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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: JGR/Draft Report (3 of 3)
Box: 18
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 DATE HOUSE
February 18, 1986
MEMORANDUM FOR BRANDEN BLUM
LEGISLATIVE ATTORNEY
OFFICE OF MANAGEMENT AND BUDGET
FROM:
ASSOCIATE COUNSEL OPR TO THE PRESIDENT
JOHN G. ROBERTS
SUBJECT:
Draft DOJ Report on Proposed Amendment to
S. 397, the "Foreign Trade Antitrust
Improvements Act of 1985"
Counsel's Office has reviewed the above-referenced draft report
and finds no objection to it 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:
DOJ draft repart on proposed
amendments to S.397 the "Joreign
Trade antetrust Improvements act up
1985
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
of
Date
Office/Agency
(Staff Name)
Code
YY/MM/DD
Response
Code
YY/MM/DD
CICITOLL
ORIGINATOR
86,02,18
/ /
Referral Note:
list 18
R
86,02,18
586,0218
2pm
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
PRESIDENTO THIS UNITED
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF management AND BUDGET
WASHINGTON, D.C. 20503
February 14, 1986
LEGISLATIVE REFERRAL MEMORANDUM
TO:
Department of State - Lee Ann Berkenbile (647-4463)
Department of Commerce - Joyce Smith (377-4264)
Department of Transportation - John Collins (426-4694)
U.S. Trade Representative - Gail Golay (395-3150)
Council of Economic Advisers
Federal Trade Commission
SUBJECT: Draft Department of Justice report on proposed
amendment to S. 397, the "Foreign Trade Antitrust
Improvements 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 2:00 p.m. -- 2/18/86
Direct your questions to Branden Blum (395-3454), the legislative
attorney in this office.
for
James C. Murr for
Assistant Director for
Legislative Reference
Enclosure
CC: Fred Fielding
Mike Margeson
John Cooney
Chuck Goldfarb
Karen Wilson
Penny Jacobs
U.S. Department of Justice
Office of Legislative and Intergovernmental Affairs
Office of the Assistant Attorney General
Washington, D.C. 20530
Honorable Strom Thurmond
Chairman, Committee on the
Judiciary
United States Senate
Washington, D.C. 20510
Dear Mr. Chairman:
This is in response to your request for the Department's
comments on a revision of 5. 397, the "Foreign Trade Antitrust
Improvements Act of 1985." We understand that this revision
has been submitted as an amendment in the form of a substitute
and has been designated DeConcini Amendment No. 1324. This
revision reflects efforts to take account of the
Administration's concerns with the bill as originally drafted.
A key feature of the revision is the listing of factors
courts should consider "as appropriate and without limitation"
in determining whether to dismiss an antitrust action that
involves trade or commerce with a foreign nation under the
so-called "jurisdictional rule of reason." We support the
statutory enumeration of such factors. We believe, however,
that they should be exclusive, and differ slightly from those
listed in the revision, in order to prevent courts from
attempting to weigh the foreign policy considerations that are
properly within the purview of the Executive Branch. We also
believe that a simple direction to the courts to consider
whether the exercise of jurisdiction would be unreasonable is
preferable to reference to a general "jurisdictional rule of
reason." The precise language we recommend 1s contained in a
bill recently submitted by the Administration as a formal
proposal for legislation in this area, a copy of which 1s
attached.
The revision also contains two provisions directing the
courts to consider jurisdictional motions in antitrust cases
involving international trade or commerce prior to other
proceedings in such cases, except for good cause shown. As
indicated by the Administration's proposal, we support such
provisions, although we suggest that they be more uniform
grammatically.
The Administration has carefully considered the provision
in the revision directing the courts to dismiss an antitrust
case involving trade or commerce with a foreign nation upon
certification by the Attorney General that the case will
interfere with the conduct of the foreign relations of the
United States, and has concluded that any such device would be
more problematic than beneficial. We therefore recommend its
deletion from this legislation.
