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the half-million entering before the depression, unless something is done by Congress to further reduce the number.

This bill, H. R. 6391, contains a section_repealing quota preference for "immigrants skilled in agriculture." I understand a draft of the bill that Senator Russell had last February and copy of which I have had as section 5 a 50-percent cut in quotas. It does seem that any immigration bill amending the quota law of 1924 or the 1917 act ought to contain further restriction, at least by excluding nonpreference aliens which would be a very simple matter, by merely inserting the 10 words "but not to exceed twenty per centum of such quota' in paragraph (3) of subdivision (a) of section 6 of the Immigration Act of 1924, as amended, to read as follows:

(3) Any portion of the quota of each nationality for each year not required for the issuance of immigration visas to the classes specified in paragraphs (I) and (2), but not to exceed twenty per centum of such quota, shall be made available for the issuance of immigration visas to other quota immigrants of such nationality.

It does not relieve the effects of the demand of the incoming thousands of newcomers annually for jobs and relief, or for dependency upon us, or the effects on foreign-born already here, or on our "onethird ill-fed, ill-clothed, and ill-housed" to classify the annual alien arrivals as nonimmigrant, nonquota and even "statistical aliens", for the nonimmigrant, such as the embassy employees, as well as the "statistical" and every other alien does sometimes often stay and take a job, just as does the student admitted nonquota, and just as do some of all the rest of the nonquota and nonimmigrant aliens get "lost in the crowd" to further increase unemployment, dependency, demands for relief and the like. If illegally or unlawfully here, it must be true that when the census enumerator comes around or the relief dispenser shows up most aliens are not so dumb as to be unduly in evidence or to reveal their lawbreaking.

No other country permits any such alien influx or alien presence as we do. In fact, no other country of consequence will even tolerate aliens having jobs. Most countries require permits to work and our good neighbor on the south even drastically forbids the employment of aliens. Mexico will not allow even our train crews to cross her border, but we allow hers to enter our country.

Even our musicians when they play abroad are required to get permits and to pay a native musician to sit idly by and listen to their music.

Last year over 9,000 alien lawbreakers were deported and as many more allowed to depart voluntarily, which permits the alien to return legally. Meanwhile nearly 4,000 alien lawbreakers had their deportations "stayed", and their "unrelinquished residence" here run into the 7-year period requisite under the seventh proviso discretion of the 1917 law for the Secretary of Labor to readmit them.

Practically all of the 3,949 alien lawbreakers whose deportation had been "stayed", if allowed to stay much longer, will be in the position where, if they go out, they can be readmitted by the Secretary of Labor under that seventh proviso.

With reference to family separations abroad, a provision should be added to subdivision 1 of section 2 of the Immigration Act of 1924 that would prevent the hardship of disrupted families and resulting hardship cases here by forbidding our consuls to issue a visa to a

member of a family, where such would result in separating that family, as follows:

No immigration visa shall be issued to any alien for permanent residence if said alien thereby separates himself from and leaves in a foreign land a living spouse, minor or unmarried child, or dependent parents over 55 years of age. Or:

No consular officer may accept or file any application for an immigration visa or grant a visa under the act of 1924, as amended, to any alien for admission to permanent residence, if said alien thereby separates himself from and leaves in a foreign land a living spouse, minor unmarried child, or dependent parent over 55 years of age.

A good deal has been said about converting a temporary admission into a permanent admission for permanent residence. When a visitor or student, or any other temporarily admitted alien, comes to the United States legally, he promises and swears that he will do nothing to change his temporary status, and that as soon as his temporary mission is fulfilled he will leave the country. To allow the law to be evaded and dodged by an alien who, when he comes in nonquota as a student and thus has a temporary admission status, to convert that easily obtained temporary admission into a permanent admission, unless there are very strong reasons for it, seems to me to invite evasion of the law. I have here an amendment that would cure the alleged deportation hardships of such aliens and remedy their breaking their promises and law evasion, as follows:

An alien who enters the United States, either from a foreign territory or insular possession, either before or after the passage of this act, shall be promptly deported in the manner provided in sections 19 and 20 of the Immigration Act of February 5, 1917 (36 Stat., 889; U. S. C. title 8, secs. 155 and 156), as amended, regardless of when he entered, if he changes or does anything to change his temporary quota or nonimmigrant status or in violation of the implied or express terms of his quota or nonimmigrant temporary admission to the United States.

In other words, at present we "humanely" make it easy for nonquota and "nonimmigrant" aliens to enter for a specified temporary purpose or mission. And then what does he do? He uses that humane, exceptional admission to build up a hardship case. We try to be humane, and because we will not allow him to stay when he has broken his entrance promise and evaded our law, he says we are inhuman. Admitted on the express promise that as soon as he fulfills his temporary mission he will depart from the country, and that he will do nothing to change his temporary status while he is here, he does both and then cries out we are inhumane because we do not want to tolerate his law dodging. But for that humane exemption he would not be allowed to come here. He would not be in the country but for a humane concession which he abuses. His hardship could not arise but for our hospitality, humaneness, and kindness to him originally. He uses that to make a hardship case. It seems to me it does not inspire very much confidence in his desirability as an alien for permanent residence or citizenship.

