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Immigration and Naturalization (5 of 13)
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Immigration and Naturalization (5 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
(5 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
February 18, 1986
MEMORANDUM FOR BRANDEN BLUM
LEGISLATIVE ATTORNEY
OFFICE OF MANAGEMENT AND BUDGET
FROM:
JOHN G. ROBERTS JJR
ASSOCIATE COUNSEL TO THE PRESIDENT
SUBJECT:
Departments of State and Justice Draft Reports
on H.R. 3321, a bill to codify the provisions
of Title 8 of the USC Relating to the
Immigration and Naturalization Laws
Counsel's Office has reviewed the above-referenced draft reports
and finds no objection to them from a legal perspective.
ID #.
CU
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
0 . OUTGOING
H INTERNAL
I . INCOMING
Date Correspondence
Received (YY/MM/DD)
/
/
Name of Correspondent:
James mun
MI Mail Report
User Codes: (A)
(B)
(C)
Subject: DOS + DOJ graft reparts on H.R. 3321,
a bell to codify the procusions of
Title 8 of the USC relating to the
immigration d naturalization laws
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
of
Date
Office/Agency
(Staff Name)
Code
YY/MM/DD
Response
Code
YY/MM/DD
CUHOLL
ORIGINATOR 86,02,12
/ /
Referral Note:
CUAT 18
R
86,02,12
$ 86,021
Referral Note:
/ /
/ /
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 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
STATE THAT WHITED
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
SPECIAL
February 11, 1986
SPECIAL
LEGISLATIVE REFERRAL MEMORANDUM
TO:
Department of Justice
Department of State
Department of Health & Human Services
Department of Transportation
Central Intelligence Agency
Department of Education
Department of Agriculture
Department of Labor
SUBJECT: Departments of State and Justice draft reports on H.R. 3321,
a bill to codify the provisions of Title 8 of the USC relating
to the immigration and naturalization laws.
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 February 21, 1986.
Direct your questions to Branden Blum (395-3454), the legislative
attorney in this office.
James UC/M C. Murr for
Assistant Director for
Legislative Reference
Enclosure
CC: John Cooney
Jim Barie
Russ Neely
Fred Fielding
Tara Treacy
Sarah Brentlinger
United States Department of State
Washington, D.C. 20520
DRAFT
Dear Mr. Chairman:
The Secretary has asked me to reply to your letter of October
1, 1985, concerning H.R. 3321, "A bill to revise, codify and enact
without substantive change certain general and permanent laws,
related to aliens and nationality, as Title 8, United States Code,
'Aliens and Nationality'*
The Department understands that this bill represents another
step in a longstanding project by the Office of the Law Revision
Counsel of the House of Representatives to revise, codify and
enact into positive law each title of the United States Code. The
Department, of course, perceives no objection to such enactments.
There are, however, certain aspects of H.R. 3321 which the
Department finds troubling.
As the Committee is aware, there has existed for many years
an informal codification of the Immigration and Nationality Act
and other related laws which is in current use in legal
proceedings and other legal documents arising under the applicable
laws. As an example, section 101 of the INA is informally
codified as 8 U.S.C. 1101; section 212(a) of the INA as 8 U.S.C.
1182(a). In view of the long existence of this informal
codification and its wide currency and extensive use, the
Department questions the desirability of radically altering it at
this time. The Department believes that the interests of all who
work with the INA, both within the government and in the private
sector, will be served if the formal codification preserved the
structure of the informal codification.
Also, the Department is concerned about the changes in
grammar, style and English usage which appear throughout the
codification. The stated purpose of such changes is to substitute
simple current language for awkward and obsolete terms. The
Department agrees that simplicity of usage is desirable, but
believes that in a curious way the effort to achieve such
simplicity may, in this case, complicate matters. It is the
The Honorable,
Peter W. Rodino, Jr., Chairman,
Committee on the Judiciary,
House of Representatives
- 2 -
Department's observation that it is not so much the words of the
INA which are confusing to the outside observer, but rather the
meaning which has been ascribed to them by various courts. It is
not uncommon that the courts will ascribe to certain words in the
INA a meaning substantially different than the one which an
outside observer would ascribe to them without the benefit of
legal research. To the extent that this is so, the grammatical
and stylistic changes proposed in H.R. 3321 will add to, rather
than dispel, existing confusion. If these proposed changes are
enacted, they will not have the effect of making any substantive
change in law, according to information provided by the Office of
the Law Revision Counsel. Taking this to be the case, the outside
observer seeking to find the substantive meaning of the new words
will have to, first, find the old words which have been replaced
and then determine what meaning courts had ascribed to the old
words, in order to achieve an understanding of the meaning of the
new words. It does not appear to the Department that such a
result will facilitate the orderly administration of the law or
serve to enlighten the public as to the meaning and import of the
law.
Finally, there are a number of specific proposed changes
which the Department finds troubling in varying degrees. First,
in H.R. 3321 the definitions of "world communism" (current section
101(a)(4)) and of "advocating" (current section 101 (e) ) are
eliminated. This results in the repetition of the substance of
these definitions in the text of proposed new section 8 U.S.C.
1308 on several occasions. The Department does not believe that
the clarity of the statute is improved by eliminating a definition
if its elimination necessitates the repetition of the substance of
the definition several times elsewhere in the statute.
Second, in proposed Code section 101 (a) (6) (B) (ii) which would
replace current section 101 (b) (1) (F), the word "emigration" is
replaced by the word "immigration." The Department believes that
these two words are not, and cannot by any standard of usage, be
said to be synonymous and questions whether, in spite of the Law
Revision Counsel's disclaimer, it can properly be said that the
substitution is one having no substantive import.
The Department also notes what appears clearly to be a change
of substantive import in proposed Code section 125, which defines
"naturalization" and would replace current section 101 (a) (23).
Section 101 (a) (23) defines "naturalization" as "the conferring of
nationality of a state upon a person after birth, by any means
whatsoever." Proposed Codes section 125 would define
naturalization as the "conferring of citizenship of the United
States on an individual after birth under chapter 33 of this
title." There is, thus, excluded from the statutory definition of
"naturalization" the conferral of nationality by any state other
- 3 -
than the United States. The Department notes that proposed Code
section 3501 (C) provides for loss of United States nationality
"through the naturalization of a parent having legal custody.'
Applying the proposed definition of "naturalization" would be
inconsistent with this provision, which applies to naturalization
of the parent in a foreign country. The Department finds it
impossible to accept the assertion that no substantive change has
been effected thereby.
Current sections (a) (16) and (26) define the terms
"nonimmigrant visa" and "immigrant visa", respectively. These two
sections would be replaced by proposed Code section 142. The
definition of "immigrant visa" currently contains the requirement
that the visa have been issued by a consular officer at his office
outside the United States. No such language appears in proposed
Code section 142. On the other hand, proposed Code section 1503
contains language to perpetuate this requirement. While no
substantive change has thus been effected, the Department cannot
perceive what benefit is to be derived from removing this language
from the definition, where it has existed for more than thirty
years, and inserting it in this far-removed section.
Section 201 (b) of the INA defines "immediate relatives" and
provides that "The immediate relatives specified in this
subsection who are otherwise qualified for admission as immigrants
shall be admitted as such, without regard to the numerical
limitations in this Act." Proposed Code 1111, which would replace
section 201 (b), says merely that "The numerical limitations of
this subchapter do not apply to the immediate relative of a
citizen of the United States or The Department has always
interpreted the current text of section 201 (b) as indicating a
specific Congressional intent to require immediate relatives to be
processed as such, in order to prevent them from using an
immigrant visa number under the annual limitation, even if also
qualified as preference immigrants, to the prejudice of immigrants
able to qualify only for preference status under the annual
numerical limitation. It does not appear to the Department that
such an interpretation of proposed Code section 1111 could be
sustained and the Committee should consider whether it wishes to
perpetuate the existing statutory interpretation.
Current section 203(a)(8) of the INA specifies that the
spouse or child of an immigrant shall be entitled to the same
immigrant status and order of consideration if not otherwise
entitled to an immigrant status and the immediate issuance of a
visa. Proposed Code section 1113, which would replace section
203 (a) (8), does not include the language concerning the immediate
issuance of a visa. An alien can be entitled to an immigrant
classification, either as a preference or nonpreference immigrant,
and not be entitled to the immediate issuance of an immigrant visa
- 4 -
because the immigrant classification to which the alien is
entitled is heavily oversubscribed. Thus, in order to give full
effect to the intent of section 203 (a) (8), which the Department
considers to be preventing the separation of families, it is
necessary to incorporate both concepts and not simply the one. It
seems that this may be a case of unintentional substantive change
resulting from an insufficient understanding of the technical
aspects of the law.
Current section 301(d), 301 (e), 301(g), and 309(c) of the INA
provide for acquisition of United States nationality at birth by
persons born abroad whose citizen parent was "physically present"
in the U.S. for specified periods. The drafters of the INA
intentionally used that term to avoid confusion arising from use
of the term "residence" in previous legislation. Proposed Code
sections (1) (B), 3104(a)(1)(c), and 3502(a)(2) eliminate
the adverb "physically." This is a substantive change which could
lead to a new judically-imposed concept of constructive presence,
expanding the application of the section to persons not eligible
for U.S. citizenship at birth.
Current section 349 (a) (4) (A) of the INA provides for loss of
United States nationality by foreign government employment if the
person "has or acquires" the nationality of the foreign state.
Proposed Code section 3501(4)(A) would provide for loss of
citizenship only by a person who "becomes" a national of the
foreign state. This is a substantive change which would cease to
provide for loss of nationality by a person who had already
acquired the foreign nationality before accepting foreign
government employment.
