nestablish the 180 days period to preclude a finding of good moral\ncharacter. See Ruiz V. INS, 410 F.2d 382 (6th Cir. 1969).\nSection 127. Nonimmigrant\nPreliminarily, we should note that many of the changes in this\nprovision parallel the language found in the Proposed Revision of\nthe Immigration and Nationality Act, the April 30, 1981, staff\nreport of the Select Commission on Immigration and Refugee Policy\n(SCIRP). The SCIRP report, in proposing to revise the nonimmigrant\nclassification, stated:\nThe concept of a nonimmigrant is established in a\npositive context so that it is freed of the\nsubjectivity, instinct, or sixth sense of the\nadjudicating officer. The requirement that a\nnonimmigrant have a residence in a foreign country\nwhich he has no intention of abandoning is dropped.\nInstead not only such residence, but employment and\nfamily ties abroad are also taken into account in\ndetermining whether an alien qualifies for\nclassification as a nonimmigrant.\nIt is clear that while the revised section 127 ostensibly\nrestates words in \"simple language,\" its overall effect is to\nsubstantively change the statutory language.\nIn clauses (15), (17), and (18), the words \"bona fide\" are\nomitted. The Report characterizes these words as \"surplus.\" In\nour view the omission creates substantive changes. The words \"bona\nfide\" are terms of art. Within the context of immigration law, the\nwords impose an evidentiary requirement upon an alien, such as a\n\"bona fide student.\"\n-3-\nIn clauses (10), (17), (18), (19) the words \"having a residence\nin a foreign country which he has no intention of abandoning,\" have\nbeen restated as \"having a residence in a foreign country that the\nalien intends to maintain.\" While the restated language \"reads\nbetter\" we think that it creates a substantive change. The word\n\"abandon\" has a different legal connotation than the word\n\"maintain.\" An alien who wishes to enter the United States as a\n\"nonimmigrant\" must prove that he has no intention of \"abandoning\"\nhis residence, and not that he intends to maintain his residence in\nhis home country.\nClause (12) restates the definition of \"crewmember.\" The words\n\"serving in good faith\" have been replaced with the words \"serving\nin any capacity.\" The restated language eliminates the \"good\nfaith\" requirement thereby creating a substantive change. These\nwords should be restored in the restated provision.\nClause (16) (A) restates the requirement for obtaining a fiancee\nvisa. However, while the current section specifically states that\nthe alien must \"conclude a valid marriage,\" the restatement simply\nstates \"only to marry.\" It is unclear whether in fact the marriage\nmust be a legally valid one. In our view the interpretation of\nthis restatement can be a basis for litigation.\nClause 17 (a) eliminates the requirement that the student be\n\"qualified to pursue a full course of study.\" This requirement\ncannot be implied from the restated provision. The omission of this\nlanguage arguably creates a substantive change.\nSection 131. Refugee\nThe revised language substitutes, without an explanation, the\nwords \"is unable or unwilling to avail himself or herself of the\nprotection of, that country\" for the words \"enjoy the protection\nof, that country.\" In our view this revision creates a major\nsubstantive change because the meaning of the word \"enjoy\" is so\nnebulous that it inevitably will be subject to conflicting judicial\ninterpretations. The current language conforms to the United\nNation's Convention and Protocol Relating to the Status of Refugees\nand should be retained.\nSection 132. Residence\nThe words \"in fact\" should be restored in the definition SO as\nto remove any ambiguities. See, Chan Wing Cheung V. Hamilton, 298\nF.2d 650 (1st Cir. 1962).\nSection 135. Spouse, wife, and husband\nThe current and only statutory definition of the terms\n\"spouse,\" \"wife,\" or \"husband\" is a negative one excluding a\n\"marriage ceremony where the contracting parties thereto are not\n-4-\nphysically present in the presence of each other, unless the\nmarriage shall have been consummated.\" The revised language\ncontains an affirmative definition that requires \"a marriage\nceremony during which both parties were not present only if the\nparties consummated the marriage.\"\nIn our view, the omission of the word \"physically\" is clearly a\nsubstantive change because legally one can be present somewhere\nwithout a physical presence. We recommend that the word\n\"physically\" be included in the restatement.\n301. General authority of the Attorney General\nIn subsection (a) (1), the words \"carry out\" are substituted for\n\"the administration and enforcement of\" to eliminate unnecessary\nwords. In our view these words should not be substituted because\nthis language has been cited in court litigation to emphasize the\nrole of the Attorney General in \"enforcing\" immigration laws. See\nNarenji V. Civiletti, 617 F.2d 745 (D.C. Cir. 1979), cert. denied\n446 U.S. 957. See also revised section 306 (a) (3) where the word\n\"enforcement\" has not been replaced with the words \"carry out.\"\nIn subsection (a) (2), the words \"boundaries\" and \"control\" have\nbeen omitted as surplus. In our view the change is substantive.\n\"Control\" is not necessarily mere surplus to \"guard.\" The word\n\"border\" may only refer to the \"continental border\" as opposed to\nthe United States boundaries in Hawaii or the U.S. Virgin Islands.\nWe recommend that the original language be restored.\nIn subsection (b) (1), the Attorney General's authority to\n\"prescribe forms of bonds\" has been omitted as \"unnecessary words.\"\nIn our view the omission arguably creates substantive changes. It\nis questionable whether the Attorney General can \"prescribe forms\nof bonds\" absent Congressional authorization. The words should be\nrestored in this subsection and wherever they may have been\nomitted. See for example revised sections 1101 (a), 1712 (b), and\n2124.\nIn subsection (b) (2), the words \"other independent\nestablishment\" should be restored, as not all \"independent\nestablishments\" may qualify as an \"agency\" under the definition set\nforth at section 105.\nIn subsection (b) (3), the word \"consent\" has been substituted\nfor the word \"concurrence.\" In our view, the word \"concurrence\"\nshould be restored, because both the Secretary of State and the\nAttorney General \"concur\" on a decision. To state otherwise would\ndiminish the Attorney General's authority on this particular\nmatter.\nIn subsection (d), it is unclear as to the scope of the\njurisdiction of the \"Attorney General's decision on a question of\nlaw related to immigration and naturalization\nIn the current\n-5-\nlaw at 8 U.S.C. 1103, it is clear that the Attorney General's\ndecision effects the Secretary of State, the officers of the\nDepartment of State, or diplomatic or consular officers.\nSection 303. Searches and arrests\nIn subsection (a) (1), the word \"question\" has been substituted\nfor the word \"interrogation.\" The report makes this change for\nconsistency with other titles of the United States Code. However,\nwithin the context of immigration law, the word \"interrogation\"\nconnotes a \"detentive situation,\" and immigration officers have the\nauthority to \"interrogate\" aliens to the fullest extent permissible\nunder the Fourth Amendment. See Zepeda V. United States, INS, 753\nF.2d 719, 725-726 (9th Cir. 1985) (as amended) for the interpretation\nof the word \"interrogation.\" Therefore, we recommend that word\n\"interrogation\" be restored in this section and in any other section\nwhere it may have been omitted.\nIn subsection (a) (2), the words \"railway car, ...conveyance\"\nshould be restored to remove any ambiguities which may arise with\nthe legal definition of the word \"vehicle\".\nIn subsection (b), it appears that, to execute a warrant or\nother process, the Attorney General must promulgate regulations.\nThis requirement is not found under the current law, and its\nimposition would create a substantive change. Accordingly, we\nrecommend that the added requirement be deleted.\nSection 304. Oaths and testimony\nThe restatement omits the words \"special inquiry officers\"\nbecause \"the definition of an immigration officer includes a\nspecial inquiry officer.\" However, \"special inquiry officers\"\notherwise known as \"immigration judges\" are a special, distinct\nclass of immigration officers. They are not employees of the INS,\nbut employees of the Executive Office for Immigration Review. See\n48 FR 8039 (Feb. 25, 1983). Therefore, for purposes of clarity and\nconsistency, we recommend that the words \"special inquiry officers\"\nbe restored in this section and in any other section where they may\nhave been omitted.