Amicus Curiae Brief — Saxbe v. Bustos
Supreme Court brief1974
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SUPREME COURT. | ue ty
Supreme ‘Court of th of the Unite
‘October Term, 1973
No. 73-480
~ Cuustosat ee amigg et at
No. 73-300
_-Buuor Cs RICHARDSON, arse General, et al,
_. Petitioners,
: a
eet ay et ai
‘
Bo Secpee b> ace
‘Bilt one Merits of American Farm Barean Feders:
ys,
Cross-Petitioners.
oo
a
SUBJECT INDEX
Page
Interest Of Amici Curiae -........-2---<cc-cooco-n-ceeseoennoes 1
SRS OE PP IOUIOO, eisai inc csniceiccaianemioienseinneen 3
PE ee coat coco chiciealseu associa dunicecplasoeanumaalanaciaas 5
An Order That the Petitioner Classify as Nonim-
migrants All Lawful Permanent Resident
Aliens Who Are Employed in the United
States, Have Their Families Reside in Mexico,
and Visit Their Families Daily or Seasonally,
i . eeteemaiibrar enaereronnetienaces Women
A.
B.
Respondents Seek Such an Unlawful
Order From TRIG COU: once ccccccscsssssneys
Any Affirmation of the Order Made by
the Circuit Court Below, or the Granting
of the Order Requested by Respondents,
Would Violate the Legislative Intent of
Congress as Shown by Its Ratification
of Past Policy of the Immigration and
NatureligtiOt SOU VIOE nnncencesccensereeessesenty
5
Congress Has Ratified the Present Polio’
of the Service to Allow Lawful Perma-
nent Resident Aliens Who Are Employed
in the United States but Whose Families
Live in Mexico or Canada the Privilege
of the Informal Documentary Waiver
Provisions of 8 USC 1181(b) and 8 CFR
PAGE Sf 5 @ 4 Regomsntemme namenn ramtintonimesrs ence As IY
Recent Court Decisions Would Allow the
Equation of Employment With Residence
for the Purpose of Defining Aliens With-
ing the Coverage of 8 USC 1101(a)
88. | MagMeiole eire ct SSA ian a eben
13
Page
E. The Order by the Court Below and/or the
Order Proposed by Respondents That the
Immigration Service Classify as Nonim-
migrants All Lawful Permanent Resident
Aliens Who Are Employed in the United
States, Have Their Families Residing in
Mexico and Visit Them Daily or Season-
ally, Would Violate the Procedural Due
Process Rights of the Aliens Affected ...... 17
II.
The Policy of the Attorney General of Classify-
ing Lawful Permanent Resident Aliens Into +
Commuters and Noncommuters for Purposes
of Enforcing the Immigration Act, Is Unlaw-
Re acc Lnnenicscincnnsiliied deceit gistikoiekissuaaoessad 20
Ill.
Daily or Seasonal Visits by Lawful Permanent
Resident Aliens, Who Are Employed in the
United States, to Their Families Who Reside in
Mexico, Are Not Departures From the United
States Which Can Be Regarded as Meaning-
fully Interruptive of the Aliens’ Permanent
MD a 23
CO ie ea 30
Appetit, 22 CO AGAMA ok... App. p. 1
ea 3
S See Leerer terte) ok... 4
es ee ee a 4
cE > RGIS Eee occa CP Repa iba anne oe 5
CO Se a 6
BE Ts 8s SISOS Shien or se ye cei omer 5 ee 11
De etic cence en. 11
Report From the Committee on the © to
Accompany H.R. 98, September 11, 1973 .... 17
RIES ATEN MOOSE E LES ERED IEE OLLIE IIE RET T OO SHI NARA TE EAL A EES EE OLN TT
ili.
TABLE OF AUTHORITIES CITED
Cases Page
Barrese v. Ryan, 203 F.Supp. 880 (Dist. Conn.
| Sg OR EP RCD a TET SPO NRE Oe RTE Ne ONCE E 15
Breen ¥. Wiest, S26 U.S. VSS ncceccnnesccncccnssnesn 19, 22
Burciaga-Sa!cedo, Matter of, 11 I&N Dec. 665 .... 6
““Biystos v. Mitchell, 481 F.2d 479 (D.C. Cir. 1973)
ere a a 1
Cermeno-Cerna v. Farrell, 291 F.Supp. 521 (C.D.
ise ics es 15
Fook Hong Mak v. Immigration and Naturaliza-
tion Service, 435 F.2d 730 (2nd Cir. 1970) .. 21
Gamero v. Immigration and Naturalization Service,
Los “Angeles Dist., 367 F.2d 123 (9th Cir.
ES sects ie isich esieeiaeadae coed basis canstohedadcaantiaens a
Git Foo Wong v. Immigration and Naturalization
Service, 358 F.2d 151 (9th Cir. 1966) .......... -_
Gooch v. Clark, 433 F.2d 74 (9th Cir. 1970)
ih kai iliibendiinincadinlapiieessipelildnlavbuiaidioentes 10, 14, 20, 21
Graham v. Richardson, 403 U.S. 365 ............ 19, 22
Harisiades v. Shaughnessy, 342 U.S. 580 (1952) .. 22
Hoffman-Arvayo, Matter of, Int. Dec. #2095
Be 2 SNOT EN UCRY fe SL RERRRNT De 7 Os OE 28
Itzcovitz v. Selective Service Local Bd., No. 6,
N.Y., N.Y., 447 F.2d-888 (2d Cir. 1971) ...... 26
Japanese Immigrant Case, 189 U.S. 86 (1903) .. 18
Janati-Ataie, Matter of, Int. Dec. #2170 (1927) .... 27
Karnuth v. United States ex rel. Albro, 279 U‘S.
4 RE Ge n't aetna EEO RRC Se AEE G ORE OMEN OST 11
‘Kowng Hai Chew v. Colding, 344 U.S. 590 (1952)
iv.
Page
Lesto v. Day, 21 F.2d 307 (2nd Cir. 1927) .......... 10
Lindberg v. Brenner, 399 F.2d 990 (D.C. Cir.
1968) .. 14
Massachusetts Trustees of Eastern Gas & Fuel As-
sociate v. United States, 377 U.S. 235 (1964) .. 14
Rosenberg v. Fleuti, 374 U.S. 449 ....4, 28, 24, 28, 29
Sam Andrews’ Sons v. Mitchell, 457 F.2d 745. (9th
CO TRFE ee nes) Noma. AG May 2 |
Serpico v. Trudell, 46 F.2d 669 (D.C. Vt. 1928) .. 11
Tejada v. United States Immigration & Naturaliza- |
tion Serv., 346 F.2d 385 (9th Cir. 1965) .......... 15
Toon-Ming Wong v. Immigraiion and Naturaliza-
tion Service, 363 F.2d 234 (9th Cir. 1966) .. 25
Transatlantica Italiana v. Elting, 66 F.2d 542 (2d
OO Fee cies teeneeaies 10
United States v. Lehmann, 239 F.2d 663 (6th Cir.
3} septs ane Pree a Naan e rare ipciliniiens 16
Wadman v. Immigration and Naturalization Service,
wate ts eee. ae... 25
Whitfield v. — 22 Fed. 745 (8th Cir. 1915)
SECT PD RG ad etn elder PEN ed 18
Zimmerman v. Lehmann, 339 F.2d 943 (7th Cir.
1965) - cddiddiecekisnsanies 25
es Miscellaneous
Genet Geter Me. 86 Hi, 13
pe | SaReidmcoman ss Reema ov. vee Oe 14
House Report 982 Pm ee aaa : 14
:asanEEREREEEEEEEEeeeeeen
V.
Statutes Page
Code of Federal Regulations, Title 8, Sec. 211.1
hE A eae ate ee sober nae ee ee 4.12, 13, 15; 2, 22; 3
Code of Federal Regulations, Title 22, Sec. 42.-
SO scab tinsecseeareiecacpantnaeieniaaiaiis tide a linidiomedalneie $
Immigration and Nationality Act, Sec.’ 4(b) ....10, 13
Immigration and Nationality Act, Sec. 101(a) (13)
Immigration and Nationality Act, Sec. 244(a) er
United States Code, Title 8, Sec. ee ‘
United States Code, Title 8, Sec. 1101(a)(20) .. 29
United States Code, Title 8, Sec. 1101(a)(27)(b)
siccepabislintiars 4, 13, 15, 16, 18, 20, 21, 22, 29, 30
United States Code, Title 8, Sec. 1181(b) ......4, 13
Pee a ES ts i SER ....15, 20, 29, 30
TGS) picts cnemnecccapeeceniiictatnaeidalapneinecnrhempnnevinatiies 25
Textbooks
“Aliens in the Fields: The ‘Green Card Commuter’
Under the Immigration and Naturalization Laws”,
21 Stanford Law Review (1969), p. 1750 ...... 10, 14
Computers, Illegals and American Farm Labor Prob-
lem, 48 New York University Law Review, pp.
YRS aes Reiger tate else aot) read ee CLO a ae
Gordon & Rosenfield, Immigration Law and Proce-
aed. Bi BATS) sctientecndiscicinienticnncicn 5
vi.
Page
48 New York University Law Review, pp. 439,
440, 476-480 . ; 10, 14
48 New York University Law Review, pp. 475-6
43 Statutes at NAS. Sear ate Sra sienna 10
66 Statutes at Large, p. 167 .............1... me
IN THE
Supreme Court of the United States
October Term, 1973
Nos. 73-480, 73-300
No. 73-480
CRISTOBAL CARDONA, et al.,
Cross-Petitioners,
vs.
ELLioT C. RICHARDSON, Attorney General,
Petitioner.
No. 73-300
_ Extwiot C. RICHARDSON, Attorney General, et al.,
Petitioners,
7 vs.