The language of the second sentence of proposed Code Section
1114(a) (1) establishes the numerical limitation (now contained in
section 202 (c) of the INA) on immigration by natives of dependent
areas. Section 202 (c) specifies that immigration under the
numerical limitation system by natives of a dependent area may not
exceed 600 per year. Proposed Code section 1114(a) (1) simply
states that only 600 of the 20,000 limit for the governing country
are chargeable to the dependent area. This is one of a number of
instances in which the existing prescriptive language of the
statute is replaced by language which is declarative in
character. While the Department again recognizes the Law Revision
Counsel's assertion that changes in language in codification bills
do not produce changes in substance, we are concerned that, here
as in a number of other cases, such a change may, in fact, be
taken to represent a substantive change from a specific directive
by the Congress to the administrators of the statute to a simple
statement which does not have the same substantive import.
Proposed Code section 1305(a)(7), which would replace section
212(a)(10) of the INA, omits the words "actually imposed" which
now appear in section (a) (10). These words form the basis for
the current interpretation under which the portion of a sentence
- 5 -
to confinement which is suspended or not served because the
convict was paroled is not counted in determining whether or not
the alien is ineligible under this section. Again, we are
concerned that the omission of these words could have the effect
of eliminating this interpretation, in spite of the Law Revision
Counsel's disclaimer.
Proposed Code section 1305 (b) would replace section 212 (h) of
the INA, which provides for a waiver of certain grounds of
ineligibility for certain classes of immigrants. In drafting the
text of this provision, the drafter included proposed Code section
1305 (a) (9) as a ground of ineligibility which could be waived
provided that the ineligibility arose solely from a single offense
of simple possession of not more than 30 grams of marihuana.
Proposed Code section 1305 (a) (9) would replace that portion of
section 212 (a) (23) of the INA which renders ineligible an alien
under whom the consular officer knows or has reason to believe is,
or has been, an illicit trafficker in narcotics. The Department
cannot imagine how a single offense of simple possession of such a
small amount of marihuana could give reason to believe that the
offender was a trafficker. Moreover, the Department strongly
opposes allowing a trafficker to benefit from a waiver provision
in any event. The Department urges that the reference to section
1305 (a) (9) be stricken from section 1305 (b).
Proposed Code section 1315 (a) is an attempt to revise current
section 212 (d) (3) of the INA, which provides authority for a
waiver of ineligibility to permit the temporary admission as a
nonimmigrant of an ineligible alien. Current section 212 (d) (3)
states simply that such authority may be exercised except in the
case of an alien ineligible under sections 212 (a) (27), (29) or
(33). In redrafting this section, the drafter undertook to
reverse the text and to specify which grounds of ineligibility
could be waived rather than to specify merely that any or all
grounds could be waived except the three specifically identified.
This effort has produced an anomalous result in that the text now
specifies that a nonimmigrant alien may be granted a waiver of
some grounds which do not even apply to nonimmigrants because by
their very terms they apply only to immigrants. Consideration
should be given to restoring the original text which would avoid
such a result.
Proposed Code section 1541 (c) which incorporates among other
things current section 221 (b) relating to the requirement that
nonimmigrant aliens be fingerprinted reflects a substantial
misunderstanding on the part of the drafter. It appears that the
drafter believes that a diplomatic visa and a visa issued to an
alien seeking admission as a foreign government official or
international organization representative or employee are the
same. This is not the case. A diplomatic visa is a nonimmigrant
- 6 -
visa bearing the superscription "DIPLOMATIC". Such a visa may be
of any nonimmigrant classification, including, for example,
visitor for pleasure. The superscription is placed on the visa if
the alien occupies certain official positions in a foreign
government and is the bearer of a diplomatic passport or its
equivalent. An alien may be issued a visa as a foreign government
official or international organization representative or employee
(current sections 101 (a) (15) (A) or (G) of the INA; proposed Code
sections 127 (1) - (9) ) only if the alien is seeking to enter the
United States for the specific purpose of acting in such capacity
after entry. Consideration should be given to rectifying the
results of this apparent misunderstanding.
Proposed Code section 1541 (d) also represents an apparent
misunderstanding. Current section 203 (e) of the INA authorizes
the Secretary of State to make estimates of anticipated immigrant
visa issuance and to rely upon those estimates in authorizing visa
issuance under the numerical limitations on immigration. From
this provision, the Department has derived the authority to
establish and maintain immigrant visa waiting lists. In 1976 the
Congress added to section 203 (e) a provision for termination of an
intending immigrant's registration on an immigrant visa waiting
list if the alien failed to pursue the application within a
specified time period. In making this amendment, the Congress
used the word "registration" which did not appear previously in
this section of law, but which appears in Departmental visa
regulations and had become a commonly-used term in this context.
The term "alien registration" had long been in common use,
deriving from sections 261 through 265 of the INA, and had a
different meaning altogether. The drafter of H.R. 3321 apparently
saw the word "registration" in section 203 (e), took it to have the
same meaning or import as in sections 261 through 265 and placed
the two entirely distinct concepts in a single section. This has
the effect of not only incorporating two entirely distinct
concepts in a single section, but also of separating the provision
for termination of registration of an intending immigrant from
that provision of law with which logic would most properly
associate it. Consideration should be given to rectifying this
apparent misunderstanding:
Finally, the Department wonders whether it is timely to
proceed with enactment of H.R. 3321 at this time in light of the
substantial changes to United States immigration law which are
currently under consideration by the Congress in S. 1200 and H.R.
3810.
- 7 -
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,
James W. Dyer
Acting Assistant Secretary
Legislative and Intergovernmental Affairs
U.S. Department of Justice
Office of Legislative and Intergovernmental Affairs
Office of the Assistant Attorney General
Washington, D.C. 20530
DRAFT
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 that we review the pro-
visions of H.R. 3321, a bill to revise, codify, and enact without
substantive change certain general and permanent laws relating to
aliens and nationality, as Title 8, United States Code, "Aliens
and Nationality." While the purpose of H.R. 3321 is to codify
certain provisions of Title 8, in effect the bill proposes sub-
stantive changes. We are concerned that the substantive revisions
that are contained in H.R. 3321 will fundamentally alter Title 8.
While the purpose of H.R. 3321 is merely to codify certain provis-
ions of Title 8, in effect H.R. 3321 would make substantive chang-
es in Title 8.
Section 108. Border Crossing identification card
The revised language in subsection 2 which reads "an alien
residing in foreign contiguous territory" is substantively differ-
ent that the existing language which reads "an alien who is a res-
ident in a foreign contiguous territory." In the revised language
the word "residing" has a different legal connotation than the
word "resident". The purpose of the existing language is to fac-
ilitate the entry of Canadians and Mexican nationals. The revised
language would also permit entry to aliens of other countries who
are temporarily "residing" in Mexico and Canada, a substantive
change with which we disagree.
Section 109. Child
The definition of the word "child" has been the subject of
unending litigation, and any "technical" changes to its definition
will undoubtedly cause further litigation.
-2-
In subsection (6) (B) (ii), the word "emigration" should be
"immigration."
Section 113. Entry
The words "of an alien" should be inserted after the word
"coming" in line 11. In line 13, the words "having a lawful
permanent residence" should be inserted in place of the revised
language which states "an alien lawfully admitted for permanent
residence." An alien who may have been admitted for permanent
residence may, upon seeking readmission, no longer have a "lawful
permanent residence."
Section 116. Good moral character
In subsection (1) (F), the words "aggregate period" have been
omitted without an explanation. In our view this is a substantive
change because it is unclear in the revised language whether the
number of days served in a penal institute can be aggregated to
establish the 180 days period to preclude a finding of good moral
character. See Ruiz V. INS, 410 F.2d 382 (6th Cir. 1969).
Section 127. Nonimmigrant
Preliminarily, we should note that many of the changes in this
provision parallel the language found in the Proposed Revision of
the Immigration and Nationality Act, the April 30, 1981, staff
report of the Select Commission on Immigration and Refugee Policy
(SCIRP). The SCIRP report, in proposing to revise the nonimmigrant
classification, stated:
The concept of a nonimmigrant is established in a
positive context so that it is freed of the
subjectivity, instinct, or sixth sense of the
adjudicating officer. The requirement that a
nonimmigrant have a residence in a foreign country
which he has no intention of abandoning is dropped.
Instead not only such residence, but employment and
family ties abroad are also taken into account in
determining whether an alien qualifies for
classification as a nonimmigrant.
It is clear that while the revised section 127 ostensibly
restates words in "simple language," its overall effect is to
substantively change the statutory language.
In clauses (15), (17), and (18), the words "bona fide" are
omitted. The Report characterizes these words as "surplus." In
our view the omission creates substantive changes. The words "bona
fide" are terms of art. Within the context of immigration law, the
words impose an evidentiary requirement upon an alien, such as a
"bona fide student."
-3-
In clauses (10), (17), (18), (19) the words "having a residence
in a foreign country which he has no intention of abandoning," have
been restated as "having a residence in a foreign country that the
alien intends to maintain." While the restated language "reads
better" we think that it creates a substantive change. The word
"abandon" has a different legal connotation than the word
"maintain." An alien who wishes to enter the United States as a
"nonimmigrant" must prove that he has no intention of "abandoning"
his residence, and not that he intends to maintain his residence in
his home country.
Clause (12) restates the definition of "crewmember." The words
"serving in good faith" have been replaced with the words "serving
in any capacity." The restated language eliminates the "good
faith" requirement thereby creating a substantive change. These
words should be restored in the restated provision.
Clause (16) (A) restates the requirement for obtaining a fiancee
visa. However, while the current section specifically states that
the alien must "conclude a valid marriage," the restatement simply
states "only to marry." It is unclear whether in fact the marriage
must be a legally valid one. In our view the interpretation of
this restatement can be a basis for litigation.
Clause 17 (a) eliminates the requirement that the student be
"qualified to pursue a full course of study." This requirement
cannot be implied from the restated provision. The omission of this
language arguably creates a substantive change.
