matters as these, the State Department tells the individual who complains, "We have nothing to do with it, and the whole matter is in the hands of the consul?" Is that the fact?

Mr. CARR. NO. We will interpret the law for the consul, and if he is wrong, we tell him that he is wrong. If we find that he is arbitrary in passing on the facts, we will tell him so. However, we will tell the individual that, after all, the decision is with the consul; but it is our business to go over the consul's decisions, and see that they are fair, square, and right under the law. Do you get that distinction?

Mr. LANZETTA. The chances are that it would be a question of fact. Where it is only a question of fact, he may be arbitrary.

Mr. CARR. Suppose we have the case of an alien in whom you are interested, and suppose you, as an individual, show the State Department that a consul somewhere or other has not treated the alien fairly, or has denied him a visa when he should have had a visa, for this, that, or the other reason. In that case the State Department will call for a report of the case, and it will review the evidence and the decision. It will try to determine in the light of what you supply and in the light supplied by the consul's submission of the facts, whether his action was proper, or whether the law was properly complied with. Then we will write back to the consul and tell the consul exactly what the Department's judgment is on those cases. consul will give effect to the judgment of the Department, or the Department will know the reason why; but the Department is not going to tell you that it has usurped the functions of the consul,

The

Mr. LANZETTA. If you now review cases when complaint is made to you, what is your objection to this bill?

Mr. CARR. My objection is that it sets up a procedure that is entirely unnecessary, and it brings back the final decision right here, or the legal decision. That is machinery that had better be left abroad. Then, we believe that it will bring a legal practice here which is utterly unnecessary.

Mr. LANZETTA. You say you are willing to review cases where complaint is made?

Mr. CARR. Yes.

Mr. LANZETTA. Then, I do not see why you should have any objec-. tion to this bill, because this bill makes legal the inquiry that you are now making informally. This simply says it must be done, and if you are willing to do that in every case, I do not see why you should object to this bill.

Mr. CARR. I think that if you had the administration in your hands, you would find a great difference between handling this as an administrative matter, pure and simple, and setting up a sort of court for it. Mr. LANZETTA. If you are willing to do it in every case, you would have to set up some sort of machinery.

Mr. CARR. No; not now.

The CHAIRMAN. Mr. Dies, will you be good enough to look at section 3 of this bill, on page 2? Beginning in line 9, you will find the provision I refer to. Under the present law the Secretary can only suggest to the consul that he should overlook certain things, but he cannot turn around and direct him to do so. If he finds a good case, where the visa should be granted, he cannot direct it, but this bill does that. That section provides that the decision of the Secretary of State shall be transmitted to the consular officer. It is a

question of whether the higher authority should have more power, or should exercise a power which it does not have now.

Mr. MILLARD. Do you have any question here that the consuls are not performing their duty

The CHAIRMAN (interposing). I do not wish to go into that sort of discussion. I have nothing against any consul. The majority of them are all right, and they like to do the right thing, but they sometimes go wrong just as the courts go wrong. Then the court of appeals can correct them.

Mr. WEIDEMAN. I cannot see any distinction between these cases and other cases, or why it should not be applied after it has passed through the State Department. Why should not any citizen or person who wants to take an appeal, appeal to the United States district court, and have a hearing before a proper tribunal?

The CHAIRMAN. Do you want to say anything else, Mr. Carr? Mr. CARR. No.

Mr. FOCHT. This law, as I understand it, has been in effect since 1924.

Mr. CARR. Yes.

Mr. FOCHT. What was the great hardship prior to that time in the State Department? Did you have lawyers running around the Department when that system was in operation?

Mr. CARR. We had nothing to do with immigration before 1924. The Labor Department had it. That Department made all the examinations at the port of entry and maintained a very extensive immigration station at Ellis Island. The newspapers were filled with stories of the hardships, cruelties, and so forth, suffered there. Most of them were unjustified, perhaps. Congress wanted to cut that out. They wanted to stop the Ellis Island procedure, and to have the examinations and decisions made on the other side at the home of the alien. I at first opposed placing this responsibility in the hands of the consuls, because I was afraid they might not exercise it properly. I was afraid, also, that they might not be able to stand some pressure or temptations which, obviously, might be involved. Congress thought otherwise, and, I now think, rightly. The result was this 1924 law. Now, I can tell you what the experience of 9 years with the 1924 law has been: I can say that in my own experience, and I have had a good deal to do with its administration, I have never seen a cleaner and better piece of administration than the consuls have given us under that law.

