Office of Legal Counsel for the Department of Justice concluded that while existing law can be read to permit seizure prior to any inquiry as to the owner's complicity, the Government bears the burden of estalishing actual knowledge on the part of the owner to effect a forfeiture of the conveyance.

The Department of Justice has claimed that in most situations it will be virtually impossible for an INS officer encountering a vehicle containing smuggled aliens to make an immediate determination of owner involvement or noninvolvement. On the other hand, current procedures applicable to customs and drug seizures enable owners who satisfactorily establish noninvolvement to obtain relief through remission of the forfeiture.

To eliminate these practical problems and to bring INS forfeiture law and procedures into conformity with those of other enforcement agencies, section 12 removes the "innocent owner" forfeiture exemption currently contained in section 274(b) of the Immigration and Nationality Act (INA). In effect, this will merely require the Government to show probable cause that the conveyance seized has been used to illegally transport aliens in violation of section 274(a) of the INA. Once probable cause has been demonstrated, the burden of proof shifts to the owner/claimant to show by a preponderance of the evidence that the conveyance was not used illegally. In other words, this legislation makes it clear that INS seizure of a vessel, even though the owner was not a consenting party or privy to its illegal use, is lawful provided the INS officer had probable cause to believe that the conveyance was being used in violation of section 274(a) of the INA.

The committee is of the opinion that it is unreasonable to require INS officers to make "on the spot" judgments regarding owner involvement and that the burden of proof should be transferred to the owner, who is in the best position to know the facts surrounding the vehicle's usage.

At the same time, the committee feels that an owner must be provided every opportunity to present his case against seizure and to have his property expeditiously returned in the event of an improper seizure. Therefore, the committee expects INS to promulgate regulations which will: (1) require its officers to make a good faith inquiry to ascertain ownership of a seized conveyance; (2) insure timely and effective notice to the owner and others with a financial interest in the conveyance; and (3) afford the owner an opportunity (prior to the institution of forfeiture proceedings) to show that he was not involved in the criminal activity.

The committee recognizes that innocent owners can obtain remission or mitigation in the course of the forfeiture proceedings. Nevertheless, since this legislation relieves the Government of the burden of proving actual knowledge on the part of owners, the committee intends to insure that they are provided an adequate opportunity to show that they were without knowledge or reason to believe that their conveyance was being or would be used to transport aliens in violation of our immigration law. Implementing regulations of this nature will promote diligent and good faith efforts on the part of INS in carrying out its seizure authority, as well as facilitate the prompt and informal resolution of disputes in a large number of cases where innocent owners are involved. In promulgating implementing regulations, INS should adhere as closely as

possible to its current forfeiture regulations, to the extent they are not inconsistent with this legislation.

Under current law, INS is required to bear administrative and incidental expenses where an innocent owner is involved even though there was a reasonable ground or probable cause for the seizure. The committee does not believe INS should be forced to bear these costs when its officers act in good faith. For example, in the case of an innocent owner, INS could now be held liable for administrative and storage costs associated with a seizure as well as for damages resulting from such a seizure, despite the fact that the seizure may have been appropriate under the circumstances known to the INS officer at the time of the seizure. In effect, this legislation relieves INS of the obligation to pay any administrative and incidental costs incurred by a successful claimant provided INS had probable cause for the original seizure.

Under section 274(b)(2) of the IÑA, INS is currently required to satisfy any valid lien or third party interest in the conveyance "without expense to the interest holder". The Department of Justice has three primary objections to this provision. First, it places significant financial burdens on INS. Second, it protects interest holders whether or not they were involved in the illegal activity. third, it creates little incentive for mortgage lenders to exercise caution in making loans for the purchase of conveyances which could be used to transport illegal aliens.

By eliminating this statutory requirement, this legislation allows the lienholder's interest to be satisfied only after INS's costs associated with the seizure have been deducted. Once again, this legislation will have the result of transferring the burden to the lienholder to demonstrate good faith and noninvolvement in the criminal activity in order to obtain remission or mitigation of the forfeiture. This is the procedure currently followed pursuant to our customs and drug laws and the committee does not believe INS should be required to meet financial obligations which are not imposed on other law enforcement agencies.