Section 131. Refugee
The revised language substitutes, without an explanation, the
words "is unable or unwilling to avail himself or herself of the
protection of, that country" for the words "enjoy the protection
of, that country." In our view this revision creates a major
substantive change because the meaning of the word "enjoy" is so
nebulous that it inevitably will be subject to conflicting judicial
interpretations. The current language conforms to the United
Nation's Convention and Protocol Relating to the Status of Refugees
and should be retained.
Section 132. Residence
The words "in fact" should be restored in the definition SO as
to remove any ambiguities. See, Chan Wing Cheung V. Hamilton, 298
F.2d 650 (1st Cir. 1962).
Section 135. Spouse, wife, and husband
The current and only statutory definition of the terms
"spouse," "wife," or "husband" is a negative one excluding a
"marriage ceremony where the contracting parties thereto are not
-4-
physically present in the presence of each other, unless the
marriage shall have been consummated." The revised language
contains an affirmative definition that requires "a marriage
ceremony during which both parties were not present only if the
parties consummated the marriage."
In our view, the omission of the word "physically" is clearly a
substantive change because legally one can be present somewhere
without a physical presence. We recommend that the word
"physically" be included in the restatement.
301. General authority of the Attorney General
In subsection (a) (1), the words "carry out" are substituted for
"the administration and enforcement of" to eliminate unnecessary
words. In our view these words should not be substituted because
this language has been cited in court litigation to emphasize the
role of the Attorney General in "enforcing" immigration laws. See
Narenji V. Civiletti, 617 F.2d 745 (D.C. Cir. 1979), cert. denied
446 U.S. 957. See also revised section 306 (a) (3) where the word
"enforcement" has not been replaced with the words "carry out."
In subsection (a) (2), the words "boundaries" and "control" have
been omitted as surplus. In our view the change is substantive.
"Control" is not necessarily mere surplus to "guard." The word
"border" may only refer to the "continental border" as opposed to
the United States boundaries in Hawaii or the U.S. Virgin Islands.
We recommend that the original language be restored.
In subsection (b) (1), the Attorney General's authority to
"prescribe forms of bonds" has been omitted as "unnecessary words."
In our view the omission arguably creates substantive changes. It
is questionable whether the Attorney General can "prescribe forms
of bonds" absent Congressional authorization. The words should be
restored in this subsection and wherever they may have been
omitted. See for example revised sections 1101 (a), 1712 (b), and
2124.
In subsection (b) (2), the words "other independent
establishment" should be restored, as not all "independent
establishments" may qualify as an "agency" under the definition set
forth at section 105.
In subsection (b) (3), the word "consent" has been substituted
for the word "concurrence." In our view, the word "concurrence"
should be restored, because both the Secretary of State and the
Attorney General "concur" on a decision. To state otherwise would
diminish the Attorney General's authority on this particular
matter.
In subsection (d), it is unclear as to the scope of the
jurisdiction of the "Attorney General's decision on a question of
law related to immigration and naturalization
In the current
-5-
law at 8 U.S.C. 1103, it is clear that the Attorney General's
decision effects the Secretary of State, the officers of the
Department of State, or diplomatic or consular officers.
Section 303. Searches and arrests
In subsection (a) (1), the word "question" has been substituted
for the word "interrogation." The report makes this change for
consistency with other titles of the United States Code. However,
within the context of immigration law, the word "interrogation"
connotes a "detentive situation," and immigration officers have the
authority to "interrogate" aliens to the fullest extent permissible
under the Fourth Amendment. See Zepeda V. United States, INS, 753
F.2d 719, 725-726 (9th Cir. 1985) (as amended) for the interpretation
of the word "interrogation." Therefore, we recommend that word
"interrogation" be restored in this section and in any other section
where it may have been omitted.
In subsection (a) (2), the words "railway car, ...conveyance"
should be restored to remove any ambiguities which may arise with
the legal definition of the word "vehicle".
In subsection (b), it appears that, to execute a warrant or
other process, the Attorney General must promulgate regulations.
This requirement is not found under the current law, and its
imposition would create a substantive change. Accordingly, we
recommend that the added requirement be deleted.
Section 304. Oaths and testimony
The restatement omits the words "special inquiry officers"
because "the definition of an immigration officer includes a
special inquiry officer." However, "special inquiry officers"
otherwise known as "immigration judges" are a special, distinct
class of immigration officers. They are not employees of the INS,
but employees of the Executive Office for Immigration Review. See
48 FR 8039 (Feb. 25, 1983). Therefore, for purposes of clarity and
consistency, we recommend that the words "special inquiry officers"
be restored in this section and in any other section where they may
have been omitted.
Section 305. Local jurisdiction over immigrant stations
The restated section is much broader than the current law.
Under current law, state or local officers have the right to enter
an immigrant station to "preserve the peace and make arrests for
crimes under the laws of the State." Under the restated version,
these officers may enter the station to enforce any laws of the
State. We think the restated version is too broad.
-6-
Section 331. General authority of the Secretary of State
Whether or not the restated language creates substantive
changes is a question on which the Department of Justice defers to
the Department of State.
Section 332. Bureau of consular affairs
See our comment to Section 331.
Section 1301. Documentary requirements and entering by fraud
The word "expire" is used in reference to the required docu-
mentation in lieu of the word "valid" used in existing provisions
such as section 1182 (e) (26). Validity does not depend only upon
the issue of expiration. In our view the word "valid" should be
retained.
In subsection (b) (1) (A), the words "valid immigrant visa,
reentry permit, border crossing identification card or other
valid
have been omitted as surplus. In our view these words
define "entry document" and to that extent they should not be
omitted.
Section 1302. Exclusion of aliens with physical or mental
impairments
In subsection (a) (3), the restated language seems to exclude
aliens who have had one attack of insanity, but not those with two
or more attacks. While the latter may be implied, the current
provision explicitly states that aliens who have had one or more
attacks of insanity are excludable. These comments also apply to
subsection (b) (3).
Section 1305. Exclusion of immoral and criminal aliens
In subsection (a) (8) (B), the words "compounding
sole
giving
away" are omitted as surplus. In our view this creates a clear
loophole under the plain meaning of the current section
1182 (a) (23).
Section 1308. Exclusion of aliens associated with undemocratic
ideals
The caption of this proposed section is inaccurate and
misleading. While the new section restates the grounds for
exclusion set forth in existing language sections 1182 (a) (27), (28)
and (29), all of which trace their origin to section 22 of the
Internal Security Act of 1950, much of the revised section 1308 has
-7-
nothing to do with ideals, undemocratic or otherwise. We note that
the SCIRP recommends that present paragraphs (28) and (29) be
consolidated under the caption of "Espionage/Sabotage/Criminal
Activities," and that paragraph (27) be captioned as "Foreign
Policy." Accordingly, the Department of Justice recommends that
the caption to revised section 1308 be changed to reflect the true
nature of those grounds of exclusion.
In subsection (2), the word "affiliated" has been omitted
whenever it occurs. In our view the omission creates a substantive
change.
Section 1309. Exclusion of aliens with Nazi government
associations
The word "assisted" is omitted as surplus. In our view the
word is not "surplus," and should not be omitted.
Section 1314. Admission of aliens in the public or security
interest
This provision is currently found under Title 50 of the United
States Code. Absent a contrary congressional indication, there is
no reason why the provision should be transferred to Title 8.
We note that in subsection (b) (1), the words "Commissioner of
Immigration and Naturalization" have been omitted. However, in
section 7 of the Act of June 20, 1949, 63 Stat. 212, the decision
to admit a particular alien is made by the Director of the CIA, the
Attorney General, and the INS Commissioner. In our view the
restated language in omitting the words "Commissioner of
Immigration and Naturalization" creates a substantive change. See
Conference Report on H.R. 2419, Intelligence Authorization Act for
Fiscal Year 1986, Section 601, where the Director of Central
Intelligence, the Attorney General, and the Commissioner of
Immigration, have been delegated the authority to jointly act on
certain immigration matters.
Section 1315. Temporary admission and parole of aliens
In subsection (a) (3), the mandate of the Attorney General
should be restored to that provided in the existing language of
section 1182 (d) (b), to include the specific power to "exact bonds"
in controlling and regulating the admission and return of aliens.
See our comments to revised section 301 (b) (1).
Section 1501. Petitions for preference and immediate relative
classification
In subsection (g), the first sentence should refer to
revocation of "approval" of a petition, not merely revocation of a
"petition."
-8-
Section 1503. Granting immigrant visas
Throughout this section, the word "qualified" is substituted
for "eligible" for clarity. In our view, the word "qualified"
implies more than being "eligible". Not all "eligible" aliens may
"qualify" for a particular visa. Accordingly, the word "qualified"
should be retained in this section and in any other section where
it may have been changed. But see revised section 1551 where under
similar circumstances the word "eligible" has been retained.
Section 1708. Inspecting arriving aliens
In subsection (a) (1), the word "shall" should be substituted
for the word "may," because under current law all aliens "shall be
inspected."
Section 1710. Aliens associated with undemocratic ideals
See our comments to section 1308.
Section 2104. Deportation of aliens associated with undemocratic
ideals
See our comments to section 1308.
Section 2122. Arrest, detention, and release of aliens during
deportation proceedings
In subsection (b), the law is restated to create a substantive
change. The current law reads in pertinent part; "upon a
conclusive showing in habeas corpus proceedings that the Attorney
General is not proceeding with such reasonable dispatch as may be
warranted by the particular facts and circumstances in the case of
any alien to determine deportability." (emphasis added) The
revised section states "if conclusively shown that the Attorney
General is not proceeding reasonably quickly to decide if the alien
is deportable." (emphasis added) In our view, the restated
provision creates substantive changes, because "quickness" is not
the only determinative factor in the current law.
Section 2124. Detention, release, and deportation of aliens
ordered deported
In subsection (c), the words "reasonably quickly" should be
restored to provisions more accurately reflecting a totality of
circumstances approach. See our comments to section 2122 (b).
