Bustos v. Mitchell, 72-1178

• Citation: 481 F.2d 479
• Decision Date: 16 April 1973
• Docket Number: No. 72-1178,72-1179 and 72-1200.,72-1178
• Parties: Robert BUSTOS, and Lupe Murquia, Appellants, v. John MITCHELL, Attorney General of the United States, et al. Robert BUSTOS et al., United Farm Workers Organizing Committee, Appellant, v. John MITCHELL, Attorney General of the United States, et al. Robert BUSTOS et al., Cristobal Cardona et al., Appellants, v. John MITCHELL, Attorney General of the United States, et al.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

481 F.2d 479 (1973)

Robert BUSTOS, and Lupe Murquia, Appellants, v. John MITCHELL, Attorney General of the United States, et al.

Robert BUSTOS et al., United Farm Workers Organizing Committee, Appellant, v. John MITCHELL, Attorney General of the United States, et al.

Robert BUSTOS et al., Cristobal Cardona et al., Appellants, v. John MITCHELL, Attorney General of the United States, et al.

Nos. 72-1178, 72-1179 and 72-1200.

United States Court of Appeals, District of Columbia Circuit.

Argued January 26, 1973.

Decided April 16, 1973.

Bruce J. Terris, Washington, D. C., with whom Joseph Onek, Washington, D. C., was on the brief for appellants. John W. Karr, Washington, D. C., also entered an appearance for appellants.

Ralph Farb, Atty., Immigration and Naturalization Service, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of Court, with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry, and Gil Zimmerman, Asst. U. S. Attys., were on the brief for appellees.

Before GEORGE C. EDWARDS, Jr.,^* Circuit Judge for the Sixth Circuit, LEVENTHAL, Circuit Judge, and JOHN H. PRATT,^** United States District Judge for the United States District Court for the District of Columbia.

JOHN H. PRATT, District Judge:

This case challenges the legality of the system whereby the Immigration and Naturalization Service¹ for many years has permitted and continues to permit Mexican aliens² to commute either daily or seasonally from their place of residence in Mexico to employment in the United States. Plaintiffs-appellants Robert Bustos, an American citizen, and Lupe Murquia, a Mexican national permanently residing in the United States, are farm workers in California. The United Farm Workers Organizing Committee is an organization of farm workers whose purpose is to secure higher wages and better working conditions for its members. The defendant-appellees are the Attorney General, the Commissioner of the Service, and the Regional Commissioner of the Service for the Southwest Region. The defendants have the statutory responsibility of enforcing the immigration and naturalization laws of the United States.

Plaintiffs filed a class action in the United States District Court for the District of Columbia on behalf of all citizens and alien permanent residents of the United States engaged in farm labor in California. The complaint sought declaratory and injunctive relief against the practice of the Service in admitting daily and seasonal commuters into the United States to perform agricultural labor. Five farm workers in Texas were permitted to intervene as plaintiffs for themselves and on behalf of all farm workers in Texas. There is no dispute as to any material facts. Acting on cross-motions, the District Court, on December 21, 1971, granted the motion for summary judgment of the defendants, denied the motions of plaintiffs and intervenor-plaintiffs, and dismissed the action. This appeal followed.

The issues raised by the parties on appeal are three. (1) Can aliens commuting daily or seasonally to work in the United States without maintaining residences in this country enter the United States without immigrant visas and without a certification by the Secretary of Labor that (a) there is a shortage of domestic labor of the kind the aliens are to perform, and (b) their employment will not affect wages and working conditions of American workers? (2) Are most commuters properly classifiable as non-immigrants who therefore may not be admitted into the United States unless the Secretary of Labor determines that no domestic labor is available? (3) Does 8 C.F.R. § 211.1(b)(1) (1972) permit commuters to enter the country to take employment where a labor dispute exists even if they previously have been employed there? Plaintiffs contend that the plain language of the statute and the lack of a consistent administrative practice regarding commuters dictate a decision in their favor. The defendants join the issues by contending that the alien commuter system is the product of a long-standing consistent administrative application of the immigration laws and that Congress has repeatedly ratified the existence of this practice.

The Court is convinced that the parties have drawn the issues too broadly and consequently have not focused upon a vital distinction in the history of daily and seasonal commuters.³ The distinction between these two types of commuters coupled with their relevant histories dictate the differing treatment we have given each of these classes of commuters.

