Saxbe v. Bustos
Opinion of the Court
delivered the opinion of the Court.
Some aliens who have their homes in Canada or Mexico commute daily to places of employment in this country and others do so on a seasonal basis, a practice permitted by the Immigration and Naturalization Service. The question is whether the practice on the facts of these cases conforms with the Immigration and Nationality Act. It turns on the meaning of § 101 (a)(27.)(B), 66 Stat. 169, as amended, 79 Stat. 916, 8 U. S. C. § 1101 (a)(27)(B), which defines as one variety of “special immigrant” an immigrant “lawfully admitted for permanent residence, who is returning from a temporary visit abroad.”
Those who qualify under § 1101 (a)(27)(B) may be permitted entry without the usual documentation requirements. 8 U. S. C. § T181 (b). The regulations
The Act presumes that an alien is an immigrant “until he establishes . . . that he is entitled to a nonimmigrant status”;
An alien does not qualify as a nonimmigrant under this class of nonimmigrants if he seeks to perform temporary labor at a time when unemployed persons capable of performing that labor can be found in this country.
This suit was brought by the United Farm Workers Organizing Committee
Our conclusions are that commuters are immigrants, that they are “lawfully admitted for permanent residence,” and that they are “returning from a temporary visit abroad” when they enter the United States. Moreover, the wording and legislative history of the statute and the long administrative construction indicate that the same treatment is appropriate for both daily and seasonal commuters. Commuters are thus different from those groups of aliens who can be admitted only on certification by the Secretary of Labor that unemployed persons cannot be found in this country and that the employment of the aliens “will not adversely affect the wages and working conditions of the workers in the United States.” 8 U. S. C. § 1182 (a)(14). We thus agree with the con-
A main reliance of plaintiffs is on the provision of the Act
We agree, moreover, with the Ninth Circuit that this provision “was intended to confer nonimmigrant status on certain aliens who were needed in the American labor force but who, unlike commuters, would be unable to achieve admittance under immigrant status.” 433 F. 2d, at 78. The administrative construction of this subsection (15)(H)(ii) by the Immigration Service
We conclude that commuters are not nonimmigrants under subsection (15)(H)(ii). None of the other categories of nonimmigrants are applicable, and thus under § 1184 (b) the commuters are immigrants.
The fact that an alien commuter who has not shown he must be classified as a nonimmigrant must be classified as an immigrant is not the end of our problem. The question remains whether he may properly be treated as one who is in the group defined as “special immigrants” under subsection (27)(B),
Section 1101 (a) (20) defines “lawfully admitted for permanent residence” as “the status of having been lawfully accorded the ■privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed” (italics added). The definition makes the phrase descriptive of a status or privilege which need not be reduced to a permanent residence to be satisfied, so long as that status has not changed.
The status referred to in § 1101 (a) (20) is acquired when an alien satisfies (1) any numerical limitations on the entry of immigrants,
Thus we conclude that commuters are immigrants “lawfully admitted for permanent residence.” As did both the majority and dissent in Gooch, we also find that commuters can be viewed as “returning from a temporary visit abroad.” 433 F. 2d, at 79-81, 82 n. 1. The court below so agreed as respects daily commuters, disagreeing only as to seasonal commuters. Neither the court below nor the Court of Appeals in Gooch took the position now taken in dissent here.
This longstanding administrative construction is entitled to great weight, particularly when, as here, Congress has revisited the Act and left the practice untouched. Such a history of administrative construction and congressional acquiescence may add a gloss or qualification to what is on its face unqualified statutory language. Massachusetts Trustees v. United States, 377 U. S. 235 (1964); United States v. Midwest Oil Co., 236 U. S. 459 (1915). As the defendants below acknowledge, the meaning of the phrase “lawfully admitted for permanent residence” in § 1101 (a)(27)(B) may not be identical to the meaning of the same language in other sections of the
We see no difference in the treatment of daily commuters and seasonal commuters. The status of the seasonal! commuter is the same as the status of the daily commuter because the identical statutory words cover each. The Court of Appeals, however, rested essentially on a different legislative history of seasonal commuters than had obtained in cases of daily commuters.
