Mr. LEWIS. He would not only be discriminated against in that respect, but would become mandatorily deportable, and I think that is a discrimination which is very unjust.

Senator SCHWELLENBACH. Before we leave section 1, I would like to have you discuss the use of the word "hereafter" in that section. I intend to later place in the record a decision of the Supreme Court in the case Mahler v. Eby (264 U. S. 32). That was a case that went up on a writ of habeas corpus on the theory that the Deportation Act was a criminal statute, and the Court said this:

It is well settled that deportation, while it may be burdensome and severe for the alien, is not a punishment. The right to expel aliens is a sovereign power necessary to the safety of the country and only limited by treaty obligations in respect thereto entered into with other governments. The inhibition against the passage of an ex-post-facto law by Congress in section 9 of article I of the Comstitution applies only to criminal laws, and not to a Deportation Act like this. Congress by the act of 1920 was not increasing the punishmet for the crimes of which petitioners had been convicted, by requiring their deportation if found undesirable residents. It was, in the exercise of its unquestioned right, only seeking to rid the country of persons who had shown by their career that their continued presence here would not make for the safety or welfare of society.

I would like to have you discuss the basis of that decision by the Supreme Court, in respect to the use of the word "hereafter" in section 1, on the question as to whether or not, since that is not a punishment but simply an effort on the part of the Government to get rid of people whose presence here may endanger the welfare of the country, a distinction should be made between a criminal alien who commits a crime a month before the passage of the act and one who commits a crime a month after that time.

Mr. LEWIS. On that point let me say first that I think the three subsections of section 1 on that point are quite inconsistent. I see no reason for discriminating in that way. There is no reason in constitutional law why a deportation act should not be ex post facto. I see no objection to it being ex post facto, if it is coupled with the proper standard, is not so severe and drastic that it would be injurious and harmful to make it ex post facto, such as making mandatorily deportable an alien for the commission of a petty offense. But if you set up what would seem to be a proper measuring stick, so it will cover only serious offenses, I see no reason why it should not apply to crimes committed a reasonable time before. Of course, it should not go back an unreasonable time, because that might create unnecessary hardship. I think it is perfectly proper to go back 5 years or some reasonable time.

Senator AUSTIN. May I inquire?

Senator SCHWELLENBACH. Yes.

Senator AUSTIN. Do you not think the use of that word in that place has this effect: That no one heretofore shall be deported because he has been committed to an institution but anyone who hereafter is committed to an institution can be deported?

Mr. LEWIS. I think you are quite correct, and I think that is quite inconsistent. If, however, you put into that subdivision the clause originally proposed by the Secretary of Labor, "unless the Secretary of Labor finds the deportation of the alien not in the public interest", and take out the word "hereafter", you will greatly improve it.

Senator AUSTIN. Is not this the logic of the situation: That the word "hereafter" was inserted there to apply to the discretion which the judge would exercise in respect to the punishment of the alien Is not that true?

Mr. LEWIS. Theoretically, it may be. I do not know. It may be they would operate that way, but I do not believe they would. This would affect cases in police courts and small courts with different judges, and I am afraid they would not have that in mind. It would take a long campaign of education to make them realize the effect that probably would have on some relatively trivial offense.

Mr. Chairman, you quoted from that decision of Mahler v. Eby. Since you have done so, I would like to quote another section which has a very direct bearing on this point, another paragraph from that opinion:

The sovereign power to expel aliens is political and is vested in the political departments of the Government. Even if the Executive may not exercise it without congressional authority, Congress cannot exercise it effectively save through the Executive. It cannot, in the nature of things, designate all the persons to be excluded. It must accomplish its purpose by classification and by conferring power of selection within classes upon an executive agency.

In other words, the court does announce that discretion in these cases is constitutional.

The second subdivision would make mandatorily deportable a person convicted of the crime of possessing or carrying firearms. Senator Reynolds, in your radio speech you referred to that clause. That would make mandatorily deportable a person who may be guilty quite innocently of what may be a trivial offense, as compared with a far more serious offense. It seems to me that particular proposition should have attached to it, if you are going to have this discretionary power, the phrase, "unless the Secretary of Labor finds. the deportation of the alien not in the public interest." That would apply to persons in many States which forbid the possession or carrying of firearms without a license, and would prevent the mandatory deportation of an alien who ignorantly had a gun. That is the law in a good many different States. It would apply to a shopkeeper in New York who might have a firearm in his place of business. There was a case of that kind in New York not long ago. The shopkeeper had a gun in his store. He was convicted and given a nominal sentence. If he had been an alien, he would have been mandatorily deportable. As it reads now it would work a grave injustice upon many foreign-born people, and I think should certainly be corrected. If the committee does not wish to eliminate that provision, it might be improved by adding the words "or if previously convicted of a crime."

Senator REYNOLDS. Where is that?

