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Immigration and Naturalization (8 of 13)
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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: Immigration and Naturalization
(8 of 13)
Box: 28
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
National Archives Catalogue: https://catalog.archives.gov/
THE WHITE HOUSE
WASHINGTON
July 20, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS, JR. see
SUBJECT:
Draft Labor Report on H.R. 4509,
the Immigration Exclusion and
Deportation Amendments
OMB has asked for our views by close of business today on a
draft Department of Labor report on H.R. 4509, the "Immigration
Exclusion and Deportation Amendments of 1983." Our office has
previously reviewed Justice and State testimony and reports on
this bill. The Administration generally opposes the bill, which
would eliminate most of the qualitative grounds for excluding
aliens (such as the likelihood that they will become public
charges, mental illness, etc.).
Current law permits exclusion of aliens seeking work unless the
Secretary of Labor certifies that there are not enough American
workers able, willing, and qualified to perform the labor in
question. H.R. 4509 would, inter alia, change "qualified" to
"equally qualified" in the case of teachers and researchers, in
effect expanding the admissability of aliens in those professions.
Labor's draft report opposes this expansion, at least through
case-by-case determinations, and suggests as an alternative a
more generic certification process, based on labor market
information rather than specific determinations of whether an
individual alien is "more qualified" than American applicants for
a particular job. I have reviewed the draft report and have no
objections. It is consistent with the previously reviewed
Justice and State reports.
THE WHITE HOUSE
WASHINGTON
July 20, 1984
MEMORANDUM FOR BRANDEN BLUM
LEGISLATIVE ATTORNEY
OFFICE OF MANAGEMENT AND BUDGET
RATFOR
FROM:
FRED F. FIELDING Orig signed by FFF
COUNSEL TO THE PRESIDENT
SUBJECT:
Draft Labor Report on H.R. 4509,
the Immigration Exclusion and
Deportation Amendments
Counsel's office has reviewed the above-referenced report,
and finds no objection to it from a legal perspective.
FFF/JGR:nb
CC: FFFielding
JGRoberts, Jr.
Subj.
Chron.
THE WHITE HOUSE
WASHINGTON
July 20, 1984
MEMORANDUM FOR BRANDEN BLUM
LEGISLATIVE ATTORNEY
OFFICE OF MANAGEMENT AND BUDGET
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Draft Labor Report on H.R. 4509,
the Immigration Exclusion and
Deportation Amendments
Counsel's office has reviewed the above-referenced report,
and finds no objection to it from a legal perspective.
ID #
241952 CU
JV
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
IM
O . OUTGOING
H . INTERNAL
I . INCOMING
HR
Date Correspondence
Received (YY/MM/DD)
/
/
Name of Correspondent:
Branden Blum
MI Mail Report
User Codes: (A)
(B)
(C)
Subject: Draft Cabor report on H.R 4509, the
Amendments "Immigration Exclusion and Deportation
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
of
Date
Office/Agency
(Staff Name)
Code
YY/MM/DD
Response
Code
YY/MM/DD
CUHOLE
ORIGINATOR 84,07,16
A
/
/
Referral Note:
CUAT 18
84,07,17
5 84,07,20
Referral Note:
COB
/
/
/
/
Referral Note:
/
/
/
/
Referral Note:
/
/
Referral Note:
ACTION CODES:
DISPOSITION CODES:
A Appropriate Action
I . Info Copy Only/No Action Necessary
A Answered
C Completed
C . Comment/Recommendation
R . Direct Reply w/Copy
B . Non-Special Referral
S Suspended
D * Draft Response
S For Signature
F Furnish Fact Sheet
X Interim Reoly
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response = Initials of Signer
Code
=
"A"
Completion Date = Date of Outgoing
Comments: Branden Blum
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference. ext. 2590.
5/81
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF management AND BUDGET
SEAL
WASHINGTON, D.C. 20503
SPECIAL
July 13, 1984
LEGISLATIVE REFERRAL MEMORANDUM
241952a
TO:
LEGISLATIVE LIAISON OFFICER
Department of State
Department of Justice
Department of Health and Human Services
National Security Council
SUBJECT:
Draft Labor report on H.R. 4509, the "Immigration
Exclusion and Deportation Amendments
The Office of Management and Budget requests the views of your
agency on the above subject before advising on its relationship
to the program of the President, in accordance with OMB Circular
A-19.
Please provide us with your views no later than
COB Friday, July 20, 1984.
Direct your questions to Branden Blum (395-3802), the legislative
attorney in this office
James C. Murr for
Assistant Director for
Legislative Reference
Enclosure
CC: J. Kent
S. Malm
S. Gates
F. Fielding
J. Cooney
S. Galebach
U.S. DEPARTMENT OF LABOR
SECRETARY OF LABOR
DRAFT
WASHINGTON, D.C.
Honorable Peter W. Rodino, Jr.
Chairman
Committee on the Judiciary
U.S. House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:
This is in response to your request for our views on H.R. 4509,
a bill cited as the "Immigration Exclusion and Deportation Amend-
ments of 1983". The Department of Labor defers to the Justice
and State Departments with respect to most of the bill's pro-
visions, except for the provision concerning labor certifi-
cation as a ground for exclusion of an immigrant alien.
Section 212 (a) (14) of the Immigration and Nationality Act (INA)
provides for an alien labor certification for an alien seeking
admission to the United States as a third (exceptional abil-
ity) preference, sixth (skilled or unskilled labor) prefer-
ence, or nonpreference immigrant. The labor certification
provision has two basic functions: first, to protect the U.S.
labor force from competition from alien labor; and second,
to allow for entry of needed workers in the United States.
and revise the
grounds for
Section 2 of the bill would amend section 212 (a) of the INA
by deleting the current paragraph (14) and adding an onclu
excluding aliens
from admission
sion provision under & new paragraph (4) entitled 'Economic
Grounds for Certain Aliens of concern to the Department
into the United
of Labor is the new subparagraph(A) which is substituted for
states.
the current provision of section 212 (a) (14), The new subpara
graph (A) states.] and would exclude:
(4)
"Any alien who seeks to enter the United States for the
purpose of performing skilled or unskilled labor, unless
the Secretary of Labor has determined and certified to
the Secretary of State and the Attorney General that (1)
there are not sufficient workers who are able, willing,
qualified (or equally qualified in the case of an alien
(I) who is a member of the teaching profession, (II) who
has exceptional ability in the sciences or arts, or (III)
who has a doctoral degree and is seeking to enter the
United States to be employed as a researcher at a college,
university, or other nonprofit educational or research
- 2 -
institution), and available at the time of application
for a visa and admission to the United States and at the
place where the alien is to perform such skilled or un-
skilled labor, and (ii) the employment of such alien will
not adversely affect the wages and working conditions
of workers in the United States similarly employed." (em-
phasis added)
The Department is opposed to H.R. 4509's proposed application
of the special standard, "equally qualified," to members of
the teaching profession and researchers who are not of excep-
tional merit and ability. This special standard of availabil-
ity, extended to employers of college or university teachers
in 1976, would enable nonprofit educational institutions to
petition for the admission of "more qualified" aliens, even
if qualified U.S. teachers or researchers are available.
In our view, American workers should be hired whenever pos-
sible, and qualified American workers in professional occupa-
tions merit the same kind of labor market protections that
workers in all other occupations are accorded. It 16 important
to note, for example, that Ph.D. researchers in the United
States are in many cases increasing at a rate greater than
are employment opportunities in their areas of expertise.
The job market in the humanities and the social sciences has
been particularly tight in recent years. Thus, while this
Department supports, and currently applies, a special standard
for aliens of exceptional ability in the sciences or arts,
we do not support the application of such a standard to aliens
on the basis of their occupation alone.
As an alternative, we propose a change similar to the provisions
of section 203 of S. 529, the Immigration Reform and Control
Act of 1983. Specifically our new labor certification proposal
would state:
Sec: 212. (a) Except as otherwise provided in this Act,
the following classes of aliens shall be ineligible to
receive visas and shall be excluded from admission into
the United States:---
"(14) Aliens seeking to enter the United States, for the
purpose of performing skilled or unskilled labor, unless
the Secretary of Labor has determined and certified to
the Secretary of State and the Attorney General that:
(A) there are not sufficient workers available in the
United States in the occupations in which the aliens will
be employed; and (B) the employment of aliens in such
- 3 -
occupations will not adversely affect the wages and work-
ing conditions of workers in the United States who are
similarly employed. In making such determinations, the
Secretary of Labor may use labor market information with-
out reference to the specific job opportunity for which
certification is requested. An alien on behalf of who
a certification is sought must have an offer of employment
from an employer in the United States, except that the
Secretary of Labor may waive this requirement in the case
of an alien with exceptional ability."