\nSection 305. Local jurisdiction over immigrant stations\nThe restated section is much broader than the current law.\nUnder current law, state or local officers have the right to enter\nan immigrant station to \"preserve the peace and make arrests for\ncrimes under the laws of the State.\" Under the restated version,\nthese officers may enter the station to enforce any laws of the\nState. We think the restated version is too broad.\n-6-\nSection 331. General authority of the Secretary of State\nWhether or not the restated language creates substantive\nchanges is a question on which the Department of Justice defers to\nthe Department of State.\nSection 332. Bureau of consular affairs\nSee our comment to Section 331.\nSection 1301. Documentary requirements and entering by fraud\nThe word \"expire\" is used in reference to the required docu-\nmentation in lieu of the word \"valid\" used in existing provisions\nsuch as section 1182 (e) (26). Validity does not depend only upon\nthe issue of expiration. In our view the word \"valid\" should be\nretained.\nIn subsection (b) (1) (A), the words \"valid immigrant visa,\nreentry permit, border crossing identification card or other\nvalid\nhave been omitted as surplus. In our view these words\ndefine \"entry document\" and to that extent they should not be\nomitted.\nSection 1302. Exclusion of aliens with physical or mental\nimpairments\nIn subsection (a) (3), the restated language seems to exclude\naliens who have had one attack of insanity, but not those with two\nor more attacks. While the latter may be implied, the current\nprovision explicitly states that aliens who have had one or more\nattacks of insanity are excludable. These comments also apply to\nsubsection (b) (3).\nSection 1305. Exclusion of immoral and criminal aliens\nIn subsection (a) (8) (B), the words \"compounding\nsole\ngiving\naway\" are omitted as surplus. In our view this creates a clear\nloophole under the plain meaning of the current section\n1182 (a) (23).\nSection 1308. Exclusion of aliens associated with undemocratic\nideals\nThe caption of this proposed section is inaccurate and\nmisleading. While the new section restates the grounds for\nexclusion set forth in existing language sections 1182 (a) (27), (28)\nand (29), all of which trace their origin to section 22 of the\nInternal Security Act of 1950, much of the revised section 1308 has\n-7-\nnothing to do with ideals, undemocratic or otherwise. We note that\nthe SCIRP recommends that present paragraphs (28) and (29) be\nconsolidated under the caption of \"Espionage/Sabotage/Criminal\nActivities,\" and that paragraph (27) be captioned as \"Foreign\nPolicy.\" Accordingly, the Department of Justice recommends that\nthe caption to revised section 1308 be changed to reflect the true\nnature of those grounds of exclusion.\nIn subsection (2), the word \"affiliated\" has been omitted\nwhenever it occurs. In our view the omission creates a substantive\nchange.\nSection 1309. Exclusion of aliens with Nazi government\nassociations\nThe word \"assisted\" is omitted as surplus. In our view the\nword is not \"surplus,\" and should not be omitted.\nSection 1314. Admission of aliens in the public or security\ninterest\nThis provision is currently found under Title 50 of the United\nStates Code. Absent a contrary congressional indication, there is\nno reason why the provision should be transferred to Title 8.\nWe note that in subsection (b) (1), the words \"Commissioner of\nImmigration and Naturalization\" have been omitted. However, in\nsection 7 of the Act of June 20, 1949, 63 Stat. 212, the decision\nto admit a particular alien is made by the Director of the CIA, the\nAttorney General, and the INS Commissioner. In our view the\nrestated language in omitting the words \"Commissioner of\nImmigration and Naturalization\" creates a substantive change. See\nConference Report on H.R. 2419, Intelligence Authorization Act for\nFiscal Year 1986, Section 601, where the Director of Central\nIntelligence, the Attorney General, and the Commissioner of\nImmigration, have been delegated the authority to jointly act on\ncertain immigration matters.\nSection 1315. Temporary admission and parole of aliens\nIn subsection (a) (3), the mandate of the Attorney General\nshould be restored to that provided in the existing language of\nsection 1182 (d) (b), to include the specific power to \"exact bonds\"\nin controlling and regulating the admission and return of aliens.\nSee our comments to revised section 301 (b) (1).\nSection 1501. Petitions for preference and immediate relative\nclassification\nIn subsection (g), the first sentence should refer to\nrevocation of \"approval\" of a petition, not merely revocation of a\n\"petition.\"\n-8-\nSection 1503. Granting immigrant visas\nThroughout this section, the word \"qualified\" is substituted\nfor \"eligible\" for clarity. In our view, the word \"qualified\"\nimplies more than being \"eligible\". Not all \"eligible\" aliens may\n\"qualify\" for a particular visa. Accordingly, the word \"qualified\"\nshould be retained in this section and in any other section where\nit may have been changed. But see revised section 1551 where under\nsimilar circumstances the word \"eligible\" has been retained.\nSection 1708. Inspecting arriving aliens\nIn subsection (a) (1), the word \"shall\" should be substituted\nfor the word \"may,\" because under current law all aliens \"shall be\ninspected.\"\nSection 1710. Aliens associated with undemocratic ideals\nSee our comments to section 1308.\nSection 2104. Deportation of aliens associated with undemocratic\nideals\nSee our comments to section 1308.\nSection 2122. Arrest, detention, and release of aliens during\ndeportation proceedings\nIn subsection (b), the law is restated to create a substantive\nchange. The current law reads in pertinent part; \"upon a\nconclusive showing in habeas corpus proceedings that the Attorney\nGeneral is not proceeding with such reasonable dispatch as may be\nwarranted by the particular facts and circumstances in the case of\nany alien to determine deportability.\" (emphasis added) The\nrevised section states \"if conclusively shown that the Attorney\nGeneral is not proceeding reasonably quickly to decide if the alien\nis deportable.\" (emphasis added) In our view, the restated\nprovision creates substantive changes, because \"quickness\" is not\nthe only determinative factor in the current law.\nSection 2124. Detention, release, and deportation of aliens\nordered deported\nIn subsection (c), the words \"reasonably quickly\" should be\nrestored to provisions more accurately reflecting a totality of\ncircumstances approach. See our comments to section 2122 (b).\n-9-\nSection 2126. Countries to which the Attorney General may deport\naliens\nIn subsection (a) (2) (A), the word \"participated\" is substituted\nfor the words \"ordered, incited, assisted, or otherwise\nparticipated\" in persecution. The issue of the degree of\ninvolvement sufficient to trigger ineligibility remains open, and\nit appears that the language \"participated\" may be construed as\ndisqualifying a more narrow group of aliens than the present\nstatutory language. For these reasons, the original language\nshould be restored. See revised section 131 (2) where the identical\nlanguage has remained intact.\nIn subsection (e) (2) (B), the restatement adds the requirement\nthat the Attorney General \"decide\" the alien is dangerous to the\ncommunity after conviction of a particularly serious crime. The\npresent statutory language suggests no need for a separate decision\nconcerning \"seriousness\" once the existence and serious nature of\nthe collateral conviction is established.\nSection 2128. Suspension of deportation\nIn subsection (a) (1) (B) and (a) (2) (B), the word \"physical\" is\nomitted from the words \"continuous physical presence.\" In light of\nthe past and continuing litigation over the \"presence\" requirement,\nthe modifier \"physical\" cannot be deemed mere surplus. The word\n\"physical\" cannot be eliminated absent a substantive change.\nIn subsection 2128 (d), it should be noted that the Supreme\nCourt in INS V. Chada, 103 S. Ct. 2769 (1983) found this particular\nCongressional veto provision to be unconstitutional.\nSection 3302. Eligibility requirements\nThe modifier \"physical\" omitted in subsection (b) (8) should be\nrestored. See our comments to section 2138.\nSection 3304. Residence and presence of individuals married to\ncitizen of the United States\nIn subsection (b) (i) (F) and (G), the word \"bona fide\" has been\nomitted, and in subsection (b) (3), the word \"good faith\" has been\nomitted. In our view, for the reasons stated in our comments to\nrevised section 127, these phrases should be restored.