With regard to the proposed revision's treatment of the
treble-damage issue in antitrust cases involving international
trade or commerce, we believe that the damage provisions of the
antitrust laws should be modified generally, not simply as they
apply to such cases. The Administration's recommendaton for
general reform of the treble-damage remedy is contained in
another recently-submitted bill.
Finally, the revision contains a provision affirming the
applicability of the doctrine of forum non conveniens in
antitrust cases involving trade or commerce with foreign
nations. The Administration's proposal also contains such a
provision.
We appreciate the opportunity to comment on this revision
to S. 397. We look forward to working with you and the
Committee on this legislation.
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
99th Congress
2nd Session
A BILL
To amend the Sherman and the Clayton Acts to improve and
clarify the application of such Acts to international
commerce.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That this
Act may be cited as the "Foreign Trade Antitrust Improvements
Act of 1986"
SEC. 2. Section 7 of the Sherman Act (15 U.S.C. 6a) is
amended by
(1) inserting "(a)" before "This Act"; and
(2) adding at the end thereof the following new
subsection:
'(b) Whenever a motion to dismiss for lack of subject
matter jurisdiction under this section shall be made, the
court shall, except for good cause shown, hear and
determine such motion, after such discovery or other
proceedings directly related to the motion as the court
deems appropriate, before conducting or permitting the
parties to conduct any further proceedings in the action.
SEC. 3. The Clayton Act (15 U.S.C. 12 et seq.) is amended by
adding after section 20 the following new section:
"Sec. 21. (a) Notwithstanding any other provision of
the antitrust laws or any provision of any State laws
similar to the antitrust laws, in any action brought by any
person or State under the antitrust laws or similar State
laws which involves trade or commerce with a foreign
nation, the court shall enter a judgment dismissing the
action as to all parties whenever it determines that the
exercise of jurisdiction would be unreasonable in light of
the following factors, which shall be exclusive:
(1) the relative significance, to the violation
alleged, of conduct within the United States as compared to
conduct abroad;
(2) the nationality of the parties and the principal
place of business of corporations;
(3) the presence or absence of a purpose to affect
United States consumers or competitors;
(1) the relative significance and foreseeability of
the effects of the conduct on the United States as compared
with the effects abroad;
(5) the existence of reasonable expectations that
would be furthered or defeated by the action; and
(6) the degree of conflict with foreign law.
- 2 -
(b) Whenever a motion to dismiss on the ground that
the exercise of jurisdiction would be unreasonable under
this section shall be made, the court shall, except for
good cause shown, hear and determine such motion, after
such discovery or other proceedings directly related to the
motion as the court deems appropriate, before conducting or
permitting the parties to conduct any further proceedings
in the action.
SEC. 4. Section 12 of the Clayton Act (15 U.S.C. 22) is
amended by--
(1) inserting "(a)" before "That suit"; and
(2) adding at the end thereof the following new
subsection:
"(b) The doctrine of forum non conveniens shall be
applicable in any suit, action, or proceeding under the
antitrust laws that involves trade or commerce with a
foreign nation, and nothing contained in this section or
any other venue provision applicable to such suits,
actions, or proceedings shall be construed to prevent
dismissal of such a suit, action, or proceeding on the
ground of forum non conveniens. B
: 3 -
"FOREIGN TRADE ANTITRUST IMPROVEMENTS ACT OF 1986"
ANALYSIS
The "Foreign Trade Antitrust Improvements Act of 1986"
("the Act") improves and clarifies the application of the
antitrust laws in cases involving trade or commerce with
foreign nations. The Act amends the Sherman and Clayton Acts
generally to direct courts to hear and determine jurisdictional
motions in such cases prior to conducting proceedings on the
merits, to clarify the factors courts should consider in
deciding whether the exercise of U.S. antitrust jurisdiction in
such cases would be reasonable, and to affirm the applicability
of the doctrine of forum non conveniens in such cases. The Act
carries the same name and is in substantial part a refinement
of similar legislation introduced in the 1st session of the
99th Congress.