The immigration question is an economic question. It is too bad that factors of race, religion and, politics are sometimes dragged into it.

Our great hope is to keep it free from any kind of partisanship. Leaving out of consideration the present unemployment situation, the question arises whether in the future we can absorb the hundreds of thousands of workers and dependents from abroad that will come under existing immigration laws with the return of prosperity. Each year about 500,000 of our own boys and girls will reach the age of maturity

and become applicants for employment. I submit they are entitled to first consideration.

It does seem any bill amending the quota law, as H. R. 6391 would, should do something about the over 100,000 nonpreference aliens that came in and before 1930. Under the law, in 1930, the last year before we felt the effect of the temporary depression, and before the consuls: began to refuse visas in order to reduce the number of immigrants, the following is found as to alien admissions:

Total quota available for Europe and the Near East.

150, 414

Total number of visas issued to immigrants from Europe and Near East

(509 of British quota not filled)

149, 905

These were divided as follows:

First preference (relatives of citizens)

8, 439

Second preference (relatives of aliens)

24, 212

First preference (farmers; should be in nonpreference group)
Nonpreference (mostly seeking work)_.

15, 106.

102, 148

The method usually proposed to correct this economic problem is through a reduction in the size of the quotas. This meets with opposition because it reduces in theory, even if not in actual practice, the opportunity for citizens and legally resident aliens to bring in the members of their immediate families. Whether or not quotas are reduced, this economic aspect of immigration could be handled by a simple change in the present law and the mere insertion in section 6 of the 10 words I suggested.

Section 6 of the Immigration Act of 1924 provides for preferences within each quota. It also provides that any portion of the quota not utilized by the two preference classes shall be made available "to other immigrants of the same nationality", most of whom have no connections in this country and are seeking work.

I have about finished, but there is a fact Senator, with reference to your insertion yesterday of the hearings of the House committee on H. R. 5573, I wish to call attention to. I think it does an injustice to such a distinguished witness as Captain Trevor who appeared in opposition to H. R. 5573, before that committee on April 8, and put him in a wrong light to have it represented that there was before the committee also, as stated in the hearings, H. R. 6391, when that bill had not been introduced in the House until the afternoon of April 14, after those hearings had been adjourned sine die.

There is in the report of the House committee accompanying H. R. 6391 a reference to the discredited so-called Wickersham Report on Law Observance and Law Enforcement that has a direct bearing and about which I would like, in closing also, to say a few words. The quotation in the House committee report is based on the "recommendation" of a Baltimore lawyer and quoted as if there were no dissenting opinion in the Wickersham report.

The recommendation and his report on which it is based were characterized, as the whole ridiculous Wickersham report ought to be, in dissenting opinions as: "A necessarily incomplete study of a relatively small portion of the deportation cases" and an "over emphasis and over inference of abuse, where a full knowledge of the facts is needed to justify such a recommendation", and as trying to make law administration by the executive judicial, the administrative and judicial functions being clearly confused by Mr. Oppenheimer, because deportation is not punishment for crime, but the return of an alien

to his homeland, where as a rule he ought to have his best refuge or perhaps get what is coming to him in some instances.

What Mr. Oppenheimer, the lawyer, recommended was the substitution of an elaborate judicial department with all its accompanying expenses, delays, growth of technicalities, opportunities for frustration, and attendant corps of professional immigration lawyers, that such would necessarily entail, merely for us to get rid of a guest, or guests, who have abused our hospitality and privilege.

And that right in the face of his admitting the necessity for prompt deportation to protect us from being, in the language of the report, "inundated by defective, diseased, delinquent and incorrigible persons, as well as to adequately discourage border jumpers and stowaways and the industry of smuggling aliens at our borders." I understand that at the time the legal staff of the Department of Labor prepared and sent to the Wickersham Commission a very able brief that, however, was not published by the Commission in its report, for some reason, and that was a complete answer to any such monstrous proposal.

In closing let me thank you for the privilege of being head and say in brief that the memberships for whom I speak have a very clear notion that alien deportation, immigration restriction, law enforcement, unemployment, relief, and other such questions involving aliens should be solved by Congress for the benefit of America and Americans, for our native-born and naturalized, and for the alien legally admitted and domiciled here, and that whatever is done should be done to protect our workingmen, their standards and wages, our social and living conditions, and our economic and social and political structure, instead of for the benefit of any foreign land or foreigner.

I thank you very much.

