United States. President's Commission on Immigrati.

Hearings online

. (page 9 of 35)
Online LibraryUnited States. President's Commission on ImmigratiHearings → online text (page 9 of 35)
Font size
QR-code for this ebook


After this reserve is arrived at under each quota, allotments are prepared for
nonpreference applicants upon the basis of the tabulation of world-wide regis-
trations, so that all applicants registered within a certain date, regardless of
location, receive quota numbers during the same month.

It should be borne in mind that section 3 (c) of the Displaced Persons Act,
as amended, provides for the allotment of 50 percent of the nonpreference portion
of the quota for issuance under that act. The nonpreference portion is an un-
known quantity since preference demands fluctuate from time to time. It there-
fore requires careful policing of quotas to maintain this balance, which may
be in complete accord one day, and the nest day be totally disrupted by the return
of quota numbers from offices.

The return of quota numbers presents not only a problem insofar as section
3 (c) is concerned, but administratively otherwise.

Under the present law, it is just as essential that as much of the 10-percent
monthly limitation be utilized each month as that this limitation not be exceeded,
in order that all quota numbers are utilized. "While the new Immigration and
Nationality Act permits issuance during the eleventh and twelfth months in excess
of the 10-percent monthly limitation, it is nbt felt advisable to have any appro-
ciable number of quota numbers on hand under oversubscribed quotas for June
issuance. Failure of applicants to pass medical examinations, or to secure exit
permits by raid-.June would result in the return of quota numbers too late for
utilization elsewhere. It is therefore considered administratively advisable to
exhaust quotas by the end of the tenth month, issuing any left-overs during
the eleventh month.

Adjustments, i. e., visas issued under wrong quota, reductions by section 19 (c),
and special-act cases, are made against the total anniaal quota and may effect
monthly limitations, where such reductions are heavy enough to absorb 50 per-
cent of the quota which is not unusual.

It should also be remembered that many quotas are now mortgaged beyond:
the year 2000 by reason of the Displaced Persons Act.



1886 COMMISSION ON IMMIGRATION AND NATURALIZATION

Administration under a unified quota would l)e similar to tlie above, except
that all nationalities of course would be merged. It may be pointed out that
those now ineligible to citizenship could absorb large numbers of quota numbers
now unused under presently undersubscribed quotas. Were any statutory pref-
erences provided for under the unified quota, heavy demands could cause over-
subscripti(m thereunder, which would require a waiting list under each category
or preference oversubscribed, in addition to the nonpreference waiting list.



INFORMATION PROVIDED BY THE UNITED STATES DEPARTMENT OF
STATE CONCERNING THE REVIEW AND APPEAL PROCEDURES USED
IN THE PASSPORT DIVISION

Department of State,
Washington, October 23, 1952.
Mr. Harry N. Rosenfield,
Executive Director,

President's Commission on Immigration and Naturalization,
Washington, D. C.

My Dear Mr. Rosenfield : The Department has received your letter of October
14, 1952, requesting information relative to the review and appeal procedures
used in Ihe Passport Division.

There is enclosed a copy of the departmental order dated October 31, 1941,
under which there was established in the Passport Division a board of review.
In a memorandum dated March 12, 1941, the following reasons were given in
support of the establishment of a board of review :

"In view of the increasing importance to the persons involved of decisions
rendered pertaining to nationality ; in view of the provisions relating to the loss
of nationality contained in section 401 of the nationality law of 1940 ; in view
of the presumption relating to the loss of nationality which will arise under
the provisions of section 402 of the Nationality Act of 1940 ; in view of the loss
of nationality which will result through foreign residence under the provisions
of section 404 in the cases of persons who acquired American nationality through
naturalization ; in view of the requirement that reports of expatriation be sub-
mitted ; in view of the provisions of section 501 of the Nationality Act of 1940
whereunder reports of expatriation which are submitted by consular officers
must be reviewed by the Department of State before transmitting one copy
thereof to the Department of Justice and one copy to the person expatriated ;".

