Amicus Curiae Brief — Saxbe v. Bustos

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INDEX

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CITATIONS

CASES:

Amalgamated Meat Cutters v. Rogers, 186 F. Supp

ic kccnichassssabusinsnnenrienignn ioe ansnospiniinns terion 2,11

Gooch v. Clark, 433 F.2d,74 (C.A. 9), cert. denied

BO S Dasiiteneniivinco evtseconbidinniscnimncntomcenndvoniion 2, 4, 5, 8, 12, 15

Matter of M-D-S- et al., 8 L&N. Dec. 209 ............scsssseeeees 10

Texas State AFL-CIO v. Kennedy, 330 F.2d

Oe iii. did scsi sinceensanashaanasaacnulnisabnbacieneidioiantanss 2

Woodley v. Immigration Service, 385 U.S. 276 ........++ 15

Woodwork Mfrs. Assn. v. NLRB, 386 U.S. 612 ............. 16

STATUTES:

Immigration and Nationality Act of 1952, as amended,

8 U.S.C.:

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MISCELLANEOUS: <

115 Cong. Rec. 7731-7742 (1969) sscssssssssccssessenesenee 24

H. Rep. 1365, 82nd Cong., 2nd Sess. ............cscssesesssenees | 7

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Supreme Court of the United States

OCTOBER TERM, 1973

No. 73-300

Wiiuram B, Saxe, ATTorNEY GENERAL, ET AL.,

Petitioners,

v.

Rosert Bustos, ET AL.

No. 73-480

CrisTOBAL CARDONA, ET AL.,

Petitioners,

v.

Wu. B. Saxse, ATrorNEY GENERAL, ET AL.

On Writs Of Certiorari To The United States Court Of

Appeals For The District Of Columbia Circuit

BRIEF FOR THE

AMERICAN FEDERATION OF LABOR AND

CONGRESS OF INDUSTRIAL ORGANIZATIONS

AS AMICUS CURIAE

This brief amicus curiae, in support of the position of

the plaintiffs below (cross petitioners and respondents

here), is filed by the American Federation of Labor and

Congress of Industrial Organizations with-the consent of

the parties, as provided for in Rule 42 of the Rules of

this Court.

INTEREST OF THE AFL-CIO

The AFL-CIO is a federation of 111 national and inter-

national labor unions having a_ total membership. of

approximately 14,000,000 working men and women. The

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plaintiffs below in this case are members of the United

Farm Workers of America, AFL-CIO. Moreover, the AF'L-

CIO or its affiliates have been parties to the three prior

cases in which the Attorney General’s practice of allowing

the class of aliens commonly called commuters to freely

enter this country has been challenged: Amalgamated Meat

Cutters v. Rogers, 186 F. Supp. 114 (D.D.C.) ; Texas State

AFL-CIO vy. Kevnedy, 330 F.2d 217 (C.A.D.C.); Gooch v.

Clark, 433 F.2d 74 (C.A. 9) cert. denied 402 U.S. 995.

The labor movement’s interest in and concern over the :

commuter practice is readily explained. During the last

ten years a number of statistical studies have been made

as to the economic effect of this practice. The data thus

amassed are set out at 115 Cong. Rec. 7731-7742-€1969)_---—

ay be briefly summarized as follows. Each year some

uters enter this country from Mexico to work

in southern Texas, Arizona and California. (115 Cong.

Rec. 7736.) The bulk of them enter to take unskilled bluc-

collar jobs; roughly 40% are farm workers, 9% are

laborers, 7% are maids and 6% are hotel and restaurant

employees. (115 Cong. Rec. 7738.) These commuters com-

prise a substantial portion of the workers employed in the

border area: they make up 23% of the Brownsville, Texas’

total labor force, 17% of, El Paso’s and 5% of San Diego’s.

(115 Cong. Rec. 7733.) The border areas consistently show

a higher unemployment rate than the remaining portions

of Texas, Arizona and California. In the first 6 months of

1967, for example, none of the 13 border areas had a lower

unemployment rate than the average for the state, and 7

of them, all in Texas, had an unemployment rate of twice

the state-wide average. In border cities such as Laredo,

Texas and El Centro, California, unemployment rates ex-

ceeding 10% are common. (115 Cong. Ree. 7739.)