Prior to 1917 there were essentially no limitations on the practice of commuting from Mexico or Canada to the United States. Legislation was passed in 1917, 1921, and 1924.
As already noted, the administrative approach changed in 1927 when the Bureau of Immigration issued its General Order No. 86. While the 1952 Act, 66 Stat. 163, made no mention of commuters and while the 1965 amendments of the 1952 Act, 79 Stat. 911, were likewise silent as respects commuters, the Court of Appeals assumed that the longstanding practice of allowing daily commuters was not repealed sub silentio; and we agree. The Court of Appeals, however, took quite a different view of the seasonal commuter problem because of its different history.
The seasonal commuter problem dates back at least to 1943 when this Government and Mexico agreed to the seasonal importation of Mexican agricultural workers. 56 Stat. 1759. Congress legislated on the problem in 1951,
In 1964 the bracero type of seasonal program lapsed; and the next year Congress amended the Immigration and Nationality Act by making stricter the certification by the Secretary of Labor of the need for foreign labor and requiring findings on the lack of any adverse effect of the employment of aliens on the wages and working conditions of workers in this country.
But that provision, which we have quoted,
The changes relevant to commuters in the 1965 amendments were, as stated in Gooch, minor and technical and contain no suggestion of a change in the commuter problem, 433 F. 2d, at 80-81. H. R. Rep. No. 745, 89th Cong., 1st Sess. (1965); S. Rep. No. 748, 89th Cong., 1st Sess. (1965).
Since 1965 there have been numerous reports by committees of the Congress on the alien commuter problem which indicate that Congress is very knowledgeable about the problem and has not reached a consensus that the administrative policy reaching back at least to General Order No. 86 is wrong. We know from the Western Hemisphere Report
Our conclusion is twofold. First, the provisions of the Act which sanction daily commuters are the ones that also support seasonal commuters. We would have to read the same language in two opposed ways to sanction the daily commuter program and strike down the seasonal commuter program. There is no difference in administrative treatment of the two classes of commuters.
Second, if alien commuters are to be abolished or if seasonal commuters are to be treated differently from daily commuters, the Congress must do it. The changes suggested implicate so many policies and raise so many problems of a political, economic, and social nature that it is fit that the Judiciary recuse itself. At times judges must legislate “interstitially” to resolve ambiguities in
We affirm the Court of Appeals insofar as it held daily commuters are lawfully admitted and reverse it insofar as seasonal commuters are concerned.
So ordered.
8 CFR §211.1 (b)(1).
8 U. S. C. §§ 1181 (a) and 1151-1153.
§ 1184(b).
§ HOI (a) (15).
§ 1101 (a) (15) (H). Legislation proposed in 1973 would limit the stay of these nonimmigrants to one year with possible extension to two years. H. R. Rep. No. 93-461, p. 16 (1973).
8 U. S. C. §1101 (a) (15) (H) (ii).
§ 1151 (a).
§ 1101 (a)(27)(B). The 1973 House Report, supra, n. 5, at 16, recognizes the difference between a “special immigrant” and non-immigrants covered by § 1101 (a)(15)(H).
“Title 8 U. S. C. §1182 (a)(14) provides:
“(a) Except as otherwise provided in this chapter, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States:
“(14) Aliens seeking to enter the United States for the purpose of performing skilled or unskilled labor, unless the Secretary of Labor has determined and certified to the Secretary of State and to the Attorney General that (A) there are not sufficient workers in the United States who are able, willing, qualified, and available at the time of application for a visa and admission to the United States and at the place to which the alien is destined to perform such skilled or unskilled labor, and (B) the employment of such aliens will not adversely affect the wages and working conditions of the workers in the United States similarly employed.”
§1101 (a) (20).
