In DEPORTATION Proceedings

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MATTER OF C

In DEPORTATION Proceedings

A-89,14627

Decided by Board June 10, 1959

Guam—Temporary admissions prior to 1952—Presumption of lawful residence

under 8 CFR 9.2(j) [now 8 CFR 101.1(i)].

Contract laborers—Restaurant manager, supervisory cook and baker not within

definition.

Group of 12 aliens temporarily admitted to Guam prior to 1952 under contract

to food concessionaire to United States Armed Forces, who were intended

for employment in supervisory capacity as restaurant manager, cook, or

baker, whn were occupationally qualified, and who were actually so employed, were not classifiable as contract laborers under the Immigration Act

of 1917. Hence, they are entitled to the presumption of lawful permanent

residence accorded by 8 CFR 4.2(j) [now 101.1(1)].

CHARGE:

Warrant : Act of 1952—Section 241(a) (9) [8 U.S.C. 1251(a) (9)]—Failed to

maintain status—Contract laborer.

BEFORE THE BOARD

Discussion: Respondent is a 38-year-old married male alien, a

native and citizen of China. His last and only entry into the

United States was at the Naval Air Station, Agana, Guam, on

March 6, 1951. On December 9, 1955, the special inquiry officer

ordered respondent deported on the ground that he was a contract

laborer who failed to maintain the status in which he was admitted,

in that he remained in the United States after the date on which

his authorized stay terminated. On appeal, we found that respondent was not a contract laborer and is entitled to the presumption of

permanent residence contained in 8 CFR 4.2(j) 1 [now- 5 CFR

8 CFR § 4.2

Presumption of lawful admission.

An alien of any of the

following - described classes shall be presumed to barn been lawfrilly admitted

for permanent residence within the meaning of the Immigration and Nationality Act (even though no record of his admission can be found, except as

otherwise provided in this part) unless the alien abandoned his status as a

tawfnl permanent resident. or lost such status by operation of law, at some

time subsequent to such admission: * * * (j) Aliens admitted to Guam.

(1)

An alien who establishes that he was admitted to Guam prior to December 24,

1952, by records, such as Service records subsequent to June 15, 1952, records

of the Guamanian Immigration Service, records of the Navy or Air Force, or

records of contractors of those agencies, other than as a contract laborer, was

not otherwise excludable under the Act of February 5, 1917, as amended, and

the,

who continued to re s ide in Guam until Deeember. 21, 1952, regardle:.s

period of time for which admitted,

371

101.1(i)]. On motion of the Commissioner of the Immigration ana

Naturalization Service that the record be reopened for the introduc

tion of additional evidence, we withdrew our order of August 31,

1956, and remanded the record for further proceedings.

On September 3, 1958, the special inquiry officer found that

respondent was brought to Guam for the purpose of boil* employed

as a manager, that this is a position of a "mental nature" and that

he was not, therefore, a contract laborer at the time of his arrival

excludable under section 3 of the Immigration Act of 1917. The

special inquiry officer found that respondent is entitled to the

presumption contained in 8 CFR 4.2(j) and terminated the proceedings against him. The case was certified to the Board. When

these case,= were previously before us we chose C

as the leading case, and the principal decision related to him. Much

of the general testimony and many of the exhibits were entered

by the special inquiry officer in the record under his name and case

number. Therefore, we will continue it as the leading case, even

though proceeding as to him have been terminated.

, a partnership, and its successor

and M

corporation, Far East Trading Company, Inc., were concessionaires

operating restaurants, cafes, snack bars, two (or three) bakeries,

ice cream plants, a milk-bottling operation and maintenance facilities on Army and Air Force installations throughout Guam from

December 1947 until some time in 1953. The record shows that

Mr. C L C had engaged in similar activities in the

Philippine Islands, beginning with his operation of the officers clubs

in Manila in 1919. In 1947, Mr. M was Food Service Director,

United States Army, in the Philippines. During 195:1 they operated

20 such outlets on. Guam and employed probably 300 persons. This

case comes before the Board with a group of similar cases concerning Chinese aliens who were imported into Guam for the purpose of employment by C— and M— , and who are still employed by Far East.

