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Mr. SHAUGHNESSY (interposing). Without section 5, it will be mandatory.
Mr. DIRKSEN. I am not sure that is technically correct; because I see language in other sections of this bill-page 4, line 18-where it says the alien "shall be subject to deportation "; and on page 5, section 5, line 24, it says, "The Secretary of Labor is authorized." Now, it occurs to me that you are striking the mandatory feature from existing law, and you are conferring discretionary power on the Secretary of Labor to exercise if he sees fit.
Mr. DIES. That is true.
Mr. SHAUGHNESSY. But only in the excepted cases
Mr. DIRKSEN (interposing). That rests on the authority of law, and it is ascertained or it is not defined in the law; the administration of the bill depends completely on the administering officer's point of view.
The CHAIRMAN. Is that not a matter for our own determination in our executive sessions?
Mr. DIRKSEN. Yes, Mr. Chairman; but I just wanted to get the interpretation of the Department officers.
The CHAIRMAN. Well, you are debating a legal question with the witness; and I would like to have the witness tell the committee instead what it is proposed to do under this bill and then let us thresh out the interpretation of the language ourselves later on.
Mr. SHAUGHNESSY. If the committee has any doubt about the language being mandatory, they may amend the language in that respect; because we construe this language as being mandatory, unless there are specific exceptions-which we will come to and discuss later. Perhaps when we discuss the whole bill it may give us some light on this particular language.
Mr. DIES. Here you are just making a general provision, and you say he shall be deported; but perhaps later in the bill, in other portions, you give discretionary power to the Secretary of Labor, within certain limitations?
Mr. SHAUGHNESSY. Yes; subject to certain conditions.
Mr. DIES. Subject to certain conditions you make it discretionary. Mr. SHAUGHNESSY. Yes. Mr. Chairman, we will not discuss sections 2, 3, 4, 5, and 6 of the bill, because they restate the present law. Mr. DIES. Which sections did you say?
Mr. SHAUGHNESSY. Sections 2, 3, 4, 5, and 6.
Mr. DIES. Now, are all of those construed by your Department as being mandatory?
Mr. SHAUGHNESSY. That is correct.
Mr. DIES. There is no discretion in sections 2, 3, 4, 5, and 6? Mr. SHAUGHNESSY. We are not asking for discretion as to those sections.
Mr. LANZETTA. With respect to subdivision 4 of section 2 of the bill, it provides deportation for an alien if he "managed or was employed in connection with any house of prostitution ", etc. Does that language imply that there would be knowledge on the part of the alien that it is a house of prostitution; or is the mere fact that he was employed there sufficient?
Mr. SHAUGHNESSY. Oh, there must be knowledge.
Mr. SHAUGHNESSY. Clause 7 of section 2 of the bill provides that an alien shall be subject to deportation if he—
knowingly encouraged, induced, assisted, or aided another to enter the United States in violation of law, and if the Secertary of Labor finds that the deportation of the alien is in the public interest.
Heretofore, we have had no authority to deport an alien who knowingly smuggles, harbors, or conceals a smuggled alien, but we deport the smuggled alien. We feel that if we have the authority to deport the alien already here who assists in smuggling other aliens into the United States, that will be a very strong deterrent against smuggling. Of course, if we find a case of particular hardship, where an old mother has, perhaps, not smuggled her child into the country, but the child has succeeded in getting into the country unlawfully, and the mother cannot turn the child away from her home, the Secretary of Labor would in such a case have authority to find that the deportation of the alien mother was not required by the public interest.
The CHAIRMAN. But, as a general rule, the smuggling is not done
in that class of cases?
Mr. SHAUGHNESSY. No; but still there are some such cases.
The CHAIRMAN. And subdivision 7 of section 2 of the bill is something new to the law, that would add an additional number of cases which are not now subject to deportation.
Mr. SHAUGHNESSY. That is correct.
Mr. DIES. But it is purely discretionary in those cases?
Mr. SHAUGHNESSY. It is purely discretionary. That, possibly, answers your question, Mr. Dirksen. Here is an example of a case that is not mandatory, because the authority is expressly given to the Secretary in this particular case that he need not deport, unless he feels that it is in the public interest for him to deport. It is an exception to the mandatory clauses appearing thereto.
The CHAIRMAN. But the exceptions are specific.
Mr. SHAUGHNESSY. The exceptions are specific.