The board has adopted no formal rules of procedure. The persons concerned
may appeal to the board either directly or through an attorney. They may
have their cases considered upon the basis of existing record, upon the basis
of the record plus any additional evidence they may desire to submit, or they
may request a formal hearing at which witnesses may appear and the interested
person may be represented by an attorney. The board has taken the attitude
that it is its duty to see that the provisions of law involved are fully understood
by the person appearing before it or his attorney, that the facts in the Depart-
ment's possession are disclosed and that the person involved is given every
opportunity to present his case in detail. It is not unusual for the board to
advise an attorney representing a client of certain provisions in the nationality
law which may be beneficial to the client. On the other hand, the board has
no discretion under the law which would enable it to disregard any specific pro-
vision of law or to waive the operation of the law. Cases coming before the
board are decided solely upon the evidence before the board and the law appli-
cable to the particular case. If the board feels that a substantial doubt exists
and the doubt cannot be cleared up, the doubt is resolved in favor of the person
concerned. This office has been gratified by expressions of appreciation from
attorneys relative to help and advice given such attorneys by the board, and no
instance has come to the attention of this Division in which an attorney has
complained that the board has been unfair or arbitrary.

This board deals entirely with cases in which the question involved is legal,
usually the question of whether a person has performed an act which resulted
in the loss of the nationality of the United States. It should not be confused
with the board recently created by the Secretary of State to consider the cases
of persons who have been refused passports of the United States for reasons
of jiolicy.



COMMISSION ON IMMIGRATION AND NATURALIZATION 1887

Tlu've is enclosed a leaflet coiUainiiig a sui>iilement to tiie Passport Regulations
wbich explains the scope of the board recently created to consider the cases of
persons who have been refused passports for reasons of policy or national security.
This leaflet is self-explanatory.

The i>rocedure relative to suits for declaratory judgment and the issue of
certiflcates of identity in connection with such suits is set forth in title 22-CFR
nO.lS lo ri().2!>, inclusive. When an American consular otflcei' refuses a certificate
of identity and an api)eal is taken to the Secretary of State, the case is carefully
reviewed in its entirety by at least three oflicers of this Divisi(»n. It has been
the view of the oflicers of this Division that the certificates should not he refused
unless the case shows beyond reasonable doubt that the suit was not brought
in good faith or does not have a substantial basis. Very few certiflcates are
refused in cases where the suit involves a legal question. In the main, certifl-
cates have only lieen i-efused in cases in which the Department felt that the
pex'son bringing the suit had failed to establish by any reasonable evidence that
he was in fact the person he claimed to be. Some certificates have been refused
in cases where the evidence indicated that the suit was not brought in good faith
but was brctught mtM-ely as a subterfuge to obtain a document under which the
person involved could obtain entry into the United States.
Sincerely yours,

Willis H. Young,
Acting Chief, Passijort Division.

Dkpaktmextal Order 994

There is hereby created in the Passport Division, as of November 1, 1941, a
board of review consisting of three persons, two of whom shall he senior attorneys
having exiierience in citizenship and related matters. The third shall lie a foreign
service officer, whenever one Is available for such assignment; otherwise, an
officer similarly qualified in citizenship work. The Assistant Chief of the Passport
Division is designated as adviser to the board.

The board will review all cases involving the loss of nationality under the
nationality laws of the United States and will conduct, in appropi-iate instances,
formal or informal hearings. It will also handle such other matters as may be
as.signed to it by the Chief of the Passport Division.

The findings of the board of review will be subject to the approval of the
Technical Adviser and Assistant Chief of the Passport Division, Mr. John J.
Scania n.

The board will provide a forum for hearings and discussions in order to
obviate as far as may be practicable hardships and inequities in the application
of the new Nationality Act of 1940, and will make in every case reviewed by it
a formal record for the files of the Department with respect' to the pertinent facts
and laws involving the possible lo.ss of nationality or other matter assigned to
the board.

The Chief of the Passport Division is hereby authorized to make such regula-
tions as may be necessary to carry out the purpose of the establishment of the
board of review.

CORDELL Hull.
Dkp.vktment of State, Octohcr 31, Ifl.'/L

supplemext to passport regulations

Title 22 — Foreign Relations

Chapter I — Department of State

Part 51 — Passports

Subpart B — Regulations of the Secretary of State

Pursuant to the authority vested in nie by paragraph 120 of Executive Order
No. 7.s."(i. issued (.n March :>A. VX'.S Ci F. R. (iSl ; 22 C. F. R. 'A.ll), under authority
of section 1 of the Act of Congress approved July ;'., 192(> (44 Stat. SS7 ; 22 U. S. C.
211 (a)), the regulations issued on March 81, V.VAS (Departmental Order 749)
as amended (22 C. F. R. r,l.l()l to ni.l.'M) are hereby further amended by the
addition of new sections rti.V.i') to 51.148 as follows :



1888 COMMISSION ON IMMIGRATION AND NATURALIZATION

'""§ 51.135 Limitation on Issuance of Passports to Persons Supporting Commu-
nist Movement. In order to promote the national interest by assuring that persons
who support the world Communist movement of which the Communist Party
is an integral unit may not, through use of United States passports, further the
purposes of that movement, no passport, except one limited for direct and
immediate return to the United States, shall be issued to :

"(a) Persons who are members of the Communist Party or who have recently
terminated such membership luider such circumstances as to warrant the con-
clusion — not otherwise rebutted by the evidence — that they continue to act in
furtherance of the interests and under the discipline of the Communist Party ;

"(b) Persons, regardless of the formal state of their affiliation with the
Communist Party, who engage in activities which support the Communist move-
ment under such circumstances as to warrant the conclusion — not otherwise
rebutted by the evidence — that they have engaged in such activities as a result
of direction, domination, or control exercised over them by the Commimist
movement.

"(c) Persons, regardless of the formal state of their affiliation with the
Communist Party, as to whom there is reason to believe, on the balance of all
the evidence, that they are going abroad to engage in activities which will advance
the Communist movement for the purpose, knowingly and willfully of advancing
that movement.

"§ 51.1.36 Limitations on Issuance of Passports to Persons Likely to Violate
Lans of the United States. In order to promote the national interest by assuring
that the conduct of foreign relations shall be free from unlawful interference,
no passport, except one limited for direct and immediate return to the United
States, shall be issued to persons as to whom there is reason to believe, on the
balance of all the evidence, that they are going abroad to engage in activities
while abroad which would violate the laws of the United States, or which if
carried on in the United States would violate such laws designed to protect the
security of the United States.

"§ 51.1.37 Notification to Person Whose Passport Application Is Tentatively
Disapproved. A person whose passport application is tentatively disapproved
under the provisions of § 51.1.35 or § 51.1.36 will be notified in writing of the
tentative refusal, and of the reasons on which it is based, as specifically as in
the .iudgment of the Department of State security considerations permit. He
shall be entitled, upon request, and before such refusal becomes final, to present
his case and all relevant information informally to the Passport Division. He
shall be entitled to appear in person before a hearing officer of the Passport
Division, and to be represented by counsel. He will, iipon request, confirm his
oral statements in an affidavit for the record. After the applicant has presented
his case, the Passport Division will review the record, and after consultation
with other interested offices, advise the applicant of the decision. If the decision
is adverse, such advice will be in writing and shall state the reasons on which
the decision is based as specifically as within the .iudgment of the Department
of State security limitations permit. Such advice shall also inform the applicant
of his riirht to appeal under § 51.138.

"§ 51.138 Appeal hy Passport Applicant. In the event of a decision adverse
to the applicant, he shall be entitled to appeal his case to the Board of Passport
Appeals provided for in § 51.139.

"§ 51.1.39 Creation and Functions of Board of Passport Appeals. There is
hereby established within the Department of State a Board of Passport Apneals,
hereinafter referred to as the Board, composed of not less than three officers
of the Department to be designated by the Secretary of State. The Board shall
act on all appeals under § 51.138. The Board shall adopt and make public its
own rules of procedures, to be approved by the Secretary, which shall provide
that its duties in any case may be performed by a panel of not less than three
members acting by majority determination. The rules shall accord applicant the
right to a hearing and to be represented by counsel, and shall accord applicant
and each witness the right to inspect the transcript of his own testimony.