\nSection 3331. Individuals associated with undemocratic ideals\nSee our comments to revised section 1308.\n-10-\nSection 5101. Passports\nWhether subsection (c) creates substantive changes is a\nquestion on which the Department of Justice defers to the views of\nthe Department of State. We do think, however, that the definition\ncontained in clause (1) is an unwarranted and unacceptable\nexpansion of the existing provision of 22 U.S.C. 211 (a). To\nspecify, as the existing statute does, that a passport may restrict\ntravel or use does not authorize the creation by implication of the\nadditional statutory language contained in clause (1).\nSection 6106. Asylum\nThe modifier \"physically\" now appearing in 8 U.S.C. 1158 (a)\nshould be restored in describing those aliens \"present\" and\neligible to apply for asylum.\nSection 6 of H.R. 3321 sets forth the repeals of various\nstatutes to be superseded by the codification. This, too, is under\nthe mandate that the restatement must work no substantive change in\nexisting law. However, page 94 of the bill indicates that the\nCuban Adjustment Act (Pub. L. No. 89-732, November 2, 1966) is\namong the statutes to be repealed. This is an error. The Cuban\nAdjustment Act (presently set forth at 8 U.S.C. 1255 note) remains\nvalid, contains no expiration date or other limitation, and\ncontinues to be implemented and provide a special means for the\ndisbursement of immigration benefits. H.R. 3321 must be modified\nto strike the indicated \"repeal\" and to make appropriate changes\nwithin the operative provisions of the bill concerning adjustment\nof status and limitation on immigration (e.g., new sections 1112\nand 2141).\nThe Department of Justice anticipates that there may well be\nother changes in H.R. 3321 which may arguably be substantive in\nnature. We would recommend that the Office of the Law Revision\nCounsel compile a side-by-side comparison of the existing laws with\nthe revised language. This would facilitate a more thorough review\nby the Department of Justice and other affected agencies.\nFinally, we are concerned that the codification will alter\nradically the current numbering system of the Immigration and\nNationality Act. INS has relied on this numbering system to\npublish regulations, 8 C.F.R. 101 et seq., Operating Instructions,\nand other administrative manuals. Moreover, there are approxi-\nmately 1,000 immigration forms, 100 of which are for public use.\nThese forms also use the same numbering system. We estimate that\nsimply to reprint the Operations Instruction will cost INS\n$646,000. We must also note that the changes in the numbering\nsystem will certainly be disruptive in the legal community. There-\nfore, the Department of Justice, would urge that any formal codifi-\ncation of the immigration laws preserve the existing numbering\nsystem to the maximum extent possible.\n-11-\nSince both Houses of Congress are considering major immigration\nreform legislation, it may be preferable to defer codification\nproposals until the ultimate fate of the legislation is determined.\nThe Office of Management and Budget has advised this Department\nthat there is no objection to the submission of this report from\nthe standpoint of the Administration's program.\nSincerely,\nJohn R. Bolton\nAssistant Attorney General\nTHE WHITE HOUSE\nWASHINGTON\nOctober 30, 1985\nMEMORANDUM FOR BRANDEN BLUM\nLEGISLATIVE ATTORNEY\nOFFICE OF MANAGEMENT AND BUDGET\nFROM:\nASSOCIATE COUNSEL JJR THE PRESIDENT\nJOHN G. ROBERTS\nSUBJECT:\nDraft DOJ Report on H.R. 3080, the\nImmigration Control and Legalization\nAmendments Act of 1985\nCounsel's Office has reviewed the above-referenced report,\nand finds no objection to it from a legal perspective. On\npage 12, line 10, \"employers\" should be \"employees.\"\nID #\nCU\nWHITE HOUSE\nCORRESPONDENCE TRACKING WORKSHEET\n0 - OUTGOING\nH INTERNAL\nI - INCOMING\nDate Correspondence\nReceived (YY/MM/DD)\n/\n/\nName of Correspondent: James C. murs\nM1 Mail Report\nUser Codes: (A)\n(B)\n(C)\nSubject: Drapt DOJ report on H.R. 3080, the Immigration\ncontrol 04 and Legalization amend mentr act\nROUTE TO:\nACTION\nDISPOSITION\nTracking\nType\nCompletion\nAction\nDate\nof\nDate\nOffice/Agency\n(Staff Name)\nCode\nYY/MM/DD\nResponse\nCode\nYY/MM/DD\nCUITOLL\nORIGINATOR 85,10,29\n/\n/\nReferral Note:\nCUAT18\nR\n85,10,29\n5 85,11,04\nReferral Note:\n/ /\n/ /\n-\nReferral Note:\n/ /\n/ /\nI\n-\nReferral Note:\n/ /\n/ /\nI\nReferral Note:\nACTION CODES:\nDISPOSITION CODES:\nA Appropriate Action\nI Into Copy Only/No Action Necessary\nA Answered\nC Completed\nC - Comment/Recommendation\nR : Direct Reply w/Copy\nB Non-Special Referral\nS Suspended\nD Draft Response\nS For Signature\nF - Furnish Fact Sheet\nX - Interim Reply\nto be used as Enclosure\nFOR OUTGOING CORRESPONDENCE:\nType of Response = Initials of Signer\nCode = \"A\"\nCompletion Date = Date of Outgoing\nComments:\nKeep this worksheet attached to the original incoming letter.\nSend all routing updates to Central Reference (Room 75, OEOB).\nAlways return completed correspondence record to Central Files.\nRefer questions about the correspondence tracking system to Central Reference, ext. 2590.\n5/81\nTHE WHITE HOUSE\nWASHINGTON\nAugust 28, 1985\nMEMORANDUM FOR BRANDEN BLUM\nLEGISLATIVE ATTORNEY\nOFFICE OF MANAGEMENT AND BUDGET\nFROM:\nASSOCIATE COUNSEL JR TO THE PRESIDENT\nJOHN G. ROBERTS\nSUBJECT:\nDOJ Draft Report on S. 196, a Bill to\nAmend the Immigration and Nationality Act\nConcerning Barring Certain Aliens from\nAdmission into the United States\nCounsel's Office has reviewed the above-referenced draft\nreport, and finds no objection to it from a legal\nperspective.\n332838\nID #\nCU\nJV 1\nWHITE HOUSE\nIM\nCORRESPONDENCE TRACKING WORKSHEET\no - OUTGOING\nJR\nH - INTERNAL\nI . INCOMING\nDate Correspondence\nReceived (YY/MM/DD)\n/\n/\nName of Correspondent:\nJames C. Muss\nMI Mail Report\nUser Codes: (A)\n(B)\n(C)\nSubject: DOJ draft resort on 5.196 abill to\namend Jul Immigration and nationality\nact concerning burring certain aliens from\nadmission into the U.S.\nROUTE TO:\nACTION\nDISPOSITION\nTracking\nType\nCompletion\nAction\nDate\nof\nDate\nOffice/Agency\n(Staff Name)\nCode\nYY/MM/DD\nResponse\nCode\nYY/MM/DD\nCursace\nORIGINATOR 85,07,15 TR\n/\n/\nReferral Note:\nCUAT 1.8\nR 85,07,15\nHis\n5 85,08,06\nReferral Note:\n/\n/\n1\n/\nReferral Note:\n/\n/\n/\n/\nReferral Note:\n/\n/\n/\n/\nReferral Note:\nACTION CODES:\nDISPOSITION CODES:\nA Appropriate Action\nI . Info Copy Only/No Action Necessary\nA Answered\nC Completed\nC - Comment/Recommendation\nR Direct Reply w/Copy\nB - Non-Special Referral\nS Suspended\nD Draft Response\nS For Signature\nF. Furnish Fact Sheet\nX Interim Reply\nto be used as Enclosure\nFOR OUTGOING CORRESPONDENCE:\nType of Response = Initials of Signer\nCode = \"A\"\nCompletion Date = Date of Outgoing\nComments:\nKeep this worksheet attached to the original incoming letter.\nSend all routing updates to Central Reference (Room 75, OEOB).\nAlways return completed correspondence record to Central Files.\nRefer questions about the correspondence tracking system to Central Reference, ext. 2590.\n5/81\nSTATE THE UNITED STATE\nEXECUTIVE OFFICE OF THE PRESIDENT\nOFFICE OF management AND BUDGET\nWASHINGTON, D.C. 20503\n332838\nJuly 15, 1985\nLEGISLATIVE REFERRAL MEMORANDUM\nTO:\nDepartment of State\nDepartment of Health and Human Services\nNational Security Council\nSUBJECT: DOJ draft report on S. 196, a bill to amend the Immigration\nand Nationality Act concerning barring certain aliens from\nadmission into the United States\nThe Office of Management and Budget requests the views of your\nagency on the above subject before advising on its relationship\nto the program of the President, in accordance with OMB Circular\nA-19.\nPlease provide us with your views no later than\nTuesday, August 6, 1985.\nDirect your questions to Branden Blum (395-3454), the legislative\nattorney in this office.\nJames C. Murr for\nAssistant Director for\nLegislative Reference\nCC: F. Fielding\nT. Treacy\nS. Brentlinger\nJ. Cooney\nS. Gates\nU.S. Department of Justice\nOffice of Legislative and Intergovernmental Affairs\n82-0120 - meb:am\nOffice of the Assistant Attorney General\nWashington, D.C. 20530\nDRAFT\nHonorable Strom Thurmond\nChairman, Senate Judiciary Committee\nUnited States Senate\nWashington, D.C. 20510\nDear Mr. Chairman:\nThis is in response to your request for the views of the Depart-\nment of Justice on S.196, a bill to repeal section 212 (a) (4) of\nthe Immigration and Nationality Act, as amended. For the reasons\nset forth below this Department recommends against enactment of\nthe legislation in its current form.