Alvarez v. District Director of U.S. Immigration and Naturalization Service

Decision Date07 July 1976
Docket NumberNo. 75-3076,75-3076
Citation539 F.2d 1220
PartiesLolita I. ALVAREZ, Petitioner-Appellee, v. DISTRICT DIRECTOR OF the U. S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit
OPINION

Before WRIGHT and CHOY, Circuit Judges, and ORRICK, * District Judge.

ORRICK, District Judge:

This appeal by the United States Immigration and Naturalization Service (INS) from a decision of the United States District Court for the Central District of California granting a writ of habeas corpus and allowing appellee, Lolita Alvarez, to remain in this country calls into question a forty-nine-year practice recently approved by the United States Supreme Court in Saxbe v. Bustos, 419 U.S. 65, 95 S.Ct. 272, 42 L.Ed.2d 231 (1974). Since 1927, under the Bureau of Immigration's General Order No. 86 1 and later the Immigration Act of 1952, 2 the INS has allowed "commuter aliens" citizens of Mexico and Canada who are employed in the United States to enter this country, daily or seasonally, with only an I-151 registration card ("green card") for identification. Granted "special immigrant" status under 8 U.S.C. § 1101(a)(27)(B), commuter aliens are exempt from ordinary visa and quota requirements.

An immigration judge determined that appellee was not a special immigrant and was deportable under 8 U.S.C. § 1182(a)(20) as an alien not in possession of a valid immigration visa or other entry document. Reviewing that decision on appellee's petition for a writ of habeas corpus, the district court found that appellee was a special immigrant under the holding of Saxbe v. Bustos and the Ninth Circuit Decision in Gooch v. Clark, 433 F.2d 74 (9th Cir. 1970), cert. denied sub nom. Gooch v. Mitchell, 402 U.S. 995, 91 S.Ct. 2170, 29 L.Ed.2d 160 (1971), which was approved in Saxbe. The district court granted appellee special immigrant status even though she is not employed in the United States, does not commute from a contiguous country, maintains no permanent residence in the United States, and spends the major portion of each year in her home in the Philippines. The district court also found that the immigration judge's decision was "arbitrary, capricious and contrary to law".

We disagree with the district court's construction of the special immigrant provision of the immigration law and the applicability of Saxbe v. Bustos to the facts in this case. We conclude that appellee is not a special immigrant and should be deported, and we reverse the court below because it exceeded the scope of its review in granting her petition for a writ of habeas corpus and erred in substituting its findings of fact for those of the immigration judge.

I.

Appellee is a forty-eight year old, single citizen and native of the Philippines. She first entered the United States as a permanent resident in September, 1968, with a third preference immigrant visa granted on the basis of her profession as a pharmacist. She remained for approximately two years, during which time she did not work as a pharmacist and did not apply for a professional license. From 1968 to 1970 appellee did not own a home in the United States, although she purchased a lot for investment and speculation purposes, opened a savings account, and paid income tax. She has never relinquished her employment in the Philippines, but took a leave of absence during her first American stay and when she last applied for admission in 1973.

After leaving the United States in 1970, appellee remained in the Philippines for eleven months. She returned to this country, visiting friends, for two or three months, during which time she did not work. Appellee came to the United States for the third time in November, 1972. She stayed for one week and then returned to the Philippines. As in 1971, she entered through Hawaii and submitted only her green alien registration card for identification.

On November 17, 1973, appellee again applied for admission to the United States at Honolulu as a returning permanent resident. She presented her green card to the immigration inspector with no other entry documents. The immigration inspector thought she might be excludable under 8 U.S.C. § 1182(a) (20) as an immigrant not in possession of a valid immigration visa or other entry document. Her inspection was deferred until a hearing before an immigration judge. She was paroled into the United States and the parole was cancelled in December, 1973.

After a hearing at which appellee was represented by counsel, Immigration Judge Newton T. Jones ordered appellee deported as an immigrant without valid entry documents. The immigration judge found that appellee had abandoned her residence in the United States and was not returning to this country after a temporary visit to the Philippines. On the contrary, he found that she resides in the Philippines and has actually been visiting the United States temporarily every year since 1970 to preserve her permanent residence status.