ROBERT Bustos, et al.,
Cross-Petitioners.
Brief on the Merits of American Farm Bureau Federa-
tion, California Farm Bureau Federation and Na-
tional Council of Agricultural Employers, Amici
Curiae. :
Interest of Amici Curiae.
The California Farm Bureau Federation is a non-
profit corporation organized under the laws of the State
of California. It presently has approximately 62,000
members consisting primarily of farmers and others inter-
ested in farm problems in California. The American
Farm Bureau Federation is a general farm organiza-
alibi
tion with more than 2,000,000 member families who
belong to state farm bureaus in 49 states and Puerto
Rico. It is a voluntary, nonprofit corporation, organized
under the laws of the State of Illinois. The National
Council of Agricultural Employers is a nonprofit cor-
poration organized in the District of Columbia, com-
posed of members who are agricultural employers in
46 states.
The Respondents, Robert Bustos and Lupe Marquila,
are two California farm workers; the Respondent,
United Farm Workers Organizing Committee, is an
organization of farm workers. The Respondents filed
a class action in the United States District Court for
the District of Columbia on behalf of all citizens and
alien permanent residents of the United States engaged
in farm labor in California. The Cross-Petitioners, Cris-
tobal Cardona, Jose Maria de la Garza, Placido Ruiz,
and Julio Ruiz, are Texas farm workers who are granted
the right to intervene as plaintiffs on behalf of them-
selves and all farm workers in Texas.’
The amici curiae represent substantially all of the
employers of the farm workers represented by Respond-
ents. Any adverse decision made by the Court in this
case will substantially damage a great portion of ag-
ricultural employers in states along the Mexican bor-
der.? The damage to amici would be the same type
1Robert Bustos, et al., are respondents in case number 73-300,
Attorney General v. Bustos. Cristobal Cardona, et al., are peti-
* tioners in case number 73-480, Cardona v. Attorney General.
Both cases were consolidated for the purposes of filing briefs and
oral argument by an order of the Court of Jan. 14, 1974. For
the purpose of convenience in this brief, both res ents and
cross-petitioners will be collectively referred to as “Respondents”.
2In the amici curiae brief in support of Petition for Certiorari,
originally filed in case number 73-300, the California Farm
Bureau estimated that the adverse decision of the court below in
§
as that suffered by the California farming partnership
known as Sam Andrews’ Sons, outlined in Sam An-
drews’ Sons v. Mitchell, 457 F.2d 745 (9th Cir. 1972).
For example, in his Petition, the Attorney General
said:
“If the seasonal commuter system is illegal, the
Service must move to pick up all alien registration
receipt cards of aliens adversely affected by the
decision and to deny them reentry for the purpose
of seeking or returning to employment.”*
The impact of such an order would be devastating to
the employers represented by amici and to the agri-
cultural economy of the United States.
Summary of Argument.
The Court of Appeals below classified as nonimmi-
grants all lawful permanent resident aliens who are
employed in the United States, have their families reside
in Mexico, and visit-their families seasonally. Respond-
ents would go further to have the classification include
all lawful permanent residents who visit their families
either daily or seasonally. Either order would violate
the legislative intent of Congress, which has ratified
the present and past policy of the Immigration and Nat-
uralization Service to allow lawful permanent residents —
to work in the United States, have their families reside
in Mexico or Canada and visit them on a daily or sea-
sonal basis. This policy was first established in 1924,
and has continued up to the present time. It is accom-
Bustos v. Mitchell, 481 F.2d 479 (D.C. Cir. 1973), affected
150,000 out of a work force of 210,000, or 71.4%. See also the
statistics in a note entitled “Computers, Illegals and American
Farm Labor Problem”, at 48 NYU Law Review 339, 466.
’Petition of Elliot L. Richardson, pp. 11 and 12.
plished by the Service equating employment with resi-
dence so that the lawful permanent resident aliens
involved can take advantage of the informal docu-
mentary waiver provisions of 8 USC 1181(b), and 8
CFR. 211.1(b)(1), available for all lawful permanent
residents defined by 8 USC 1101(a)(27)(b). The order
made by- the Court below and/or requested by Re-
spondents would also violate the procedural due process
rights of the lawful permanent residence aliens in that
it would subject them to deportation or exclusion pro-
ceedings with a conclusive presumption of deportabil-
ity, which they could not rebut by the introduction of
other evidence.
The policy of the Attorney General of classifying
lawful permanent resident aliens into commuters and
noncommuters for purposes of enforcing certain immi-
gration regulations, such as the labor dispute provision
of 8 CFR 211.1(b)(1), is unlawful. Such a classifica-
tion is not rationally related to the administration of the
Immigration and Nationality Act.
Finally, daily or seasonal visits by lawful permanent
resident aliens, who are employed in the United States,
to their families who reside in Mexico, are not depar-
tures from the United States which can be regarded
as meaningfully interruptive of the alien’s permanent
residence under the authority of Rosenberg v. Fleuti
374, US 449. Since such visits are not “entries” within
the meaning of 8 USC 1101(a)(13), they cannot be
used as a basis for bringing eases or exclusion
proceedings.
cee eee
oS
ARGUMENT.
I. '
An Order That the Petitioner Classify as Nonimmigrants
All Lawful Permanent Resident Aliens Who Are
Employed in the United States, Have Their Fami-
lies Reside in Mexico, and Visit Their Families
Daily or Seasonally, Would Be Unlawful.
A. Respondents Seek Such an Unlawful Order From This
Court. ;
Paramount to any argument is a clarification of the
order which Respondents seek.
First, the order is to affect aliens who are lawful
permanent residents of the United States.* Any lawful
permanent resident alien would have been issued an im-
migrant visa, pursuant to 22 CFR 42.124. Such an alien
would have then had to enter the United States, and a
record of lawful admission for permanent residence
would have had to have been created under 8 USC
1230(a). Such a procedure would have been recorded
on form I-181, and only then would the alien have been
issued his alien registration receipt card, form I-151.
Gordon & Rosenfield, Immigration Law and Procedure,
§6.17(a).
Second, the order affects an alien, after admission
for permanent residence, who: (1) was employed in the
United States; (2) had members of his family residing
in and/or a family home in Mexico or Canada; and,
(3) visited this home either daily or seasonally while
employed in the United States.*
- The Court of Appeals below held that the status of
such a lawful permanent resident alien would be re-
4Respondent’s Cross-Petition, p. 10.
niles
scinded, and he should be classified as a nonimmigrant
under 8 USC 1101(a)(15)(h) of the Act, as long as
his visits to his family are seasonal and not daily.
Bustos v. Mitchell, 481 F.2d 479, 484 ? C. Cir. 1973),
footnote 14 emphasized.
Respondents go further. They wish the status of all
lawful permanent resident aliens rescinded whether
they visit their families in Mexico on a daily or seasonal
basis. (Cross-Petition, p. 16.)
B. Any Affirmation of the Order Made by the Circuit Court
Below, or the Granting of the Order Requested by Respond-
ents, Would Violate the Legislative Intent of Congress as
Shown by Its Ratification of Past Policy of the Immigra-
tion and Naturalization Service.
For the past 40 years, the Immigration and Naturali-
zation Service has allowed a lawful permanent resident
alien to work in the United States,° have his family
reside in Mexico or Canada, and commute over the
border for visits on either a daily or seasonal basis.
A good summary of the rationale behind. this policy
is found in Matter of Burciaga-Salcedo, 11 I&N Dec.
665, 666 and 667, as follows:
“For generations prior to the Immigration Act of
1924, native and foreign-born citizens of foreign con-
tiguous territory living there came daily to work in the
United States and then returned to their homes. Im-
mediately before the passage of the Immigration Act of
1924, they had been admitted as visitors on the basis
of visitor’s laws which were valid for a year and were
good for successive applications for temporary admis-
5For purposes of convenience, the Immigration and Naturaliza-
tion Service will be sapecmnnes: referred to as the “Service”.
ae, Se
sion. Passage of the 1924 Act raised a question as to
whether a commuter was an immigrant rather than a
visitor. The Act termed an alien an immigrant unless
he proved he was a nonimmigrant. (An immigrant
needed an immigrant visa—it was good for one entry
only and could be issued only under restrictions not
applicable to the issuance of nonimmigrant visas.) The
nonimmigrant category pertinent to this discussion was
that of the alien coming as a temporary visitor for
‘business’. In this category the commuter was adminis-
tratively first placed, permitting him to follow his reg-
ular employment in the United States and reside in
foreign contiguous territory. Reluctance to disturb a
long-standing custom, and reluctance to affect the deli-
cate balance which existed between the United States
and the contiguous countries dictated the decision.
However, the pressure of other factors soon brought a
change—there was a lack of specific law authorizing
the entry of commuters as nonimmigrants, foreign-born
_ citizens of contiguous territories who because of quota
limitations could not obtain immigrant visas to enter
the United States were, nevertheless, entering daily to
work as commuters, and, there was rising unemploy-
ment in the United States—these factors gave rise to
an administrative ruling that made the entry of com-
muters inore difficult.
In 1927, it was administratively decided that under
the 1924 Act an alien coming to work in the United
States must be considered as an immigrant. (He could
be admitted only if he had an immigrant visa and ap-
plied for admission for permanent residence.) Strict
enforcement of this ruling would have seriously af-
fected the livelihood of smany on both sides of the _
border, the functioning of border cities, and the exist-
‘ ~—-S-
ence of friendly relations with the border nations. A
compromise arose which followed the form of the law
yet permitted a limited continuance of the commuter
status. It was to treat the commuter who obtained an
immigrant visa as if he lived in the United States al-
though he continued to live in the contiguous terri-
tory.