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As is to be expected in an area of such high unemploy-

ment, border wages are low; ‘‘industry by industry, county

by county, the pattern is the same—earnings in border

areas are lower than average earnings in the State.”’

(115 Cong. Rec. 7740.) In Imperial County, Calif., the

average weekly nonfarm wage is $20 less than the state

average. In Santa Cruz County, Arizona, it is $29 less

than the state average. In 9 Texas border counties ‘‘it is

at least $25 less, and often more.’’ (Id.)

: Commuters are a major causitive factor of the adverse

situation facing domestic workers in border areas. For

example, a 1961 Department of Labor survey of Laredo

and El Paso, Texas showed that ‘‘a large number of

ae ie unemployed American workers had the same occupational

skills as the employed alien commuters.’’ In one instance

two garment firms employed 88 commuters as sewing ma-

chine operators. At this same time, the files of the ‘‘Texas

Employment Commission contained applications from 156

unemployed American workers with the same occupation.”’

(115 Cong. Rec. 7733, 7740.) The survey also found that

the wages paid by firms employing only American workers

were 38% higher than those paid by firms employing alien

commuters and that ‘‘there were cases where a single firm

employing both commuters and Americans would pay the

- commuters less than the Americans similarly employed.’’

- (115 Gong. Rec. 7740.) Thus, as Senator Walter Mondale

pointed out:

ra ‘¢M]Jexican aliens, as a group, serve as a readily avail-

able low-wage work force which undermines the stan-

dards workers generally enjoy throughout the rest of

the United States. As a result, the forces of free en-

terprise are prevented from operating to devlop stan-

dards along the border commensurate with normal

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American standards * * * [T]heir employment in this

country is clearly detrimental to the economic condi-

tions, the job opportunities, and the organizing and

collective bargaining efforts of American workers,

because they have little or no stake in the resolution of

domestic labor disputes. Indeed, it is clear that these

nonresident commuters, as well as illegal entrants, are

widely used as strikebreakers.’’ (115 Cong. Rec. 7742.)

The basis upon which the AFL-CIO determined to state

its views to this Court is equally straightforward. We agree

with the points made in the thorough and painstaking brief

filed in this Court by the plaintiffs below. That brief, how-

ever, places its main reliance on the 1965 amendments to ,.

the Immigration and Nationality Act of 1952, rather than

on the modifications to the prior law made in the Act itself.

It is our view that what Congress did in 1952, standing

alone,’ requires judicial disapproval of the commuter prac-

tice. That, too, was the conclusion of Judge Eugene Wright

in his dissent in Gooch v. Clark, supra, 433 F.2d at 82-88.

The argument we develop herein is therefore devoted to

an exposition of the conclusions to be drawn from the 1952

Act. The focus of that discussion will be Judge Wright’s

closely reasoned dissent in Gooch, the substance of which,

we submit, warrants adoption by this Court.

ARGUMENT

Congress, in the Immigration and Nationality Act of

1952, as amended, has stated the rules governing the entry

of ‘‘aliens’’! into the United States. That Act ‘‘charge[s]

* * * the Attorney General * * * with the administration

and enforcement’’ of those rules. (8 USC § 1103.) In ful-

1** Any person not a citizen or national of the United States.’

(8 U.S.C. § 1101(a) (3).)

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filling that charge the Attorney General is, of course,

obliged to conform his actions to the rules Congress has

mandated. We shall now demonstrate that the Attorney

General has failed that obligation by permitting entry of

a class of aliens, commonly called ‘‘commuters,’’ that the

Act renders ineligible for admission.?