-9-
Section 2126. Countries to which the Attorney General may deport
aliens
In subsection (a) (2) (A), the word "participated" is substituted
for the words "ordered, incited, assisted, or otherwise
participated" in persecution. The issue of the degree of
involvement sufficient to trigger ineligibility remains open, and
it appears that the language "participated" may be construed as
disqualifying a more narrow group of aliens than the present
statutory language. For these reasons, the original language
should be restored. See revised section 131 (2) where the identical
language has remained intact.
In subsection (e) (2) (B), the restatement adds the requirement
that the Attorney General "decide" the alien is dangerous to the
community after conviction of a particularly serious crime. The
present statutory language suggests no need for a separate decision
concerning "seriousness" once the existence and serious nature of
the collateral conviction is established.
Section 2128. Suspension of deportation
In subsection (a) (1) (B) and (a) (2) (B), the word "physical" is
omitted from the words "continuous physical presence." In light of
the past and continuing litigation over the "presence" requirement,
the modifier "physical" cannot be deemed mere surplus. The word
"physical" cannot be eliminated absent a substantive change.
In subsection 2128 (d), it should be noted that the Supreme
Court in INS V. Chada, 103 S. Ct. 2769 (1983) found this particular
Congressional veto provision to be unconstitutional.
Section 3302. Eligibility requirements
The modifier "physical" omitted in subsection (b) (8) should be
restored. See our comments to section 2138.
Section 3304. Residence and presence of individuals married to
citizen of the United States
In subsection (b) (i) (F) and (G), the word "bona fide" has been
omitted, and in subsection (b) (3), the word "good faith" has been
omitted. In our view, for the reasons stated in our comments to
revised section 127, these phrases should be restored.
Section 3331. Individuals associated with undemocratic ideals
See our comments to revised section 1308.
-10-
Section 5101. Passports
Whether subsection (c) creates substantive changes is a
question on which the Department of Justice defers to the views of
the Department of State. We do think, however, that the definition
contained in clause (1) is an unwarranted and unacceptable
expansion of the existing provision of 22 U.S.C. 211 (a). To
specify, as the existing statute does, that a passport may restrict
travel or use does not authorize the creation by implication of the
additional statutory language contained in clause (1).
Section 6106. Asylum
The modifier "physically" now appearing in 8 U.S.C. 1158 (a)
should be restored in describing those aliens "present" and
eligible to apply for asylum.
Section 6 of H.R. 3321 sets forth the repeals of various
statutes to be superseded by the codification. This, too, is under
the mandate that the restatement must work no substantive change in
existing law. However, page 94 of the bill indicates that the
Cuban Adjustment Act (Pub. L. No. 89-732, November 2, 1966) is
among the statutes to be repealed. This is an error. The Cuban
Adjustment Act (presently set forth at 8 U.S.C. 1255 note) remains
valid, contains no expiration date or other limitation, and
continues to be implemented and provide a special means for the
disbursement of immigration benefits. H.R. 3321 must be modified
to strike the indicated "repeal" and to make appropriate changes
within the operative provisions of the bill concerning adjustment
of status and limitation on immigration (e.g., new sections 1112
and 2141).
The Department of Justice anticipates that there may well be
other changes in H.R. 3321 which may arguably be substantive in
nature. We would recommend that the Office of the Law Revision
Counsel compile a side-by-side comparison of the existing laws with
the revised language. This would facilitate a more thorough review
by the Department of Justice and other affected agencies.
Finally, we are concerned that the codification will alter
radically the current numbering system of the Immigration and
Nationality Act. INS has relied on this numbering system to
publish regulations, 8 C.F.R. 101 et seq., Operating Instructions,
and other administrative manuals. Moreover, there are approxi-
mately 1,000 immigration forms, 100 of which are for public use.
These forms also use the same numbering system. We estimate that
simply to reprint the Operations Instruction will cost INS
$646,000. We must also note that the changes in the numbering
system will certainly be disruptive in the legal community. There-
fore, the Department of Justice, would urge that any formal codifi-
cation of the immigration laws preserve the existing numbering
system to the maximum extent possible.
-11-
Since both Houses of Congress are considering major immigration
reform legislation, it may be preferable to defer codification
proposals until the ultimate fate of the legislation is determined.
The Office of Management and Budget has advised this Department
that there is no objection to the submission of this report from
the standpoint of the Administration's program.
Sincerely,
John R. Bolton
Assistant Attorney General
THE WHITE HOUSE
WASHINGTON
October 30, 1985
MEMORANDUM FOR BRANDEN BLUM
LEGISLATIVE ATTORNEY
OFFICE OF MANAGEMENT AND BUDGET
FROM:
ASSOCIATE COUNSEL JJR THE PRESIDENT
JOHN G. ROBERTS
SUBJECT:
Draft DOJ Report on H.R. 3080, the
Immigration Control and Legalization
Amendments Act of 1985
Counsel's Office has reviewed the above-referenced report,
and finds no objection to it from a legal perspective. On
page 12, line 10, "employers" should be "employees."
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5/81
THE WHITE HOUSE
WASHINGTON
August 28, 1985
MEMORANDUM FOR BRANDEN BLUM
LEGISLATIVE ATTORNEY
OFFICE OF MANAGEMENT AND BUDGET
FROM:
ASSOCIATE COUNSEL JR TO THE PRESIDENT
JOHN G. ROBERTS
SUBJECT:
DOJ Draft Report on S. 196, a Bill to
Amend the Immigration and Nationality Act
Concerning Barring Certain Aliens from
Admission into the United States
Counsel's Office has reviewed the above-referenced draft
report, and finds no objection to it from a legal
perspective.
332838
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5/81
STATE THE UNITED STATE
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF management AND BUDGET
WASHINGTON, D.C. 20503
332838
July 15, 1985
LEGISLATIVE REFERRAL MEMORANDUM
TO:
Department of State
Department of Health and Human Services
National Security Council
SUBJECT: DOJ draft report on S. 196, a bill to amend the Immigration
and Nationality Act concerning barring certain aliens from
admission into the United States
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
Tuesday, August 6, 1985.
Direct your questions to Branden Blum (395-3454), the legislative
attorney in this office.
James C. Murr for
Assistant Director for
Legislative Reference
CC: F. Fielding
T. Treacy
S. Brentlinger
J. Cooney
S. Gates
U.S. Department of Justice
Office of Legislative and Intergovernmental Affairs
82-0120 - meb:am
Office of the Assistant Attorney General
Washington, D.C. 20530
DRAFT
Honorable Strom Thurmond
Chairman, Senate Judiciary Committee
United States Senate
Washington, D.C. 20510
Dear Mr. Chairman:
This is in response to your request for the views of the Depart-
ment of Justice on S.196, a bill to repeal section 212 (a) (4) of
the Immigration and Nationality Act, as amended. For the reasons
set forth below this Department recommends against enactment of
the legislation in its current form.
Section 212 (a) (4) of the Immigration and Nationality Act of 1952
provides that [a] liens afflicted with psychopathic personality,
or sexual deviation, or a mental defect" are ineligible to re-
ceive visas and are barred from admission into the United States.
The proposed bill would repeal that section and add a new section
212 (a) (4) which encompasses only: "aliens afflicted with a
mental disease or defect". While it is uncertain from this
language exactly which aliens are included in the new category,
we assume that one of the bill's primary purposes is to remove
homosexual aliens from coverage under the present section
212 (a) (4).
Although the current section 212 (a) (4) does not contain a
specific reference to homosexual aliens, the legislative history
of that section clearly shows that Congress intended it to
include homosexual aliens. The Conference Report to the 1952
Immigration and Nationality Act shows that Congress adopted the
Public Health Service view that homosexuality was a form of
sexual perversion. This Congressional interpretation currently
provides the basis for the exclusion of homosexual aliens under
212 (a) (4), even though in 1979 the Public Health Service refused
to certify homosexual aliens as having a "mental disease or
defect".
The Department of Justice supports legislation to eliminate
homosexuality as a ground for exclusion. However, merely
changing section 212 (a) (4) to encompass aliens with a "mental
disease or defect," without explicitly defining that phrase,
would not accomplish that goal. It is necessary to provide some
clear indication that Congress does not now consider homosexual
aliens to have a "mental defect."
- 2 -
The Department of Justice recommends adoption of medical termi-
nology proposed by the Public Health Service instead of the
used in section 212(a) (4) or in the proposed bill. Those
aliens excludable under the Public Health Service proposal include
"aliens with an antisocial personality disorder or a paraphilia
condition." The Public Health Service states that these terms are
the proper psychiatric diagnostic classifications currently in
use, and are medically defined 80 as not to include homosexuality.
This language replaces the term "psychopathic personality" and
"sexual deviation" contained in section 212(a)(4). The term
"mental defect" is not used.
The Office of Management and Budget has advised this Department
that there is no objection to the submission of this report from
the standpoint of the Administration's programs.
Sincerely,
Phillip D. Brady
Acting Assistant Attorney General
THE WHITE HOUSE
WASHINGTON
August 28, 1985
MEMORANDUM FOR THE FILE
FROM:
JOHN G. ROBERTS
ASSOCIATE COUNSEL TO THE PRESIDENT
SUBJECT:
Correspondence Regarding Deportation
Proceedings Against Karl Linnas, a
Citizen of Estonia
No action is appropriate in response to Juhan Simonson's
letter to the President urging action to prevent the
deportation of Karl Linnas by the Justice Department Office
of Special Investigations. The matter is a particular
matter pending before the courts, and the views of the
Government are being presented in the course of litigation
by the Department of Justice. In the course of related
litigation (the Fedorenko case), the Department of State
determined that deportation of a citizen of one of the
Baltic states to the Soviet Union would not contravene the
U.S. Government non-recognition policy. Mr. Simonson's
organization is already aware of these facts.
ID# 291921
THE WHITE HOUSE
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NAME OF CORRESPONDENT: MR. JUHAN SIMONSON
SUBJECT: WRITES REGARDING DEPORTATION PROCEEDINGS
AGAINST KARL LINNAS, A CITIZEN OF ESTONIA
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MANAGEMENT.
