            Authority to Pay Witness Fees to Illegal Aliens

Aliens not legally entitled to be admitted to or reside in the United States w ho have been
  paroled for prosecution as defendants, who admit deportability, or who have been
  adjudged deportable under 8 U.S.C. § 1252(b), are not entitled to payment for appear­
  ing as witnesses in federal courts. 28 U.S.C. § 1821(e). However, aliens who are
  currently the subject of deportation proceedings but have not admitted deportability, or
  w ho have rendered themselves subject to deportation proceedings and do not admit
  deportability, are entitled to witness fees pursuant to 28 U.S.C. § 1821 in the amount of
  $30 per day.
Aliens determined to be excludable under 8 U.S.C. § 1226, whose removal has been
  stayed by the A ttorney General so that they may testify on behalf of the United States
  or indigent criminal defendants, are entitled to witness fees in the amount o f $1 per
  day. 8 U.S.C. § 1227(d); Rule 17(b), Fed. R. Crim. P.
Where the language of two or more appropriation accounts makes them equally available
 to pay certain expenses, and an administrative determination has been made to pay
 them out of one account rather than any other, Comptroller General rulings require the
 continued use o f the appropriation account that has been selected. Accordingly, witness
 fees paid to excludable aliens pursuant to 8 U.S.C. § 1227(d) must in the future be made
 from the Department o f Justice’s “Fees and Expenses of Witnesses” (FEW ) appropria­
 tion, rather than from the Immigration and Naturalization Service appropriation, since
 such fees have in the past been paid from the F E W appropriation.

                                                                           December 21, 1981
MEMORANDUM OPINION FOR TH E ASSISTANT ATTORNEY
        GENERAL FOR ADMINISTRATION

   You have asked this Office to advise you as to the eligibility of aliens
who are not legally entitled to be admitted to or reside in the United
States for payment of witness fees and expenses for appearing in United
States courts.1 In addition, you have asked that we identify the statu­
tory authorities that support our conclusions, and indicate the condi­
tions and rates specified in those statutes. After receiving the views of
your Division and the Immigration and Naturalization Service (INS),2

   1 “ Illegal” aliens are typically detained to testify in criminal proceedings against persons who
allegedly smuggled them into the United States. See. e.g., United States v. Mendez-Rodriguez, 450 F.2d
1 (9th Cir. 1971), holding that deporting deportable aliens who are potential witnesses in a criminal
proceeding against alleged smugglers before defense counsel has had an opportunity to interview them
violates the defendants' rights to due process of law and compulsory process under the Fifth and Sixth
Amendments to the Constitution.
   2 In response to your letter requesting our advice, we solicited the views of your Division and of
INS as to these matters. The responses that w e received reflect substantial agreement as to the proper
construction of 28 U.S.C. § 1821 and 8 U.S.C. § 1227(d) (Supp. II 1978), as well as the appropriations
available for payment of witness fees under these provisions. The responses differed only in that INS,
                                             Continued


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and examining the pertainent statutes, we conclude that aliens paroled
for prosecution as defendants, or who admit deportability or have been
adjudged deportable under § 242(b) of the Immigration and Nationality
Act, 8 U.S.C. § 1252(b), are entitled to no payment at all for appearing
as witnesses in federal courts. Aliens who are currently the subject of
deportation proceedings and do not admit deportability, or who have
rendered themselves subject to deportation proceedings by, e.g., violat­
ing their status, and do not admit deportability, but have not yet been
issued an order to show cause, are entitled to witness fees pursuant to
28 U.S.C. § 1821 in the amount of $30 per day. Finally, § 237(d) of the
Immigration and Nationality Act, 8 U.S.C. § 1227(d), authorizes pay­
ments of $1 per day to excludable aliens whose removal has been
stayed by the Attorney General for the purpose of providing testimony,
in criminal proceedings on behalf of the United States, or, pursuant to
Rule 17(b) of the Federal Rules of Criminal Procedure, on behalf of
defendants who are unable to pay witness fees. Payments under both
provisions are authorized to be made out of the Department’s “Fees
and Expenses of Witnesses” (FEW) appropriation.

                                                      L
   The general statutory provision which mandates payment of specified
fees and allowances to witnesses “in attendance at any court of the
United States” is 28 U.S.C. § 1821. Under this section, witnesses are
entitled to a $30 per day attendance fee, 28 U.S.C. § 1821(b) (Supp. II
1978), and a travel allowance for expenses incurred in travelling to and
from the courthouse. 28 U.S.C. § 1821(c) (Supp. II 1978).3
   Section 1821 specifically excludes three categories of aliens from the
fee and allowance provisions that are generally applicable to other
witnesses in federal courts. 28 U.S.C. § 1821(e) (Supp. II 1978).4 The
first category of aliens not covered by the general witness fee provision
includes aliens who, pending the determination of their applications for
admission into the United States, are temporarily paroled into this
country at the discretion of the Attorney General, for prosecution