1. We begin that demonstration by considering the lan-

a Ee guage and structure of the Act. A ‘‘commuter”’ is an alien

whose sole permanent residence is in Mexico or Canada and

who is permitted by the Attorney General to enter the

United States to work in this country on a daily or-seasonal

basis as an ‘‘immigrant’’* exempt from the valid unexpired

visa requirement imposed by 8 U.S.C. §1181(a).* The sole

2

‘* According to an I. & N.S. survey, most commuters who enter

the United States are farmworkers, genera) laborers, or do-.

mestics. all of whom are in competition with petitioners. See

115 Cong.Rec. 7737-7738 (1969). At the present time the

Secretary of Labor will not certify that such workers are in

short supply in the United States, or that the admission of

aliens for such purposes will not adversely affect wages and

working conditions here. 29 C.F.R. § 60(a)(2) (1970). Hence

under § 1182(a) (14) of the Act, such aliens are ineligible for

visas as special immigrants. Unless they can enter without a

visa as commuters, therefore, they cennot enter the United

States at all. (SKilled workers, whose trades are in short supply

pe in this country, have no difficulty obtaining visas as special

immigrants; elimination of the commuter status would md@ke

no difference to them.)’’ Gooch v. Clark, 433 F.2d 74, 82

(C.A.9) cert. denied 402 U.S. 995 (Eugene Wright, J., dis-

senting). .

3 s

‘*Every alien except an alien who is within one of [12 enu-

merated] classes of non-immigrant aliens.’”’ (8 U.S.C.

§1101(a)(15).) +

‘‘Except as provided in subsection (b) of this section no im-

migrant shall be admitted into the United States unless at the

time of application for admission he (1) has a valid unexpired

immigrant visa or was born subsequent to the issuance of such

visa of the accompanying parent * * *.’’ (8 U.S.C. § 1181(a).)

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exception to the documentation requirement of §1181(a) is

that é

returning resident immigrants, defined in section

1101(a)(27)(B) of this title, who are otherwise atl-

missible 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 U.S.C. § 1181(b).)*

Thus, the only immigrants lacking a valid unexpired visa

the Attorney General is authorized to admit into this coun-

try are ‘‘returning resident immigrants defined in section

1101(a)(21)(B).’’ For the Attorney General to prevail

here he must therefore establish that a commuter, who by

definition has his sole permanent residence in Mexico or

Canada, and who enters the United States solely to work

is a ‘‘returning [United States] resident.’’ Given the utter

ineongruity of that conclusion on its face it is not surprising

that the Attorney General can not do so.

The definition of the term ‘‘returning resident immi-

grants’’ to which the §1181(b) exception is keyed is:

‘‘An immigrant, lawfully admitted for permanent resi-

dence, who is returning from a temporary visit

5 From 1952 until 1965 §1181(b) provided for informal read-

mission of ‘‘aliens lawfully admitted for permanent residence who

depart from the United States temporarily.’’ It is our view that

this change in language need not be accorded significance for the

plaintiffs below to prevail here. For, from 1952 until 1965, as

today, the crux of this case is the proper construction of the term

‘awfully admitted for permanent residence’’ ‘See pp. 7-15,

infra.) While we do not develop the point we note, however, that

the plaintiffs below have argued throughout that this change does

provide support for the proposition that the Attorne;’ General’s

action in permitting commuters to enter the United Stites contro-

venes the Act. x

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abroad.” (8 U.S.C. § 1101(a)(27)(B).)

That section, by its use of the phrase ‘‘lawfully admitted

for permanent residence,’’ in turn incorporates by reference

8 U.S.C. §1101(a)(2). For, ‘‘Section 1101(a)(20) defines

precisely the term ‘lawfully admitted for permanent resi-

dence.’ This term has especial significance because of its

application to numerous provisions of the bill.’’ (H. Rep.

1365, 82nd Cong., 2nd Sess., p. 32.) Section 1101(a) (20)

states:

“The term ‘lawfully admitted for permanent resi-

dence’ means the status of having been lawfully ac-

corded the privilege of residing permanently in the

United States as an immigrant in accordance with the

immigration laws, such status not having changed.’’