ESTONIAN AMERICAN NATIONAL COUNCIL
ESTONIAN HOUSE
243 EAST 34TH STREET
P.O. Box 266
New YORK, N.Y. 10016
TEL. (212) 685-0776
BOARD OF DIRECTORS
March 20, 1985
President
Juhan Simonson
Vice-Presidents
President Ronald W. Reagan
Vaike Lugus
The White House
Culture & Youth
K. Jaak Roosaare
1600 Pennsylvania Avenue, N.W.
Political Affairs
Washington, D.C.
Paul Saar
Secretary & Administration
Jüri Virkus
Re: Republic of Estonia
Treasurer & Organizations
U.S. Nonrecognition Policy
Assistant Treasurer
Endel Reinpold
Deportation Proceedings against Karl Linnas
Special Projects
Richard Espenbaum
Hillevi Ober
Dear Mr. President:
Sven Paul
Avo Piirisild
Martin J. Sunberg
We are compelled to bring to your urgent attention
Mari-Ann Rikken
the deportation proceedings against Karl Linnas, a
Baltic Affairs
citizen of. the Republic of Estonia, for the reason that
REGIONAL DIRECTORS
the outcome may have a serious negative impact on the
Delmarve
Fred Ise
long-standing foreign policy of the United States to
Southwest
not recognize the forcible and illegal incorporation of
Heino Jōgis
Estonia, Latvia, and Lithuania into the U.S.S.R.
Mid-Central
Gilda-Mall Karu
Northwest
Mr. Linnas has been found deportable on the basis
Eino Moks
of evidence provided by the Soviet K.G.B. The Soviet
South-Central
Ilmar Pleer
Union alone has agreed to accept Mr. Linnas into its
North-Central
territory. However, it must be pointed out that Karl
Olaf Tammark
Linnas was condemned to death in absentia by a Soviet
COUNCILORS
Court in Estonia (with the verdict published prior to
Ylo Anson
Veljo Areng
the conclusion of the trial!) and the Soviets demanded
Anne-Liis Deklau
Lilian Esop
his extradition in 1961. The demand was denied by the
Mäido Kari
United States Government.
Virko Keder
Tiina-Ann Kirss
Alexander Koepp
Enn Koiva
Under the circumstances, the deportation of Karl
Mati Koiva
Linnas to the U.S.S.R. or Estonia would constitute
Jyri Kork
Bruno Laan
imposition of the death penalty for a violation of U.S.
Arno Liivak
Rein Luik
immigration law, reverse a U.S. Government decision not
Kersti Männik
Helle Merilo
to extradite Mr. Linnas to the U.S.S.R., and very
Herbert Michelson
seriously weaken the credibility of the U.S. nonrecognition
Endel Miido
Maimu Miido
policy.
Maano Milles
Harry Must
Heino Nurmberg
We urge you, Mr. President, to do whatever is in
Ants Pallop
Tonu Parming
your power to prevent Karl Linnas from being deported
Olaf Pikat
Karin L. Raus
to the Soviet Union and prevent a miscarriage of justice.
Juta Ristsoo
Uno Teemant
Harry Verder
Paul Vesterstein
Viktor Vinkman
Acting Secretary General
Jaan Tiivel
chan Simowon Juhan President Simonson
CC: Hon. George P. Shultz
The Estonian American National Council, founded in 1952, is a non-governmental, non-profit organization,
nationally elected to represent Americans of Estonian descent.
THE WHITE HOUSE
WASHINGTON
September 27, 1985
MEMORANDUM FOR BRANDEN BLUM
LEGISLATIVE ATTORNEY
OFFICE OF MANAGEMENT AND BUDGET
FROM:
ASSOCIATE COUNSEL 022 TO THE PRESIDENT
JOHN G. ROBERTS
SUBJECT:
DOL & DOA Testimony on H.R. 3080, the Foreign
Agricultural Workers Provisions Contained in
the Immigration Control and Legalization
Amendments Act of 1985
Counsel's Office has reviewed the above-referenced
testimonies, and finds no objection to them from a legal
perspective.
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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.
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5/81
THE WHITE HOUSE
WASHINGTON
September 16, 1985
MEMORANDUM FOR BRANDEN BLUM
LEGISLATIVE ATTORNEY
OFFICE OF MANAGEMENT AND BUDGET
FROM:
ASSOCIATE COUNSEL JJR TO THE PRESIDENT
JOHN G. ROBERTS
SUBJECT:
Draft EEOC Statement Discussing the Anti-
Discrimination Provisions Contained in
H.R. 3080, the Immigration Control and
Legalization Amendments Act of 1985
Counsel's Office has reviewed the above-referenced proposed
testimony. On pages 6-7 of this testimony, Chairman Thomas
states that the employer sanctions provision may result in
an increase in discrimination against documented individuals,
on the basis of national origin. Previous Justice testimony,
particularly that of Brad Reynolds, went to considerable
lengths to establish the opposite. This inconsistency
should be resolved. Perhaps paragraph (6) could be deleted,
or rephrased along the lines of "some have argued that," "
without the Chairman appearing to agree that discrimination
will increase.
ID #
CU
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
0 . OUTGOING
H . INTERNAL
I - INCOMING
Date Correspondence
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Subject: Draft EEOC statement discussing the anti-
discrimination provisions contained in H.R. 3080
the Immigration Control and Legalization
amendments act af- 1985
ROUTE TO:
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Action
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of
Date
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Code
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CUHALL
ORIGINATOR
85,09,13
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85,09,13
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S Suspended
D Draft Response
S For Signature
F Furnish Fact Sheet
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to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
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Code = "A"
Completion Date = Date of Outgoing
Comments:
Keep this worksheet attached to the original incoming letter.
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5/81
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
SPECIAL
WASHINGTON, D.C. 20503
THE
September 12, 1985
LEGISLATIVE REFERRAL MEMORANDUM
Department of Agriculture - Eric Mondres (447-7095)
TO:
Department of Health and Human Services - Frances White (245-7760)
Department of Justice - Jack Perkins (633-2113)
Department of State - Bill Farrah (632-0430)
Department of Education - JoAnne Durako (732-2670)
Department of Commerce - Mike Levitt (377-3151)
Department of the Treasury - - Carol Toth (566-8523)
National Security Council
Council of Economic Advisers
SUBJECT: Draft EEOC statement discussing the anti-discrimination provisions
contained in H.R. 3080, the Immigration Control and Legalization
Amendments Act of 1985
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
NOON MONDAY, SEPTEMBER 16, 1985.
(NOTE: Justice testimony for the this hearing, scheduled for 9/18/85, has
already been circulated.)
Direct your questions to Branden Blum (395-3454), the legislative
attorney in this office.
James C. Murr for
Assistant Director for
Legislative Reference
Enclosure
CC: F. Fielding
T. Treacy
S. Elliff
B. White
J. Cooney
S. Gates
P. Hanna
A. Hoffman
STATEMENT OF CLARENCE THOMAS, CHAIRMAN
1st
OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
FOR THE SUBCOMMITTEE ON IMMIGRATION, REFUGEES,
DRAFT
AND INTERNATIONAL LAW REGARDING H.R. 3080
TO AMEND THE IMMIGRATION AND NATIONALITY ACT
THANK YOU FOR INVITING ME, AS CHAIRMAN OF THE EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, TO COMMENT UPON THE ANTI-DISCRIMINA-
TION PROVISIONS CONTAINED IN H.R. 3080. THE LEGISLATION
PROPOSES TO AMEND THE IMMIGRATION AND NATIONALITY ACT TO
REVISE AND REFORM THE IMMIGRATION LAWS. H.R. 3080 ALSO
PROPOSES TO ENACT AN ALTERNATIVE ENFORCEMENT MECHANISM TO
INVESTIGATE AND PROSECUTE ANY RESULTING EMPLOYMENT RELATED
CHARGES OF DISCRIMINATION.
SIMILARLY, THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC)
IS CHARGED WITH THE ENFORCEMENT OF THE CIVIL RIGHTS STATUTES,
INCLUDING TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS
AMENDED, 42 U.S.C 2000e ET SEQ. TITLE VII PROHIBITS EMPLOY-
MENT DISCRIMINATION ON THE BASIS OF RACE, COLOR, SEX,
NATIONAL ORIGIN AND RELIGION. TITLE VII APPLIES TO ANY
CHARGE OF EMPLOYMENT DISCRIMINATION BY AN EMPLOYER OF
FIFTEEN OR MORE PERSONS AGAINST ANY INDIVIDUAL ON THE BASIS
OF THE INDIVIDUAL'S NATIONAL ORIGIN. THE TERM "NATIONAL
ORIGIN" REFERS TO THE COUNTRY OF ORIGIN WHERE A PERSON WAS
BORN OR, MORE BROADLY, THE COUNTRY FROM WHICH HIS OR HER
ANCESTORS CAME. IT IS NOT RESTRICTED TO ANY ONE ETHNIC
GROUPING.
- 2 -
FURTHER, TITLE VII, BY ITS TERMS, APPLIES TO ALL WORKERS AND
APPLICANTS, WHETHER DOCUMENTED OR UNDOCUMENTED, EXCEPT AS
PROVIDED IN SECTION 702, WHICH ADDRESSES THE EMPLOYMENT OF
ALIENS OUTSIDE THE JURISDICTIONAL BOUNDARIES OF THE UNITED
STATES. TITLE VII ALREADY MAKES IT UNLAWFUL FOR AN EMPLOYER TO
DISCRIMINATE WITH REGARD TO THE HIRING, DISCHARGE, OR ANY
TERMS AND CONDITIONS OF EMPLOYMENT ON THE BASIS OF NATIONAL
ORIGIN. ADDITIONALLY, THE ACT HAS BEEN INTERPRETED BY THE
SUPREME COURT AS ALLOWING THE AGGRIEVED INDIVIDUAL FULL "MAKE
WHOLE" RELIEF AND BACKPAY FOR TWO YEARS PRIOR TO THE CHARGE
FILING.