A collective-bargaining agent for farmworkers. Two farm laborers were also plaintiffs and four more intervened in the District
In the District Court and the Court of Appeals plaintiffs also argued that 8 CFR § 211.1 (b) (1) should be read to preclude the entry of a commuter to work at a place where a labor dispute exists, even if the commuter has previously been employed there. This claim was not decided by the Court of Appeals and was not presented in plaintiffs’ petition for certiorari. Hence we offer no views on the merits of this claim.
8 U. S. C. §1101 (a) (15) (H).
§1184 (b).
Matter of Contopoulos, 10 I. & N. Dec. 654 (1964).
8 U. S. C. §1184 (b).
1 C. Gordon & H. Rosenfield, Immigration Law and Procedure § 2.14b (rev. ed. 1974).
The subsection is in 8 U. S. C. § 1101 (a).
8 U. S. C. §1151 (a).
§ 1182.
§§ 1181 (a), 1201.
§1202 (a).
See 32 Stat. 826 ; 34 Stat. 596; c. 141, 37 Stat. 736.
By then it was called the Immigration and Naturalization Service. Reorganization Plan No. V, 54 Stat. 1238.
General Order No. 86 reads as follows:
“Subject: Land border crossing procedure
"1. Hereafter aliens 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 business or pleasure, under any provisions of the Immigration Law which exempt visitors from complying with certain requirements thereof; that is, they will be considered as aliens of the ‘immigrant’ class.
“2, However, the following aliens of the said ‘immigrant’ class residing in foreign contiguous countries and who are now enjoying the border crossing privilege may continue so to enjoy it upon the payment of head tax, provided such head tax was assessible [sic] 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 admission occurred prior to June 3,1921.
“B. Natives of nonquota countries whose original admission occurred prior to July 1,1924.
“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 ‘immigrant’ class. Aliens of this class already enjoying the border crossing privilege, however, will be granted a reasonable time, not to exceed six months from July 1, 1927, within which to obtain immigration visas and otherwise comply with the laws.
“4. Aliens who have already complied with the requirements of the Immigration Laws and this General Order may be permitted to continue to enjoy the border crossing privilege.
“5. Aliens who have complied with the requirements of this General
“6. The use and issuance of identification cards to all classes of aliens entitled to same will continue as heretofore.
“7. Identification cards held by or issued to aliens of the 'immigrant' class shall be rubber-stamped as follows:
“IMMIGRANT
“10. All identification cards heretofore issued, held by aliens who cannot, or do not, meet the requirements of law, regulations and this order, will be taken up and canceled upon an incoming trip of the holder and appropriate action taken.
“12. The status of holders of identification cards shall be inquired into periodically .... When the holder of a 'nonimmigrant' identification card qualifies as an 'immigrant,' a new identification card shall be issued, stamped to show the correct status.”
C. 29, 39 Stat. 874; 42 Stat. 5; c. 190, 43 Stat. 153.
65 Stat. 119.
N. 9, supra. See 1 Gordon & Rosenfield, supra, n. 17, § 2.40.
We find in the reports on the 1965 Act no suggestion that the commuter program was to be uprooted in its entirety, S. Rep. No. 748, 89th Cong., 1st Sess. (1965). That report emphasizes the purpose to prevent an “influx” of foreign labor, not to destroy existing labor arrangements. Id., at 15.
For the text of General Order No. 86 see n. 25, supra.
The aliens in Karnuth wanted to be treated as nonimmigrants. One of the categories of nonimmigrants under § 3 of the Immigration Act of 1924, 43 Stat. 154, was defined as “an alien visiting the United States temporarily ... for business or pleasure.” The Court held they did not qualify as laborers for hire.
Immigration Rules and Regulations, Jan. 1, 1930, Rule 3, Subd. C; 8 CFR § 3.6 (1939); 8 CFR § 110.6 (1947).
Matter of D -- C -, 3 I. & N. Dec. 519 (1949); Matter of L.-, 4 I. & N. Dec. 454 (1951).