Insofar as he treats with the language ‘of the Act at all,

the Attorney General rests his case on the following read-

ing of §1101(a) (20):

‘‘Upon lawful admission as an immigrant, an alien

acquires a status which gives him the privilege of

residing permanently in the United States. So long as

that status is not changed, the alien who has been law-

fully admitted for ‘permanent residence retains the

privilege of establishing a permanent residence in this

country.’ * * * [A]s the Ninth Cireuit correctly ob-

served in Gooch v. Clark, supra, 433 F.2d at 79, the

reservation in 8 U.S.C. 1101(a)(20) concerning ‘such

status not having changed’ refers primarily to the

change of \status from that of an immigrant lawfully

admitted for permanent residence to that of a nonimmi-

grant, pursuant to 8 U.S.C. 1257. See Matter of S.,

6 I&N Dee. 392 (Attorney General); Matter of M.P.,

9 I&N Dec. 747. Lawful residence status may also be

lost if the returning immigrant reenter: surrepti-

tiously. Matter of M.,5 1&N Dee. 642. And ai alien with

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lawful residence status may be refused readmission if

his reentry is barred on a substantive ground specified

in the statute. United States ex rei. Claussen v. Day,

279 U.S.'398; United States ex rel. Karpay v. Uhl, 70

F.2d 792 (C.A. 2). But there is no basis in the statu-

tory language or purpose for an assumption that status

as an immigrant lawfully admitted for permanent resi-

dence is lost or abandoned by failure to establish a

home in the United States.

‘15 Since the commuter’s status is tied iv continued em-

ployment in this country, it has been the administrative view

that such status is lost if the commuter is out of such employ-

ment for a period of six months, unless the unemployment was

caused by uncontrollable circumstances, such as serious illness,

disabling injury, or pregnancy. Matter of D.C., 3 I&N Dee.

519; Matter of L., 4 I&N Dee. 454 (1951) ; Matter of Burciaga-"

Salcedo, 11 I&N Dee. 665 (1966); Matter of M.D.S., 8 I&N

Dee. 209; Matter of Wighton, 13 I&N Dee. 683.’’

(Fed. Parties Br. pp. 25-26; emphasis in original.)

In other words, the Attorney General argues that the

issuance of a valid visa to an alien creates in that indi-

vidual a lifetime status as an immigrant ‘‘lawfully admitted

for permanent residence’’ (within the meaning of § 1101

(a)(20)) which is subject to forfeiture on the limited

grounds stated in his brief but not on the ground that the

immigrant has not established or maintained a permanent

residence i in the United States.

This argument suffers from two fatal flaws. First, while

it is pressed for the purpose of this litigation, it is incon-

sistent with the Attorney General’s original understanding.

In his dissent in Gooch v. Clark, Judge Wright traced the

evolution of the Attorney General’s efforts’ to provide a

rationale for the commuter practice. For the Court’s conve-

‘”

9

nience we set out that portion of his opinion in the margin.®

‘*T think it important to point out that we are uot presented

here with any consistent or coherent interpretation of the

7 sort to which courts have traditionally deferred. Cf. Norwegian

l Nitrogen Co. v. United States, 288 U.S. 294, 315, 53 S.Ct. 350,

. 77 L.Ed. 796 (1933). Indeed, to the extent that the Service

, . has in the past advanced any consistent interpretation of the

Immigration Act, that interpretation has been directly in

conflict with the Service’s position in this case.

‘It is of course true that the Service has since 1952 con-

tinuéd to admit commuters to the United States without

liring entry visas. But the Service itself has admitted that

e rea) basis of the practice is not :tatutory command but

’ administrative fiat :

‘The commuter situation manifestly does not fit into any

precise category found in the immigration statutes, The

status is an artificial one, predicted upon good interna-

tional relations maintained ana cherished between friendly

neighbors.’ :

Matter of M—D—S— et al., 8 1. & N. Dee. 209, 213 (1958)

(emphasis supplied).

‘‘Nor has the Service sought to legitimize this essentially

lawless position by regulations describing and controlling the

operations of the commuter system. Prior to 1952, of course,

such regulations existed. But they were repealed upon passage

of the Immigration Act and never again republished—eloquent

testimony, in and of itself, to rebut the Service’s current view

- that Congress in 1952 intended né change in the commuter

p ’

. “Despite the absence of regulations, however, commuters

continued to cross the border freely. The Service took the

| : position that the 1952 Act had not disturbed ‘the practice of

considering commuters as permanent residents,’ and relied

| : ... on the ‘fiction of a commuter’s permanent United States resi-

dence coinciding with his place of employment.’ Matter of

H— O—, 51. & N. Dee. 716, 718-19 & n. 13 (1954).

