in accordance with section 1201 (b) of this title, unless such alien has been exempted from being fingerprinted as provided in that section."

8 U.S.C. 1302(a) provides: (a) It shall be the duty of every alien now or hereafter in the United States, who (1) is fourteen years of age or older, (2) has not been registered and fingerprinted under section 1201(b) of this title or section 30 or 31 of the Alien Registration Act, 1940, and (3) remains in the United States for thirty days or longer, to apply for registration and to be fingerprinted before the expiration of such thirty days."

Resettlement Assistance

On April 3, 1974, the Department of State signed a contract providing $30.5 million in additional assistance to Soviet Jews migrating to Israel. The contract was signed with United Israel Appeal, Inc. (UIA), an accredited American voluntary agency with headquarters in New York. The funds come from an appropriation by the Congress of $36.5 million for Fiscal Year 1974, following an initial $50 million appropriation for Fiscal Year 1973. The new UIA contract, together with previous and planned allocations, obligated the full $86.5 million by June 30, 1974, with all expenditures completed by December 31, 1974. The funds are used in Israel for construction or acquisition of immigrant absorption centers, housing, a medical training facility, and for vocational, university and graduate-study grants to individual immigrants.

Including contracts agreed to April 6, 1973 ($31 million) and June 27 ($13 million), assistance to the immigrants through UIA totals $74.5 million. Another expenditure under the total program is $7.5 million to the loan fund of the Inter-governmental Committee for European Migration (ICEM) for air transportation for the migrants. Also provided is $4.5 million for care and maintenance en route and initial resettlement of Jewish and non-Jewish Soviet emigrants to countries other than Israel, including the United States.

Dept. of State Press Release, No. 127, Apr. 3, 1974; Dept. of State Bulletin, Vol. LXX, No. 1819, May 6, 1974, p. 483. The full text of the contract can be found in Dept. of State File No. AID (US) 8 ISR. See also the 1973 Digest, Ch. 3, § 3, pp. 90-91.

General

Employment

On January 25, 1974, the United States Court of Appeals for the Ninth Circuit, in the case of Mow Sun Wong v. Hampton, 500 F. 2d 1031 (1974), held that regulations of the U.S. Civil Service Commission which, in effect, excluded resident aliens from employment in the Federal competitive civil service, were in violation of the Fifth Amendment.

The action, brought by five resident aliens who had immigrated to the United States from China, sought injunctive relief to prevent the defendant (Chairman of the Commission) from enforcing regulations excluding them as resident aliens from the competitive civil service, from denying them the opportunity to apply for such Federal employment positions on the basis of alienage, and a declaratory judgment declaring those portions of the regulations which automatically disqualified aliens from Federal competitive civil service positions illegal and void. On August 31, 1971, the District Court for the Northern District of California denied plaintiffs' motion for summary judgment and granted defendant's motion to dismiss. 333 F.Supp. 527 (1971).

The Commission regulations, found at 5 CFR § 338.101, allow a person to be admitted to competitive examination or given appointment "only if he is a citizen of or owes permanent allegiance to the United States." 5 CFR § 338.101 (a) (b). In its discussion of non-constitutional issues, the Court of Appeals distinguished Espinoza v. Farah Manufacturing Co., Inc. (see the 1973 Digest, Ch. 3, § 3, pp. 95-96) by stating that its application to the case at bar was limited in that it involved only private employment, rather than the issue of Federal employment under the civil service.

The Court of Appeals cited Sugarman v. Dougall (see the 1973 Digest, Ch. 3, § 3, pp. 91, 93–95) and Graham v. Richardson, 403 U.S. 365 (1971), finding them "instructive and significant when applied to the case at hand", although they dealt with the states' power to discriminate against aliens under the Fourteenth Amendment. Sugarman v. Dougall involved a holding by the Supreme Court that "[t]he citizenship restriction sweeps indiscriminately." 41 U.S.L.W. 5141. The Court of Appeals found that the Civil Service Commission regulation in the case at bar "also sweeps indiscriminately excluding all aliens from all positions requiring the competitive civil service examination.”

According to the briefs, the appellants named in the class action were a janitor, file clerk, clerk typist, mail clerk, and educational evaluator. The Court said that "[s]urely these positions and the majority of civil service positions do not actually participate either in the making or in the execution of national policy," and that "if national security were involved in a particular position, or requirements of citizenship as qualifications for political office, the Government interest would be compelling enough to offset discrimination against aliens. But, a flat prohibition from any level of Federal employment as the regulations dictate creates a different situation."

The Court rejected the Government's arguments attempting to establish a compelling interest justifying the total exclusion of aliens

from the Federal competitive civil service. The lower court had accepted as one justification the Government's "right to provide for the economic security of its citizens before its resident aliens." 333 F.Supp. at 532. The Court of Appeals cited Graham v. Richardson and Sugarman v. Dougall in rejecting the argument. The Court said that "[a] resident alien must assume certain obligations in return for being allowed to reside lawfully in the United States. He must pay taxes. He is subject to military service. He contributes to the economic growth and welfare of this country. . . While it might be thought he could and should cure his disability by simply applying for and obtaining his citizenship, there appears to be no logical justification for discrimination against aliens on economic grounds."

The lower court also found that government "function(s) more smoothly and efficiently and more securely if competitive civil service positions are limited to citizens." 333 F.Supp. at 533. The Court said it had "no doubt that under certain circumstances our government may, for loyalty and security reasons, properly require citizenship for certain government positions. But the Commission regulations fail to delineate any specific positions where security, loyalty and policymaking require that the citizenship requirement be essential for employment. Instead they automatically exclude all aliens from the the competitive civil service; an instance of overbreadth."

