FACILITATING THE DEPORTATION OF ALIENS FROM THE UNITED STATES, PROVIDING FOR THE SUPERVISION AND DETENTION PENDING EVENTUAL DEPORTATION OF ALIENS WHOSE DEPORTATION CANNOT BE READILY EFFECTUATED BECAUSE OF REASONS BEYOND THE CONTROL OF THE UNITED STATES

AUGUST 4, 1949.-Committed to the Committee of the Whole House on the State of the Union and ordered to be printed

Mr. WALTER, from the Committee on the Judiciary, submitted the following

REPORT

[To accompany H. R. 10)

The Committee on the Judiciary, to whom was referred the bill (H. R. 10) to facilitate the deportation of aliens from the United States. to provide for the supervision and detention pending eventual deportation of aliens whose deportation cannot be readily effectuated because of reasons beyond the control of the United States, and for other purposes, having considered the same. report favorably thereon with amendment and recommend that the bill do pass.

The amendment is as follows:

Strike out all after the enacting clause and insert in lieu thereof the following

That section 20 of the Immigration Act of February 5, 1917, as amended (39 Stat. 890; 57 Stat. 553; 8 U. S. C. 156), is hereby amended to read as follows:

"SEC. 20. (a) That the deportation of aliens provided for in this Act and all other immigration laws of the United States shall be directed by the Attorney General to the country specified by the alien, if it is willing to accept him into its territory; otherwise such deportation shall be directed by the Attorney General within his discretion and without priority of preference because of their order as herein set forth, either to the country from which such alien last entered the United States; or to the country in which is located the foreign port at which such alien embarked for the United States or for foreign contiguous territory or to any country in which he resided prior to entering the country from which he entered the United States; or to the country which had sovereignty over the birthplace of the alien at the time of his birth; or to any country of which such an alien is a subject, national, or citizen; or to the country in which he was born; or to the country in which the place of his birth is situated at the time he is ordered deported; or, if deportation to any of the said foregoing places or countries is impracticable, inadvisable, or impossible, then to any country which is willing to accept such alien into its territory. If the United States is at war and the de

H. Repts., 81-1, vol. 5- -87

If

portation, in accordance with the preceding provisions of this section, of any alien who is deportable under any law of the United States, shall be found by the Attorney General to be impracticable or inconvenient because of enemy occupation of the country whence such alien came or wherein is located the foreign port at which he embarked for the United States or because of other reasons connected with the war, such alien may, at the option of the Attorney General, be deported (1) if such alien is a citizen or subject of a country whose recognized government is in exile, to the country wherein is located that government in exile, if that country will permit him to enter its territory; or (2) if such alien is a citizen or subject of a country whose recognized government is not in exile, then, to a country or any political or territorial subdivision thereof which is approximate to the country of which the alien is a citizen or subject, or, with the consent of the country of which the alien is a citizen or subject, to any other country. If deportation proceedings are instituted at any time within five years after the entry of the alien, such deportation, including one-half of the entire cost of removal to the port of deportation, shall be at the expense of the contractor, procurer, or other person by whom the alien was unlawfully induced to enter the United States, or, if that cannot be done, then the cost of removal to the port of deportation shall be at the expense of the appropriation for the enforcement of this Act, and the deportation from such port shall be at the expense of the owner or owners of such vessels or transportation lines by which such aliens respectively came, or, if that is not practicable, at the expense of the appropriation for the enforcement of this Act. deportation proceedings are instituted later than five years after the entry of the alien, or, if the deportation is made by reason of causes arising subsequent to entry, the cost thereof shall be payable from the appropriation for the enforcement of this Act. A failure or refusal on the part of the masters, agents, owners, or consignees of vessels to comply with the order of the Attorney General to take on board, guard safely, and transport to the destination specified any alien ordered to be deported under the provisions of this Act shall be punished by the imposition of the penalties prescribed in section 18 of this Act: Provided, That when in the opinion of the Attorney General the mental or physical condition of such alien is such as to require personal care and attendance, the said Attorney General shall when necessary employ a suitable person for that purpose, who shall accompany such alien to his or her final destination, and the expense incident to such service shall be defrayed in the same manner as the expense of deporting the accompanied alien is defrayed. Pending final determination of the deportability of any alien taken into custody under warrant of the Attorney General, such alien may, in the discretion of the Attorney General (1) be continued in custody; or (2) be released under bond in the amount of not less than $500, with security approved by the Attorney General; or (3) be released on conditional parole. It shall be among the conditions of any such bond, or of the terms of release on parole, that the alien shall be produced, or will produce himself, when required to do so for the purpose of defending himself against the charge or charges under which he was taken into custody and any other charges which subsequently are lodged against him, and for deportation if an order for his deportation has been made. When such an order of deportation has been made against any alien, the Attorney General shall have a period of six months from the date of such order within which to effect the alien's departure from the United States, during which period, at the Attorney General's discretion, the alien may be detained, released on conditional parole, or upon bond in an amount and specifying such conditions for surrender of the alien to the Immigration and Naturalization Service as may be determined by the Attorney General. If deportation has not been practicable, advisable, or possible, or departure of the alien from the United States has not been effected, within six months from the date of the order of deportation the alien shall become subject to such further supervision and detention pending eventual deportation as is authorized hereinafter in this section

