The purpose of this bill is to extend the period of time during which there is a special program of Federal assistance on behalf of Indochinese refugees in the United States and to provide for an orderly phasedown of this program, integrating assistance to refugees into ongoing Federal, State, and local programs over a 4-year period.

The bill will avoid the substantial and undue impact on States, localities, and refugees which would otherwise result from the termination of the Indochina Migration and Refugee Assistance Act of 1975 (Public Law 94-23) on September 30, 1977.

The bill will place continued emphasis on activities to enable the refugees to become fully self-supporting and contributing members of our society.

The bill extends for 4 years the domestic assistance provisions of the Migration and Refugees Assistance Act of 1962 (Public Law 87-510) as incorporated by reference into the Indochina Migration and Refugee Assistance Act of 1975 (Public Law 94-23, as amended by Public Law 94-313) and made applicable to refugees from Cambodia, Vietnam, and Laos.

Under these provisions, Federal funds are authorized to be provided to the States for cash assistance, medical assistance, social services, and State-local administrative costs for assistance and services to needy refugees. Such funding would be provided on a 100 percent basis (as in the past) during fiscal year 1978. During fiscal years 1979-81, this funding would be limited to the following percentages of fiscal year 1978 funding: 1979, 75 percent; 1980, 50 percent; and 1981, 25 percent. These provisions provide for an orderly phasedown of the program.

The bill also authorizes to be appropriated $25 million, which would remain available until expended, to assist refugees in resettling and in gaining skills and education necessary to become selfreliant. These funds would be used for special projects and programs administered by State or local public agencies or by private voluntary agencies participating in the Indochina refugee assistance program.

S. Rept. No. 95-471, 95th Cong., 1st Sess., 1-2 (1977).

Set forth below is title I of the act (91 Stat. 1223-1224), entitled Adjustment of Status of Indochina Refugees:

SEC. 101. That (a) the status of any alien described in subsection (b) of this section may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if—

(1) the alien makes an application for such adjustment within six years after the date of enactment of this title;

(2) the alien is otherwise eligible to receive an immigrant visa and is otherwise admissible to the United States for permanent residence, except for the grounds for exclusion specified in paragraph (14), (15), (20), (21), (25), and (32) of section 212 (a) of the Immigration and Nationality Act; and

(3) the alien has been physically present in the United States for at least two years.

(b) The benefits provided by subsection (a) shall apply to any alien who is a native or citizen of Vietnam, Laos, or Cambodia and who

(1) was paroled into the United States as a refugee from those countries under section 212(d) (5) of the Immigration and Nationality Act subsequent to March 31, 1975, but prior to January 1, 1979; or

(2) was inspected and admitted or paroled into the United States on or before March 31, 1975, and was physically present in the United States on March 31, 1975.

SEC. 102. Upon approval of an application for adjustment of status under section 101 of this title, the Attorney General shall establish a record of the alien's admission for permanent residence as of March 31, 1975, or the date of the alien's arrival in the United States, whichever date is later.

SEC. 103. Any alien determined to be eligible for lawful admission for permanent residence under this title who acquired that status under the provisions of the Immigration and Nationality Act prior to the date of enactment of this title may, upon application, have his admission for permanent residence recorded as of March 31, 1975, or the date of his arrival in the United States, whichever date is later.

SEC. 104. When an alien has been granted the status of having been lawfully admitted to the United States for permanent residence pursuant to this title, his spouse and children, regardless of nationality, may also be granted such status by the Attorney General, in his discretion and under such regulations he may prescribe, if they meet the requirements specified in section 101 (a) of this title. Upon approval of the application, the Attorney General shall create a record of the alien's admission for permanent residence as of the date of the record of admission of the alien through whom such spouse and children derive benefits under this section.

SEC. 105. Any alien who ordered, assisted, or otherwise participated in the persecution of any person because of race, religion, or political opinion shall be ineligible for permanent residence under any provision of this title.

SEC. 106. When an alien is granted the status of having been lawfully admitted for permanent residence pursuant to the provisions of this title the Secretary of State shall not be required to reduce the number of visas authorized to be issued under the Immigration and Nationality Act, and the Attorney General shall not be required to charge the alien any fee.

