TESTIMONY OF PROF. JOSEPH B. CHAMBERLAIN, NEW YORK CITY Professor CHAMBERLAIN. My name is Mr. Joseph B. Chamberlain. I am a member of the Ellis Island committee. The CHAIRMAN. What is your business? Professor CHAMBERLAIN. I am a professor of public law at Columbia University, and also a member of the board of directors of the Equitable Life Assurance Society. The CHAIRMAN. You were just appointed on this committee, with other Americans, to study the problems before us now? Professor CHAMBERLAIN. That is correct. Mr. DIES. Your company is what? Professor CHAMBERLAIN. The Equitable Life Assurance Society. The CHAIRMAN. You may proceed. Professor CHAMBERLAIN. We have very little time here, and I think it will be more profitable for me to discuss some of the points already made in respect to the bill. I want to show some of the reasons why some of the points Mr. Shaughnessy made should be impressed upon you; and I have two or three changes-three of them, rather-which I would like to bring to your attention. The first point I want to discuss is the provision on page 2 of H. R. 9518-which I understand is the substitute for H. R. 9363. The CHAIRMAN. That is correct. What page did you say? Professor CHAMBERLAIN. Page 2, lines 8 and 9, where it says: (1) Within 5 years after his entry became a public charge from charges shown to have existed prior to his entry. As Mr. Shaughnessy has explained, the difference is in the burden of proof. He explained the principal reason which was brought before our committee; and I just want to call attention to one or two other points: We had witnesses appear before us and tell us about persons who were working in a dusty trade near Buffalo, who had developed tuberculosis. Now, it is extremely difficult for those persons to prove positively that they had not any incipient tuberculosis when they came into this country. One of the reasons why they found it difficult to prove it lies in the fact that these are all very poor people, and some of them did not have the money to employ a doctor; and consquently, although theoretically they would have the opportunity to carry the burden of proof, practically it would be impossible for them to do so. Another point I wanted to bring out was the fact that the date of last entry is used as the date from which this 5 years is calculated, as you know. That is, we had cases before us of persons who had been in this country, perhaps 10 or 20 years, who had been working in trades during that period, and who had left the country for a visit to their old home, and who had returned legally within 5 years after they became affected with tuberculosis. 90006-34-No. 73-2-2- 3 Now, it is presumed that this disease or sometimes it is a matter of mental derangement, and sometimes it is tuberculosis-it is presumed that that did not Mr. DIES (interposing). In other words, you assume that here, for example, is an alien who has resided in this country for a number of years, and he goes to Canada? Professor CHAMBERLAIN. Yes. Mr. DIES. And he stays there a number of years, we will say? Professor CHAMBERLAIN. Yes. Mr. DIES. And comes back to the United States; and within 5 years after his return he develops some disease, perhaps tuberculosis, or cancer, or something else? Professor CHAMBERLAIN. Yes. Mr. DIES. And you say that, under existing law, that alien is presumed to have contracted that disease during his stay in some foreign land, and the burden of proof is upon him to show that that is not a fact. Professor CHAMBERLAIN. The burden of proof is upon him to show that. Mr. DIES. And the presumption is against him in the first instance? Professor CHAMBERLAIN. He must carry the burden of proof. Mr. DIES. The presumption is against him, and he must carry the burden of proof? Professor CHAMBERLAIN. Yes, sir. Mr. DIES. Now, why could he not show, if he was just over in Canada, we will say, 4 or 5 weeks, or perhaps 2 or 3 months-why could he not show that, as a matter of fact, he did not contract it while he was in Canada-or let us say Mexico, to give another example-but contracted it in the United States. How could the Government disprove that? Professor CHAMBERLAIN. The first point I wanted to make is that this was a person who could not afford to hire doctors. The Government has its medical forces; it has made its examinations, as Mr. Shaughnessy has explained; and it should be in a position to know what this man's condition was when he entered the country. Mr. DIES. But the point, it seems to me, is that if the Government has made all these examinations, and the Government doctors have satisfied themselves that he did not contract it prior to that time-it seems to me that the presumption would then be in favor of the alien? Professor CHAMBERLAIN. Well, that is what