Of course, in any organization you will find here and there a man who is without good sense, or who is arbitrary, or something of that kind. It is the business of the administrator in these cases to see that the people are treated fairly, and that the laws are properly enforced. That is what we want to do.

The CHAIRMAN. Let me say this to you, and I want to get this clear: You are one of the highest ranking officers of the Department of State. I mean by that the position you are in.

Mr. CARR. Yes.

The CHAIRMAN. And the consul is under you?

Mr. CARR. He generally obeys what I say.

The CHAIRMAN. That may be so, but you very seldom say anything. Mr. CARR. They do not think so.

The CHAIRMAN. Coming down to these cases, he is your subordinate.

Mr. CARR. Yes.

The CHAIRMAN. Yet he has more power under the law than you have in these cases. Suppose he does not want to obey you, what do you do?

Mr. CARR. He will obey me.

Mr. MILLARD. He could be removed.

The CHAIRMAN. No.

Mr. CARR. There is a perfectly good way to remove a consul. The CHAIRMAN. How many of them have refused to follow recommendations and were removed? How many would you say have been removed in the last ten years?

Mr. CARR. We do not have occasion to do that. If any consul is told by the Secretary of State that his application of the law is incorrect, and is not justified, he will want to change it, because he has got to base his future career on whether he acts in accordance with the Secretary of State's understanding of the law. If he does not do it, he does not get a promotion, and he does not get along.

Mr. FOCHT. As I understand it, after this supreme court, which the consul fairly is, has rendered his decision, he is, of course, reluctant to reverse himself, and you want some one to reverse him.

The CHAIRMAN. That is true.

I want to put the party in a position to, at least, go before the Department and say, "Will you please look at this record? I have given the consul everything under the sun, but he will not understand the situation."

Mr. TRAEGER. You compel the Secretary of State

The CHAIRMAN (interposing). It authorizes the Secretary of State. Mr. TRAEGER. Does it compel the State Department to do this? The CHAIRMAN. No; I do not want to compel the State Department to do anything.

Mr. HODGSON. For the sake of clarity, I want to call attention to the language in line 6, page 1, as follows:

Notwithstanding any other provision in this act, in any case where an alien has been refused an immigration visa, an appeal may be taken from the action of the consular officer to the Secretary of State, by the alien, or by any relative of the alien residing in the United States.

That means an appeal by any alien, regardless of whether he is a relative of a citizen, or not, or by any relative of the alien residing in the United States. An appeal can be taken by any immigrants, including new seed immigrants, the way this is worded. If it was only intended to take care of this class of relatives, I do not see why it should be worded that way.

Section 2, beginning with line 6, page 2, reads:

The Secretary of State shall consider the appeal upon the evidence so submitted by the consular officer and upon any additional evidence submitted by the appellant.

Now, it is my general understanding and belief, from my practice of the law, that an appeal is a hearing on the record that is sent up, and not on new evidence that is introduced. You can see that the Government would not be represented on this appeal, or the consul would not be, because he has stated his case in the hearings, has closed it, and sent the record to Washington. Then what happens? After consul has refused a visa, the alien or a friend of the alien is permitted to introduce new evidence.

Mr. LANZETTA. Is that due to the fact that there is evidence that was impossible of submission before the consul?

Mr. HODGDON. I do not see why it would be impossible. The burden of proof is on the alien submitting the evidence to the consul. Mr. LANZETTA. But a lot of the evidence may be in the United States. Most of the evidence would be in the United States. Some aliens are not intelligent enough to be able to submit all the evidence. The CHAIRMAN. Under the present law in the Department of Labor they have a board of review, and that board, under the law, permits the submission of additional evidence, and they may consider that instead of the evidence on which the case has been denied. If you can submit any additional evidence which carries the burden of the alien, they reopen the case and consider that evidence.

Mr. HODGDON. Yes; but what happens over here is this: There is a board of special inquiry convened at the port of entry. They hear the case, and may refuse to admit the alien. It may be a doubtful case, and if the alien desires to take an appeal to the special board set up by the Secretary of Labor in Washington, he can do so. Upon the hearing, if there is an allegation that there is additional evidence, it is not submitted to the appeal tribunal in Washington, but the case is remanded back to the board of special inquiry at the port of entry, which board is analogous to the consul. Therefore, if new evidence is submitted, it should be submitted back to the consul, and then the appeal should be taken on the rehearing.