“This position was formalized in a regulation issued in 1957

which; with vhanges not material here, remaired in force until

1966. It read as follows : eee:

*§ 211.1 Visas. A valid, unexpired immigrant visa shall

be presented by each arriving immigrant alien except an

immigrant who (a) was born subsequent to the issuance

of an immigrant visa to his accompanying parent and

applies for admission during the validity of sueh visa, or

(b) is returning to an unrelinquished lawful permanent

_ residence after a temporary absence abroad (1) not ex-

A LEE SS WELT LE IAC NIA I AE NEI 0

10

As Judge Wright demonstrates, the Attorney General,

contrary to his present argument, initially recognized that

an immigrant’s “abandon[ment of} his status of a perma-

nent resident in the United States’ does render that immi-

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‘pct

grant inadmissible ‘without again qualifying for admission

1 as a permanent resident.’’ (Maticr of M-D-S- et al., 8 1&N.

Dee. 209.) But he sought to escape the force of that recog-

3

!

nition by adoption of the fiction that maintenance of perma-

nent employment in theaUnited States is sufficient to pre-

ceeding one year and present a Form 1-151 alien registra-

tion receipt card duly issued to him, or (2) presents a

valid unexpired re-entry permit duly issued to him, or (3)

satisfies the district director in charge of the port of

’ entry that there is good cause for the failure to present

the required document, in whick case an application for

waiver shall be made on Form I-193.’

22 Fed.Reg. 6377 (1957) (emphasis supplied).

‘‘The regulation is plainly inconsistent with the Service’s

present position. It clearly forbids the entry without a valid

or re-entry permit of any immigrant not returning to an

‘unrelinquished lawful permanent residence’ in the United

States, and thus makes the privilege of using a Form I-151

_to gain entry dependent upon actual residence in the United

States. It is compatible with the commuter practice, which

continued during the years 1957-66, only on the assumption,

apparently made by the Service, that a commuter’s place -~of

employment constitutes an unrelinquished lawful permanent

residence in the United States.

‘*The same view of the Act was taken by the Service in the

1958 decision in Matter of M— D— S—, et al., supra. That

was an appeal by the District Director from a finding by the

Special Inquiry Officer that certain alien commuters had been

improperly excluded. The aliens had been issued immigrant

visas, had used them to acquire Forms I-151, and had until

a little more than six months previously been employed in the

United States and admitted as commuters. When they sought

to gain entry into the United States, they presented their still

valid Forms [-151. The District Directors, however, excluded

them on the grounds that they could not claim commuter

status if they had had no United States employment for six

months previously.

**The Special Inquiry Offiter, adopting essentially the posi-

tion now anged by the Service, ruled that since the aliens had

11

serve an immigrants **status of a permanent resident in the

United States.’’ The Act, however, defines the terms ‘‘ per-

manent’? and *tresidence’* as an individual’s ‘‘principal

actual dwelling place in fact without regard to intent’’ on

a “continuing or lasting’* basis. (See 8 U.S.C. §¢ T101(a)

(31) & (33).) Thus, this fiction could not be squared with the

Act, and was abandoned after being rejected in Amalga-

mated Meatcutters v. Rogers, 186 F. Supp. 114 (D.D.C.),

in favor of the rationalization presented in the brief for

the Federal Parties filed with this Court.

been lawiuity: adunkied ie permanent residence, they were

entitled to use the Form [-151 as long as the latter was valid—

at that time as now one vear. But the Board of Immigration

Appeals reversed, holding that by being unemployed for six

months the commuters had ‘abandoned "[ their] status of per-

manent resident{s].’ 8 T. N. Dec. at 213. Once again, therefore,

the Service expressed its understanding that actual residence

in the United States was essential to the commuter’s status as

an alien lawfully admitted for permanent residence but that

the commuter’s place of employment was such a residence.

‘This view of the Act was also the Service’s litigating posi-

tion before Judge Youngdahl in the Amalgamated Meat

Cutters case. See Memorandum in Support of Defendants’

Motion to Dismiss at 10; Note, Aliens in the Fields, 21 Stan.

