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ILLEGAL ALIENS

WEDNESDAY, MARCH 7, 1973

HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE No. 1 OF THE

COMMITTEE ON THE JUDICIARY,
Washington, D.C.

The subcommittee met at 10:05 a.m., pursuant to call, in room 2237, Rayburn House Office Building, Hon. Joshua Eilberg (chairman of the subcommittee) presiding.

Present: Representatives Eilberg, Flowers, Seiberling, Holtzman, Keating, Wiggins, and Dennis.

Also present: Garner J. Cline, counsel; Arthur P. Endres, Jr., assistant counsel; and Donald G. Benn, associate counsel.

Mr. EILBERG. The hearing will come to order.

During the 92d Congress, this subcommittee held a series of hearings on the complex and multifaceted problem of the illegal alien in the United States. The subcommittee heard a total of 186 witnesses in Los Angeles, Denver, El Paso, Detroit, Chicago, and New York. The subcommittee patiently listened to the viewpoints of all interested parties, including Government officials, employers, labor representatives, immigration lawyers, clergy, ethnic organizations, and minority groups, as well as aliens illegally in the United States. Five volumes of hearings were printed, and recently a committee print, "A Review of Hearings," has been made available.

The hearings were both investigative and legislative. The legislation specifically under consideration was three sections of H.R. 2328 (92d Cong.), which provided 1-year imprisonment and/or $1,000 fine to be imposed upon an employer who knowingly hired an alien illegally in the United States. Members of the subcommittee at that time generally considered this penalty too harsh, difficult to enforce, and vague in that there were no guidelines to determine "knowingly."

The basic conclusion reached by the majority of the members of the subcommittee was that the adverse impact of illegal aliens had been substantial and warranted legislation to protect American labor and the economy and to assure the orderly entry of immigrants into the United States. As a direct result of the hearings, H.R. 16188 was introduced. This legislation embodied the conclusion that if legislation was enacted to remove the incentive for illegal aliens to work in the United States, and for employers to hire them, much could be accomplished to eliminate the multifaceted problem. This bill was reported by the Committee on the Judiciary on August 17, 1972, and passed the House of Representatives on September 12, 1972.

(1)

As Chairman Rodino, who was chairman of this subcommittee in the 92d Congress, stated:

Most employers who have hired illegal aliens do not conspire to violate the law and most aliens are basically law-abiding, but the economies in many countries force people to leave and seek jobs in the United States.

The consequence of this action compromises labor conditions, depresses wage rates, and deprives Americans of jobs. Whatever sympathy one might have for the underprivileged aliens illegally in the United States in their desire to improve their economic posture, this Government cannot condone employment when it adversely affects American citizens and other persons who are lawfully in the United States. There must be an orderly system of admissions and aliens cannot be permitted to violate that system and derive benefits from their illegal acts while bona fide immigrants and nonimmigrants are denied early admission and are otherwise disadvantaged.

The purpose of this hearing today is to clarify certain matters which have come to the attention of the subcommittee and to afford an opportunity to those Members of Congress who have indicated that they wish to testify on H.R. 982.

Furthermore, it is proper for the Department of Justice to update its views on this proposed legislation-which the Department supported in the last Congress-and to share with us the position of the administration in this matter.

Certain allegations have tended to contradict the support of H.R. 982-the successor to H.R. 16188-by organized labor, and thus the AFL-CIO has been invited to clarify their position.

As the members will recall, in the last Congress, Public Law 92-603 was enacted. Section 137 of that act requires the Secretary of the Department of Health, Education, and Welfare, to assure that social security account numbers are assigned to certain groups and categories of individuals. It would certainly be in the interest of this committee to learn how this requirement has been implemented.

I want to emphasize that this subcommittee is not meeting today to arbitrate differences or to hear complaints solely of one group against another or to act as a forum for criticism or political motivation. We are here solely to develop facts so that we may properly consider the legislation pending before this subcommittee.

(The bill referred to, H.R. 982, follows:)

[H.R. 982, 93d Cong., 1st sess.]

A BILL To amend the Immigration and Nationality Act, and for other purposes Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That, section 245 of the Immigration and Nationality Act (8 U.S.C. 1255) is amended to read as follows:

"SEC. 245. (a) The status of an alien who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment. (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.

"(b) Upon the approval of an application for adjustment made under subsection (a), the Attorney General shall record the alien's lawful admission for

permanent residence as of the date the order of the Attorney General approving the application for the adjustment of status is made, and the Secretary of State shall reduce by one the number of the preference or nonpreference visas authorized to be issued under section 203 (a) within the class to which the alien is chargeable, or the number of visas authorized to be issued pursuant to the provisions of section 21(e) of the Act of October 3, 1965, for the fiscal year then current.

"(c) The provisions of this section shall not be applicable to: (1) an alien crewman; (2) any alien (other than an immediate relative as defined in section 201(b)) who has hereafter accepted unauthorized employment prior to filing an application for adjustment of status; or (3) any alien admitted in transit without visa under section 238 (d)."