reflecting its expertise in such matters, noted the existence o f various categories o f “illegal aliens,” and
clarified the distinction between “excludable” and “deportable” aliens, for purposes of 8 U.S.C.
§ 1227(d).
   3 In addition, this section provides that witnesses whose testimony is material to a criminal proceed­
ing and whose appearance or testimony may not be secured by subpoena or deposition may be
detained pursuant to 18 U.S.C. § 3149, and are entitled to a $30 attendance fee for each day of
confinement. 28 U.S.C. § 1821(dX4) (Supp. II 1978). However, both the House and Senate reports to
the 1978 amendments o f § 1821 clearly state that the section referring to detained material witnesses is
not intended to apply to “ illegal aliens.” See H.R. Rep. No. 1651, 95th Cong., 2d Sess. 5 (1978); S.
Rep. No. 756, 95th Cong., 2d Sess. 4 (1978).
   4 28 U.S.C. § 1821(e) (Supp. II 1978) provides:
         A n alien w ho has been paroled into the United States for prosecution, pursuant to
         section 212(dX5) of the Immigration and Nationality Act (8 U.S.C. 1182(d)(5)), or an
         alien w ho either has admitted belonging to a class o f aliens w ho are deportable or has
         been determ ined pursuant to 242(b) o f such A ct (8 U .SC. 1252(b)) to be deportable,
         shall be ineligible to receive the fees or allowances provided by this section.

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under the laws of the United States. See, e.g., Klapholz v. Esperdy, 302
F.2d 928 (2d Cir.), cert, denied, 371 U.S. 891 (1962). Aliens thus paroled
are not deemed to be “admitted” into the United States, and after their
prosecution are returned to the custody from which they were paroled
for resumed processing of their applications. 8 U.S.C. § 1182(d)(5)
(Supp. II 1980).5 The second category of aliens excluded from the
witness fee provision of § 1821 includes aliens who have already en­
tered the United States—either through formal admissions procedures
or surreptitious entry—and admit belonging to a class of deportable
aliens,6 thereby requesting voluntary departure without the necessity of
deportation proceedings under 8 U.S.C. § 1252(b). The third category
of aliens who are not entitled to witness fees under § 1821 consists of
aliens who, after administrative proceedings pursuant to 8 U.S.C.
§ 1252(b), have been found to be 'deportable.
   Notwithstanding the wide sweep of § 1821(e), there do exist some
categories of aliens residing illegally in the United States which Con­
gress has not specifically excluded from coverage under the general
witness fee provisions of § 1821, and are entitled, we believe, to receive
fees and allowances pursuant to that section. These categories include
aliens who, at the time of the proceeding in which they give testimony,
are the subjects of deportation proceedings but have not admitted
deportability. An additional category of “illegal” aliens who are enti­
tled to receive fees under § 1821 are those aliens who have overstayed
their authorized time, violated their status, or otherwise rendered them­
selves amenable to deportation proceedings, but have not yet been
issued an order to show cause and have not admitted deportability.
Although the Justice Management Division did not specifically identify
this category of “illegal” aliens as separate and distinct from those who
have admitted being, or been found to be, deportable, we believe that
the distinction drawn by INS is a sound one. Congress’ failure to
include these two categories of aliens in §1821(e), which lists the
various classes of aliens excluded from the fees and allowances provi­
sion contained in § 1821, is consistent with the fact that the status of the
aliens in these two categories has not yet been adjudicated.
   An additional category of “illegal” aliens not specifically excluded
from the witness fees provisions of § 1821 are aliens who are excludable

   5 Section 1182(3X5) of Title 8 provides:
           The A ttorney General may, except as provided in subparagraph (B), in his discretion
        parole into the United States temporarily under such conditions as he may prescribe
        for emergent reasons or for reasons deemed strictly in the public interest any alien
        applying for admission to the United States, but such parole of such alien shall not be
        regarded as an admission of the alien and when the purposes of such parole shall, in
        the opinion o f the Attorney General, have been served the alien shall forthwith return
        or be returned to the custody from which he was paroled and thereafter his case shall
        continue to be dealt with in the same manner as that of any other applicant for
        admission to the United States.
   6 Section 241(a) o f the Immigration and Nationality Act, 8 U.S.C. § 1251(a), catalogues the classes
of deportable aliens.

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under § 236 of the Immigration and Nationality Act, 8 U.S.C. § 1226.
Excludability under this section refers to aliens who have applied for,
but have not yet been granted, admission into the United States, or who
have been paroled into this country for a limited purpose—in other
words, aliens who have not yet “entered” the United States in the
contemplation of law. Because there is a more specific statutory au­
thorization for witness fees for aliens in this category under the Immi­
gration and Nationality Act, we do not believe that Congress intended
that excludable aliens be covered under the general witness fee provi­
sions in 28 U.S.C. §1821.7 Section 237(d) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(d), authorizes the Attorney General to
stay the removal of any alien determined to be excludable under § 1226
“if in his judgment the testimony of such alien is necessary on behalf of
the United States in the prosecution of offenders against . . . [the] laws
o f the United States,” and entitles such aliens to a witness fee of $1 per
day for each day that they are detained in the custody of the United
States.8
   Although § 1227(d) limits payments under this section to witnesses
who testify on behalf of the United States, Rule 17(b) of the Federal
Rules of Criminal Procedure 9 authorizes the payment of fees to wit­
nesses who are subpoenaed to appear on behalf of defendants in crimi­
nal proceedings, who are unable to pay the fees “in the same manner in
which . . . fees are paid . . . [to] a witness subpoenaed on behalf of the
government.” Thus, aliens determined to be excludable under 8 U.S.C.
§ 1226, whose removal is stayed for the purpose of testifying on behalf
of indigent criminal defendants, are entitled to $1 for each day that they
are so detained. Because the fees provision contained in § 1227(d) is

   7 See 2A Sands, Sutherland Statutory Construction §51.05 (4th ed. 1973).
         W here one statute deals with a subject in general terms, and another deals with a part
        o f the same subject in a more detailed way, the tw o should be harmonized if possible;
        but if there is any conflict, the latter will prevail, regardless o f whether it was passed
         prior to the general statute, unless it appears that the legislature intended to make the
        genera] act controlling.
Id. at 315 (footnotes omitted).
   8 Section 237(d) o f the Immigration and Nationality A ct, 8 U.S.C. § 1227(d), provides in pertinent
part:
           T he A ttorney General . . . may stay the deportation o f any alien deportable under
        this section, if in his judgment the testimony o f such alien is necessary on behalf of the
        United States in the prosecution o f offenders against any provision of this chapter or
        other laws o f the United States. T h e cost o f maintenance of any person so detained
         resulting from a stay o f deportation under this subsection and a witness fee in the sum
        o f $1 per day for each day such person is so detained may be paid from the
        appropriation for the enforcement o f this subchapter
   9 Rule 17 (b) provides:
           T he C ourt shall order at any tim e that a subpoena be issued for service on a named
         witness upon an ex parte application of a defendant upon a satisfactory showing that
         the defendant is financially unable to pay the fees o f the witness and that the presence
        o f the witness is necessary to an adequate defense. If the court orders the subpoena to
        be issued the costs incurred by the process and the fees of the witness so subpoenaed
        shall be paid in the same manner in which similar costs and fees are paid in case o f a
        witness subpoenaed in behalf of the government.
Fed. R. C nm . P. 17(b).

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limited to aliens detained pursuant to that subsection, aliens who have
been found to be deportable under § 1252 who have been subpoenaed
to testify and are detained for that purpose are not entitled to witness
fees under § 1227(d).
                                   II.

   The Justice Management Division has informed us that payments
made to witnesses pursuant to 28 U.S.C. § 1821 and 28 U.S.C. § 1227(d)
are authorized by, and, in the past have been made from, the Depart­
ment’s FEW appropriation. While witness fees paid to excludable aliens
under § 1227(d) are authorized to be made from the INS appropriation,
we believe that the INS appropriation need not be the exclusive source
of such payments, and that the FEW appropriation is also available for
that purpose.
   Section 1227(d) provides that “[t]he cost of maintenance of any
person . . . detained . . . under this subsection and a witness fee in the
sum of $1 per day for each day such person is so detained may be paid
from the appropriation for the enforcement of this subchapter.” The
current INS appropriation refers generally to “expenses, not otherwise
provided for, necessary for the administration and enforcement of the
laws relating to immigration . .       but does not refer specifically to
witness fee payments. H.R. 7584, 96th Cong., 2d Sess. (1980), enacted
in part in the Continuing Appropriations for Fiscal Year 1981, Pub. L.
No. 96-536, § 101(o), 94 Stat. 3169 (1980), and 1982, Pub. L. No. 97-92,
95 Stat. 1183 (1981). The Department’s FEW appropriation is not
limited to fees paid under § 1821; rather, it provides generally for
“expenses, mileage, compensation, and per diems of witnesses and for
per diems in lieu of subsistence, as authorized by law. . . .” Id.
   Thus, while the language of neither appropriation specifically author­
izes witness fee payments to be made to aliens who are not legally
entitled to reside in the United States, the language of both appropria­
tions reasonably may be construed to authorize such expenditures. In
these circumstances, the Comptroller General has opined that “the
administrative determination as to which of the two [appropriations]
shall be used will not be questioned by the accounting officers.” 23
Comp. Gen. 827 (1944); 5 Comp. Gen. 479 (1926). Moreover, the
Comptroller General has required the continued use of the appropria­
tion which has been selected, “to the exclusion of any other for the
same purpose . . . in the absence of changes in the appropriation acts.”
23 Comp. Gen. 827 (1944). See 10 Comp. Gen. 440 (1931). Because the
Department has elected in the past to pay witness fees pursuant to 8
U.S.C. § 1227(d) out of the FEW appropriation, and the 1982 appro­
priation, Pub. L. No. 97-92 (1981), does not modify the language of the
 1981 appropriation, Pub. L. No. 96-536, § 101(o), 94 Stat. 3169 (1980),
                                   395
we conclude that the FEW appropriation must continue to be made
available for such payments.
                                    T h e o d o r e B. O l s o n
                                Assistant Attorney General
                                 Office o f Legal Counsel




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