# In DEPORTATION Proceedings

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## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

MATTER OF C

Y

L

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
1

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.
C
C
, a partnership, and its successor
L
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
L
, 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
T
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
L
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,
C
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.
Register, December 8, 1954, effective January 3, 1955. See footnote 1.
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
L
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
M
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
Y
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.
See also Matter of B
,1 I. R N. Dec. 593 (Nov. 12, 1943) ; Matter
of Mad?
, 1 I. & N. Dec. 682 (Dec. 16, 1943). The special
inquiry officer's decision declares that the basis of these decisions
was the fact that the work to be performed by them was not a type.
which can be considered manual labor. This is where we part
company with the special inquiry officer. Respondents were not
domestic servants. The services performed by them, mass cooking,
baking and supervising in commercial establishments, required ex-'

380

manager of all of the C
and M
restaurants on Guam, and
that at the time of his statement (exh. 4) he was employed by Far
East Trading Company as manager of the Town House Coffee Shop.
At the reopened hearing additional records and testimony were
obtained, and nothing contradicts the record established in the earher hearing. Respondent, testified on June 3, 1958, that he had
at Clark Field in the Philippine Islands as
worked for C
C
cashier, collecting the receipts and disbursing money for wages and
supplies at all of C 's five restaurants at Clark Field from 1946
to 1949.
Respondent was entitled to a finding that he was brought to Guam
for the purpose of being employed in a position which does not fall
under the contract-labor category, and that he is, therefore, entitled to the presumption contained in 8 CFR 4.2(j) as a person who
was lawfully admitted for permanent residence on his arrival on
Guam on March 6, 1951. This is in accordance with the order we
made on August 31, 1956. The order terminating proceedings as to
him was correct .
In summary as to all employees, the record establishes that it was
well understood by the employees and the concessionaires on Guam
that entry was authorized for periods of one year only. No grant
of permanent residence to respondents was made or intended at time
of entry. Counsel's,- continuons objections, that the testimony taken
and evidence adduced were not within the scope of the Board's 1956
order reopening the record, were time consuming and were correctly overruled. The order was, and was intended to be, broad in
its scope and in its interpretation. The record is much more. informative than it was in its previous state.
employees who were admitted by the
and M
The four C
special inquiry officer are, on the average, better documented than
the eight who were not, admitted, but the existence of more documents should not determine their right to remain. No single test
can determine the classification of contract labor, such as, "Does he
perform mental as opposed to menial labor?" We have attempted
to look at all the elements—the documents, the skill, experience and
.

competence of the employee, and the manner in which his talents

were utilized following his admission. The record establishes that
those who were admitted were not supervisory or superior in relation to the others in the group. Appendix I was designed to show
the comparative salaries and job designations of the twelve. All
were supervisory in relation to the Filipino employees and received
three to five times the pay of the kitchen helpers, bus boys and
waiters. Each of the bakers was in charge of a different shift, or
at a different bakery, at least within a few days of his arrival. Each
cook was head cook in a different restaurant. The cooks and bakers
385

The record indicates that respondents all had, and were expected
to have, a certain amount of versatility in the food preparation and
purveying field. The bakers were also qualified as cooks. The
managers were competent to double as cashiers, checkers and waiters.
Several witnesses mentioned that Chinese restaurants are run differently from other restaurants, in that the managers circulate,
sometimes taking the orders and serving the food themselves and
helping with the cleaning-up. Mr. C and Mr. M both testified that a degree of versatility is necessary ia.all lines of work.
There was no painful stratification by "job sheets," as there is in
the Civil Service system. There was considerable travel among the
employees (until these proceedings began), some of them returning
to the Philippines, or taking leave in Hong Kong, and being replaced by others. The nature of C and M 's operations at
that time was fluid, depending on the movement of troops and the
progress of construction work on Guam. Respondents entered Guam
shortly before or during the Korean War. Snack bars and other
installations opened and closed as the need arose.
The special inquiry officer has stated that the best evidence of the
capacity in which the respondents were employed, the purpose for
which they were brought to Guam, ordinarily would be the official
record of arrival, but here there. was no such record so recourse
must be had to such records as there were. Since respondents arrived during an era of impossible record keeping, the best evidence
is the capacity in which they were actually employed either immediately or within a reasonable time after their arrival. The special
inquiry officer quotes Ex parte Kaiehiro Sugimoto, 33 F.2d 926,
aff'd 38 F.2d. 207, cert. den. 281 U.S. 745, and Tulsidas v. In-sular
Collector of Customs, 262 U.S. 258, that "It is his status at the time
of entry, and not that subsequent to entry which controls." In
Tulsidas and Suginwto there is no indication how long after the
aliens' arrivals as laborers that they changed their occupations and
became a merchant and a restaurant keeper. However, the special
inquiry officer has interpreted this rule most rigidly, declaring that
if there was any lapse of time after an alien's arrival before he
was put into a managerial or supervisory position he was not brought
to Guam to be employed in such a position. The special inquiry
officer found in several cases where the aliens were given temporary
jobs until they were permanently assigned, that it was the temporary employment, no matter how brief, which governed the status
in which they entered. He states (p. 37, special inquiry officer's
decision), "If he arrived on Guam on April 3, 1951, for the purpose
of being employed as a waiter, the fact that the next day he was
assigned to work as a cashier would not have made him admissible
on April 3, 1951." In l'ul8idas and Sugimoto the changes were
AR9