\nSection 212 (a) (4) of the Immigration and Nationality Act of 1952\nprovides that [a] liens afflicted with psychopathic personality,\nor sexual deviation, or a mental defect\" are ineligible to re-\nceive visas and are barred from admission into the United States.\nThe proposed bill would repeal that section and add a new section\n212 (a) (4) which encompasses only: \"aliens afflicted with a\nmental disease or defect\". While it is uncertain from this\nlanguage exactly which aliens are included in the new category,\nwe assume that one of the bill's primary purposes is to remove\nhomosexual aliens from coverage under the present section\n212 (a) (4).\nAlthough the current section 212 (a) (4) does not contain a\nspecific reference to homosexual aliens, the legislative history\nof that section clearly shows that Congress intended it to\ninclude homosexual aliens. The Conference Report to the 1952\nImmigration and Nationality Act shows that Congress adopted the\nPublic Health Service view that homosexuality was a form of\nsexual perversion. This Congressional interpretation currently\nprovides the basis for the exclusion of homosexual aliens under\n212 (a) (4), even though in 1979 the Public Health Service refused\nto certify homosexual aliens as having a \"mental disease or\ndefect\".\nThe Department of Justice supports legislation to eliminate\nhomosexuality as a ground for exclusion. However, merely\nchanging section 212 (a) (4) to encompass aliens with a \"mental\ndisease or defect,\" without explicitly defining that phrase,\nwould not accomplish that goal. It is necessary to provide some\nclear indication that Congress does not now consider homosexual\naliens to have a \"mental defect.\"\n- 2 -\nThe Department of Justice recommends adoption of medical termi-\nnology proposed by the Public Health Service instead of the\nused in section 212(a) (4) or in the proposed bill. Those\naliens excludable under the Public Health Service proposal include\n\"aliens with an antisocial personality disorder or a paraphilia\ncondition.\" The Public Health Service states that these terms are\nthe proper psychiatric diagnostic classifications currently in\nuse, and are medically defined 80 as not to include homosexuality.\nThis language replaces the term \"psychopathic personality\" and\n\"sexual deviation\" contained in section 212(a)(4). The term\n\"mental defect\" is not used.\nThe Office of Management and Budget has advised this Department\nthat there is no objection to the submission of this report from\nthe standpoint of the Administration's programs.\nSincerely,\nPhillip D. Brady\nActing Assistant Attorney General\nTHE WHITE HOUSE\nWASHINGTON\nAugust 28, 1985\nMEMORANDUM FOR THE FILE\nFROM:\nJOHN G. ROBERTS\nASSOCIATE COUNSEL TO THE PRESIDENT\nSUBJECT:\nCorrespondence Regarding Deportation\nProceedings Against Karl Linnas, a\nCitizen of Estonia\nNo action is appropriate in response to Juhan Simonson's\nletter to the President urging action to prevent the\ndeportation of Karl Linnas by the Justice Department Office\nof Special Investigations. The matter is a particular\nmatter pending before the courts, and the views of the\nGovernment are being presented in the course of litigation\nby the Department of Justice. In the course of related\nlitigation (the Fedorenko case), the Department of State\ndetermined that deportation of a citizen of one of the\nBaltic states to the Soviet Union would not contravene the\nU.S. Government non-recognition policy. Mr. Simonson's\norganization is already aware of these facts.\nID# 291921\nTHE WHITE HOUSE\nCORRESPONDENCE TRACKING WORKSHEET\nINCOMING\nDATE RECEIVED: MARCH 25, 1985\nNAME OF CORRESPONDENT: MR. JUHAN SIMONSON\nSUBJECT: WRITES REGARDING DEPORTATION PROCEEDINGS\nAGAINST KARL LINNAS, A CITIZEN OF ESTONIA\nACTION\nDISPOSITION\nROUTE TO:\nACT\nDATE\nTYPE C COMPLETED\nOFFICE/AGENCY (STAFF NAME)\nCODE YY/MM/DD RESP D YY/MM/DD\nORG 85/03/25\nC85/04/03\nCu LINAS KOJELIS\nREFERRAL NOTE:\nATTN: JOHN ROBERTS\nA 85/04/0208\n/ /\nREFERRAL NOTE:\n/ /\n/ /\nREFERRAL NOTE:\n/ /\n/ /\nREFERRAL NOTE:\n/ /\n/ /\nREFERRAL NOTE:\nCOMMENTS:\nADDITIONAL CORRESPONDENTS:\nMEDIA:L INDIVIDUAL CODES:\nPL MAIL\nUSER CODES: (A)\n(B)\n(C)\n*ACTION CODES:\n*DISPOSITION CODES:\n*OUTGOING\n*\n*\n* CORRESPONDENCE:\n*\n*A-APPROPRIATE ACTION\n*A-ANSWERED\n*TYPE RESP=INITIALS\n*\n*C-COMMENT/RECOM\n*B-NON-SPEC-REFERRAL\n*\nOF SIGNER\n*\n*D-DRAFT RESPONSE\n*C-COMPLETED\n*\nCODE = A\n*F-FURNISH FACT SHEET\n*S-SUSPENDED\n*COMPLETED = DATE OF\n*\n*I-INFO COPY/NO ACT NEC*\n*\nOUTGOING\n*R-DIRECT REPLY W/COPY *\n*\n*S-FOR-SIGNATURE\n*\n*\n*X-INTERIM REPLY\n*\nREFER OUESTIONS AND ROUTING UPDATES TO CENTRAL REFERENCE\n(ROOM 75,0EOB) EXT. 2590\nKEEP THIS WORKSHEET ATTACHED TO THE ORIGINAL INCOMING\nLETTER AT ALL TIMES AND SEND COMPLETED RECORD TO RECORDS\nMANAGEMENT.\nESTONIAN AMERICAN NATIONAL COUNCIL\nESTONIAN HOUSE\n243 EAST 34TH STREET\nP.O. Box 266\nNew YORK, N.Y. 10016\nTEL. (212) 685-0776\nBOARD OF DIRECTORS\nMarch 20, 1985\nPresident\nJuhan Simonson\nVice-Presidents\nPresident Ronald W. Reagan\nVaike Lugus\nThe White House\nCulture & Youth\nK. Jaak Roosaare\n1600 Pennsylvania Avenue, N.W.\nPolitical Affairs\nWashington, D.C.\nPaul Saar\nSecretary & Administration\nJüri Virkus\nRe: Republic of Estonia\nTreasurer & Organizations\nU.S. Nonrecognition Policy\nAssistant Treasurer\nEndel Reinpold\nDeportation Proceedings against Karl Linnas\nSpecial Projects\nRichard Espenbaum\nHillevi Ober\nDear Mr. President:\nSven Paul\nAvo Piirisild\nMartin J. Sunberg\nWe are compelled to bring to your urgent attention\nMari-Ann Rikken\nthe deportation proceedings against Karl Linnas, a\nBaltic Affairs\ncitizen of. the Republic of Estonia, for the reason that\nREGIONAL DIRECTORS\nthe outcome may have a serious negative impact on the\nDelmarve\nFred Ise\nlong-standing foreign policy of the United States to\nSouthwest\nnot recognize the forcible and illegal incorporation of\nHeino Jōgis\nEstonia, Latvia, and Lithuania into the U.S.S.R.\nMid-Central\nGilda-Mall Karu\nNorthwest\nMr. Linnas has been found deportable on the basis\nEino Moks\nof evidence provided by the Soviet K.G.B. The Soviet\nSouth-Central\nIlmar Pleer\nUnion alone has agreed to accept Mr. Linnas into its\nNorth-Central\nterritory. However, it must be pointed out that Karl\nOlaf Tammark\nLinnas was condemned to death in absentia by a Soviet\nCOUNCILORS\nCourt in Estonia (with the verdict published prior to\nYlo Anson\nVeljo Areng\nthe conclusion of the trial!) and the Soviets demanded\nAnne-Liis Deklau\nLilian Esop\nhis extradition in 1961. The demand was denied by the\nMäido Kari\nUnited States Government.\nVirko Keder\nTiina-Ann Kirss\nAlexander Koepp\nEnn Koiva\nUnder the circumstances, the deportation of Karl\nMati Koiva\nLinnas to the U.S.S.R. or Estonia would constitute\nJyri Kork\nBruno Laan\nimposition of the death penalty for a violation of U.S.\nArno Liivak\nRein Luik\nimmigration law, reverse a U.S. Government decision not\nKersti Männik\nHelle Merilo\nto extradite Mr. Linnas to the U.S.S.R., and very\nHerbert Michelson\nseriously weaken the credibility of the U.S. nonrecognition\nEndel Miido\nMaimu Miido\npolicy.\nMaano Milles\nHarry Must\nHeino Nurmberg\nWe urge you, Mr. President, to do whatever is in\nAnts Pallop\nTonu Parming\nyour power to prevent Karl Linnas from being deported\nOlaf Pikat\nKarin L. Raus\nto the Soviet Union and prevent a miscarriage of justice.\nJuta Ristsoo\nUno Teemant\nHarry Verder\nPaul Vesterstein\nViktor Vinkman\nActing Secretary General\nJaan Tiivel\nchan Simowon Juhan President Simonson\nCC: Hon. George P. Shultz\nThe Estonian American National Council, founded in 1952, is a non-governmental, non-profit organization,\nnationally elected to represent Americans of Estonian descent.\nTHE WHITE HOUSE\nWASHINGTON\nSeptember 27, 1985\nMEMORANDUM FOR BRANDEN BLUM\nLEGISLATIVE ATTORNEY\nOFFICE OF MANAGEMENT AND BUDGET\nFROM:\nASSOCIATE COUNSEL 022 TO THE PRESIDENT\nJOHN G. ROBERTS\nSUBJECT:\nDOL & DOA Testimony on H.R. 3080, the Foreign\nAgricultural Workers Provisions Contained in\nthe Immigration Control and Legalization\nAmendments Act of 1985\nCounsel's Office has reviewed the above-referenced\ntestimonies, and finds no objection to them from a legal\nperspective.