Saxbe v. Bustos

419 U.S. 65, 95 S. Ct. 272, 42 L. Ed. 2d 231, 1974 U.S. LEXIS 156, 8 Empl. Prac. Dec. (CCH) 9815

Opinions

Mr. Justice Douglas

delivered the opinion of the Court.

Some aliens who have their homes in Canada or Mexico commute daily to places of employment in this country and others do so on a seasonal basis, a practice permitted by the Immigration and Naturalization Service. The question is whether the practice on the facts of these cases conforms with the Immigration and Nationality Act. It turns on the meaning of § 101 (a)(27.)(B), 66 Stat. 169, as amended, 79 Stat. 916, 8 U. S. C. § 1101 (a)(27)(B), which defines as one variety of “special immigrant” an immigrant “lawfully admitted for permanent residence, who is returning from a temporary visit abroad.”

Those who qualify under § 1101 (a)(27)(B) may be permitted entry without the usual documentation requirements. 8 U. S. C. § T181 (b). The regulations¹ implement § 1181 (b) by allowing such an immigrant to use an alien registration receipt card, normally called a “green card,” in lieu of an immigrant visa and without regard to numerical limitations ² if he is “returning to an unrelinquished lawful permanent residence in the United States after a temporary absence abroad not exceeding 1 year.”

The Act presumes that an alien is an immigrant “until he establishes . . . that he is entitled to a nonimmigrant status”;³ and it defines “immigrant” as every alien who cannot bring himself into an enumerated class of non-immigrants.⁴ One class of nonimmigrants⁵ is “an alien having a residence in a foreign country which he has no intention of abandoning . . . (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.”

An alien does not qualify as a nonimmigrant under this class of nonimmigrants if he seeks to perform temporary labor at a time when unemployed persons capable of performing that labor can be found in this country.⁶ If he cannot qualify as a nonimmigrant some other way, such an alien is subject to the Act’s numerical limitations, unless he is included in the classes of “immediate relatives” of a United States citizen or “special immigrants.”⁷ On the other hand, as already noted, one variety of “special immigrant” is an alien “lawfully admitted for permanent residence, who is returning from a temporary visit abroad.”⁸ One who so qualifies is excluded from the labor certification provisions in 8 U. S. C. § 1182 (a) (14).⁹ The term “lawfully admitted for permanent residence” is defined as “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant..., such status not having changed.” ¹⁰ An alien achieves that status in the first instance by complying with any applicable numerical limitations and with the Act’s other requirements for admission, details not important here. After his initial admission on that basis, he is free to leave this country temporarily and to re-enter without regard to numerical limitations. The Act authorizes the Attorney General to re-admit such an alien without a visa or other formal documentation. § 1181 (b). He has exercised that authority, allowing such an immigrant to return with what was called in the briefs and oral argument the “green card.”

This suit was brought by the United Farm Workers Organizing Committee ¹¹ for declaratory and injunctive relief against the practice of giving alien commuters the documentation and labor certification benefits of classification as immigrants “lawfully admitted for permanent residence” who are “returning from a temporary visit abroad.”¹² The District Court dismissed the action without opinion. The Court of Appeals held that the admission of daily commuters was proper but that the admission of seasonal commuters was not, 156 U. S. App. D. C. 304, 481 F. 2d 479 (1973). We granted the petition and cross-petition in light of a conflict between the decision below and that of the Court of Appeals for the Ninth Circuit in Gooch v. Clark, 433 F. 2d 74 (1970).

Our conclusions are that commuters are immigrants, that they are “lawfully admitted for permanent residence,” and that they are “returning from a temporary visit abroad” when they enter the United States. Moreover, the wording and legislative history of the statute and the long administrative construction indicate that the same treatment is appropriate for both daily and seasonal commuters. Commuters are thus different from those groups of aliens who can be admitted only on certification by the Secretary of Labor that unemployed persons cannot be found in this country and that the employment of the aliens “will not adversely affect the wages and working conditions of the workers in the United States.” 8 U. S. C. § 1182 (a)(14). We thus agree with the con-elusion of the Ninth Circuit in Gooch. Accordingly, we affirm the judgment now before us as respects daily commuters and reverse it as respects seasonal commuters.