Mr. LEWIS. Page 2, line 6, by adding the words "or if previously convicted of a crime involving moral turpitude." Its purpose is to reach the gangster and racketeer and not the worker or the alien who is more or less innocently violating that law.

The only other major thing which this bill attempts to do is the provision in section 7 to legalize the status of aliens who entered without inspection between June 3, 1921, and July 1, 1924. That was discussed at length yesterday. I think it is a very urgent need to correct an anomalous situation.

Senator REYNOLDS. They are not permitted to become citizens? Mr. LEWIS. They should be permitted to become citizens.

Senator Reynolds, I am sorry that I will not have time to reply to some of the points you raised yesterday. A number of your questions indicated that if an alien was here a certain length of time

without becoming a citizen that was a factor that was extremely pertinent. I would like to discuss the reasons why they do not become citizens.

Senator SCHWELLENBACH. You will probably have an opportunity to do that later, before we conclude the hearings. I promised Captain Trevor that he might be heard in time to catch a 1 o'clock train. Mr. LEWIS. I will reserve that for a later time. It is in my testimony before the House committee on the Starnes-Reynolds bill. Senator SCHWELLENBACH. You may testify to that this afternoon, if you wish.

Mr. LEWIS. I would like to have the opportunity to do so. (A supplementary statement of Read Lewis follows:)

In the course of these hearings, there have been a number of questions as to why the alien has not become a citizen and the implication that his failure to do so is a serious reflection on him and his claims for humane consideration. May I say a word on this point? Of our alien population, which amounts at the present time, roughly, to only 4,000,000 people, there are very few who do not want to become citizens of the United States. There are several reasons why they are not yet citizens. In the first place, it requires a certain period of adjustment in a new country in order to reach a point where the immigrant is ready to take that important step. This has been true from the earliest times. As a matter of fact, people are now becoming citizens after a shorter average period of residence in this country than ever before. In his study "Americans by Choice," published in 1922, John Palmer Gavit showed, as a result of an examination of 26,284 cases, that the average time elapsing between arrival in the United States and the granting of citizenship was slightly more than 12 years. At that time there were frequent complaints that we were hurrying the immigrant into citizenship too rapidly. Today some people complain if the alien does not apply for citizenship in the shortest possible time. The discriminations in employment, relief, and other matters which have been made in recent years have tended to shorten the interval between arrival and application for naturalization. The adjustments involved in naturalization must be made ordinarily over a period of years. Genuine assimilation is necessarily slow and persons who take time to give serious consideration to a change of allegiance are often those who make the best citizens. Certainly failure to take out first papers or to complete naturalization within the statutory period is no reflection on the character or desirability of an immigrant.

A second reason why aliens do not become citizens is the inability of many persons who want to become citizens to meet the strict educational or other technical requirements of the law. During the last 2 years, also, the expense involved has been an important factor in preventing many aliens from becoming citizens. A third reason, and in some ways the most important, is what I might call a lack of political mindedness. We are dealing here with a group of men and women who have been admitted to the United States for permanent residence, who look forward to living their lives here, and who day by day are concerned with the practical economic problems of earning a living and of bringing up a family. They take their status here for granted. They do not think about the matter of citizenship until some specific question or issue brings it home to them. This lack of political mindedness may be regretted, but is something that goes with certain conditions of education and training and is no more a reflection on the aliens involved than is the failure to exercise their right to vote a condemnation of millions of American citizens. On this last point, for example, it is well to remember that in the United States we had, according to the 1930 census, 66,921,766 citizens over 21 years of age. That figure represented our potential voting strength. Yet how many of those 67,000,000 people actually voted at the polls in the 1936 Presidential election? The total vote was 45,812,115. In other words, some 21,000,000 American citizens failed to exercise their voting privilege. The point I want to make is that a certain lack of political mindedness characterizes our native-born as well as our foreign-born population. It is something that time and education will cure. There is no more reason for harsh treatment in the case of the alien than in the case of the citizen.

In discussing this question of citizenship, some people assume that in not becoming citizens our alien population is evading a great many duties and responsibilities; that they are getting something for nothing. That is not the case. What duties does an alien evade by not becoming a citizen? He is subject to

exactly the same laws and to the same taxes. So far as I recall, there are only three duties or obligations that he is not required to perform.

One is the right to vote. We usually call that, however, a right or a privilege rather than an obligation. The second is jury service. That is open only to citizens. Citizens, however, usually try to avoid it as much as possible. Even if it were open to aliens, I doubt if most courts or attorneys would want the alien who usually has been here a shorter time and who is less familiar with our language, to serve on a jury. The third obligation is the duty of bearing arms. On this point, let us turn back to the last war. Even though he was not under obligation, the alien came forward to practically the same extent as the citizen. There is so much misinformation on this point that I should like to read the following testimony from the "Second Report of the Provost Marshal General to the Secretary of War." He says:

"No man can pursue the muster roll of one of our camps or the casualty list from a battlefield in France without realizing that America has fulfilled one of its highest missions in breeding a spirit of common loaylty among all those who have shared the blessings of life on its free soil.