Our proposal is intended to streamline the current cumbersone,
costly, and time-consuming labor certification procedures for
immigrants. As S. 529, our bill would permit the Secretary
of Labor to make such determinations on the basis of labor-
market information. While provision for individual case determi-
nation would remain, the Department of Labor would no longer
be required to recruit, nor to require employers to recruit,
workers for a specific job opportunity in order to test the
availability of qualified workers in the United States. We
also recommend language which provides the Secretary of Labor
with discretion to waive a job offer for aliens of exceptional
ability, for example, artists, who are typically self-employed.
H.R. 4509, through its adherence to the present recruitment
standard ("not sufficient workers who are able, willing, quali-
fied ... and available") would perpetuate this mandatory recruit-
ment system for testing U.S. worker availability. The Depart-
ment and most employers agree that the current system is cumber-
some and time-consuming. We therefore believe the adoption
of the provision in H.R. 4509 would have no beneficial results.
The Department of Labor is opposed to the changes for labor
certification in H.R. 4509. The provisions of H.R. 4509 do
not improve upon the current time-consuming labor certification
procedures and would discriminate against qualified U.S. work-
The Office of Management and Budget advises that there 15 no objection
to the submission of this report from the standpaint of the Administration's program.
Sincerely,
Raymond J. Donovan
THE WHITE HOUSE
WASHINGTON
June 20, 1984
MEMORANDUM FOR BRANDEN BLUM
LEGISLATIVE ATTORNEY
OFFICE OF MANAGEMENT AND BUDGET
FROM:
JOHN G. ROBERTS 826
ASSOCIATE COUNSEL TO THE PRESIDENT
SUBJECT:
Revised Statement on H.R. 4509,
the Immigration and Nationality Act
Counsel's Office has reviewed the above-referenced
testimony, and finds no objection to it from a legal
perspective.
ID #
CU
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
O . OUTGOING
H INTERNAL
I * INCOMING
Date Correspondence
Received (YY/MM/DD)
/
/
Name of Correspondent: Branden Blum
MI Mail Report
User Codes: (A)
(B)
(C)
Subject: Revised Statement on H.R. 4509,
the Immigration and nationality Act
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
of
Date
Office/Agency
(Staff Name)
Code
YY/MM/DD
Response
Code
YY/MM/DD
Cuttour
ORIGINATOR 84,06,19
/ /
Referral Note:
CURT 18
R 84 06,19
384 584,06,27 ,06,27
Referral Note:
COB
/
/
/
/
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Referral Note:
/
/
/
/
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/
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Referral Note:
ACTION CODES:
DISPOSITION CODES:
A Appropriate Action
I Info Copy Only/No Action Necessary
A Answered
C Completed
C Comment/Recommendation
R - Direct Reply w/Copy
B . Non-Special Referral
S Suspended
D Draft Response
S For Signature
F - Furnish Fact Sheet
X Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response = Initials of Signer
Code = "A"
Completion Date = Date of Outgoing
Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
5/81
U.S. Department of Justice
SPECIAL
ce of Legislative and
rgovernmental Affairs
Office of the
Washington, D.C. 20530
Assistant Attorney General
June 19, 1984
TO: Branden Blum
OMB
FR:
John Logan
OLIGA (633-2078)
RE: Revised Statement on H.R. 4509
Here is the Department's revised statement
on H.R. 4509 for June 28, 1984 for your
review.
cc: Fred F. Fielding
DRAFT
STATEMENT
OF
DORIS M. MEISSNER
EXECUTIVE ASSOCIATE COMMISSIONER
BEFORE
THE
COMMITTEE ON THE JUDICIARY
SUBCOMMITTEE ON IMMIGRATION, REFUGEES AND INTERNATIONAL LAW
HOUSE OF REPRESENTATIVES
CONCERNING
H.R. 4509
ON
JUNE 28, 1984
- 2 -
Chairman Mazzoli and members of the Subcommittee:
I am pleased to have the opportunity to appear before you
today to discuss this bill which revises the Immigration and
Nationality Act with respect to the grounds for exclusion and
deportation of aliens.
This bill attempts to address some of the more vexing and
controversial aspects of the laws relating to exclusion and
deportation of aliens. Of particular significance are the
provisions dealing with inadmissibility and deportability based on
political activity and opinion.
This Administration has strongly supported the free exchange
= ideas. We have gone on record on numerous occasions in defense
of those persons who have been persecuted as a result of their
attempts to peacefully speak out against tyranny and oppression.
These efforts will continue.
The bill you are presently considering clearly recognizes the
importance of freedom of peaceful expression of ideas. This is
not an easy issue to deal with. The recent Select Commission on
Immigration and Refugee Policy considered extensive revision in
the exclusion and deportation provisions of the present
Immigration and Nationality Act, including those provisions
dealing with political grounds for exclusion. After careful
deliberation, the Commission decided in the end that changes,
- 3 -
while desirable, were extremely difficult to formulate in specific
language. As a result, the final report did not propose changes
in these grounds for exclusion and deportation.
While I would be happy to be able to say that the problems and
concerns that the Select Commission perceived have since dis-
appeared, this is unfortunately not the case. Consequently, while
the bill attempts the laudable goal of simplifying the immigration
law, the specific language used does not address some basic issues
and legitimate concerns. This is particularly the case with the
political exclusion and deportation grounds, and I would look to
touch on some of our concerns in the course of this testimony.
First, however, I would like to also briefly present a summary
of our reaction to the other provisions of the bill, some of which
strike us as helpful and necessary changes to the existing law.
I support the revision to Section 212 (a) (23) of the Act, which
deals with exclusion based on narcotics violations. The bill
would add a provision barring the admission of aliens who violate
laws relating to psychotropic substances. This is a necessary
addition to the law, as these substances have proven to be every
bit as dangerous as narcotics.
The attempt to deal with the mental health provisions is also
to be commended. Present provisions are in need of revision, as
they do not take into account advances in medical treatment and
- 4 -
theory. We do, however, entertain certain reservations regarding
the scope of the changes proposed in the bill. Specifically,
consolidating the present mental health provisions in one section
which bars the admission of persons who could endanger public
safety, is probably too ambitious an undertaking. This is too
strict standard, which does not take into account those who may be
unable to function in society, and who may have to be supported at
taxpayer expense.
Similarly, abolition of the provisions barring persons who are
likely to become a public charge, or who become a public charge
following entry, is unnecessary and could result in needless
burdens on various social welfare programs. A significant number
cí persons are denied admission for this reason each year. Very
few aliens have been deported on this ground in recent years,
because of the standard applied to substantiate a finding of
public charge. Basically, it is necessary to establish that the
person has received public assistance, has been asked to reimburse
the agency providing the assistance, and has failed to do SO.
Rather than eliminate the provision, however, revision of the
overly strict standard should be considered.
Similarly, it is not clear to us that repeal of the grounds of
excludability and deportation relating to prostitution and immoral
sexual activities is warranted. In practical terms, no desirable
objective is served by the admission of persons who have engaged
in or who might engage in such activity. To the extent that
- 5 -
prospective immigrants have been affected by Section 212 (a) (12), a
waiver of inadmissibility has been available for those with
certain family relations.
Other sections of the bill basically consolidate existing
provisions, with some modifications in the language. This is
true, for instance, of Section (4) entitled Economic Grounds for
Certain Immigrants" and Section (6) entitled "Documentation
Requirements."
I would like now to return to the revisions in the political
activities grounds for exclusion and deportation. I have taken
this approach to avoid the appearance that cur sole interest in
the bill was confined to this one subject. In fact, as has been
apparent from the Administration's support for immigration reform
as a whole, there are many subjects which can and should be
addressed for a variety of important reasons.
In any case, as this aspect of the bill is obviously of
considerable interest, I would like to offer several observations
and comments. As I noted earlier, revision of the political
activity exclusion and deportation grounds was previously
considered by the Select Commission on Immigration and Refugee
Policy and then omitted in its final recommendations. The fact
that the Commission followed this course should give us pause,
because it did address other equally controversial issues, such as
legalization and employers sanctions. While we may agree that the
- 6 -
present grounds for exclusion and deportation encompass persons
who are not a threat to the United States, fashioning language to
meet legitimate foreign and domestic policy considerations is no
simple task.
In essence, the bill would allow any alien to enter the United
States as long as the activity the alien intended to engage in did
not contain a violent element or objective. The Department of
Justice defers to the Department of State on this issue in most
respects, because most of the recent instances where an alien has
been denied a visa have involved legitimate questions of foreign
policy. Nonetheless, I would like to suggest that it is entirely
conceivable, as has happened before, that substantial considera-
tions of foreign or domestic policy or both will militate against
the admission of particular individuals or members of particular
organizations. Any revision of the existing provisions should
provide authority on the part of the Secretary of State or
Attorney General to take such considerations into account. In my
judgment, the bill before us does not meet this standard.