Mr. DIES. Well, the exception is general in this class of cases.
Mr. SHAUGHNESSY. But only as to the one class of cases.
Mr. DIES. But you are talking about subdivision 7 of section 2. That is general.
The CHAIRMAN. But that is a new reason for deportation.
Mr. SHAUGHNESSY. Clause 8 is the next. The present law is that an alien who, within 5 years after his entry into the country has been convicted of a crime involving moral turpitude shall be deported. This clause 8 of this bill is so changed as to require that there must be the service of a sentence of 1 year or more for such crime. We find occasionally that a man may be sentenced for a year, and he will be paroled shortly after his sentence commences, or his sentence may be commuted; and we feel that the deportation is rather hard upon him in such a case. If the man repeats the offense and becomes a habitual criminal, we will deport him under clause 10 of this section, which we will discuss later.
Mr. DIES. In that respect, that is more of an easing up of the law as it now is-making it more liberal.
Mr. SHAUGHNESSY. You can call it that, Mr. Dies. But we hold the whip hand by providing in clause 10 for cases in which the alien becomes a repeater in crime.
Under the present law, an alien who, without regard to the period of residence in the United States, on more than one occasion is convicted of a crime involving moral turpitude, and where the other deportation elements exist, is subject to deportation.
We have had considerable difficulty in interpreting the present We have attempted to deport an alien as a repeater under the present section of the law, where two sentences grow out of different counts in the same indictment. It is felt that the law was intended to reach a repeater-that is, a man who commits two or more acts having no relation to each other. So this clause in the
bill provides that one crime must follow the other, to relieve the ambiguity that existed in the present law. In those cases you will also find that the man must serve his sentence, and that conviction is not sufficient.
The same reasoning that applies to clause 8 applies to clause 9, because subdivision 10, which we will now discuss
Mr. DIES (interposing). Let me interrupt you a moment. Under the present law, if he is just sentenced and has not actually served, he is subject to deportation?
Mr. SHAUGHNESSY. That is correct.
Mr. DIES. Under this clause of the bill you make it necessary that he should not only be sentenced, but actually serve?
Mr. SHAUGHNESSY. Yes; but there is that saving clause
Mr. DIES. I am not talking about the saving clause.
Mr. SHAUGHNESSY. Yes; that is the effect of it. Clause 10 is entirely new and is perhaps one of the most important clauses in the bill. It permits us to deport the habitual criminals. You will note that the deportation of the habitual criminal is subject to the finding of the Secretary of Labor that the deportation of the alien is in the public interest. And we do not have to show, in the habitual criminal case, that the crimes involve moral turpitude. I will not say any more about this clause at this time, because it will be dealt with by other witnesses, so far as its merits are concerned.
Mr. DIES. Under the law now, the crime of which the alien is convicted must involve moral turpitude; or if it does not involve moral turpitude, it is not subject to deportation?
Mr. SHAUGHNESSY. Yes; but under this plan
Mr. DIES (interposing). But under this plan, you say if a man has committed two or more crimes on separate occasions, even if they do not involve moral turpitude, he shall be subject to deportation, provided that the Secretary of Labor finds it to be to the public interest?
Mr. SHAUGHNESSY. Yes.
Mr. DIES. And that is discretionary with the Secretary of Labor? Mr. SHAUGHNESSY. That is discretionary; and it is very desirable to have such a provision, because we find that many criminals escape deportation because they do not come within the technicalities of the present law.
Mr. DIES. Well, you want to arrange it so that you will not have to deport him if you do not find it in the public interest to do so? Mr. SHAUGHNESSY. That is correct.
Mr. DIRKSEN. How many crimes are there not involving moral turpitude, where one can escape imprisonment or deportation? I am curious to know about that.
Mr. DIES. A great many, because under the interpretation of the court, many crimes that you and I would regard as bad crimes do not involve moral turpitude on the interpretations of the courts. Mr. DIRKSEN. But how many are there where you can escape imprisonment?
Mr. SHAUGHNESSY. You cannot escape imprisonment; but you can escape being sentenced for a year or more. And we have to have that year under the present law in order to support the deportation. We are submitting a provision in the law not showing the
Mr. DIRKSEN (interposing). I think I can illustrate by cases within my own knowledge, in the city of Detroit, Mich., where a man was arrested 42 times for assault and battery, and larceny. He was a tire thief for years, and he was an alien; but he was never convicted of a crime involving moral turpitude according to the court
Mr. SHAUGHNESSY (interposing). Just a minute. We would construe most of the crimes you refer to as involving moral turpitude; but they do not involve a sufficient sentence under the present law.
Mr. ĎIES. But do you not have to have some authoritative declaration under the law as to that? If the courts do not think the crime involves moral turpitude, you could not construe that it did involve moral turpitude, could you?
Mr. SHAUGHNESSY. We would be inclined to follow the State courts.
Mr. DIES. You might follow the State courts, and many of the State courts have construed many of those crimes as not involving moral turpitude.
The CHAIRMAN. Well, does not this section cover that very pointof the necessity of a reference to all the State laws?
Mr. SHAUGHNESSY. Well, other witnesses will discuss this section in considerable detail. For example, carrying concealed weapons does not involve moral turpitude. But sometimes carrying concealed weapons leads to rather serious crimes. Now, as I say, I am only covering the important changes. I would like to proceed to clause 2 in subdivision (b) of section 2 of the bill, which is found in line 8 on page 4 of the bill.
Mr. LANZETTA. May I interrupt you at this point? Will you please discuss section 11, or subdivision 11, and tell us what is intended under that?
Mr. SHAUGHNESSY. Yes; that is a restatement of the present law, which provides that an alien who has been convicted, or who admits the commission of a crime involving moral turpitude, prior to entry, is subject to deportation; that is prior to the time he comes here if he has been convicted or admits the commission of a crime involving moral turpitude.
Mr. DIES. Subdivisions 11 and 12 of section 2 of the bill do not change existing law, do they?
Mr. SHAUGHNESSY. They do not change existing law.
Mr. LANZETTA. Does that last to which you referred mean any time prior to his entry?
Mr. SHAUGHNESSY. If at any time prior to his entry into the country he had been convicted of a crime involving turpitude, he is subject to deportation.
Mr. LANZETTA. That is, a crime under what law-the law of the country from which he came?
Mr. SHAUGHNESSY. The law of the country from which he came. Mr. DIES. That is the law now.
Mr. LANZETTA. Well, it is not the law elsewhere. Do you not think the Commissioner of Immigration or the Secretary of Labor should have some discretion in those cases, especially where the man has been in this country a long time and is of good moral character? Mr. DIES. That is a matter for the committee to determine.
Mr. SHAUGHNESSY. The committee has power to amend the law in any way they see fit.
Mr. DIES. We will first find out what they propose to do under this bill, and then we can get down to the merits.
The CHAIRMAN. At this point, Mr. Shaughnessy, the bill, which I think is H. R. 4223, and which passed the House and is in the Senate now, where aliens commit crimes not within the United States, or commit crimes within the United States, from larceny up to murder, and then they go out of the country, and want to make their reentry back into this country, and we find that they can come back here, because the crime was not committed in the place from which they came. I wish that you would explain, if you possibly can, whether those cases can be incorporated in the present proposed legislation; in other words, aliens who commit a number of crimes in this country, technically, when they go out of the country at some future time, and then make an application before the American consul to reenter this country
Mr. SHAUGHNESSY (interposing). Well, it seems to me, Mr. Chairman, that this bill to which you refer is taken care of by the decision of the United States Supreme Court in the Volpe case, that is, if a crime is committed in the United States in the case of an alien, who subsequently leaves the United States, and attempts to return, it is considered as a crime involving moral turpitude committed prior to entry, to wit, his last entry. That is the Volpe decision.
The CHAIRMAN. But I find some other decisions which are more or less contrary to that.
Mr. SHAUGHNESSY. Well, that is the only decision of the United States Supreme Court that I know of.
Mr. WEIDEMAN. Well, prior to that Volpe decision, all of the decisions were against you?
Mr. SHAUGHNESSY. Yes, all of the best decisions were against us. Mr. WEIDEMAN. And the only favorable decision you got was in the Volpe case?
Mr. SHAUGHNESSY. Yes, but that is the only decision of the United States Supreme Court that I know of.
The CHAIRMAN. Well, I just wanted you to give thought to that, because the committee is very much interested in it. If an alien commits a crime in this country, and he goes out of the country, he should stay out.
Mr. SHAUGHNESSY. Yes, Mr. Chairman, that is the law in the Volpe decision.