L.Rev. 1750, 1755 (1969). But here the Service encountered

a well-deserved rebuff. Judge Youngdahl pointed out that the

Immigration Act itself defined ‘residence’ as a person’s ‘ place

of general abode * * * his principal, actual dwelling place in

fact, without regard to intent.’ 8 U.S.C. § 1101 (a) (33). The

language of the Act was obviously pebanaeianis with any

contention that a commuter’s place of employment could con-

stitute a residence. Judge Youngdahl therefore rejected the

Service’s position. 186 F.Supp. at 118-119.

‘Faced with this check, the Serviee was obliged ‘to re-

examine the provisions of the 1952 Act, * * * and to adopt a

new theory of the legal basis for the commuter practice.’ Note,

supra, 21 Stan.L.Rey. at 1757. Hence, when the commuter

practice once again came under attack in Texas State AFL-

CIO v. Kennedy, 117 U.S. App.D.C. 343, 330 F.2d 217 (1964),

the Service was ready with the theory it now a@-ances—that

the commuter was not required to establish any residence in

the United States, either fictitious or actual. > (433 F.2d at

87-88.)

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12

Second, the Act makes perfect sense so long as “he priv-

ilege of entry without the necessity of presenting: a visa

granted in § 1181(b) is limited to true resident immigrants ;

in contrast the cdurt below recognized that:

‘‘As Judge Wright so persuasively pointed out in his

dissenting opinion in the Gooch case, the construc-

tion of ‘lawfully admitted for permanent residence’ as

including commuters ‘makes nonsense of the Congres-

sional policy embodied in no fewer than five sections

of the Act entirely apart from § 1101(a) (27) (B), and is

contrary to the plain meaning of two others.’’’ (481

F.2d at 843; footnote omitted.)

arn.

Once again, for the Court’s convenience, at this point we

set out in full in the margin, and despite its length, a por-

tion of Judge Wright’s dissent in Gooch—in this instance

his masterful exposition of the absurdities which follow

from the Attorney General’s litigating position as to the

meaning of §1101(a)(20).7 The Attorney General’s sole

‘‘Take first § 1182(h) and § 1182(i). These sections provide

for waiver by the Attorney General, under certain circum-

stances, of the ban against entry of aliens who have been

convicted of a crime or who have procured entry documents

by fraud. In both cases the Attorney General may grant waiver

only if the alien is the spouse, child, or parent of ‘a United

States citizen or of an alien lawfully admitted for permanent

residence.’ If an alien lawfully admitted for permanent resi-

dence is taken to be one who actually resides or actually

intends to reside in the United States, then the sections

embody a humanitarian. family-maintaining policy for resi-

dents of the United States. But I can think of no reason why

Congress would choose to extend favored treatment, for ex-

ample, to a Mexican convicted of a crime, simply because he

was the parent of a commuter resident in Tijuana.

‘“Or take § 1182(a) (14). Read together with § 1101(a) (27)

(A), the effect is to provide that a Mexican lakocor seeking to

enter the United States as a special immigrant (not as a com-

muter) must receive Labor Department certification unless he

is the parent, child, or spouse of a United States citizen or of

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response is:

**Whether the statutory phrase [defined in ¢ 1101(a)-

(20)} must be read to include commuters in contexts

other than the commuter’s status for purposes of read-

mission to the United States has not been presented to

an alien lawfully admitted for permanent residence. Once

again, this is a sensible and humanitarian policy if the laborer’s

relatives actually reside in the United States. But why would

Congress want to allow a Mexican laborer into the country as

a special immigrant without certification, simply because his

son is a commuter—by definition a resident of Mexico?

‘‘There are similar examples in other contexts. Thus-§ 1153

(a)(2) awards second preference visas to the spouse, un-

married son or unmarried daughter of an alien lawfully

admitted for permanent residence. No doubt few visas would

be awarded to commuter families under this provision, since

immigrants born in the Western Hemisphere are exempt from

the numerical limitations on entry. § 1153(a). But it remains

hard to see why Congress would want to give special prefer-

ence to the children born abroad of parents who emigrate to

Canada or Mexico and become commuters.

