L/UNA files, “Privileges & Immunities, Laissez-Passer”
Memorandum by H. A. Linde of the Office of the Assistant Legal Adviser for United Nations Affairs to Charles Runyon, Attorney Adviser in That Office
- Subject:
- Passport requirement for entry of “3(7)” aliens
1. The actual rule of law which clearly expresses and formalizes the passport requirement seems to be a regulation which appears both as 8 CFR § 176.106 and as 22 CFR § 42.106:
42.106 Documentary requirements for nonimmigrants. With the exceptions hereinafter provided, and with such other exceptions as the Secretary of State may authorize in individual cases under Executive Order No. 8766 of June 3, 1941 (3 CFR, 1943 Cum. Supp.), a nonimmigrant must present an unexpired passport. A nonimmigrant seeking to enter the United States under section 3 (1), 3 (2), 3 (3), 3 (6), or 3 (7) of the act must also present a passport visa unless he is a nonimmigrant who may be issued, and who presents, a limited-entry certificate, a transit certificate or visa, or a nonresident alien’s border-crossing identification card.
A related regulation in each case defines “passport” and “passport visa”. 8 CFR § 176.101 and 22 CFR § 42.101:
42.101 Definitions. As used in this part, the term:
- (e)
- “Passport” means a document of identity and nationality issued by the appropriate authorities of a recognized foreign government to which the bearer owes allegiance, identifying the bearer and stating his nationality or, in the case of an alien unable to obtain such a document, a travel document in the nature of a passport issued by a duly authorized official and showing the bearer’s identity and nationality.
- (f)
- “Passport visa” means a stamp which includes the word “seen”, placed by a consular officer on an alien’s passport or other appropriate document, showing that the bearer is entitled to proceed to a port of entry in the United States to apply for admission in a status specified in the passport visa. The term “nonimmigrant visa” is also used synonymously with the term “passport visa.”
2. Authority for the issuance of these regulations are 8 U.S.C. § 222, 458 and 22 U.S.C. § 223.
8 U.S.C. 222. Rules and regulations.
The Commissioner of Immigration and Naturalization, with the approval of the Attorney General, shall prescribe rules and regulations for the enforcement of the provisions of this chapter; but all such rules and regulations, insofar as they relate to the administration by consular officers, shall be prescribed by the Secretary of State on the recommendation of the Attorney General.
8 U.S.C. 458. Administration and enforcement of registration law.
(a) The Commissioner, with the approval of the Attorney General, is authorized and empowered to make and prescribe, and from time to time to change and amend, such rules and regulations …1 as he may deem necessary and proper in aid of the administration and enforcement of this chapter … except that all such rules and regulations, insofar as they relate to the performance of functions by consular officers or officers or employees in the Postal Service, shall be prescribed by the Secretary of State and the Postmaster General, respectively, upon recommendation of the Attorney General.
22 U.S.C. 223. War-Time restrictions; generally.
When the United States is at war or during the existence of the national emergency proclaimed by the President on May 27, 1941, or as to aliens whenever there exists a state of war between, or among, two or more states, and the President shall find that the interests of the United States require that restrictions and prohibitions in addition to those provided otherwise than by sections 223–226b of this title be imposed upon the departure of persons from and their entry into the United States, and shall make public proclamation thereof, it shall, until otherwise ordered by the President or Congress, be unlawful—
(a) For any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President shall prescribe; …
3. Historically, it is the last quoted statute which has been the source of the passport requirement. A sequence of Executive Orders governing documents required of aliens entering the United States is set forth in Immigration and Neutrality [Nationality] Laws and Regulations (1944 ed.), pp. 204–269. The original passport requirement was imposed in 1917 by a joint order of the State and Labor Departments antedating § 223 of Title 22. After the enactment of the statute, however, subsequent Presidential proclamations and orders were made with reference to the authority granted thereby.