I would like to emphasize, however, that my particular
comments on portions of the bill, such as those I have just made,
are not meant to indicate reluctance to consider revisions in the
exclusion or deportation provisions, or any other facet of the
immigration laws. I certainly hope that they will not discourage
examination of these laws by this Subcommittee. We all know the
difficulties and obstacles that face any immigration reform, and
- 7 -
the persistence that is required to see a change through the
legislative process.
This Administration agrees that immigration legislation is
needed, and is very willing to work with the members of this
Subcommittee toward an improvement in both the substance and the
administration of the laws.
Thank you for the opportunity to appear before you today.
THE WHITE HOUSE
WASHINGTON
June 11, 1984
MEMORANDUM FOR BRANDEN BLUM
LEGISLATIVE ATTORNEY
OFFICE OF MANAGEMENT AND BUDGET
FROM:
JOHN G. ROBERTS Drsc
ASSOCIATE COUNSEL TO THE PRESIDENT
SUBJECT:
Draft Statement of Edward M. Rowell
Concerning H.R. 4509, the Immigration
Exclusion and Deportation Act Amendment
Counsel's Office has reviewed the above-referenced
testimony, and finds no objection to it from a legal
perspective.
THE WHITE HOUSE
WASHINGTON
June 26, 1984
MEMORANDUM FOR BRANDEN BLUM
LEGISLATIVE ATTORNEY
OFFICE OF MANAGEMENT AND BUDGET
FROM:
JOHN G. ROBERTSQZA
ASSOCIATE COUNSEL TO THE PRESIDENT
SUBJECT:
Draft HHS Testimony on H.R. 4509, the
Immigration Exclusion and Deportation
Act Amendments
Counsel's Office has reviewed the above-referenced draft
testimony. On page 8, line 17, we recommend inserting "from
medical examination" or something similar after "predicted."
The Administration has testified on several occasions in the
past that dangerous or violent acts can be predicted, in the
context of assessing the probability of future dangerous
criminal conduct on the basis of past criminal conduct. The
argument that future dangerousness can be predicted is an
essential lynchpin of the Administration's position on
preventive detention.
ID #.
CU
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
0 . . OUTGOING
H . INTERNAL
I . INCOMING
Date Correspondence
Received (YY/MM/DD)
/
/
Name of Correspondent:
James MURR
MI Mail Report
User Codes: (A)
(B)
(C)
Subject: Draft HHS testimony onHR 4509, the
Act Amendments
Immigration Exclusion and Deportation
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
of
Date
Office/Agency
(Staff Name)
Code
YY/MM/DD
Response
Code
YY/MM/DD
Celtiou
ORIGINATOR 84,06,25
/
/
Referral Note:
CUAT 18
R 84,06,25
584,06,26
Referral Note:
/ /
/
/
-
Referral Note:
/ /
/ /
-
-
Referral Note:
/ /
/
/
-
Referral Note:
ACTION CODES:
DISPOSITION CODES:
A Appropriate Action
4 Info Copy Only/No Action Necessary
A Answered
C Completed
C - Comment/Recommendation
R Direct Reply w/Copy
B - Non-Special Referral
S Suspended
D Draft Response
S For Signature
F - Furnish Fact Sheet
X Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response = Initials of Signer
Code = "A"
Completion Date = Date of Outgoing
Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
5/81
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
June 25, 1984
SPECIAL
LEGISLATIVE REFERRAL MEMORANDUM
TO:
LEGISLATIVE LIAISON OFFICER
Department of Justice
Department of State
National Security Council
SUBJECT: Draft HHS testimony on H.R. 4509, the Immigration
Exclusion and Deportation Act Amendments.
The Office of Management and Budget requests the views of your
agency on the above subject before advising on its relationship
to the program of the President, in accordance with OMB Circular
A-19.
Please provide us with your views no later than June 26, 1984.
(NOTE -- A hearing before a subcommittee of the House Judiciary
Committee is scheduled for 6/28/84.)
Direct your questions to Branden Blum (395-3802), the legislative
attorney in this office.
James C. Murr for
Assistant Director for
Legislative Reference
Enclosure
CC: Kathy Collins
Fred Fielding
Susan Gates
Patti Woodworth
Sylvia Malm
John Cooney
Mike Uhlmann
DRAFT DRAFT DRAFT 0451L
6/22/84
(6)
Reeld 6/25/84
STATEMENT OF
THE U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
ON
H.R. 4509, "THE IMMIGRATION EXCLUSION AND
DEPORTATION AMENDMENTS OF 1983"
BEFORE THE
SUBCOMMITTEE ON IMMIGRATION, REFUGEES, AND INTERNATIONAL LAW
COMMITTEE ON THE JUDICIARY
U.S. HOUSE OF REPRESENTATIVES
June 28, 1984
DRAFT DRAFT DRAFT 0451L
6/22/84 (6)
Mr. Chairman and Members of the Subcommittee:
Thank you for the opportunity to comment on the health and
social welfare aspects of H.R. 4509, the "Immigration
Exclusion and Deportation Amendments of 1983.
In the late nineteenth century, following the growth of
immigration and the social problems which it engendered, the
Supreme Court declared unconstitutional all State laws
regulating immigration, and the Federal government assumed
sole authority for the regulation of immigration. Because of
evidence that foreign officials were deporting to the United
States convicts, paupers, mentally ill persons, and persons
incapable of self support, the chief features of early Federal
immigration law prohibited the immigration of such persons.
Although at various times in the history of the United States
measures were taken to encourage foreign immigration, and at
other times to restrict and regulate it, there has generally
been consensus on the desirability of excluding mentally ill
and socially misfit immigrants, as well as those with certain
contagious diseases. Such exclusions have been a consistent
policy, from the colonial period, through the period of State
regulation, into the present period of Federal regulation.
- 2 -
The Department of Health and Human Services supports the
continued exclusion of aliens based on the health and social
welfare concerns that have been the foundation for the
specific categories of excludable aliens now set forth in the
Immigration and Nationality Act.
Our testimony addresses the changes that the bill would make
in the Act's current restrictions that are designed to keep
from entering the United States those persons who would
endanger public health or safety, as well as those who would
violate the rights of others or present a social or economic
burden to society, including those who are likely to require
medical care, or institutionalization, or both. Specifically,
the Act (Section 212 (a) (1) through (8), and (15)) now excludes:
Aliens who are mentally retarded;
Aliens who are insane;
Aliens who have had one or more attacks of insanity;
Aliens afflicted with psychopathic personality, or
sexual deviation, or a mental defect;
Aliens who are narcotic drug addicts or chronic
alcoholics;
Aliens who are afflicted with any dangerous contagious
disease;
Aliens not comprehended within any of the foregoing
classes who are certified by the examining surgeon as
- 3 -
having a physical defect, disease, or disability, when
determined by the consular or immigration officer to
be of such a nature that it may affect the ability of
the alien to earn a living, unless the alien
affirmatively establishes that he will not have to
earn a living;
Aliens who are paupers, professional beggars, or
vagrants;
Aliens who, in the opinion of the consular officer at
the time of application for a visa, or in the opinion
of the Attorney General at the time of application for
admission, are likely at any time to become public
charges.
H.R. 4509 would reduce the health-related grounds for
exclusion to:
Any alien who is afflicted with any dangerous
contagious disease; and
Any alien who suffers from any mental illness likely
to result in the performance of acts which could
endanger public safety.
The bill would also identify for exclusion, as one of several
grounds under the heading of "criminal and moral grounds," any
alien who is a narcotic drug addict.
- 4 -
The bill would repeal entirely the economic grounds for
exclusion under the current law - the vagrancy and public
charge categories mentioned above - and would also eliminate
present provisions for the deportation of immigrant aliens who
become institutionalized for mental illness at public expense,
or become a public charge, within five years after entry. It
would also repeal the present provision for discretionary
relief from certain medical exclusions.
H.R. 4509 addresses an important issue - revision of the
current categories of exclusion. We agree that the specific
formulations of the medical exclusions have become outdated,
and that revision is needed to alter obsolete language and to
achieve conformity with current medical, psychiatric, and
public health standards and practices in the United States.
However, the Department is unable to support the bill because
the scope of the proposed exclusionary criteria is too narrow,
and the result would be to permit the entry of some persons
who would endanger public safety, who would violate the rights
of others, or who would present a social or economic burden to
society. We believe that the basic principles underlying the
present exclusions are sound, and do not agree with the
far-reaching change that the bill would make in current
immigration policy as it falls within the purview of this
- 5 -
Department. Keeping in mind the underlying social policy
reasons for the exclusions, I would like to discuss some
specific examples of the impact the bill would have.