Matter of M-D -S-, 8 I. & N. Dec. 209 (1958); Matter of Bailey, 11 I. & N. Dec. 466 (1966); Matter of Burciaga-Salcedo, 11 I. & N. Dec. 665 (1966); Matter of Gerhard, 12 I, & N. Dec. 556 (1967); Matter of Wighton, 13 I. & N. Dec. 683 (1971); Matter of Hoffman-Arvayo, 13 I. & N. Dec. 750 (1971).
Report of Select Commission on Western Hemisphere Immigration 104 (196S). See S. Rep. No. 91-83. p. 65 (1969), stating that the alien commuter problem “can be resolved not by drastically putting an end to the commuter system, but by refining its current operations.” See Hearings on H. R. 9112, H. R. 15092, H. R. 17370 before Subcommittee No. 1 of the House Committee on the Judiciary, 91st Cong., 2d Sess., 205-207.
Stranger in One’s Land 12 (Clearinghouse Publication No. 19, 1970).
Statement of Assistant Secretary of State Oliver to the Senate Subcommittee on Immigration, Sept. 25,1967, p. 6.
Id., at 4.
“I recognize without hesitation that judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions.” Southern Pacific Co. v. Jensen, 244 U. S. 205, 221 (1917) (dissenting opinion).
Dissenting Opinion
dissenting.
The Court, in reaching an interpretation of the immigration statutes which permits a finding that daily and seasonal commuters from Mexico and Canada are “special immigrants” not subject to documentation and numerical restrictions upon entry to this country, contravenes one of the cardinal principles of statutory construction: “administrative practice does not avail to overcome a statute so plain in its commands as to leave nothing for construction.” Norwegian Nitrogen Products Co. v. United States, 288 U. S. 294, 315 (1933) (Cardozo, J.). Administrative construction over a long period of time is an available tool for judicial interpretation of a statute only when the statutory terms are doubtful or ambiguous. . United States v. Southern Ute Indians, 402 U. S. 159, 173 n. 8 (1971); Estate of Sanford v. Commissioner, 308 U. S. 39, 52 (1939); Norwegian Nitrogen Products Co. v. United States, supra. In light of the characteristics of the aliens whose status is in question and the ordinary meaning of
I
Daily and seasonal commuters both reside in fact in either Mexico or Canada and cross the border into this country either daily or seasonally to work.
To qualify as a “special immigrant” given dispensations from normal documentation requirements and numerical limitations, a commuter must be “an immigrant, lawfully admitted for permanent residence, who is returning from a temporary visit abroad.” 8 U. S. C. § 1101 (a) (27) (B). The included phrase “lawfully admitted for permanent residence” means in turn “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.” §1101 (a) (20). The immigration laws define “perma
Confronted with the obvious difficulty that this statutory language defining permanent resident status and the regulations will not accommodate the daily and seasonal commuters,
“Section 1101 (a) (20) defines ‘lawfully admitted for permanent residence’ as ‘the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed’ (italics added). The definition makes the phrase descriptive of a status or privilege which need not be reduced to a permanent residence*83 to be satisfied, so long as that status has not changed.” Ante, at 71 (italics supplied by the Court).
The use of italics will not alter the ordinary meaning of the statutory terminology, however, and the Court gives no basis for believing that Congress intended something other than the ordinary meaning of the words it used. No one could reasonably suggest that Congress was seeking to accommodate the commuters when it enacted these definitions and to provide special status to those who do not reside and do not intend to reside in this country. Clearly it was dealing with those aliens who seek permanent-resident status in this country and who fulfill that intention.
Since the language of the statute simply will not bend to allow the proposition which the Government and the Court adopt — that in defining “lawfully admitted for permanent residence” Congress meant to include persons who have never intended to reside permanently in this country, who do not currently reside in this country, and who never will become actual permanent residents
II
Administrative construction of a statute which conflicts with the express meaning of the statutory terms can be viewed as authoritative only if it appears that Congress has in fact accepted that construction, and the burden of proof necessarily is on the proponent of the administrative view. Since “ [c] ongressional inaction frequently betokens unawareness, preoccupation, or paralysis,” Zuber v. Allen, 396 U. S. 168, 185-186, n. 21 (1969), congressional silence standing alone cannot constitute congressional acceptance of a continuing administrative practice. The Court, however, elevates such silence to acquiescence by stressing proof of the practice and the absence of any indication that Congress has “repealed” it. Ante, at 75.