Mr. C

and Mr. M — have both testified that they attempted

at first to operate their concessions on Guam with Filipino and

local labor. After a few months they discovered they were on the

verge of losing their substantial investment and informed the military authorities on Guam that they would he unable to continue

unless they were permitted to import from the Philippines skilled

and supervisory personnel who had b een employed by them in the

past. They were given permission to bring 30 Chinese employees

to tlic island, and military security later increased the allow -able

number to 60. All personnel held permanent residence permission

in the Republic of the Philippines and were screened by Unite

States military authorities before proceeding to Guam. The record

372

show that all respondents had been employed by Mr. C

prior to

coming to Guam, except, perhaps, where the respondent. claims the

record does not accurately describe his experience and employment

history. The employers testify, and we see no reason to question

the reasonableness of their assertions, that. they attempi d to bring

in persons who were experienced bakers, cooks, cashiers, and managers, who would give the operations on Guam the kind of supervision needed, who could purchase and distribute supplies, handle

cash receipts, and instruct and supervise, the. rest of the staff. The

employing corporation lost its concessions with the armed services

in 1953, operations being taken over at that time by the Post Exchange. Respondents are now employed on Guam at restaurants

owned and operated by the former employers.

All of the. aliens included in this group are designated by Far

East as managers, chief cooks, and chief bakers, and have been

paid monthly salaries plus expenses and yearly bonuses from the

time they first came to Guam. The special inquiry officer found

that four of the twelve respondents were riot contract laborers at the

time of entry, and terminated proceedings as to them. Proceedings

, A-8944627 (instant case),

were terminated as to C

, A-8944604. found to

who Was found to be a manager; L

, .A.8944606, found to be a chief cook;

be a manager; Y

, A-8944635, found to be a chief baker. We agree

and T

■ Nith the special inquiry officer that respondent was not a contract

laborer at the time of his arrival and was not, therefore, excludable

on that ground under section 3 of the Immigration Act. of 1917. It

is necessary to determine why the special inquiry officer distinguished

between this respondent and the others as to whom proceedings

were not. terminated.

It is contended by the Immigration and Naturalization Service

that the Immigration Act of 1917, as amended, was applicable to

Guam and constituted the immigration law of Guam, at the time of

respondent's arrival there, even though the statute was not enforced

in that area, and that the aliens, including respondent, necessarily

were brought into Guam under that. law. Section 3 of the Immigration Act of 1917 forbids the importation of contract labor for

permanent residence. 2 However, the 9th proviso to section permits the importation of contract labor for temporary periods. un-

"Oection 0, Immigration Act of 1917, as amended, provider: "That the f,d-

lowing classes of aliens shall be excluded from admission into -United :States:

* * persons hereinafter called contract laborers, who have been induced,

assisted, encouraged, or solicited to migrate to this country by offers or promises of employment, whether such offers or promises are true or false, or in

consequence of agreement, oral, written or printed, express or implied, to perform labor in this country of any kind, skilled or unskine,i *

373

der prescribed rules and conditions. 3 The special inquiry officer

found that because importation of the respondents as contract

laborers for permanent residence was forbidden, necessarily they

were admitted temporarily under the 9th proviso.

Respondent contends that since the record does not show for what

period of time he was admitted nor in what status, necessarily he

was admitted for permanent residence. Counsel argues, first, that

the Immigration Act of 1917, as amended, had no application to

Guam; that it was never enforced in Guam; that the Organic Act

of Guam, effective on August 1, 1950, indicated that the 1917 act

was not intended to apply to Guam; and that respondent was,

therefore, admitted at the time of his first entry for permanent

residence by those responsihle for enforcement of law on Guam.

The special inquiry officer refers to the Penal Code of Guam

which became effective on February 1, 1934 and remained effective

until July 14, 1953. He states that it enumerated in section 175

thereof the classes of aliens who would be excludable from admission into the Island of Guam (exh. SF-1 attached to deposition exh.

R-8). The classes enumerated are similar to those set forth in

section 3 of the Immigration Act of 1917. In addition, subparagraph (k) of section 175 included in the excludable classes,

"All persons who are prohibited by United States law from entering any United States possession." The special inquiry officer concludes from section 175 of the Penal Code that "it is clear that the

applicability of the immigration Act of 1917 to Guam was recognized in the enactment of the Penal Code." The applicability of the

1917 act to Guam was not clearly recognized by the Deputy Chief

of Naval Operations in 1948, nor the Immigration Service. See

discussion of background material in our decision Matter of S—,

3 I. & N. Dec. 589, at 599 and 600 (April 26, 1940). It seems clear

that the exclusion provisions of the Immigration Act of 1917 were

used as a model in the enactment of the Penal Code of Guam, followed for the sake of convenience and consistency.

