other case whatsoever in which the decision of a subordinate official is made nonreviewable even by the head of his department.

The evils that have been so often emphasized lately in regard to bureaucracies are greater in this respect than in any other known to law. Chief Justice Hughes, on February 12, 1931, before the Bar Association of the District of Columbia, made a speech which was printed in the Congressional Record on February 16, 1931, in which he emphasized the evils of unreviewable bureaucratic action. Congressman Beck's recent book on the same subject is familiar to all of you. The Lord Chief Justice of England recently published a book called the "New Despotism", as he styled this unreviewable power to petty bureaucrats to finally decide matters.

At present there is a so-called "divided responsibility" between the State Department and their technical advisers. Really, the technical advisers decide those things in the name of the consul. That has to be done, because years ago our Government tried to station its immigration officials in foreign countries and there were protests. The only people recognized to act along those lines, except in some far eastern countries, are the consuls, and so under the guise of acting as the consul, technically, the Labor Department official decide those matters. In fact, in a majority of the cases the consul has nothing to do with it. That bill, since the consul has to make the report, would throw some responsibility on him, and they are usually high-grade officials, to look into those cases and cure what there is to be cured there.

In addition to that, the State Department recognized this evil, especially in that there had been attempts to reunite families here on the part of wives and children, citizens and residents of the United States, that had been unfairly handled by these officials abroad, so on November 30, 1931, an order was made by the State Department calling on the consuls to review all of their prior decisions along those lines. You will find that order printed in your hearings of 72. 1. 2, pages 29 and 30. That has not done any real good. A man is not going to reverse himself in many cases on an appeal to himself, which it really amounts to. He has rendered that decision, and it is not reviewable. He has just stood by his decision.

I am reminded of the case of Poobah in Mikado. There is no use of thus trying to avoid those injustices. Appeal to a superior officer has always existed in every branch of the Government. We have purposely stated the State Department instead of the Labor Department should have the right on appeal in our recommendations. That is in accord with the report of this committee and the Senate committee. It is logical, because the State Department is the one which is superior to the consuls, and it would be an interference with the functions of that department if the appeal were to lie in the Labor Department, though that has been suggested. I do not know whether there is a representative here of the Labor Department or not, but I think I am justified in saying without betraying any confidence that at a conference which Secretary Perkins had with a number of our group lately, she said she did not care for her Department to reach out improperly for jurisdiction to entertain appeals. If it was made appealable, the State Department would be the proper one to handle it. That does not mean that the Labor Department cannot be represented in it. Probably they would. If the law passed, the

Department probably would provide for an advisory board, such as the Board of Review in the Labor Department now, to advise the Secretary of State. But that is a detail which can be settled by regulation, and even under the present law there is nothing on its face to show that it is the Labor Department rather than the consul that passes on it.

At a hearing before this committee on March 16, 1932, the Labor Department did approve this or a similar measure. (Hearings 72. 1. 9, p. 11.)

This measure chiefly affect families of residents. There are other cases of religious refugees abroad who can enter, if they can prove they are not likely to become public charges and will not affect conditions in this country, to be benefited by this bill.

I am chiefly interested in the situation as it exists in Germany, though I would not recommend special legislation for that situation. This bill does not provide for any special relief for them. I do not favor opening the doors to people who are laborers to come here and be in competition with our citizens here. I think the Executive order of 1930 was wise, and we do not attack it. We do think, however, that these few cases of injustice ought to be carefully considered. As I said, the State Department, as well as the Labor Department, are both sworn to enforce our laws, and the appeal should lie there with those who originated these restrictive measures, and no outsiders would administer this law if passed, and they certainly would regard the interests of the country at large.

Aged persons, as well as wives and minor children other than laborers, would be the chief beneficiaries of this measure, and at the time this bill was drafted and reported favorably by the Senate this new complication concerning Germany had not even arisen. There are some other cases, occasional persons, who would get the benefit of it.

I might call attention to the fact that since the German Government's course is in force, there are persons other than Jews who are persecuted there today. Dr. Schucking, probably the most outstanding international lawyer in Germany today, has been ousted from his professorship and he will likely apply to come over here, and he may be refused, although it is ridiculous to suppose he would become a public charge.

The labor unions have been dissolved in Germany. The heads of the labor unions are in prison. I suppose when released pretty soon they will find some climate more salubrious than Germany. They would be admitted if such a board were authorized for a review.