Senator SCHWELLENBACH. There may be incorporated in the record at this point the opinion of the Supreme Court in the case of Mahler v. Eby, referred to yesterday, and the opinion of the Circuit Court of Appeals for the Sixth Circuit in the case of Zurbrick v. Woodhead. (The opinions referred to, respectively, are here set forth in full, as follows:)

MAHLER v. EBY (264 U. S. 32)

OPINION OF COURT

The theory of the draftsman of the petition for the writ and of the assignment of errors was that the same constitutional restrictions apply to an alien deportation act as to a law punishing crime. It is well settled that deportation, while it may be burdensome and severe for the alien, is not a punishment (Fong Yue Ting v. United States, 149 U. S. 698, 730; Bugajewitz v. Adams, 228 U. S. 585, 591). 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 (Fong Yue Ting v. United States, supra). The inhibition against the passage of an ex post facto law by Congress in section 9 of article I of the Constitution applies only to criminal laws (Calder v. Bull, 3 Dall. 386; Johannessen v. United States, 225 U. S. 227, 242) and not to a deportation act like this (Bugajewitz v. Adams, 228 U. S. 585, 591). Congress by the act of 1920 was not increasing the punishment 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. In Hawker v. New York (170 U. S. 189) the validity of a law of New York which forbade, on penalty, anyone who had been convicted of a felony from practicing medicine, was upheld as a reasonable exercise of the police power and not an increase of the punishment for the felony. The present is even a clearer case than that.

The brief for appellants insists that as the laws under which the appellants were convicted have been repealed, the fact of their conviction cannot be made the basis for deportation. It was their past conviction that put them in the class of persons liable to be deported as undesirable citizens. That record for such a purpose was not affected by the repeal of the laws which they had violated and under which they had suffered punishment. The repeal did not take the convicted persons out of the enumerated classes or take from the convictions any probative force rightly belonging to them.

Nor is the act invalid in delegating legislative power to the Secretary of Labor. 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 (Tiaco v. Forbes, 228 U. S. 549, 557). That is what it has done here. It has established classes of persons who in its judgment constitute an eligible list for deportation, of whom the Secretary is directed to deport those he finds to be undesirable residents of this country. With the background of a declared policy of Congress to exclude aliens classified in great detail by their undesirable qualities in the Immigration Act of 1917, and in previous legislation of a similar character, we think the expression "undesirable residents of the United States" is sufficiently definite to make the delegation quite within the power of Congress. As far back as 1802 the naturalization statute of that year (ch. 28, 2 Stat. 153) prescribed that no alien should be naturalized who did not appear to the court to have behaved during his residence in this country "as a man of good moral character, attached to the Constitution of the United States, and well disposed to the good order and happiness of the same." Our history has created a common understanding of the words "undesirable residents" which gives them the quality of recognized standard.

We do not think that the discretion vested in the Secretary under such circumstances is any more vague or uncertain or any less defined than that exercised in deciding whether aliens are likely to become a public charge, a discretion vested in the immigration executives for half a century and never questioned. Mahler et al. v. Eby, inspector in charge Immigration Service, U. S. Department of Labor, at Chicago, Illinois. Appeal from the District Court of the United States for the Northern District of Illinois. No. 184. Argued January 24, 25, 1924-Decided February 18, 1924

1. The inhibition of ex post facto laws (Const. Art. I, Sec. 9) applies only to criminal laws and not to a law for deporting aliens who by conviction of crime are shown to be undesirable as residents of this country (p. 39).

2. The deportation thus provided is not punishment (id.).

3. Repeal of the law under which an alien was convicted does not do away with the conviction as a basis of subsequent deportation (id.).

4. The Alien Act of May 10, 1920, established classes of persons who in the judgment of Congress are eligible for deportation and directs the Secretary of Labor to deport those, of these classes, whom he finds to be undesirable residents. Held not invalid as a delegation of legislative power, since the discretion delegated is sufficiently defined by the policy of Congress and the common understanding as to what "undesirable residents" are (p. 40).

5. Greater precision is required of statutes defining and punishing crimes (Cohen Grocery Co. case, 255 U. S. 81) than of those delegating legislative power to executive boards and officers (p. 41).

6. In deportation proceedings pursuant to the Alien Act of May 10, 1920, against aliens found to have been convicted under the Espionage and Selective Draft Acts, the convictions are sufficient evidence per se that the respondents are "undesirable residents" (p. 42).

7. Failure of aliens to answer questions, under advice of counsel, held also to warrant inferences by the Secretary of Labor against their desirability (Id.). 8. Under the above Act of 1920, a finding by the Secretary of Labor that an alien is an undesirable resident is a jurisdictional prerequisite to deportation (p. 43).

9. The finding must appear in the warrant of deportation itself, or the warrant is void, and the finding cannot be inferred from recitals of the warrant that the alien "has been found" in the United States in violation of the Deportation Act, and has been finally convicted of the offenses named in that act (p. 43).

10. It is a general principle that, where a finding of fact is a condition precedent to an act of an executive officer exercising delegated legislative power, the record of his act must show that the finding was made (p. 44) (Wichita R. R. & Light Co. v. Public Utilities Comm., 260 U. S. 48).

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