Section 2 of the Act amends section 7 of the Sherman Act,
which provides that the substantive provisions of that Act
apply to conduct involving trade or commerce (other than import
trade or commerce) with foreign nations only if such conduct
has a "direct, substantial, or reasonably foreseeable effect"
on trade or commerce that is not trade or commerce with foreign
nations, on import trade or commerce, or on export trade or
commerce with foreign nations of a person engaged in such trade
or commerce in the United States. Section 2 adds a new
subsection (b) to section 7, generally requiring the court to
hear and determine the merits of a motion to dismiss an action
under section 7 prior to conducting or permitting the parties
to conduct any further proceedings in the action.
Notwithstanding its general rule, new section 7(b) permits
discovery on the merits or other proceedings "for good cause
shown" while motions under subsection (a) are under
consideration. While early decisions on jurisdictional issues
generally should help minimize international conflicts in such
cases, discovery on the merits may nonetheless be appropriate
in some situations. Indeed, in some cases facts relating to
jurisdiction may be intertwined with those relating to the
merits.
Section 3 of the Act adds a new section 21 to the Clayton
Act, clarifying the factors courts are to consider in deciding
whether the exercise of U.S. antitrust jurisdiction in private
antitrust cases involving trade or commerce with foreign
nations is reasonable. Designed to lessen uncertainty over
jurisdiction in private antitrust cases involving foreign
commerce, new section 21 (a) instructs the courts to dismiss
such a case when the exercise of jurisdiction would be
unreasonable, taking into account six specified, exclusive
factors. By designating the specified factors as the exclusive
- 2 .
factors to be considered in determining the reasonableness of
U.S. jurisdiction, new section 21 (a) makes clear that courts
are not to base their judgments on an open-ended interest
balancing test or make the foreign policy determinations that
are properly within the sphere of the Executive Branch. On the
other hand, by instructing courts to take into account the
extent of the challenged conduct's connections with the United
States as compared with its connections with foreign
jurisdictions, the new provision lessens the likelihood of
unnecessary conflict with foreign governments arising from
private antitrust challenges.
The first factor specified by new section 21 (a) is "the
relative significance, to the violation alleged, of conduct
within the United States as compared to conduct abroad." This
criterion, in conjunction with the other specified factors,
will assist the courts in determining the relative strength of
the alleged violation's connection with the United States. In
the antitrust context, the conduct that is relevant to this
determination includes not only meetings and agreements, but
also the whole range of economic activity that is involved in
an alleged violation. For example, an agreement to fix U.S.
prices that was reached in a meeting held abroad and
implemented by charging the agreed-upon prices in the United
States would constitute substantial conduct within the United
- 3 .
States. Inclusion of this factor is not intended to give
individuals or firms an opportunity to evade U.S. antitrust
laws simply by moving some or all of their activities offshore.
The second factor the courts are to consider is "the
nationality of the parties and the principal place of business
of corporations" involved in and affected by the challenged
conduct. This criterion is not intended as a departure from
the general principle that United States antitrust laws are
applied in a nationality-blind way that neither favors nor
discriminates against parties of foreign nationality. But in
some cases consideration of the parties' nationality may assist
the courts in determining the relative strength of the United
States' interest in regulating the challenged conduct and,
accordingly, the reasonableness of an assertion of U.S.
jurisdiction. In particular, this factor may be significant in
a merger case in which the merging parties and the relevant
productive facilities are located abroad.
The third factor specified in new section 21 (a) is "the
presence or absence of a purpose to affect United States
consumers or competitors." In considering this factor, courts
should apply their usual construction of purpose-that people
intend the ordinary consequences of their acts. Thus, courts
should consider not only whether there were overt declarations
- 1 -
of intention to affect United States markets, but also whether
the facts make it apparent that an effect on United States
markets was expected.