This legislation is intended to put prospective lenders on notice that they should exercise reasonable caution before accepting a vessel or vehicle as security for a loan. It is expected that in adjudicating petitions for remission or mitigation, consideration will be given to the nature and extent of the lienholder's investigation of the borrower's reputation and record.

Likewise, in the case of businesses engaged in leasing vehicles or chartering vessels, the geographic location of the business, the nature of the lessors inquiry concerning the intended usage of the conveyance, and the lessee's background are factors to be considered. The committee is hopeful that this legislation will serve to encourage lienholder's and lessors in border and coastal areas to exercise greater diligence in their lending and leasing practices. At the same time, when a lienholder or other third party (such as the holder of a security interest) established that he followed reasonable business practices, acted in good faith and conducted thorough inquiries, his innocent interest should be protected.

The committee notes that recent case law, while generally treating remission and mitigation provisions as discretionary "acts of grace" beyond judicial review, has suggested that executive agencies charged with this authority may be required to provide relief

for owners who were uninvolved in or unaware of the wrongful activity. For example, in United States v. United States Coin & Currency, 401 U.S. 715, 721-722 (1971), the Supreme Court stated, "When the forfeiture statutes are viewed in their entirety, it is manifest that they are intended to impose a penalty only upon those who are significantly involved in a criminal enterprise". Likewise, a long line of cases have commented that agencies should not penalize innocent owners of property used to commit illegal acts, in cases where such owners took reasonable steps to guard against its illegal use. (See Calero-Toledo v. Pearson Yacht Leasing Co.,) 416 U.S. 633, 689–690 (1974).

In light of recent case law and legal commentary on this subject and because substantial property rights can be affected by a final forfeiture order, the committee expects the Department of Justice to develop administrative guidelines and procedures (concerning remissions and mitigation) which are designed to achieve an equitable result in the case of innocent owners or third parties who have a financial interest in the conveyance.

SECTION 13-RECOUPMENT OF FUNDS

Section 13 amends section 286 of the INA to enable the INS to recoup appropriated funds spent for the purchase of evidence, when such funds are later recovered.

Presently INS is still operating under a decision made by the Comptroller General on October 26, 1925, which states that "public monies which have been expended for the purchase of evidence to be used in prosecutions under the narcotics and prohibition acts, when they have served their purpose as evidence in court and again come into the possession of the government's agents, must be deposited and covered into the Treasury as miscellaneous reciepts" and that “they may not be deposited to the appropriation from which they were originally withdrawn.

In explaining the decision, the Comptroller General reasoned that "if the fund appropriated for the purchase of evidence is not sufficient, the question of a larger appropriation is one for consideration by the Congress either with a view to increasing the amount of the appropriation or authorizing the deposit of the recovered monies to the credit of the appropriation against which the advance was charged."16

By authorizing recovered monies to be credited to INS's appropriation, this provision is merely paralleling the action taken by the Congress with regard to the enforcement of narcotics laws (see 21 USC 886). In fact, this provision complements section 12 of this bill concerning the seizure and forfeiture of conveyances which enhances the capabilities of the Service in its anti-smuggling effort. For the past several years the Committee has urged INS to intensify its anti-smuggling activities and has consistently supported INS's efforts to increase the amount of manpower and funding devoted to this function.

Although INS reports that $75,000 has been expended over the past year for the purchase of evidence, the Committee wishes to remove any impediment to INS's use of appropriated funds for this

16 Decisions of the Comptroller General, A2145; 5CG 289 (1925).

purpose for fear of having badly needed funds revert to the Treasury.

SECTION 14-CONTINUITY OF RESIDENCE FOR DEPENDENTS OF CERTAIN EMPLOYEES OF THE UNITED STATES, U.S. FIRMS, AND INTERNATIONAL ORGANIZATIONS ABROAD

Section 14 amends section 316(b) of the INA to extend to the spouse and unmarried dependent children of employees of the United States, U.S. firms, or international organizations the exemption that such employees have under current law from the requirement that, in determining continuity of residence for purposes of naturalization, absence from the United States for more than one year breaks that continuity. This provides the spouse and children of a lawful permanent resident alien whose employment has required the alien to be abroad with the same treatment as the principal alien for purposes of preventing a break in the period of continuous residence required for naturalization.

