Illiterate Aliens Seeking Admission as Immigrants ( 1981 )

Illiterate Aliens Seeking Admission as Immigrants
Illiterate aliens who would otherwise be eligible for admission to this country on visas
allocated under 8 U.S.C. §§ 1152 or 1153, may not avoid the literacy requirement o f 8
U.S.C. § 1182(a)(25) simply by virtue of their being accompanied by a child who is
under the age of 16, if that child’s own eligibility for admission depends upon that of
his or her parents. The State D epartm ent’s longstanding administrative practice in this
regard finds no support in the legislative history of the literacy requirement, which
establishes that Congress intended to exempt from its application only those illiterates
whose close relatives were independently entitled to be admitted.
December 2, 1981
MEMORANDUM OPINION FOR THE GENERAL COUNSEL,
IMMIGRATION AND NATURALIZATION SERVICE
This responds to your request for assistance in resolving a conflict
between the Department of State and the Immigration and Naturaliza­
tion Service (INS) involving the provision of the Immigration and
Nationality Act (Act) excluding illiterate aliens, Act, § 212(a)(25), 8
U.S.C. § 1182(a)(25),1 and the exception to that section. Act, § 212(b), 8
U.S.C. § 1182(b).2 You have asked whether an illiterate alien who is
attempting to enter the country on a visa allocated under 8 U.S.C.
§§1152 and 1153 (“quota visa”) is eligible for a waiver of the literacy
requirement if he is accompanied by a son or daughter who is under
the age of 16.3 The argument, as articulated by the State Department, is
l This section states:
(a) Except as otherwise provided in this [Act], the following classes of aliens shall be
ineligible to receive visas and shall be excluded from admission into the United States:
. . (25) Aliens . . . over sixteen years of age, physically capable of reading, who
cannot read and understand some language or dialect.
8 U.S.C. § 1182(a)(25).
2The exception reads:
The provisions of paragraph (25) of subsection ( a ) . . . shall not be applicable to any
alien w ho (1) is the parent, grandparent, spouse, daughter, or son of an admissible
alien, . . if accompanying such admissible alien, or coming to join such citizen or
alien lawfully admitted, and if otherwise admissible.. • .
8 U.S.C. § 1182(b).
9 This question was apparently triggered by a request from within INS for an advisory opinion on
the issue. Memorandum for Associate Commissioner Wack from Deputy General Counsel Schmidt,
January 17, 1979. The State Department thereafter submitted a comprehensive memorandum outlining
its views. Memorandum for Deputy General Counsel Schmidt from Cecil H. Brathwaite, Acting
Chief,, Advisory Opinions Section, Visa Services Directorate, December 12, 1980 (Brathwaite Memo­
randum). INS prepared a further response, Memorandum for Deputy General Counsel Schmidt from
Staff Attorney Masterson, July 14, 1981 (Masterson Memorandum), on which the State Department, at
the invitation o f this Office, submitted comments. Memorandum for Assistant Attorney General Olson
from Cecil H. Brathwaite, Chief, Advisory Opinions Section, Visa Services Directorate, September 30,
1981 (State Memorandum).
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as follows: The illiterate alien receives a preference number because of
his status—for example, as the brother of a United States citizen, 8
U.S.C. § 1153(a)(5)—while his admissibility is determined under 8
U.S.C. § 1182. His child, who will receive a visa because of his parent’s
quota visa, 8 U.S.C. § 1153(a)(8), is an “admissible alien” under 8
U.S.C. § 1153(b) since he is not barred by any of the conditions in 8
U.S.C. § 1182(a)( 1)—(33). Simultaneously, therefore, the illiterate alien
becomes “the parent . . . o f an admissible alien” who is “accompanying
such admissible alien” as provided for in 8 U.S.C. § 1182(b)(1), and his
illiteracy may be ignored, while the child becomes entitled to a visa
based on his parent’s eligibility for a quota visa. This position is set out
in the Foreign Affairs Manual, although the example used there in­
volves a husband and wife.4
We believe that this position is incorrect and that the illiterate alien is
not eligible for such a waiver.
I. Background
The State Department, through its consular offices overseas, has
primary responsibility for issuing visas to those who wish to enter the
United States as immigrants. 8 U.S.C. § 1201. For over 2 decades, these
consular offices have relied on the position outlined above and have
issued quota visas to illiterate aliens as long as they were accompanied
by a child under 16, or a literate spouse.5Brathwaite Memorandum, at
4 Benefit o f section 212(b) in certain cases.
The finding o f ineligibility o f an alien under section 212(a) (25) o f the Act has no
bearing on entitlement to an approved preference status. An alien on whose behalf a
relative petition has been filed, but who has been found ineligible under 212(a)(25),
becomes eligible for the benefits of section 212(b) by virtue o f marriage to a literate
person w ho is not otherwise ineligible for a visa The literate spouse from whom this
eligibility derives is simultaneously entitled to the preference status of his ineligible
spouse and is thereby an “eligible alien” within the meaning of 22 C.F.R.