"§ 51.140 Duty of Board to Advise Secretary of State on Action for Disposition
of Appealed Cases. It shall be the duty of the Board, on all the evidence, to
advise the Secretary of the action it finds necessary and proper to the disposition
of cases appealed to it, and to this end the Board may first call for clarification
of the record, further investigation, or other action consistent with its duties.



COJMMISSIOX ON IMMIGRATION AND NATURALIZATION 1889

"§ 51.141 />V/.sr.s for Findinf/s of Fact hi) Board, (a) In making or reviowiiig
fiiuliii.irs of fact, the I'.oard, and all others with responsibility for .so doing under
§§ 51.1o.vr)l.l-i:{, shall he convinced by a preponderance of the evidence, as would
a trial court in a civil case.

"(b) Consistent and prolonged adherence to the Communist Party line on a
variety of issues and through shifts and changes of that line will suffice, prima
facie, to support a finding under § 51. 135 (h).

"§51.142 Oath or Aflinnation hu ApiJlicant aft to l\IcmhcrKhip in Communist
Partij. At any stage of the proceedings in the Passport Division or before tlie
Board, if it is deemed tiecessary, the applicant may be required, as a part of his
application, to subscribe, under oath or affirmation, to a statement with respect
to present or past membership in the Communist I»arty. If applicant states that
he is a Comuumist, refusal of a passport in his case will be without further
proceedings.

"§51.143 AppUcahUitu of Sections 51.135-51.1 'fS. When the standards set
out in § 51.135 or § 51.1.3G are made relevant by the facts of a particular ease to
the exercise of the discretion of the Secretary under § 51.75, the standards in
§§ 51.135 and 51.13(5 shall be applied and the procedural safeguards of §§51.137-
51.142 shall be followed in any case where the person affected talves issue with the
action of the De[iartnient in granting, refusing, restricting, withdrawing, cancel-
ling, revoking, extending, renewing, or in any other fashion or degree affecting
the ability of a person to use a passport through action taken in a particular case."
P^or the Secretary of State.

W. K. Scott,
Acting Deputy Under Seci-etary.

INFORMATION PROVIDED BY THE UNITED STATES DEPARTMENT OF
STATE CONCERNING REVIEW PROCEDURES WITH REGARD TO THE
ISSUANCE OR REFUSAL OF VISAS

Mr. Harry N. Rosenfield,

Executive Director, President's Commission on Immigration and Naturali-
zation, Washington 25, D. C.

My Dear Mr. Rosenfield : Reference is made to your letter of October 7,
1952. requesting (1) a comprehensive statement giving a factual description
of the various types of review procedures in effect with regard to the issuance
or refusal of visas, (2) procedures and policies relating to the review or re-
con.sideration of visa cases "in which Members of the Congress, other officials of
the Government, attorneys, and other individuals having an interest therein
intervene in the alien's behalf," and (3) "an enumeration of those categories of
cases which the Department has directed must be submitted for advisory
opinions before final action is taken."

The review of the issuance of an immigration or nonimmigrant visa is com-
pletely informal and not a matter of established procedure. Actually no review
(in the sense of a reconsideration of an action taken) is made of the issuance
of a visa unless there is additional information made available on the basis
of which it is believed that a visa may have been obtained by fraud or mis-
representation or grounds for inadmissibility is established by a review of the
case, the visa may be canceled or revoked. In such instances the review may take
place by one or more officers, and the procedure for refusal, which is explained
before, is followed.

Procedures for the review of refiisals are set forth in Title 22 of the Code of
Federal Regulations in section 42.348 for immigration visas. This provision
Is as follows : "Whenever there is more than one consular officer at a consular
office, a refusal should be reviewed carefully by a second officer and both should
sign the memorandum of refusal provided for in section 42.350. In every case
the officer having supervision over visa work should sign the memorandum of
refusal." The memorandum of refusal provision is as follows : "Every re-
fusal of an immigration visa must be explained in a niemorandnm of refusal
prepared on Form 290 and placed in the file of visa refusals. The memorandum
should contain sufficient information to form the basis of an adequate report
to the Department or to an interested person if such report should be requested
at some later date." In actual practice, this review procedure is extended to
refusals of all types of visas.