(b) Any alien against whom an order of deportation, heretofore or hereafter Issued, has been outstanding for more than six months shall, pending eventual deportation, be subject to supervision under regulations prescribed by the Commissioner of Immigration and Naturalization, with the approval of the Attorney General. Such regulations shall require any alien subject to supervision (1) to appear from time to time before an officer of the Immigration and Naturalization Service for identification; (2) to submit, if necessary, to medical and psychiatric examination at the expense of the United States; (3) to give information under oath as to his nationality, circumstances, habits, associations, and activities, and such other information whether or not related to the foregoing as the Attorney General may deem fit and proper; and (4) to conform to such

reasonable written restrictions on his conduct or activities as are prescribed by the Commissioner of Immigration and Naturalization in his case. Any alien who is found by the Attorney General to have willfully failed to comply with such regulations, or to have willfully failed to appear or to give information or submit to medical or psychiatric examination if required, or to have knowingly given false information in relation to the requirements of such regulations, or to have knowingly violated a reasonable restriction imposed upon his conduct or activity, shall be thereafter detained in accordance with subsection (c) until such time as the Attorney General orders other disposition of the alien's case. Nothing in this subsection shall preclude the Attorney General at any time from directing removal of any alien of the classes described in subsection (c) from supervision under this subsection to detention as prescribed in subsection (c).

"(c) Any alien who falls within one or more of the classes of deportable aliens described in section 19 (d) of this Act, and any other alien, regardless of the charge or charges in the warrant of deportation against him, who entered the United States within ten years preceding the issuance of a warrant of arrest against him, may, in the discretion of the Attorney General, be denied the privilege of release under supervision as provided in subsection (b), and instead the alien may be taken into custody and transported to such place of detention as may be designated by the Attorney General and there, or at any such other place or places as may thereafter be designated by the Attorney General, be detained, though not at hard labor, pending eventual deportation, or until departure from the United States otherwise shall have been arranged, or until the Attorney General upon sufficient evidence of good cause shall order supervision of the alien under subsection (b). In determining whether good cause has been shown to justify releasing the alien and ordering his supervision under subsection (b), the Attorney General shall take into account such factors as (1) the age, health, and peried of detention of the alien; (2) the effect upon the national security and public perce or safety; (3) the likelihood of the alien's following a course of conduct which made or would make him deportable; (4) the character of the efforts made by such alien himself and by representatives of the country or countries to which his deportation is directed to expedite the alien's departure from the United States; (5) the reason for the inability of the Government of the United States to secure passports, other travel documents, or deportation facilities from the country or countries to which the alien has been ordered deported; and (6) the eligibility of the alien for discretionary relief under the immigration laws.

"(d) Any alien subject to detention under subsections (b) or (c) of this section may be released, in the discretion of the Attorney General, from detention under subsection (c) and placed under supervision under subsection (b), on a showing which shall satisfy the Attorney General that the alien has obtained a travel document or made other approved arrangements to leave the United States, and, if considered necessary, upon giving a departure bond conditioned as prescribed by the Attorney General, with good and sufficient sureties approved by the Attorney General. Should any alien return to the United States after having departed pursuant to this subsection and be excluded and his deportation following such exclusion be impracticable, or if he enters the United States unlawfully, he shall again be taken into custody and, regardless of the charges upon which he was deportable, shall be thereafter subject to treatment in accordance with subsection (c). In any such case, the previous warrant of deportation against him shall be considered as reinstated from its original date of issuance The Attorney General is hereby authorized and directed to arrange for appropriate places of detention for those aliens required by this section to be taken into custody and detained. Nothing in this section shall be construed so as to prevent any alien detained under subsection (c) of this section from questioning, on petition for writ of habeas corpus filed in the district court of the United States of the district wherein he is detained, the validity of such detention.

(e) Before the Attorney General may order the release under supervision of any alien detained under subsection (c), he shall prepare and file with all the other papers relating to such case, a synopsis of the evidence upon which such order is to be made and the reasons for such order.

"(f) If any alien subject to supervision or detention under subsections (b) or (c) of this section is able to depart from the United States except that he is financially unable to pay his passage the expense of such passage to the country to which he is destined may be paid from the appropriation for the enforcement of this Act, unless such payment is otherwise provided for under this Act.

"(g) No court shall have jurisdiction to release on bond or otherwise any alien detained under any provision of law relating to the exclusion or expulsion of

aliens at any time prior to a decision of court in his favor which is not subject to further judicial reviews."

SEC. 2. Nothing in the provisions of sections 5, 7, 8, and 10 of the Act of June 11, 1946 (60 Stat. 239, 241, 242, 243; 5 U. S. C. 1004, 1006, 1007, 1009), or title 28, United States Code, sections 2201 and 2202, shall be applicable to the provisions of any law relating to the immigration, exclusion, expulsion, or registration of aliens or to the nationality or naturalization laws of the United States; nor shall the provisions of section 503 of the Nationality Act of 1940 (54 Stat. 11711172; 8 U. S. C. 903) be applicable in any case which involves a determination of the right of a person to be admitted to or to remain in the United States under the provisions of any of the immediately foregoing described laws.