A main reliance of plaintiffs is on the provision of the Act¹³ which in the much-discussed subsection (15) (H) (ii) provides that one category of alien .nonimmi-grant is “an alien having a residence in a foreign country which he has no intention of abandoning ... (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.” Under the argument tendered, these alien commuters partially meet the definition of nonimmigrants in subsection (15)(H)(ii) in that they-have a foreign residence which they do not intend to abandon and come here temporarily to perform temporary service, but fail to satisfy subsection (15) (H) (ii) completely in that they do not show that unemployed people capable of performing the services cannot be found in this Nation. That should invoke the presumption in the Act, already noted, that an alien is an immigrant until or unless he proves he is a nonimmigrant.¹⁴

We agree, moreover, with the Ninth Circuit that this provision “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.” 433 F. 2d, at 78. The administrative construction of this subsection (15)(H)(ii) by the Immigration Service¹⁵ has been that it does not cover an alien, like the commuter, who has a “permanent residence” here and who comes to perform a job of a permanent character, even though the period of his service is limited. To repeat, the Act provides that “[ejvery alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer . .. and the immigration officers ... that he is entitled to a nonimmigrant status under section 1101 (a) (15).”¹⁶ Before an alien can be classified as a nonimmi-grant under subsection (15)(H)(ii) his prospective employer must submit a petition on his behalf under 8 U. S. C. § 1184 (c); and after the INS approves the petition, the alien must apply for nonimmigrant status and demonstrate that he in fact qualifies for that status.¹⁷

We conclude that commuters are not nonimmigrants under subsection (15)(H)(ii). None of the other categories of nonimmigrants are applicable, and thus under § 1184 (b) the commuters are immigrants.

The fact that an alien commuter who has not shown he must be classified as a nonimmigrant must be classified as an immigrant is not the end of our problem. The question remains whether he may properly be treated as one who is in the group defined as “special immigrants” under subsection (27)(B),¹⁸ that is, whether commuters are “lawfully admitted for permanent residence” when they have no actual residence in this country.

Section 1101 (a) (20) defines “lawfully admitted for permanent residence” 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” (italics added). The definition makes the phrase descriptive of a status or privilege which need not be reduced to a permanent residence to be satisfied, so long as that status has not changed.

One argument of the plaintiffs is that the status has changed because residence in this country was never claimed. But we read the Act as did the Ninth Circuit in the Gooch case to mean that the change in status which Congress had in mind was a change from an immigrant lawfully admitted for permanent residence to the status of a nonimmigrant pursuant to 8 U. S. C. § 1257. 433 F. 2d, at 79.

The status referred to in § 1101 (a) (20) is acquired when an alien satisfies (1) any numerical limitations on the entry of immigrants,¹⁹ (2) requirements as to qualitative matters such as health, morals, and economic status,²⁰ and (3) the need for an immigrant visa.²¹ The applicant must also state whether he plans to remain in the United States permanently.²² But the Act does not declare or suggest that the status will be denied him, if he does not intend to reside permanently here. As we read the Act, the “status” acquired carries several important privileges: He may remain in the United States indefinitely; he is free to work in this country; he may return to this country after a temporary absence abroad; and he has the privilege of establishing a permanent residence in the United States.

Thus we conclude that commuters are immigrants “lawfully admitted for permanent residence.” As did both the majority and dissent in Gooch, we also find that commuters can be viewed as “returning from a temporary visit abroad.” 433 F. 2d, at 79-81, 82 n. 1. The court below so agreed as respects daily commuters, disagreeing only as to seasonal commuters. Neither the court below nor the Court of Appeals in Gooch took the position now taken in dissent here.

Our conclusion reflects the administrative practice, dating back at least to 1927 when the Bureau of Immigration was a part of the Department of Labor.²³ In 1940 the Bureau was transferred to the Department of Justice²⁴ where it remains today. On April 1,1927, it issued General Order No. 86.²⁵ Under the order, commuters were required to gain admission as immigrants before they could have border crossing privileges. The order provides that “[a]liens who have complied with the requirements of this General Order governing permanent admission will be considered as having entered for permanent residence.” “Thus,” said the Court of Appeals in the instant cases, “the daily commuter was born,” 156 U. S. App. D. C., at 304, 481 F. 2d, at 485.

This longstanding administrative construction is entitled to great weight, particularly when, as here, Congress has revisited the Act and left the practice untouched. Such a history of administrative construction and congressional acquiescence may add a gloss or qualification to what is on its face unqualified statutory language. Massachusetts Trustees v. United States, 377 U. S. 235 (1964); United States v. Midwest Oil Co., 236 U. S. 459 (1915). As the defendants below acknowledge, the meaning of the phrase “lawfully admitted for permanent residence” in § 1101 (a)(27)(B) may not be identical to the meaning of the same language in other sections of the Act where the same history of administrative construction is not present.