42.91 (25)(i)(d). If visa numbers are available for persons in the approved preference
status, the couple may apply for immigrant visas.
9 Foreign Affairs Manual, § 42.91(a)(25) note 3.
5O ne issue, raised by INS, is whether the State Department actually adopted this position in the
late 1950s. W e have examined the material and believe that the State Department has held this position
since at least 1960. In an Operations M emorandum (OM) dated M arch 25, 1960, sent to the consul in
Naples, Italy, the D epartm ent approved issuance o f a first preference visa to a Mr. Cifrodelli who was
accom panied by his wife and children. Since both parents were illiterate, they were “prima facie
ineligible to receive immigrant visas” O M , at 2. All the Cifrodelli children were under 16, and were
“not stated to be ineligible on any o th er grounds and therefore may be presumed to be ‘admissible
aliens’ in their own right.” I d “The problem is then resolved into the single question- being admissible
aliens, may the illiterate children confer upon their illiterate parents, if accompanying them, the
benefits o f Section 212(b)(1) o f the Act cited? The Departm ent finds that they may do so, that there is
nothing in the law w hich requires a contrary finding. Consequently, Mr. and Mrs. Cifrodelli are to be
considered as not ineligible to receive immigrant visas even though they are illiterate aliens.” Id.
The June 6, 1980, letter from the S tate Department to Rep. W alter (then chairman of the House
Judiciary Com m ittee’s Subcommittee on Immigration and Naturalization) addressed another point—
the issue o f w hether an illiterate alien like Mr. Cifrodelli could be eligible at all for a first preference
visa, w hich was supposed to be reserved for highly skilled individuals. The letter confirmed that the
OM cited above “ was correct insofar as the technical matters are concerned, which were the sole
subject o f the advisory opinion [T]he question put to the Department related exclusively to the
aliens’ eligibility to receive visas in view o f their illiteracy.” June 6 letter, at 4.
Continued
368
10-12. Moreover, the State Department believes that INS has con­
curred with this interpretation during this entire period. Id. INS denies
that it ever agreed with this argument and has taken the position that
permitting the child to confer eligibility on the parent is a bootstrap
construction of the statute that violates congressional intent. Masterson
Memorandum, at 11-14. Because of this dispute, the State Department
has suspended the issuance of quota visas to applicants whose exemp­
tion under § 1182(b) is based on an accompanying child or spouse.
We have carefully reviewed all the memoranda submitted. We recog­
nize that the State Department has acted in good faith on its interpreta­
tion for a number of years. Because we are reluctant to overturn
decades of administrative practice,6we have made an exhaustive can­
vass of the literacy provision’s legislative history in an effort to find
support for the State Department’s interpretation. We have also exam­
ined the scanty case law on this issue.7Because of our findings, we are
forced to conclude that the State Department’s interpretation is inaccu­
rate and that the INS’ position is correct.
II. Legislative History
The literacy provision has a long history. Although it did not
become law until 1917, it had been the subject of fierce debate for over
20 years. Three times Congress enacted immigration bills containing a
literacy test—1897, 1913, and 1915—only to have them vetoed in turn
by Presidents Cleveland,8 Taft,9 and Wilson.10 By that time, it was fair
Further, in a June 22, 1960, letter from the State Department to INS, the D irector o f the Visa
Office stated that the Cifrodelli case had raised the problem o f whether “one alien can confer a certain
status on another alien from whom he in turn must derive a benefit under the immigration laws in
order to apply for and receive a visa." June 22 letter, at 1. The letter said that the issue had been
resolved by a reference to two p n o r cases in which visas were issued simultaneously in order to
confer cross-eligibility under other provisions of the Act.
There is no doubt, therefore, that the State Department has held its position for a number of years.
6 A second issue raised by the State Department is whether INS has concurred in this interpreta­
tion. On July 3, 1957, IN S wrote to the State Department and said: “ It is the view of the Service that
an illiterate parent can benefit from the provisions of Section 212(b) regardless of the age of the
accompanying child and provided, of course, that the accompanying child is fully admissible.” We
believe that the letter addresses another issue, and that the reference to the fact that the child must be
“fully admissible” is too ambiguous to be interpreted in support of either position.
INS inspectors at the border apparently rely on the investigations conducted by the consular office
issuing the quota visa and do not usually act to confirm the immigrant’s bona /ides, unless there is some
obvious problem Conversation with Deputy General Counsel Schmidt, November 20, 1981. This has
apparently allowed the problem to go unnoticed for a number o f years, despite the fact that both
immigration and consular officers are authorized to conduct the literacy test. 8 U.S.C. § 1182(b).
