STATEMENT OF ALLEN S. OLMSTED

The CHAIRMAN. Give your name to the stenographer.

Mr. OLMSTED. My name is Olmsted. One of the members of the committee, I have forgotten which one it was, was speaking of the burden of proof. A case occurs to me that a Philadelphia lawyer told me about a week or two ago. A client of his--I have forgotten what exactly he was trying to do, but the fact was that the client had come into the country at a place in Montana, from Canada, and he had to prove that he did come in. Well, he knew the place and he knew the date. He was an intelligent man, an educated man. So they sent out to Montana to get his record, and there was no record of his having come in. Now, under the burden of proof I am merely asking this I do not know-is his own affidavit sufficient to prove that he came in on that day, in the face of the fact that the record was lacking?

The CHAIRMAN. If he came in prior to July, 1924, his affidavit might be, under certain circumstances. After July 1, 1924, he either came in with the proper papers or he did not come in legally.

Let me carry that further. By the end of June it will have been two years since the new immigration act became law carrying with it the burden of proof, requiring people coming as immigrants to have these papers; so that when we put the three-year limit, we authorized a one-year stretch. If this bill should not become a law for one year, the dead line three years back would be complete; it would run parallel with the new law. That fact is making a little difficulty just now in finding a dead line.

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Mr. ŎLMSTED. Before going into the exact provisions of the law, commend to the committee the point that clerical errors do occur, especially in connection with foreign names, as one of the other speakers suggested. This case I think is undoubtedly a case of a clerical error. It is rather undesirable that people should suffer severe penalties because of the clerical errors of others.

The CHAIRMAN. Our experience is, on investigțion of a great many of these cases, that they knew all along of the irregular entries. The nunc pro tunc cases which came up frequently until recently, where it was agreed, willy nilly, that the person came in as he said he did, were to cover a large number of cases of that kind.

Mr. OLMSTED. In the brief which you have mentioned which Mr. Pollock prepared, I think he makes the point that whatever may be the technical facts, deportation actually amounts to a rather severe punishment. For a man who has been in this country for a great many years it is practically synonomous with exile, in a great many cases; so that the second suggestion which I would like to make is this: It is purely personal with me, and it occurred to me in the hearing of these witnesses, whether it would be practical to put in the bill some difference as to the presumption or as to the rights of people who have been here, say, three or five years, and those who have not. For example, I believe the bill starts off saying that these people shall be deported. Now, if in the case where a person has been here five years it were made to read that he may be deported, but in defense of the deportation action it may be shown that there would be undue hardship, or something of that sort, to cover these very hard cases, it would occur to me that that would

make the law more humane. I am saying that that is a practical working suggestion, but it has seemed to me that it would meet some of the suggestions that have been made here to-day.

The CHAIRMAN. To whom would the deportee make the showing as to hardship?

Mr. OLMSTED. I think the hardship would have to be either to him or as to members of his family.

The CHAIRMAN. The acoustics of this room are so bad that I think we do not hear each other very well, sometimes. My question was, to whom would the man make a showing as to extreme hardship? Mr. OLMSTED. To whom, you mean?

The CHAIRMAN. Yes.

Mr. OLMSTED. I suppose to the immigration authorities-whoever does that.

The CHAIRMAN. He would make it to whomever would have the final say?

Mr. ŎLMSTED. Yes.

The CHAIRMAN. Of course that would make a great congestion there.

Mr. OLMSTED. I do not know whether it would or not. The CHAIRMAN. There is something in what you say. We are met right now with cases of men complaining that if they should be deported to certain countries, to Italy or to Mexico, they would be sent to probable execution. If there was a matter like that, it should be considered, and leeway provided.

Mr. OLMSTED. May I ask, as a matter of practical administration of the law, although the law is in its language mandatory, if it is not frequently interpreted as though it were "may" instead of "shall." The CHAIRMAN. No; the law is mandatory as far as possible; but there are many cases in which, no matter what the law says, you can not deport on account of the attitude of other countries.

Mr. VINCENT. And that is also true because the number who are subject to deportation is so great that they can not be handled. There are about 1,300,000 people, according to the estimates, who are in the country subject to deportation.