A major concern of the Department is that the bill would
eliminate as a ground for exclusion the likelihood that the
applicant would become a public charge.
For example, the bill would no longer exclude aliens certified
by the medical examiner as having a physical defect, disease,
or disability which would affect the ability to earn a living,
(now excludable under subsection 212 (a) (7) ) nor other aliens
unable to support themselves after admission (now excludable
under subsections 212 (a) (8) and (15) ) In FY 1983, the United
States refused more than 4,600 applications for visas on the
grounds that the aliens had no means of support and would
become public charges.
The exact financial impact of admitting these applicants is
difficult to quantify, but we estimate that had they been
admitted, the likely increase in welfare costs in the FY 1985
through FY 1989 period, under programs like Supplemental
Security Income (SSI), Food Stamps, and Medicaid, would have
been in the range of $200 to $300 million. The costs over the
- 6 -
long run would be even higher because the relaxation of these
provisions would be an incentive for other such aliens to
apply.
Our concerns also extend to aliens with impairments which
result in their being unable to care for their economic,
social, and health care needs. The bill would eliminate as a
basis for exclusion the present law's category of "Aliens who
are mentally retarded" (subsection 212 (a) (1)).
Under this modification, there would be no basis for excluding
aliens with severe mental retardation who are unable to
support or care for themselves. Thus, a severely or
profoundly retarded alien would be able to enter the United
States without restrictions. In FY 1983, 247 aliens were
excluded because they were mentally retarded and unable to
meet the waiver requirement of family and financial support.
Here again, there would have been substantial Federal costs
involved in benefits for these persons. Additional Federal
costs would probably be incurred if the family and financial
support requirements were dropped for those aliens who are now
eligible for a waiver of excludability.
While we agree that it would be appropriate to consider
modifying the present barrier to mentally retarded persons --
- 7 -
such as allowing admission of those more mildly retarded
persons who would not pose a public burden -- we believe there
needs to be some basis for excluding those who would be likely
to draw heavily on the social service and benefit programs of
our land.
In addition, elimination of the public charge criteria would
result in the loss of savings now accomplished by income
attribution provisions of benefit laws. The Social Security
Disability Amendments of 1980 and the Omnibus Budget
Reconciliation Act of 1981 amended the Social Security Act to
provide for attribution to an alien of a sponsor's income and
resources for purposes of determining the eligibility for an
amount of benefits of the alien under the SSI and Aid to
Familes with Dependent Children (AFDC) programs within three
years of the alien's entry into the U.S. As a result, for
example, awards of SSI to aliens have dropped from about 1,300
per month for the year before this provision was enacted, to
209 per month for the 17 months starting January 1981.
Conservative estimates of savings are $40 million a year for
SSI and $15 million a year for AFDC. These savings would be
lost by eliminating the public charge exclusions of the
current law.
- 8 -
We are also concerned about changes that the bill would make
in other health-related grounds for exclusion.
The present exclusions on grounds of mental illness would be
modified. The present law excludes "aliens who are insane"
and "aliens who have had one or more attacks of insanity" as
well as "aliens afflicted with psychopathic personality, or
sexual deviation, or a mental defect" (subsections
212 (a) (2) (3) and (4)). The bill's sole mental illness
category would be a new one excluding only those suffering
from "any mental illness likely to result in the performance
of acts which could endanger public safety."
While the present law in this regard certainly needs to be
rewritten, the language of this bill would permit the entry of
many aliens who we believe should be excluded, and in any case
would present great difficulties in interpretation and
application. Essentially, dangerous or violent acts cannot be
predicted, and in most cases neither psychiatrists nor anyone
else would be able to make a determination of mental illness
"likely to result in the performance of acts which could
endanger public safety. " Thus, the bill's language would
probably not serve to exclude many mentally ill or afflicted
aliens who are now excludable and who could endanger public
safety or become public charges.
- 9 -
For example, it would not provide a basis for excluding
certain aliens with current or previous psychotic disorders,
with disorders which result in antisocial acts or conduct, or
with paraphilias, who are now excludable under the terms
"insane" and "insanity," "psychopàthic personality, and
"sexual deviation" in the current law. Some aliens with
conditions such as antisocial personality disorders or
pedophilia (child molestation), may present a danger to public
safety; others, such as voyeurs and exhibitionists, may
violate the rights of other persons, even if not necessarily
endangering them. Still others, such as those with some
current or previous psychoses, may present a potential burden
to society if costly medical care should be required.
The bill would also eliminate the present exclusion (in
subsection 212 (a) (5)) of chronic alcoholics (while moving the
law's present barrier to narcotic addicts to the "criminal and
moral" category).
We believe that there should continue to be a basis for
excluding those with active alcohol dependency, and
consideration should also be given to excluding those who are
active alcohol abusers, who are not now excludable. We also
believe that those dependent on, or who abuse, any drug
specified in the Controlled Substances Act should be
- 10 -
excludable, but under the medical, rather than the criminal
and moral, heading. The present law, and the proposed
revision, speak only of addiction to narcotic drugs.
We have a few specific suggestions for other modifications of
the bill that do not raise major policy issues, but which you
should be aware of.
With respect to contagious diseases, we agree conceptually
with retaining the category of exclusion intended by the text
"Aliens who are afflicted with any dangerous contagious
disease" (proposed section 212 (a) (1) (A)), but in keeping with
current public health concepts, we suggest replacing the
phrase "any dangerous contagious disease" with "a communicable
disease of public health significance." The Secretary would
continue to specify the list of excludable communicable
diseases.
In addition, the bill's conforming amendment to section 234 of
the Act gives an alien a right to appeal a determination that
he or she is afflicted with a contagious disease, but not
other health-related determinations. This should be corrected
to follow the present law, which permits appeals with respect
to other determinations, but not in contagious disease
situations.
- 11
As we have indicated, the proposed formulation of the
exclusion categories in the bill before you would result in
the admission of many persons, now excludable, who would
endanger public health or safety, or become public charges.
We urge that the Committee develop modifications in the law
that would continue to exclude such aliens, while updating the
obsolete terminology and categories. We will be happy to work
with you on the specifics of the language necessary to
accomplish the necessary exclusions.
Let me suggest a tentative framework for the Subcommittee's
consideration of how the present exclusion categories might be
modified. The basic principles of public health and safety
and economic interests are the underpinning of the present
law, and they ought to underlie any new formulation. On this
foundation, we believe that the following classes of aliens
should be excludable:
Aliens who have a communicable disease of public
health significance;
Aliens who have a history or record of behavior, or
manifestations of certain mental impairments, that
pose a threat to the safety or welfare of others or to
themselves, or a threat to property.
- 12 -
Aliens who are likely to become an economic or social
burden because of physical or mental impairment, or
predisposing social or financial conditions.
We would welcome a statutory scheme of exclusion categories
based on these classes, together with these elements:
Authority for waivers and other discretionary relief
in individual cases;
Authority for the Secretary of Health and Human
Services to make distinctions and definitions within
the classes or categories ultimately chosen; and
Authority to deport aliens who, within five years of
entry, need long-term institutionalization at public
expense for pre-existing health conditions, or who
become public charges, or who fail to comply with the
health-related terms of their admission.
Within categories based on such a framework, we believe that
we would be able to make sound decisions with respect to the
medical and public welfare considerations in the admission of
aliens to the United States.
- 13 -
Mr. Chairman, this concludes my testimony. I would be pleased
to answer any questions the Subcommittee may have.
JPF 0451L
THE WHITE HOUSE
WASHINGTON
June 18, 1984
MEMORANDUM FOR BRANDEN BLUM
LEGISLATIVE ATTORNEY
OFFICE OF MANAGEMENT AND BUDGET
FROM:
ASSOCIATE COUNSEL 02R TO THE PRESIDENT
JOHN G. ROBERTS
SUBJECT:
Draft Department of State Report on
H.R. 4509, a Bill to Amend the Grounds
for Exclusion and Deportation of Aliens
Counsel's Office has reviewed the above-referenced draft
report. The statement on page 12, lines 6-7, that "since
1978 the United States has not been in a state of national
emergency" is inaccurate. On several occasions since 1978
the President has declared a "national emergency" under the
provisions of the International Emergency Economic Powers
Act ("IEEPA"), 50 U.S.C. § 1701 et seq. See, e.g., Executive
Order 12444 (Oct. 14, 1983) (continuation of export control
regulations). The national emergency with respect to Iran
was originally declared on November 14, 1979, see Executive
Order 12170, and has been continued in effect since that
time, the most recent continuation notice having been sent
to Congress on November 4, 1983.
ID #.