Section 25(b) of the Organic Act of Guam provided for the

appointment by the President. of the United States of a commission

of 7 persons to ascertain which Federal statutes not applicable to

Guam should be made applicable and which statutes applicable to

Guam should be declared inapplicable. Organic Act of Guam, 64

Shat. *84, section 25(h). A Commission on the Application of

the Federal Laws to Guam was appointed by the President pur- 3 Section 3, Immigration Act of 1917, as amended, provides: "* * Provided

further, [Cl That the CommisNiener of Immigration and Naturalization with

the approval of the Attorney General shall issue rules and prescribe. oonchtiOnS, including exaction of s uch bonds as may he necessary, to control and

regulate the admission and return of otherwise inadmissible aliens applying

ffir temporary atinik.,:ion

•

374

suant to this statute. The findings of this Commission were not

part of the record when this case last came before us, but we rejected counsel's contention at that time that until such a report was

made and acted upon the Immigration Act of 1917 was ineffective in

Guam. The report of the Commission made in 1951 is now part of

the record (exh. R-22A, exh. R-22B, p. 62). The Commission found

that the Immigration Act of 1017 was applicable to Guam and that

there was no need for any change in its applicability. It seems to

us that for the purposes of the present appeals this determination

settles the issue. The 1917 act did apply to Guam, even though

there was no one there to enforce it, and even though a completely

different body of regulations and orders were being enforced. In

Ex parts Rogers, 104 F. Supp. 393 (D.C. Guam, May 9, 1952),

the court held that the Immigration Act of 1917, as amended, is

applicable to Guam; that Guam is included by the definition in

section 1 of that statute; and that the Government of Guam had the

residual authority to enforce the immigration laws of the United

States in default of performance by the United States Immigration

and Naturalization Service.

The special inquiry officer and counsel discuss a number of statutes,

regulations and instructions relating to the control of immigration

into Guam which were effective during the period from 1948 through

1952. In addition to the Immigration Act of 1917 and the Organic

Act of Guam of August 1, 1950, as amended, and the Penal Code

of Guam there were Executive Order No. 8683 establishing naval

defensive sea areas around and naval air space reservations over

the islands of Rose, Tutuila and Guam, signed on February 14,

1941 (exhs. W-1 and W-2 attached to exh. R-7) ; Civil Regulations

with the force and effect of law in Guam, promulgated by the

Acting Secretary of the Navy on August 4, 1947 (exh. W - 5 attached to exh. R-7) ; Agreement Between the United States and the

Republic of the Philippines for the Recruitment of Filipino Laborers

and Employees by the United States Army, effective by exchange of

notes, signed at Manila, May 13 and May 16, 1947 (exh. W-3 attached to exh. R-7) ; CINCPACFLT Instruction 5521.1A, issued

by the Commander-in-Chief, United States Pacific Fleet on November 10, 1952, relating to clearance for travel in the Pacific

and adjacent areas (exh. W-7 attached to exh. R-6) ; and others.

There is extensive testimony on the manner in which the statutes,

regulations and instructions were applied and enforced on Guam

and the procedures followed with respect to the immigration into

Guam during the period from 1948 to 1952. The record coninns

the testimony of Carlton Skinner, Naval Governor of Guam ruin

September 1949 to August 1, 1950, and Civil Governor of Guam

from September 1950 to March 1953 (exh. R-8), Admiral Arthur

375

Radford, Commander-in-Chief, Pacific Fleet, from May 1, 1949, to

July 10, 1953 (exh. R-6), Captain William Mott, Chief International Law Officer in the Office of Judge Advocate General of the

Na vy from 1946 to 1948 and Legal Officer and Island Government

Officer on the staff of the Commander-in-Chief, Pacific, and High

Commissioner of the Trust Territory of the Pacific Islands from

July 1948 to November 1950 (exit. R-7), and others. Apparently

all this testimony is designed to demonstrate that no -one, including respondent, was admitted to Guam for permanent residence.