Mr. OLMSTED. I should think it would be desirable to allow the authorities to pick and choose somewhat and to use discretion about such matters.

The CHAIRMAN. I do not know about that.

Mr. Box. You think it is generally a safe proposition and that it is consistent with our system of government to allow such discretion as that, that administrative officers should pick and choose?

Mr. OLMSTED. I think you are correct, sir; I would withdraw that statement. Not that he should pick and choose, but that the law should allow certain discretion on the part of somebody; if not an administrative officer, then a court.

The CHAIRMAN. The committee has been delving around a good bit trying to find a way by which we could give a sort of clearance to all aliens back of a certain deadline, but we are met immediately with these protests that we are starting a registration system. We think it would be a great step towards clearing the atmosphere and for reducing the troubles that are bound to happen as more come surreptitiously as the result of the restrictive immigration act of 1924.

But we find that protests are gotten up that interfere with any idea to think it out.

Now, I think I know what is in your mind. Your suggestion of picking and choosing is to try to find an exemption of law for those who have been here for some time and are filling their stations in life. Mr. OLMSTED. Yes; and especially in the cases of those who have come here as children and have no other country.

Mr. Box. You do not meet with many cases of that as actually being so, do you?

Mr. OLMSTED. I have heard of them. I do not know how many there are; but I wonder how that comports with the mandatory language of the act. There is the same situation with regard to the Volstead Act.

Mr. Box. It does not comport with it very well in this situation under which we have 1,300,000 people in the country who are subject to deportation.

You mentioned the situation under the Volstead Act as another case. We have many other cases, varying in degree; a good many other laws that create that same situation. I think the committee and Congress just have to do the very best we can with it, like you have to do with your murder statutes. It works very imperfectly.

The CHAIRMAN. I think this qualification ought to go in, in regard to the large number of cases, that while it is estimated that there are 1,300,000 who can not prove that they are legally here, it is undoubtedly true that a very large number out of that million or more have been here longer than the time limit, and are thus lawfully here. Mr. Box. I think I included that. I intended to, anyway. The chairman is correct about that.

Mr. OLMSTED. Then I should like to join with some of the other speakers in the thought that people who are on the whole good people are likely to violate sections 10 and 11; that is, those who harbor aliens wrongly here. I have in mind an instance which is analogous, at least. I recall that a few weeks after my regiment landed in France this occurred: I may say that we were a Boston regiment, and contained a number of men of Irish ancestry. A man purporting to be an Englishman, or in an English uniform, showed up in our camp and said that he was an American and would like to get an American uniform. Here were these fellows, all fine fellows, in a foreign country, not knowing much about it, and the minute they saw a man who even said he was from their own country, they immediately took him in; and I was astonished to learn that that man was completely fitted out with an American uniform, and passed along without any report to the officers, and apparently without any suspicion on the part of these good fellows that the man might be a spy. I have no idea whether he was or not; he might very well have been. I just mention that. Those people would come under some provision, such as "willfully concealing.' They did it.

Now, put yourself where, instead of being 1,200 men in a foreign country, you are a little bit of a group of Lithuanians or Greeks in Philadelphia, and along comes a man from your own town. I really almost think that one of those fellows would be a worse citizen if he did not heed the call of humanity and help out a friend from his own town, than if he did. Suppose that he had been here 10 or 15 or 20 years?

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The CHAIRMAN. Do you know how that works in practice? It is a surprising thing, but a very large part of the information that the department here gets as to persons liable to be deported comes from the groups, furnished from those people among whom the alien is hiding; and it turns out that often times they offer not to tell on him, for a price. Just now in New York we have some cases where aliens came in under false passports and were delivered to some other alien who offered to deliver them for $300 each.

Mr. OLMSTED. Deliver him to the authorities?

The CHAIRMAN._ No; deliver them to relatives.

Mr. OLMSTED. I quite agree that there are some cases of people among these, who ought to be punished in some way or other; but I feel, as I said before-that these people, while they are not American citizens, are future Americans. They are our neighbors, and they are entitled to pretty much the same presumption that the rest of us like to have, that it is better that nine guilty men shall escape than that one man shall suffer the very serious penalty of being deported to a country where he is unknown, and which perhaps is practically foreign to him.