\nID #\nCU\nWHITE HOUSE\nCORRESPONDENCE TRACKING WORKSHEET\no - OUTGOING\nH * INTERNAL\nI - INCOMING\nDate Correspondence\nReceived (YY/MM/DD)\n/\n/\nName of Correspondent:\nJ. C. muss\nMI Mail Report\nUser Codes: (A)\n(B)\n(C)\nSubject: DOL DOA testimony on H.R. 3080, the\nforeign agrecultural washess provisions\ncontained in the Immigration Control and\nRegalization amendments act of 1985\nROUTE TO:\nACTION\nDISPOSITION\nTracking\nType\nCompletion\nAction\nDate\nof\nDate\nOffice/Agency\n(Staff Name)\nCode\nYY/MM/DD\nResponse\nCode\nYY/MM/DD\ncurtal\nORIGINATOR 85,09,27\n/\n/\nReferral Note:\ncunt18\nR\n85,09,27\n$ 85,09,27\nReferral Note:\n11am / am\n/ /\n/\n/\n-\nReferral Note:\n/ /\n/ /\nReferral Note:\n/ /\n/\n/\nReferral Note:\nACTION CODES:\nDISPOSITION CODES:\nA * Appropriate Action\nI Info Copy Only/No Action Necessary\nA Answered\nC Completed\nC Comment/Recommendation\nR * Direct Reply w/Copy\nB - Non-Special Referral\nS Suspended\nD Draft Response\nS For Signature\nF - Furnish Fact Sheet\nX - Interim Reply\nto be used as Enclosure\nFOR OUTGOING CORRESPONDENCE:\nType of Response = Initials of Signer\nCode = \"A\"\nCompletion Date = Date of Outgoing\nComments:\nKeep this worksheet attached to the original incoming letter.\nSend all routing updates to Central Reference (Room 75, OEOB).\nAlways return completed correspondence record to Central Files.\nRefer questions about the correspondence tracking system to Central Reference, ext. 2590.\n5/81\nTHE WHITE HOUSE\nWASHINGTON\nSeptember 16, 1985\nMEMORANDUM FOR BRANDEN BLUM\nLEGISLATIVE ATTORNEY\nOFFICE OF MANAGEMENT AND BUDGET\nFROM:\nASSOCIATE COUNSEL JJR TO THE PRESIDENT\nJOHN G. ROBERTS\nSUBJECT:\nDraft EEOC Statement Discussing the Anti-\nDiscrimination Provisions Contained in\nH.R. 3080, the Immigration Control and\nLegalization Amendments Act of 1985\nCounsel's Office has reviewed the above-referenced proposed\ntestimony. On pages 6-7 of this testimony, Chairman Thomas\nstates that the employer sanctions provision may result in\nan increase in discrimination against documented individuals,\non the basis of national origin. Previous Justice testimony,\nparticularly that of Brad Reynolds, went to considerable\nlengths to establish the opposite. This inconsistency\nshould be resolved. Perhaps paragraph (6) could be deleted,\nor rephrased along the lines of \"some have argued that,\" \"\nwithout the Chairman appearing to agree that discrimination\nwill increase.\nID #\nCU\nWHITE HOUSE\nCORRESPONDENCE TRACKING WORKSHEET\n0 . OUTGOING\nH . INTERNAL\nI - INCOMING\nDate Correspondence\nReceived (YY/MM/DD)\n/\n/\nName of Correspondent:\nJames mun\nMI Mail Report\nUser Codes: (A)\n(B)\n(C)\nSubject: Draft EEOC statement discussing the anti-\ndiscrimination provisions contained in H.R. 3080\nthe Immigration Control and Legalization\namendments act af- 1985\nROUTE TO:\nACTION\nDISPOSITION\nTracking\nType\nCompletion\nAction\nDate\nof\nDate\nOffice/Agency\n(Staff Name)\nCode\nYY/MM/DD\nResponse\nCode\nYY/MM/DD\nCUHALL\nORIGINATOR\n85,09,13\n/\n/\nReferral Note:\ncuat 18\nR\n85,09,13\nS 85,09,16\n/ N\nReferral Note:\n/\n/\n/ /\nReferral Note:\n/\n/\n/\n/\nReferral Note:\n/\n/\n/\n/\nReferral Note:\nACTION CODES:\nDISPOSITION CODES:\nA Appropriate Action\nI Info Copy Only/No Action Necessary\nA Answered\nC Completed\nC Comment/Recommendation\nR Direct Reply w/Copy\nB - . Non-Special Referral\nS Suspended\nD Draft Response\nS For Signature\nF Furnish Fact Sheet\nX Interim Reply\nto be used as Enclosure\nFOR OUTGOING CORRESPONDENCE:\nType of Response = Initials of Signer\nCode = \"A\"\nCompletion Date = Date of Outgoing\nComments:\nKeep this worksheet attached to the original incoming letter.\nSend all routing updates to Central Reference (Room 75, OEOB).\nAlways return completed correspondence record to Central Files.\nRefer questions about the correspondence tracking system to Central Reference, ext. 2590.\n5/81\nEXECUTIVE OFFICE OF THE PRESIDENT\nOFFICE OF MANAGEMENT AND BUDGET\nSPECIAL\nWASHINGTON, D.C. 20503\nTHE\nSeptember 12, 1985\nLEGISLATIVE REFERRAL MEMORANDUM\nDepartment of Agriculture - Eric Mondres (447-7095)\nTO:\nDepartment of Health and Human Services - Frances White (245-7760)\nDepartment of Justice - Jack Perkins (633-2113)\nDepartment of State - Bill Farrah (632-0430)\nDepartment of Education - JoAnne Durako (732-2670)\nDepartment of Commerce - Mike Levitt (377-3151)\nDepartment of the Treasury - - Carol Toth (566-8523)\nNational Security Council\nCouncil of Economic Advisers\nSUBJECT: Draft EEOC statement discussing the anti-discrimination provisions\ncontained in H.R. 3080, the Immigration Control and Legalization\nAmendments Act of 1985\nThe Office of Management and Budget requests the views of your\nagency on the above subject before advising on its relationship\nto the program of the President, in accordance with OMB Circular\nA-19.\nPlease provide us with your views no later than\nNOON MONDAY, SEPTEMBER 16, 1985.\n(NOTE: Justice testimony for the this hearing, scheduled for 9/18/85, has\nalready been circulated.)\nDirect your questions to Branden Blum (395-3454), the legislative\nattorney in this office.\nJames C. Murr for\nAssistant Director for\nLegislative Reference\nEnclosure\nCC: F. Fielding\nT. Treacy\nS. Elliff\nB. White\nJ. Cooney\nS. Gates\nP. Hanna\nA. Hoffman\nSTATEMENT OF CLARENCE THOMAS, CHAIRMAN\n1st\nOF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION\nFOR THE SUBCOMMITTEE ON IMMIGRATION, REFUGEES,\nDRAFT\nAND INTERNATIONAL LAW REGARDING H.R. 3080\nTO AMEND THE IMMIGRATION AND NATIONALITY ACT\nTHANK YOU FOR INVITING ME, AS CHAIRMAN OF THE EQUAL EMPLOYMENT\nOPPORTUNITY COMMISSION, TO COMMENT UPON THE ANTI-DISCRIMINA-\nTION PROVISIONS CONTAINED IN H.R. 3080. THE LEGISLATION\nPROPOSES TO AMEND THE IMMIGRATION AND NATIONALITY ACT TO\nREVISE AND REFORM THE IMMIGRATION LAWS. H.R. 3080 ALSO\nPROPOSES TO ENACT AN ALTERNATIVE ENFORCEMENT MECHANISM TO\nINVESTIGATE AND PROSECUTE ANY RESULTING EMPLOYMENT RELATED\nCHARGES OF DISCRIMINATION.\nSIMILARLY, THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC)\nIS CHARGED WITH THE ENFORCEMENT OF THE CIVIL RIGHTS STATUTES,\nINCLUDING TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS\nAMENDED, 42 U.S.C 2000e ET SEQ. TITLE VII PROHIBITS EMPLOY-\nMENT DISCRIMINATION ON THE BASIS OF RACE, COLOR, SEX,\nNATIONAL ORIGIN AND RELIGION. TITLE VII APPLIES TO ANY\nCHARGE OF EMPLOYMENT DISCRIMINATION BY AN EMPLOYER OF\nFIFTEEN OR MORE PERSONS AGAINST ANY INDIVIDUAL ON THE BASIS\nOF THE INDIVIDUAL'S NATIONAL ORIGIN. THE TERM \"NATIONAL\nORIGIN\" REFERS TO THE COUNTRY OF ORIGIN WHERE A PERSON WAS\nBORN OR, MORE BROADLY, THE COUNTRY FROM WHICH HIS OR HER\nANCESTORS CAME. IT IS NOT RESTRICTED TO ANY ONE ETHNIC\nGROUPING.\n- 2 -\nFURTHER, TITLE VII, BY ITS TERMS, APPLIES TO ALL WORKERS AND\nAPPLICANTS, WHETHER DOCUMENTED OR UNDOCUMENTED, EXCEPT AS\nPROVIDED IN SECTION 702, WHICH ADDRESSES THE EMPLOYMENT OF\nALIENS OUTSIDE THE JURISDICTIONAL BOUNDARIES OF THE UNITED\nSTATES. TITLE VII ALREADY MAKES IT UNLAWFUL FOR AN EMPLOYER TO\nDISCRIMINATE WITH REGARD TO THE HIRING, DISCHARGE, OR ANY\nTERMS AND CONDITIONS OF EMPLOYMENT ON THE BASIS OF NATIONAL\nORIGIN. ADDITIONALLY, THE ACT HAS BEEN INTERPRETED BY THE\nSUPREME COURT AS ALLOWING THE AGGRIEVED INDIVIDUAL FULL \"MAKE\nWHOLE\" RELIEF AND BACKPAY FOR TWO YEARS PRIOR TO THE CHARGE\nFILING.\nH.R. 3080 PROPOSES TO MAKE IT UNLAWFUL FOR A PERSON\nTO HIRE OR RECRUIT UNDOCUMENTED WORKERS KNOWING THAT THE\nWORKER IS AN \"UNAUTHORIZED ALIEN\" OR WITHOUT COMPLYING WITH\nTHE VERIFICATION REQUIREMENTS OF THE BILL. THE LEGISLATION\nALSO PROVIDES BOTH CIVIL AND CRIMINAL SANCTIONS FOR PERSONS\nWHO HAVE ENGAGED IN A PATTERN OR PRACTICE OF EMPLOYING\nUNDOCUMENTED WORKERS AND PROVIDES A CIVIL MONEY PENALTY\nFOR THE PAPERWORK VIOLATIONS. ADDITIONALLY, THE LEGIS-\nLATION WOULD ALLOW LIMITED AMNESTY FOR UNDOCUMENTED WORKERS\nCURRENTLY IN THIS COUNTRY, A SYSTEM FOR EXPANDING THE TEMPORARY\nFOREIGN AGRICULTURAL WORKER PROGRAM, ALONG WITH ITS BROAD\nANTI-DISCRIMINATION PROVISIONS.\n- 3 -\nH.R. 3080, WOULD AMEND THE IMMIGRATION AND NATURALIZATION\nACT TO ADD SECTION 274(B)(b)(2), WHICH SPECIFICALLY STATES\nTHAT THERE IS BE NO OVERLAP BETWEEN EEOC COMPLAINTS AND THOSE\nSUBMITTED PURSUANT TO H.R. 3080. ADDITIONALLY, SECTION\n274 (d) (2) (e) PROVIDES:\nEXCEPT AS MAY BE SPECIFICALLY PROVIDED IN\nTHIS SECTION, NOTHING IN THIS SECTION SHALL\nBE CONSTRUED TO RESTRICT THE AUTHORITY OF THE\nEQUAL EMPLOYMENT OPPORTUNITY COMMISSION TO\nINVESTIGATE ALLEGATIONS, ..., AS PROVIDED IN\nSECTION 706 OF THE CIVIL RIGHTS ACT OF 1964\n(42 U.S.C. 2000e-5), OR ANY OTHER AUTHORITY\nPROVIDED THEREIN.\nAS OF THIS DATE, THE COMMISSION, AS A BODY, HAS NOT\nADDRESSED THE RAMIFICATIONS OF H.R. 3080 OR S. 1200, A\nSIMILAR BILL WHICH WAS RECENTLY APPROVED ON JULY 30, 1985 BY\nTHE SENATE JUDICIARY COMMITTEE.\nHOWEVER, GIVEN THE CLARIFICATION OFFERED WITHIN H.R. 3080,\nI ANTICIPATE THAT, IF ENACTED, H.R. 3080 SHOULD HAVE\nA MINIMAL IMPACT ON THE EEOC'S AUTHORITY TO INVESTIGATE\nAND PROSECUTE COMPLAINTS. THEREFORE, I WILL CONFINE MY\nCOMMENTS TO THOSE SECTIONS OF THE BILL WHICH MAY POSE\nTECHNICAL INCONSISTENCIES WITH TITLE VII.