Gooch v. Clark

HUFSTEDLER, Circuit Judge; The central issue on appeal is this: Does the 1952 Immigration and Nationality Act, as amended in 1965, close our international borders to “alien commut — 76 — ers”, numbering some 30,000 to 40,000 persons? An alien or “green card” commuter is an alien who has been admitted into the United States for permanent residence, but who chooses to keep a home in Canada or Mexico and to cross daily or seasonally into this country to work. These commuters carry an alien registration receipt card (form 1-151), commonly called a “green card” and use it as a border-crossing card in compliance with the documentation requirements of the Attorney General of the United States. Suit was initiated on behalf of resident farm workers employed in southern California seeking an order directing Government officials to deny admission to alien commuters. The AFL-CIO intervened as a plaintiff, representing a broader class of residents of the United States with whom the alien commuters compete in the labor markets adjoining our international boundaries. The Government1 successfully moved for a summary judgment from which this appeal was taken. The district court had jurisdiction under 28 U.S.C. § 1361. Our jurisdiction rests on 28 U.S.C. § 1291. Both sets of plaintiffs base their standing upon the alleged adverse impact of alien commuters on the wage levels and working conditions of United States residents in those areas.2 The district court held that the plaintiffs had standing, and the Government no longer challenges this holding, relying on the authority of Association of Data Processing Serv. Organizations v. Camp (1970) 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 and Barlow v. Collins (1970) 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192.3 The Government contends that an alien commuter is within the class of persons described by 8 U.S.C. § 1101(a) (27) (B): “an immigrant, lawfully admitted for permanent residence, who is returning from a temporary visit abroad.” Such a classification would entitle the Attorney General to admit commuters under the informal documentation requirements authorized by 8 U. S.C. § 1181(b) and would exempt commuters from the labor certification provisions of 8 U.S.C. § 1182(a) (14). Appellants argue that commuters are not entitled to this classification because they are (1) “nonimmigrants” rather than “immigrants,” (2) not “lawfully admitted for permanent residence”, and (3) not “returning from a temporary visit abroad.” We discuss the issues seriatim. I. The Immigration and Nationality Act of 1952, 8 U.S.C. § 1101 et seq. (“the Act”), provides a comprehensive scheme for the admission and exclusion of aliens. It allows for the admission of aliens4 under either “immigrant” or “nonimmigrant” status. Section 1101(a) (15) supplies a negative definition of “immigrant”: “The term ‘immigrant’ means every alien except an alien who is within one of the following classes of non-immigrant aliens — [12 classes of non-immigrants follow].” In construing the 1952 Act, “we are not concerned with the ordinary defini — 77 — tion of the word ‘immigrant’ as one who comes for permanent residence. The Act makes its own definition * * *. The term thus includes every alien coming to this country either to reside permanently or for temporary purposes, unless he can bring himself within one of the exceptions.” Karnuth v. United States ex rel. Albro (1929) 279 U.S. 231, 242-243, 49 S.Ct. 274, 278, 73 L.Ed. 677.5 Appellants argue that commuters are within an exception and are therefore nonimmigrants, citing 8 U.S.C. § 1101(a) (15) (H) (ii). That section defines one kind of nonimmigrant as: “(H) an alien having a residence in a foreign country which he has no intention of abandoning (i) * * * or (ii) who is coming temporarily to the United States to perform temporary services or labor, if unemployed persons capable of performing such service or labor cannot be found in this country * * A review of the administrative practice regarding commuters and the legislative history of the subsection convince us that Congress did not intend commuters to fall within (H) (ii); indeed, they are disqualified by the very language of the subsection. Prior to the enactment of the 1952 Act, the administrative construction was uniform: Commuters were not non-immigrants.6 That practice was well known to Congress when it was drafting the 1952 Act.7 There is no indication that subsection (H) (ii) was added to the 1952 Act for the purpose of changing the Service’s, handling of commuters. On the contrary, the legislative history demonstrates that the subsection was addressed to a wholly different matter: During and immediately following World War II, Congress passed a series of measures authorizing the temporary admission of agricultural workers in order to alleviate domestic labor shortages.8 After reviewing these