The fourth factor courts are to consider is "the relative
significance and foreseeability of the effects of the conduct
on the United States as compared with the effects abroad." The
United States' antitrust laws are basically designed to protect
U.S. markets against anticompetitive restraints. They are not
designed to interfere with the prerogative of foreign
governments to shape their own economies. There are, however,
circumstances in an economically interdependent world in which
the effects of conduct will be felt both in the U.S. and in
other nations' economies. Consideration by the courts of this
factor and the previous factor will assist in identifying
circumstances in which U.S. jurisdiction is appropriately
asserted because of the significance of actual or intended
effects in our economy. At the same time, it will weigh
against the exercise of jurisdiction where the actual or
intended domestic effects are insignificant as compared with
those abroad and where regulation of the conduct may be more
appropriately exercised by other governments.
The fifth factor specified in new section 21 (a) is "the
existence of reasonable expectations that would be furthered or
defeated by the action." This factor recognizes the
- 5 -
desirability of predictability regarding the rules applicable
to international business transactions.
The final factor courts are to consider under new
section 21 (a) in deciding whether the exercise of jurisdiction
in antitrust cases would be reasonable is "the degree of
conflict with foreign law." Under this criterion, the courts
will consider the extent to which application of U.S. antitrust
law to the challenged conduct would require action or inaction
inconsistent with relevant foreign laws, or would otherwise
clearly frustrate the implementation of the laws of other
countries. If the challenged conduct were also unlawful under
foreign law, or if foreign law were neutral or merely
permissive with respect to the conduct, there likely would be
little or no conflict between U.S. and foreign law of a kind
that would weigh heavily against the assertion of
jurisdiction. On the other hand, if the challenged conduct
were affirmatively mandated by foreign law, or if the
application of U.S. antitrust law would frustrate the
enforcement or implementation of the laws of a foreign
sovereign, those facts would weigh against the exercise of U.S.
jurisdiction. The presence of such a conflict would not
necessarily mean that United States law would always have to
yield to foreign law, but consideration of such a conflict
should help courts to determine the reasonableness of the
exercise of U.S. antitrust jurisdiction.
- 6 -
In most cases, no single factor among the six the courts
are directed to consider by new section 21 (a) is likely to be
dispositive, nor is it possible to instruct the courts in
advance on how to weigh the factors to determine the
reasonableness of asserting jurisdiction. Nonetheless,
considered in conjunction with one another, these factors will
provide a basis for accommodating the United States' interests
in applying its antitrust laws to protect against harm from
anticompetitive restraints with the legitimate interests of
foreign governments in regulating their own economic affairs.
New section 21 (b) generally requires the court to hear and
determine the merits of a motion to dismiss an action under new
section 21 (a) prior to other proceedings in the action, in the
manner of new section 7(b) of the Sherman Act, as added by
section 2 above. As is the case with new Sherman Act
section 7(b), exceptions to this general rule may be made "for
good cause shown."
Section 4 of the Act adds a new subsection (b) to
section 12 of the Clayton Act, which provides venue in
antitrust cases in any district which a corporate defendant
inhabits, or in which it may be found or transacts business.
New section 12 (b) clarifies the applicability of the doctrine
of forum non conveniens in antitrust cases involving trade or
- 7 -
commerce with foreign nations. This provision makes clear to
the courts that they are not foreclosed from concluding, in
appropriate cases, that a foreign court would be a preferable
forum for litigating the claims asserted in a U.S. antitrust
case, consistent with applicable legal standards as set out in
the Supreme Court's 1981 decision in Piper Aircraft Co. V.
Reyno, 454 U.S. 235.