We concluded in our previous decision (August 31, 1956, withdrawn) that it was possible that respondents were admitted to the

United States as skilled labor under the 4th proviso to section 3

of the 1917 Act:4 We stated that, while it was true that there was

no hearing and determination by the Attorney General prior to the

importation as provided by the 4th proviso, the Immigration

Service was not operating in that area and such a hearing would

not have been possible. On the subject of available labor, the

Department of Labor and personnel of the Government of Guam

wrote, in part, to the United States Department of Justice, Immigration and Naturalization Service, on December 16, 1953:

This is to advise that we have reviewed the petition of C

and M—, Guam, M.I., dated December 16, 1953, regarding the renewal of

petition of alien contract laborers.

According to the records of this office there are no qualified workers available locally.

We found that respondents were admitted to Guam by those who

were at that time exercising the "residual authority" to enforce the

immigration laws, in the absence of the Immigration and Naturalization Service; that they were skilled laborers; and that it might

be presumed that they were admitted for permanent residence under the 4th proviso to section 3 of the 1917 act, if that act was

effective on Guam at the time of their admission.

The record now contains a large amount of evidence establishing

that no aliens or citizens were permitted to enter Guam for the

purpose of establishing permanent residence without having its

first obtained the written permission of the Governor of Guam,

and that it was the policy of the Navy, as well as of the Civil

Government of Guam, to deny admission to Guam for permanent

4 Immigration Act of 1917, section 3, 4th proviso, provides:

"Provided further, [4] That skilled labor, if otherwise admissible, may be imported if labor

of like kind unemployed can not be found In this country, and the question

of the necessity of importing such skilled labor in any particular luz•tance

may be determined by the Attorney General upon the application of any person interested, such application to be made before such importation, and such

determination by the Attorney General to be reached after a full hearing and

an investigation into the factrs of the ease."

376

residence. CINCPACFLT Instruction 5521.1A, November 10, 1052,

provides:

Entrance of non-United States citizens to permanently reside on Guam or the

Trust Territory is contrary to existing policy. Entrance of foreign nationals

to Guam or the Trust Territory on a temporary ur interim basis will be

restricted to very compelling reasons, and then, only under carefully controlled

conditions.

On the basis of this instruction and on the basis of Executive

Order 8683, rules and regulations regulating the entry of nonUnited States nationals into the Island of Guam required that all

entries be by specific permission of the Commander-in-Chief and

were temporary. Aside from security reasons, Admiral Radford

testified that the reason for the restriction on the period of stay

was that after the termination of the military construction program

on Guam, it was not desired that the population of Guam be

expanded permanently. Other witnesses also testified that security

reasons, plus consideration for the civilian native population, required that the large number of aliens brought into Guam in connection with the military construction program be returned to the

point of recruitment. The former Naval and Civil Governor of

Guam, Carlton Skinner, -testified that, to his knowledge, no aliens

were permitted to reside permanently on Guam except for a number of refugee doctors from Europe who were admitted to Guam

about 1950 under the 4th proviso to section 3 of the Immigration

Act of 1917. In a letter dated March 8, 1950, the Commissioner of

Immigration on Guam, E. R. Jones, stated that the laws of Guam

did not provide for the granting of permanent residence on Guam

(exh. R-16).

Documents now in the record which indicate that respondent's

admission into Guam was only temporary, and that this was the

understanding of everyone concerned, include: (1) Requests for

Clearance to Enter Guam (civilian employee) addressed to "Commanding General, Marianas Bonins Command" signed by the Personnel Director of the Marbo Central Exchange all provide that

"Proposed duration of stay on Guam" shall be one year; (2) Employment Agreements between respondents and the employing concessionaire all provide, "Length of Agreement: Your appointment

is for a period of one (1) year from date of this agreement, unless

terminated sooner by the Concessionaire"; (3) Marbo Central Exchange Officer at Guam on May 12, 1952, requested the Commissioner of Immigration for the Philippines to extend the reentry permits for some of respondents for another year, because they desired

to renew their employment agreements on Guam (Sec PC

, A—S944633, record, exh. R-1) ; (4) Memorandum, .Tune 27,

1951, from the Marbo Central Exchange Officer concerning "Emoi l

'g971 2—R1

9,1

ployment of Aliens by Civilian Concerns after Termination of

Employment with Marbo Central Exchange" (exli. R-13F) states

that Command policy prohibits the release of Filipino or Chinese

nationals to civilian concerns after termination or breach of contract and that all such personnel must be returned to point of

origin upon separation from the Command. This memorandum

states further that in accordance with policy established by COMNAVMAR, Chinese nationals who take leave to China and for the