this provision in this bill would make it not necessarily a presumption in his favor; but this would bring about the situation that you suggest. And may I refer to that for just a moment? Numerous cases were brought before our committee, where persons had been in this country for a long while, and had gone to Europe, and remained a year or two, and had returned to this country, and disease developed within 5 years after the second entry Mr. DIRKSEN (interposing). What is the proportion of the whole cases such as you are reciting here-that is, physical cases, or we will say tuberculosis cases-in which the burden of proof is transferred from the alien to the United States, under the provisions of para graph 1 of this bill; that is, what is the proportion of those cases in the whole number of cases? Professor CHAMBERLAIN. I could not answer that question exactly, because no record has ever been kept. But you will find many of such cases in the 600-odd cases that were held up by Colonel MacCormack. Mr. DIRKSEN. The fact is, that under existing law, the alien must show affirmatively his right of entry, for all practical purposes, under section 1917? Professor CHAMBERLAIN. Yes. Mr. DIRKSEN. Under this provision, however, the burden of proof would be passed over to the Government, would it not? Professor CHAMBERLAIN. No; just let me correct that point. As I understand, the alien must show affirmatively, as you state, his right to enter at the time. Now, having shown affirmatively his right to enter at the time, we think the statement brought against him subsequently that he had at the time of entry, or had contracted disease within the 5 years-had become a public charge for illness existing at the time of entry-which would show that the presumption that he was fit at the time of entry was wrong-we think that burden should be on the Government and not on the alien. Mr. DIRKSEN. That goes back to the question whether we should legislate for the exception, rather than for the rule. Professor CHAMBERLAIN. I do not think so, as the alien must positively show once that he is fit to enter; and he has shown that, by virtue of the fact that he has been admitted. The CHAIRMAN. And sometimes he has been in this country for 15, 20, or 25 years. Professor CHAMBERIN. Yes, and that does not make any difference at all in his case. The CHAIRMAN. If he had been here 50 years, it would not help him? Professor CHAMBERLAIN. That is correct. Mr. DIES. One question of importance is, how many cases are likely Professor CHAMBERLAIN (interposing). To be affected by this? Mr. DIES. Yes, whether there are 10 cases or 10,000 cases? Professor CHAMBERLAIN. Well, there would not be 10,000 cases; although there were 20,000 people deported last year. Mr. DIES. On this ground? Professor CHAMBERLAIN. No; about 16,000 deported on illegal entry-no, I cannot say exactly. Mr. DIRKSEN. Would you say that there are no records available? Professor CHAMBERLAIN. No; I cannot say that there are no records available. The Commissioner could give you that information, but there are no records before us to show how many of these hard cases there are. But it seems to me that, after a person has proved his right to enter, in doing which he has to bear the burden as to his good health, and his ability to support himself—that this burden should reasonably be placed on the Government, with all its equipment and personnel available, to show that they were mistaken at the time of entry-because he can only be deported for this reason of liability to become a public charge if the reason existed at the time of entry. That is, he has already been cleared by the Government; he has been allowed to come here, and they say to him, “ You can stay in this country "-and then, within 5 years of the time of entry comes the question as to whether, at the time of entry, he had some deportable disease or some other deportable trouble. Now, it seems to me, that, regardless of the number of cases affected, that is a situation that is not quite just. Mr. DIRKSEN. But while you are shifting the burden of proof in behalf of these "sympathy" cases, you are also shifting the burden of proof in aggravated cases? Professor CHAMBERLAIN. I do not see how they can be aggravated cases; because the original burden of proof on the alien established that he was all right when he came into the country; there the burden is on him. The CHAIRMAN. Under the present act, an alien who comes in and within 5 years becomes a public charge can be deported. It does not change the law in that respect? Professor CHAMBERLAIN. It does not change the law. The CHAIRMAN. The question is, after a man has worked in an iron foundry, for example, in this country, for awhile, and then goes back into his own country, and comes back