- 8 -
THE WHITE HOUSE
WASHINGTON
March 24, 1986
MEMORANDUM FOR BRANDEN BLUM
LEGISLATIVE ATTORNEY
OFFICE OF MANAGEMENT AND BUDGET
FROM:
JOHN G. ROBERTS
ASSOCIATE COUNSEL TO THE PRESIDENT
SUBJECT:
Departments of State and Justice Reports on
H.R. 1302, a Bill to Permit the Naturalization
of Certain Filipino War Veterans
Counsel's Office has reviewed the above-referenced reports and
finds no objection to them 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:
James Mum
MI Mail Report
User Codes: (A)
(B)
(C)
Subject: DOS + DOJ report on H.R. 1302, a bue to
permit the naturalization as certain
Filipino was veterans
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
of
Date
Office/Agency
(Staff Name)
Code
YY/MM/DD
Response
Code
YY/MM/DD
CUNTOLL
ORIGINATOR 86,03,13
/
/
Referral Note:
Cuat 18
≤
86,03,13
586,04,09
Referral Note:
/ /
/ /
I
Referral Note:
/ /
/ /
I
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 OFFICE OF
OFFICE OF management AND BUDGET
WASHINGTON, D.C. 20503
March 13, 1986
LEGISLATIVE REFERRAL MEMORANDUM
TO:
Department of State
Department of Justice
Department of Defense
SUBJECT: Departments of State and Justice reports on H.R. 1302,
a bill to permit the naturalization of certain Filipino
war veterans.
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 April 9, 1986.
Direct your questions to Branden Blum (395-3454), the legislative
attorney in this office.
James UCM C. Murr for
Assistant Director for
Legislative Reference
Enclosure
CC: Fred Fielding
Tara Treacy
John Cooney
Mike Margeson
(State)
DRAFT
Dear Mr. Chairman:
I refer to your letter of December 11, 1985 requesting
an expression of the views of the Department of State on
the proposed H.R. 1302 to permit the naturalization of
certain Filipino war veterans.
The Department of State has no objection to the
proposed legislation, and defers to the judgment of the
Department of Justice as to the advisability of this
proposed bill. The Justice Department has been involved
in litigation of the Filipino veterans cases and thus, is
in a position to comment as to what effect, if any, the
proposed bill might have upon pending litigation.
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.
With best wishes,
Sincerely,
William L. Ball, III
Assistant Secretary
Legislative and Intergovernmental Affairs
The Honorable
Peter W. Rodino, Jr.
Chairman,
Committee on the Judiciary,
House of Representatives.
U.S. Department of Justice
Office of Legislative and Intergovernmental Affairs
CO 703.785
Office of the Assistant Attorney General
Washington, D.C. 20530
The Honorable Peter W. Rodino, Jr.
Chairman, Committee on the Judiciary
House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:
This is in response to your request for the views of the
Department of Justice on H.R. 1302, a bill to permit the
naturalization of certain Filipino war veterans. For the reasons
set forth below, this Department recommends enactment of this
legislation, with one revision.
The bill would permit the naturalization of certain nationals of
the Philippines who might previously have qualified for naturali-
zation under the provisions of Title III of the Nationality Act
of 1940, as in effect before December 24, 1952. Under Sections
701 and 702 of that Act, non-citizens who had served honorably in
the Armed Forces of the United States during World War II could
petition for naturalization. A petition had to be filed no later
than December 31, 1946.
For some time following the expiration of the time limit estab-
lished by Congress for claiming naturalization, it appeared that
few persons were interested in asserting any claim to naturaliza-
tion under this provision. However, in 1967, a Filipino veteran
filed suit, claiming that the U.S. Government was estopped from
denying this petition for naturalization because it had engaged
in affirmative misconduct. The government action attacked by the
veteran was the revocation, in 1945, of the authority granted to
a vice-consul in the Philippines to confer naturalization benefits,
and the decision to not assign a naturalization officer in his
place until August 1946. This action was taken pursuant to a
request by the newly independent Philippine Government, which had
become concerned that naturalized Filipino veterans were leaving
the Philippines immediately upon naturalization. The Supreme
Court held that the Government had not engaged in affirmative
misconduct, and that the veteran was not entitled to naturaliza-
tion. INS V. Hibi, 414 U.S. 5 (1973).
