SAXBE V. BUSTOS

• Citation: 419 U. S. 65
• Decision Date: 25 November 1974
• Court: United States Supreme Court

Saxbe v. Bustos

No. 73-300

Argued October 17, 1974

Decided November 25, 1974*

419 U.S. 65

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Syllabus

Some aliens who live in Mexico and Canada commute to work in the United States. The Immigration and Naturalization Service has approved this practice with respect to both daily and seasonal commuters, and has classified such aliens as immigrants "lawfully admitted for permanent residence" who are "returning from a temporary visit abroad," a category of "special immigrant" defined by the Immigration and Nationality Act, 8 U.S.C. § 1101(a) (27)(b). Those with that classification have freedom from usual documentation and numerical requirements and from the labor certification requirements of 8 U.S.C. § 1182(a)(14). Certain farmworkers and a collective bargaining agent for farmworkers brought this suit for declaratory and injunctive relief against the practice of thus classifying such alien commuters. The District Court dismissed the action. The Court of Appeals upheld the classification as to daily commuters but rejected it as to seasonal commuters.

Held: Alien commuters are immigrants who are "lawfully admitted for permanent residence," and are "returning from a temporary visit abroad" when they enter the United States, and this "special immigrant" classification is applicable to both daily and seasonal commuters. This has long been the administrative construction of the statute in the context of alien commuters, a factor which must be accorded great weight when, as here, Congress has considered the subject and has not seen fit to alter the administrative practice. P P. 69-80.

156 U.S.App.D.C. 304, 481 F.2d 479, affirmed in part and reversed in part.

DOUGLAS, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, POWELL, and REHNQUIST, JJ., joined. WHITE, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined, post, P. 80.

Page 419 U. S. 66

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. § 1181(b). The regulations [^{Footnote 1}] 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

Page 419 U. S. 67

regard to numerical limitations [^{Footnote 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", [^{Footnote 3}] and it defines "immigrant" as every alien who cannot bring himself into an enumerated class of nonimmigrants. [^{Footnote 4}] One class of nonimmigrants [^{Footnote 5}] 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. [^{Footnote 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." [^{Footnote 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." [^{Footnote 8}] One who so qualifies is excluded

Page 419 U. S. 68

from the labor certification provisions in 8 U.S.C. § 118(a)(14). [^{Footnote 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. [^{Footnote 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 reenter 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 [^{Footnote 11}] for declaratory and injunctive

Page 419 U. S. 69

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." [^{Footnote 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 conclusion

Page 419 U. S. 70

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 Act [^{Footnote 13}] which, in the much-discussed subsection (15)(H)(ii), provides that one category of alien nonimmigrant 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. [^{Footnote 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 Service [^{Footnote 15}] 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

Page 419 U. S. 71

period of his service is limited. To repeat, the Act provides that

"[e]very 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). [^{Footnote 16}]"

Before an alien can be classified as a nonimmigrant 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. [^{Footnote 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), [^{Footnote 18}] that is, whether commuters are "lawfully admitted for permanent residence" when they...