[Page 204]The first regulations under the statute were issued by Ex.O. 2932 of August 8, 1918. They confirmed the passport visa requirement of the Joint Order. “Passport” was defined to include “any document in the nature of a passport issued … by a foreign government, which shows the identity and nationality of the individual …”
After a series of amendments to the order of 1918, new regulations made under the statute were issued by Ex.O. 4027 of June 14, 1924; Ex.O. 4125 of January 12, 1925; Ex.O. 4476 of July 12, 1926; Ex.O. 4813 of February 21, 1928; Ex.O. 5426 of August 20, 1930; and Ex.O. 5869 of June 30, 1932. All of these provided, as to non-immigrants, that “with the exceptions hereinafter specified, they must present passports or official documents in the nature of passports issued by the governments of the countries to which they owe allegiance, duly visaed by consular officers of the United States”.
A significant innovation was made by Ex.O. 6986 of March 9, 1935, also based on § 223, which changed the relevant regulation to read:
1. Non-immigrants must present unexpired passports or official documents in the nature of passports issued by the governments of the countries to which they owe allegiance or other travel documents showing their origin and identity prescribed in regulations issued by the Secretary of State, and valid passport visas…
This provision was confirmed by Ex.O. 7865 of April 17, 1938; Ex.O. 8029 of Dec. 27, 1938; Ex.O. 8430 of June 5, 1940; and Ex.O. 8766 of June 3, 1941. (Note that this last order is cited in Reg. 106, above, for the Secretary of State’s authority to make exceptions).
4. Authority to issue additional rules under the above orders was throughout given to the Secretary of State and the officer charged with administering the Immigration laws, first the Secretary of Labor and later the Attorney General. However, the new wording initiated with the order of 1935 indicates that responsibility for passport regulations under §223 was delegated specifically to the Secretary of State. The present regulations also were issued by the Secretary of State (June 13, 1946; 11 F.R. 8904) upon recommendation by the Attorney General “insofar as the provisions of the Immigration Act of 1924 and the Alien Registration Act, 1940, are concerned”.
5. It has been established since the opinion of the Legal Adviser (Mr. Gross) of May 24, 1948—reaffirmed September 13, 1948—that the requirement of a national passport or other evidence of deportability as a prerequisite of entry of aliens covered by Section 11(1) of the Headquarters Agreement must, when a passport or other such evidence is not available, be regarded as an “impediment” within the meaning of Section 11. There should be no doubt that to arrest entering international organization personnel, take away their identification papers, and release them on parole is equally an “impediment”. In addition to the cited legal opinion, a good argument has been made that it would [Page 205] be contrary to Article 100 of the Charter to condition the entry privileges of UN officers on their remaining in the good graces of their national governments. (See Memorandum of Meeting of March 23, 1948).2
6. Conclusions. If we take as established from the above (1) that the United States is obligated to admit UN personnel without national passports and without “technical arrest” or similar equivocal status, and (2) that the Secretary of State has the authority and responsibility to deal with the passport requirement by rules or regulations, the problem is what action this Department can appropriately take to assure the unimpeded entry of Section 11(1) aliens without affecting any more than absolutely necessary of the normal procedures and operations of the immigration laws. One possibility which has been mentioned is to make ad hoc “emergency” exemptions or waivers under Part I, § 5 of Ex. O. 8766, referred to in Reg. 106, above. The objections to this alternative need not be spelled out here. Another alternative might be considered:
The regulations as presently written already contemplate the substitution for national passports—“in the case of an alien unable to obtain such a document”—of “a travel document in the nature of a document issued by a duly authorized official and showing the bearer’s identity and nationality”. In view of what has been stated above about the origins of this provision and the Secretary of State’s responsibility for its administration, it should be possible by an informal interpretative ruling to establish that in the cases of “international organization aliens” who are unable to obtain national passports, a travel document in the nature of a passport, issued by a duly authorized official of the international organization and showing the bearer’s identity, nationality, and status in the organization, satisfies the definition of “passport”. The requirement of some authoritative document identifying the alien, as an alternative to a national passport, could not reasonably be regarded as an impediment under Section 11, as the United States must be able to establish an alien’s right to claim the benefits of the section at all. It should be possible to qualify the UN laissez-passer as such a document, provided it would contain a statement of the bearer’s nationality.