H.R. 3080 PROPOSES TO MAKE IT UNLAWFUL FOR A PERSON
TO HIRE OR RECRUIT UNDOCUMENTED WORKERS KNOWING THAT THE
WORKER IS AN "UNAUTHORIZED ALIEN" OR WITHOUT COMPLYING WITH
THE VERIFICATION REQUIREMENTS OF THE BILL. THE LEGISLATION
ALSO PROVIDES BOTH CIVIL AND CRIMINAL SANCTIONS FOR PERSONS
WHO HAVE ENGAGED IN A PATTERN OR PRACTICE OF EMPLOYING
UNDOCUMENTED WORKERS AND PROVIDES A CIVIL MONEY PENALTY
FOR THE PAPERWORK VIOLATIONS. ADDITIONALLY, THE LEGIS-
LATION WOULD ALLOW LIMITED AMNESTY FOR UNDOCUMENTED WORKERS
CURRENTLY IN THIS COUNTRY, A SYSTEM FOR EXPANDING THE TEMPORARY
FOREIGN AGRICULTURAL WORKER PROGRAM, ALONG WITH ITS BROAD
ANTI-DISCRIMINATION PROVISIONS.
- 3 -
H.R. 3080, WOULD AMEND THE IMMIGRATION AND NATURALIZATION
ACT TO ADD SECTION 274(B)(b)(2), WHICH SPECIFICALLY STATES
THAT THERE IS BE NO OVERLAP BETWEEN EEOC COMPLAINTS AND THOSE
SUBMITTED PURSUANT TO H.R. 3080. ADDITIONALLY, SECTION
274 (d) (2) (e) PROVIDES:
EXCEPT AS MAY BE SPECIFICALLY PROVIDED IN
THIS SECTION, NOTHING IN THIS SECTION SHALL
BE CONSTRUED TO RESTRICT THE AUTHORITY OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION TO
INVESTIGATE ALLEGATIONS, ..., AS PROVIDED IN
SECTION 706 OF THE CIVIL RIGHTS ACT OF 1964
(42 U.S.C. 2000e-5), OR ANY OTHER AUTHORITY
PROVIDED THEREIN.
AS OF THIS DATE, THE COMMISSION, AS A BODY, HAS NOT
ADDRESSED THE RAMIFICATIONS OF H.R. 3080 OR S. 1200, A
SIMILAR BILL WHICH WAS RECENTLY APPROVED ON JULY 30, 1985 BY
THE SENATE JUDICIARY COMMITTEE.
HOWEVER, GIVEN THE CLARIFICATION OFFERED WITHIN H.R. 3080,
I ANTICIPATE THAT, IF ENACTED, H.R. 3080 SHOULD HAVE
A MINIMAL IMPACT ON THE EEOC'S AUTHORITY TO INVESTIGATE
AND PROSECUTE COMPLAINTS. THEREFORE, I WILL CONFINE MY
COMMENTS TO THOSE SECTIONS OF THE BILL WHICH MAY POSE
TECHNICAL INCONSISTENCIES WITH TITLE VII.
- 4 -
EEOC STAFF HAS MADE THE FOLLOWING OBSERVATIONS:
1) TITLE VII, AS INTERPRETED BY THE SUPREME COURT IN
ESPINOZA V. FARRAH MANUFACTURING CO., 414 U.S. 86 (1973),
ALREADY PROVIDES COVERAGE WITH REGARD TO CLAIMS OF EMPLOYMENT
DISCRIMINATION BECAUSE OF NATIONAL ORIGIN. FURTHER, THE
EEOC ALREADY HAS AN ENFORCEMENT ORGANIZATION IN PLACE, WITH
TWENTY-TWO DISTRICT OFFICES AND MORE THAN THREE THOUSAND
EMPLOYEES, WHOSE MAIN FUNCTION IS TO INVESTIGATE THE EMPLOY-
MENT RELATED DISCRIMINATION CHARGES ON THE BASIS OF NATIONAL
ORIGIN, RACE, SEX, RELIGION OR COLOR.
2) TITLE VII APPLIES TO PRIVATE SECTOR EMPLOYERS WITH
FIFTEEN OR MORE EMPLOYEES. H.R. 3080 WOULD EXTEND COVERAGE
TO EMPLOYERS WITH FEWER THAN FIFTEEN EMPLOYEES, BUT ONLY WITH
REGARD TO NATIONAL ORIGIN CLAIMS. TO THE EXTENT THAT STRENGTHENED
ENFORCEMENT PROTECTION IS AFFORDED INDIVIDUALS AGGRIEVED BY
H.R. 3080, THAT SAME PROTECTION SHOULD APPLY TO THE LARGER
EMPLOYERS AND OTHER CHARGES BROUGHT UNDER TITLE VII, INCLUDING
RACE, COLOR, SEX, AND RELIGION. OTHERWISE, ONLY CHARGES
BROUGHT ON THE BASIS OF NATIONAL ORIGIN, AND UNDER H.R. 3080,
WOULD RECEIVE THE BENEFIT OF THE EXPEDITED PROCESSING
PROCEDURES, CEASE AND DESIST AUTHORITY, AND AN ENFORCEMENT
MECHANISM DEVOTED TO NATIONAL ORIGIN CLAIMS ONLY, AS
PROPOSED IN H.R. 3080. IRONICALLY, THE SMALLER EMPLOYER,
THOSE WITH FOUR TO FOURTEEN EMPLOYEES, COULD BE SUBJECT TO
TOUGHER ENFORCEMENT PROCEDURES UNDER H.R. 3080 THAN ARE THE
EMPLOYERS WITH MORE THAN FIFTEEN EMPLOYEES, WHO ARE SUBJECT
TO TITLE VII.
5 -
3) H.R. 3080 IS AIMED AT RECRUITMENT AND HIRING DISCRIMINATION
ONLY. TITLE VII COVERS DISCHARGE, TERMS AND CONDITIONS OF
EMPLOYMENT, WAGES AND ALL OTHER EMPLOYMENT RELATED BENEFITS
AND PRIVILEGES. MOST OF THE NATIONAL ORIGIN CHARGES, WHICH
THE COMMISSION RECEIVES, ALLEGE DISCRIMINATION IN DISCHARGE
(TERMINATIONS) OR TERMS AND CONDITIONS OF EMPLOYMENT.
THEREFORE, AS PROPOSED, H.R. 3080 MAY NOT REACH MANY OF THE
CHARGES WHICH MAY RESULT FROM THE ENACTMENT OF H.R. 3080.
4) EEOC REGULATIONS ADDRESS DISCRIMINATION ON THE BASIS
OF CITIZENSHIP. ALTHOUGH TITLE VII DOES NOT MAKE IT UNLAWFUL
FOR AN EMPLOYER TO DISCRIMINATE ON THE BASIS OF AN INDIVIDUAL'S
CITIZENSHIP, THE COMMISSION, IN ITS COMPLIANCE MANUAL SECTION
622, "CITIZENSHIP, RESIDENCY REQUIREMENTS, ALIENS AND UNDOCUMENTED
WORKERS" (COPY ATTACHED) HAS CONCLUDED THAT DISCRIMINATION
AGAINST ANY INDIVIDUAL BECAUSE OF A LACK OF CITIZENSHIP,
WHILE NOT PER SE DISCRIMINATION, MAY UNDER CERTAIN CIRCUMSTANCES,
CONSTITUTE UNLAWFUL DISCRIMINATION BECAUSE OF NATIONAL ORIGIN
WITHIN THE MEANING OF TITLE VII. SPECIFICALLY, IN THOSE
CIRCUMSTANCES WHERE CITIZENSHIP REQUIREMENTS HAVE THE PURPOSE
OR EFFECT OF DISCRIMINATING AGAINST AN INDIVIDUAL ON THE
BASIS OF NATIONAL ORIGIN, THE IMPOSITION OF THE REQUIREMENTS
WOULD BE PROHIBITED BY TITLE VII.
- 6 -
H.R. 3080, IF ENACTED, SIMILARLY WOULD PROHIBIT DISCRIMINATION ON
THE BASIS OF "CITIZENSHIP OR ALIEN STATUS", IF THE PERSON
CLAIMING DISCRIMINATION IS A U.S. CITIZEN OR "PERMANENT
RESIDENT ALIEN, REFUGEE, ASYLEE, OR NEWLY LEGALIZED ALIEN WHO
HAS FILED A NOTICE OF INTENT TO BECOME A U.S. CITIZEN."
IT IS UNCLEAR HOW MUCH MORE PROTECTION WOULD BE AFFORDED
UNDER H.R. 3080 THAN CURRENTLY IS PROVIDED UNDER EEOC'S
INTERPRETATION OF TITLE VII.
5) IN FACT, IT IS POSSIBLE THAT H.R. 3080 MAY PROVIDE LESS
NATIONAL ORIGIN PROTECTION THAN DOES TITLE VII. FOR EXAMPLE,
H.R. 3080 PROVIDES A LIMITATION ON BACK PAY LIABILITY. UNDER
H.R. 3080, BACK PAY LIABILITY MAY NOT ACCRUE FROM A DATE
MORE THAN TWO YEARS PRIOR TO THE FILING OF A CHARGE WITH AN
ADMINISTRATIVE LAW JUDGE. YET, THE INITIAL FILING OF THE
CHARGE IS WITH THE SPECIAL COUNSEL. IT MAY BE YEARS BEFORE
THE CHARGE IS PRESENTED TO THE ADMINISTRATIVE LAW JUDGE.
TITLE VII, BY CONTRAST, ALLOWS BACK PAY FOR A PERIOD OF TWO
YEARS PRIOR TO THE CHARGE FILING.