As to religious refugees and political refugees, I am especially interested in them, as also are Protestant and Catholic and nondenominational organizations who are here and wish to be heard in favor of this bill. We have established as a principle of our Government in our immigration laws the taking into account of their rights, especially in cases of religious refugees. There was a certain exception of religious persecution in the act of 1917. President Wilson vetoed the early literacy test laws because it did not provide for exceptions in the cases of political persecution. I had the honor of arguing a case myself in which the Supreme Court reversed the department, and Chief Justice Taft, writing the unanimous opinion of the court, emphasized that religious asylum feature of our country

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(Tod v. Waldman 266 U. S. 113). A similar decision was rendered with regard to Armenians in the Massachusetts circuit (2. Fed. (2) 40).

Everybody remembers the famous lines on which President Jefferson was elected in 1800 with respect to oppressed alien people, in which he exclaimed, "Shall oppressed humanity find no refuge on this globe?" That should have an important bearing in this case, though if it is likely that the person is to become a public charge, taking into account all the agencies that are at his disposal to prevent that, or if his admission is going to be harmful in competing with the laboring class in this country, it is different.

I have found as regards this German-Jewish situation that remarkable efforts have already been made by France, Holland, Belgium, Switzerland and some others to make some provision for exceptional cases with respect to Jewish refugees. Said Sir John Simon, Secretary of State for Foreign Affairs in the British Parliament, April 13: "Considerable number of people who are endeavoring to leave Germany are applying to enter at our ports, and to spend a time, short or long, in our country. I am sure that at the present time the sentiment of our own people will not wish us to be unfeeling or niggardly in administering that branch of the law." So far the immigration officials of our Government have done nothing. As I have said, I oppose special legislation for their benefit. This will simply allow in a few particular cases review of the refusal of visas by the head of the State Department with the advice of such persons as he may call in. In regard to the form of the bill, let me call our attention to the fact it allows nobody to enter without examinatin here, and so on. The last section expressly provides that subdivision (g), of section 2, which it amends, shall apply; which means that everybody must stand the scrutiny when he comes over of the immigration authorities. He cannot be admitted because he has a visa. There is no absolute right of anyone to enter.

The bill is carefully drawn and expressly says that the evidence before the consul shall be evidence on that appeal and not a hearing de novo. Naturally, the consul will state what he can to sustain his opinion, and if he has justification for not believing the witnesses he will say so. That would have great weight here, of course.

The medical certificates or other disqualifications cannot be ignored. The statute requires they shall be considered. They shall be considered when the person applies for admission. This simply puts this system under the act of 1924 in line with our former wellestablished position of allowing an appeal for admission to higher officials.

Now, some critics have stated that this position is anomalous. Not at all. The opposite is true. Even in Chinese exclusion cases, in which I had occasion to represent the Government, there is a special appeal from the United States Commissioner to the United States Court, and trial absolutely de novo, too. It was so held by the United States Supreme Court in (209 U.S. 453 at 461-2). We did not want that. The bill provided that the evidence and recommendations of the consul shall be evidence before the Secretary, and as I pointed out it would be improper, to my mind, without having evidence before him, for the State Department under present conditions to instruct the consul how he should act.

In our customs cases we had the same situation. The board of appraisers took the evidence, and then it could be appealed and new evidence adduced on the appeal. Our Government should always be "a Government of laws, not of men."

Mr. DIES. You provide in this bill the appeal is to be taken to the Secretary of State?

Mr. KOHLER. Yes, sir.

Mr. DIES. What time would the Secretary of State have to consider all these appeals? Would he not have to have some agency under him to consider them?

Mr. KOHLER. He would undoubtedly, under the general regulations, do what he is doing now abroad and call in skilled employees of the Labor Department to sit with him, and the board of review is functioning now.

Mr. DIES. Would he have a right to do that?

Mr. KOHLER. Yes, sir; and the jurisdiction of the board of review was assailed in a case I was in, and the judge sustained the matter.

Mr. DIES. Would you not have a right to present the appeal to the Secretary himself?

Mr. KOHLER. No. He has a right to call in advisers as he chooses. Mr. DIES. Would you have a right, just like you would in a higher court, to present an oral argument?

Mr. KOHLER. I would not have a right to be heard before him personally. That has been settled again and again in the cases of appeals under the immigration law.

Mr. DIES. He would have a right under the law to delegate some person to act for him, would he?

Mr. KOHLER. Yes, sir.

Mr. DIES. He would not himself have to sit?