An alien lawfully admitted for permanent residence
and domiciled in the United States could be issued a
border crossing card which authorized him to make- a
temporary visit to foreign continguous territory and to
return to his home in the United States without pre-
senting a new visa or other immigration document,
therefore, why not require the commuter to obtain an
immigrant visa, admit him for permanent residence, is-
sue him a border crossing card, and then permit him,
if he did not desire to live in the United States, . to
return to his home in foreign contiguous territory and
to enter the United States daily on his border crossing
card.on the theory that he was returning from a tem-
porary visit to contiguous territory? This arrangement
was adopted in 1927.
There were difficulties in treating a commuter as. if
he was a domiciled alien. The alien actually domiciled
in the United States attempting to enter as a returning
resident with a border crossing card after a temporary
visit outside the United States lost his right to reenter
unless he established that he at all times maintained
the intention of ‘returning to his domicile in the United
States. The commuter did not have a domicile in the
United States and in many cases had no intention of
moving here, was he therefore to be unrestricted in his
right to reenter? The administrative solution was to
equate employment with domicile. Then whether the
siuclbiinas
e United States and whether he had
the intention of working in the United
States. ThyS equality of treatment of the commuter and
domiciled alien resulted in the ruling that since the
domiciled alien lost his right to reenter the United
States on a border crossing card if he was absent
more than six months, the commuter lost his right to
reenter on a border crossing card if he was unem-
ployed for more than six months.
To treat the commuter as if he were a domicifed
alien was a necessary if awkward fiction which per-
mitted the practice to continue, but it was at odds with
the administrative desire to have commuters make
their homes in the United States. Soon rules concerning
inspection and entry arose which made the commuter
realize that not only would it be more convenient to
live in the United States than to commute, but that
loss of the right to enter the United States as a com-
muter could occur without his fault and even despite
his intention to retain the right. Thus, the conclusive
presumption arose that a commuter unemployed in the
United States for more than six months had abandoned
his intention to enter as a commuter—he could be re-
admitted to the United States to work only if he had
a new immigrant visa. This conclusive presumption,
with one exception, applied:even though the commuter
had retained the intention to commute and even
though he had entered in the meantime to search for
employment. This treatment was in contrast to that
given the domiciled alien temporarily absent from the
United States for more than six months; he, if he had
not abandoned the intention to return, could be read-
eal
mitted as a returning resident upon a waiver of the
documentary requirements.
An exception to the conclusive presumption was
made in the case of the commuter outside the United
States for more than six months because of illness,
accident, or pregnancy,With this background in mind,
we may consider the facts in the case before us and the
precedent decisions.”*
This equation of employment with domicile was
actually in accordance‘with the 1924 Act, which except-
- ed from any quota resttictions aliens previously lawfully
admitted to the United States as immigrants, returning
after a temporary visit abroad. See §4(b) of the 1924
Act, 43 Statutes 155.
The classic set of decisions interpreting this section
came in the U.S. Court of Appeals for the Second Cir-
cuit with Judge Learned Hand sitting on the panel.
In Lesto v. Day, 21 F.2d 307 (2nd Cir., 1927), the
Court said, at pp. 308 and 309, as follows:
“Without attempting a complete definition of ‘a
temporary visit,’ we may say that we ff the
intention of the departing immigrant must be to
return within a period relatively short fixed by
some early event.” _ 7
This was followed by Judge Hand’s decision in
Transatlantica Italiana v. Elting, 66 F.2d 542 (2d
Cir. 1933). The Court had to decide whether or not
fines should be remitted in over 100 cases where
*A more complete history of this background is found’ in
ther ese in the Fields: The ‘Green Card Commuter’ Under the Im-
ation and Naturalization Laws”, 21 Stanford Law pono
780 (1969); 48 NYU Law Review 439, supra; brief of
th Ramsey Clark, et al., in Gooch v. Clark; 24788, 24791,
United States Court of Appeals for the Ninth Circuit. © :
LPL ARETE LE LESLIE TELLER IDOLOS IE NRE BECO NON TET
sic Biases
Italian aliens, who had been lawfully admitted for per-
manent residence, were held as “not returning from a
temporary absence abroad” and were, therefore, ex-
cludable. There are printed in the Appendix the cases
found on pages 546 through 552 of the Opinion, where
it was ruled the aliens were returning from a temporary
absence abroad. The importance is that in each of these
cases, Italian aliens immigrated to the United States
for purposes of employment, kept their families in Italy,
visited them on a regular basis and were still held to
be returning from a temporary visit abroad. The ration-
ale was that the alien, while in Italy, had a fixed intent
to return to the United States at a date certain and
carried out that intent.’
This same rationale is seen in General Order No. 86,
issued by the Service in 1927.° Sections 4 and 5 forced
aliens living along the border who worked in the United
States, to obtain immigrant visas, but did not require
them to intend to establish, or in fact establish, the resi-
dence of their families in the United States. The Su-
preme Court, in turn, in Karnuth v. United States ex
rel. Albro, 279 U.S. 231 (1929), sustained the validity
of General Order No. 86.
“After General Order No. 86 of 1927 the com-
muter regulations prior to 1952 had been greatly
condensed and finally consisted of a single sen-
tence:
‘Aliens entering the. United States to engage in
existing employment or to seek employment in this
country and who desire to continue to reside in
7For a similar holding, sce Serpico v. Trudell, 46 F.2d 669
(D.C. Vt. 1928).
SA_verbatim copy of General Order No. 86 is set out in the
Appendix.
a |
foreign contiguous territory will be considered as
aliens of the immigrant class.’
“After 1952 the substance of former 8 CFR
110.6 was republished as an internal Operations
Instruction. The real ‘rules’ had been and continue
to be the body of published administrative deci-
sions on commuter cases. At any rate, on and °
after December 24, 1952, thousands of resident
alien border-crossing card holders were permitted
to cross the border on their way to work each
day without interruption.”
Set forth in the Appendix is the result of a study
of cases of the Board of Immigration Appeals, each one
of which involves the exclusion of a lawful permanent
resident alien whose family lived on the Mexican or
Canadian side of the border. Each of.these cases recog-
nized the principle that a lawful permanent resident
alien can be employed in the United States and still
maintain a homé for his family in Mexico or Canada.
‘ The difference in result is caused solely by the duration
of employment. :
The present policy of Petitioner is reflected in the
Petition for Certiorari, pages 6 and 7, and the. Stipula-
tion of Facts set out on pages 34 and 35. Petitioner al-
lows lawful permanent resident aliens to be employed in
the United States, have their families reside in Mexico,
visit them daily or seasonally, and be readmitted to the
United States by presenting form I-151 at the border.’®
*Brief of Appellee, Attorney General, Gooch v. Clark, supra,
pp. 42 and 43.
10The fact that the Service tried to limit the activities of “com- »
muter” aliens through the enactment of the labor dispute provision
of 8 CFR 211.1(b)(1) in 1967 will be discussed later.
eeeeeetieee Eee eee
win Din
C. Congress Has Ratified the Present Policy of the Service to
Allow Lawful Permanent Resident Aliens Who Are Em-
ployed in the United States but Whose Families Live in
Mexico or Canada the Privilege of the Informal Docu-
mentary Waiver Provisions of 8 USC 1181(b) and 8 CFR
211.1(b) (1).
As has, been previously pointed out, from 1927 to the
present date, the Service has followed the polity of al-
lowing lawful permanent residents to be employed in the
United States, have their families reside in Mexico or
Canada, and be allowed the documentary waiver provi-—
sions of 8 USC 1181(b) and 8 CFR 211.1(b)(1). This
was done in 1927 by General Order No. 86, which
confirmed the practice as consistent with the statutory
language of §4(b) of the Act. This defined a nonquota
immigrant as “an immigrant previously lawfully admit-
ted to the United States who is returning from a tem-
porary visit aboard.” The present practice is based on
§1101(a)(27)(b) of the Act, which allows the infor-
mal documentary waiver provisions of 8 USC 1181(b)
and 8 CFR 211.1(b)(1) for an alien lawfully admitted
for permanent residence who is returning from a tem-
porary visit abroad.
Respondents urge this Court to hold that this prac-
tice of the Service violates the statutory language of 8
USC 1101(a){27)(b). Certainly, when an alien who
is employed in the United States, leaves to spend one or
a series of 1,ights with his family across the border, his
stay ihere is temporary because he intends to come
back to resume employment. “ ‘When statutes are suscep-
tible of different readings, it is practically axiomatic
that ‘administrative interpretation practice and usage is
accorded great weight as an extrinsic aid in interpreta-
tion of statutes by courts.’ 3 Sutherland, Statutory —
Neabhccs
Construction, 6605 (Third Edition) 1943; Halvering v.
Winmill, 305 U.S. 79; 59 Supreme Court 45; 83 Law-
yers Edition 52 (1938). Such deference is paid by the
courts, especiully when the construction placed upon
a statute by the administrative agency is contempor-
aneous with its enactment; the practice is long stand-
ing; or, the agency suggested the legislation subsequent-
ly enacted.” Lindberg v. Brenner, Ite F.2d 990 (D.C.
Cir. 1968)."
Since 1950, there have been numerous congressional
hearings where “the commuter system” has been dis-
cussed. Three separate bills.have been introduced which
would ‘affect “the commuter system”.’* Certainly, with
the number of congressional hearings exploring the
commuter system as affected by the decision of Gooch
v. Clark, 433 F.2d 74 (9th Cir. 1970), no one can
accuse Congress of ignoring the problem.