Appellees had pointed to the practice of other nations requiring civil servants to be citizens. The Court replied that the contention, "though relevant on the reasonableness of the discrimination, does not prove a compelling government interest. Its application toward solving the constitutional issue is questionable."

While the Court rejected appellants' contention that the protection provided by the Fifth Amendment is coextensive with the equal protection clause of the Fourteenth Amendment, it did hold that the broad sweep of the regulation was "so unjustifiable as to be violative of due process." The decision of the District Court was reversed and remanded with instructions to grant appellants the injunctive relief sought.

The Supreme Court granted certiorari on June 10, 1974, 94 S.Ct. 3067.

The Supreme Court, on November 19, 1973, held in the case of Espinoza v. Farah Manufacturing Co., No. 72-671, 42 Law Week 4014 (1973), that discrimination in hiring of aliens on the basis of citizenship is not per se national origin discrimination in violation of section 703 of Title VII of the 1964 Civil Rights Act (42 U.S.C. § 2000e-2(a) (1)). See the 1973 Digest, Ch. 3, § 3, pp. 95-96.

569-769-75-8

Effective March 18, 1974, the Equal Employment Opportunity Commission amended Section 1606.1(d) and (e) of Chapter XIV of the Code of Federal Regulations to conform to the Supreme Court's decision. As revised, Section 1606.1(d) and (e) read as follows:

(d) Where discrimination on the basis of citizenship against a lawfully immigrated alien residing in the United States has the purpose or effect of discriminating against persons of a particular national origin, such person may not be discriminated against on the basis of citizenship, except that it is not an unlawful employment practice for an employer pursuant to section 703 (g), to refuse to employ any person who does not fulfill the requirements imposed in the interest of national security pursuant to any statute of the United States or any Executive Order of the President respecting the particular position or the particular premises in question.

(e) In addition, some states have enacted laws prohibiting the employment of noncitizens. Where such laws have the purpose or effect of discriminating on the basis of national origin, they are in conflict with and are, therefore, superseded by Title VII of the Civil Rights Act of 1964, as amended.

See the Fed. Reg., Vol. 39, No. 53, Mar. 18, 1974, pp. 10123-10124.

Government Employment

The issue of alien employment restrictions in Section 602 of Title VI of Public Law 93-143, the "Treasury, Postal Service, and General Accounting Appropriation Act, 1974," was raised with the Department of State in a letter dated April 5, 1974, from Congressman Edward I. Koch. He wrote on behalf of a former constituent, a citizen of India, whose application for a position at Saint Elizabeth's Hospital in Washington, D.C., had been rejected by the Department of Health, Education, and Welfare under the terms of P.L. 93–143. Section 602 of Title VI provides:

Unless otherwise specified and during the current fiscal year, no part of any appropriation contained in this or any other Act shall be used to pay the compensation of any officer or employee of the Government of the United States (including any agency the majority of the stock of which is owned by the Government of the United States) whose post of duty is in continental United States unless such person (1) is a citizen of the United States, (2) is a person in the service of the United States on the date of enactment of this Act, who, being eligible for citizenship, has filed a declaration of intention to become a citizen of the United States prior to such date, (3) is a person who owes allegiance to the United States, or (4) is an alien from Cuba, Poland, or the Baltic countries lawfully admitted to the United States for permanent residence. The Act provides certain exceptions, including one for "nationals of those countries allied with the United States in the current defense effort."

On April 25, 1974, Linwood Holton, Assistant Secretary of State for Congressional Relations, wrote a reply to Congressman Koch which included the following statement:

This provision, or a substantially similar one, has been incorporated in appropriation acts for a number of years, going back to World War II. The exception for nationals of allied countries appears initially to have been provided by Congress to allow foreign nationals of allied countries to work for the United States Government within the United States in defense-related positions. The Department of State does not issue regulations interpreting the provision, but it does undertake on request to advise other government departments and agencies with respect to whether it considers a country "allied" within the meaning of the law. In doing so, the Department interprets the exception to apply only to nationals of those countries with which the United States has in force mutual security agreements. It is the Department's view that to go beyond that determination would be to embark into an area of broad speculation without clear guidelines, which would not correspond with the intention of Congress and might be offensive or embarrassing to certain countries with which the United States has friendly relations. In particular, it is our feeling that nations which consider themselves to be "non-aligned" might well be reluctant to be formally considered as "allied with the United States in the current defense effort."

As the United States has no mutual security agreement with India, the Department of State takes the view that nationals of India do not fall within the quoted exception.

We sympathize with Dr. 's statement in his letter of February 13, 1974, that the situation discriminates against Indians and other citizens of neutral countries, but we feel that any remedy must lie in revision or repeal of the provision of law rather than in its interpretation by a government department or agency.

Dept. of State File No. P74 0039-0875.

An earlier and expired version of this restriction was held to be unconstitutional by the United States District Court for the District of Puerto Rico in Ramos v. United States Civil Service Commission, Civil No. 63-73, decided on May 29, 1974. Santin Ramos was an 18-year-old native of Cuba, legally admitted to the United States in 1962 and residing in Puerto Rico. He was not a U.S. citizen. Ramos had applied for a position as a control tower operator trainee, but was notified that he could not be considered for appointment to the competitive civil service as a Commission regulation at 5 CFR 338.101 (see supra, at p. 90) makes citizenship a qualification for appointment. Ramos sought a declaration that the regulation and the statute upon which it was allegedly based were unconstitutional. The statutory provision he cited was the Treasury, Postal Service and General Government Appropriation Act of 1973, P.L. 92-351. The exceptions to the citizen