1 See United States ex rel. Azizian v Curran, 12 F.2d 502, (2d Cir. 1926); United States ex rel. Barone
v. Curran, 7 F 2d 302 (2d Cir. 1925); In re F-, 2 I. & N. Dec. 260 (1945) See also United States ex rel.
Engel v. Tod. 294 F. 820 (2d Cir. 1923); In re Gaglioti, 14 I. & N. Dec. 677 (1974); In re Khan. 14 I &
N. Dec. 122, affd, sub nom. Santiago v INS. 526. F.2d 488 (9th Cir. 1975), cert, denied, 425 U.S 971
(1976).
829 Cong. Rec. 2667 (1897)
9S. Doc. No. 1087, 62d Cong. 3d Sess. (1913)
10 H. Doc. No. 1527 (1915), reprinted at 52 Cong. Rec. 2481 (1915). The literacy test was also
considered in 1898, 1902, and 1913, see 52 Cong. Rec. 3014 (1915), but did not pass both Houses in
those years.
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to describe the literacy test as “the bitterest bone of contention in the
bill.” 53 Cong. Rec. 4869 (1916) (statement of Rep. Mann). The fourth
attempt to override the veto of a restrictive immigration law occurred
in 1917 when President Wilson again vetoed the bill. H. Doc. No. 2003
(1917), reprinted at 54 Cong. Rec. 2212-13 (1917). That year, however,
the supporters of restrictive immigration had sufficient votes to over­
ride the veto, and the bill became law.
Tracing the literacy test over the years, it is clear that it was an
expression of strong anti-immigrant sentiment. It was specifically de­
signed to curtail the flow of immigrants from southern Europe and
Russia, whose background was felt to be incompatible with American
institutions. Since these were also the groups with the highest rate of
illiteracy, it was felt that the quickest and most efficient way to stem
the flow was through a literacy test. Although opponents argued that it
was discriminatory, not a fair test of character, and a repudiation of
American ideals, its supporters retorted that diminishing resources ne­
cessitated a more limited admissions policy. In view of the clear state­
ments by the bill’s proponents that they wanted this provision in order
to exclude as many aliens as possible, we do not believe, as the State
Department does, Brathwaite Memorandum, at 9, that there is any
evidence of a congressional desire to have the provision’s exception
interpreted liberally.
When first considered by the House in 1896, the exclusion provision
contained an exemption only for parents of admitted aliens.11 “The
reason for the exemption of parents whose children have preceded
them hither is obvious, and this provision requires no explanation fur­
ther than that it was prompted by humane considerations.” H.R. Rep.
No. 1079, 54th Cong., 1st Sess. 2 (1896).12 This humanitarian concern
was repeated in 1912, when the provision was again considered.13
“[PJractically the identical bill” was passed again in 1915, and vetoed
by President Wilson. 52 Cong. Rec. 50 (statement of Sen. Smith). See
supra n.10. Finally, in 1917, Congress, after weeks of vitriolic debate14
and over President Wilson’s second veto, passed a law excluding illiter­
ate aliens. Act of February 5, 1917, §3, 39 Stat. 874, 877 (1917).15
11 “ But no parent o f a person now living m, or hereafter admitted to, this country shall be excluded
because o f his inability to read and w rite.” 28 Cong. Rec 5417 (1896).
12T he Senate expanded the exception to cover grandparents, 29 Cong. Rec. 46 (1896); id. at 1423(1897), and it was ultimately amended to cover wives and minor children. Id. at 2667 (1897).
13 “O ut o f regard for marital and other close family ties, and the duties and obligations arising
therefrom , as well as high moral considerations, the committee thought proper to make the other
exceptions em braced in the bill.” H.R. Rep. No. 851, 62d Cong., 2d Sess. 2 (1912)
"S ee, e.g., 54 Cong. Rec. 2442-57 (1917); id. at 2465-63, 2620-29; 53 Cong. Rec. 4768-4816 (1916);
id. at 4841-4885, 4932-4962, 5050-52.
15 All aliens over sixteen years o f age, physically capable of reading, who can not read the English
language, or some other language o r dialect, including Hebrew or Yiddish: Provided, (1) That any
admissible alien, or any alien heretofore or hereafter legally admitted, or any citizen o f the United
States, may b n n g in or send for his father or grandfather over fifty-five years of age, his wife, his
mother, his grandm other, or his unm arried or widowed daughter, if otherwise admissible, whether
Continued
370
This law remained in force until 1952, when it was replaced by the
present provision.16 The 1952 Act was preceded by a three-year study
commissioned ,by the Senate which recommended that the literacy
provision be retained but that all exemptions for relatives be deleted. S.