\n- 4 -\nEEOC STAFF HAS MADE THE FOLLOWING OBSERVATIONS:\n1) TITLE VII, AS INTERPRETED BY THE SUPREME COURT IN\nESPINOZA V. FARRAH MANUFACTURING CO., 414 U.S. 86 (1973),\nALREADY PROVIDES COVERAGE WITH REGARD TO CLAIMS OF EMPLOYMENT\nDISCRIMINATION BECAUSE OF NATIONAL ORIGIN. FURTHER, THE\nEEOC ALREADY HAS AN ENFORCEMENT ORGANIZATION IN PLACE, WITH\nTWENTY-TWO DISTRICT OFFICES AND MORE THAN THREE THOUSAND\nEMPLOYEES, WHOSE MAIN FUNCTION IS TO INVESTIGATE THE EMPLOY-\nMENT RELATED DISCRIMINATION CHARGES ON THE BASIS OF NATIONAL\nORIGIN, RACE, SEX, RELIGION OR COLOR.\n2) TITLE VII APPLIES TO PRIVATE SECTOR EMPLOYERS WITH\nFIFTEEN OR MORE EMPLOYEES. H.R. 3080 WOULD EXTEND COVERAGE\nTO EMPLOYERS WITH FEWER THAN FIFTEEN EMPLOYEES, BUT ONLY WITH\nREGARD TO NATIONAL ORIGIN CLAIMS. TO THE EXTENT THAT STRENGTHENED\nENFORCEMENT PROTECTION IS AFFORDED INDIVIDUALS AGGRIEVED BY\nH.R. 3080, THAT SAME PROTECTION SHOULD APPLY TO THE LARGER\nEMPLOYERS AND OTHER CHARGES BROUGHT UNDER TITLE VII, INCLUDING\nRACE, COLOR, SEX, AND RELIGION. OTHERWISE, ONLY CHARGES\nBROUGHT ON THE BASIS OF NATIONAL ORIGIN, AND UNDER H.R. 3080,\nWOULD RECEIVE THE BENEFIT OF THE EXPEDITED PROCESSING\nPROCEDURES, CEASE AND DESIST AUTHORITY, AND AN ENFORCEMENT\nMECHANISM DEVOTED TO NATIONAL ORIGIN CLAIMS ONLY, AS\nPROPOSED IN H.R. 3080. IRONICALLY, THE SMALLER EMPLOYER,\nTHOSE WITH FOUR TO FOURTEEN EMPLOYEES, COULD BE SUBJECT TO\nTOUGHER ENFORCEMENT PROCEDURES UNDER H.R. 3080 THAN ARE THE\nEMPLOYERS WITH MORE THAN FIFTEEN EMPLOYEES, WHO ARE SUBJECT\nTO TITLE VII.\n5 -\n3) H.R. 3080 IS AIMED AT RECRUITMENT AND HIRING DISCRIMINATION\nONLY. TITLE VII COVERS DISCHARGE, TERMS AND CONDITIONS OF\nEMPLOYMENT, WAGES AND ALL OTHER EMPLOYMENT RELATED BENEFITS\nAND PRIVILEGES. MOST OF THE NATIONAL ORIGIN CHARGES, WHICH\nTHE COMMISSION RECEIVES, ALLEGE DISCRIMINATION IN DISCHARGE\n(TERMINATIONS) OR TERMS AND CONDITIONS OF EMPLOYMENT.\nTHEREFORE, AS PROPOSED, H.R. 3080 MAY NOT REACH MANY OF THE\nCHARGES WHICH MAY RESULT FROM THE ENACTMENT OF H.R. 3080.\n4) EEOC REGULATIONS ADDRESS DISCRIMINATION ON THE BASIS\nOF CITIZENSHIP. ALTHOUGH TITLE VII DOES NOT MAKE IT UNLAWFUL\nFOR AN EMPLOYER TO DISCRIMINATE ON THE BASIS OF AN INDIVIDUAL'S\nCITIZENSHIP, THE COMMISSION, IN ITS COMPLIANCE MANUAL SECTION\n622, \"CITIZENSHIP, RESIDENCY REQUIREMENTS, ALIENS AND UNDOCUMENTED\nWORKERS\" (COPY ATTACHED) HAS CONCLUDED THAT DISCRIMINATION\nAGAINST ANY INDIVIDUAL BECAUSE OF A LACK OF CITIZENSHIP,\nWHILE NOT PER SE DISCRIMINATION, MAY UNDER CERTAIN CIRCUMSTANCES,\nCONSTITUTE UNLAWFUL DISCRIMINATION BECAUSE OF NATIONAL ORIGIN\nWITHIN THE MEANING OF TITLE VII. SPECIFICALLY, IN THOSE\nCIRCUMSTANCES WHERE CITIZENSHIP REQUIREMENTS HAVE THE PURPOSE\nOR EFFECT OF DISCRIMINATING AGAINST AN INDIVIDUAL ON THE\nBASIS OF NATIONAL ORIGIN, THE IMPOSITION OF THE REQUIREMENTS\nWOULD BE PROHIBITED BY TITLE VII.\n- 6 -\nH.R. 3080, IF ENACTED, SIMILARLY WOULD PROHIBIT DISCRIMINATION ON\nTHE BASIS OF \"CITIZENSHIP OR ALIEN STATUS\", IF THE PERSON\nCLAIMING DISCRIMINATION IS A U.S. CITIZEN OR \"PERMANENT\nRESIDENT ALIEN, REFUGEE, ASYLEE, OR NEWLY LEGALIZED ALIEN WHO\nHAS FILED A NOTICE OF INTENT TO BECOME A U.S. CITIZEN.\"\nIT IS UNCLEAR HOW MUCH MORE PROTECTION WOULD BE AFFORDED\nUNDER H.R. 3080 THAN CURRENTLY IS PROVIDED UNDER EEOC'S\nINTERPRETATION OF TITLE VII.\n5) IN FACT, IT IS POSSIBLE THAT H.R. 3080 MAY PROVIDE LESS\nNATIONAL ORIGIN PROTECTION THAN DOES TITLE VII. FOR EXAMPLE,\nH.R. 3080 PROVIDES A LIMITATION ON BACK PAY LIABILITY. UNDER\nH.R. 3080, BACK PAY LIABILITY MAY NOT ACCRUE FROM A DATE\nMORE THAN TWO YEARS PRIOR TO THE FILING OF A CHARGE WITH AN\nADMINISTRATIVE LAW JUDGE. YET, THE INITIAL FILING OF THE\nCHARGE IS WITH THE SPECIAL COUNSEL. IT MAY BE YEARS BEFORE\nTHE CHARGE IS PRESENTED TO THE ADMINISTRATIVE LAW JUDGE.\nTITLE VII, BY CONTRAST, ALLOWS BACK PAY FOR A PERIOD OF TWO\nYEARS PRIOR TO THE CHARGE FILING.\n6) TO THE EXTENT THAT THE EMPLOYER SANCTIONS ARE TO BE\nSTRICTLY ENFORCED, THE COMMISSION ANTICIPATES THAT\n2\nEMPLOYERS, NOT WANTING TO VIOLATE THE IMMIGRATION LAWS,\nMAY BE RELUCTANT TO HIRE ANY INDIVIDUAL WHOM IT SUSPECTS AS\nBEING UNDOCUMENTED. CONSEQUENTLY, EMPLOYERS MAY REFUSE TO\nCONSIDER, OR DISCHARGE, DOCUMENTED INDIVIDUALS, ESPECIALLY\n- 7 -\nHISPANICS AND ASIANS, BASED ON THEIR APPARENT NATIONAL ORIGIN.\nEMPLOYMENT DISCRIMINATION ON THE BASIS OF NATIONAL ORIGIN\nMAY INCREASE. CONSEQUENTLY, THE COMMISSION ANTICIPATES THAT\nITS NATIONAL ORIGIN DISCRIMINATION CHARGE ACTIVITY MAY INCREASE\nWITH THE PASSAGE OF H.R. 3080 OR ANY OTHER IMMIGRATION\nLEGISLATION WHICH IMPOSES CIVIL OR CRIMINAL PENALTIES.\n7) H.R. 3080, AT SECTION 274B(c) CREATES AN OFFICE OF SPECIAL\nCOUNSEL IN THE DEPARTMENT OF JUSTICE WITH THE RESPONSIBILITY\n\"FOR [THE] INVESTIGATION OF CHARGES AND ISSUANCE OF COMPLAINTS\nUNDER THIS SECTION AND IN RESPECT TO THE PROSECUTION OF\nCOMPLAINTS UNDER THIS SECTION. . \"\nI HAVE BEEN TOLD THAT PROPONENTS IN FAVOR OF THE ESTABLISHMENT OF\nA SEPARATE \"SPECIAL COUNSEL\" OUTSIDE OF THE EEOC HAVE ARGUED\nTHAT TITLE VII IS INADEQUATE BECAUSE:\n1. TITLE VII, WHICH APPLIES TO EMPLOYERS OF FIFTEEN\nOR MORE PERSONS, WOULD NOT COVER THE SMALL\nBUSINESS AND SEASONAL EMPLOYERS, I.E. THOSE WITH FOUR\nTO FOURTEEN EMPLOYEES;\n2. TITLE VII DOES NOT PROHIBIT DISCRIMINATION ON THE\nBASIS OF CITIZENSHIP;\n3. SECTION 703(h) OF TITLE VII ALLOWS A \"BONA\nFIDE OCCUPATIONAL QUALIFICATION\" EXCEPTION\nAS A DEFENSE TO A NATIONAL ORIGIN CHARGE;\n- 8 -\n4. TITLE VII ALLOWS AN OTHERWISE DISCRIMINATORY\nBUSINESS PRACTICE WHICH MAY HAVE A DISCRIMINATORY\nIMPACT IF THE PRACTICE BEARS A REASONABLE\nBUSINESS RELATIONSHIP TO THE BUSINESS AND IS\nSUPPORTED BY BUSINESS NECESSITY;\n5. A TITLE VII CHARGE IS VIEWED AS T00 DIFFICULT AND\nTIME CONSUMING TO PROCESS;\n6. TITLE VII DOES NOT HAVE AN EXPEDITED ADMINISTRATIVE\nPROCESS FOR ADJUDICATING CLAIMS, SUCH AS CEASE\nAND DESIST AUTHORITY; AND\n7. THERE IS A BELIEF THAT HISPANIC INDIVIDUALS HAVE NOT\nAVAILED THEMSELVES OF EEOC'S SERVICES DUE TO SUCH\nSHORTCOMINGS AS A LACK OF OUTREACH TO HISPANICS.\nI WILL NOT ATTEMPT TO ARGUE THE PROCEDURAL POINTS WHICH\nHAVE BEEN RAISED. HOWEVER, IT WOULD SEEM THAT IF THERE ARE\nDEFICIENCIES WITHIN TITLE VII, THE SOLUTION MAY BE TO\nSTRENGHTEN TITLE VII, NOT CREATE ANOTHER AGENCY.\nMOREOVER, IF STRENGTHENED ANTI-DISCRIMINATION PROCEDURES\nARE INSTITUTED WITH REGARD TO ONLY THE NATIONAL ORIGIN CHARGES\nWHICH MAY RESULT DUE TO THE ENACTMENT OF H.R. 3080, IT\nAPPEARS TO RELEGATE TITLE VII NATIONAL ORIGIN, SEX\nAND RACE CHARGES TO A LOWER STATUS BY NOT EXTENDING A\nSIMILAR LEVEL OF PROTECTION.\nI HOPE THESE COMMENTS ARE HELPFUL IN ADDRESSING SOME OF\nTHE CONCERNS WHICH HAVE BEEN SUGGESTED BY THE ANTI-\nDISCRIMINATION PROVISIONS OF H.R. 3080, AS PROPOSED.\nTHE WHITE HOUSE\nWASHINGTON\nSeptember 12, 1985\nMEMORANDUM FOR BRANDEN BLUM\nLEGISLATIVE ATTORNEY\nOFFICE OF MANAGEMENT AND BUDGET\nFROM:\nASSOCIATE COUNSEL JJR THE PRESIDENT\nJOHN G. ROBERTS\nSUBJECT:\nDOJ Testimony of William Bradford Reynolds\non H.R. 3080, the Immigration Control and\nLegalization Amendments Act of 1985\nCounsel's Office has reviewed the above-referenced\ntestimony, and finds no objection to it from a legal\nperspective.\nID #\nCU\nWHITE HOUSE\nCORRESPONDENCE TRACKING WORKSHEET\no - OUTGOING\nH - INTERNAL\nI . INCOMING\nDate Correspondence\nReceived (YY/MM/DD)\n/\n/\nName of Correspondent:\nBranden Blum\nMI Mail Report\nUser Codes: (A)\n(B)\n(C)\nSubject: DOJ testimony as wm. Bradfard Reifnaeds\non H.R. 3080 the Immigration control and\nRegalization amendments act af 1985\nROUTE TO:\nACTION\nDISPOSITION\nTracking\nType\nCompletion\nAction\nDate\nof\nDate\nOffice/Agency\n(Staff Name)\nCode\nYY/MM/DD\nResponse\nCode\nYY/MM/DD\nCritace\nORIGINATOR\n85,09,12\n/\n/\nReferral Note:\ncreat 18\nR\n85,09,12\n5 85,09,16\nReferral Note:\n/ /\n\\\n/\n/\nReferral Note:\n/\n/\n/\n/\nReferral Note:\n/\n/\n/\n/\nReferral Note:\nACTION CODES:\nDISPOSITION CODES:\nA - Appropriate Action\nI + Info Copy Only/No Action Necessary\nA Answered\nC Completed\nC * Comment/Recommendation\nR. Direct Reply w/Copy\nB - Non-Special Referral\nS Suspended\nD Draft Response\nS For Signature\nF Furnish Fact Sheet\nX Interim Reply\nto be used as Enclosure\nFOR OUTGOING CORRESPONDENCE:\nType of Response = Initials of Signer\nCode = \"A\"\nCompletion Date = Date of Outgoing\nComments:\nKeep this worksheet attached to the original incoming letter.\nSend all routing updates to Central Reference (Room 75, OEOB).\nAlways return completed correspondence record to Central Files.\nRefer questions about the correspondence tracking system to Central Reference, ext. 2590.\n5/81\nOFFICE OF MANAGEMENT AND BUDGET\nROUTE SLIP\nJohn Roberts\nTake necessary action\nTO\nApproval or signature\nLou Hays\nComment\nPrepare reply\nDiscuss with me\nFor your information\nSee remarks below\nBranden BlumBS\n10/2/85\nFROM\nDATE\nREMARKS\nAttached FYI is a copy of the Civil\nRights Commission's testimony on the\nanti-discrimination provisions contained\nin immigration reform legislation\n(H.R. 3080). Copies have also been\nforwarded to concerned agencies.