SAM ANDREWS'SONS v. Mitchell, 71-2015.

• Decision Date: 17 March 1972
• Docket Number: No. 71-2015.,71-2015.
• Citation: 457 F.2d 745
• Parties: SAM ANDREWS' SONS, etc., Plaintiff-Appellant, v. John N. MITCHELL et al., Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

457 F.2d 745 (1972)

SAM ANDREWS' SONS, etc., Plaintiff-Appellant, v. John N. MITCHELL et al., Defendant-Appellee.

No. 71-2015.

United States Court of Appeals, Ninth Circuit.

March 17, 1972.

Ronald H. Bonaparte (argued), Haight, Lyon & Smith, Los Angeles, Cal., for plaintiff-appellant.

Joseph Sureck (argued), Regional Counsel, San Pedro, Cal., John N. Mitchell, U. S. Atty. Gen., Washington, D. C., Raymond F. Zvetina, Asst. U. S. Atty., San Diego, Cal., for defendant-appellee.

Before CHAMBERS, WRIGHT and CHOY, Circuit Judges.

CHOY, Circuit Judge:

Appellant Sam Andrews' Sons, a partnership, grows lettuce and melons in the Imperial Valley, California. Ninety-five per cent of its work force consists of aliens who commute daily from their homes in Mexico, entering the United States on the authority of "green cards," Form I-151, issued pursuant to 8 C.F.R. § 211.1(b) (1).¹ This regulation, issued by the Attorney General pursuant to the rule-making authority vested in him by 8 U.S.C. § 1103(a), also provides that the green cards may not be used to secure entry into the United States when an immigrant alien reenters the United States with the intention of accepting or continuing employment at a place of business where the Secretary of Labor has determined that a labor dispute exists.²

On June 26, 1970, the Secretary of Labor certified that a labor dispute was in progress at appellant's place of business. Subsequently, officers of the Border Patrol visited appellant's fields and interviewed its employees with the apparent purpose of determining which, if any, of them were using their green cards contrary to the regulation. Those found in violation of the regulation were warned that their green cards would be revoked if they were again detected working in appellant's fields. Since these visitations, many of appellant's employees have quit, and appellant has been forced to hire less experienced and more costly personnel.

Appellant then brought this action seeking a declaratory judgment that the regulation was invalid and a preliminary and permanent injunction against its enforcement. The District Court held that appellant has standing to prosecute this action, a determination which is not contested on appeal. The District Court then upheld the validity of the regulation, holding that while resident aliens and commuter aliens have a coincidence of status, "resident aliens in addition to status have established a presence in the country. . . . Not only does such residence carry with it a constitutional standing that the commuter does not possess, but the lack of actual residence serves as a differentiating factor upon which the Attorney General, in exercising his discretion, may rationally rely in more stringently controlling the use to which commuters may put their green cards." 326 F.Supp. 35, 39 (S.D., Calif., 1971) (emphasis in original).

Sam Andrews' Sons appealed. We need not decide whether the regulation violates the Constitution, for we hold that it is invalid as an abuse of the discretion committed to the Attorney General.³

We last considered 8 C.F.R. § 211.1(b) (1) in Gooch v. Clark, 433 F.2d 74 (9th Cir., 1970), cert. denied, Gooch v. Mitchell, 402 U.S. 995, 91 S.Ct. 2170, 29 L.Ed.2d 160 (1971), where we found that the green card system is authorized by the Immigration and Naturalization Act, and 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 special immigrant is admissible under the informal documentation requirements authorized by 8 U.S.C. § 1181(b), and exempt from the labor certification provisions of 8 U.S.C. § 1182(a) (14). We did not, however, specifically rule upon the labor dispute regulation now before us.

The Attorney General has been granted discretionary power to make rules to administer the Immigration and Naturalization Act. His regulations must be upheld if they are founded "on considerations rationally related to the statute he is administering." Fook Hong Mak v. Immigration and Naturalization Service, 435 F.2d 728, 730 (2nd Cir.,1970). See Boske v. Comingore, 177 U.S. 459, 470, 20 S.Ct. 701, 44 L.Ed. 846 (1900). However, this labor dispute regulation and the Government's interpretation and application of it creates two distinctions: first and primarily, the distinction between the commuter who works for a certified employer and the commuter who does not; and second, the distinction between the commuter and otherwise similar § 1101(a) (27) (B) immigrants who permanently reside in the United States. Neither of these distinctions is rationally related to the administration of the Immigration and Naturalization Act.

Neither distinction can be justified by 8 U.S.C. § 1182(a) (14), which provides that alien workers may not enter the United States unless the Secretary of Labor has certified that their presence will not adversely affect the United States labor market.⁴ This statutory provision is not applicable to § 1101(a) (27) (B) special immigrant. In addition, it applies only to initial entry into the United States, not to reentry. Nothing in the statute or its legislative history supports continuing regulation of alien laborers by the Secretary of Labor or by the Attorney General. Cermeno-Cerna v. Farrell, 291 F.Supp. 521, 528 (C.D., Cal., 1968). Congress empowered the Secretary and the Attorney General to regulate the initial entry of an alien into the United States, but once a commuter has been lawfully admitted, he may "make regular entrances into the United States as an immigrant `lawfully admitted for permanent residence, who is returning from a temporary visit abroad.'" Gooch, supra, 433 F.2d at 81.

There is nothing in the statute or its legislative history intimating that Congress intended the green card system to be used as a means of Government intervention in domestic labor disputes. And yet this regulation enables the Secretary of Labor to certify that a labor dispute is in progress and thus effectively eliminate an employer's entire commuter work force. The regulation provides no procedure for obtaining a certification, no hearings for either union, employer, or employees, no standards to guide the Secretary in issuing certification.

Although the regulation purports to apply to reentering green card holders at the border, as actually applied, it is operative only when a commuter has reentered the United States and is on the job. If he is working for an uncertified employer, he may use his green card and is unmolested. If he is working for a certified employer, however, he is warned to quit his job or face the loss of his green card. There is nothing in the statute authorizing the Secretary or the Attorney General to determine where a commuter may or may not work.

Nor may either distinction be justified as a valid exercise of the Attorney General's discretion. There is no rational basis to distinguish between commuters and resident § 1101(a) (27) (B) immigrants. As the...