‘*Pinally, § 1251(f) forbids the deportation of an alien who

procured entry -by fraud, if he is the spouse, parent, or child.

of a citizen or of an alien lawfully admitted for permanent

residence. Would this court really construe §1251(f) as

forbidding the deportation of a Mexican who had procured

entry by fraud, simply because he had a son who was a

commuter resident in Tijuana? I cannot believe we would, but

if the majority opinion is correct we would be obliged to.

**So far I have discussed only the untoward consequences

for other sections of the Act that flow from the majority’s

actual holding in this case—that commuters are lawfully

admitted for permanent residence. The reasoning of the ma-

jority, however, leads to consequences still more absurd than

the actual holding

‘“‘The majority argues that commuters are lawfully ad-

mitted for permanent residence simply because ‘each of them

at one time received a valid immigration visa.’ If this is

correct, it follows that all of the thousands of people, all over

the world, who have ever received a valid immigration visa,

also qualify as aliens lawfully admitted for permanent resi-

dence. Such aliens would not of course be commuters, since

never having come to this country thev could not be said to

be ‘returning irom a temporary visit abroad’ and would be

ineligible to use Form I-151 as an entry document. But since

according to the majority they were lawfully admitted for

EDGED AIRE NET pon CeG —

-—~—_

fins sie alia Bd Ste <7 a hi ae ne

4

14

the Service and need not be resolved in this case. The

interpretation of the phrase in other sectious of the

Act will, of course, depend upon the legislative purpose

expressed by those sections.’’ (Fed. Parties’ brief, p.

: 28.)

permanent residence, they are entitled to the benefits which

that status confers. .

‘‘Thus their relatives who have been convicted of crimes

are entitled to specially favorable treatment. § 1182(h). Their

relatives who enter this country by fraudulent means may

not be deported. § 1251(f). If they were born in the Western

Hemisphere, their relatives may enter as special immigranis

without certification by the Secretary of Labor. § 1182(a)

(14). Most startling of all, the unmarried sons and daurchters

of such.aliens are entitled to second preference visas even

though the alien himself might have been eligible for no

preference whatsoever. And all these consequences follow even

if the alien ‘lawfully admitted’ never leaves his homeland. If

Congress intended such a result, it chose an odd way of

saying so.

‘“Two other sections of the Act also suggest strongly that

the majority is incorrect in making ‘lawfully admitted for

permanent residence’ turn solely on the fact that an’ immigta-

tion visa was issued without regard to the residence or intended

residence of the alien. The first is § 1182(g¢). That section

grants privileges to the parent or unmarried son or daughter

of ‘a United States citizen, or of an alien lawfully admitted

for permanent residence, or of an alien who has been issued

an immigrant visa.’ If the majority position is correct, then

the entire last phrase is surpulsage,:since any alien who has

been issued an immigrant visa is an alien lawfully admitted

for permanent residence. Congress, however, seems to have

thought the categories distinct.

‘Second is the definition of the border-crossing card in

§ 1101(a)(6). The statute there distinguishes between an

‘alien lawfully admitted for permanent residence’ and an

‘alien resident in foreign contiguous territory.’ If one accepts

the Service’s construction of ‘lawfully admitted for permanent

residence,’ I suppose that it is possible to give some meaning

to the second phrase by construing it as applicable to non-

immigrants. But the question before us is precisely whether

the Government’s construction of the statute is correct. And,

approaching § 1101(a)(6) with an open mind, it would cer-

tainly appear that the plain meaning of the words indicates

that an ‘alien lawfully admitted for permanent residence’ is

not an ‘alien resident in foreign contiguous territory.’ ’’ (433

F.2d at 84-85.)

15

But, Judge Wright anticipated that response and provided

the complete answer to it:

‘The authors of the Act took the trouble carefully to

define the term, §1101(a) (20), and stated that a pre-

cise definition was necessary since ‘ihis term has es-

pecial significance because of its application to numer-

ous provisions of the bill.” H.R. Rep. No. 1365, 82d

Cong., 2d Sess., 1952 U.S. Cong. & Adm. News, 3,

1684. Congress could not have made clearer its inten-

tion that the ‘term be give a uniform significance ©

throughout the Act. We are thus not at liberty to adopt

one me; ning of ‘lawfully admitted for permanent resi-

dence’ :n §1101(a)(27)(B) and another in the other

sections where the phrase appears: if commuters are

lawfully admitted for permanent residence for pur-

poses of § 1101(a)(27)(B), then they must be lawfully

admited for permanent residence for purposes of all

other sections of the Act.’’ (433 F.2d at 83.)