SEC. 2. Section 274 of the Immigration and Nationality Act (8 U.S.C. 1324) is amended by deleting the proviso in paragraph 4 of subsection (a) and by redesignating subsection (b) as subsection (e) and adding new subsections (b), (c), and (d) to read as follows:

"(b) (1) It shall be unlawful for any employer or any person acting as an agent for such an employer, or any person who for a fee, refers an alien for employment by such an employer, knowingly to employ or refer for employment any alien in the United States who has not been lawfully admitted to the United States for permanent residence, unless the employment of such alien is authorized by the Attorney General: Provided, That an employer, referrer, or agent shall not be deemed to have violated this subsection if he has made a bona fide inquiry whether a person hereafter employed or referred by him is a citizen or an alien, and if an alien, whether he is lawfully admitted to the United States for permanent residence or is authorized by the Attorney General to accept employment: Provided further, That evidence establishing that the employer, referrer, or agent has obtained from the person employed or referred by him a signed statement in writing that such person is a citizen of the United States or that such person is an alien lawfully admitted for permanent residence or is an alien authorized by the Attorney General to accept employment, shall be deemed prima facie proof that such employer, agent, or referrer has made a bona fide inquiry as provided in this paragraph. The Attorney General of the United States shall prepare forms for the use of employers, agents, and referrers in obtaining such written statements if they so desire, and shall furnish such forms to employers, agents, and referrers upon request.

(2) If, on evidence or information he deems persuasive, the Attorney General concludes that an employer, agent, or referrer has violated the provisions of paragraph (1), the Attorney General shall serve a citation on the employer, agent, or referrer informing him of such apparent violation.

"(3) If, in a proceeding initiated within two years after the service of such citation, the Attorney General finds that any employer, agent, or referrer upon whom such citation has been served has thereafter violated the provisions of paragraph (1), the Attorney General shall assess a penalty of not more than $500 for each such alien employed in violation of paragraph (1).

"(4) A civil penalty shall be assessed by the Attorney General only after the person charged with a violation under paragraph (3) has been given an opportunity for a hearing and the Attorney General has determined that a violation did occur, and the amount of the penalty which is warranted. The hearing shall be of record and conducted before an immigration officer designated by the Attorney General, individually or by regulation. The proceedings shall be conducted in accordance with such regulations, within the constraints and requirements of title 5, section 554 of the United States Code which shall be applicable to the hearing provided for herein, as the Attorney General shall prescribe and the procedure so prescribed shall be the sole and exclusive procedure for determining the assessment of a civil penalty under this subsection. "(5) If the person against whom a civil penalty is assessed fails to pay the penalty within the time prescribed in such order, the Attorney General shall file a suit to collect the amount assessed in any appropriate district court of the United States. In any such suit or in any other suit seeking to review the Attorney General's determination, the suit shall be determined solely upon the administrative record upon which the civil penalty was assessed and the Attorney General's findings of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive.

"(c) Any employer or person who has been assessed a civil penalty under subsection (b) (3) which has become final and thereafter violates subsection (b) (1) shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not exceeding $1,000, or by imprisonment not exceeding one year, or both, for each alien in respect to whom any violation of this subsection occurs.

"(d) (1) Any vessel, vehicle, or aircraft which has been or is being used in furtherance of a violation of subsection (a), or which has been or is being used by any person who for a fee refers or transports an alien for employment in furtherance of a violation of subsection (b), shall be seized and forfeited: Provided. That no vessel, vehicle, or aircraft used by any person as a common carrier in the transaction of business as such common carrier shall be forfeited under the provisions of this section unless it shall appear that (A) in the case of a railway car or engine, the owner, or (B) in the case of any other such vessel, vehicle, or aircraft, the owner or the master of such vessel or the owner or conductor, driver, pilot, or other person in charge of such vehicle or aircraft was at the time of the alleged illegal act a consenting party or privy thereto : Provided further, That no vessel, vehicle, or aircraft shall be forfeited under the provisions of this section by reason of any act or omission established by the owner thereof to have been committed or omitted by any person other than such owner while such vessel, vehicle, or aircraft was unlawfully in the possession of a person who acquired possession thereof in violation of the criminal laws of the United States, or of any State.

"(2) All provisions of law relating to the seizure, summary and judicial forfeiture, and condemnation of vessels and vehicles for violation of the customs laws; the disposition of such vessels and vehicles or the proceeds from the sale thereof; the remission or mitigation of such forfeitures; and the compromise of claims and the award of compensation to informers in respect of such forfeitures shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under the provisions of this chapter, insofar as applicable and not inconsistent with the provisions hereof: Provided, That such duties as are imposed upon the collector of customs or any other person with respect to the seizure and forfeiture of vessels and vehicles under the customs laws shall be performed with respect to seizures and forfeitures of vessels, vehicles, and aircraft under this section by such officers, agents, or other persons as may be authorized or designated for that purpose by the Attorney General.".

SEC. 3. The Immigration and Nationality Act is amended by inserting immediately after section 274 the following new section:

"DISCLOSURE OF ILLEGAL ALIENS WHO ARE RECEIVING ASSISTANCE UNDER THE SOCIAL

SECURITY ACT

"SEC. 274A. Any officer or employee of the Department of Health, Education, and Welfare shall disclose to the Service the name and most recent address of any alien who such officer or employee knows is not lawfully in the United States and who is receiving assistance under any State plan under title I, X, XIV, XVI, XIX, or part A of title IV of the Social Security Act."

SEC. 4. The first paragraph of section 1546 of title 18 of the United States Code is amened to read as follows:

"Whoever knowingly forges, counterfeits, alters, or falsely makes any immigrant or nonimmigrant visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay in the United States, or utters, uses, attempts to use, possesses, obtains, accepts, or receives any such visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay in the United States, knowing it to be forged, counterfeited, altered, or falsely made, or to have been procured by means of any false claim or statement, or to have been otherwise procured by fraud or unlawfully obtained; or".

SEC. 5. Nothing contained in this Act, unless otherwise specifically provided therein, shall be construed to affect the validity of any document or proceeding which shall be valid at the time this Act shall take effect; or to affect any prosecution, suit, action, or proceeding, civil or criminal, done or existing, at the time this Act shall take effect; but as to all such prosecutions, suits, actions,

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