The administrative practice of treating daily commuters as immigrant aliens began in 1927 with the Depart
There can be no reasonable presumption, therefore, that prior to 1952 Congress concerned itself with the propriety of the administrative classification of daily commuters under the immigration statutes.
Very recently, in noting an exception to the principle of giving great weight to an administrative construction of a statute, we said that “an agency may not bootstrap itself into an area in which it has no jurisdiction by repeatedly violating its statutory mandate.” FMC v. Seatrain Lines, Inc., 411 U. S. 726, 745 (1973). But the Court has allowed an agency to do so in this case.
The majority acknowledges the many political, economic, and social implications of the issues in this case and the need for the Court to legislate only when interstitial ambiguities in a statute require resolution, but it then rests its rejection of these unambiguous provisions of the immigration laws'upon legislative considerations: the economic consequences to the alien commuters and to their communities of finding that the administrative practice is not consistent with the statute, the possible impact upon American border communities if those commuters who are legally capable of doing so choose to
Counsel for the federal parties (hereinafter the Government) indicated at oral argument that commuters actually form a spectrum rather than two hard-and-fast categories. Some commuters stay in this country for whole seasons and then switch later to daily commuting. Some daily commuters come across the border less regularly than every workday, and sometimes seek only temporary employment and switch employers. Tr. of Oral Arg. 18, 52, 54.
Strain between the statute and the administrative practice is also evident in the need for the Government to fit the daily commuter’s trip each day from his home in Mexico or Canada to his workplace in this country as a return to this country “from a temporary visit abroad.” 8 U. S. C. § 1101 (a) (27) (B) (emphasis added). As indicated in the text, the regulations refer to a return to “an unrelinquished lawful permanent residence” in this country from “a temporary absence abroad . . . .” 8 CFR §211.1 (b).
In an effort to make the facts fit the statute, the Court of Appeals found that the commuter’s place of work could be considered his permanent residence. 156 U. S. App. D. C. 304, 311, 481 F. 2d 479, 486 (1973). Others have noted the “logical inconsistency” and the lack of a precise fit between the practice and the law but have justified the discordance by citing “practical needs and considerations of foreign policy.” 1 C. Gordon & H. Rosenfield, Immigration Law and Procedure §2.19, p. 2-105 (1973 Cum. Supp.). The practice has been viewed as an “amiable fiction” and the product of “administrative ingenuity.” Id., §2.8b, p. 2-43 (1974). The Board of Immigration Appeals has similarly acknowledged that the commuter practice “manifestly does not fit into any precise category found in the immigration statutes” and that “[t]he status is an artificial one, predicated upon good international relations maintained and cherished between friendly neighbors.” Matter of M - D - S -, 8 I. & N. Dec. 209, 213 (1958).
The effect of the Court’s decision is not only to stretch the meaning of the statute so as to include commuters within the permanent resident status, but also to throw into question the meaning of “permanent resident” throughout the immigration laws with obvious anomalous consequences. See Gooch v. Clark, 433 F. 2d 74, 83-85 (CA9 1970) (Wright, J., dissenting). For example, the “spouses, unmarried sons or unmarried daughters of an alien lawfully admitted for permanent residence” are included in the second preference group for immigration visas. 8 U. S. C. §1153 (a)(2). Thus a commuter’s immediate kin are perhaps eligible for a preference although the commuter may himself have been entitled to no preference. The Government suggests that the commuter’s status for other purposes is not before the Court and need not be decided. Brief for Federal Parties 28. But the Court should be reluctant to accept an invitation to make an ad hoc decision with respect to one aspect of a statutory definition where it is clear that the definition is a central one which Congress has provided with the intent of having it applied generally.
See the relevant text of General Order No. 86, ante, at 73-74, n. 25.
