Wasserman, Jack

English

Duke Law Scholarship Repository

SOME DEFECTS IN THE ADMINISTRATIONOF OUR IMMIGRATION LAWSJACK WASSERMAN*Among the primary safeguards of our American way of life is the doctrine of officialresponsibility, the principle that Government officials are servants and not masters, andthat it is more important for the people to scrutinize the conduct of officials than it is forofficials to scrutinize the lives of the people.So said the minority of the Senate Judiciary Committee in opposing the McCarran-Walter Act.' With this principle in mind, let us scrutinize the conduct of our im-migration and consular officials and analyze the nature and extent of their encroach-ment upon the lives and liberties of our foreign-born.ADMINISmATIVE DisCmTioNImmigration officials are vested with wide discretion under our immigration laws.They have authority to adjust an alien's status to that of a permanent resident froma temporary' or an illegal status through procedures known as registry,' suspensionof deportation' and pre-examination.5  Deportable aliens may be permitted to remainif their removal will subject them to physical persecution' or if other factors warranta stay of deportation7 Parole of aliens and the terms of parole are also generallyvested in the sound discretion of our administrative officials.8Unfortunately, however, the exercise of these discretionary powers has producedexcesses of bureaucratic zeal that can only be categorized as a national disgrace.Thus, after a final order of deportation, many aliens are seized and deported withoutan opportunity to bid farewell to their families, to arrange their affairs, or even seekjidicial review. Similarly, discretion is still harshly exercised to deny relief fromdeportation to aliens with family ties, to the aged, and to the infirm. And alienson parole often find the conditions exacted by the authorities onerous and withoutbasis in logic or necessity. They have been compelled to break summer vacations tomake a personal report to the Immigration Service; weekly or monthly personal*A.B. 1932, City College of New York; LL.B. 1935, Harvard University. Member of the Districtof Columbia and New York bars; Vice President, Immigration Committee, American Bar Association.Member of the Board of Immigration Appeals, Department of Justice, 1943-46; Past President, Associa-tion of Immigration and Nationality Lawyers. Contributor to legal periodicals.'Senate Committee on the Judiciary, Revision of Immigration, Naturalization, and Nationality Laws,S. REP. No. 1137, 82d Cong., 2d Sess. pt. 2, at 7 (1952).66 STAT. 217, 8 U. S. C. § 1255 (1952).a 66 STAT. 219, 8 U. S. C. § 1259 (1952).'66 STAT. 214, 8 U. S. C. § 1254 (1952).'8 C. F. R. § 235a (Supp. 1956).'66 STAT. 212, 8 U. S. C. § 1253 (h) (1952).'8 C. F. R. § 24 3 .3 (b) (Supp. 1956).'66 STAT. 182, 8 U. S. C. § r182(d)(5) (1952)DEFECTS IN ADmiINISTRATIONreports are required when less frequent reports would suffice; and, without anyjustification, many aliens are denied an opportunity to leave a fifty- or one-hundred-mile area.A case in point is that of Nicolae Malaxa. A prominent seventy-one-year-oldindustrialist, considered to be the Henry Ford of Rumania, he was granted permanentresidence here in 1953. In 1955, he sought readmission to our shores with a validre-entry permit after a business trip abroad. The Commissioner of Immigrationdetained him, refused to advise him of charges, and restricted him to the state ofFlorida, away from his home, family, and business in New York. No groundswere advanced for this limitation upon his liberty. A United States District Courtset aside this restriction as arbitrary and an abuse of discretionThen, there is the case of Michael Spinella, who was kidnapped by our immi-gration officials while on a visit to Washington, D. C. He was denied an op-portunity to phone his attorney, to seek judicial review of his deportation order,to bid farewell to his family, or to gather his personal belongings prior to his de-portation to Italy.Nor are these gestapo-like tactics but isolated instances of administrative super-efficiency. 10 Wherever discretion is vested in our immigration authorities, theytend to assert that they are possessed with absolute, autocratic powers. This un-usual claim, so at variance with our democratic concepts, has been repeatedly re-jected by the courts.:" Nevertheless it is disturbing that the Immigration and Nat-uralization Service must seek refuge in the alleged sanctity of its arrogated absolutismrather than defend itself upon the basis of the reasonable exercise of its powers.THE UsE OF CONFIDENTIAL INFORMATIONThe McCarran-Walter Act authorizes the use of confidential information onlyin the cases of arriving aliens where its disclosure will be prejudicial to the bestinterests of the United States.'" The original purpose of this provision, first in-corporated into our laws during wartime, was to stay the entry of spies from ourshores.13  The Immigration