SEC. 107. Except as otherwise specifically provided in this title, the definitions contained in the Immigration and Nationality Act shall apply in the administration of this title. Nothing contained in this title shall be held to repeal, amend, alter, modify, effect, or restrict the powers. duties, functions, or authority of the Attorney General in the administration and enforcement of the Immigration and Nationality Act or any other law relating to immigration, nationality, and naturalization. The fact that an alien may be eligible to be granted the status of having been lawfully admitted for permanent residence under this title shall not preclude him from seeking such status under any other provision of law for which he may be eligible.

Department of State Requirements

In Peroff v. Hylton, 563 F. 2d 1099 (1977), the U.S. Court of Appeals for the Fourth Circuit held, inter alia, that the accused was not denied due process by the refusal of the Secretary of State to conduct a hearing prior to issuing the surrender warrant for his extradition to Swedish authorities. By way of habeas corpus petition, the accused sought to reopen for judicial inquiry the finding of the U.S. District Court for the Eastern District of Virginia, affirmed by the Fourth Circuit Court of Appeals, Peroff v. Hylton, 542 F. 2d 1247 (1976), certiorari denied, 429 U.S. 1062 (January 17, 1977), rehearing denied,

A

429 U.S. 1124 (February 22, 1977), that he was extraditable to stand trial in Sweden.

See the 1976 Digest, Ch. 3, § 5, pp. 122-123.

As set forth below, the court of appeals rejected petitioner Franklin Peroff's characterization of the issuance of the warrant of extradition by the Secretary of State as an "administrative determination" in a per curiam decision issued on September 14, 1977, by Chief Judge Clement F. Haynesworth, Jr., and Circuit Judges John D. Butzner and Donald Russell:

Peroff

contends that he was denied due process by the Secretary of State's refusal to conduct a hearing prior to issuing the warrant of extradition to Swedish authorities. Under article VII of the extradition treaty,

There is no obligation upon the requested State to grant the extradition of a person who is a national of the requested State, but the executive authority of the requested State shall, subject to the appropriate laws of that State, have the power to surrender a national of that State if, in its discretion, it is deemed proper to do so.

Characterizing the Executive's exercise of discretion as an "administrative determination," Peroff argues that he is entitled to a "fair hearing" before the Secretary of State on the propriety of his extradition.* We disagree.

Although limited judicial review is available by way of a petition for habeas corpus relief, matters involving extradition have traditonally been entrusted to the broad discretion of the Executive. A person facing interstate extradition has no constitutional right to notice or a hearing before the governor who acts upon the extradition request. Marbles v. Creecy, 215 U.S. 63 (1909). The need for flexibility in the exercise of Executive discretion is heightened in international extradition proceedings which necessarily implicate the foreign policy interests of the United States. Thus, while Congress has provided that extraditability shall be determined in the first instance by a judge or magistrate, 18 U.S.C. 3184, the ultimate decision to extradite is "ordinarily a matter within the exclusive purview of the Executive." Shapiro v. Secretary of State, 499 F.2d 527, 531 (D.C. Cir. 1974).

Peroff has no statutory right to the hearing he seeks; indeed, agency actions involving "the conduct of... foreign affairs functions" are expressly exempted from the hearing requirements set out in the Administrative Procedure Act. 5 U.S.C. 554 (a) (4). In enacting legislation pertaining to international extradition and in approving the extradition treaty now in effect between the United

*Peroff does not argue that the Secretary of State's decision was arbitrary or based on constitutionally impermissible criteria, nor does he contend that the Executive refused to consider his objections to the extradition.

States and Sweden, Congress has not sought to prescribe the procedures by which the Executive's discretionary determination to extradite should be exercised. It would be manifestly improper for this Court to do so.

The appellant was afforded an extradition hearing below and the courts have twice entertained his petitions for habeas corpus relief. He has been accorded due process and must now answer to the charges lodged against him. The judgment of the district court is affirmed.