1890 COMMISSION ON IMMIGRATION AND NATURALIZATION

In addition, of course, wlienever tliere is sufficient donbt in the minds of con-
sular officers, a case may be reviewed in tlie Visa Division tlirougla a request for
an advisory opinion. Tills type of review is done prior to refusal, but in actual
practice the consular officer may request an advisory opinion because he wants
to be certain of his grounds for refusal, which he and his colleagues have al-
read.v decided.

As indicated in your letter, in actual practice the authority of the consular
officer to issue or refuse is placed under an automatic review prior to issviance
or refusal for certain types of cases. This kind of review is carried out under
the advisory opinion procedure, which is dealt with in a subsequent para-
graph.

There is no established procedure for the review or reconsideration of cases
in which Members of the Congress, other individuals having attorneys and
other individuals having an interest intervenes in the alien's behalf. Such
reviews or reconsiderations have to be made according to the nature of the case.
In terms of policy, if the circumstances justify a true review or reconsidera-
tion, it will be done. Grounds for a full-fledged review or reconsideration are
based on such things as (1) submission of additional or changed material facts,
(2) evidence or allegations of fraud or misrepresentation, (3) evidence or alle-
gations of arbitrary or unfounded action taken, and (4) evidence or allegations
of error or improper application of the law and regulations. In addition, review
or reconsideration may be occasionally granted primarily because of undue ad-
ministrative delays or for humanitarian or undue hardship reasons. The pro-
cedure under which the review or reconsideration is carried out varies because
the circumstances under which the review or reconsideration is granted may
require the reviewing consular officer to take such steps as ( 1 ) verifying informa-
tion or conducting further investigations, (2) submitting a request for ad-
visory opinion, or (3) automatically reviewing a number of similar cases.
If the review consideration is initiated by the Visa Division or considei-ed under
a request by the consular officer, the reviewing officer may have to take such
steps as to (1) obtain a full report from the consulate at which the visa was
issued or refused, (2) verify information, (3) initiate further investigations,
(4) initiate entirely new investigations of allegations of fraud or error or ad-
ministrative arbitrariness, or (5) automatically review and reconsider a
number of related or similar cases.
Sincerely yours,

EinvARD S. Maney.
Chief, Visa Division.



INFORMATION PROVIDED BY THE UNITED STATES DEPARTMENT OP
STATE CONCERNING REASONS FOR THE UNDERISSUANCE OF IM-
MIGRATION VISAS FOR A NUMBER OF IMMIGRATION QUOTAS AFTER
THE PASSAGE OF THE IMMIGRATION ACT OF 1024

Department of State,
Washington, October 23, 1952.
Mr. Harry N. Rosenfield,

1740 G Street NW., Washinf/ton, D. C.
My Dear Mr. Rosenfield : I refer to your letter of October 7, 1952, requesting
information regarding the reasons for the underissuance of immigration visas
under a number of immigration quotas after the passage of the Immigration Act
of 1924.

From the statistical tables which I understand have been furnished to you
relating to the issuance of visas under the various quotas for the fiscal years
1925 to 1945. inclusive, you have detailed information regarding each specific
quota. I will therefore not repeat the figures but may make the following
observations bearing on this subject.



COMMISSION ON IMMIGRATION AND NATURALIZATION 1891

Yoii will note tliat during the fiscal years 1925-29, that is, before the depression,
there was i)rac'tieall.v a complete issuance of the quotas for Northern and West-
ern Europe and for Southern and Eastern F]urope and the Near East.

During tile depression i)eriod in wliich there was widespread unemployment
in tile United States the Department informed consular otfices that particular
attention sliould be given to the (piestion whether an ali(>n visa applicant was
inadmissihle into the United States as a person likely to become a public charge,
and that unless a visa applicant could establish l)y satisfactory evidence that
he was not lilcely to l)ecome a public charge a visa would under the law have
to be withheld. This action was taken in the light of information furnished
by the White House and the Att



Online LibraryUnited States. President's Commission on ImmigratiHearings → online text (page 9 of 35)