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Addendum:
The assurance of eventual departure, as a condition of the admissibility of non-immigrant aliens, is required by 8 U.S.C. § 215, which reads:
The admission to the United States of an alien excepted from the class of immigrant by clauses (1)–(6) or (7) of section 203 of this title … shall be for such time and under such conditions as may be by regulation prescribed … to insure that, at the expiration of such time or upon failure to maintain the status under which admitted, he will depart from the United States …
This section could be the basis for very stringent requirements, but the text clearly shows that it is not self-executing. The regulations promulgated by the Attorney-General (Nov. 28, 1950; 15 F.R. 8106) applying the section with reference to 3(7) aliens are found in Part 123 of 8 CFR. The following are relevant:
§ 123.1 Definitions. As used in this part, the term:
* * *
- (b)
- “Foreign government representative” means an alien who is a representative of a foreign government in or to an international organization designated by the President by Executive order as entitled to enjoy privileges, exemptions, and immunities as an international organization under the International Organizations Immunities Act (59 Stat. 669; 22 U.S.C. 288), or a member of the immediate family of such representative and is in possession of a visa entitling him to apply for admission to the United States as a nonimmigrant under the provisions of section 3(7) of the Immigration Act of 1924, as amended (43 Stat. 154, 59 Stat. 669; 8 U.S.C. 203), and the presentation of such visa at a port of entry of the United States shall be considered prima facie evidence of such status:Provided, That the term “member of the immediate family” as used in this paragraph shall mean a close alien relative by blood or marriage of such representative who is regularly residing in the household of such representative.
- (c)
- “Officer” means an alien who is an officer or employee of an international organization designated by the President by Executive order as entitled to enjoy privileges, exemptions, and immunities as an international organization under the International Organizations Immunities Act or a member of the immediate family of such officer: Provided, That the term “member of the immediate family” as used in this paragraph shall mean a close alien relative by blood or marriage of such officer who is regularly residing in the household of such officer.
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§ 123.2 Qualifications. The conditions under which an alien may be admitted to the United States as a foreign government representative, or officer, or attendant, shall be that he:
- (a)
- Presents whatever document or documents are required by the applicable Executive order or orders or by Part 176 of this chapter, or any other applicable regulations prescribing the documents to be presented by aliens entering the United States. If in the case of an attendant a valid passport is required, such passport must be valid for at least 60 days longer than the period of admission, as prescribed in § 176.500 of this chapter.
- (b)
- Establishes, if he is an attendant, that he will leave the United States within the period of his admission or any authorized extension thereof, and that he has the ability to leave.
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§ 123.3 Authority to admit. If an alien who is qualified under the provision of § 123.2 presents to the examining immigrant inspector at a port of entry of the United States a valid passport visa issued to the [Page 207] alien as a non-immigrant by a United States diplomatic or consular officer under the provisions of section 3(7) of the Immigration Act of 1924, as amended, the immigrant inspector shall accept the United States diplomatic or consular officer’s classification of the alien and admit the alien unless specifically directed to the contrary by his superior officer after consultation with the Department of State. In the case of such direction, the immigrant inspector shall, except as otherwise provided in Parts 174 and 175 of this chapter, hold the alien for hearing before a board of special inquiry.
§ 123.4 Time for which admitted. (a) A foreign government representative or an officer shall be admitted for so long a period as he shall maintain his status as a foreign government representative or an officer.
* * *
Far from imposing—independently of other rules discussed previously—a requirement that representatives or officers present national passports, these regulations—particularly § 123.2 (a) and (b) distinguishing between such personnel and “attendants”—indicate that the qualifications determined by the other regulations (Part 176) are to control.