"The mass of foreign-born residents were themselves permeated by the spirit of readiness to waive their exemptions and voluntarily accept the call to military service. Thousands of nondeclarant aliens of cobelligerent and even of neutral origin welcomed the opportunity to take up arms; the records of correspondence in this office contain eloquent testimony to this spirit. The figures of alien classification already given indicate this; and the local boards report explicitly that the nondeclarant aliens waiving their exemption was very large. And finally, the figures of naturalizations in camp since May 1918, refute the notion that any appreciable number of these men had entered the service unwillingly."

In other words, the alien has not attempted to evade the duties of the citizen, and for the most part, is subject to exactly the same obligations. Throughout our history the alien of today has been the citizen of tomorrow. It is a process of adjustment that involves time and will be facilitated by forbearance and sympathetic assistance.

STATEMENT OF MISS CAROL KING, NEW YORK CITY

Senator SCHWELLENBACH. You may proceed.

Miss KING. My name is Carol King. I am chairman of the committee on citizenship, immigration, and naturalization of the National Lawyers' Guild, an organization of over 3,000 members.

I should like to answer in my own way a question you put to Mr. Fagen, because it seems to me it would clarify the position of our committee of the National Lawyers' Guild. I should answer it exactly opposite. I feel that the repressive features of section 1 outweigh any dangers or benefits that are manifest in the discretionary features appearing in the later section. I feel that for a variety of reasons.

In the first place, under the present law, section 155 of the United States Code, it is plainly provided that where a crime has been pardoned the alien who has been convicted of the crime is not subject to deportation. The same is true if it is recommended by the trial judge that he should not be deported. There is no such provision here.

In a situation where a man has resided in the United States for 40 or 50 years, and has been convicted in connection with an industrial dispute of perhaps an assault which is not a crime involving moral turpitude and which he claims he never committed, if he serves 1 day in jail he is subject to deportation, provided proceedings are instituted within 5 years from the date of his conviction. I do not believe that any such provision is in accord with American traditions. I believe that, if we are to deport criminals because they have committed crimes, the crime should be of a nature which is regarded by the court and jury that tried the alien as of sufficient seriousness that he would be given a sentence of at least 1 year, as the present law provides.

Senator SCHWELLENBACH. Would not the matter be submitted to the court.

Miss KING. What matter?

Senator SCHWELLENBACH. The question of deportation.

Miss KING. There is no such provision in the present law. There is in the old law, but that was amended.

Senator SCHWELLENBACH. But the question of the sentence that the court may impose would be argued upon the basis of deportation, would it not?

Miss KING. I do not believe so.

Senator SCHWELLENBACH. I have heard it argued a good many times.

Miss KING. Under the present law there is a provision that the trial judge may recommend against deportation, and when the judge makes such a recommendation that question would be considered at the time of the sentence.

Senator SCHWELLENBACH. The question of the length of the sentence, and the argument made in reference to that?

Miss KING. Yes.

Senator SCHWELLENBACH. Would not the same question be argued before the court in this case?

Miss KING. I doubt very much, when he is sentenced for 1 hour, that you could make such an argument before a court where a man is convicted of the slightest criminal offense.

I am coming now to subdivision 2 of section 1, the firearms provi sion. Even if the court suspended sentence it would not help the alien. There was something said this morning by Mr. Shaughnessy, or yesterday morning, I believe it was, as to the necessity of that provision in order to apprehend gangsters and gunmen. I have no more use for foreign gunmen than he has, but a man who carries a gun is not always a criminal. I have seen them suspend the sentence for an alien for various minor offenses, but I never saw a case of an alien carrying a gun who had violated the law being given a suspended sentence.

Subdivision 2 is arbitrary. The Department of Labor has been seriously inconvenienced in the past by a series of court rulings to the effect that the carrying of concealed weapons is not a crime involving moral turpitude. This law having been framed by people conversant with that situation, they said that anbyody who carried concealed weapons, whether sentenced or not, should be deported. I say the least you can do is to provide that conviction for carrying concealed weapons shall be on the same plane as any other offense. If he is sentenced for a first offense within 5 years, after his entry, or is sentenced twice at any time after entry, then he is deportable. If you want to overcome the court rulings say in frank terms that the carrying of concealed weapons is a crime involving moral turpitude and should be covered by the same rules and regulations. It is a no more serious offense than robbery or burglary. The number of machine guns that aliens purchase is relatively small. I have never seen one receive a suspended sentence. I doubt very much if they ever do in any other

courts.

So it seems to me that subdivisions 1 and 2 of section 1 are so dangerous that they completely overbalance the benefits of discretion awarded to the Department in connection with the second section of

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