Philippines will not he permitted to return to Guam; (5) A letter

of September 8, 1947, from Brigadier General Farthing to the

Hon. C. A. Pownall, Governor of Guam, requesting reconsideration

for the entry of certain Chinese nationals (description clearly relates to a group such as respondents) for a period not to exceed

one year, and concludes with a clause which appears several places

in the record: "With this control there could be no problem of colonization" (exh. R 13E) ; (6) A memorandum of August: 9, 1949,

from the Acting Attorney General of Guam to the Civil Administrator concerning a request for permanent residence status states

that the Naval Government of Guam discontinued such grants

"over one year ago and the renewed use of this grant now is not

considered timely" (exh. R-11). These and other documents, and

the testimony of the witnesses referred to above, discussed in more

detail by the special inquiry officer, establish that respondents were

not. admitted for permanent residence upon arrival on Guam under

any provision of law.

In the meantime large numbers of construction workers were imported into Guam by the Armed Services and by private companies

operating under contracts with the United States Government. The

Immigration Service has stated that there are, or were when the

present proceedings began, 12,000 alien workers on Guam. Counsel

attempted to demonstrate that there have been exceptions to the

procedures provided; that there were some persons admitted for

permanent residence on Guam; and that groups were brought into

Guam without the permission or knowledge of the Immigration

Department of the Government of Guam. Juan L. Gumataotao, the

Customs arid Immigrant Inspector under the Naval Government of

Guam from April 16, 1947, to August 1, 1950, and Supervisory

Immigration Officer under the Territorial Government of Guam

from August 1, 1950, to August 10, 1950, testified that the Armed

Forces brought labor into the Island in large numbers without his

seeing or approving the admission. Confusion arose from exceptions made in behalf of civilian contractors and their employees

traveling under orders issued by the Armed Forces. Mistakes or

exceptions may have been made, and they would be almost unavoidable in as large an undertaking as the construction on Guam under

378

wartime conditions . 5 Fvon sn, we fail to so.e. that such mistakes and

exceptions affect the status of respondents in the present proceedings, whose position must continue to remain peculiarly their own.

On June 16, 1952, the Immigration and Naturalization Service

opened an office on Guam and assumed the responsibility for administering immigration laws in the area. The Immigration and

Nationality Act of 1952 clearly includes Guam. The Immigration

and Naturalization Service, following the policy pursued by this

Government when the Service commenced operations in the Virgin

Islands, purported to presume lawful admission for aliens in Guam

but made an exception of "contract laborers," by 8 CFR 4.2(j), Fed.

Following the release of our previous decision on August 31, 1956,

8 CFR 4.2(j) was amended on October 26, 1956.6 The special inquiry officer's excellent statement on the effect of this amendment,

with which we concur, is, in part, as follows:

While the purpose of the amendment of 8 CFR 4.2(j) is obvious, the effect

of the amendment of the regulation on the respondents herein is not so readily

apparent. The residence status of all of the respondents was presented to

this Service for adjudication prior to the amendment of the regulation on

October 26, 1956. If the respondents became entitled to status as permanent

residents under 8 CFR 4.2(j) in the form in which it was originally published

on December 8, 1954, it is not deemed that they would be divested of their

right to such status by rcaon of the amendment of the regulation on October

26, 1956. There is nothing in the amended regulation to indicate that it was

intended to have retroactive effect. In the absence of such indication the

amendment, under the general rule of statutory construction, may be applied

retrospectively if it relates to matters that are remedial or procedural but not

if vested rights are involved. * * * It is noted also that there is nothing in

the regulation which would permit any rebuttal of the so-called "presumption"

since the right to permanent residence status would automatically vest in

any alien who met the description of any of the classes enumerated in the

regulation. Determination of the status of the respondents under 8 CFR

4.2(j) will, therefore, be made on the basis of that regulation as it existed

prior to its amendment.