What emerges from Judge Wright’s anlaysis is that

§ 1181(b) is simply one manifestation of the special solici-

tude Congress has evinced throughout the Act for true resi-

dent immigrants who, as this Court has noted, have fre-

quently ‘‘lived in this country for substantial periods’’

thereby ‘‘establishing strong * * * family, social and eco-

nomic ties here * * *.’’ (Woodby v. Immigration Service,

385 U.S. 276, 286.) A commuter, of course, does not have

all of those’ties that bind.

2. In apparent recognition that the language and struc-

ture of the 1952 Act are squarely contrary to his position

the Attorney General places his main reliance on the propo-

sition that the language of 8 U.S.C. § 1181(b)® is ‘‘similar

8 As passed in 1952 Outs provision authorized waiver of the visa

requirement for ‘‘aliens lawfully admitted for permanent residence

who depart from the United States temporarily.’’ For the present

language see p. 6 supra.

16

to that [of §13(b) of the 1924 Act*j and obviousiy Was

designed to conform with the interpretation of the prior

statute.’’ (Fed. Parties’ Br. pp. 32-33.) This is the statutory

premise for his elaborate argument that Congress has ‘‘in

effect * * * ratified’’ the commuter practice. (Fed. Parties’

Br. pp. 39-63.) But the 1952 Act did not reenact ¢ $13(b), it

made a vital change in the exception to the visa requirement.

Rather than according that special privilege to ‘immi-

grants who have been legally admitted,’’ the’ 1952 Act

accorded that privilege to immigrants ‘‘lawfully admitted

for permanent residence,’’ which term it defined with par-

tieularity. We have already discussed the ramifications of

that definition, and have demonstrated that it requires the

result for which the plaintiffs below contend. (Pp. 5-15,

supra.)

We are, of course, well aware that construing statutes

is not a grammar lesson or a scholastic exercise but rather

an endeavor to ascertain the legislative will. (See, e.g.,

Woodwork Mfrs. Assn. v. NLRB, 386 U.S. 612, 619-620.)

But when the language and structure of an act point in one

direction surely the least that is required if the opposite

direction i is to be taken is some affirmative indication that

Congress has not meant what the legislation it has passed

appears to say. The approach consistent with reason is

that where legislation in terms repudiates a prior admin-

istrative practice, that practice is thereby overruled unless

there is some clear indication in the legislative history that

Congress, nonetheless, did intend to preserve it. Otherwise

the absence of legislative history restating that which is

®The 1924 Act waived the visa requirement for ‘immigrants

who have been legally admitted to the United States and who

depart therefrom temporarily.’’

SRR 8 HS I NR Bi

17

plainly and unequivoeally stated in the law becomes de-

cisive. Placing such a burden of reiteration on the legisla-

ture would, of course, be an absurdity.

Thus, we believe that the decisive point here is that

there is not a word in the 1952 Act, the House Report, the

Conference Report or the debates which so much as imply

a desire on the part of Congress to sanction the commuter

practice. The Attorney General’s brave statement that

§1181(b) ‘‘cle&rly was designed to conform with the

interpretion of the prior statutes’’ (Fed. Parties Br. p. 33)

is fatally lacking in any support in the legislative record.

He builds his case on the proposition that Congress’ has

‘tin effect * * * ratified’? the commuter practice (Fed.

Parties Br. p. 39), but he fails to present any proof of that

proposition—for there is none.

ro

CONCLUSION

For the foregoing reasons, we respectfully submit that the

judgment below in No. 73-300 should be affirmed and the

judgment below in No. 73-480 should be reversed.

Respectfully submitted,

J. ALBERT WoL.

General Counsel, AFL-CIO

Rosert C. Mayer

LaurENCE Goip

736 Bowen Builditig

815 Fifteenth Street, N. W.

Washington, D. C. 20005

THomas KE. Harris

Associate General Counsel,

- AFL-CIO

815 Sixteenth Street, N. W.

August, 1974. Washington, D. C. 20006