to this country again, and then he becomes a public charge within 5 years, owing to his having some disease, should the burden of proof then be on him to show that he contracted that disease after his second entry into this country? The question is whether that is justifiable. Professor CHAMBERLAIN. Yes. Mr. DIES. But he goes back to the Old Country, we will say, and stays over there a year. Professor CHAMBERLAIN. Yes. Mr. DIES. And he comes back, and he is not subject to a physical examination when he comes back the second time? Professor CHAMBERLAIN. He is examined. Mr. DIES. On his second entry, his reentry? The CHAIRMAN. Yes. Mr. MILLARD. Well, is it a cursory examination? The only examination he has then, is as to whether he has a contagious disease, is it not? Professor CHAMBERLAIN. To show that he is not diseased, or is not likely to become a public charge. Mr. TRAEGER. Does this bill really shift the burden of proof on the Government of the United States? Professor CHAMBERLAIN. No. Let me make that point clear. The statute does not say so; but under the existing practice, based on the decisions of the Supreme Court, "entry" means the last entry. Mr. TRAEGER. What I am trying to find out is, is there a shifting of the burden of proof? Professor CHAMBERLAIN. There is no change. Mr. TRAEGER. There is no change? Professor CHAMBERLAIN. And the second entry counts as a first entry-the only entry which has any value. Mr. TRAEGER. I see. Professor CHAMBERLAIN. Let me give you one case, which does not have anything to do with this situation of illness, but I think it supports the matter which we will call to your attention in a moment: I will not dwell on it at length, but it is the question of giving the Secretary the right to suspend. We had a case brought to us, and it was not altogether unusual, of an elderly woman who had come over as a young woman, about 20 years old; had lived in Los Angeles about 30 years, and had accumulated some little property, and had then gone back to England, where she was born, to visit her family, and returned to this country. Within 5 years of her return, the crisis, the present depression, struck her, and she became a public charge. There was no question about it. She had spent practically all her life in this country, and had been married here. She had no children to take care of her; so that she was a perfectly plain public charge and could have been with perfect propriety, I think, deported had she never had the prior history of life in this country. Now, that woman, under the law, was subject to deportation, because she had clearly become a public charge within 5 years of her last entry; it was then 40 years from the time of her first entry. Now, I really believe in a case of that sort, the Secretary ought to be given perfectly clear powers. A case of that sort would probably be suspended. But it ought to be made clear to the Secretary that the Secretary has a right not to deport in such a case. Mr. DIES. As I understand from your testimony, you are not in favor of any bill that increases immigration to this country. You are for the quota as it now exists? Professor CHAMBERLAIN. Entirely so. Mr. DIES. You are in sympathy with this quota. Professor CHAMBERLAIN. Entirely so. I do not want to change the quota at all. I simply feel that there are a number of hard cases in the quota. It is a machine with which we have had a long experience; and there are cases where we find that it is not working well, but is working unjustly and unfairly, and we merely suggest changes to make it work better. Mr. DIES. How long did your committee investigate this question? Professor CHAMBERLAIN. Our committee investigated this question about a year. But I was more or less of a layman on the committee. But the committee, in going over a question like the questions I have been suggesting, had the advantage of close consultation with officers of the Department. I realize perfectly well that there is nothing like experience in these cases. Mr. DIES. When was this committee formed? Professor CHAMBERLAIN. Last June, if I am not mistaken. Mr. DIES. Did you have witnesses appear before your committee? Professor CHAMBERLAIN. Yes; we had witnesses appear. We had cases before us. Mr. DIES. Did you consider both sides, or just the alien's side? Professor CHAMBERLAIN. We had both sides. We had on our committee persons representing the organization. For instance, on our subcommittee on deportation, we had members of the American Federation of Labor, and of the D. A. R.-persons who are supposed to be not very liberal in these matters. Most of us, I think, were not particularly anxious to see any changes in the quota law; I do not think any of us were, because, as Mr. Palmer has said, it was not discussed. |