measures, a 1950 Senate study group recommended “that provision should be made in permanent legislation which would permit the admission of temporary agricultural labor in a nonimmigrant classification when like labor cannot be found in this country.”9 Subsection (H) of the 1952 Act was an expanded implementation of this recommendation.10 Its — 78 — purpose was not to affect commuters; it was designed to permit admission of a new group of aliens under restrictive circumstances.11 To construe subsection (H) as appellants urge would render inexplicable the further requirement in (H) (ii) that “unemployed persons capable of performing such service or labor cannot be found in this country.” This phrase is part of the definition of aliens falling within the'(H) (ii) class of nonimmigrants. Unemployed persons can be found to perform the work now done by commuters; appellants have based their standing on that fact. Thus, the same section would classify commuters as non-immigrants and simultaneously declassify them — a nonsense reading of the section. Subsection (H) (ii), read in the context of (H) (i) and (H) (iii), was intended to confer nonimmigrant status on certain aliens who were needed in the American labor force but who, unlike commuters, would be unable to achieve admittance under immigrant status.12 We conclude that commuters are not nonimmigrants under section 1101(a) (15) (H) (ii). (In the Matter of H— O— (Bd.Imm.App. 1954) 5 I. & N.Dec. 716; see also C. Gordon & H. Rosenfield, Immigration Law and Procedure (rev.ed.1969) 2-71 to 2-75, 6-57 to 6-58.) 13 Nor are commuters visiting the United States “temporarily for business” under nonimmigrant category (B) of section 1101(a) (15). (See Karnuth v. United States ex rel. Albro, supra)14. None of the other nonimmigrant categories being applicable, we conclude that commuters are “immigrants.” II. Are commuters “lawfully admitted for permanent residence”? The phrase is itself a term of art,15 defined in the Act — 79 — as “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.” (8 U.S.C. § 1101(a) (20). We agree with the Government that the definition refers not to the actuality of one’s residence but to one’s status under the immigration laws.16 Commuters have been accorded the privilege of residing permanently in the United States, for each of them at one time received a valid immigration visa. Their disinclination to exercise that privilege is of no moment. Appellants argue that most commuters would no longer qualify for immigration visas if they applied anew, and thus their status under the immigration laws has changed, disqualifying them under the phrase from section 1101(a) (20), “such status not having changed.” That quoted phrase refers primarily to aliens who have changed their status from immigrants to nonimmigrants. (Matter of M-P-(Bd.Imm.App.1962) 9 I. & N. Dec. 747; In the Matter of S- (Bd.Imm.App. 1954) 6 I. & N. Dec. 392, approved (Attorney General 1955) 6 I & N. Dec. 397.) It has little meaning in the context of section 1101(a) (27) (B), referring to immigrants lawfully admitted for permanent residence. But section 1101(a) (20) is definitional, having application to a great many parts of the Act, and we should not be disturbed that the phrase “such status not having changed” appears meaningless in one particular usage. Other sections of the Act refers to aliens lawfully admitted for permanent residence {e.g., U.S.C. § 1182(c)), and in that context the phrase is meaningful. We think the Government is right that commuters are “lawfully admitted for permanent residence.” III. The final requirement of section 1101(a) (27) (B), necessary to allow using informal documentation under section 1181(a),17 is that the immigrant be “returning from a temporary visit abroad.” The Government argues that a commuter’s nightly or seasonal departure from the United States to his foreign residence is a “temporary visit” from which he “returns” when he reenters the United States for employment. — 80 — Section 1181(b) was amended in 1965. The 1952 version did not refer to section 1101(a) (27) (B), but supplies its own definition of those persons exempted from formal documentation requirements : “otherwise admissible aliens lawfully admitted for permanent residence who depart from the United States temporarily.”18 The 1965 amendment thus had the effect of replacing the phrase “depart [ing] from the United States temporarily” with “returning from a temporary visit abroad”, the language used in section 1101(a) (27) (B). Appellants argue that Congress intended by this amendment to terminate admission of commuters, because one cannot say that an alien is “returning from a temporary visit abroad” when he is, in fact, leaving home to go to work.19 The Government’s construction of the 1965 amendment strains the language severely. But that strain is not as intolerable as is appellants’ reading of the