I.

The administrative treatment by the Service of the seasonal commuter aspect of this overall problem makes appropriate a brief reference to the origin and history of the bracero program. Due to the unusual farm labor shortage in the United States during World War II, the United States and Mexico in 1943 initiated the bracero program to provide for the seasonal importation of Mexican agricultural workers.⁴ In 1951, when Congress renewed the bracero program in Public Law 78, it strengthened provisions in the agreement in order to protect domestic labor.⁵ Growers were required to make reasonable efforts to attract domestic workers prior to certification by the Department of Labor of the need for foreign labor. During the 1950's and early 1960's, the importation of Mexican agricultural workers under the bracero program increased markedly. Despite the added safeguards to protect American labor, there arose a growing concern in the country over the program's adverse impact on domestic labor. Congress in 1964 therefore decided to allow the program to lapse.

Soon after Congress ended the bracero program, it amended in 1965 the Immigration and Nationality Act of 1952, the basic statute, to provide "safeguards to protect the American economy from job competition and from adverse working standards as a consequence of immigrant workers entering the labor market."⁶ The most important change was to strengthen the labor certification process. Section 212(a)(14) of the Immigration Act of 1952 had proved ineffective because an alien only could be excluded if the Secretary of Labor previously had certified that admittance of the alien would have an adverse effect on American labor. The Secretary had no way of knowing those who had applied to immigrate to the United States or their prospective occupations, residences, or employers. The 1965 amendments radically changed the certification procedure by reversing the burden of initiating the certification process. Under the new provision, an alien laborer cannot enter the United States unless the Secretary of Labor has certified that there is not enough domestic manpower available to perform such tasks and that his employment would not adversely affect the wages of American workers similarly employed. 8 U.S.C. § 1182(a)(14) (1970).

Despite this background, the Service after the termination of the bracero program in 1964 created a new class of commuter — a "new immigrant," the seasonal worker.⁷ The Service has admitted that the "seasonal worker is a person who came into being largely after the repeal of the bracero law," and that "many of them are former braceros who have been admitted to the United States temporarily for employment under" the Act.⁸ Thus, while the daily commuter can work only within a relatively short automobile drive of the border, the seasonal commuter works in areas far inland in competition with a depressed and economically deprived work force of this country.

The metamorphosis of the bracero to seasonal commuter is directly inconsistent with Congress's purpose in ending the bracero program in order to eliminate its adverse impact on American workers. While the bracero program had many protections designed to protect domestic labor, the ex-bracero as a seasonal commuter enters and leaves the United States freely, subject to none of the many safeguards for domestic labor which characterized the bracero program prior to its termination in 1964. The fact that Congress has approved the continued existence of the daily commuter program is no indication that it has approved a program which circumvents explicit expressions of Congressional concern for American labor, is a short-lived invention of the Service and which flies in the face of traditional Congressional concern for the American working man.⁹

More specifically, the Service, in order to reach this result, has interpreted seasonal commuters as "returning resident aliens," a class of immigrant not required upon re-entry to obtain immigrant visas. 8 U.S.C. § 1181(b) (1970). A returning resident alien is defined in the same Act as an "immigrant, lawfully admitted for permanent residence who is returning from a temporary visit abroad." 8 U.S.C. § 1101 (a)(27)(B) (1970). The regulations amplify this definition by describing returning resident aliens as persons "returning to an unrelinquished lawful permanent residence in the United States after a temporary visit abroad." 8 C.F.R. 211.1(b)(1) (1972). As Judge Wright so persuasively pointed out in his dissenting opinion in the Gooch case,¹⁰ the construction of "lawfully admitted for permanent residence" as including commuters "makes nonsense of the Congressional policy embodied in no fewer than five sections of the Act entirely apart from § 1101(a)(27)(B), and is contrary to the plain meaning of two others." In short, seasonal commuters are improperly classified as "returning resident aliens" and are not entitled to the benefits of such classification. The Service's practice is in violation of the clear and plain language of the statute.

Aside from Congressional purpose and intent, we also find that seasonal commuters are properly to be classified as non-immigrants under the Act. Section 101(a)(15) of the Immigration and Nationality Act defines an immigrant as an alien not coming within ten categories of non-immigrants. 8 U.S.C. § 1101(a)(15) (1970). A non-immigrant is there defined as...