The Board of Immigration Appeals dismissed appellee's appeal in February, 1975. She subsequently filed a petition for a writ of habeas corpus in the United States District Court for the Central District of California to review the final order of exclusion entered by the immigration judge. Jurisdiction was based on 8 U.S.C. § 1105a(b). The district court granted the writ and entered judgment on March 25, 1975; at the same time, the court remanded the case to the INS for reconsideration. The INS filed a notice of appeal to this Court.

This appeal raises three issues:

1. Is the decision in Saxbe v. Bustos applicable to a citizen of the Philippines who maintains a permanent home and job in the Philippines and visits the United States for a short period each year?

2. Does the Equal Protection Clause of the Constitution require that the Saxbe v. Bustos decision be extended to citizens of countries other than those contiguous to the United States?

3. On review of an action by the INS, may a district court substitute its own findings for the findings of an immigration judge?

II.

A "special immigrant" is defined in 8 U.S.C. § 1101(a)(27)(B) as "an immigrant, lawfully admitted for permanent residence, who is returning from a temporary visit abroad". An earlier subsection of Section 1101 defines the term "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". 8 U.S.C. § 1101(a)(20). Under 8 U.S.C. § 1182(c), a "special immigrant" is allowed to enter the United States carrying only an I-151 alien registration card and is not subject to visa or quota requirements.

Both Saxbe v. Bustos, supra, and Gooch v. Clark, supra, were concerned with accommodating the long-standing INS practice of admitting daily and seasonal workers from Canada and Mexico as special immigrants to the requirements of the immigration statute. The primary difficulty in fitting commuter aliens into the special immigrant definition was the requirement that they be returning from a "temporary visit abroad", since they were actually traveling from their unrelinquished homes each night or each season. However, the Supreme Court in Saxbe looked at the grant of special immigrant status for commuter aliens as a gloss on the statutory language of Section 1101(a)(27)(B), based largely on policy reasons behind allowing workers free access across this country's borders. Specifically, the Court pointed to the national desire to maintain friendly relations with Canada and Mexico and to avoid burdening border communities in the United States with immigrants who, without the special status, would be forced to settle in this country to retain their jobs.

The long-standing policy approved in Saxbe as a gloss on the immigration laws had always been narrowly interpreted. Commuter status had been limited to workers from Canada and Mexico because of the economic and political reasons underlying the INS practice. For instance, in Matter of Burciaga-Salcedo, 11 I. & N. Dec. 665 (1966), the immigration authority defined a commuter as: (1) an alien lawfully admitted for permanent residence, (2) regularly employed in the United States (for this purpose, employment was equated with domicile), and (3) residing in foreign contiguous territory. See also, Matter of L., 4 I. & N. Dec. 454, 455 (1951); Matter of Wighton, 13 I. & N. Dec. 683, 685 (1971).

Thus, Saxbe v. Bustos, supra, and Gooch v. Clark, supra, deal with a particular group of immigrants which has been given special consideration by immigration authorities since 1927. Appellee is not a member of that group. First, she does not come to the United States to work. Second, she does not commute daily or seasonally. Her yearly trips to the United States are for the avowed purpose of keeping her alien registration card current. Third, her home is not in a country contiguous to the United States, a prerequisite of alien commuter status.

Appellee claims that this third requirement violates the Equal Protection Clause of the Constitution since it treats different classes of aliens in different ways. However, it is clear that classifications made under the immigration laws need only be supported by some rational basis to fulfill equal protection guarantees. Noel v. Chapman, 508 F.2d 1023 (2d Cir. 1975); Dunn v. Immigration and Naturalization Service, 499 F.2d 856 (9th Cir. 1974). The policy considerations articulated in Saxbe v. Bustos, supra, support special treatment for commuters from Canada and Mexico who are employed in the United States. We find no equal protection violation. 3

III.

In support of the district court's grant of habeas...

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