Korean War—June 25, 1950, to July 27, 1953 (Armistice signed).

CFR §4.2(j), as amended October 26, 1956: "(j) Aliens admitted to

01411,1(t. (1 ) Au alien who establishes that he was 219tultlet1 to Guam prior to

December 24, 1952, by records, such as Service records subsequent to June 15,

1952, records of the Guamanian Immigration Service, records of the Navy or

Air Force, or records of contractors of those agencies; that he was not exciudahie under the Act of reuruary P 1917, as amenaea; anu that he continued to reside in Guam until December 24, 1952, and thereafter has not

been admitted or readmitted into Guam as a nonimmigrant: Provided, That

the provisions of this subparagraph shall not apply to an alien who was

exempted from the contract la9orer provision of section 3 of the Immigration

Act of February 5, 1917, as amended, through the exercise, expressly or nu68

pliedly, of the 4th or 9th provisos to section 3 of the said act."

379

Radford, Commander-in-Chief, Pacific Fleet, from May 1, 1949, to

July 10, 1953 (exh. R-6), Captain William Mott, Chief International Law Officer in the Office of. Judge Advocate General of the

Navy from 1946 to 1948 and Legal Officer and Island Government

Officer on the staff of the Conimander-in-Chief, Pacific, and High

Commissioner of the Trust Territory of the Pacific rslands from

July 1948 to November 1950 (exh. R-7), and others. Apparently

all this testimony is designed to demonstrate that no-one, including reSpondent, was admitted to Guam for permanent residence.

We concluded in our previous decision (August 31, 1956, withdrawn) that it was possible that respondents were admitted to the

United States as skilled labor under the 4th proviso to section 3

of the 1917 Act. 4 We stated that, while it was true that there was

no hearing and determination by the Attorney General prior to the

importation as provided by the 4th proviso, the Immigration

Service was not operating in that area and such a hearing would

not have been possible. On the subject of available labor, the

Department of Labor and personnel of the Government of Guam

wrote, in part, to the United States Department of Justice, Immigration and Naturalization Service, on December 16, 1953:

This is to advise that we have reviewed the petition of C

and M---, Guam , M 1_, dated December 16, 1953, regarding the renewal of

petition of alien contract laborers.

According to the records of this office there are no qualified workers available locally.

We found that respondents were admitted to Guam by those who

were at that time exercising the "residual authority" to enforce the

immigration laws, in the absence of the Immigration and Naturalization Service; that they were skilled laborers; and that it might

be presumed that they were admitted for permanent residence under the 4th proviso to section 3 of the 1917 act, if that act was

effective on Guam at the time of their admission.

The record now contains a large amount of evidence establishing

that no aliens or citizens were permitted to enter Guam for the

purpose of establishing permanent residence. without having

first obtained the written permission of the Governor of Guam,

and that it was the policy of the Navy, as well as of the Civil

Government of Guam, to deny admission to Guam for permanent

4 Immigration Act of 1917, section 3, 4th proviso, provides:

"Provided further, [4] That skilled labor, if otherwise admissible, may be imported if labor

of like kind unemployed can not be found in this country, and the question

of the necessity of importing such skilled labor in any particular instance

may be determined by the Attorney General upon the application of any person interested, such application to he made before such importation, and such

determination by the Attorney General to he reached after a full hearing and

an investigation into the facts of the case."

376

perienee, skill and administrative capacity, as lie recognized when

he admitted four of the twelve.

The special inquiry officer found with regard to Y

A-8944606 ; "as a chief cook the work to be performed by the respondent was primarily supervisory or administrative, although it

undoubtedly also involved a certain amount of cooking." We find

that all the cooks, bakers and managers are entitled to the same

finding.

The available payroll information is tabulated for the purpose of

ascertaining the comparative salaries during the same period. See

Appendix I. The cooks received approximately the same salaries.

