Speech #900026984

Mr. President. fourth. I introduce for appropriate reference a bill to establish an independent board. to be known as the Board of Visa Appeals. The first section of the bill provides for the establishment of the Board and contains necessary administrative provisions. Under my proposal. the Board is to consist of five members who may meet within or outside the United States. The Chairman would be compensated at the second lowest level of the executive schedule--currently $27.000 annuallyand the other members would be compensated at the lowest level of the executive schedule--currently $26.000. Section 2 would provide Jurisdiction to the Board to review. upon request. determinations of the United States consular officers and immigration officers refusing or revoking visas or conditional entries to aliens outside the United States. At present. there is only a limited intradepartment review available with respect to some of these determinations. But there is no quasiJudicial board authorized to conduct any such review. Under existing regulations. If a consular officer refuses a nonimmigrant orimmigrant visa the principal consular officer or his designee reviews the case. If he does not concur in the refusal. he may refer the case to the Department of State or assume responsibility for the case himself. Also. the Department may request a consular officer in any case to submit a report if a visa has been refused. The Department may then furnish an advisory opinion to the consular officer. but It may only issue binding rules on an interpretation of the law. as distinguished from an application of the law to the facts. No system of administrative review appears to be provided by law or under regulations in the case of the revocation of a nonimmigrant or immigrant visa by a consular officer. or the refusal of conditional entry by an immigration officer. to an alien outside the United States. The provisions of section 2 of the bill are selfexplanatory In summary. unless the Board finds any request to be frivolous on its face. it shall proceed to review the challenged determination. Each review Is to be conducted solely upon the administrative record upon which the determination Is based. The Board shall set aside as unlawful any findings of fact or conclusions of law unsupported by reasonable. substantial. and probative evidence. and any action which is an abuse of discretion or in excess of statutory authority. The Board shall compel any action of a consular officer or immigration officer found to have been unlawfully withheld. Decisions of the Board are made binding upon the officer concerned and are not to be subject to any administrative or judicial review. This means that the Secretary of State or the Attorney General could not overturn a decision of the Board. In addition. the procedure for review set forth in section 2 Is to be the exclusive means for review of determinations covered by section 2. Section 3 of my proposal would require that consular officers and immigration officers receiving applications for nonimmigrant or immigrant visas or conditional entries from aliens outside the United States must inform these aliens of their right under this act to appeal to the Board for a review of any determinations refusing or revoking such visas or conditional entries. Section 4 contains an openend authorization of such sums as may be necessary to carry out the act. The jurisdiction of the Board does not extend to any determinations with respect to: First. the approval of petitions or certificates to grant special Immigrant or nonimmigrant status. second. the extension of time for the expiration of a nonimmigrant visa. or third. any orders of deportation to exclusion. My proposal would leave undisturbed existing provisions of the law that the Attorney General shall make the decisions of whether or not to approve petitions granting special immigrant statusfor example. that of a member of the professions or a person with exceptional ability in the sciences or the arts. special nonimmigrant status. or an imported migratory worker. Under my bill. the authority to prescribe the period of time during which nonimmigrants may stay in the United States would remain solely with the Attorney General. Also left intact is the provision that the Secretary of Labor is to make the determinations of whether or not to make the certifications necessary for the admission of aliens seeking to enter the United States for the purpose of performing skilled or unskilled labor. In contrast. my proposal provides that only determinations made by consular officers and immigration officers are subject to review by the Board of Visa Appeals. Consequently. the Board is not granted authority to review determinations required to be made by the head of an executive department. With respect to orders of deportation and exclusion. significant differences exist between these orders and the determinations made subject to review by the Board under my proposed bill. As most Senators know. orders of deportation are applicable only in the case of aliens actually within the United States. and orders of exclusion are applicable only to aliens arriving at the ports of the United States and seeking admission. Under my bill. determinations which may be reviewed by the Board of Visa Appeals are applicable to aliens who are still in foreign countries. I have also excluded orders of exclusion and deportation from the purview of my proposal. because there is already an extensive type of administrative review provided for under the Immigration and Nationality Act. Section 236 provides that a special inquiry officer may review the decision of an immigration officer to detain an arriving alien. From a decision of a special inquiry officer excluding an alien. that alien may appeal to the Attorney General. who by regulations has established a quasijudicial boardthe Board of Immigration Appealswith appellate jurisdiction over such decisions. In the case of orders of deportation. the present law also provides for proceedings before a special inquiry officersection 242. Again. decisions of these officers may be appealed to the Board of Immigration Review. In both cases the Attorney General retains authority to review the decisions of the Board of Immigration Appeals. As I pointed out earlier. there is no review procedure before a quasijudicial board now provided under law or regulations for decisions of consular officers and immigration officers refusing or revoking visas or conditional entries. Furthermore. in both the case of final orders of deportation and exclusion there is specific statutory authority for the right of Judicial reviewsection 106. Immigration and Nationality Act. Thus. while aliens already in the United States may appeal all decisions of immigration officials to the Board of Immigration Review. the Attorney General. and the Secretary of Stateall of whose decisions. in turn. are subject to judicial reviewaliens outside the country have no such recourse. More often than not. decisions of consular officers are final and not appealable. As we are a government of laws. not of men.