Gooch v. Clark, 24788

• Decision Date: 01 December 1970
• Docket Number: No. 24788,24791.,24788
• Citation: 433 F.2d 74
• Parties: Joe GOOCH and Rafael Bustamante, et al., Plaintiffs-Appellants, v. Ramsey CLARK et al., Defendants-Respondents. George MEANY et al., Plaintiffs in Intervention-Appellants, v. Ramsey CLARK et al., Defendants-Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

433 F.2d 74 (1970)

Joe GOOCH and Rafael Bustamante, et al., Plaintiffs-Appellants, v. Ramsey CLARK et al., Defendants-Respondents.

George MEANY et al., Plaintiffs in Intervention-Appellants, v. Ramsey CLARK et al., Defendants-Respondents.

Nos. 24788, 24791.

United States Court of Appeals, Ninth Circuit.

September 8, 1970.

Rehearing Denied December 1, 1970.

Sheldon L. Greene (argued), San Francisco, Cal., for Gooch and others.

Donald C. Carroll (argued) and Charles P. Scully, San Francisco, Cal., Woll & Mayer, Washington, D. C., for Meany and others.

Cecil F. Poole, U. S. Atty. and David R. Urdan, Asst. U. S. Atty., Ralph Farb (argued), Stephen Suffin, I. & N. S., San Francisco, Cal., Will Wilson, Asst. Atty. Gen., Charles Gordon, Gen. Counsel, I. & N. S., Washington, D.C., for appellees.

Before HAMLEY, HUFSTEDLER, and WRIGHT, Circuit Judges.

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 commuters", 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 I-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 definition 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 nonimmigrants.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 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 nonimmigrants 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 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.

Section 1181(b) was amended in 1965. The 1952 version did not refer to section 1101(a) (27) (B)...