amendment. Appellants ask us to conclude from a minor and obscure change in the language of section 1181(b) that Congress intended to end a well-known practice of the Service of more than 38 years, thereby grossly affecting some 40,000 commuters, their families, and their employers. The legislative history is virtually silent — an eloquent silence, in view of the national and international implications that all parties agree would follow from a termination of commuting. That silence is broken only by an obscure colloquy that took place two years before section 1181(b) was amended, during a hearing before the House Judiciary Subcommittee. The exchange was between General Counsel for the Service and a legislative assistant to the Committee who agreed that the departure from the United States temporarily was a better description of a commuter’s travels than “returning from a temporary visit abroad.”20 The hearings resulted in no Committee recommendation against the commuter program and there is no hint that anyone outside the hearing room knew of the exchange until appellants’ counsel unearthed it. Commuters are mentioned nowhere else in the massive legislative history of the 1965 changes.21 For many years before 1965, the Immigration Service had taken the position that commuters were “returning from a temporary visit abroad” as used in section 1101(a) (27) (B).22 The — 81 — drafters of the 1965 amendment might well have had this in mind. The commuter practice has lasted for 43 years with Congress’ knowledge and acquiescence. Congress is still aware of the commuter practice, and the problems it entails: There are several pending bills before Congress directed particularly toward commuters. (See Note, supra, 21 Stan.L.Rev. at 1768-74.) Under these circumstances, we do not accept appellants’ contention that Congress intended to close our borders to commuters when it enacted a technical revision of section 1181(b). IV. Prior to the 1965 amendments to the Act, 8 U.S.C. § 1182(a) (14) required the exclusion of aliens “seeking to enter the United States for the purpose of performing skilled or unskilled labor” if the Secretary of Labor certified that United States residents were available to undertake such labor and that the employment of aliens would adversely affect the wages and working conditions of those United States residents.23 The 1965 amendments tightened section 1182(a) (14) by requiring exclusion unless the Secretary of Labor certified that admission would not have these adverse consequences.24 But both the old and new versions of the section apply only to certain enumerated classes of aliens, and aliens falling within section 1101(a) (27) (B) are not among them. At the time of a commuter’s initial entrance into the United States, he would have to comply with section 1182(a) (14). But once such a lawful admittance occurred, the commuter could thereafter make regular entrances into the United States as an immigrant “lawfully admitted for permanent residence, who is returning from a temporary visit abroad.”25 It was in this connection that the Immigration Service, even prior to the 1965 amendments to section 1181(b), argued that commuters were “returning from a temporary visit abroad” and thus fell within section 1101(a) (27) (B). In Amalgamated Meat Cutters & Butcher Workmen of North America v. Rogers (D.D.C.1960) 186 F.Supp. 114, the Secretary of Labor had certified that the admission of aliens to work in a particular plant in El Paso, Texas, would create the adverse conditions described in section 1182(a) (14). The Service nevertheless declined to exclude commuters bound for the plant, considering them unaffected by the certification. The union then brought suit to require the commuter’s exclusion. While the district court agreed with the Service that the order was not applicable against section 1101(a) (27) (B) immigrants, it held that commuters were not within this class. The case quickly became moot, and no appeal was taken. Nevertheless, the Service disagreed with the result reached, declined to follow it, and made clear to Congress its opposition to the decision.26 The opinion has also — 82 — been criticized elsewhere. (Note, supra, 21 Stan.L.Rev. at 1755-57.) We agree that Amalgamated Meat Cutters was wrongly decided, and can find no evidence that Congress intended to adopt the decision in its 1965 amendments to the Act. Section 1182(a) (14) cannot now be read, therefore, to bar the admission of commuters. The judgment is affirmed. Footnotes [1] For convenience we use “Government” to refer to the individually named Government officials. Occasionally “Immigration Service” or “Service” is used to refer to the Immigration and Naturalization Service. [2] See Note, “Aliens in the Fields: The ‘Green-Card Commuter’ Under the Immigration and Naturalization Laws” (1969) 21 Stan.L.Rev. 1750, 1763-68, for a discussion of studies of the commuter impact. [3] An earlier attack on the commuter practice was dismissed for lack of standing. Texas State AFL-CIO v. Kennedy, 117 U.S.App.D.C. 343, 330 F.2d 217, cert. denied (1964) 379 U.S. 826, 85 S.Ct. 54, 13 L.Ed.2d 36. [4] An “alien” is every person not a citizen or national of the United States. 