In 1973, the House of Represent&tives passed the
most complete revision of the Immigration and Nation-
ality Act since 1965, HR 981 and HR 982." The re-
marks of the chairman, the Honorable ‘Peter W. Ro-
dino, Jr., are made part of the Appendix. There is
nothing either in HR 981, HR 982, or the remarks of
Chairman Rodino to indicate Congress wishes to change
the present “commuter system”. Since the practice is
longstanding and is known by Congress, which has
made no effort to change it, the agency practice has
been ratified. Y |
See also Massachusetts Trustees of Eastern Gas & Fuel As-
sociate v. United States, 377 U.S. 235 (1964).
%A summary of all the hearings as well as legisla-
tion to end the commuter system is set forth in 21 Stanford Law
Review 1750, supra, and 48 NYU Law Review 440, supra.
. 948 NYU Law Review at 476 through 480, supra.
“HR 981 passed the House on September 26, 1973; HR 982
passed on May 3. 1973. Both are now pending in the Senate
Subcommittee on Immigration of the Judiciary Committee.
Beas Bee
D. Recent Court Decisions Would Allow the Equation of
Employment With Residence for the Purpose of Defining
Aliens Within the Coverage of 8 USC 1101(a)(27)(b).
Barrese v. Ryan, 203 F.Supp. 880 (District of Con-
necticut, 1962) and Tejada v. United States Immigra-
tion and Naturalization Serv., 346 F.2d 385 (9th Cir.
1965) both deal with the definition of an alien within
the coverage of 8 USC 1101(a)(27)(b). Barrese was
a Canadian who worked in the United States and regu-
larly visited his sisters in Canada. He would stay in Can-
ada two weeks to 30 days at a time, but leave clothes
in the United States. He was held to be a lawful perma-
nent resident alien who was returning after a temporary
absence abroad.
Tejada was a lawful permanent resident who left the
United States for the Philippines in 1946 and reentered
in 1962. The issue was whether or not his original eight-
een month absence was of such sufficient duration so
\ as not to be considered “temporary” within the meaning
| of 8 USC 1101(a)(27)(b) and 8 USC 1181(b). Al
though Tejada’s family was in the Philippines and his
only tie to the United States was employment, the court
ruled that as a matter of Jaw;~he migla»be eligible for
reentry and remanded the matter for further ad-
ministrative findings.
In Cermeno-Cerna v, Farrell, 291 F.Supp. 521 (C.D.
Calif. 1968), fifteen lawful permanent resident aliens
challenged the legality of their arrest and subsequent
deportation proceedings under the labor dispute provi-
sions of 8 CFR 211.1(b)(1). They were arrested be-
cause the Immigration Service contended they were |
“commuters” who worked in the United States, but lived
in Mexico where their families resided. The Court held
nk Gem
the aliens were within the provisions of 8 USC 1101
~~ (a)(27)(b); and, thus, 4 deportable, because of the
following evidence:
“The evidence as eee by each of the
individual plaintiffs shows, that each have been
admitted for permanent residence in the United -
States and when leaving /their residence, either
from labor camps supplied by their employers or
from rented homes, they left belongings in the
United States and in each instance intended to
return after a vacation to rest and visit with their
‘families and friends.” aa F.Supp. at 530.
» Finally, when a statute is capable of several mean-
ings, recent court decisions have affirmed a policy of
giving that meaning to it which would prevent deporta-
tion or exclusion.
“Although it is not penal in character and not
subject to the constitutional inhibition against the
passage of an ex post facto law, deportation is a
drastic measure, at times the equivalent of banish-
ment or exile, for which reason deportation stat-
utes should be given the narrowest of the several
possible meanings.” [cites omitted] United States
vy. Lehmann, 239 F.2d 963, 666 (6th Cir. 1956).
In summary, even if one c oricedes that 8 USC 1101
-(a)(27)(b) is capable of tw different meanings, one
equating employment with idence; and the other
against such an equation, the fact that the latter would
mean deportation or at of thousands of aliens
should be sufficient to Greve its vas 9 He
Sia
ph. ~ sy
For a atari discussion of the ipardshi ithe end of the “com-
muter” program might cause, see 48 NY w Review at 475-6. a.
— UL a oe
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nial Mess
E. The Order Made by the Court Below and/or the Order
Proposed by Respondents That the Immigration Service
Classify as Nonimmigrants All Lawful Permanent Resident
Aliens Who Are Employed in the United States, Have Their
Families Residing in Mexico and Visit Them Daily or
Seasonally, Would Violate the Procedural Due Process
Rights of the Aliens Affected.
The court below in Bustos v. Mitchell, supra, held
that all lawful permanent. resident aliens which fit into
the court’s definition of seasonal commuters, must im-
mediately be considered as nonimmigrants by the Serv-
ice for ‘purposes of enforcing the Immigration Act. 481
_F.2d at 484. Respondents, in their Petition, ask that the
order be éxpanded to affect all lawful permanent resi-
dent aliens which are classified as daily and seasonal
commuters. The Attorney General, in judging the im-
pact of these statements, has said that “if the seasonal
commuter} system is illegal, the Service must move to
pick up all alien registration receipt cards of aliens
adversely affected bythe decision and to deny them re-
posed’ by Respondents, would violate the procedural. .
dué process rights of the lawful permanent resident
aliens involved, by establishing in deportation and/or
exclusion proceedings a conclusive presumption that
any lawful permanent resident alien whose actual dwell-
ing place in fact, without regard to intent, is—in—a
foreign contiguous country and who contmutes daily :
or seasonally to work in the United States is not within
Ee ae Se IE I LRT PME NSO ee
ae va
the coverage of 1101(a)(27)(b) of the Act regardless
of any other evidence which might be produced to the
contrary. 481 F.2d at 482."°
In the Japanese Immigrant Case, 189 U.S. 86, 100
to 101 (1903), this court in emphatic and unmistak-
able terms rejected any supposition that deportation
could be ordered without a fair hearing for the alien
involved. The Eight Circuit in Whitfield v. Hanjes, 222
Fed. 745 (8th Cir. 1915), discussed the Japanese Im-
migrant Case, supra, and summarized the essential ele-
ments of a fair hearing at page 749 as follows:
“Indispensable requisites of a fair hearing ac-
cording to these fundamental principles are that
the course of the proceedings shall be appropriate
to the case and just to the party affected; that the
accused shall be notified of the nature of the
charge against him in time to meet it; that he shall
have such an opportunity to be heard that he may,
if he chooses, cross-examine the witnesses against
him, that he may have time and opportunity, after
all the evidence against him is produced and
known to him, to produce evidence and witnesses
to refute it; that the decision shall be governed
by and based upon the evidence at the hearing, and
that only; and that the decision shall not be with-
out substantial evidence taken at the hearing to
support it.”
164mici agree that it would be possible for a lawful perma-
nent resident alien to lose contact with the United States in such
a way that he would not be returning from a temporary absence
abroad; and, therefore, would be deportable and/or excludable.
But certainly, the requirements of procedural due process would
prevent any conclusive presumptions in an administrative hearing ©
and would give the Alien the right to present all evidence in his
behalf.
ha itiataentied betas 7 bl a haa Sh a ee pt a
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winlliia:
This Court has followed these decisions in giving the
same protection of procedural due process to Jawful
permanent resident aliens as to citizens. In Bridges v.
Wixson, 326 U.S. 135, it ruled that the alien had been
ordered deported without a fair hearing and reversed
the judgment of the court below. Justice Murphy con-
curring, stated that a lawful permanent resident alien
was “. . . invested with the rights guaranteed by the
Constitution to all people within our borders. Such
rights include those protected by the First and Fifth
Amendments and by the due process clause of the
Fourteenth Amendment.” 326 U.S. at 161.
In Kowag Hai Chew v. Colding, 344 U.S. 590
(1952), this Court held that a lawful permanent resi-
dent alien who went outside the United States on a
vessel of American registry, with its home port in the
United States, and upon completion of such voyage re-
turned on such vessel to the United States was, from a
constitutional point of view, a person entitled to pro-
cedural due process under aie Amendment. What _
is important is that the court held this to be true for
- purposes of both a deportation and/or an exclusion
hearing. 344 U.S. at pages 600 to 602.
More recently, in Graham v. Richardson, 403 U.S.
365, 376, this’Court held that “. . . a state statute
elfaré benefits to resident aliens and one
to aliens who have not resided in the
States for a specified number of years, violate
equal protection clause.”
These cases ‘illustrate the vice of the blanket order
ade by thé cautt-bélow_ and/or urged by Respond-
ar a ae that would conclusively prevent law-
ful permanent fesident, aliens from producing evidence
IE Pt pe IP
nulla i
to show that they were in fact within the coverage of
8 USC 1101(a)(27)(b) would violate procedural due
process of law.
: Il.
The Policy of the Attorney General of Classifying Law- .
ful Permanent Resident Aliens Into Commuters
and Noncommuters for Purposes of Enforcing the
Immigration Act, Is Unlawful.
Although the Service acknowledges that all lawful
permanent resident aliens should receive the benefits
of the documentary waiver provisions of 8 USC 1181
(b) and 8 CFR 211.1(b)(1),” it still claims the right
to classify lawful permanent resident aliens into com-
muters and noncommuters for purposes of enforcement
of other parts of the Immigration and Nationality Act.
For example, the labor dispute provision of 8 CFR
211.1(b)(1), is acknowledged by Petitioner in the
Stipulation of Facts to bé applicable to “commuter”
lawful permanent resident aliens only.”
The question of the validity of this provision was
raised by the Circuit Court below in Bustos v. Mitchell,
supra, when it asked “. . . does 8 CFR 211.1(b)(1)
(1972) permit commuters to enter the country to take
employment where a labor dispute exists even if they
have previously been employed there?” 481 F.2d at
481. The question of the validity of the Service’s posi-
tion on this regulation was raised by Respondent in its
Cross-Petition on pages 6 and 8.