CU
WHITE HOUSE
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Subject: Draft Dept. of State Report on H.R. 4509,
abill to amend the grounds for exclusion
and departation of aliens
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5/81
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
ROUTE SLIP
Robert Kimmitt
Take necessary action
TO
Kathy Collins
Approval or signature
Susan Gates
Comment
Sylvia Malm
Prepare reply
Discuss with me
Fred Fielding
For your information
Mike Uhlmann
See remarks below
FROM Branden Blum
DATE 6/7/84
REMARKS
Subject: Draft Department of State Report on
H.R. 4509, a bill to amend the grounds
for exclusion and deportation of aliens
In the attached draft report, which has been
forwarded to Justice, Labor and HHS, State
discusses a number of concerns with the bill.
A hearing on H.R. 4509 is scheduled for 6/14/84.
(Justice testimony has already been circulated
for comment. HHS and State testimony will be
circulated for review upon receipt.)
Please provide me with any comments by Monday,
June 18, 1984.
Attachment
OMB FORM 4
Rev Aug 70
United States Department of State
Washington. D.C. 20520
Dear Mr. Chairman:
The Secretary has asked me to reply to your letter of December
6, 1983 enclosing for the Department's study and report a copy of
H.R. 4509, "A bill to amend the Immigration and Nationality Act
with respect to the grounds for exclusion and deportation of
aliens.
5
Section 1 of the bill sets forth the short title of the bill
and makes standard references to the Immigration and Nationality
Act. The Committee may wish to correct the short title to reflect
the current year.
Section 2 of the bill would revise the grounds for exclusion
of aliens set forth in Section 212 (a) of the Act and would group
the revised grounds of exclusion in six major sub-categories.
Health-Related Grounds
Proposed new section 212 (a) (1) would replace current sections
212 (a) (1) - (4) and (6). Current 212 (a) (5), which excludes chronic
alcoholics and narcotic drug addicts, and is now considered to be
one of the medical grounds of exclusion, would be modified and
considered one of the "Criminal and Moral Grounds" under new
section 212 (a) (2) insofar as it relates to narcotic drug addicts.
Proposed section 212 (a) (1) (A) repeats, with minor editorial
modification, current section 212 (a) (6) which excludes an alien
afflicted with a dangerous contagious disease. The Department
presumes it to be intended that the United States Public Health
Service continue to determine which diseases are "dangerous con-
tagious" diseases and that the current medical examination system
continue unchanged.
The Honorable
Peter W. Rodino, Jr., Chairman,
Committee on the Judiciary,
House of Representatives.
-2-
Proposed new section 212 (a) (1) (B) would replace current sec-
tions 212 (a) (1) through (4). Those sections now render excludable
an alien who is mentally retarded, who is insane, who has had one
or more attacks of insanity, or who is afflicted with psychopathic
personality, sexual deviation or a mental defect. In lieu of
these four specified bases for exclusion, an alien would be ex-
cludable only if he suffered from a mental illness likely to re-
sult in the performance of acts which could endanger public safety.
While the Department will defer to the comments of the
Department of Health and Human Services concerning this proposal,
the Committee may wish to consider the following observations.
First, the Department believes that the phrase "acts which
could endanger the public safety" should be clarified. This
phrase carries an implication of violence to others. There is a
question whether it would include an alien dangerous to himself,
but not to others. While the Department defers to the comments of
the Department of Health and Human Services, it does believe that
the intent of the phrase "acts which could endanger the public
safety" should be made explicit.
Second, the Department believes that the elimination of ex-
cludability because of mental retardation leaves certain questions
unresolved. Section 212(g) of the Act, which would be repealed by
section (e) of the bill, now authorizes discretionary relief from
excludability based on mental retardation to an immigrant alien
who is the parent, spouse, son, daughter, or minor unmarried
adopted child of a citizen, of a permanent resident alien or of an
alien to whom an immigrant visa has been issued. In addition,
excludability for this reason may be waived, also as a matter of
discretion, under section 212 (d) (3) of the Act for any nonimmi-
grant alien. While some mentally retarded individuals can lead
independent and productive lives in spite of their mental handi-
cap, others are so severely retarded that they cannot do SO. The
current discretionary relief and waiver authority allow for con-
sideration of each case individually, taking into account the de-
gree of retardation and the need, if any, for special care which
might exist in an individual case. The total elimination of
mental retardation as a ground of exclusion would eliminate any
possibility of such case-by-case consideration. This fact would
become especially significant in light of the proposed elimination
of current section 212 (a) (15) (excludability for public charge
reasons) which is addressed further below.
-3-
Criminal and Moral Grounds
Proposed section 212 (a) (2) would modify and replace current
sections 212(a)(9), 212(a)(10), 212 (a) (23) and 212 (a) (33). Also,
the prohibition on the issuance of visas to narcotic drug addicts
contained in current section 212 (a) (5) would become part of this
proposed section.
Proposed section 212 (a) (2) (A) contains the substance of
current section 212 (a) (9) which excludes aliens who have been con-
victed of a crime involving moral turpitude (other than a purely
political offense). It retains the current exceptions for aliens
convicted of a single crime of moral turpitude committed while
under the age of 18 and aliens who have been convicted of a single
"petty offense". The only substantive change would be the elimi-
nation of the current provision excluding aliens who admit the
commission of a crime involving moral turpitude. This change
would have little practical effect on visa operations, since visa
applicants rarely admit to a consular officer the facts required
to support a finding of excludability.
Proposed section 212 (a) (2) (B) is substantively identical to
current section 212 (a) (10) which excludes an alien who has been
convict ed of two or more offenses for which the aggregate sen-
tences to confinement actually imposed are five years or more. As
a technical matter, it appears that the word "confine" at line 12
on page 3 of the bill should be changed to read "confinement".
Proposed section 212 (a) (2) (C) (i), which would replace current
section 212(a)(23), excludes an alien who has been convicted of
drug-related offenses and an alien who a consular or immigration
officer knows or has reason to believe is involved in drug
trafficking. The proposed new section differs from current law in
significant ways.
First, excludability under this proposed section would be ex-
tended to aliens convicted of violation of laws or regulations
relating to "psychotropic" and "controlled" substances and to
traffickers therein, as well as to those convicted of violation of
laws or regulations relating to marihuana or narcotic drugs and
traffickers therein, as provided under current law. The Depart-
ment perceives no objection to this proposed change, but suggests
that it should be clarified. It appears that the term "controlled
substance" may have had its origin in the Comprehensive Drug Abuse
Prevention and Control Act of 1970, P.L. 91-513, 84 Stat. 1236, 21
U.S.C. 801, et seq. Title II of P.L. 91-513 is cited as the
Controlled Substances Act and contains a definition of the term
"controlled substances." If the Department is correct in its
assumption, it might be preferable to modify proposed section
-4-
212 (a) (2) (C) (i) to refer simply to controlled substances as de-
fined in the Controlled Substances Act, since the definition
appears to include all substances contemplated by the present
formulation of proposed section 212(a) (2)(c)(i).
Second, the relief from excludability because of a single con-
viction for simple possession of 30 grams or less of marijuana
would be broadened in two ways. Under section 212 (h) of the Act
as it now reads, relief from excludability for this reason may be
granted by the Attorney General, as a matter of discretion, to
immigrant aliens having certain specified relationships to a citi-
zen or lawful permanent resident. The language contained in pro-
posed section 212 (a) (2) (C) (i) would make such relief automatic and
would extend it to all aliens, immigrant and nonimmigrant, whether
or not related to a citizen or permanent resident.
Proposed section 212 (a) (2) (C) (ii) would replace, in part,
current section 212 (a) (5). Unlike current section 212 (a) (5) which
excludes both chronic alcoholics and narcotic drug addicts, pro-
posed section 212 (a) (2) (C) (ii) would exclude only narcotic drug
addicts. Under current law, a finding that an alien is a narcotic
drug addict is treated as a medical finding and may be made only
through the medical examination process. The Department would be
strongly opposed to any change that would raise any doubt as to
the need for medical certification of an alien's addiction to
support a finding of excludability. Thus, we urge that this pro-
vision be transferred into proposed section 212 (a) (1) (Health
Related Grounds).
Proposed section 212 (a) (2) (D) would exclude any alien who
ordered, incited, assisted, or otherwise participated in the per-
secution of any person because of race, religion, national origin,
or political opinion. This proposed section replaces and broadens
significantly current section 212 (a) (33) which includes the same
language but applies only to aliens who were involved with the
Nazi regime in Germany or related governments.
The Department sympathizes with the objective of this pro-
posal, but the expansion of what is now section 212 (a) (33) has the
potential for creating serious administrative and substantive
problems. Current section 212 (a) (33), limited as it is to aliens
associated with the Nazi regime, deals with a relatively well-
defined group which unquestionably should be excluded from this
country. Because of the nature of the Nazi regime and the Nazi
Party, no questions arise concerning the distinction between
officially-inspired or directed persecution and persecution en-
gaged in by private individuals or groups without the approval, or
against the policy, of the government in power. Such questions
might well arise under this proposed broader provision.