Service, however, has prevented the crossing fromfriendly Canada, Mexico, and South American countries, of thousands of legitimatebusiness and social visitors under the aegis of this law merely because these individ-uals, in the distant past, had some associations now regarded with disfavor. Without'United States ex rel. Nicolae Malaxa v. Savoretti, 139 F. Supp. 143 (S.D. Fla. 1956)."J Joseph Accardi, to cite another example, was deported without being afforded an opportunity tosee his wife, who was away from home for a few hours. Jack Dragna also was denied an opportunityto see his wife, seriously ill at a hospital prior to her death. And Nickolas Circella's deportation casealmost resulted in a contempt citation for immigration officials who tried to spirit him outside thecourt's jurisdiction pending habeas corpus proceedings. See United States ex rel. Circella v. Neely, 115F. Supp. 615 (N. D. Il1. 1953), aff'd 216 F. ad 33 (7th Cir. 1954)." United States ex rel. Yaris v. Esperdy, 2o2 F. 2d io9 (2d Cir. 1953); United States ex ret.Nukk v. District Director, 205 F. 2d 242 (ad Cir. 1953); Yanish v. Barber, 344 U. S. 817 (1953);Rubenstein v. Brownell, 2o6 F. ad 449 (D. C. Cir. 1953), afl'd by an equally divided court, 346 U. S.929 (1954); Lim Fong v. Brownell, 215 F. 2d 683 (D. C. 1954).1266 STAT. 198, 8 U. S. C. § 1225(C) (1952).: See United States ex rel. Knauff v. Shaughnessy, 338 U. S. 537, 541 (949).378 LAW AND CONTEMPORARY PROBLEMSconfrontation of witnesses, without notice of charges, without disclosing the basis forits action so that adverse reports and unconfirmed hearsay may be explained away,we have erected an iron curtain across our borders and separated friends and rela-tives.Nor have our authorities been content with utilizing confidential information incases specifically authorized by the McCarran-Walter Act; they now have extendedthe practice to thousands of deportation cases. Wherever and whenever discretionis exercised-to permit an alien to remain here permanently, to extend his visit, toissue a reentry permit, to prevent his deportation to Communist lands-in all theseand many other instances, the unnamed, untested, and undisclosed confidential in-formant is the master of the alien's destiny.To be sure, the practice has been criticized by the bench and the bar. UnitedStates District Court Judge Matthew F. McGuire, for example, recently said in acase where aliens sought relief from deportation :14... the power of the Attorney General under the facts in this case wherein the individualsconcerned are seeking his grace should nevertheless not be exercised or invoked in camerabut in the open with reasons forthrightly and candidly stated. This is in consonance withour political traditions and our fundamental concept of what constitutes fair dealing,particularly where basic and fundamental rights of individuals are not only involved butin jeopardy and this no matter who they are.Similarly, in another deportation case, United States District Court Judge JamesW. Morris observed that:15Undoubtedly confidential information is of inestimable value to executive officers in theperformance of their duty, and I would not wish to be understood as saying anythingto the contrary. But such great value is that it may be, and frequently should be, usedin obtaining factual data that may be used of record. It is not in and of itself the stuffof which decisions affecting the life, liberty and property of persons are made.And United States District Court Judge Robert N. Wilkins likewise observedin another immigration case:10Man's political evolution in countries enjoying Western civilization has gone beyondthe practices of fiat government and "cloak and dagger" diplomacy. Having learnedthe blessings of government by law, men are apprehensive of practices that belong togovernment by men. Whenever governmental agencies are permitted to operate insecrecy, capricious and arbitrary orders are likely to become prevalent. Administrativeorders, based on secret information, should be indulged only when the reason for suchorders is clear and impelling. The sunshine of publicity keeps government rational,lawful and just.14Orahovats v. Brownell, 134 F. Supp. 84, 85 (D. D. C. 1955).:tMaeztu v. Brownell, x32 F. Supp. 751, 753 (D. D. C. 1955). Confidential informaion may beutilized in cases involving suspension of deportation under the Immigration and Nationality Act of 1952.Jay v. Boyd, 222 F. 2d 820, 224 F. 2d 957 (9th Cir. 1955), cert. granted, 350 U. S. 931 (x956), aIJ'd24 U. S. L. WEEK 4335 (U. S. June is, 1956). See, in this connection, House Committee on GovernmentOperations, Practices and Procedures of the Immigration and Naturalization Service in DeportationProceedings, H. REP. No. 1458, 84 th Cong., Ist Sess. 14 (1955)." United States ex rel. Nicolae Malaxa v. Savoretti, 139 F. Supp. 143, 145-46 (S.D. Fla. 1956).DEFECTS IN ADMINISTRATIONThe cases of Ex parte Chohan"7 and United States ex rel. Lee Till Seem v.Shaughnessy,"s where