In Sam Andrews’ Sons v. Mitcheil, supra, the Ninth
Circuit held this labor dispute provision illegal.’* The
17Gooch v. Clark, supra.
'8Petition of AttorneyGeneyal, pp. 35-37. :
19Jt should be noted that Justice Wright, who wrote the dis-
sent in Gooch v. Clark, supra, joined the unanimous panel in
holding this provision illegal.
le ie
eS
—21—
Court first noted that the labor dispute regulation and
the Government’s interpretation and application of it
created two distinctions: “. . . first and primarily, the
distinction between the commuter who works for a
certified employer and the commuter who does not;
and second, the distinction between the commuter and
otherwise similar §1101(a)(27)(b) immigrants who
permanently reside in the United States.” 457 F.2d at
748. The Court held that in accordance with Fook
Hong Mak v. Immigration and Naturalization Service,
435 F.2d 730 (2nd Cir. 1970), the Attorney Gen-
eral had the right to make regulations on considerations
rationally related to the statute he is administering, but
it held that the classifications made by the Service in
this case were not rationally related to the administra-
tion of the Immigration and Nationality Act. At page
748 it stated as follows:
' “Nothing in the statute or its legislative history
supports continuing regulation of alien laborers
by the Secretary of Labor or by the Attorney Gen-
eral. Cermeno-Cerna v. Farrell, 291 F.Supp. 521, ~
528 (C.D., Cal., 1968). Congress empowered the
Secretary and the Attorney General to regulate the
initial entry of an alien into the United States,
but once a commuter has been lawfully admitted,
he may ‘make regular entrances into the United
States as an immigrant “lawfully admitted for per-
manent residence, who is returning from a tem-
porary visit abroad.” ’ Gooch, supra, 433 F.2d at
81. i
There is nothing in the statute or its legislative
history intimating that Congress intended the
green card system to be used as a means of Gov- ’
_ernment intervention in domestic labor disputes.”
nabs
As to the argument that the distinction could be
discretion, it held that “. . . there is no rational basis
to distinguish between commuters and resident $1101
(a)(27)(b) immigrants, as the District Court recog-
-nized that the commuter and the resident alien have
the same immigration status.” 452 F.2d at 749. It con-
cluded, citing Graham y. Richardson, supra, as follows:
“The commuter when on the job in the United
States is entitled to full constitutional protection.
‘His constitutional status is not terminated, altered
‘ or diminished because he spends the night across
the border. See Kwong Hai Chew, supra. Such a
departure is merely a ‘temporary visit abroad.’
Gooch, supra, 433 F.2d at 79-81.” 457 F.2d at
749.”
Amici urges the Court to affirm the decision of the
Ninth Circuit in Sam Andrews’ Sons v. Mitchell, supra.
Such/affirmation could prevent the Service from cate-
gotizing those lawful permanent resident aliens who
had not moved their families to the United States as
“commuters” and enacting discriminatory regulations
against them, such as the labor dispute provision of 8
CFR 211.1(b)(1). At the same time, such affirmation
could prevent orgaizations, such as those represented
by Respondents from pressuring the Service into dis-
criminating between lawful permanent residents when
such discrimination might be to their advantage.
2°When the court used the term “constitutional protection”, it
did not explain whether it was talking about procedural due
process or substantive due process. Because of the problems in-
volved in granting substantive due process to aliens (Bridges v.
Wixon, supra; Harisiades v. Shaughnessy, 342 US 580 [1952]),
and because the Court decided that the regulation violated the.
legislative intent of Congress, we have not reached the questicn“
of whether or not the classification violates the constitutional
rights of the aliens involved.
a th a
. Ill.
Daily or Seasonal Visits by Lawful Permanent Resident
Aliens, Who Are Employed in the United States, to
Their Families Who Reside in Mexico, Are Not
Departures From the United States Which Can
Be Regarded as Meaningfully Interruptive of the
Aliens’ Permanent Residence.
In Rosenberg v. Fleuti, 374 U.S. 449, this Court
considered the issue of whether a permanent residence
alien’s return to the United States from his a#fernoon
trip to Ensenada, Mexico, constituted an “entry” with-
in the meaning of §101(a)(13) of the Immigration
and Nationality Act of 1952, 66 Stat. 167, 8 USC
§$1101(a)(13), such that said alien was excludable
for a condition existing at that time even though he
had been permanently and continuously a resident in.
this country for several years prior thereto.** More
specifically, the Court considered whether the alien’s
short visit to Mexico could be regarded as a “departure
to a foreign port or place . . . [that] was not in-
tended” within the meaning of the exception to the term
“entry” created by said statute. The Court concluded,
at page 462:——.
21Section 101(a)(13) provides:
“The term ‘entry’ means any coming of an alien into the
United States, from a foreign port or place or from an out-
lying possession, whether voluntarily or otherwise, except
that an alien having a lawful permanent residence in the
United States shall not be regarded as making an entry into
the United States for the purposes of the immigration laws if
the alien proves to the satisfaction of the Attorney General
that his departure to a foreign port or place or to an outlying
session was not intended or reasonably to be expected by
im or his presence in a foreign port or place or in an
cutlying possession was not voluntary: Provided, That no
“erson whose departure from the United States was occa-
sioned by deportation proceedings, extradition, or other legal
process shall be held to be entitled to such exception.”
cae,” Ware
“We conclude, then, that it effectuates congres-
sional purpose to construe the intent exception to
§101(a)(13) as meaning an intent to depart in
a manner which can be regarded as meaningfully
interruptive of the alien’s permanent residence. °
One major factor relevant to whether such intent
can be inferred is, of course, the length of time
_ the alien is absent. Another is the purpose of the
visit, for if the purpose of leaving the country is
to accomplish some object which is itself contrary
to some policy reflected in our immigration laws,’
it would appear that the interruption of residence »
thereby occurring would properly be regarded as
meaningful. Still another is whether the alien has
to procure any travel documents in order to make
his trip, since the need to obtain such items
might well cause the alien to consider more fully
the implications involved in his leaving the coun-
try. Although the operation of these and other~
possibly. relevant factors remains to be developed
‘by the gradual process of judicial inclusion and
exclusion,’ Davidson v. New Orleans, 96 U.S. 97,
104, we declare today simply that an innocent,
casual, and brief excursion by a resident alien
outside this country’s borders may not have been
‘intended’ as a departure disruptive of his resi-
dent alien status and therefore may not subject
him to the a of an ‘entry’ into the
country on his return. .
Since Fleuti was decided i in 1963, there has been
“development as to the above-mentioned relevant fac-
: tors. “by the gradual process-of judicial inclusion and
<<
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oP ae aE ATI ANI ITS “NT i RR gE mene
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exclusion.” In Toon-Ming Wong v. Immigration and
Naturalization Service, 363. F.2d 234 (9th Cir. 1966),
petitioner sought review of the order of Board of Im-
migration Appeals denying his motion to reopen de- .
portation proceedings and permit him to apply for sus-
pension of deportation under the provisions of §244
(a) of the Immigration and Nationality Act, 8 USC
1254(a) (Supp. 1965). On instructions of his foster
father, the alien, then 16, accompanied the daughter
of the foster parent to her home in Canada to assist
with her children during the journey. The intention
was that the alien would return to his home in the
United States within a week or two, and resume his
high school studies. However, because ofan illness
in the family, the daughter asked that the alien remain
to help-her, and the alien’s foster father agreed. The
alien remained at his foster sister’s Canadian home for
six months before returning to the United States. The
Court concluded that the alien’s minority was a rele-
vant circumstance, and remanded the case for certain
factual and legal determinations. Of particular impor-
tance, was fhe Court’s holding that the opinion of
the Board of Immigration Appeals that a six-months’
absence barred relief as a matter of law was in error.
The Court, at page 236, stated:
“The length of absence is relevant, but not
alone determinative.””
+
The following absences have been held not to be meaning-
fully interruptive of the alien’s permanent residence: 2-hours, Git
Foo Wong v. Immigration and Naturalization Service, 358 F.2d
151 (9th Cir. 1966); S-days, Wadman v. Immigration and
Naturalization Service, 329 F.2d 812 (9th Cir. 1964); and, 1-
week, Zimmerman v. Lehmann, 339 F.2d 943 (7th Cir. 1965).
Seventeen years has been held to be meaningfully interruptive in
Gamero v. Immigration and Naturalization Service,.Los Angeles
Dist., 367 F.2d 123 (9th Cir. 1966).
ba
PE OS Oe
mer ae
It would appear that “judicial inclusion” is increas-
ing. In Itzcovitz v. Selective Service Local Bd., No. 6,
N.Y., N.Y., 447 F.2d 888 (2d Cir. 1971), a per-
manent resident alien sought declaratory relief to enable
him to reenter the United States after a proposed busi-
ness trip to Israel without being subjected to exclusion
proceedings. The Court, at pages 893-94, held:
“. . . The time factor is, to be sure, longer
than in Zimmerman, Wadman or Fleuti, but it is
still limited to three weeks, and is fairly charac-
terized as only temporary. The purpose of Itzco-
vitz’s planned trip is in a real sense for the bene-
fit of his employer; he is not merely vacation-
ing, as were the petitioners in the other cases just
mentioned. True, he doesn’t have to go, but
whether he would be able to keep his job, much
less advance himself, without going to Tel Aviv is
doubtful. In any event, he has been directed by
his employer to go. In a general sense Itzcovitz
‘intends’ to go to Tel Aviv, just as Fleuti intended
to go to Mexico. But appellant is not in the pos-
ture of having taken the trip in disregard of the
immigration consequences; rather he has here
sought relief in advance. The purpose of his trip
is entirely bona fide, honorable and lawful. He has
every intention of retaining permanently his resi-
dence in the United States. And, indeed, the sole
purpose of the three week trip is to qualify him
for more useful employment service as he con-
tinues his permanent residence. Under these cir-
' cumstances—and we consider them limited—we
do not think a ant’s trip to Tel Aviv ‘will be
‘meaningfully interruptive’ of his permanent resi-
4
7
rw
eae, 3a
dence ‘within the meaning and ameliorative intent
of the exception to §101(a)(13).’ Rosenberg v.