\nOMB FORM 4\nTESTIMONY OF CLARENCE M. PENDLETON, JR\nCHAIRMAN, U.S. COMMISSION ON CIVIL RIGHTS\nBEFORE THE SENATE SUBCOMMITTEE\nON IMMIGRATION AND REFUGEES\nAND\nTHE HOUSE SUBCOMMITTEE ON\nIMMIGRATION, REFUGEES, AND INTERNATIONAL LAW\nOctober 7, 1985\nMr. Chairman, Members of both Subcommittees, I am pleased\nto appear here today in response to your invitation that I\ntestify on the anti-discrimination provisions of H.R. 3080.\nI should note at the outset of my testimony that the\nreconstituted Commission on Civil Rights has not adopted a\nposition on the anti-discrimination provisions of H.R. 3080 or\non immigration reform generally. I am, therefore, speaking on\nbehalf of the Commission only to the extent that my remarks\naddress the Commission's role in the proposed legislation. In\nthis connection, I want to discuss this bill's lack of clarity\nin defining the Commission's role and the Commission's ability\nto fulfill that role.\nH.R. 3080 assigns an important enforcement function to the\nCommission. Under section 402(b) of the bill, the Commission\n2\nwould be required to monitor the implementation and enforcement\nof the provisions of section 274A of the Immigration and\nNationality Act, and to investigate allegations that the\nenforcement or implementation of that section has resulted in\ndiscrimination against citizens or aliens who are not\nunauthorized aliens. In addition, the Commission is required\nto submit three reports at eighteen-month intervals to the\nHouse and Senate Judiciary Committees, describing the\nimplementation and enforcement of the Act for the purpose of\ndetermining whether implementation and enforcement of the Act\nhave resulted in discrimination.\nIt is unfortunate, given what appears to be the significant\nrole that the Commission is intended to assume, that the bill\nprovides insufficient guidance to the Commission to understand\nclearly the intent of Congress. For example, when the bill\nstates that the Commission shall investigate allegations of\n\"unlawful discrimination by race or nationality against\ncitizens of the United States or aliens who are not\nunauthorized aliens,\" what does the word \"nationality\" mean?\nIs it synonymous with the phrase \"national origin\" that is\ncurrently used in Title VII of the Civil Rights Act of 1964\nwhich prohibits discrimination in employment or Title VIII of\nthe Civil Rights Act of 1968 which prohibits discrimination in\nhousing? While the phrase \"national origin\" is well-defined\nthrough court cases and other sources of authority, the term\n\"nationality\" is undefined in both civil rights case law and\nthe bill itself.\n3\nFor that matter, inasmuch as the provisions regarding the\nCommission, the Special Counsel, and the President are in the\nbill to allay concerns that the employer sanctions will produce\ndiscrimination, one would expect consistency with respect to\nthe kinds of discrimination each is to address.\nYet the language in these provisions is markedly\ndifferent. The Commission is directed by H.R. 3080 to\ninvestigate allegations that the employer sanctions have\nresulted in \"unlawful discrimination by race or nationality\"\nagainst U.S. citizens or permanent or temporary resident aliens\nintending to become citizens. The President is directed under\nthe bill to publish three reports describing the impact of\nemployer sanctions on \"discrimination against citizen and\npermanent resident alien members of minority groups.' And the\nOffice of Special Counsel is to investigate discrimination\n\"against any individual (whether a citizen or permanent or\ntemporary resident alien) with respect to hiring, or\nrecruitment or referral for a fee, because of national origin\nor citizenship status.\"\nWhy is the Commission directed to examine racial\ndiscrimination when the Special Counsel has not been so\ndirected? Why is the Commission directed to investigate\ndiscrimination based on nationality and the Special Counsel,\ndiscrimination based on \"national origin\"? Why are the\nCommission's investigations of discrimination restricted to\nunlawful discrimination, while the reports by the President are\nnot so circumscribed? There is a substantial difference\n4\nbetween discrimination and unlawful discrimination so far as\naliens are concerned, since they do not enjoy the same measure\nof protection as citizens against employment discrimination.\nFurther, the President is directed to publish reports on\ndiscrimination against \"citizen and permanent resident alien\nmembers of minority groups.\" Is it not your intent that these\nreports also discuss discrimination against temporary resident\naliens who evidence an intent to become citizens, a category\nthat is included within the scope of investigations by the\nSpecial Counsel and the Commission? Any why does the phrase\n\"minority groups\" appear in the section detailing the\nPresident's duties and not in the sections detailing the\nresponsibilities of the Commission or Special Counsel? Which\nminority groups are intended?\nAnother line of questions is raised by the bill's charge\nthat the Commission \"shall investigate allegations\" of\ndiscrimination. Is the Commission obligated to respond to\nanyone's allegation of discrimination, or only the allegations\nof someone who is directly and adversely affected by an unfair\nimmigration-related employment practice as defined in section\n274B of the bill? And how must we respond? Is the Commission\nbeing directed to oversee the operations of the Office of the\nSpecial Counsel, which is also directed to investigate\nallegations of discrimination?\nH.R. 3080 also directs that the Commission \"shall monitor\nthe implementation and enforcement\" of section 274A. This\n5\nlanguage needs to be clarified, as well. The way in which the\nCommission has defined its monitoring function traditionally is\nthat our Office of Federal Civil Rights Enforcement conducts a\nseries of studies of specific government programs and\nanti-discrimination efforts by the Federal government. A\ntypical study is one with a limited scope carried out by only a\nfew employees on any one project. Is this the type of\nmonitoring that the bill intends, or is a broader definition of\nmonitoring meant that includes the use of field agents and a\nlarge number of employees?\nA final point with respect to the role of the Commission\ninvolves the requirement imposed by the bill that the\nCommission publish three reports at eighteen-month intervals\nfor the purpose of determining whether a pattern of unlawful\ndiscrimination has resulted from the implementation and\nenforcement of section 274A. If the proposed legislation is\npassed in October of this year, our first report would be due\nin April of 1987, the second in October of 1988, and the third\nin April of 1990. Issuance of the third report in April of\n1990 may be problematic, however, as the Commission is\nscheduled to terminate at the end of September 1989.\nObviously, some amendment of the bill is necessary in this\nregard.\nAnother point that I wish to make on behalf of the\nCommission is that we will find ourselves unable, at current\nfunding levels, to carry out the tasks assigned to us under\n6\nH.R. 3080. The bill regarding the role of the Commission is\nidentical to language in last year's House measure. At that\ntime, the Commission expressed its concern in letters from the\nCommission's Staff Director to Chairman Rodino and to Senator\nSimpson that, while the Commission would do its best to\nundertake the broad responsibilities under the proposed\nlegislation, it could not do so without severely straining\nits resources. The Commission stated therein:\nThe Commission believes it is preferable\nthat the Immigration Reform and Control Act\nnot contain requirements for prescribed\nCommission activity unless Congress provides\nsubstantial increases in funding for the\nCommission to discharge the required duties.\nThe Commission further stated in these letters:\nAbsent a congressionally mandated role\nto monitor, investigate and report on\ndiscrimination flowing from employer\nsanctions, the Commission would, of course,\nundertake appropriate, though less\ncomprehensive, program activity to seek to\ndetermine whether this new law causes\ndiscrimination. Such activity, in the form\nof a hearing, a study or monitoring, would\nbe more possible within the range of our\ncurrent resources.