the courts commented upon the weakness of the government'sconfidential files (revealed to these courts in camera), illustrate the manner in whichinsubstantial adverse information is unnecessarily labeled confidential. Neverthe-less, the confidential informant continues to be utilized recklessly and extensivelythroughout immigration proceedings and to control the lives and destinies of count-less numbers of our foreign-born.ADMNISTRATIvE REs JUDICATAIn the Matter of L, the Immigration and Naturalization Service observes :19It is true that the decisions of this Service cannot constitute res judicata in a technicalsense. However, the same considerations which have impelled the courts to employ astrict rule of res judicata are present in deportation cases. . . . There have been manycases where aliens were deported under certain provisions of the immigration laws andsubsequently changes were made in the interpretations to be given those provisions eitherby the courts or by the administrative authorities, which would have prevented suchdeportations, but no one has ever successfully contended that such aliens were not de-ported "in pursuance of law."It appears, however-as is, in fact, the case-that administrative res judicata isapplied against an alien, but never in his favor. Thus, an alien whose legal resi-dence was adjusted favorably on thirteen occasions has been ordered deported uponthe ground that administrative res judicata, or the law of the case, cannot be assertedagainst the sovereign authority of the United States.20The doctrine for res judicata is intended to prevent endless litigation burdensometo the courts and vexatious to the individual. It has been said:1The doctrine of res judicata may be said to inhere in the legal systems of all civilizednations as an obvious rule of expediency, justice and public tranquility. Public policyand interests of litigants alike require that there be an end of litigation which, withoutthe doctrine of res judicata, would be endless.And the same public policy of expediency, justice, and public tranquility which pro-duced judicial res judicata in the legal systems of civilized nations would seem tocall for administrative res judicata in deportation cases. 2 Judicial res judicata may beasserted against the sovereign, and no rule of law should preclude the applicationof administrative res judicata in similar circumstances.RACIAL DISCRIMINATIONDiscrimination against aliens upon the basis of race by immigration and con-sular officials is evident in the treatment of persons of Chinese origin. Our immigra-17 122 F. Supp. 85i (N. D. Cal. i954). 2s 1o4 F. Supp. 819 (S. D. N. Y. 1952).103 1. & N. Dec. 862, 866 (1950)." Matter of Manncrfrid, Immigration File E-o8645 (1954)."1Hatchett v. United States, 158 F. 2d 754, 757 (9 th Cir. 1946).2-The doctrine of administrative res judicata "applies to the administrative process whenever thecircumstances are substantially similar to those of ordinary litigation." KENNETH CuLs DAViS, Ar nm-trRATIVE LAW 612 (195). See also American Air Transport, Inc. v. Civil Aeronautics Board, 186F. 2d 529 (D. C. Cir. 1953).LAW AND CONTEMPORARY PROBLEMStion authorities are shipping Chinese aliens off to Communist China with delightfulabandon, even where they have served honorably in the United States Army.Normally, no alien is deported unless the receiving country first agrees to accepthim. This is not only a humane practice, but one born of practicality. An alienshould not be shipped hundreds or thousands of miles across the sea like cattle orbaggage, subject to approval of the consignee upon arrival. With Chinese aliens,however, normal practices are no guide. The British authorities are requested tofurnish transit authority through Hong Kong, and then the Chinese alien is eitherpushed or intimidated to cross the iron or bamboo curtain into China's Communistinterior, without the customary visa for his eventual destination.If one is of Chinese origin and has established his American citizenship byjudicial decree, he must still satisfy the immigration authorities-no respecter of thejudiciary-of his nationality. Further, hundreds of Chinese wives of American citi-zens wait in Hong Kong for the day when they will be relieved from the crueloppression of administrative absolutism. Their husbands have filed appropriatepapers with the Immigration and Naturalization Service to establish their nonquotastatus as the spouses of American citizens 3 These papers have been approved andtransmitted to Hong Kong. American consular authorities there, however, say theyare not satisfied as to the identity of the Chinese wives of the American citizens. Itmatters not that a wife has been identified by picture and sworn statements of her-self and her husband and that there is no contrary evidence or even reason to suspectthe truth of these sworn statements. All persons of Chinese origin are presumed tobe untruthful by our immigration and consular officials. Our governmental