Fleuti, supra, 347 U.S. at 461, 462, 83 S.Ct. at
1812.”
In Matter of Janati-Ataie, Int. Dec. #2170 (1927),
the Board of Immigration Appeals went further. In this
case, the permanent resident alien, an Iranian, returned
to Iran in 1965 to visit his parents and was absent |
from the United States for a period of 35 days; and,
in 1968 he made a second trip to Iran to introduce his °
wife and child to his parents, and he was absent from
the United States for a period of 30 days. The Board
concluded that the alien did not make “an entry” into
the United States after either of these visits; at ‘Page V%
it pointed to the following: f
“All the cases since Fleuti, both before this
Board and the courts, cited above and others, in-
dicate quite clearly that no one factor is conclusive
as to whether there was a meaningful interruption .
of the alien’s legal permanent residence status, but
they further indicate that most careful considera-
tion must be given to the intent factor. The im-
portance of the ‘intent’ element has been empha-
sized in all recent cases regarding entry. |
“It is our opinion. that the respondent in the in-
stant case did not make an entry when he returned
from the two trips to Iran. The length of time he
was away was a reasonable minimum time in
which to travel to Iran for a visit with his parents.
Also, this Board has never held that the distance
from the United States of the country to which the
alien goes is determinative, considering the~swift
jet airplane travel available.
©
—28— .
“It is true that the respondent did have fo renew
_ his Iranian passport, but here again no one factor
is controlling. His intent not to interrupt or aban-
don permanent residence is indicated by the follow-
ing facts: That his trips were of relatively short
duration, that he had both real and personal prop- -
erty here, that he had an established home here,
that he had a permanent steady job to which he
was returning, that his wife and child, both
United States citizens, are living with him here,
and that the purpose of his trips was to visit his
parents.” ; c.
However, at the request of the Commissioner of Im-
migration and Naturalization, the Attorney General of
the United States reviewed this decision and reached
the opposite conclusion. /d. at pages 16-19.
The Board of Immigration Appeals has even gone
so far as to hold that a permanent resident alien need
only be physically present in the United States for more
than six months in the aggregate during a particular
year for creating the inference that there is no intent to
depart in a manner which can be regarded as meaning-
fully interruptive ofthe alien’s permanent residence. In
Matter of Hoffman-Arvayo, Int. Dec. #2095 (1971),
the alien admitted for permanent residence maintained
living quarters in the United States while gainfully em-
ployed for 5 days each week and visited his family in
Mexico on intermittent weekends.”
In the instant case, an important issue is whether y
daily or seasonal visits by lawfu! permanent resident —
aliens, who are employed in the United States, to their
families who reside in Mexico, are departures from
28The Board held there was no “entry” because of the “Fleuti”
atiaiaaai nti PMID MOOTED
i.
the United States which can be regarded as meaningful-
‘ly interruptive of the aliens’ permanent residence. Ap-
plying Fleuti and related authority, it should be clear
that permanent resident aliens who remain in the United
States for at least six months, whether at one time or
in the aggregate in the case of those who live in the
United States during the work week, have not mean-
ingfully interrupted their residence. For, the length of
their stay abroad is not excessive; they have not left
+ es purpose inconsistent with the immigration laws;
ey do not require special travel documents; and, they
intend to return to the United States. Also, regarding
those aliens who live in Mexico and daily commute to
the United States to work, if work is equated with
residence, their departures, too, cannot be regarded as
meaningfully interruptive of their permanent residence.
The court below in Bustos, 481 F.2d at 484, and
Respondents held that “commuter” -aliens. are deport-
able because “each and every time an alien enters
the United States, his entry must be legal as of that
time.” Since “commuter” aliens are not within th:
coverage of 8 USC 1101(a)(27)(b), they cannot be
“the beneficiaries of the informal documentary waiver
provisions of 8 USC 1181(b), and their entries can-
not be legal. However, this question is never reached
if these aliens never make an “entry” under 8 USC
1101(a)(20) under the saving provisions of the Fleuti
- doctrine. -
EEL ARES ER OO RCE Ne NLS Deere be " a * MH a ae
eae
Conclusion.
For the above reasons, the amici curiae ask the
Court to confirm the .policy of the Petitioner in allow-
ing lawful permanent resident aliens to equate employ-
ment with residence for the purposes of classification
within the provisions of 8 USC 1101(a)(27)(b) of the
Immigration and Nationality Act. The amici also ask
the Court to confirm the past policy of the Service
in allowing such aliens the informal documentary
waiver provisions of 8 USC 1181(b). At the same time,
however, the Court should make an order preventing
the Petitioner from classifying permament residents
into commuters and noncommuters for purposes of en-
forcing other policies, such as the labor dispute pro-
vision of 8 CFR 211.1(b)(1), which should be de-
clared illegal.
Respectfully submitted,
RONALD H. BONAPARTE,
JOHN A. JOANNES,
MILTON C. GELENIAN,
LEON L. GORDON,
THOMAS F. OLson,
ALLEN LAUTERBACH, .
By RONALD H. BONAPARTE,
Attorneys for Amici Curiae.
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APPENDIX.
22 CFR 42.124.
§ 42.124 Procedure in issuing visas.
(a) Insertion of data. In issuing an immigrant visa -
the pertinent information shall be inserted in the desig- .
nated blank spaces provided on Form FS-511 (Immi-
grant Visa and Alien Registration), in accordance
with the instructions contained in this section.
(1) A symbol as specified in § 42.12 shall be used
to indicate the classification of the immigrant.
(2) An immigrant visa issued to an alien subject to
numerical limitations shall bear the number assigned
to the immigrant. The foreign state or dependent area
limitation to which the alien is chargeaole shall be en-
tered in the space provided for such entry. If the alien
is chargeable to the numerical limitation prescribed in
section 21(e) of the Act of October 3, 1965, the nota-
tion “Western Hemisphere” shall be entered in the
space on the face of the visa for “Foreign State/De-
pendent Area.”
(3) Immediate relative visas issued under section
201(b) and special immigrant visas issued under the
provisions of section 101(a}{27) (B) through (E)
of the Act may be numbered: in consecutive order at
each consular office, beginning a new series on July 1
of each year, if the principal consular officer considers
the numbering of such visas to be desirable. In issuing
such visas, no entry should be made on the visa in
the space provided for the foreign state or other ap-
plicable area limitation.
(4) The date of issuance and the date of expira-
tion of the visa shall be inserted in the proper places
—2—
on the visa and shall show the day, month, and year
in that order, the name of the month being apeled © out,
as “24 December 1952.”
(5) In the event the passport requirement has been
waived under the provisions of § 42.6, a notation
shall be inserted in the space provided for the passport
number, setting forth thé authority (section and
paragraph) under which the passport was waived.
(6) A signed photograph shall be attached in the
space provided on Form FS-511 by the use of a legend
machine unless specific authorization has been granted
by the Department to use the impression seal only.
(7) A photograph, appropriately signed, shall be
attached in the space provided on Form FS511 by
the use of a legend machine unless specific authoriza-
tion has been granted by the Department to use the
impression seal only.
(b) Documents comprising visa. Form FS-511,
and Form FS-510, when properly executed, together
with one copy of each document required by the con-
*. gular officer in accordance with § 42.111 shall consti-
tute an immigrant visa.
(c) Attachment of documents. Form FS-511 shall
be placed immediately above Form FS-510 end the
supporting documents attached thereto. The duplicate
copies of Form FS-511, Form FS-510, and supporting
documents shall be retained in the files of the consular
office. Any document furnished to the consular officer
by the alien’s sponsor or other person with a request
that the contents not be divulged to the visa applicant
shall, if required to the be attached to the visa, be
placed in an envelope and sealed with the impression
seal of the consular office, before being attached to the
a, oe
visa. If an immigrant visa is issued to an alien who is in
possession of a U.S. reentry permit, whether valid or
expired, the consular officer shall attach the permit to
the immigrant visa for appropriate disposition at the port
of entry by the Immigration and Naturalization Service.
Documents submitted: which have no bearing on the
alien’s qualifications or eligibility to receive a visa may
be returned to the alien or to the person furnishing them.
(d) Signature, seal and delivery of visa. The consu-
lar officer who issues an immigrant visa shall affix his
signature, indicate his title, and impress the seal of his
office on Form FS-511 in a manner which partly covers
the photograph and his signature. Thereupon, the immi-
grant visa shall be issued by delivery to the immigrant
or his authorized agent or representative.
(Sec. 221, 66 Stat. 191; 8 U.S.C. 1201) [Dept. Reg.
108.429, 25 F.R. 3255, Apr. 15, 1960, as amended by
Dept. Reg. 108.480, 27 F.R. 3626, Apr. 17, 1962;
Dept. Reg. 108.528, 30 F.R. 14789, Nov. 30, 1965;
Dept. Reg. 108.588, 33 F.R. 9399, June 27, 1968]
8 USC 1230.
§ 1230. Records of admission
(a) The Attorney General shall cause to be filed, as
a record of admission of each immigrant, the immigrant
visa required by section 1201(e) of this title to be sur-
rendered at the port of entry by the arriving alien to an
immigration officer.
(b) The Attorney General shall cause to be filed
such record of the entry into the United States of each
immigrant admitted under section 1181(b) of this title
and of each nonimmigrant as the Attorney General
deems necessary for the enforcement of the immigra-
tion laws.