6) TO THE EXTENT THAT THE EMPLOYER SANCTIONS ARE TO BE
STRICTLY ENFORCED, THE COMMISSION ANTICIPATES THAT
2
EMPLOYERS, NOT WANTING TO VIOLATE THE IMMIGRATION LAWS,
MAY BE RELUCTANT TO HIRE ANY INDIVIDUAL WHOM IT SUSPECTS AS
BEING UNDOCUMENTED. CONSEQUENTLY, EMPLOYERS MAY REFUSE TO
CONSIDER, OR DISCHARGE, DOCUMENTED INDIVIDUALS, ESPECIALLY
- 7 -
HISPANICS AND ASIANS, BASED ON THEIR APPARENT NATIONAL ORIGIN.
EMPLOYMENT DISCRIMINATION ON THE BASIS OF NATIONAL ORIGIN
MAY INCREASE. CONSEQUENTLY, THE COMMISSION ANTICIPATES THAT
ITS NATIONAL ORIGIN DISCRIMINATION CHARGE ACTIVITY MAY INCREASE
WITH THE PASSAGE OF H.R. 3080 OR ANY OTHER IMMIGRATION
LEGISLATION WHICH IMPOSES CIVIL OR CRIMINAL PENALTIES.
7) H.R. 3080, AT SECTION 274B(c) CREATES AN OFFICE OF SPECIAL
COUNSEL IN THE DEPARTMENT OF JUSTICE WITH THE RESPONSIBILITY
"FOR [THE] INVESTIGATION OF CHARGES AND ISSUANCE OF COMPLAINTS
UNDER THIS SECTION AND IN RESPECT TO THE PROSECUTION OF
COMPLAINTS UNDER THIS SECTION. . "
I HAVE BEEN TOLD THAT PROPONENTS IN FAVOR OF THE ESTABLISHMENT OF
A SEPARATE "SPECIAL COUNSEL" OUTSIDE OF THE EEOC HAVE ARGUED
THAT TITLE VII IS INADEQUATE BECAUSE:
1. TITLE VII, WHICH APPLIES TO EMPLOYERS OF FIFTEEN
OR MORE PERSONS, WOULD NOT COVER THE SMALL
BUSINESS AND SEASONAL EMPLOYERS, I.E. THOSE WITH FOUR
TO FOURTEEN EMPLOYEES;
2. TITLE VII DOES NOT PROHIBIT DISCRIMINATION ON THE
BASIS OF CITIZENSHIP;
3. SECTION 703(h) OF TITLE VII ALLOWS A "BONA
FIDE OCCUPATIONAL QUALIFICATION" EXCEPTION
AS A DEFENSE TO A NATIONAL ORIGIN CHARGE;
- 8 -
4. TITLE VII ALLOWS AN OTHERWISE DISCRIMINATORY
BUSINESS PRACTICE WHICH MAY HAVE A DISCRIMINATORY
IMPACT IF THE PRACTICE BEARS A REASONABLE
BUSINESS RELATIONSHIP TO THE BUSINESS AND IS
SUPPORTED BY BUSINESS NECESSITY;
5. A TITLE VII CHARGE IS VIEWED AS T00 DIFFICULT AND
TIME CONSUMING TO PROCESS;
6. TITLE VII DOES NOT HAVE AN EXPEDITED ADMINISTRATIVE
PROCESS FOR ADJUDICATING CLAIMS, SUCH AS CEASE
AND DESIST AUTHORITY; AND
7. THERE IS A BELIEF THAT HISPANIC INDIVIDUALS HAVE NOT
AVAILED THEMSELVES OF EEOC'S SERVICES DUE TO SUCH
SHORTCOMINGS AS A LACK OF OUTREACH TO HISPANICS.
I WILL NOT ATTEMPT TO ARGUE THE PROCEDURAL POINTS WHICH
HAVE BEEN RAISED. HOWEVER, IT WOULD SEEM THAT IF THERE ARE
DEFICIENCIES WITHIN TITLE VII, THE SOLUTION MAY BE TO
STRENGHTEN TITLE VII, NOT CREATE ANOTHER AGENCY.
MOREOVER, IF STRENGTHENED ANTI-DISCRIMINATION PROCEDURES
ARE INSTITUTED WITH REGARD TO ONLY THE NATIONAL ORIGIN CHARGES
WHICH MAY RESULT DUE TO THE ENACTMENT OF H.R. 3080, IT
APPEARS TO RELEGATE TITLE VII NATIONAL ORIGIN, SEX
AND RACE CHARGES TO A LOWER STATUS BY NOT EXTENDING A
SIMILAR LEVEL OF PROTECTION.
I HOPE THESE COMMENTS ARE HELPFUL IN ADDRESSING SOME OF
THE CONCERNS WHICH HAVE BEEN SUGGESTED BY THE ANTI-
DISCRIMINATION PROVISIONS OF H.R. 3080, AS PROPOSED.
THE WHITE HOUSE
WASHINGTON
September 12, 1985
MEMORANDUM FOR BRANDEN BLUM
LEGISLATIVE ATTORNEY
OFFICE OF MANAGEMENT AND BUDGET
FROM:
ASSOCIATE COUNSEL JJR THE PRESIDENT
JOHN G. ROBERTS
SUBJECT:
DOJ Testimony of William Bradford Reynolds
on H.R. 3080, the Immigration Control and
Legalization Amendments Act of 1985
Counsel's Office has reviewed the above-referenced
testimony, and finds no objection to it from a legal
perspective.
ID #
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WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
o - OUTGOING
H - INTERNAL
I . INCOMING
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Subject: DOJ testimony as wm. Bradfard Reifnaeds
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85,09,12
/
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creat 18
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85,09,12
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DISPOSITION CODES:
A - Appropriate Action
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S Suspended
D Draft Response
S For Signature
F Furnish Fact Sheet
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to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
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Code = "A"
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Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
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5/81
OFFICE OF MANAGEMENT AND BUDGET
ROUTE SLIP
John Roberts
Take necessary action
TO
Approval or signature
Lou Hays
Comment
Prepare reply
Discuss with me
For your information
See remarks below
Branden BlumBS
10/2/85
FROM
DATE
REMARKS
Attached FYI is a copy of the Civil
Rights Commission's testimony on the
anti-discrimination provisions contained
in immigration reform legislation
(H.R. 3080). Copies have also been
forwarded to concerned agencies.
OMB FORM 4
TESTIMONY OF CLARENCE M. PENDLETON, JR
CHAIRMAN, U.S. COMMISSION ON CIVIL RIGHTS
BEFORE THE SENATE SUBCOMMITTEE
ON IMMIGRATION AND REFUGEES
AND
THE HOUSE SUBCOMMITTEE ON
IMMIGRATION, REFUGEES, AND INTERNATIONAL LAW
October 7, 1985
Mr. Chairman, Members of both Subcommittees, I am pleased
to appear here today in response to your invitation that I
testify on the anti-discrimination provisions of H.R. 3080.
I should note at the outset of my testimony that the
reconstituted Commission on Civil Rights has not adopted a
position on the anti-discrimination provisions of H.R. 3080 or
on immigration reform generally. I am, therefore, speaking on
behalf of the Commission only to the extent that my remarks
address the Commission's role in the proposed legislation. In
this connection, I want to discuss this bill's lack of clarity
in defining the Commission's role and the Commission's ability
to fulfill that role.
H.R. 3080 assigns an important enforcement function to the
Commission. Under section 402(b) of the bill, the Commission
2
would be required to monitor the implementation and enforcement
of the provisions of section 274A of the Immigration and
Nationality Act, and to investigate allegations that the
enforcement or implementation of that section has resulted in
discrimination against citizens or aliens who are not
unauthorized aliens. In addition, the Commission is required
to submit three reports at eighteen-month intervals to the
House and Senate Judiciary Committees, describing the
implementation and enforcement of the Act for the purpose of
determining whether implementation and enforcement of the Act
have resulted in discrimination.
It is unfortunate, given what appears to be the significant
role that the Commission is intended to assume, that the bill
provides insufficient guidance to the Commission to understand
clearly the intent of Congress. For example, when the bill
states that the Commission shall investigate allegations of
"unlawful discrimination by race or nationality against
citizens of the United States or aliens who are not
unauthorized aliens," what does the word "nationality" mean?
Is it synonymous with the phrase "national origin" that is
currently used in Title VII of the Civil Rights Act of 1964
which prohibits discrimination in employment or Title VIII of
the Civil Rights Act of 1968 which prohibits discrimination in
housing? While the phrase "national origin" is well-defined
through court cases and other sources of authority, the term
"nationality" is undefined in both civil rights case law and
the bill itself.
3
For that matter, inasmuch as the provisions regarding the
Commission, the Special Counsel, and the President are in the
bill to allay concerns that the employer sanctions will produce
discrimination, one would expect consistency with respect to
the kinds of discrimination each is to address.
Yet the language in these provisions is markedly
different. The Commission is directed by H.R. 3080 to
investigate allegations that the employer sanctions have
resulted in "unlawful discrimination by race or nationality"
against U.S. citizens or permanent or temporary resident aliens
intending to become citizens. The President is directed under
the bill to publish three reports describing the impact of
employer sanctions on "discrimination against citizen and
permanent resident alien members of minority groups.' And the
Office of Special Counsel is to investigate discrimination
"against any individual (whether a citizen or permanent or
temporary resident alien) with respect to hiring, or
recruitment or referral for a fee, because of national origin
or citizenship status."
Why is the Commission directed to examine racial
discrimination when the Special Counsel has not been so
directed? Why is the Commission directed to investigate
discrimination based on nationality and the Special Counsel,
discrimination based on "national origin"? Why are the
Commission's investigations of discrimination restricted to
unlawful discrimination, while the reports by the President are
not so circumscribed? There is a substantial difference
4
between discrimination and unlawful discrimination so far as
aliens are concerned, since they do not enjoy the same measure
of protection as citizens against employment discrimination.