The Court’s opinion suggests that General Order No. 86 removed commuters from quota restrictions applicable to nonimmigrants. Ante, at 77. But Mexican and Canadian commuters had not been subject to any quotas. The Immigration Act of 1924 imposed no quotas on nonimmigrants, and Mexicans and Canadians were not subject to immigrant quotas. 43 Stat. 153. The General Order was designed primarily to prevent quota aliens from entering this' country through Canada and Mexico as nonimmigrants. Letter from Secretary of Labor, dated Nov. 26, 1928, in App. A of H. R. Rep. No. 2401, 70th Cong., 2d Sess., 5-10 (1929). Informal documentation was maintained despite the classification of the commuters as immigrants because the immigration authorities did not view Congress as intending to interfere with the practice of border crossings by commuters. Report of Select Commission on Western Hemisphere Immigration 101-102 (1968).
The Secretary of Labor has not issued a certification allowing the entry of aliens seeking employment as farm laborers. 29 CFR §§ 60.2 (a) (2), 60.7 (Schedule B).
§ 21 (e), 79 Stat. 921.
The Government refers to the inclusion in an early draft of a House bill, H. R. 5138, which ultimately became the Alien Registration Act of 1940, of a provision which would have prohibited any alien from entering this country from Mexico or Canada for the purposes of working or seeking employment. Hearing on H. R. 5138 before Subcommittee No. 3 of the House Committee on the Judiciary, 76th Cong., 1st Sess., ser. 3, p. 3 (1939). The deletion of that provision prior to the reporting of the bill does not signal congressional approval of the administrative classification of commuters, but rather, as with the absence of quotas restricting the entry of Mexicans and Canadians, an unwillingness to restrict such entry .which persisted at least until 1952.
S. Rep. No. 1515, 81st Cong., 2d Sess., 535-536, 616 (1950).
The Government concedes that the seasonal commuter practice grew after the bracero program had lapsed. Tr. of Oral Arg. 53; Brief for Federal Parties 75. See also Gordon, The Amiable Fiction — Alien Commuters Under Our Immigration Laws, in Employment of “Green Card” Aliens During Labor Disputes, Hearings on H. It. 12667 before the Special Subcommittee on Labor of the House Committee on Education and Labor, 91st Cong., 1st Sess., 181, 183 (1969). Therefore, there is even less reason for believing that Congress acquiesced in the administrative classification of seasonal commuters.
The majority cites Massachusetts Trustees v. United States, 377 U. S. 235 (1964), and United States v. Midwest Oil Co., 236 U. S. 459 (1915), in support of its rationale of statutory construction. Ante, at 74. A comparison of the statutes and facts of those cases
In Massachusetts Trustees the Court was faced with the problem of harmonizing apparently inconsistent sections of the same statute governing an agency’s authority. The literal language of the statute was found insufficiently precise to dispose of the question. Under these circumstances, the Court looked to the agency’s practice, which could be given “some weight”; but the successive extensions by Congress of the agency’s authority in the face of the agency’s prior practice was not, even then, to be controlling. 377 U. S., at 241-245.
In Midwest Oil Co. the Presidential power to withdraw public lands from private acquisition which Congress by legislation had made free and open to occupation and purchase was found in the hundreds of such withdrawal orders, beginning in the early years of the Government, which had not been repudiated by Congress. In addition, the Executive Order in question was issued seven years after the Secretary of the Interior, in response to a resolution of the Senate calling for information as to the authority for such withdrawals, sent to the Senate a report which cited the longstanding practice and the Executive’s claim of authority. Congress took no action to repudiate that claim. Legislation soon after the order in question authorized such withdrawals by the President prospectively, expressed no intention on the part of Congress to repudiate past withdrawals, and left the question of the validity of past withdrawals to the courts. 236 U. S., at 469-471, 480-483. Nothing in this case remotely resembles the historical record upon which congressional acquiescence was premised in Midwest Oil Co.
Reference
- Full Case Name
- SAXBE, ATTORNEY GENERAL, Et Al. v. BUSTOS Et Al.
- Cited By
- 107 cases
- Status
- Published