\nOur position is entirely understandable when one considers\nthe size of the Commission and the resources it could bring to\nbear on the tasks it is being asked to assume. For fiscal year\n1985, our budget is $12,869,000, and the Commission has a\ncurrent total of 236 full-time employees. This must be\ncontrasted with the size of an enforcement agency like the\nEqual Employment Opportunity Commission, which has a budget of\n7\n$163,655,000 and 3,034 full-time employees for fiscal year\n1985. Our point is simply that the Commission is too small at\npresent to undertake a full-scale monitoring role with respect\nto immigration legislation.\nNor is it clear that a full-scale monitoring role by the\nCommission is needed. Under H.R. 3080, the responsibilities\nthe Commission is directed to undertake overlap with those of\nthe Office of Special Counsel and the President. Hence both\nthe Special Counsel and the Commission are to investigate\nallegations of immigration-related employer discrimination,\nalthough the Special Counsel's duties in this regard are\ncarefully described under the bill while the Commission's are\nnot. Moreover, both the President and the Commission are to\ntransmit to the House and Senate Judiciary Committees, at\neighteen-month intervals, three reports on the impact of\nemployer sanctions on immigration-related employment\ndiscrimination.\nIn addition, the issue of discrimination against aliens is\nnot one with which the Commission has a great deal of\nexperience. Our last relevant project was in 1980, and that\nconcerned itself more with certain legal issues in connection\nwith aliens than it did with monitoring the enforcement of\nimmigration laws. In general, it is fair to characterize the\nCommission as more concerned with the identification and\nanalysis of civil rights issues than with massive oversight\nefforts.\n8\nThe fact that the Commission is unaccustomed to the role\nthat would be thrust upon it by this bill is exacerbated by the\nnumerous uncertainties surrounding the immigration issue. A\nNational Research Council report entitled \"Immigration\nStatistics: A Story of Neglect\" concluded this year that\ngovernment agencies do not produce the data that \"we need to\nanswer the fundamental policy issues of the day\" (p. 5).\nIn the absence of meaningful data with respect to the\ncontours of the immigration problem, it is difficult for the\nCommission to estimate the amount by which our budget would\nneed to be increased to meet the demands placed on us by H.R.\n3080. We believe it curious, however, that last year the House\nJudiciary Committee did not authorize additional funds for the\nCommission to carry out monitoring, investigating, and\nreporting activities identical to that which are asked of the\nCommission this year. Yet the Committee authorized $6 million\nfor each of three years for the activities of a task force\nwhich, under the language of last year's bill, were\nsubstantially the same as the Commission's. This year, we ask\nthat additional funding for the Commission be authorized if the\nlanguage regarding the Commission remains the same. The figure\nauthorized for the task force last year may provide a beginning\npoint in your deliberations. We would, of course, be glad to\nwork with you on this task.\nTurning to the anti-discrimination provisions of H.R. 3080,\nI must speak on my own behalf, but offer the following\nobjections.\n9\nFirst is the question of the appropriateness of setting up\na new administrative mechanism to handle employment\ndiscrimination claims. Government civil rights agencies\nalready include the Commission on Civil Rights, the Justice\nDepartment's Civil Rights Division, the Equal Employment\nOpportunity Commission, the Department of Labor's Office of\nFederal Contract Compliance Programs, and the Department of\nEducation's Office for Civil Rights. Each state, in addition,\nhas civil rights enforcement agencies, as do many major\ncities. In my opinion, creation of a separate mechanism to\nenforce discrimination claims, particularly one to carry out\nresponsibilities which in large measure have already been\ndelegated by Congress to the EEOC, would be a mistake.\nThe EEOC now has the responsibility under Title VII to\ninvestigate and prosecute claims of employment discrimination\nbased on national origin. To address the problem of the\noverlapping jurisdiction that would arise between the EEOC and\nthe Office of Special Counsel, H.R. 3080 provides that\ncomplaints of national origin discrimination cannot be filed\nconcurrently in both forums. The question, however, of\nconflicting precedents between the EEOC and the Office of\nSpecial Counsel is not addressed, nor is it specified whether a\nplaintiff is barred from pursuing a remedy in one forum if the\nresult in the other forum has proven unsatisfactory.\nThose who advocate the creation of an Office of Special\nCounsel contend that EEOC cannot investigate claims of employer\n10\ndiscrimination based on national origin where the employer has\nfewer than 15 employees. The appropriate response, if national\norigin discrimination by small employers were truly to become a\nproblem once employer sanctions were enacted, would be to amend\nTitle VII, preferably at a later date, to expand the EEOC's\nnational origin jurisdiction over these employers.\nMy second difficulty with the anti-discrimination\nprovisions of H.R. 3080 relates to the question whether\nCongress ought to enact a Federal statutory cause of action\nbased on alienage discrimination. Current Federal statutory\nand case law provides some measure of protection against\ndiscrimination based on alienage. Section 1981 of Title 42 of\nthe U.S. Code states, in relevant part, that \"all persons\nhave the same right\nto make and enforce contracts\nas\nwhite citizens.' The Supreme Court has interpreted this to\ninclude private employment discrimination based on race, and\none Federal court of appeals has extended the Court's\ninterpretation of section 1981 to prohibit alienage\ndiscrimination as well.\nBut beyond this, most Federal court cases addressing\nemployment discrimination based on alienage have done SO in the\ncontext of reviewing state statutes containing alienage-based\nclassifications. The thrust of these cases is that such\nstatutes will trigger a court's strict scrutiny unless the\ndiscrimination is based on a \"political function. \"\nTo highlight some of these cases, in 1973 the Supreme Court\n11\nstruck down a New York statute which barred aliens from\nemployment in the state civil service (Sugarman V. Dougall) ;\nand invalidated a Connecticut State bar requirement that all\nbar examination applicants be U.S. citizens (In re Griffiths).\nIn 1976, the Court invalidated a Puerto Rican law which\nprohibited aliens from practicing civil engineering privately\n(Examining Board V. Flores de Otero).\nBut two years later, the Court upheld a New York statute\nthat required that state police officers be citizens (Foley V.\nCornelie), and declined to invalidate a statute of that state\nwhich prohibited non-citizen elementary and secondary school\nteachers from teaching in the state educational system\n(Ambach V. Norwick) In 1982, the Court upheld a California\nlaw requiring that state peace officers be citizens against a\nchallenge brought by an alien applying to be a California\nprobation officer (Cabell V. Chavez-Salido). Finally, in 1984\nthe Court applied strict scrutiny to a Texas statute which\nrequired that notary publics be U.S. citizens. The Court found\nthat the statute affected a lawful economic interest inasmuch\nas the function of a notary public was not an essential part of\nthe political community (Bernal V. Fainter).\nLegal aliens therefore enjoy some measure of constitutional\nprotection when it comes to the issue of public employment, and\nI support application of the strict scrutiny standard to\nalienage-based statutory classifications provided the\n\"political function\" exception does not come into play.\n12\nBut I oppose creation of a new cause of action for alienage\ndiscrimination in private employment. I oppose it as set forth\nin H.R. 3080 because it is based on an assumption that alienage\ndiscrimination will be a problem once employer sanctions are\nenacted. If we are to create a new protected class, we ought\nfirst to determine that such protection is necessary and, if\nnecessary, whether the protection could not be provided simply\nby amending Title VII to include alienage. That could be done\nby enacting the employer sanctions, and permitting time to\ndetermine whether alienage discrimination does in fact occur\nbecause of those sanctions. But to create a new cause of\naction based on alienage discrimination complete with a\nseparate enforcement mechanism and the provision for attorney's\nfees would, absent a demonstrated need, be the wrong way to\nshape our national civil rights policy."
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