_ oo .
8 USC 1101(a)(15)(h).
(H) an alien having a residence in a foreign coun-
try which he has no intention of abandoning (i) who .
is of distinguished merit and ability and who is coming
temporarily to the United States to perform services of
an exceptional nature requiring such merit and ability;
or (ii) who is coming temporarily to the United States
to perform temporary services or labor, if unemployed
persons capable of performing such service or labor
cannot be found in this country; or (iii) who is coming’
temporarily to the United States as a trainee; and the
alien spouse and minor children of any such alien
specified in this paragraph if accompanying him or
following to join him.
8 USC 1101(a) (27) (b).
(27) The term “special immigrant” means—
(A) an immigrant who was born in any independent
foreign country of the Western Hemisphere or in the
Canal Zone and the spouse and children of any such
immigrant, if accompanying, or following to join him:
Provided, That no immigrant visa shall he issued pur-
suant to this clause until the consular officer is in
receipt of a determination made by the Secretary of
Labor pursuant to the provisions of section 1182(a)
(14) of this title;
(B) an immigrant, lawfully admitted for perma-
nent residence, who is returning from a temporary visit
abroad;
—_—
?> 43 Statutes 15S¢
; NON-QUOTA IMMIGRANTS.
Sec. 4.) When used in this Act the term “non-quota
immigrant” means—
Term construed.
(a) An immigrant who is the unmarried child under
18 years of age, or the wife, of a citizen of the United
States who resides therein at the time of the filing of a
petition under section 9;
Minor child or wife of resident citizen appli-
cant.
Post, p. 157.
(b) An immigrant previously lawfully admitted to
the United States, who is returning from a temporary
visit abroad;
. Returning from temporary visit abroad.
sides
General Order No. 86.
U.S. Department of Labor
BUREAU OF IMMIGRATION
Washington
April 1, 1927.
55479/537
55266/General.
SUBJECT: Land border crossing procedure.
1. Hereafter aligns residing in foreign contiguous
countries and entering the United States to engage in
existing employment or to seek employment in this
country will not be considered as visiting the United
States temporarily as tourists, or temporarily- for busi-
ness or pleasure, under any provisions of the Immigra-
tion Law which exempt visitors from complying with
certain requirements thereof; that is, they will be con-
sidered as aliens of the “immigrant” class.
2. However, the following aliens of the said “im-
migrant” class residing in foreign contiguous countries
ard who are now enjo-ing the border crossing privilege
may Continue so to enj>y it upon the payment of head
tax, provided such hea! tax was assessable on aliens
entering permanently at the time of original admission
and, provided further, that they are not coming to seek
employment.
A. Aliens whose original admissjon occurred
prior to June 3, 1921.
B. Natives of nonquota countries whose orig-
inal admission occurred prior to July 1, 1924.
C. Natives of quota countries whose original
admission occurred subsequent to June 2, 1921,
and prior-to May 11, 1922, who at the time of
PIPE eS
on
such admission had resided in the Dominion of
Canada, Newfoundland, the Republic of Cuba,
the Republic of Mexico, or countries of Central or
South America, or adjacent islands, for a period of
one year.
D. Natives of quota countries whose original
admission occurred subsequent to May 10, 1922,
and prior to July 1, 1924, who at the time of
such admission had resided in the Dominion of
Canada, Newfoundland, the Republic of Cuba,
the Republic of Mexico, or countries of Central
or South America, or adjacent islands, for a period
of five years.
3. Aliens of all nationalities of the “immigrant”
class whose original admission occurred subsequent to
June 30, 1924, will be required to meet all provisions
of the Immigration Laws applying to aliens of the “im-
, migrant” class. Aliens of this class already enjoying the
border crossing privilege, however; will be granted a
syeree time, not to exceed six months from July
, 1927, within which to obtain immigration visas and
peta comply with the laws.
4. Aliens who have already complied with the re-
quirements of the Immigration Laws and this General
Order may be permitted to continue to enjoy the bor-
der crossing privilege.
5. Aliens who have complied with the requirements
of this General Order governing permanent admission
will be considered as having entered for permanent resi-
dence.
6. The use and issuance of identification cards to
all classes of aliens entitled to same will continue as
heretofore.
ssi
7%. Identification cards held by or issv2d to aliens
of the “immigrant” class shall be rubber-stamped as
follows: .
IMMIGRANT
ee ee ee eee eee ee
A a Inspector.
8. ‘Identification cards held or issued to aliens of
the “nonimmigrant” class shall be rubber-stamped as
follows:
NONIMMIGRANT
ee ee eee eee
Immigrant Inspector.
\
9. To insure uniformity stamps furnished by the Bu-
reau, only, shall be used and blank spaces, including
that for signature, shall be filled in by the use of in-
delible pencil.
10. All identification cards heretofore issued, held
by aliens who cannot, or do not, meet the requirements
of law, regulations and th's onder, will be taken up
and canceled upon an incoriing trip of the nolder and
appropriate action taken.
11. The work of validating \pilseendien cards
should proceed slowly, systematically, steadily and
persistently, and in such a manner as to avoid con-
. fusion, congestion, interference with proper routine ad-
ministration and the giving of just grounds for” com-
plaint upon the part of the traveling public »° ., -
SOT eC Cae oe eee herd
intel
12. The status of holders of identification cards
shall be inquired into periodically, preferably every
six months from date stamped, where practicable, but
in any event not less frequently than once a yeer..
When inquiry has so made, it will be evidenced’
by a notation to show date of such inquiry and initials
of the officer upon the reverse of the card. When the
holder of a “nonimmigrant” identification card quali-
fies as an “immigrant,” a new identification card shall
be issued, stamped to shov: the correct status.
/s/ George J. Harris
GEORGE J. HARRIS,
Acting Commissioner General.
APPROVED:
/s/ Robe Carl White
ROBE CARL WHITE,
Assistant Secretary.
OL I Reh eI Oe Oe SMB,
st IS
SR as eats
on, | Cae
Cases found on pages 546-552 of the case of Trans-
atlantica Italiana v. Elting, 66 F.2d 542, whereby
Judge Learned Hand ruled that Italian aliens were re-
turning from ,a temporary absence abroad and, there-
fore, not excludable:
Action No. 479.
No. 2. Absent one year five months. In United
States seventeen years; wife and family in Italy; went
to take care of old mother; meant to bring family
here; overstayed six months .because of wife’s sickness;
owned property in New Jersey.
vw
No. 5. Absent one year five months. In United
States nine years. Took wife to Italy with him; had
property and business in both countries; delayed by
sickness.
No. 7. Absent one year five months. In United
States fourteen years. Took wife with him to visit and
was sick for year with malaria.
No. 8. Absent one year two months. In United
States eighteen years. Wife in Italy; took out passport
within five months, but could not get passage.
No. 15. Absentyone year four months. In United
States nine years. Had declared intention to become citi-
zen. Went to get married, but sick for eleven months.
Warned on visa, but one member of Board voted to
admit.
No. 18. Absent two years three months. In United
States eight and a half years. Wife in Italy, whom he
left to marry; one member voted to admit. Stayed over
to get money from bank which failed.
Action No. 480.
Saet Lae ime .
a) ae
No. 8. Absent one year one month. In United
States sixteen years with one absence of a year. Evi-
dence that he tried to return four months earlier.
No. 29. Absent one year six months. In United
States twelve years. Wife and three children in Italy.
Left motorcar here. Delayed by sickness. One member
of Board voted to admit. »
No. 54. Absent one year-three months. In United
States seven years. Declared intention just before leav-
ing. Married, delayed by sickness, trachoma not dis-
coverable.
| 8 USC 1181(b).
Readmission without required documents; Attorney
General's discretion
(b) Notwithstanding the provisions of section 1182
(a) (20) of this title in such cases or in such classes
of cases and under such conditions as may be by
regulations prescribed, returning resident immigrants,
defined in section 1101(a)(27)(B) of this title, who
are otherwise admissible may be readmitted to the
United States by the Attorney General in his discretion
without being required to obtain a passport, immigrant
visa, reentry permit or other documentation.
8 CFR 211.1(b) (1).
(b) Aliens returning to an unrelinquished lawful
permanent residence— (1) Form 1-151, Alien Regis-
tration Receipt Card. In lieu of an immigrant visa, an
immigrant alien returning to an unrelinquished lawful
permanent residence in the United States after a tem-
porary absence abroad not exceeding 1 year may pre- .