authori-ties are still arguing in the courts that those of Chinese origin are less crediblewitnesses than those of Caucasian ancestry. Of course, the judiciary has soundlyrejected these racist contentions 4 However, if such arguments are openly espoused,is it not obvious what lines our immigration and consular authorities are still fol-lowing in dealing with these and similar cases?FAIR HEARINGSUnder present immigration practices, many functions of adjudication, suchas the grant of nonquota and preference status, the issuance of re-entry permits, theissuance certificates of citizenship to those born abroad, and the grant of permissionto deported aliens to return here are allocated to District Directors2" and RegionalCommissioners,2" who are charged with both enforcement and prosecuting func-tions. These District Directors and Regional Commissioners likewise supervisethe assignments, promotions, efficiency ratings, and compensation of special inquiry"Cf. 66 STAT. x66, x8o, 8 U. S. C. § n1oi (a) (27) (A), 1155 (1952).See Mar Gong v. Brownell, 2o9 F. 2d 448 (9th Cir. 1954); Lee Wing Hong v. Dulles, 214 F. 2d753 (7th Cir. 1954)." The distribution of original and appellate jurisdiction between the District Director and theRegional Commissioner is indicated in 8 C. F. R. § 7 (Supp. 1956)." 8 C. F. R. § 9.5(a) (Supp. 1956).DFEcTs IN ADmINISTRATIONofficers who hear deportation and exclusion cases and who, incidentally, until recently,were not required to be attorneys. In many cases, the special inquiry officer sitsonly as judge, and an examining officer presents the case; but often, he, too, is aprosecutor as well, and he is always subject to the control of a hierarchy of officialswho prosecute and investigate.The Attorney General's Committee on Administrative Procedure in Govern-ment Agencies appropriately observed in this connection:27A man who has buried himself in one side of an issue is disabled from bringing to itsdecision that dispassionate judgment which Anglo-American tradition demands of officialswho decide questions.The commingling of functions in immigration cases has been condemned byeducators, attorneys, government commissions, and by the judiciary.2 s Neverthe-less, like a character transposed from Alice in Wonderland," the immigrationofficer continues to play the part of prosecutor-judge and juryY0  If the most de-praved criminal were convicted before an official who performed the functions ofprosecutor and judge, his jail sentence would be set aside. Yet, the most deservingalien is separated from his home, family, and friends and is sentenced to banish-ment in distant lands by a prosecutor who sits as a judge. Until this defect in theadministration of our immigration laws is remedied, a sordid blot will remain uponour traditional concepts of Anglo-American jurisprudence.CONCLUSIONThe present practices of our immigration officials in exercising discretion arbi-trarily, in utilizing confidential information indiscriminately, in refusing to applyadministrative res judicata in favor of an alien, in practicing racial discrimination,and in failing to accord aliens an Anglo-American fair hearing evince an attitudethat our immigration system shall be governed by men and not laws. The callousdisregard of humanitarian considerations and concepts of decency in the enforce-ment of our immigration laws also bespeaks a disturbing disregard for the inherentworth and dignity of the individual. I would caution those who seek to improveour immigration laws that they must also seek to improve the administrators andthe administrative machinery under those laws.27 Attorney General's Committee on Administrative Procedure, Final Report, S. Doc. No. 8, 77thCone., ist Sess. 56 (1941).21 See, e.g., WILLIAM C. VAN VLECK, THE ADMINISTRATIVE CONTROL OF AUENS 247, 46, 67 (1932);THE SECRETARY OF LAoR's COMMITTEE ON ADMINISTRATIVE PROCEDURE, THE IMMIGRATION AND NAT-URALIZATION SERVICE (1940); NATIONAL COMMISSION ON LAW OBSERVANCE AND ENFORCEMENT, PUB.No. 5, REPORT ON THE ENFORCEMENT OF THE DEPORTATION LAws OP THE UNITED STATES (1931); JANEPERRY CLARK, DEPORTATION OF ALIENS FROM THE UNITED STATES TO EUROPE (1931); ZECHAEIAHCHAFEE, FREE SPEECH IN THE UNITED STATES 198-20X (942); PRESIDENT'S COMMISSION ON IMMIGRATIONAND NATURALIZATION, WHOM WE SHALL WELCOME 161-62 (1953); Palmer v. Ultimo, 69 F. 2d I, 27th Cir. cert. denied, 293 U. S. 570 (1934); Ex pane Kwan So, 211 Fed. 772, 773 (N. D. Cal. 1913);United States ex rel. Iorio v. Day, 34 F. 2d 920, 922 (2d Cir. 1929)..- "I'll be judge. I'll be jury. Said cunning old Fury;"I'll try the whole cause, And condemn you to death."I) This procedure has been sanctioned as a matter of statutory construction under the McCarranWalter Act. Marcello v. Bonds, 349 U. S. 302 (1955)-

Some Defects in the Administration of Our Immigration Laws

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Some Defects in the Administration of Our Immigration Laws

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