They were first admitted to Guam at salaries of $125 to $150 a month

except L H , A-8944626, who was both a cook and baker and

was paid $102.:50 from the beginning. The managers received $90

and $100 a month. The three bakers were paid the most—$125,

$150, and $170 a month during this period. They also received all

living and medical expenses Mr M

testified that, respondents

were paid by their contracts a yearly bonus equivalent to one month's

salary. Mr. C testified that the supervisory employees were to

be paid such bonuses in lieu of overtime payments, and depending

on whether the company showed a profit. The non-supervisory employees the waiters, busboys, kitchen helpers received $35 and $40

a month, plus living expenses. Mr. C

testified that he would not

have paid managers' salaries to waiters and that the wage scale

paid in his establishments was comparable to that paid by other

employers in the area.

The cashiers were to account each day for the tickets, and to

receive money, to be responsible for the correct charging of articles

sold and for cash and daily records and reports. Sometimes they

acted as assistant, managers, or managers and were responsible for

the manager's fund of two to five hundred dollars which was used

for the purchase of necessary items, and for monitoring the work of

other employees. Respondents all had some responsibility for training the helpers and apprentices under them, although at the reopened hearings they all felt it necessary to emphasize these activities and to discount any actual cooking or other physical endeavor.

Considering the emphasis on titles in these cases it is understandable. Mr. Karl Giesemlorfer, Security Supervisor for the Army

and Air Force Exchange Service on Guam from July 1948 to January 1958, testified that after C

and M lost its concessions

with the Marbo Central Exchange, it was one of his duties to organize the food services for the Exchange. He took over the Filipino personnel of C and M to operate the food service

organization, and he stated that these people had all been trained

by the Chinese employees of C and M

381

ployment of Aliens by Civilian Concerns after Termination of

Employment with Marbo Central Exchange" (exh. R-13F) states

that Command policy prohibits the release of Filipino or Chinese

nationals to civilian concerns after termination or breach of contract and that all such personnel must be returned to point of

origin upon separation from the Command. This memorandum

states further that in accordance with policy established by COMNAVMAR, Chinese nationals who take leave to China and for the

Philippines will not he permitted to return to Guam; (5) A letter

of September 8, 1947, from Brigadier General Farthing to the

Hon. C. A. Pownall, Governor of Guam, requesting reconsideration

for the entry of certain Chinese nationals (description clearly relates to a group such as respondents) for a period not to exceed

one year, and concludes with a clause which appears several places

in the record: "With this control there could be no problem of colonization" (exit. R 13E) ; (6) A memorandum of August 9, 1949,

from the Acting Attorney General of Guam to the Civil Administrator concerning a request for permanent residence status states

that the Naval Government of Guam discontinued such grants

"over one year ago and the renewed use of this grant now is not

considered timely" (exh. R-1I). These and other documents, and

the testimony of the witnesses referred to above, discussed in more

detail by the special inquiry officer, establish that respondents were

not admitted for permanent residence upon arrival on Guam under

any provision of law.

In the meantime large numbers of construction workers were imported into Guam by the Armed Services and by private companies

operating under contracts with the United States Government. The

Immigration Service has stated that there are, or were when the

present proceedings began, 12,000 alien workers on Guam. Counsel

attempted to demonstrate that there have been exceptions to the

procedures provided; that there were some persons admitted for

permanent residence on Guam; and that groups were brought into

Guam without the permission or knowledge of the Immigration

Department of the Government of Guam. Juan L. Gumataotao, the

Customs and Immigrant Inspector under the Naval Government of

Guam from April 16, 1947, to August 1, 1950, and Supervisory

Immigration Officer under the Territorial Government of Guam

from August 1, 1950, to August. 16, 1950, testified that the Armed

Forces brought labor into the Island in large numbers without his

seeing or approving the admission. Confusion arose from exceptions made, in behalf of civilian contractors and their employees

traveling under orders issued by the Armed Forces. Mistakes or

exceptions may have been made, and they would be almost unavoidable in as large an undertaking as the construction on Guam under

378

radical—from laborer to merchant and restaurant keeper. In the

instant cases, the changes were only of a degree. We must look at

the actual work done by respondent, the manner in which he was

employed from the time of his arrival to determine the true capacity

in which he was to be used. Suppose that a group of illiterates was

imported into Guam, all accidentally designated ahead of time as

"inamtgem", suppose further, that following their arrival they were

found to be incompetent and were demoted to sweepers the next day.