sent Form I-151, Alien Registration Receipt Card, duly
issued to him: Provided, That during such absence he
f
'
ae
did not travel to, in, or through any of the following
places: Cuba and Communist portions of Korea or Viet-
Nam, and, except for children who have not attained
the age of 16 at the time they apply for admission
into the United States, Albania, Bulgaria, Czechoslova-
kia, Estonia. Hungary, Latvia, Lithuania, Outer Mon-
golia, People’s Republic of China, Poland, Romania,
P= a, NE en
the Soviet Zone of Germany (“German Democratic ~
Republic”), the Union of Soviet Socialist Republics, or
Yugoslavia. The foregoing restrictions shall. not apply
when the alien has passed in direct and continuous
transit through the Soviet Zone of Germany to Berlin
from West Germany by automobile, rail, or plaiie and
returned to West Germany; or when the alien has
passed in direct and continuous transit through Yugo- -
slavia to or from Austria, Greece, or Italy. An alien
regularly serving as a crewman in any capacity required
for normal operations and services aboard an aircraft
or vessel of American registry who is returning to an
unrelinquished lawful permanent residence in the
United States after a temporary absence abroad not
exceeding one year may, in lieu of an immigrant visa,
present Form I-151, duly issued to him, notwithstand-
ing travel to, in, or through any of the restricted places
named in this subparagraph pursuant to his employ-
ment as a crewman. An alien who proceeded abroad
temporarily without a reentry permit and in whose case
subsequent to his departure from the United States the
Department of State has approved travel to, in, or
through Cuba, or Communist portions of Korea or Viet-
28 ER PE AER em OUTS Core Re ely ~ lon,
ae |, ae
Nam, may, in lieu of an immigrant visa or reentry
permit, present Form I-151 together with the letter
from the Department of State approving his travel to,
in, or_through the place or places named in the letter,
if he is returning to an unrelinquished lawful per-
manent residence in the United: States after a tempo-
rary absence abroad not exceeding one year. An alien
who proceeded abroad temporarily without a reentry
permit and in whose case subsequent to his departure
from and prior to his return to the United States the
Service has approved travel to, in, or through any of
the other place or places named in this subparagraph
for which Form I-151 is not valid may, in lieu of an im-
migrant visa or reentry permit, present Form I-151/ to-
gether with the letter from an officer of the Service
approving his travel to, in, or through the place or
places named in the letter, if he is returning to an
unrelinquished lawful permanent residence in the
United States after a temporary absence abroad not
exceeding 1 year. When returning to an_ unrelin-
quished lawful permanent residence in the United
States after a temporary absence abroad, a spouse or
child of a member of the Armed Forces of the United
States or of a civilian employee of the U.S. Government
stationed foreign pursuant to official orders may, in
lieu of an immigrant visa, present Form I-151, pro-
vided such spouse or child resided abroad while such
member of the Armed Forces or such civilian employee
was on overseas duty and is preceding or accompany-
ing the member or employee, or is following to join .
a) | a
the member or employee in the United States within
4 months of the member’s or employee’s return, and
during the temporary absence did not travel to, in, or
through any of the restricted places named in this sub-
paragraph, except those named places concerning
which the restrictions do not apply when an alien has
passed in direct and continuous transit through such
areas. When the Secretary of Labor determines and an-
nounces that a labor dispute involving a work stoppage
or layoff of employees is in progress at a named place
of employment, Form I-151 shall be invalid when pre-
sented in lieu of an immigrant visa or reentry permit
by an alien who has departed for and seeks reentry
from any foreign place and who, prior to his departure
or during his temporary absence abroad has in any
manner entered into an arrangement to return to the
United States for the primary purpose, or seeks reentry
with the intention, of accepting employment at the
place where the Secretary of Labor has determined that
a labor dispute exists, or of continuing employment
which commenced at such place subsequent to the date
of the Secretary of Labor’s determination. —
—
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Report From the Committee or. the Judiciary to
Accompany H.R. 981, September 11, 1973.
ADDITIONAL VIEWS OF THE HONORABLE
PETER W. RODINO, JR.
I am in complete agreement with the major objec-
tives of H.R. 981 and with one significant exception
I strongly support this legislation. The 1965 amend-
ments to the Immigration and Nationality Act abolished
the national origins quota system and also imposed —
for the first time a numerical limitation of 120,000 on
immigration from the Western Hemisphere. This limita-
tion was added in the later stages of consideration of
the 1965 legislation and it was not fully integrated into
the basic design of the Immigration and Nationality Act
since it failed to provide an adequate mechanism for
selecting immigrants from the Western Hemisphere
(i.e. preference system).
Therefore, when the Western Hemisphere ceiling
took effect in July, 1968, there was an imbalance
between the immigration provisions dealing with the
Eastern and Western Hemisphere and this imbalance
was directly attributable to the omission of a preference
system for the Western Hemisphere. This omission has
caused considerable hardship for citizens and lawful
permanent residents ct the United States as well as for
many intending immigrants. The need for such a pref-
erence system has been universally recognized and the
enactment of H.R. 981 will remedy this serious and
unintended defect in our immigration laws.
Although this legislation will significantly advance
the desirable goal of adopting uniform provisions for the
Eastern and Western Hemisphere, this legislation deals
very unjustly and unwisely with Canada and Mexico
ae
a
|
by imposing a numerical limitation of 20,000 on im-
migration from each of these countries.
We must not fail to recognize that both Mexico and
Canada stand in a relationship to us that is unique.
We share common borders, we occupy the same con-
tinent. We cannot ignore these facts, even if we might
wish to. It has been said that the same kind of argu-
ment was used to justify the national origins quota
system which discriminated in favor of certain coun-
tries such as Great Britain, Ireland and Germany. It
may well be that the same words were used, but their
meaning was vastly different. The unique or special re-
lationship which existed between us and those other
countries was based on historical and sentimental con-
siderations, combined with elements of racial prejudice.
The uniqueness of our relationships with Canada and
Mexico lies not merely in historical or sentimental fac-
tors, but more importantly in the practical day-to-day
process of living together on the same continent.
Our dealings with Canada and Mexico are of a
kind that merit the term “unique”. There are reciprocal
agreements concerning manufactured goods; many
unions in the United States have locals in Canada;
many American firms have branches in Canada sud/or
Mexico and many Canadians firms have branches in
the United States. In addition, there are many cultural
and social and other economic ties between our
countries which link us together on a daily basis.
Canada is our most important trading partner and we
are theirs. Graduates of Canadian medical schools are
eligible to seek licensure in the United Staics without
the additional requirements that graduates of medical
schools in other countries must meet.
i
Certainly this cooperative pattern has been mutually
beneficial in promoting friendly relationships with our
two contiguous neighbors. Recognizing the special re-
lationship, the Administration in their bill, H.R. 9409,
proposed separate immigration allotments of 35,000,
aunually for Canada and’ Mexico. Representatives of
the Departments of State and Justice and the vast ma-
jority of public witnesses who testified before the Sub-
committee on Immigration, Citizenship, and Interna-
tional Law supported an increased allotment of visa
numbers for Canada and Mexico. However, the bill
. how reported by this Committee has rejected this
recommendation. Instead, as I have noted, H.R. 981,
as amended, imposes an annual Jimitation of 20,000 on
immigration from all Western Hemisphere countries,
similar to the present per-country limitation on Eastern
Hemisphere countries.
On its face, this provision has the appearance of fair-
ness since each country is treated in a uniform manner.
While I. am most sympathetic to the concept of equal
treatment for all countries with respect to immigra-
tion, I feel that this equitable principle may have led
us into an unfortunate situation in this particular case.
First of all, I agree that we cannot and should. not
attempt to. solve any population or employment prob-
lems either country might have through our immigra-
tion policies nor do I believe that Canada and Mexico
wish us to do so. But, it is very evident that our im-
migration policies are viewed in these countries as an
aspect of our overall attitude toward them. Prior to
1968 there was no numerical limitation on immigration
to the United States from any Western Hemisphere
country. However, as a result of the 1965 legislation,
all countries of this Hemisphere were subjected to the
—20—
120,000 hemispherical limitation. This limitation had a
severe impact on immigration from Canada. Interesting-
ly enough, the Canadians weye aware of this develop-
ment from its inception and began to launch. diplo-
matic protests even before the ceiling became operative.
Since that time the Canadians have discreetly and per-’
sistently made their objections known to our govern-
ment. Mexico, on the other hand, was not adversely af-
fected by the 1965 amendments and, in fact, has been
the principal source of Western Hemisphere immigra-
tion for the past five fiscal years.
Consequently, at the present time we have a situa-
tion in which one of our neighbors has been drastically
affected by existing legislation but the other one has
not. H.R. 981, as amended, would have the unfortu-
nate, dual result of failing to alleviate the adverse im-
pact on Canadian immigration and at the same time
creating a new restriction on Mexican immigration.
For example, the last annual report of the Immigra-
tion and Naturalization Service shows that during fiscal
year 1972 there were 64,040 immigrants from Mexico,
of whom 41,707 were subject to the Western Hemis-
phere numerical limitation. Enactment-of-the 20,000
cciling would thus result“in an immediate reduction of
over 50% in lawful immigration from Mexico.
It seems to me that this drastic reduction in lawful
immigration from Mexico is unsound and undesirable.
In a bill designed to deal fairly with Western Hemis-
phere countries, it operates restrictively against our
friendly neighbor, without any apparent justification.
All of us are familiar with the enormous problem cur-
rently posed by illegal immigration from Mexico. In
seeking to control that problem it seems essential to re-
tain opportunities for legal immigration. Indeed, in its
o
Ree, eae
Final Report of January 15, 1973, the Special Study
Group on Iflegal Immigration from Mexicio, appointed
by the President after discussions with the President of
Mexico, urged that there be no reduction in the present
level of lawful immigration from Mexico. Yet H.R.
981 would accomplish an immediate reduction of over
50% in the number who could immigrate lawfully.
By curtailing the opportunities for lawful immigration
from Mexico, H.R. 981 would unfortunately give fur-
ther impetus to the pressures for illegal immigration.
It is necessary for us to take into account also the
effect of this measure on our foreign relations, par-
ticularly with Mexico. Since the actual effect of the
20,000 limitation would be a marked reduction in im-
‘ migration from Mexico, the Government of that country
might well regard this legislation as an affront to its
people.
The difficulties that I have mentioned could be avoid-
ed by providing a separate visa allocation of 35,000
each to Canada and Mexico; or alternatively, by pro-
viding for the issuance of special visas to natives of
these countries. The additional immigration that would
be ‘involved is insignificant and separate treatment for
these countries can be justified because of the special
relationship which exists with our neighboring countries.
Through the simple expedient of increased ceilings or
special visa allocations, we would demonstrate to our
neighbors our awareness of their problems and our de-
sire to deal with them in a constructive and cooperative
manner. I believe that such a provision would greatly
assist in promoting friendly relationships with Canada
and Mexico and would certainly further our national
interests)
Peter W. Rodino, Jr.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.