APPENDIX I
Y
-K
L-'( Y 9- )
8-949-606

C
F
Nv--(W F
F
1
8-944-636

A
M
T-•(TT-)
8-944-635

Nov. 1948
'125.

Nov. 1948
- 150.

Nor. 1918
- 162.50

Dec. 1948
150.

Dec. 1948

Jam 1949
Asst.
Cook 150.

Jan. 1949
Asst.
Cook 155.

Feb. 1919
Cook 150.

Feb. 1949
Asst.
Cook 155.

Mar, 1949
- 150.

Mar. 1949
155.

Apr. 1011
- 150.

A pr, 1912

135.

-

L
II
(II -L
)
8-944-020

F--1FK
(K
F
)
8-94.1-603

C
It
5-944-025

Dec. 1948

- 102.50

Jan. 1949
Chief
Baker 162.50

155.

May 1949
- 150.
Juno 1995
- 150.

Julie 1949
102.59

July 1999
150.

July 1599
162.50

July 1919
Chief
Cook 162.50

Aug. 1949
195 month)
155.

Aug. 1949
Baker 162.50

Aug. 1949
162.50

;Sept-. 1949
Cook 150.

Sept. 1949
155.

Sept. 1949
162.50

Sept. 1949
Baker 27.08
(5 days)

Oct. 1949
- 150.

Oct. 1999
Cook 158.88

Oct. 1949
Baker 102.50

Oct. 1949
102.56

Oct. 1949
Cook 150.

Nov. 1950
Chief
Baker 120.42
(21 days)

Nov. 1950
Cook 171.13
2 pages

Nov. 1.950
Cook 45.50
(7 days)

Dec. 1950
Chief
Cook 162.75

Dec. 1950
Chief
Baker 170.63

Dec. 1950
(1a month)
Baker 63.

Sept_ 23, 1951

July 12, 1951

Empl.
Contract
Ch. Cook
167.63

Fob. 1951

Empl.
Contract
Ch. Baker
175.75

Cook 150.

Oct. 1951
Chief
Cook 167.63

Feb. tom
Baker 125.

Sept. 21, 1851
Empl.
Contract
Baker 100.

Jan. 16, 1952
Empl.
Contract
Ch. Cook162.25

Feb. 11, 1952
Empl.
Contract
Ch. Cook
175.75

*Proceedings terminated by spec al inquiry officer.

387

Nov. 22, 1951
Empl.
Cnntrnst
Ch. Cook
150.

Nov. 1951
Asst.
Chief
Baker

APPENDIX I—Continued
C-1----L--*
C—)
(L
8-994-627

L
(A

A
•
L -- )
8-999-604

P--C--C—
(L
F
)
8-949-633

C—(2—
N-Y (N )
8-944-611

K—N-(N--K--)
8 914 602

L—W-P--Q--(L :=1 )
8-944-013

Nov. 1950
Manager 110.
Dec. 1959
Manager 110.

Mar. 1951
"in charge"
65.
(25 days)

Dec. 1950
Cook 150.

Mar. 1951
"counter"
temp. assign.
65.
(26 days)

Apr. 1951
Manager 100,

Apr. 1951
85.
(25 lays)

(2 peer5)

May 1951
Manager 110,
June 1951
Manager 13.5.

Oct. 1951
Manager 150.

Oct. 1951
Alanager
16.15
(5 days)

Oct. 1951
At anger
116.87

Nov. 1951
Manager 126.
Jan. 6, 1952

Mar. 6, 1952

ELLIpl.

Erupt.

July 20, 1951

Contract

Contract
Manager 125,

Contract
Manager
1 15.50

Manager 150.

March 6, 1952
Ealpl.
Contract
Manager 170.

Culp].

*Proceedings terminated by special inquiry officer.

388

Apr. 3, 1952
Euipl.
Contract
Manager 140.

May 26, 1552
Empl.
Contract
Ch. Cook
157.50

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Aeoir%3A668b767376b44da9. Public record. Not legal advice.