PURPOSES OF THE BILL

There are four major purposes of H. R. 10. First, the bill will amend an extremely ambiguous statute dealing with the places to which an alien who is deportable may be sent and the procedure for choosing that place. Second, the bill sets forth with greater particularity than existing law the procedure and control which the Attorney General will follow and exercise in dealing with an alien arrested for the purpose of showing cause why he should not be deported. Third, it will deny to any court jurisdiction to release on bond or otherwise any alien detained under any provision of law relating to the exclusion or expulsion of aliens at any time prior to a decision of court in the alien's favor which is not subject to further judicial reviews. Finally, it will return,without doubt to the political (executive) branch of the Government certain functions in connection with the exclusion and expulsion of aliens which historically have been vested in that branch, and which the Supreme Court has said rightly belong to the political branch, rather than to the judiciary.

GENERAL INFORMATION

The first major purpose of the bill will be accomplished by rewriting the existing first sentence of section 20 of the Immigration Act of February 5. 1917 (39 Stat. 890, 54 Stat. 1238, 57 Stat. 553; 8 U. S. C. 156), as it appears in the first sentence of subdivision (a) of section 20 of the bill. The existing law in that sentence has been attacked by the courts in such language as a "single ill-drawn sentence" (U. Š. ex rel. Karamian v. Curran, C. C. A. 2. 16 F. (2d) 958), and the wide variety of decisions among the courts in construing its meaning shows plainly the difficulty which has been had with its construction. (Cf., for example. Wenglinsky v. Zurbrick, C. C. A. 6, 38 F. (2d) 985. reversed on certiorari, 282 U. S. 798; U. Š. ex rel. Di Paola v. Reimer. C. C. A. 2, 102 F. (2d) 40; and Glikas v. Tomlinson, 49 F. S. 104.)

Because of these and other conflicting court decisions the Government has many times found it necessary to approach the authorities of foreign governments requesting that a certain alien be allowed to return to that country, even though it was well known to our Government from past experience that the foreign country would not accept his return Very often several countries must be approached with regard to a certain alien. following the sequence of places or countries as presently set forth in section 20 of the 1917 act, before it is possible to reach a country which will accept the alien This results in entirely useless administrative work and delay, and at times in prolonged detention of a particular alien The new first sentence of section 20 (a) will avoid such results. The alien himself

ordinarily is in a better position to know which country will permit him to enter its confines than is this Government. The bill thus permits the alien in the first instance to name a single country to which he wishes to be deported, and if that country is willing to accept him his wish will be granted. This provision, of course, is not intended to permit the deportable alien to engage in a "fishing expedition" during which he may contact successively all or many of the nations of the world until he finds one which will accept him, and then to specify that country as the one to which he wishes to be deported. Such a procedure could easily be employed to delay deportation ad infinitum. The man is to name a country to which he wishes to be deported, and the burden of showing that that country is willing to accept him rests upon him.

The bill is also designed to establish without further doubt that, after the procedure just explained, the Attorney General may pick any of the remaining places set forth in the first sentence of subsection (a) to which to order the alien deported. It is expressly designed to overrule past court decisions which have held that the Attorney General must follow the order in which such places are set forth in the statute in choosing the place to which an alien must be deported. It is likewise sufficiently broad to allow the Attorney General to deport an alien to practically any country with which such alien may be expected to have ties through birth, nationality, or previous places of residence. Finally, if these efforts fail, he may be deported to any nation which is willing to accept such alien into its territory. In short, the bill attempts to do that which Judge Freed, in Glikas v. Tomlinson, supra, in 1943 stated he thought the existing section 20 was intended to do. namely:

It is the court's conclusion, from an analysis of the statute and the many decisions construing it, and from a canvass of the congressional reports attending its passage, that it was never intended that the Attorney General, if he failed to find a haven of refuge for a deportable alien in the country to which he was to be deported, should provide a safe asylum for him in the United States. While some of Judge Freed's judicial colleagues may not fully agree with this statement, the committee is of the opinion that it should be the law that an alien who has no legal right to remain in this country should be removed from our shores if possible, and that there is no obligation, legal or moral, "to provide a safe asylum for him in the United States," except in those cases which are now provided for in existing law. This bill is directed to that end.

The second through the sixth sentences of subsection (a) of the bill are a substantial reenactment of the same provisions in existing section 20.

However, the last four sentences of subsection (a) and the new subsections (b), (c), (d), (e), and (f) of section 20 constitute new legislation to accomplish the second main purpose of the bill, which is to outline by statute the procedure and control which the Attorney General will follow and exercise in dealing with an alien arrested in a deportation case. Existing law merely states generally that pending the final disposal of the case of any alien so taken into custody, he may be released under a bond of not less than $500, with security approved by the Attorney General, and conditioned that he shall be produced when required for a hearing on the charges against him and for deportation if found unlawfully in this country. This has often been