Mr. HOLADAY. Do you think it is a mistake to make it a penalty for a man to conceal an alien who is unlawfully in the country, as he knows?

The CHAIRMAN. To willfully conceal?

Mr. OLMSTED. A penalty, you say?

Mr. HOLADAY. Yes.

Mr. OLMSTED. I would say that is all right, to make a penalty; but I think the penalty of deportation is too severe. Deportation is a matter of relatively little importance to a person who has just come, and perhaps of relatively little importance to a person who has been here 20 years; but to another person who has been here 20 years it is of very real importance; and an iron penalty, a rigid penalty, which lands hard on one person and easy on another, it seems to me is not an appropriate penalty.

Mr. HOLADAY. You think that a man should be punished, but you think that deportation is perhaps too severe a punishment?

Mr. OLMSTED. Yes; because I think if he is subjected to criminal process, and especially if he has a trial before a jury, the very humane considerations which I have spoken of will practically always come in, and the very people who as a practical matter would be punished are all professionals.

Mr. HOLADAY. Would not that same proposition enter into his trial before the immigration authorities? It must be proven that it is willful. He has the same chance before the immigration authorities that every man has before a jury.

Mr. OLMSTED. I would not think it was the same, because juries, as all lawyers know, will follow their hearts rather than the law. The CHAIRMAN. Are you trying to fix this so that a man can not be punished?

Mr. OLMSTED. I am trying to fix it so that the man who does it out of humane motives, as a friend to his fellow countryman, will not be punished; not at all severely, at any rate.

The CHAIRMAN. What the committee really wants in this is to get the people, the aliens, who are going into the business of bootlegging aliens into the country. And they are doing an awful injustice to

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those that they bootleg in, because under the law those who come in legally bring certain papers which are put on file, and it is only a question of á few years until the man who has sneaked into the country is in all kinds of trouble. He will be an outlaw himself; and yet he has paid somebody $75 to run him in by way of Cuba or over the Canadian route or by way of Puget Sound; and look at the trouble; and it will get worse. Should there not be a penalty fixed for those people?

Mr. OLMSTED. I think there should be; but I think that a case of that sort, while it is

The CHAIRMAN. If we can reach those, those are the ones that should be deported first.

Mr. OLMSTED. I do not know, but is it not quite possible that American citizens will be engaged in that business?

The CHAIRMAN. Yes.

Mr. OLMSTED. Then it will be a sort of a protective tariff making this industry a monopoly to be engaged in exclusively by Americans. The CHAIRMAN. We might develop a policy then of keeping the American penitentiaries and jails for Americans.

Mr. OLMSTED. It appears to me as a general principle that the criminal laws ought to be administered practically the same against aliens who have lived here long enough to become identified with our country as they are against citizens; and what is sauce for the goose is sauce for the aliens.

Mr. BACON. Do you not know as a matter of fact that the criminal laws are administered the same against citizens as against aliens, except on questions that involve the citizenship of aliens? You know that if an alien commits murder in any State in this Union, he is tried and given the benefit of the same legal processes as a citizen is? Mr. OLMSTED. Yes.

Mr. BACON. Then what are you complaining about? This is purely on the proposition of deportation.

Mr. OLMSTED. Yes.

Mr. BACON. All right. Now you know that when an alien comes to this country we do not owe him anything, do we?

Mr. OLMSTED. When he comes here?

Mr. BACON. Before he comes here?

Mr. OLMSTED. Before he comes here?
Mr. BACON. Yes.

Mr. OLMSTED. I suppose not.

Mr. BACON. We do not owe him a thing, and he starts the proceedings?

Mr. OLMSTED. Yes.

Mr. BACON. All right. He comes to this country, and he is not invited. There is nothing held out to him, except the fact that this is a great free country. Now, do you not think, if he breaks the law in any way, that he is the man that ought to take that burden, and not us?

Mr. OLMSTED. The way you have framed your question, with great skill as a lawyer does, who wants to make his case

Mr. BACON. Well, answer it.

Mr. OLMSTED. Answering it directly, I would say no; and explaining the answer I would say that most of the aliens who come to this country because it is, to use your phrase, a great, free country,