-5-
The term "otherwise participated in" is SO broad as to create
substantial difficulties of definition if it were applied to wider
categories or groups. As an example, there have been accounts of
Soviet dissidents who have been expelled from professional organi-
zations in the USSR because of their political views. Typically,
such actions are formally taken by a vote of the other members of
the organization, although it is clear that the action is inspired
by the Soviet Government. It would seem that any member of the
organization who voted to expel a dissident member would neces-
sarily have "otherwise participated in" the persecution of the
dissident member because of his political opinion and would thus
be permanently barred from entry into the United States.
Administratively, the process of determining whether this exclu-
sion would apply in such a case could be extremely difficult.
Finally, the Department foresees situations in which substan-
tial complications could arise in our relations with another
country. For example, acts constituting persecution might be im-
puted to a country although the government either challenged the
imputation or said that the acts were committed by private indi-
viduals or groups without its consent and perhaps in spite of its
best efforts to prevent such acts.
Security Grounds
Proposed section 212 (a) (3) would replace current sections
212 (a) (27), (28) and (29) and would substantially restrict the
so-called "security" grounds of exclusion. As a technical matter,
the Department believes that the word "is" in line 3 of page 4
should be deleted and that the word "of" in line 4 of page 4
should be changed to read "or".
Proposed section 212 (a) (3) (A) would replace current sections
212 (a) (27) and (29). These sections render excludable an alien
who the consular officer or the Attorney General knows or has
reason to believe intends to, or probably would, engage in activi-
ties (1) prejudicial to the public interest; (2) which would en-
danger the welfare, safety or security of the United States; (3)
which would be prohibited by laws relating to espionage, sabotage,
public disorder; or (4) other activities subversive of national
security or the purpose of which is opposition to, or overthrow or
control of the Government of the United States by force, violence
or other unconstitutional means. These two sections are closely
inter-related and to a considerable extent overlap each other. As
an example, an alien who is a foreign hostile intelligence service
operative and who we have reason to believe intends to engage in
espionage in the United States would clearly be excludable under
section 212(a)(29). Such an alien would also appear to be exclud-
able under section 212 (a) (27) since engaging in espionage clearly
is prejudicial to the public interest is or likely to endanger the
-6-
welfare, safety or security of the United States. Cases of this
kind would apparently continue to be covered by proposed section
212 (a) (3) (A) as the wording of that section basically is a conden-
sation of the wording of current sections 212 (a) (27) and (29).
For many years the Department has also interpreted section
212 (a) (27) to apply to cases in which an alien's entry or proposed
activities in the United States could have potentially serious
adverse foreign policy consequences. It has been the Department's
view that in such a case the alien's entry or activities could
properly be said to be "prejudicial to the public interest" within
the meaning of that section. The Department of Justice has con-
curred in this interpretation. The exact phrase "prejudicial to
the public interest" does not appear in proposed section 212 (a)
(3) (A), but the Department nevertheless believes that the wording
of proposed section 212 (a) (3) (A) (ii), which refers to activities
which endanger public safety or national security, would continue
to support findings of excludability on foreign policy grounds in
certain cases. The Department believes the national security is
protected not merely by military means alone, but also by diplo-
matic means. On this basis, activities which could have poten-
tially serious adverse foreign policy consequences could endanger
national security. If, on the other hand, the intent of the bill
is to eliminate altogether visa denials on foreign policy grounds,
the Department would oppose adoption of such a provision.
Proposed section 212 (a) (3) (B) would replace current section
212 (a) (28). Sections 212 (a) (28) (A) through (E) now exclude anar-
chists, Communists, members of anarchist or Communist parties,
members of any organization affiliated with a Communist party or
organization, and those who believe in or advocate Marxist doc-
trine. Sections 212(a)(28)(F), (G), and (H) exclude aliens who
advocate, or belong to organizations which advocate certain acts
generally characterized as terrorist acts. Moreover, the provi-
sions of section 212 (a) (28) extend not merely to present, but also
to past, membership, affiliations, belief or advocacy.
Proposed section 212 (a) (3) (B) would omit virtually all the
provisions of section 212 (a) (28) and would exclude only an alien
who is an active member of an organization which is engaged in
violence OF terrorist activities. The Department believes that
the elimination of all current restrictions against the admission
of members of Communist parties or organizations and of adherents
of Communist doctrine is not in the national interest, but will
defer to the comments of the Department of Justice with respect to
this issue because of that Department's primary responsibility for
internal security.
There are also several technical matters relating to the pro-
posed section which deserve comment. First, the word "active"
appears to require something more than mere membership in order to
-7-
support a finding of excludability. It seems that some unspeci-
fied degree of participation in the organization's activities
might be required for this purpose. The Department suggests that
this point be clarified.
Second, the Department notes that the concept of "affiliation"
has been omitted and excludability will result only from active
membership. This appears to pre-suppose that organizations of the
kind described are sufficiently formal to have membership in the
traditional sense. Terrorist organizations or groups are virtu-
ally all clandestine and often do not appear to be clearly struc-
tured. For this reason, the Department would suggest that pro-
posed section 212 (a) (3) (B) be expanded to exclude aliens affili-
ated with such organizations as well as those who are members.
Third, the Department questions whether it is appropriate to
exempt from excludability aliens who advocate violence or terror-
ist activity while excluding those who engage in it.
Fourth, the wording of proposed section 212 (a) (3) (B) clearly
comprehends only present membership (presumably as of the time of
visa application or application for admission). The Department
foresees that aliens may try to avoid excludability by claiming to
have terminated membership, perhaps only very recently. As many
of the organizations within the purview of this proposed section
are clandestine in character, verification of such a claim will be
virtually impossible. For this reason, the Committee may wish to
consider providing that excludability would result not only from
present membership but also from past membership within a
specified time period.
Finally, the Department notes that A-3 nonimmigrants (atten-
dants, servants and personal employees of foreign government
officials accredited to the United States) and G-5 nonimmigrants
(attendants, servants and personal employees of representatives
to, or employees of, an international organization) would be
exempt from excludability under proposed section 212 (a) (3) (B).
This appears to transfer to this section the provisions of current
section 212 (d) (2) which would be repealed by section 2 (d) (2) of
the bill and which exempts A-3 and G-5 nonimmigrants from the pro-
visions of current section 212(a)(28). While this exemption may
be appropriate when the primary basis for excludability is member-
ship in or affiliation with a Communist Party or organization, the
Department questions whether it would continue to be appropriate
if the basis for excludability were active membership in an or-
ganization which engages in violence or terrorism.
-8-
Economic Grounds for Certain Immigrants
Proposed section 212 (a) (4) incorporates the labor certifica-
tion requirement of current section 212 (a) (14) with a substantive
amendment and the provisions of current section 212 (a) (32) exclud-
ing foreign medical graduates who have not passed Parts I and II
of the National Board of Medical Examiners examination or an
equivalent examination.
Proposed section 212 (a) (4) (A) would replace current section
212(a)(14). Under current law, labor certification generally can-
not be granted by the Secretary of Labor if qualified workers in
the United States are able, willing and available for the position
for which the alien's services are sought. In the case of members
of the teaching profession and of artists and scientists of excep-
tional ability only, United States workers must be equally quali-
fied -- not merely qualified -- able, willing and available in
order to support a denial of certification. Proposed section
212 (a) (4) (A) would apply this more stringent "equally qualified"
test also to cases of aliens holding doctoral degrees who will be
employed as researchers by a college, university or other non-
profit educational or research institution. The Department defers
to the comments of the Department of Labor with respect to this
proposed amendment.
Proposed section 212 (a) (4) (B) repeats present section 212 (a)
(32) without substantive amendment. The Department will defer to
any comments the Department of Health and Human Services may have
with respect to this provision.
Illegal Entrants and Immigration Violators
Proposed section 212 (a) (5) would incorporate current sections
212 (a) (16) (aliens previously excluded) ; 212 (a) (17) (aliens pre-
viously deported, removed at Government expense, or removed as
alien enemies) ; 212 (a) (18) (stowaways) ; 212(a)(19) (aliens who
have procured or sought to procure a visa or other entry documen-
tation by fraud or a willfull misrepresentation) ; 212(a)( (24)
(aliens who arrived less than two years previously in foreign con-
tiguous territory or an adjacent island on a carrier which had not
signed an agreement with the Attorney General or which had failed
to comply with the terms of such an agreement); and 212(a)(31)
(aliens who for gain assist others to enter the United States
illegally). of these sections, only present section 212 (a) (31)
would be substantively amended.