8 U.S.C. § 1101(a) (3). [5] The Supreme Court was construing the predecessor of § 1101(a) (15) — Immigration Act of 1924, Pub.L. No. 139, ch. 190, § 3, 43 Stat. 153, 154, formerly 8 U.S.C. § 203 — which provided : “When used in this Act the term ‘immigrant’ means any alien departing from any place outside the United States destined for the United States, except [the enumerated classes of non-immigrants].” [6] This Immigration Service practice was established in 1927. See generally In the Matter of L- (Central Office 1951) 4 I. & N. Dec. 454; Note, supra, 21 Stan.L.Rev. at 1751-55; 8 C.F.R. § 110.6 (1947 supp.). [7] “[Nonresident alien border-crossing cards] will not be issued to aliens who * * * have been admitted into the United States for permanent residence. Aliens in the last category who cross the borders frequently are known as commuters and are not nonimmigrants * Senate Comm, on the Judiciary, The Immigration and Naturalization Systems of the United States, S.Rep. No. 1515, 81st Cong., 2d Sess. (1950) 616; see also id. at 535-537. [8] See Act of Feb. 14, 1944, Pub.L. No. 229, ch. 16, 58 Stat. 11, 15-16, extended several times until 1948. See also Act of July 12, 1951, Pub.L. No. 78, ch. 223, 65 Stat. 119, extended several times through December 31, 1964. [9] S.Rep.No. 1515, supra note 7, at 586. [10] “These provisions of the bill grant the Attorney General sufficient authority to admit temporarily certain alien workers, industrial, agricultural, or otherwise, for the purpose of alleviating labor shortages as they exist or may develop in certain areas or certain branches of American productive enterprises, particularly in periods of intensfied production.” H.R.Rep.No. 1365, 82d Cong., 2d Sess., 1952 U.S.Code Cong. & Ad.News, pp. 1653, 1698. [11] See 8 U.S.C. § 1184(c); 8 C.F.R. § 214.2(h) (2) (ii); 20 C.F.R. § 602.10. [12] Cf. Hess v. Esperdy (S.D.N.Y.1964) 234 F.Supp. 909, 912. Commuters are in the unusual position of preferring immigrant to nonimmigrant status. Most aliens classified in the residual category of immigrants cannot achieve admittance to the United States because of severe numerical limitations for that category; they therefore seek admittance as nonimmigrants, for which there are no numerical limitations. By adding the (H) (ii) category of nonimmigrants, Congress thus made possible the admittance of a new group of aliens. Every alien is presumed to be an immigrant until he satisfactorily shows that he is a nonimmigrant. 8 U.S.C. § 1184(b). But because commuters are not subject to the standard numerical limitations for immigrants (see 8 U.S.C. § 1101 (a) (27) (B), immigrant status is preferred ; they need not meet the “qualitative” requirements of the various nonimmigrant categories. [13] Congress recently amended parts (i) and (iii) of §1101 (a) (15) (H). Act of Apr. 7, 1970, Pub.L.No. 91-225, 84 Stat. 116. The legislative history of the amendment makes no reference to commuters. [14] We hesitate only momentarily in citing Karnuth for this proposition. Karnuth was brought by European nationals who were residing in Canada and seeking to commute to the United States. Being subject to the immigrant quotas for their home countries, they attempted to acquire nonimmigrant status under § 3(2) of the 1924 Act, the predecessor to 8 U.S.C. § 1101(a) (15) (B). The Supreme Court upheld the Service’s ruling that these commuters were immigrants and therefore subject to the quotas. In so holding, the Court relied heavily on congressional intent to restrict immigration and to protect American labor. Most aliens who acquired commuter status after Karnuth were Mexican and Canadian nationals and thus not subject to immigration quotas. § 4(c) of the 1924 Act; 8 U.S.C. § 1101(a) (27) (A). But the 1965 amendments to the Immigration and Nationality Act have now restricted the numbers of Western Hemisphere aliens who can achieve initial admittance under immigrant status. See Act of Oct. 3, 1965, Pub.L.No. 89-236, § 21(e), 79 Stat. 921, and discussion infra of 8 U.S.C. § 1182(a) (14). Under these circumstances, we read Karnuth as an authoritative interpretation of § 1101(a) (15) (B). [15] “Section [1101(a) (20)] defines precisely the term ‘lawfully admitted for permanent residence.’' This term has especial significance because of its application to — 79 — numerous provisions of the bill.” H.R. Rep.No. 1365, supra note 10, at 1684. [16] Even before the 1952 Act, the Immigration Service took the position that whether a commuter was “lawfully admitted” to the United States was a question of status. Matter of F_ (Bd.Imm. App. Dec. 30, 1946) A-6300563, cited in Editor’s Note, 3 I. & N. Dec. 526. Adoption of 8 U.S.C. § 1101(a) (20) can thus be seen as an approval of the Service’s position. See In the Matter of H_ O_ (Bd.Imm.App.1954) 5 I. & N. Dec. 716. Congress was also aware in 1952 that the Service considered commuters “admitted into the United States for permanent residence.” See note 7 supra. [17] Actually, § 1181(b) provides for waiver for such immigrants “in such cases or in such classes of cases and under such conditions as may be by regulations prescribed * * Cf. Tejeda v. Immigration & Naturalization Service (9th Cir. 1965) 346 F.2d 389, 391 n. 1. But there has been no published regulation dealing with commuters since 1952. 