We see no difference in the treatment of daily commuters and seasonal commuters. The status of the seasonal! commuter is the same as the status of the daily commuter because the identical statutory words cover each. The Court of Appeals, however, rested essentially on a different legislative history of seasonal commuters than had obtained in cases of daily commuters.

Prior to 1917 there were essentially no limitations on the practice of commuting from Mexico or Canada to the United States. Legislation was passed in 1917, 1921, and 1924.²⁶ But under those statutes commuters remained able freely to cross the border subject only to qualitative restrictions in the 1917 Act.

As already noted, the administrative approach changed in 1927 when the Bureau of Immigration issued its General Order No. 86. While the 1952 Act, 66 Stat. 163, made no mention of commuters and while the 1965 amendments of the 1952 Act, 79 Stat. 911, were likewise silent as respects commuters, the Court of Appeals assumed that the longstanding practice of allowing daily commuters was not repealed sub silentio; and we agree. The Court of Appeals, however, took quite a different view of the seasonal commuter problem because of its different history.

The seasonal commuter problem dates back at least to 1943 when this Government and Mexico agreed to the seasonal importation of Mexican agricultural workers. 56 Stat. 1759. Congress legislated on the problem in 1951,²⁷ requiring farmers in this Nation to make reasonable efforts to attract domestic workers prior to certification by the Secretary of Labor of the need for foreign labor. That was known as the bracero program and the Court of Appeals called the seasonal commuter merely a new name for the former bracero. That is quite inaccurate. The braceros were at the start nonimmigrants; the seasonal commuters were immigrants. Some braceros, indeed quite a few, H. R. Rep. No. 722, 88th Cong., 1st Sess., 7 (1963), acquired permanent residence status. The seasonal commuter, like the daily commuter, has always been in that category.

In 1964 the bracero type of seasonal program lapsed; and the next year Congress amended the Immigration and Nationality Act by making stricter the certification by the Secretary of Labor of the need for foreign labor and requiring findings on the lack of any adverse effect of the employment of aliens on the wages and working conditions of workers in this country.

But that provision, which we have quoted,²⁸ does not apply to aliens lawfully admitted for permanent residence returning from a temporary visit abroad and to certain close relatives. An alien' who first sought admission after the effective date of the 1965 Amendment would need a certificate of the Secretary of Labor; but if he already was an alien lawfully admitted to the United States for permanent residence and returning from a temporary visit abroad, the 1965 amendments would not affect him. The purpose of Congress was to limit new admissions of alien laborers, not to prejudice the status of aliens who, whether daily or seasonal commuters, had acquired permanent residence here and were returning to existing jobs.²⁹

We have mentioned General Order No. 86 issued on April 1,1927, which treated the commuters as immigrants (not nonimmigrants), who on obtaining their admission cards would be “considered as having entered for permanent residence.” ³⁰ Cf. Karnuth v. United States ex rel. Albro, 279 U. S. 231, 244 (1929).³¹ The thrust of General Order No. 86 was to lift aliens who were natives of Canada and Mexico from the quota provisions for non-immigrants. Thus, they entered from that time down to date, with nonquota immigration documents. That regulation was carried forward in various regulations before 1952.³² The practice was reviewed ánd sustained in various published administrative decisions.³³ Some suggested that the 1952 Act eliminated the alien commuter. The Board of Immigration Appeals, however, reaffirmed the validity of the practice. Matter of H - O -, 5 I. & N. Dec. 716 (1954). Thereafter repeated administrative decisions³⁴ affirmed the adherence to the alien-commuter concept. We do not labor the administrative construction phase of these cases further, because when the 1952 Act was reported, the Senate Judiciary Committee tendered a voluminous report of nearly 1,000 pages touching on the alien commuters, describing the practice in some detail, and including the sections which we have discussed in this opinion. The commuters from Canada and Mexico were treated as lawfully admitted immigrants. No doubt as to the desirability of the practice was expressed. It is clear that S. Rep. No. 1515, 81st Cong., 2d Sess. (1950) (the Omnibus Study Report), reveals a congressional acceptance of the system.

The changes relevant to commuters in the 1965 amendments were, as stated in Gooch, minor and technical and contain no suggestion of a change in the commuter problem, 433 F. 2d, at 80-81. H. R. Rep. No. 745, 89th Cong., 1st Sess. (1965); S. Rep. No. 748, 89th Cong., 1st Sess. (1965).