Mr. DIES. Did you say that 60 percent of those given the right to come changed their minds, and did not come at all?

Mr. HODGDON. I did not mention the number. There were about 2,000 cases that did not show up.

Mr. DIES. And you have refused only about 3 percent of them. Mr. HODGDON. We have refused 2.3 percent of nonquota 4 (a) aliens by consular action. In other words, 97.7 percent have been given visas. I suppose if 100 percent had been issued, the law would have been broken by the consul. There must be somebody who would fail to meet the requirements of the law and therefore be refused.

Mr. DIRKSEN. Under section 2, page 2, of this bill, the consul might be put in the position of having refused a visa in a case not actually before him. In other words, if no additional evidence can be submitted at his end, he is put in the position of having refused a visa on the evidence submitted, and when this new additional evidence is submitted, it may alter the case entirely.

Mr. MILLARD. Do you submit additional evidence to the consul? Mr. HODGDON. That has been done any number of times by aliens in the case of newly discovered evidence.

Mr. LANZETTA. Is it a fact that under the present procedure, you can submit evidence in certain cases to the consul, but the individual may be practically deprived of the privilege of submitting evidence? Mr. HODGDON. No; I do not understand it that way. The alien submits the evidence to the consul in assuming the burden of proof of admissibility placed on him under section 23 of the Immigration Act of 1924.

Mr. LANZETTA. Let us assume that a statement is sent to the consul that the relative of a certain alien earns enough to provide for him, but the consular officer says, "I do not think so." What is the next

step?

Mr. HODGDON. The next step would probably be to produce the evidence of the employer of the relative as to the relatives' employIs there any

ment.

The CHAIRMAN. Let us take up the regular order. thing further you wish to say, Mr. Carr?

Mr. CARR. I am through, Mr. Chairman.

The CHAIRMAN. We will now hear Mr. Hershfield.

STATEMENT OF ISIDORE HERSHFIELD, WASHINGTON, D.C., REPRESENTING THE HEBREW SHELTERING AND IMMIGRANT AID SOCIETY

Mr. HERSHFIELD. Mr. Chairman, I shall endeavor to be very brief, and I hope the committee will allow me to make my statement before questioning me, if they wish to do so, so as not to break up my brief argument.

Mr. DIES. Will you state your name, and whom you represent?

Mr. HERSHFIELD. My name is Isidore Hershfield; I am a member of the Washington Bar. I represent, as general counsel, the Hebrew Sheltering and Immigrant Aid Society, which is a charitable organization over 30 years old. I am not one of the private lawyers referred to in the hearings this morning. I accept no cases in private practice, and accept no retainers or compensation of any kind in such practice. I am paid by this society, and I handle their work. entirely. When appeal is made, we represent these cases, for which the alien pays no compensation, directly or indirectly, of any kind. The society is a charitable welfare organization, well known for

many years.

Mr. DIES. The parties do not pay the society anything?

Mr. HERSHFIELD. No, sir; the society is supported by voluntary gifts and by its membership throughout the country.

Mr. DIES. Is it composed of American citizens?

Mr. HERSHFIELD. The members of our board are all American citizens, but anybody can make contributions. We accept contributions from those who wish to help, and we are glad to receive them. We do not question whether the contributions come from citizens, or

not.

Mr. MILLARD. You testified before this committee on a former occasion, did you not?

Mr. HERSHFIELD. I did last year, and you will find my testimony printed in the record of your hearing held on March 16, 1932, when I was questioned at great length. It was a sort of running debate between the former chairman of the committee, Mr. Albert Johnson, and myself.

I want to say that this bill simply means to correct what we think is the erroneous doctrine of consular infallibility. We think that the consul should not be a court of last resort in these matters. We think that the Department of State, or some superior body, should have the right to consider and positively pass upon correctness of the action of the consul, not simply to ask for a report to find out what the consul has done. It should have the right to do what every appellate court, or quasi-appellate court, has the right to do that is, to say that "in this case we think you have erred, and we therefore direct you to do so and so."