Rep. No. 1515, 81st Cong., 2d Sess. 375 (1950). Although the original
House and Senate versions accepted this recommendation, H.R. Rep.
No. 2096, 82d Cong., 2d Sess. 24 (1952), and an effort to introduce an
amendment on the floor of the House was defeated, 98 Cong. Rec. 4432
(1952),17 the final Senate version, which contained the exemptions, was
accepted by the House and Senate conferees. H.R. Rep. No. 2096, supra
at 128.18 Minimal attention was paid to this provision because of its
reduced importance as an exclusionary device.19 The Senate report,
however, refers to illiteracy as one of the “more important grounds”
for exclusion, S. Rep. No. 1137, 82d Cong., 2d Sess. 8 (1952), and noted
that the clause was being revised to require understanding of, as well as
reading of, a language. Id. at 10. There is nothing to indicate that
Congress meant its recodification to result in a more liberal interpreta­
tion of the section.
III. Discussion
Illiterate aliens are one of the groups “ineligible to receive visas,” 8
U.S.C. § 1182(a).20 The exception to this rule operates if the illiterate
alien is “accompanying . . . [an] admissible alien.” 8 U.S.C. § 1182(b).
Even if we were to decide that admissibility is an issue wholly gov­
erned by § 1182 and not dependent on whether one is eligible for a
quota visa under § 1153 (an issue we do not resolve), we do not believe
that the State Department’s argument that the child of an illiterate alien
is “admissible” under § 1182 is correct. Under § 1182(a)(20), an alien is
such relative can read or not; and such relative shall be permitted to enter. One of the few cases
interpreting this provision emphasized that the principal alien had to be capable o f “bringing] in” the
parent, and rejected the claim that a 9-year-old girl could “bring in’* her mother. United States ex rel.
Azizian v. Curran, 12 F.2d 502, 503 (2d Cir. 1926)
x6See nn. 1 & 2.
17See also 98 Cong. Rec. 4435-36 (1952) (statement o f Rep. Powell).
18 It is possible that the exemptions w ere reintroduced at the urging of the INS. Internal Justice
Department memoranda commenting on the proposed bills criticized them because they “seem to
create an anomalous situation. In § 203(a) (2), (3), and (4), preferences are created in the quota for
parents, children, and certain other close relatives. These preferences will apparently avail them
nothing if it should appear that they are illiterate. It is recommended that the attention o f the Congress
be invited to this situation so that, if desired, the bill can be changed to provide an exemption for close
relatives, similar to that which exists in the present law.” Memorandum for the Deputy Attorney
General from the Commissioner of Immigration and Naturalization, December 7, 1951, (56190/113-A)
(Part II), at 212-18 See also Memorandum for the Deputy Attorney General from the Commissioner
of Immigration and Naturalization, January 16, 1951, (56190/113-A) (Part II), at 25. Both o f these can
be found in the main library o f the Department of Justice, in vol. 1 of the bound legislative history of
the 1952 Act.
19The December 7, 1951 memorandum discussed supra n.18 indicated that fewer than 2,000 illiterate
aliens a year were then applying for admission.
20 Although the State Department bases its argument in large part on the distinction between
eligibility for a quota visa under § 1153 and admissibility under § 1182, Brathwaite Memorandum at 3-
4, an illiterate alien is entitled to neither a visa nor admission under § 1182 unless he is exempted by
§ 1182(b).
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inadmissible unless he is “in possession of a valid unexpired immigrant
visa.” See also 8 U.S.C. § 1181(a), § 1182(a)(21). The child cannot pos­
sess a valid immigrant visa until he confers eligibility upon his parent
who thereupon becomes eligible for the quota visa, and thus obtains
one for the child. The circularity of this reasoning can be avoided if the
statute’s intent is remembered. The § 1182(b) exception was intended as
a humanitarian exception to permit immigrants to bring their close—but
illiterate—family members to this country. It was not intended to
permit illiterates to enter by bringing their children with them. It is
difficult to imagine that Congresses uniformly hostile to the admission
of illiterates intended to create an exception for illiterates with families.
Rather, the statute should be read to permit literate aliens to receive
a quota visa and then to use the exception to bring in their illiterate
children and close relatives. This comports with both of Congress’
desires: to exclude illiterates and to provide a humanitarian exception
minimizing disruption of a qualified alien’s family.21 We therefore con­
clude that the INS is correct in asserting that illiterates are not eligible
to receive quota visas because they will be accompanied by a child
who is under 16. We assume that the State Department will so advise
its consular officers and will revise its regulations based on this under­
standing.
L a r r y L . S im m s
Deputy Assistant Attorney General
Office o f Legal Counsel
21 T he State Departm ent is no doubt correct when it asserts that this interpretation will bar most
illiterates from receiving quota visas. State Memorandum, supra at 4 That, we believe, was Congress'
intention.
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