Would it still be contended that the original erroneous designation

controls? An employee of C and M— may have been assigned for a few weeks immediately following his arrival on Guam

to work as "counterman" in the same establishment where he became

manager the following month, but this does not mean that he entered as a laborer. Most of these people were coming to Guam as

replacements for those who were returning to the Philippines, or

going on leave. One of the personnel people testified that their

principal problem was one of "home sickness," and that many of

the employees refused to stay on Guam more than three years. It

would seem almost inevitable that a new "manager" or even chief

cook or baker might break in on a new job under the direction of

the departing supervisor.

The records relating to respondents are sparse, partly due to the

fact that prior to the arrival of the Immigration and Naturalization Service on Guam in 1952 immigration records were kept in a

less precise manner than has been customary under the aegis of the

Service. It is also alleged that many of the records of C

and

were destroyed in a typhoon, and that they have moved their

offices on Guam many times. Exhibit R-23 is a list of respondents

and the wages shown by the first monthly sheets following their

entries into Guam. This list carries a note to the effect that the

first pay sheets have been turned over to the "United States Immigration, Agana, Guam," as exhibits during the previous trial. There

was considerable discussion as to whether or not these pay sheets

were turned over to a representative of the Immigration Service,

and, if so, their ultimate disposition. So far as we can discover,

there is no conclusion as to whether or not the Immigration Service

actually received these records, or as to the disposition of them if

they did exist.

There are the following kinds of records:

(1) Application and Personal History sheets. Mr. C

testified

that the information forms for each employee were probably filled

out by V

in the Philippines, although the individuals

, and Nat (lie fact that the form

were hired personally by Mr. C

shows that the respondent was entering Guam in the position of

checker is not necessarily conclusive that that is the capacity in

which ho was employed.

383

The special inquiry officer found that four of respondents, including C Y L , were not contract laborers and, therefore, became entitled to the presumption of lawful admission provided by regulation, but that eight others of this group were contract laborers under the law and hence within the exception. Although the language of the statute forbidding the importation of

aliens under contract- "to perform labor in this country of any kind,

skilled or unskilled" is broad, the tendency of the cases has been to

reduce its application. The rule usually cited is from Ex parte

Gouthro, 296 Fed. 506 (E.D: Mich., 1924) (aff'd United States. v.

Gouthro, 8 F.2d 1023 (C.A. 6, 1925)), as follows, at p. 509:

Tt must now be regarded as settled that the purpose of Congress in enact

lug this so-called "contract labor" legislation was to prevent the importation

into this country of an ignorant, servile class of foreign laborers, to work at

a low rate of wages, and thus reduce other laborers engaged in like occupations to the level of the aosioted immigrant; and this provision of the statute

does not refer nor apply to persons whose work requires mental, rather than

merely manual, effort as its dominant element.

Church of Holy Trinity v.

United States, 143 U.S. 457, 12 Sup. Ct. 511, 36 L. Ed. 226; United States v.

Lazes, 163 U.S. 258, 16 Sup. Ct. 998, 41 L. Ed. 151; Settarrenberg v. Dollar

Steamship Co., 245 U.S. 122, 38 Sup. Ct. 28, 62 L. Ed. 189; Gay v. Hudson

River Electric Power Co., 178 Fed. 499; Tatsukichi Kuwabara v. United States,

260 Fed. 104, 171 C.C.A. 140 (C.C.A. 9) ; United States v. Union Bank of Canada., (C.C.A. 2) 202 Fed. M, 8 1438; Ea parte Aird, (D.C.) 216 Fed. 904.

Gouthro held that a Western Union Telegraph operator was not a

contract laborer. Aird held that a "class A draftsman" employed

by Bethlehem Shipbuilding Corp. was not a contract laborer. We

followed these cases in Matter of S , 1 I. & N. Dec. 196 (Feb.

19, 1942). We pointed out that the Immigration and Naturalization Service has held that professional tennis, football, baseball,

hockey and soccer players, and professional boxers, are not contract

laborers. In that case we held that a ski instructor was not a con

tract laborer. In Matter of MeL ,1 I. 8.7, N. Dec. 264 (June 20,

1042), we stated that the Immigration and Naturalization Service

has held further that race track jockeys, race track starters, horse

grooms and trainers are not contract laborers. We held that a

hockey player, temporarily employed in a supervisory or administrative capacity at a public golf course, was not a contract laborer.