Since 1965 there have been numerous reports by committees of the Congress on the alien commuter problem which indicate that Congress is very knowledgeable about the problem and has not reached a consensus that the administrative policy reaching back at least to General Order No. 86 is wrong. We know from the Western Hemisphere Report³⁵ that the dimensions of the problem are considerable. Daily commuters from Mexico number more than 42,000 of whom 25,000 are engaged in occupations other than agriculture. The total of Canadian commuters exceeds 10,000. Seasonal commuters number at least 8.300 according to the Service’s estimate. The United States Commission on Civil Rights estimates that if Mexican commuters were cut off, they would lose $50 million annually.³⁶ The State Department estimates there are 250,000 family members dependent on income earned by commuters³⁷ and that commuters account for 25% to 30% of the income earned by the labor force in some Mexican border communities.³⁸ Termination of the alien commuter practice might well have a great impact on American border communities because the Mexicans who have the status of permanent residents could settle here, increasing the problems of housing and education in the border towns this side of the Rio Grande. Former Secretary of State Rogers submitted to the District Court an affidavit stating that any “sudden judicial termination of the commuter system, displacing the present immigrant commuters, would have a serious deleterious effect upon our relations with both Mexico and Canada.”

Our conclusion is twofold. First, the provisions of the Act which sanction daily commuters are the ones that also support seasonal commuters. We would have to read the same language in two opposed ways to sanction the daily commuter program and strike down the seasonal commuter program. There is no difference in administrative treatment of the two classes of commuters.

Second, if alien commuters are to be abolished or if seasonal commuters are to be treated differently from daily commuters, the Congress must do it. The changes suggested implicate so many policies and raise so many problems of a political, economic, and social nature that it is fit that the Judiciary recuse itself. At times judges must legislate “interstitially” to resolve ambiguities in laws. But the problem of taking all or some alien commuters engaging in farm work out of the Act is not “interstitial” or, as Mr. Justice Holmes once put it, “molecular.” ³⁹ It is a massive or “molar” action for which the Judiciary is ill-equipped.

We affirm the Court of Appeals insofar as it held daily commuters are lawfully admitted and reverse it insofar as seasonal commuters are concerned.

So ordered.

1 8 CFR §211.1 (b)(1).

2 8 U. S. C. §§ 1181 (a) and 1151-1153.

3 § 1184(b).

4 § HOI (a) (15).

5 § 1101 (a) (15) (H). Legislation proposed in 1973 would limit the stay of these nonimmigrants to one year with possible extension to two years. H. R. Rep. No. 93-461, p. 16 (1973).

6 8 U. S. C. §1101 (a) (15) (H) (ii).

7 § 1151 (a).

8 § 1101 (a)(27)(B). The 1973 House Report, supra, n. 5, at 16, recognizes the difference between a “special immigrant” and non-immigrants covered by § 1101 (a)(15)(H).

9 “Title 8 U. S. C. §1182 (a)(14) provides:

“(a) Except as otherwise provided in this chapter, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States:

“(14) Aliens seeking to enter the United States for the purpose of performing skilled or unskilled labor, unless the Secretary of Labor has determined and certified to the Secretary of State and to the Attorney General that (A) there are not sufficient workers in the United States who are able, willing, qualified, and available at the time of application for a visa and admission to the United States and at the place to which the alien is destined to perform such skilled or unskilled labor, and (B) the employment of such aliens will not adversely affect the wages and working conditions of the workers in the United States similarly employed.”

10 §1101 (a) (20).

11 A collective-bargaining agent for farmworkers. Two farm laborers were also plaintiffs and four more intervened in the District Court. The parties herein are referred to as they were in the District Court.

12 In the District Court and the Court of Appeals plaintiffs also argued that 8 CFR § 211.1 (b) (1) should be read to preclude the entry of a commuter to work at a place where a labor dispute exists, even if the commuter has previously been employed there. This claim was not decided by the Court of Appeals and was not presented in plaintiffs’ petition for certiorari. Hence we offer no views on the merits of this claim.

13 8 U. S. C. §1101 (a) (15) (H).

14 §1184 (b).

15 Matter of Contopoulos, 10 I. & N. Dec. 654 (1964).

16 8 U. S. C. §1184 (b).

17 1 C. Gordon & H. Rosenfield, Immigration Law and Procedure § 2.14b (rev. ed. 1974).

18 The subsection is in 8 U. S. C. § 1101 (a).

19 8 U. S. C. §1151 (a).

20 § 1182.

21 §§ 1181 (a), 1201.

22 §1202 (a).

23 See 32 Stat. 826 ; 34 Stat. 596; c. 141, 37 Stat. 736.

24 By then it was called the Immigration and Naturalization Service. Reorganization Plan No. V, 54 Stat. 1238.

25 General Order No. 86 reads as follows:

“Subject: Land border crossing procedure

"1. Hereafter aliens residing in foreign contiguous countries and entering the United States to engage in existing employment or to seek employment in this country will not be considered as visiting the United States temporarily as tourists, or temporarily for business or pleasure, under any provisions of the Immigration Law which exempt visitors from complying with certain requirements thereof; that is, they will be considered as aliens of the ‘immigrant’ class.

