Speech #970105484

Housing and Urban Development. Labor. and the Interior. and the Attorney General. in consultation with government officials of the Virgin Islands. to assess the social and economic impact of this act on the Virgin Islands. and report their findings and recommendations to the President and Congress within 1 year of the bills enactment. H.R. 3517 presents issues of constitutional law about which the Subcommittee on Immigration. Refugees and International Law. which heard H.R. 3517. requested legal memoranda from the Congressional Research Service. the Immigration and Naturalization Service. and the Office of Legal Counsel in the Justice Department. The sections of this bill for which the research was requested are sections 2(c)(2) and 2(c)(3). Under section 2(c)(2). the Secretary of State is given the discretionary authority to limit the number of secondpreference petition visas that may be issued in any fiscal year to persons whose status is adjusted to permanent resident alien under this bill. Secondpreference petitions cover spouses and minor children. Section 2(c)(3) provides that no alien may receive an immigration visa by virtue of a fourth- or fifthpreference petition filed by a U.S. citizen who had his status adjusted under the bill. unless the Attorney General makes a finding of exceptional and extremely unusual hardship. Originally. H.R. 3517 contained a provisiorpart of section 3(A)-which would have permitted a U.S. citizen whose status was adjusted under this bill. to exercise fourth- and fifthpreference rights only if such citizen had resided continuously for 2 years in the continental United States or Alaska or Hawaii. This section was deleted during subcommittee markup. Since H.R. 3517 as now before the House limits the ability of certain lawful permanent residents and U.S. citizens to exercise petitioning powerspowers enjoyed by all other lawful permanent residents and U.S. citizensthe question of whether constitutional rights to equal protection have been unlawfully abridged was raised. Although the legal memoranda of the Department of Justice. the Immigration and Naturalization Service and the Congressional Research Service were designed principally to address the issues raised by the provisionnow deletedwhich allowed preference rights to be exercised only after continuous residence in the continental United Stateseach memorandum addressed the equal protection challenge. The memoranda expressed the view that. given Congress historically broad legal authority over immigration and given the holding in the recent Supreme Court case of Fiallo v. Bell. 430 U.S. 787 (1977). there is no constitutional problem raised by limiting exercise of fourth and fifth preference rights. In Fiallo. U.S. citizen fathers claimed that the provisions of the Immigration and Nationality Act which precluded them from securing entry of their illegitimate alien children as immediate relatives constituted an unjustifiable discrimination based on sex. since U.S. citizen mothers were subject to no such restriction. In rejecting this argument the Supreme Court stated: S.. appellants note . .. that the statute makes it more difficult for illegitimate children and their natural fathers to be reunited in this country than for ... illegitimate children and their natural mothers . . . those are admittedly the consequences of the congressional decision not to accord preferential status to this particular class of aliens. but the decision nonetheless remains one "solely for the responsibility of the Congress and wholly outside the power of this court to control" . . . it is not the judicial role in cases of this sort to probe and test the justifications for the legislative decision. Kleindienst v.