-2-
Peter W. Rodino, Jr.
Since that time, numerous lawsuits have been filed on various
theories, all claiming that Philippine veterans previously
eligible under the terms of the Act of 1940 are entitled to
naturalization. These suits have been filed on behalf of
veterans in the United States and in the Philippines. In the
major lawsuit on this subject, three categories of veterans were
established by the court, with varying levels of claims recognized.
Matter of Naturalization of 68 Filipino War Veterans, 406 F.
Supp. 931 (N.D. Cal. 1975). The claims were based on the court's
finding that "constructive" filing of petitions had occurred
where the veteran had applied or made efforts to apply, or where
the veteran would have applied if the naturalization officer had
not been withdrawn. Since that time, other lawsuits based on 68
Filipino War Veterans, supra, have been tried. A substantial
number of cases is being held in abeyance, pending the outcome of
a second category case presently on appeal. Pangilinan, et al.
v. INS, No. 81-5427 (9th Cir.)
More recently, the Chief Judge of the Central District of
California issued an ex parte order to his clerk ordering him to
accept filing by all veterans, in and outside the United States,
an order which we consider highly improper.
The situation we are faced with, almost forty years after the
expiration of the naturalization provision, is an unceasing stream
of litigation by veterans claiming naturalization. It is clearly
in the Government's interest to put this matter to rest.
The bill in question could go far toward resolving this issue, as
well as affording naturalization to certain persons who may have
been unable to apply for naturalization because of the agreement
made between the Governments of the United States and the
Philippines. Congress previously recognized the contribution
made by the Filipino veterans during World War II, and is clearly
free once more to provide the privilege of naturalization in
recognition of that service.
The bill would allow Filipino national veterans within the United
States present both on the date of enactment and on the date of
filing of the application for naturalization, to become naturalized
citizens. The veteran must have been eligible for naturalization
under the Nationality Act of 1940, as amended, but have failed to
file a petition for naturalization before January 1, 1947. The
application must be filed no later than 90 days after enactment
of the bill.
The Department believes that paragraph (3) should be revised to
extend the filing time from 90 to 180 days. This will insure
that no eligible veteran misses the opportunity to file an applica-
tion.
-3-
Peter W. Rodino, Jr.
The Office of Management and Budget has advised this Depart-
ment 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
March 31, 1986
MEMORANDUM FOR BRANDEN BLUM
LEGISLATIVE ATTORNEY
OFFICE OF MANAGEMENT AND BUDGET
FROM:
JOHN G. ROBERTS DR
ASSOCIATE COUNSEL TO THE PRESIDENT
SUBJECT:
DOJ Draft Statement on H.R. 23, a bill to
Permit Certain Cuban and Haitian Nationals
to Adjust Their Immigration Status to That
of Permanent Resident Aliens
Counsel's Office has reviewed the above-referenced DOJ draft
statement 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:
James muns
MI Mail Report
User Codes: (A)
(B)
(C)
Subject: DOJ drave statement on H.R. 23, a bell
to permit certain Cuban & Haitian nationals
to adjust thus immigration status to
that of permanent resident aliens
ROUTE TO:
ACTION
DISPOSITION
who
Tracking
Type
Completion
Action
Date
of
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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
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FOR OUTGOING CORRESPONDENCE:
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RECORDS ОИГА
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EXECUTIVE OFFICE OF THE PRESIDENT
8 THAT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 80503
March 28, 1986
LEGISLATIVE REFERRAL MEMORANDUM
SPECIAL
SPECIAL
TO:
Department of State - Lee Ann Berkenbile (647-4463)
Department of Health & Human Services - Fran White (245-7750)
National Security Council
SUBJECT: Department of Justice draft statement on H.R. 23, a bill
to permit certain Cuban and Haitian nationals to adjust
their immigration status to that of permanent resident
aliens.