Current section 212 (a) (31), which becomes proposed section
212 (a) (5) (E), would be amended by deleting the current requirement
that the alien's activities have been for gain in order to support
a finding of excludability. This change would open the way for
-9-
finding aliens excludable for attempting to assist family members
to enter the U.S. illegally for purposes of family reunification,
an action that in the past has not warranted such a harsh penalty.
Also, it would make it more difficult to determine what degree of
assistance would invoke excludability. Assistance provided in
exchange for money may be presumed significant but it would be
more difficult to establish whether a casual suggestion made to a
friend or family member should be SO presumed.
The Department urges that current section 212 (a) (24), which
becomes proposed section 212 (a) (5) (F), be repealed. This section
has its origins prior to World War I in legislation to regulate
the conditions under which immigrant aliens were transported by
vessel to United States ports of entry. It was enacted in 1917 to
prevent unscrupulous shipping companies from evading those re-
strictions by carrying immigrant aliens to ports in Canada or
Mexico, for example, and leaving them there to make their way to
the United States. The virtual elimination of transoceanic pas-
senger vessels and the standardization of passenger accommodations
on commercial aircraft have long since rendered this section ob-
solete. It nevertheless remains in the law as a trap for the un-
wary. While the number of immigrant aliens subject to this ground
of exclusion is very small, not more than a handful annually, its
perverse effects impose upon those few a very real hardship for
which there is no substantive basis. For this reason, the Depart-
ment urges removal of this provision from the grounds of exclusion.
Documentation Requirements
Proposed section 212 (a) (6) would incorporate current provi-
sions which establish the requirements for travel and entry docu-
ments for immigrants (current sections 212 (a) (20) and (21) ) and
nonimmigrants (current section 212 (a) (26) As a technical
matter, it would appear that the word "or" in line 18 of page 8 of
the bill should be changed to "and". Otherwise, the documentation
requirements under proposed section 212 (a) (6) (B) for nonimmigrant
aliens would call for either a valid travel document or a valid
entry document, but not for both.
Current Exclusion Grounds Eliminated by H.R. 4509
In addition to restructuring and amending certain of the
present grounds for exclusion, as has been described above,
section (a) of the bill would, if enacted, eliminate altogether
certain other current grounds for exclusion, namely: section
212 (a) (7) (medical condition affecting the ability to earn a
living) i 212 (a) (8) (beggars, paupers and vagrants) ; 212(a)(11)
(polygamists); 212 (a) (12) (prostitutes, procurers of prostitutes
and those who live from the proceeds of prostitution) 212 (a) (13)
-10-
(those coming to engage in immoral sexual acts); 212 (a) (15) (those
likely to become a public charge); 212(a)(22) (aliens ineligible
to citizenship or who departed from or remained outside the United
States in time of war or national emergency to evade or avoid
military service); 212 (a) (25) (illiterates) and 212 (a) (30) (an
alien accompanying another alien excluded and certified to be
physically or mentally helpless).
Three of these provisions -- sections 212 (a) (7), (8), and (15)
-- deal generally with economic or social welfare issues. They
all relate to the general question of an alien's ability to sup-
port himself after admission in ways which conform to American
customs and mores. Accordingly, the Department will defer to the
comments of the Department of Health and Human Services with
respect to the merits.
Operationally, the elimination of sections 212 (a) (7) and (8)
would have little, if any, effect on the visa function. In Fiscal
Year 1983, for example, over seven million visa applications were
processed, but only 54 visa applications were refused under sec-
tion 212 (a) (7) and eight under section 212 (a) (8). During that
same fiscal year 17 refusals under section 212 (a) (7) were over-
come, presumably on the basis that the alien had established that
other arrangements had been made for his support, relieving the
alien of the need to earn a living.
On the other hand, the elimination of section 212 (a) (15) (the
public charge provision) would have a major impact on visa opera-
tions. In Fiscal Year 1983 over 21,000 applications were refused
under section 212 (a) (15), of which over 13,000 refusals were sub-
sequently overcome. The overwhelming majority of these actions
related to immigrant visa applicants rather than to nonimmigrants.
Overall, section 212 (a) (15) is by far the most common ground for
refusal of an immigrant visa application. Thus, elimination of
this provision would result in a major reduction in the time
required to adjudicate individual immigrant visa applications.
The Department notes, however, that exclusion for public
charge reasons is one of the earliest exclusions in our immigra-
tion law, dating from 1882. It is also one which has commanded
considerable public attention from time to time, especially during
the Depression. In 1950 the Senate Judiciary Committee discussed
the public charge issue in detail in the study on which the Act
was based (Senate Report 1515, April 20, 1950 at pp 346-350).
More recently, at various times consular officers have been
accused of applying the public charge provision too laxly or too
stringently. It has even occurred that both accusations have been
made at the same time.
-11-
An affidavit of support is commonly used to meet the public
charge provision, but at present it is only a moral obligation.
Over the last decade efforts have been made to amend the public
charge provision to make the affidavit of support a legally bind-
ing document.
None of these proposals have been enacted, but other legisla-
tion relating to this point has been. Public Laws 96-265, 97-35
and 97-98 each amend legislation regulating Federal benefits pro-
grams to provide that the income and resources of the sponsor of
an immigrant be attributed to the immigrant for purposes of deter-
mining the immigrant's eligibility to receive SSI, AFDC, or Food
Stamp benefits if the immigrant applies for such benefits within
three years after admission for permanent residence. These amend-
ments also provide for recovery from the sponsor of the value of
any such benefits paid to such an immigrant in error. For the
purposes of these provisions, the sponsor of an immigrant is a
person who executed an affidavit of support or similar document in
behalf of the immigrant. Since the elimination of section 212 (a)
(15) of the Act would result in the abandonment of affidavits of
support in the immigrant visa process, it would appear to have the
practical effect of rendering these recently enacted provisions
nugatory. The Committee may wish to take this fact into account
in its consideration of the merits of eliminating section
212 (a) (15) from the grounds of exclusion.
In considering the elimination of current section 212 (a) (12)
of the Act which excludes prostitutes, those who procure prosti-
tutes or live from the proceeds of prostitution, the Committee
should be aware that a conviction for prostitution, for procuring
prostitutes or for profiting from prostitution would be a convic-
tion for a crime involving moral turpitude within the meaning of
current section 212 (a) (9) -- proposed section 212 (a) (2) (A). Thus,
elimination of section 212 (a) (12) would relieve from ineligibility
only those whom the consular officer knew or had reason to believe
were prostitutes, procurers of prostitution, or aliens who
profited from prostitution, but who had not been convicted.
The Department can perceive no operational implications in the
proposed elimination of current section 212 (a) (13) which excludes
aliens coming to engage in any immoral sexual act. In 1953 the
Board of Immigration Appeals held that, in order to support an
exclusion under this section, it was necessary to determine that
such purpose was the alien's primary purpose in coming to the
United States. This holding was in line with an earlier decision
of the Supreme Court interpreting the predecessor provision in the
Act of February 5, 1917. As a result, findings of excludability
under section 212 (a) (13) are extremely rare. There were none at
all in Fiscal Year 1983, for example.
-12-
Section 212 (a) (22) excludes aliens who are ineligible to citi-
zenship or who, in time of war or national emergency, departed or
remained outside the United States to evade or avoid military ser-
vice. As matters stand now, this section is rarely invoked, for
several reasons. First, compulsory military service (the draft)
was terminated in 1973. Second, since 1978 the United States has
not been in a state of national emergency. Third, the pardon
issued by President Carter in 1977 has been interpreted to relieve
from excludability any alien who, between August 4, 1964, and
March 28, 1973, departed or remained outside the United States to
evade or avoid military service. There remain nevertheless cer-
tain classes of aliens to whom this provision applies, namely:
aliens who obtained relief from military service on the basis of
alienage, aliens already serving in the Armed Forces who departed
the United States to avoid completing such service (i.e., who
deserted and left or remained outside the United States after
deserting), and those who departed or remained outside the United
States to evade or avoid military service prior to August 4, 1964.
Since many of the aliens who most recently performed an act which
would normally render them excludable under section 212(a)(22)
have been relieved of such excludability by Presidential action,
the Department interposes no objection to relieving others
similarly situated from such ineligibility.