Mr. KOHLER. He would not at all. His assistants have authority now and he or they to countersign as they would do in the case of visas, I take it these cases would be referred to the board of review in the Labor Department.

Mr. DIES. This law does not say anything about that.

Mr. KOHLER. It does not say anything about it, but the statute has to be read in connection with other statutes which authorize regulations to carry it out. Then he has a right to say "I want the advice or concurrence of the Secretary of Labor or the Labor Department to sit in those cases."

Mr. DIES. In those cases where you have a right of review from a subordinate, you have a day that the case is set down to be heard. Mr. KOHLER. Yes, sir; but you have no right to argue before the Secretary himself, neither in the State Department, nor the Labor Department.

Mr. DIES. There is no question about that?

Mr. KOHLER. No, sir; and I have been an expert for many years, or supposed expert in immigration matters, but what cases I have had since 1910 I have served in without pay because I am interested in immigration societies and do not care to accept compensation.

There is nothing anomolous about this. On the contrary, it is the usual course with regard to determination by any other subordinate executive officer I know of under the Federal Government.

It has been suggested that there would be additional expense for the operation of this. Not at all. Especially under the scheme that

has been in vogue. The board of review sits there. It has been suggested that there would be a lot of influence used in determining cases, political or otherwise. There has been no extraordinary abuse in the appeals taken before the Secretary of Labor heretofore. Very few of those appeals have been sustained, but I am frank to confess if a man is testifying on behalf of a man unknown in Washington, I cannot see any impropriety in a Member of Congress saying he vouches for that man, he is a man whose word ought to be taken.

I am just about to finish now. I want to say very few appeals were sustained in all of those cases. It has been suggested that this would make business for lawyers. In the recent book, Control of Aliens, by Professor Van Vleck, that learned writer, suggests that very few immigrants are able to afford the luxury of a lawyer, but as a matter of fact the immigrant aid societies handle the majority of those cases, and an appeal is exceptional.

I would like to file on behalf of the American Jewish Congress an argument prepared by former Congressman Perlman. The CHAIRMAN. All right.

STATEMENT OF AMERICAN JEWISH CONGRESS

To Chairman and Members of House of Representatives Committee on Immigration and Naturalization:

The American Jewish Congress is a national Jewish organization and bas affiliated with it organizations and divisions with a total membership approximating 400,000 adult Jews. The Independent Order Brith Abraham, the Zionist Organization of America, Hadassah, the Independent Order Brith Sholom of Philadelphia, the Independent Order Brith Sholom of Baltimore, the Independent Order Free Sons of Israel, Progressive Order of the West, Order Sons of Zion, United Roumanian Jews of America, Federation of Polish Jews in America are some of the constituent organizations.

Rabbi Stephen S. Wise is honorary president and Hon. Bernard S. Deutsch is president of the American Jewish Congress.

This organization is heartily in favor of H.R. 5360 introduced by Congressman Samuel Dickstein "to provide for a review of the action of consular officers in refusing immigration visas.'

Under the Immigration Act of 1924, a consular officer, upon the application of any immigrant, may, subject to the limitations and regulations described in the act, issue to an immigrant an immigration visa permitting the immigrant to enter the United States for permanent stay.

The immigration law of 1924 did not repeal the provisions contained in the Immigration Act of 1917. Therefore situations are frequently presented where immigrants although otherwise eligible under the quota law or in the nonquota or preferred class may still be denied admission to the United States under section 3 of the Immigration Act of February 5, 1917, which excludes persons likely to become a public charge.

In view of the economic conditions now existing, this organization does not oppose such a ground of exclusion. However, in view of the all-inclusive and broad wording of this clause, fairness and justice require that this provision of the immigration act be applied humanely, impartially, and fairly. It is evident that extreme and inhuman hardships result from the denial of admission to the United States of persons such as wives, children, parents, and husbands of American citizens or resident aliens. These persons are in many instances eligible for admission to the United States but are often excluded because of the opinion of the particular consular officer having jurisdiction that they are likely to become public charges. The decision of the consular officer is final. His opinion may in many instances be arbitrary and unjust and based upon insufficient reasons. The discretion vested in the consular officer is unusually broad.

Certainly, in view of the hardships that may result from the denial of admission to the United States of persons otherwise eligible, it is important that the broad discretion vested in the consular officer should be exercised humanely, without discrimination, and upon adequate and sufficient grounds. Often other considerations should enter into the judgment of the consular officer. At the