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 10:00 a.m. -- 4/2/86.
(NOTE -- The House Judiciary Immigration subcommittee is expected to
schedule a hearing on H.R. 23 in early April after the
Congress returns from the Easter recess.)
Direct your questions to Branden Blum (395-3454), the legislative
attorney in this office.
James (Jam C. Murr for
Assistant Director for
Legislative Reference
Enclosure
3 9: 9:09
CC: Yred Fielding
Tara Treacy
John Cooney
Mike Margeson
86
16:16
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NO. 001
002
Department of Justice
STATEMENT
OF
RICHARD NORTON
ASSOCIATE COMMISSIONER
EXAMINATIONS
U.S. DEPARTMENT OF JUSTICE
IMMIGRATION AND NATURALIZATION SERVICE
CONCERNING
H.R. 23
ON
April
-,
TRACH-95, 1986
9.00 M
Mr. Chairman, Members of the Subcommittee:
Thank you for the opportunity to offer the views of the Department of Justice
on H.R. 23.
The bill is designed to permit certain Cuban and Haitian nationals to adjust
their immigration status to permanent resident aliens.
The Department of Justice concurs with the members of the subcommittee in the
belief that there should be parity in the treatment of those designated
Cuban/Haitian Entrants. The Department further believes that immigration
reform and relief for specific nationality groups should not be accomplished
piecemeal by nationality specific legislation. While we support the intent of
H.R. 23, we again take the position that the preferable response rests with
enactment of the immigration reform legislation. Until the outcome of the
reform legislation is decided, we believe 10 1s premature to take @ position on
H.R.
23
We will continue in our support of a similar provision for legalization of this
group contained in the reform legislation currently pending.
The Department does have some technical concerns with the language of H.R. 23.
In part, the bill calls for the adjustment of status of Cuban nationals who
have been designated "Cuban/Haitian Entrants Status Pending)". These
nationals, who entered during the Mariel time period, are eligible for the
provisions of P.L. 89-732, the Cuban Refugee Adjustment Act of 1966. Since
April 1, 1985, the Service has accepted applications for adjustment of status
from over 53,000 Mariel Cubans, and has completed processing and adjusted the
status of approximately 23,000 applicants. As H.R. 23 does not repeal the
Cuban Refugee Adjustment Act and specifically provides in section (f) that
nothing shall preclude an alien from seeking permanent resident status under
any other provision of law for which he or she may be eligible, we shall
continue to enforce the provisions of the Cuban Adjustment Act. This will have
the effect of treating nationals from Cubs differently from nationals of Haiti.
We therefore recommend that repeal of PL 89-732 be included in this proposal.
We also continue to be concerned with section (b)(2) of HR 23. This section
provides permanent residence for an alien who "is a national of Cuba or Haiti,
who arrived in the United States before January 1. 1982, with respect to whom
any record was established by the Immigration and Naturalization Service before
January 1, 1982 ...." It is unclear what the subcommittee intends by the
term "any record," as the term is not defined under the present law or in this
legislation.
We are also concerned with the proposed cutoff date of January 1, 1982. It
should be noted that the Executive Order and Presidential Proclamation
authorizing the interdiction of illegal aliens on the high seas were both
signed on September 29, 1981, and the first interdictions occurred some fifteen
days later. We do not feel it appropriate to reward those individuals who
successfully evaded this interdiction, which the present proposal would do. We
therefore recommend that the cutoff date be established at October 1, 1981.
Similarly, we would not oppose a roll-back date for adjustment of status to
that same date.
This completes my prepared testimony. I would be glad to respond to any
questions which you may have.
THE WHITE HOUSE
WASHINGTON
April 3, 1986
MEMORANDUM FOR BRANDEN BLUM
LEGISLATIVE ATTORNEY
OFFICE OF MANAGEMENT AND BUDGET
FROM:
JOHN G. ROBERTS 222
ASSOCIATE COUNSEL TO THE PRESIDENT
SUBJECT:
DOJ Draft Report on H.R. 2184, a Bill to
Provide for Administrative Naturalization
Counsel's Office has reviewed the above-referenced draft report
and finds no objection to it from a legal perspective.
ID #.
CU
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
O - OUTGOING
H . INTERNAL
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Date Correspondence
Name of Correspondent: / James mun
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(B)
(C)
Subject: DOJ draft report on H.R. 2184, a bill
to provide for administrative naturalization
ROUTE TO:
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CUHOLL
ORIGINATOR 84,03,31
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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
Conser
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:
BECLICE
Type of Response = Initials of Signer
Code = "A"
Completion Date = Date of Outgoing
Comments:
ОИГА
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
B THAT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
March 31, 1986
SPECIAL
LEGISLATIVE REFERRAL MEMORANDUM
SPECIAL
TO:
Department of State - Lee Ann Berkenbile (647-4463)
National Security Council
Administrative Office of the U.S. Courts
SUBJECT: Department of Justice draft report on H.R. 2184, a bill
to provide for administrative naturalization.
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, April 3, 1986.
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: Fred Fielding
Tara Treacy
John Cooney
Mike Margeson
U.S. Department of Justice
Office of Legislative and Intergovernmental Affairs
Office of the Assistant Attorney General
Washington, D.C. 20530
The Honorable Peter W. Rodino, Jr.
Chairman, Committee on the Judiciary
United States House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:
This respond to your request for the views of the Department of
Justice on H.R. 2184, a bill to amend title III of the Immigration
and Nationality Act to provide for administrative naturalization.
For the reasons set forth below, this Department recommends
against enactment of this legislation in its present form.
As proposed, H.R. 2184 would:
-- vest naturalization authority in the Attorney General;
-- limit authority to naturalize to immigration judges;
-- provide de novo review of denied cases by federal district
courts; and
-- reduce residence in a State from six months to three
months to establish residence for naturalization.
The transfer of naturalization authority from the courts to the
Attorney General represents an excellent change in current
practice, and the Department wholeheartedly endorses it. The
Department also supports the reduction in the State residence
requirement, as well as several other alternatives to existing
law, such as substitution of the word "application" for the word
"petition".
The Department strongly opposes, however, the provisions for
limiting naturalization authority to immigration judges (IJs), and
for de novo review by the federal courts.
Many Immigration and Naturalization Service (INS) offices do not
have judges assigned to them, and those that do are very heavily
backlogged. At some location, new cases are being docketed for IJ
hearing three years hence because of the heavy caseload. A
conservative estimate of the number of additional IJs needed to
accommodate the naturalization workload upon passage of H.R. 2184
shows that at least 22 new judges would be required, and these
would have to travel at least half their time. The annual cost
per judge, including travel would be $78,629, for a total of
$1,572,580, assuming the 22 new IJs were hired.
Cost estimates for administrative naturalization where the INS
handles the naturalization and the ceremony in all cases reflect a
total savings of $1,294,900. Thus, it appears that the government
would actually be out of pocket some $300,000 to achieve
administrative naturlization under H.R. 2184.
In the event that IJs are granted authority to naturalize aliens,
judicial review of their decisions should be restricted to the
record of proceedings. The standard of review should be "abuse of
discretion". As a practical matter, it would be anomalous for
immigration judges to have the authority to naturalize aliens
without review by the Attorney General, as is generally exercised
through the Board of Immigration Appeals.
We therefore cannot support passage of H.R. 2184 as introduced.
If, however, the bill were to be amended to remove the requirement
that immigration judges perform the naturalization, as well as the
provision for de novo review by federal courts, then our position
would be a favorable one.
The Office 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
Office of Legislative and
Intergovernmental Affairs