563 F.2d 1102-1103.

The Convention on Extradition with Protocol between the United States and Sweden (TIAS 5496; 14 UST 1845; 494 UNTS 141; entered into force on Dec. 3, 1963) was signed on Oct. 24, 1961.

Hearsay Evidence

On May 3, 1977, the U.S. Court of Appeals for the Sixth Circuit issued a per curiam opinion in O'Brien v. Rozman, 554 F.2d 780 (1977), holding, inter alia, that hearsay evidence was properly considered in a hearing before a U.S. magistrate in Michigan to determine if there was sufficient evidence of criminality to extradite to Canada a person accused of murder. The accused contended that hearsay evidence was not admissible in the Canadian equivalent of a preliminary examination and thus challenged the introduction into evidence before the U.S. magistrate of an affidavit of an officer of the Royal Canadian Mounted Police describing the evidence against the accused as well as statements accompanying the officer's affidavit signed by witnesses in the case. Subsequent to the hearing the U.S. magistrate ordered the accused committed to the custody of the U.S. marshal pending the issuance of a surrender warrant by the Secretary of State pursuant to 18 U.S.C. 3186. The accused petitioned the U.S. District Court for the Eastern District of Michigan for a writ of habeas corpus, but the district court denied the petition.

The court of appeals found that pursuant to the terms of the applicable Webster-Ashburton Treaty of 1842 (TS 119; 8 Stat. 572; I Malloy 650; 12 Bevans 82), the evidence to justify apprehension and retention of the appellant for trial was to be determined not by Canadian law but by the laws of the State within the United States where the appellant was found. The court of appeals further noted that the authenticity of the questioned documents was supported by a certificate of the U.S. consul general in Ottawa in compliance with 18 U.S.C. 3190.

Portions of the text of the per curiam opinion of Circuit Court Judges Paul C. Weick, George Clifton Edwards, Jr., and Albert J. Engel appear below:

At the extradition hearing held September 28, 1976, the United States Department of Justice, on behalf of the Government of Canada, offered into evidence the appropriate certified and authenticated extradition documents, including true copies of the Information and the warrant for Mr. O'Brien's arrest, then outstanding. Also offered into evidence were the affidavits of a Canadian lawyer setting forth Canadian law on the crime of murder, identification of Mr. O'Brien, and an affidavit by . . . an officer of the Royal Canadian Mounted Police, describing the evidence against Mr. O'Brien and appending thereto copies of signed statements given [to the] officer by numerous witnesses involved. Also submitted in evidence was an affidavit from the State Department concerning the applicable treaty provisions, being more particularly those which are contained in Article X of the Webster-Ashburton Treaty of 1842, 26 Stat. 1508.

...

O'Brien's counsel has framed the sole issue on appeal as follows: Is hearsay admissible against a Canadian citizen in an extradition proceeding under 18 U.S.C. 3184 and 18 U.S.C. 3190 brought at the request of the Canadian Government?

It is... the use and competency of the hearsay evidence supplied by [the officer's] affidavit and accompanying documents which are challenged . . . . [Ilt is argued that the competency of the evidence to establish probable cause in such cases must be determined according to the law of Canada. Appellant asserts that he offered and was denied the right in an evidentiary hearing to demonstrate that in the Canadian equivalent of a preliminary examination, hearsay is not admissible. From this he urges that the hearsay should similarly have been held inadmissible in the instant extradition proceeding. From an examination of the pertinent authorities, it is apparent that an inquiry into that body of law was immaterial, since American law applies in any event.

The procedures to be followed in extradition hearings are set forth in 18 U.S.C. 3184:

§ 3184. Fugitives from foreign country to United States.

Whenever there is a treaty or convention for extradition between the United States and any foreign government, any justice or judge of the United States, or any magistrate authorized so to do by a court of the United States, or any judge of a court of record of general jurisdiction of any State, mav, upon complaint made under oath, charging any person found within his jurisdiction, with having committed within the jurisdiction of any such foreign government any of the crimes provided for by such treaty or convention, issue his warrant for the apprehension of the person so charged, that he may be brought before such justice, judge, or magistrate, to the end that the evidence of criminality may be heard and considered. If, on such hearing, he deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention,