Authority to Pay Witness Fees to Illegal Aliens

Aliens not legally entitled to be admitted to or reside in the United States who 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 appearing 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 

who 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 Attorney General so that they may testify on behalf of the United States 

or indigent criminal defendants, are entitled to witness fees in the amount of $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 of Justice’s “Fees and Expenses of Witnesses” (FEW ) appropriation, rather than from the Immigration and Naturalization Service appropriation, since 

such fees have in the past been paid from the FEW appropriation.

December 21, 1981

MEMORANDUM OPINION FOR THE 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 statutory authorities that support our conclusions, and indicate the conditions 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 we 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., violating 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 payments 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 of various categories of “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 proceeding 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 of § 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:

An alien who 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 who either has admitted belonging to a class o f aliens who are deportable or has 

been determined pursuant to 242(b) of such Act (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 entered 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 Congress 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 entitled to receive fees under § 1821 are those aliens who have overstayed 

their authorized time, violated their status, or otherwise rendered themselves 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 provision 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 Attorney 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 of 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) of 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 authorization for witness fees for aliens in this category under the Immigration and Nationality Act, we do not believe that Congress intended 

that excludable aliens be covered under the general witness fee provisions 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 

of 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 witnesses who are subpoenaed to appear on behalf of defendants in criminal 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 of 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) of the Immigration and Nationality Act, 8 U.S.C. § 1227(d), provides in pertinent 

part:

The Attorney General . . . may stay the deportation of any alien deportable under 

this section, if in his judgment the testimony of 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 of the United States. T h e cost of maintenance of any person so detained 

resulting from a stay of 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:

The Court shall order at any time 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 of 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 of a 

witness subpoenaed in behalf of the government.

Fed. R. Cnm. 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 Department’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 authorizes witness fee payments to be made to aliens who are not legally 

entitled to reside in the United States, the language of both appropriations 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 appropriation 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 appropriation, 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),

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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 so n

Assistant Attorney General

Office o f Legal Counsel

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