SECTION 15-WITNESSES AT NATURALIZATION PROCEEDINGS; TIMING OF FINAL HEARINGS ON NATURALIZATION PETITIONS

Section 15 amends sections 329(b), 334(a), 335, 336, and 328(b)(2) of the INA to eliminate the requirement that two U.S. citizen witnesses submit affidavits and testify during naturalization proceedings attesting to the moral character and background of an applicant for naturalization. In addition, this section eliminates the need to wait 30 days after filing of a petition for naturalization before a certificate may be issued.

The Department of Justice report commenting on the provisions argues that examination of accompanying witnesses is time-consuming, unnecessary, and unproductive. Any information which may be required on the petitioner's fitness for citizenship can be determined by an INS investigation.

With regard to the 30 day waiting period before a naturalization certificate can be issued, INS has testified that was originally intended to assist the government in conducting inquiries into the petitioner's qualifications for naturalization. As a practical matter, all necessary inquiries normally have been made between the day of submitting an initial application to INS and the date on which the applicant is scheduled to appear for a preliminary examination and the filing of a pretition for naturalization. If at any time factors arise which require further investigation, an inquiry can be undertaken and the final hearing will be delayed until its completion. This amendment will eliminate the need for the applicant and the naturalization examiner to make a second trip to court thirty days or more after the filing of the petition. The Department believes that this change would save over $130,000 in travel funds alone.

Oversight/authorization hearings held by the Committee over the past several years have demonstrated that INS has constantly been plagued by backlogs, especially in areas relating to services to the public. Naturalization backlogs are growing and it is anticipated that naturalization applications will continue to increase.

Receipts of naturalization applications during the past decade have increased from 148,000 in fiscal year 1971 to over 278,000 in

fiscal year 1980. INS has attempted to cope with this 60-percent increase in workload with only a 20-percent increase in resources during the same periods. Pending applications at the beginning of fiscal year 1980 amounted to some 112,000 applications while at the end of 1981, this figure had reached almost 150,000.

Projected normal receipts for fiscal year 1982 for naturalization applications are 200,000. Many thousands of Indochinese refugees are now eligible for naturalization and it is estimated that an additional 30,000 to 50,000 of these applications will be filed.

In testimony before the Committee on elimination of the witness requirement, Acting Commissioner Meissner assured the Committee that we will "satisfy ourselves that the law has been applied. When there are questions we independently investigate the situation and we do most definitely turn down people for naturalization. It's not as if an application automatically results in citizenship. 17 Presently, the national average time required to complete the naturalization process is less than six months, primarily because many of the INS offices are current. However, a major problem exists in large, high-volume areas, where the waiting period between filing an application and being called for a preliminary hearing can be 6 to 9 months.

Commenting on the need for legislative relief, INS stated that this section would have the immediate effect of adding 60 additional staff from one day to the next. Under ordinary circumstances, the recruitment and training of 60 additional people would consume more than a year.

The Committee feels that this section will contribute greatly to the efficiency of the naturalization process, eliminate useless requirements and insure that the bona fides of applicants are reliably established. It is estimated that this section alone will save the government over $1 million in 1982.

SECTION 16-RETENTION OF NATURALIZATION FEES BY STATES

Section 16 amends section 344(c) of the INA to permit state courts with jurisdiction to naturalize aliens to retain one-half of the naturalization fees collected in each fiscal year up to $20,000, rather than the present one-half of such fees up to $3,000. The Committee believes that the amount which state naturalization courts may retain under the current law is clearly inadequate to compensate them for their services and that an increase is necessary in order to assure that these courts do not withdraw from the naturalization process.

Since the original enactment of the fee formula in 1952, there has been a substantial increase both in the volume of naturalization and in the costs associated with processing petitions. At the same time, growing naturalization backlogs make it imperative that state courts continue to assist federal courts in handling these applications. It is equally evident that since the state courts are performing a federal function, they should be reimbursed for the costs they incur.

The Committee has previously considered proposals to increase the amount of naturalization fees permitted to be retained by state courts. In the 92nd Congress the Committee favorably reported

17 Hearings on INS Efficiency, p. 60.