Section 212 (a) (25) excludes an alien over the age of sixteen
who is physically capable of reading and writing but who cannot
read and write some language, not necessarily the English lan-
guage. Under current law a returning resident alien, an immigrant
alien fleeing religious persecution or one who is the parent,
grandparent, spouse, son or daughter of an admissible alien, a
lawful permanent resident or a United States citizen is relieved
of this excludability. In addition, nonimmigrant aliens and aliens
admitted as refugees are not subject to this ground of excluda-
bility. Thus, only third, fifth, and sixth preference immigrant
visa petition beneficiaries and nonpreference principal aliens are
subject to exclusion under section 212(a)(25). It is unlikely
that a third preference petition beneficiary would prove to be
excludable as an illiterate. The Department notes, however, that
it has seen a number of unfortunate cases in which a fifth or
sixth preference petition beneficiary was illiterate, while the
beneficiary's spouse and/or children were literate. In such a
situation, all members of the family group are excludable. The
Department will defer to the comments of the Department of Health
and Human Services with respect to the desirability of removing
this ground of exclusion entirely.
Section 212 (a) (30), excluding an alien accompanying another
excluded alien who is physically or mentally helpless and whose
protection and guardianship is required by the helpless alien,
applies only to the port of entry inspection process and not to
-13-
the visa process. Accordingly, the Department will defer to the
comments of the Department of Justice with respect to its proposed
elimination.
Conforming Amendments
Section 2 (b) of the bill would repeal section 212 (b) of the
Act which exempts certain classes of aliens from exclusion by
reason of illiteracy (section 212(a)(25)). Since section 212(a)
(25) would be eliminated by section 2(a) of the bill section
212 (b) would become obsolete.
Section (c) of the bill would amend section 212(c) of the Act
to conform with amendments made by section 2(a).
Section 2 (d) of the bill would amend section 212(d) of the Act
by repealing paragraphs (1), (2), (9) and (10), which would become
obsolete, and by amending paragraphs (3), (4), (6), (7), and (8)
to conform with amendments proposed in section 2(a).
Sections 2 (d) (3) and (d) (8) would make conforming amendments
to sections 212 (d) (3) and 212(d) (8) of the Act. As a technical
matter, the Department is uncertain of the meaning of the brackets
around "(A)" in lines 10 and 18 on page 9 of the bill. In both
cases the language being amended has the effect of prohibiting
relief from or a waiver of the serious security exclusions and the
exclusion of those who have engaged in persecution. For this
reason, the Department would suggest that " (A) be deleted from
both texts, since, otherwise, active members of an organization
which engages in violence or terrorist activities could benefit
therefrom.
Section (e) of the bill would repeal section 212(g) of the
Act. This section now authorizes for immigrant aliens a waiver of
excludability because of mental retardation, affliction with
tuberculosis, or past attacks of insanity provided the immigrant
is the parent, spouse, son, daughter or minor unmarried adopted
child of a citizen, a permanent resident alien, or an alien to
whom an immigrant visa has been issued. Under the amendments of
section 212 (a) of the Act proposed in section 2 (a) of the bill
neither mental retardation nor having had prior attacks of in-
sanity would constitute a ground of exclusion unless it was deter-
mined that either condition was a mental illness likely to result
in the peformance of acts which could endanger public safety. On
the other hand tuberculosis is now considered by the Public
Health Service to be a dangerous contagious disease within the
meaning of present section 212 (a) (6). Since current section
212(a) (6) would remain in the revised section 212(a) as section
212 (a) (1) (A), it is possible that tuberculosis could remain a
"dangerous contagious disease." Should this prove to be the case,
-14-
the repeal of section 212(g) would have the effect of eliminating
this existing relief from excludability for certain immigrant
aliens afflicted with tuberculosis. The Department will defer to
the comments of the Public Health Service with respect to this
proposal.
Section (f) of the bill would amend section 212(h) of the
Act. Section 212 (h) currently authorizes for certain immigrants a
waiver of excludability based on a conviction for a crime involv-
ing moral turpitude, confinement in excess of five years, prosti-
tution or a single conviction for simple possession of less than
thirty grams of marihuana, for an immigrant alien who is the
parent, spouse, or child (including a minor unmarried adopted
child) of a United States citizen or permanent resident. The pro-
posed amendment would make what are essentially conforming amend-
ments, but would also apparently perpetuate the discretionary
relief for certain aliens excludable because of a single convic-
tion for simple possession of 30 grams or less of marihuana.
Since this relief would become automatic and applicable to all
aliens under proposed section 212 (a) (2) (C) (i), there would seem to
be no reason to retain this discretionary provision in section
212 (h). On the other hand, depending upon the meaning of the
brackets around "(i)" at line 25 on page 9 of the bill, this
relief would extend also to narcotics addicts. The Committee may
wish to clarify what is intended by their inclusion.
Section (g) of the bill would amend section 212(k) of the Act
to conform with amendments proposed in section 2 (a) of the bill.
Section 2 (h) of the bill would establish an effective date for
the amendments contained in sections 2 and 4 of the bill with
respect to applications for admission. The Department believes
that this effective date provision should be modified to include
the same effective date for visa applications.
Deportation Grounds
Section 3 of the bill would amend section 241 of the Act,
which establishes the grounds for deportation of aliens, to con-
form it generally to the proposed grounds for the exclusion of
aliens. There is, however, one significant difference. Under
current law, both sections 212 (a) (33) and 241 (a) (19) direct them-
selves to aliens who ordered, incited, assisted or otherwise par-
ticipated in the persecution of others under the direction of or
in collaboration with the Nazi Government of Germany. As has pre-
viously been mentioned, section 212 (a) (33), which would become
proposed section 212 (a) (2) (D), would be significantly broadened.
Current section 241 (a) (19), which would become section 241 (a) (5),
has not been substantively amended. It is not clear to the
Department whether this was deliberate or inadvertent and the
-15-
Committee may wish to consider whether the two should conform to
each other. In addition, current section 241 (a) (10) / which
corresponds to current section 212 (a) (24), would be retained as
proposed section 241 (a) (1) (D). Just as the Department urges the
repeal of current section 212 (a) (24), SO the Department urges the
repeal of current section 241 (a) (10). Otherwise, the Department
defers to the comments of the Department of Justice with respect
to section 3 of the bill.
Additional Conforming Amendments
Section 4 of the bill would make a series of conforming
amendments in various sections of the Act.
Section 4 (a) (1) would make conforming amendments to section
101 (f) (3) of the Act.
Section 4(a)(2) would make conforming amendments to section
102 of the Act.
Section 4(a)(3) would make a conforming amendment to section
203 (a) (7) of the Act.
Section 4 (a) (4) would make conforming amendments to sections
207(c)(3) and 209 (c) of the Act.
Section 4 (a) (5) would make a conforming amendment to section
211 (b) of the Act.
Section 4 (a) (6) would repeal section 213 of the Act. Section
213 now provides for the posting of a "public charge bond* in cer-
tain cases and would become obsolete because of the elimination of
section 212(a)(15) (excludability for public charge reasons) by
section 2( (a) of the bill.
Section 4(a)(7) would make a conforming amendment to section
221 (g) of the Act.
Section 4(a)(8) would make a conforming amendment to section
234 of the Act. This section establishes the requirements and
procedures for the medical examination of aliens at ports of
entry. The Department notes that excludability by reason of nar-
cotics addiction in proposed section 212 (a) (2) (C) (ii) ) is included
in the grounds of excludability for which a medical examination
would be required. This reinforces the Department's view that
excludability for this reason should be included in proposed
section 212 (a) (1) (Health Related Grounds), as has been mentioned
above.
-16-
Section 4 (a) (9) would make a conforming amendment to section
245 (c) of the Act.
Section 4 (a) (10) would make conforming amendments to section
236 (d) of the Act.
Section 4 (a) (11) through (14) would make conforming amendments
to sections 241 (c), 241 (f), 272 and 277 of the Act.
Section 4 (b) would make conforming amendments to section 242,
244 (a), and 244 (e) of the Act and to section 202 (n) of the Social
Security Act.
If the Committee should decide to approve proposed new sec-
tions 212 (a) (3) and 241 (a) (4), "Security Grounds," it may also
wish to consider the repeal of current sections 101 (a) (2), 101 (a)
(12), 101 (a) (37), 101(a)(40), and 101 (e), since the purposes they
have served heretofore would be eliminated. For the same reason
the Committee may wish to consider the repeal of Section 21 of the
Act entitled "Act to provide certain basic authority for the
Department of State,' approved August 1, 1956 (22 USC 2691, popu-
larly known as the "McGovern Amendment") as added by Section 112
of the Foreign Relations Authorization Act, Fiscal year 1978, P.L.
95-105, August 17, 1977, 91 Stat. 848. Proposed section 212 (a)
(3) (B) which would replace current section 212 (a) (28), would
render excludable aliens who were active members of organizations
engaged in violence or terrorist activities. It does not appear
to the Department that it would be appropriate to mandate that
waivers of ineligibility be recommended for such aliens.
The Office of Management and Budget advises that from the
standpoint of the Administration's program there is no objection
to the submission of this report.
Sincerely,
W. Tapley Bennett, Jr.
Assistant Secretary
Legislative and Intergovernmental Affairs