8 C.F.R. § 211.1(b) (1), dealing with the use of form 1-151, does not include commuters within its scope except for, the Government argues, the last sentence thereof. The nonexistence of a regulation is not fatal to the Government’s case. The practice of admitting commuters is long standing, was the topic of numerous regulations in the past (e. g., 8 C.F.R. § 166.1 (1944 Supp.)), and has been continuously recognized in administrative decisions. We are not dealing with an ad hoc admission practice, unknown to Congress or uncontrolled by the Service. The Board of Immigration Appeals has established, by administrative case law, clear rules as to who is entitled to commuter status and how that status can be lost. B. g., Matter of M- D- S- & L- G- & W- DC- (Bd.Imm.App.1958) 8 I. & N. Dec. 209. At least in this context, we read the regulation requirement of § 1181 (b) to be permissive. [18] Immigration and Nationality Act, Pub. L. No. 414, ch. 477, § 211(b), 66 Stat. 181. The language resembled that of its predecessor section in the 1924 Act, § 13(b), formerly 8 U.S.C. § 213(b) : “immigrants who have been legally admitted to the United States and who depart therefrom temporarily.” The 1965 amendment was Act of Oct. 3, 1965, Pub. L. No. 89-236, § 9, 79 Stat. 917. [19] But even the old § 1181(b) has been viewed as asking whether an immigrant was returning from a “temporary visit abroad.” Barrese v. Ryan (D.Conn.1962) 203 F.Supp. 880, 888. [20] House Comm, on the Judiciary, Sub-comm. No. 1, Study of Population and Immigration Problems, Administrative Presentations (III), Admission of Aliens Into the United States for Temporary Employment and “Commuter Workers” (Comm.Print 1963) 161-169 (Hearings of June 24, 1963). [21] The statement in the Senate report relied upon by appellants refers to the revision of § 1181(a), rather than 1181(b). S.Rep.No. 748, 89th Cong., 1st Sess., 1965 U.S.Code Cong. & Ad.News, pp. 3328, 3342. The House report states, without explanation, that § 1181 is amended “to broaden the authority of the Attorney General to waive documentation required of a returning resident alien.” H.R.Rep. No. 745, 89th Cong., 1st Sess. (1965) 21 (emphasis added). [22] See discussion infra of Amalgamated Meat Cutters & Butcher Workmen of North America v. Rogers (D.D.C.1960) 186 F.Supp. 114. And the Service thought commuters admissible under regulations to the 1924 Act as § 4(b) non-quota immigrants : “an immigrant previously lawfully admitted to the United States, who is returning from a temporary visit abroad." See In the Matter of D-- C- (Central Office & Bd.Imm.App.1949) 3 I. & N.Dec. 519; Note, — 81 — supra, 21 Stan.L.Rev. at 1754. As such, they were admissible with alternative documentation: a border-crossing identification card. See 8 C.F.R. §§ 110.37, 110.56 (1941 Supp.). These cards were not recognized by Congress until 1940. Alien Registration Act of 1940, Pub.L.No. 670, ch. 439, § 30, 54 Stat. 670, 673. [23] Immigration and Nationality Act, Pub.L.No. 414, ch. 477, § 212(a) (14), 66 Stat. 183. [24] Act of Oct. 3, 1965, Pub.L.No. 89-236, § 10, 79 Stat. 917. [25] According to the record of the case before us, no certifications beneficial to commuters have been issued since the 1965 amendments. Consequently, we are concerned exclusively with immigrants who attained lawful admittance prior to 1965. [26] Staff of House Comm, on the Judiciary, Immigration and Nationality Act With Amendments and Notes on Related Laws (Comm.Print 4th ed. 1964) 210; House Comm, on the Judiciary, Subcomm. No. 1, Study of Population and Immigration Problems, Judicial Decisions Construing Certain Provisions of the Immigration — 82 — and Nationality Act (Comm.Print 1963) 14; see House Comm, on the Judiciary, supra note 20, at 163-64. No final order was issued in the case because of mootness. In Matter of J- P-(1962) 9 I. & N.Dee. 591, the Board of Immigration Appeals gave limited enforcement to the decision. Amalgamated was decided, not on the ground that commuters were not “returning from a temporary visit abroad,” but on the ground that they were not lawfully admitted for permanent residenpe.’ Our disagreement with this conclusion is explained supra.