“2, However, the following aliens of the said ‘immigrant’ class residing in foreign contiguous countries and who are now enjoying the border crossing privilege may continue so to enjoy it upon the payment of head tax, provided such head tax was assessible [sic] on aliens entering permanently at the time of original admission and, provided further, that they are not coming to seek employment.

“A. Aliens whose original admission occurred prior to June 3,1921.

“B. Natives of nonquota countries whose original admission occurred prior to July 1,1924.

“3. Aliens of all nationalities of the ‘immigrant’ class whose original admission occurred subsequent to June 30, 1924, will be required to meet all provisions of the Immigration Laws applying to aliens of the ‘immigrant’ class. Aliens of this class already enjoying the border crossing privilege, however, will be granted a reasonable time, not to exceed six months from July 1, 1927, within which to obtain immigration visas and otherwise comply with the laws.

“4. Aliens who have already complied with the requirements of the Immigration Laws and this General Order may be permitted to continue to enjoy the border crossing privilege.

“5. Aliens who have complied with the requirements of this General Order governing permanent admission will be considered as having entered for permanent residence.

“6. The use and issuance of identification cards to all classes of aliens entitled to same will continue as heretofore.

“7. Identification cards held by or issued to aliens of the 'immigrant' class shall be rubber-stamped as follows:

“IMMIGRANT

“10. All identification cards heretofore issued, held by aliens who cannot, or do not, meet the requirements of law, regulations and this order, will be taken up and canceled upon an incoming trip of the holder and appropriate action taken.

“12. The status of holders of identification cards shall be inquired into periodically .... When the holder of a 'nonimmigrant' identification card qualifies as an 'immigrant,' a new identification card shall be issued, stamped to show the correct status.”

²⁶

C. 29, 39 Stat. 874; 42 Stat. 5; c. 190, 43 Stat. 153.

27 65 Stat. 119.

²⁸

N. 9, supra. See 1 Gordon & Rosenfield, supra, n. 17, § 2.40.

29 We find in the reports on the 1965 Act no suggestion that the commuter program was to be uprooted in its entirety, S. Rep. No. 748, 89th Cong., 1st Sess. (1965). That report emphasizes the purpose to prevent an “influx” of foreign labor, not to destroy existing labor arrangements. Id., at 15.

30 For the text of General Order No. 86 see n. 25, supra.

31 The aliens in Karnuth wanted to be treated as nonimmigrants. One of the categories of nonimmigrants under § 3 of the Immigration Act of 1924, 43 Stat. 154, was defined as “an alien visiting the United States temporarily ... for business or pleasure.” The Court held they did not qualify as laborers for hire.

32 Immigration Rules and Regulations, Jan. 1, 1930, Rule 3, Subd. C; 8 CFR § 3.6 (1939); 8 CFR § 110.6 (1947).

33 Matter of D -- C -, 3 I. & N. Dec. 519 (1949); Matter of L.-, 4 I. & N. Dec. 454 (1951).

34 Matter of M-D -S-, 8 I. & N. Dec. 209 (1958); Matter of Bailey, 11 I. & N. Dec. 466 (1966); Matter of Burciaga-Salcedo, 11 I. & N. Dec. 665 (1966); Matter of Gerhard, 12 I, & N. Dec. 556 (1967); Matter of Wighton, 13 I. & N. Dec. 683 (1971); Matter of Hoffman-Arvayo, 13 I. & N. Dec. 750 (1971).

35 Report of Select Commission on Western Hemisphere Immigration 104 (196S). See S. Rep. No. 91-83. p. 65 (1969), stating that the alien commuter problem “can be resolved not by drastically putting an end to the commuter system, but by refining its current operations.” See Hearings on H. R. 9112, H. R. 15092, H. R. 17370 before Subcommittee No. 1 of the House Committee on the Judiciary, 91st Cong., 2d Sess., 205-207.

36 Stranger in One’s Land 12 (Clearinghouse Publication No. 19, 1970).

37 Statement of Assistant Secretary of State Oliver to the Senate Subcommittee on Immigration, Sept. 25,1967, p. 6.

38 Id., at 4.

39 “I recognize without hesitation that judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions.” Southern Pacific Co. v. Jensen, 244 U. S. 205, 221 (1917) (dissenting opinion).