Further, the President is directed to publish reports on
discrimination against "citizen and permanent resident alien
members of minority groups." Is it not your intent that these
reports also discuss discrimination against temporary resident
aliens who evidence an intent to become citizens, a category
that is included within the scope of investigations by the
Special Counsel and the Commission? Any why does the phrase
"minority groups" appear in the section detailing the
President's duties and not in the sections detailing the
responsibilities of the Commission or Special Counsel? Which
minority groups are intended?
Another line of questions is raised by the bill's charge
that the Commission "shall investigate allegations" of
discrimination. Is the Commission obligated to respond to
anyone's allegation of discrimination, or only the allegations
of someone who is directly and adversely affected by an unfair
immigration-related employment practice as defined in section
274B of the bill? And how must we respond? Is the Commission
being directed to oversee the operations of the Office of the
Special Counsel, which is also directed to investigate
allegations of discrimination?
H.R. 3080 also directs that the Commission "shall monitor
the implementation and enforcement" of section 274A. This
5
language needs to be clarified, as well. The way in which the
Commission has defined its monitoring function traditionally is
that our Office of Federal Civil Rights Enforcement conducts a
series of studies of specific government programs and
anti-discrimination efforts by the Federal government. A
typical study is one with a limited scope carried out by only a
few employees on any one project. Is this the type of
monitoring that the bill intends, or is a broader definition of
monitoring meant that includes the use of field agents and a
large number of employees?
A final point with respect to the role of the Commission
involves the requirement imposed by the bill that the
Commission publish three reports at eighteen-month intervals
for the purpose of determining whether a pattern of unlawful
discrimination has resulted from the implementation and
enforcement of section 274A. If the proposed legislation is
passed in October of this year, our first report would be due
in April of 1987, the second in October of 1988, and the third
in April of 1990. Issuance of the third report in April of
1990 may be problematic, however, as the Commission is
scheduled to terminate at the end of September 1989.
Obviously, some amendment of the bill is necessary in this
regard.
Another point that I wish to make on behalf of the
Commission is that we will find ourselves unable, at current
funding levels, to carry out the tasks assigned to us under
6
H.R. 3080. The bill regarding the role of the Commission is
identical to language in last year's House measure. At that
time, the Commission expressed its concern in letters from the
Commission's Staff Director to Chairman Rodino and to Senator
Simpson that, while the Commission would do its best to
undertake the broad responsibilities under the proposed
legislation, it could not do so without severely straining
its resources. The Commission stated therein:
The Commission believes it is preferable
that the Immigration Reform and Control Act
not contain requirements for prescribed
Commission activity unless Congress provides
substantial increases in funding for the
Commission to discharge the required duties.
The Commission further stated in these letters:
Absent a congressionally mandated role
to monitor, investigate and report on
discrimination flowing from employer
sanctions, the Commission would, of course,
undertake appropriate, though less
comprehensive, program activity to seek to
determine whether this new law causes
discrimination. Such activity, in the form
of a hearing, a study or monitoring, would
be more possible within the range of our
current resources.
Our position is entirely understandable when one considers
the size of the Commission and the resources it could bring to
bear on the tasks it is being asked to assume. For fiscal year
1985, our budget is $12,869,000, and the Commission has a
current total of 236 full-time employees. This must be
contrasted with the size of an enforcement agency like the
Equal Employment Opportunity Commission, which has a budget of
7
$163,655,000 and 3,034 full-time employees for fiscal year
1985. Our point is simply that the Commission is too small at
present to undertake a full-scale monitoring role with respect
to immigration legislation.
Nor is it clear that a full-scale monitoring role by the
Commission is needed. Under H.R. 3080, the responsibilities
the Commission is directed to undertake overlap with those of
the Office of Special Counsel and the President. Hence both
the Special Counsel and the Commission are to investigate
allegations of immigration-related employer discrimination,
although the Special Counsel's duties in this regard are
carefully described under the bill while the Commission's are
not. Moreover, both the President and the Commission are to
transmit to the House and Senate Judiciary Committees, at
eighteen-month intervals, three reports on the impact of
employer sanctions on immigration-related employment
discrimination.
In addition, the issue of discrimination against aliens is
not one with which the Commission has a great deal of
experience. Our last relevant project was in 1980, and that
concerned itself more with certain legal issues in connection
with aliens than it did with monitoring the enforcement of
immigration laws. In general, it is fair to characterize the
Commission as more concerned with the identification and
analysis of civil rights issues than with massive oversight
efforts.
8
The fact that the Commission is unaccustomed to the role
that would be thrust upon it by this bill is exacerbated by the
numerous uncertainties surrounding the immigration issue. A
National Research Council report entitled "Immigration
Statistics: A Story of Neglect" concluded this year that
government agencies do not produce the data that "we need to
answer the fundamental policy issues of the day" (p. 5).
In the absence of meaningful data with respect to the
contours of the immigration problem, it is difficult for the
Commission to estimate the amount by which our budget would
need to be increased to meet the demands placed on us by H.R.
3080. We believe it curious, however, that last year the House
Judiciary Committee did not authorize additional funds for the
Commission to carry out monitoring, investigating, and
reporting activities identical to that which are asked of the
Commission this year. Yet the Committee authorized $6 million
for each of three years for the activities of a task force
which, under the language of last year's bill, were
substantially the same as the Commission's. This year, we ask
that additional funding for the Commission be authorized if the
language regarding the Commission remains the same. The figure
authorized for the task force last year may provide a beginning
point in your deliberations. We would, of course, be glad to
work with you on this task.
Turning to the anti-discrimination provisions of H.R. 3080,
I must speak on my own behalf, but offer the following
objections.
9
First is the question of the appropriateness of setting up
a new administrative mechanism to handle employment
discrimination claims. Government civil rights agencies
already include the Commission on Civil Rights, the Justice
Department's Civil Rights Division, the Equal Employment
Opportunity Commission, the Department of Labor's Office of
Federal Contract Compliance Programs, and the Department of
Education's Office for Civil Rights. Each state, in addition,
has civil rights enforcement agencies, as do many major
cities. In my opinion, creation of a separate mechanism to
enforce discrimination claims, particularly one to carry out
responsibilities which in large measure have already been
delegated by Congress to the EEOC, would be a mistake.
The EEOC now has the responsibility under Title VII to
investigate and prosecute claims of employment discrimination
based on national origin. To address the problem of the
overlapping jurisdiction that would arise between the EEOC and
the Office of Special Counsel, H.R. 3080 provides that
complaints of national origin discrimination cannot be filed
concurrently in both forums. The question, however, of
conflicting precedents between the EEOC and the Office of
Special Counsel is not addressed, nor is it specified whether a
plaintiff is barred from pursuing a remedy in one forum if the
result in the other forum has proven unsatisfactory.
Those who advocate the creation of an Office of Special
Counsel contend that EEOC cannot investigate claims of employer
10
discrimination based on national origin where the employer has
fewer than 15 employees. The appropriate response, if national
origin discrimination by small employers were truly to become a
problem once employer sanctions were enacted, would be to amend
Title VII, preferably at a later date, to expand the EEOC's
national origin jurisdiction over these employers.
My second difficulty with the anti-discrimination
provisions of H.R. 3080 relates to the question whether
Congress ought to enact a Federal statutory cause of action
based on alienage discrimination. Current Federal statutory
and case law provides some measure of protection against
discrimination based on alienage. Section 1981 of Title 42 of
the U.S. Code states, in relevant part, that "all persons
have the same right
to make and enforce contracts
as
white citizens.' The Supreme Court has interpreted this to
include private employment discrimination based on race, and
one Federal court of appeals has extended the Court's
interpretation of section 1981 to prohibit alienage
discrimination as well.
But beyond this, most Federal court cases addressing
employment discrimination based on alienage have done SO in the
context of reviewing state statutes containing alienage-based
classifications. The thrust of these cases is that such
statutes will trigger a court's strict scrutiny unless the
discrimination is based on a "political function. "
To highlight some of these cases, in 1973 the Supreme Court
11
struck down a New York statute which barred aliens from
employment in the state civil service (Sugarman V. Dougall) ;
and invalidated a Connecticut State bar requirement that all
bar examination applicants be U.S. citizens (In re Griffiths).
In 1976, the Court invalidated a Puerto Rican law which
prohibited aliens from practicing civil engineering privately
(Examining Board V. Flores de Otero).
But two years later, the Court upheld a New York statute
that required that state police officers be citizens (Foley V.
Cornelie), and declined to invalidate a statute of that state
which prohibited non-citizen elementary and secondary school
teachers from teaching in the state educational system
(Ambach V. Norwick) In 1982, the Court upheld a California
law requiring that state peace officers be citizens against a
challenge brought by an alien applying to be a California
probation officer (Cabell V. Chavez-Salido). Finally, in 1984
the Court applied strict scrutiny to a Texas statute which
required that notary publics be U.S. citizens. The Court found
that the statute affected a lawful economic interest inasmuch
as the function of a notary public was not an essential part of
the political community (Bernal V. Fainter).
Legal aliens therefore enjoy some measure of constitutional
protection when it comes to the issue of public employment, and
I support application of the strict scrutiny standard to
alienage-based statutory classifications provided the
"political function" exception does not come into play.
12
But I oppose creation of a new cause of action for alienage
discrimination in private employment. I oppose it as set forth
in H.R. 3080 because it is based on an assumption that alienage
discrimination will be a problem once employer sanctions are
enacted. If we are to create a new protected class, we ought
first to determine that such protection is necessary and, if
necessary, whether the protection could not be provided simply
by amending Title VII to include alienage. That could be done
by enacting the employer sanctions, and permitting time to
determine whether alienage discrimination does in fact occur
because of those sanctions. But to create a new cause of
action based on alienage discrimination complete with a
separate enforcement mechanism and the provision for attorney's
fees would, absent a demonstrated need, be the wrong way to
shape our national civil rights policy.