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July 7, 1960

William P. ROGERS and Joseph M. Swing, Defendants

The opinion of the court was delivered by: YOUNGDAHL

This is a suit by a labor organization to require the Attorney General and the Commissioner of Immigration to enforce § 212(a)(14) of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1182(a)(14). *fn1"

The defendants have moved to dismiss or, in the alternative, for summary judgment. The following facts are not in dispute.

 In September, 1958, pursuant to § 9 of the Labor-Management Relations Act of 1947, 29 U.S.C.A. § 159, as amended, the National Labor Relations Board designated plaintiff the collective bargaining representative for the employees of the Peyton Packing Company in El Paso, Texas. On March 2, 1959, a strike began (and is still in progress). On August 1, 1959, because plaintiff was of the opinion the striking employees had been replaced by aliens resident in Juarez, Mexico (which lies just over the border from El Paso), the plaintiff petitioned the Secretary of Labor to invoke § 212(a)(14) of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1182(a)(14).

 On October 20, 1959, the Secretary of Labor issued his certification, notifying the Attorney General the same day by letter as follows:

 'Pursuant to the provisions of Section 212(a)(14)(B) of the Immigration and Nationality Act, 66 Stat. 183, 8 U.S.C. 1182(a)(14)(B), I hereby determine and certify that the admission of any aliens to the United States for employment at the Peyton Packing Company of El Paso, Texas during the strike presently in progress will adversely affect the wages and working conditions of workers in the United States similarly employed.'

 Upon receipt of this information, the immigration officials immediately instructed all ports of entry within the El Paso District that:

 'during the effectiveness of such certification no aliens applying for admission to the United States as immigrants, except returning lawfully domiciled resident aliens, destined to employment to the Peyton Packing Company, El Paso, Texas, could or would be admitted.' (Emphasis supplied.)

 Plaintiff contends that (1) by excepting aliens lawfully admitted for permanent residence, *fn2" the defendants unlawfully limited the Secretary of Labor's certification, and (2) even assuming that resident aliens are not embraced by § 212(a)(14) -- and thus are unaffected by the Secretary of Labor's certification -- none of the Mexicans now 'commuting' each day from Juarez can be considered resident aliens.

 The defendants, in addition to certain jurisdictional arguments, assert that the excepting of resident aliens is required by the statute and that commuters are within this exception.

 The Court has carefully examined the defendants' contentions that the plaintiff lacks standing to bring this suit, that a justiciable case has not been presented, and that not all indispensable parties are before the Court, and the Court is of the opinion they must be rejected. Cf. Busby v. Electric Utilities Employees Union, 1944, 323 U.S. 72, 65 S. Ct. 142, 89 L. Ed. 78; McGrath v. Kristensen, 1950, 340 U.S. 162, 169, 71 S. Ct. 224, 95 L. Ed. 173; Mastrapasqua v. Shaughnessy, 2 Cir., 1950, 180 F.2d 999; Commercial State Bank of Roseville v. Gidney, D.C.D.C.1959, 174 F.Supp. 770, 780-781, affirmed D.C.Cir., 278 F.2d 871.

 The pertinent history of alien commuters begins with the Immigration Act of 1924, c. 190, 43 Stat. 153. Section 3 of that Act defined the term 'immigrant' as 'any alien departing from any place outside the United States destined for the United States.' Several exceptions were then listed; one of these was '(2) an alien visiting the United States temporarily as a tourist or temporarily for business or pleasure.' Such an alien would be considered a non-immigrant and thus be permitted to enter the country without having to satisfy the stricter qualifications for immigrants seeking to enter for permanent residence.

 Until April 1, 1927, commuters were considered to fall within this exception (2) to § 3 and thus were considered non-immigrants. On that date, the Immigration Service provided by its General Order 86 that thereafter commuters would be considered aliens of the immigrant class and not within § 3(2). Two commuters brought the question of the proper interpretation of § 3(2) to the Supreme Court -- that is, the Court was presented with the question whether 'business' included ordinary work for hire, and thus relieved commuters from satisfying the various qualifications demanded of entrant immigrants. The Court looked to the policy of the immigration legislation, concluded that 'one of its great purposes was to protect American labor against the influx of foreign labor' and held unanimously that 'business' did not include ordinary work for hire but rather was 'limited in application to intercourse of a commercial character.' Karnuth v. United States ex rel. Albro, 1929, 279 U.S. 231, 243, 244, 49 S. Ct. 274, 278, 73 L. Ed. 677. And see discussion in Matter of L, 4 I. & N. Dec. 454 (1951).

 Accordingly, since 1927, commuters have been considered immigrants and, the defendants go on to say, aliens lawfully admitted for permanent residence -- Mexicans and Canadians with permanent employment in the United States, but who return each night to Mexico or Canada, have been given the status of aliens lawfully admitted for permanent residence in order to permit them to pursue their employment in the United States.

 The principal question now presented to the Court is the effect, if any, a § 212(a)(14) certification has on these commuters -- a question of first impression.

 Section 212(a)(14) expressly limits its applicability to the exclusion of the following classes of aliens only:

 (i) those described in § 203(a)(4) of the Act, (8 U.S.C.A. § 1153(a)(4)); and,

 (ii) those described in § 101(a)(27)(C), (27)(D), or (27)(E) of the Act, (8 U.S.C.A. § 1101(a)(27)(C), (27)(D), (27)(E)).

 (An exception in these categories is made for the parents, spouses or children of United States citizens or of aliens lawfully admitted for permanent residence; an exception is also made for aliens with urgently needed skills, as determined by the Attorney General).

 Category (i) is not applicable here as authorization for the exclusion of Mexican commuters since § 203(a)(4) deals with quota immigrants and Mexicans are nonquota immigrants. But category (ii), by referring to § 101(a)(27)(C), is composed, in part, of nonquota immigrants born in Mexico and thus Mexicans would appear excludable after a certification under § 212(a)(14).

 The defendants argue, however, that Mexican commuters, having achieved the status of aliens lawfully admitted for permanent residence, are no longer within category (ii) -- even though they would have been before achieving this status.

 Aliens lawfully admitted for permanent residence are not expressly included in 212(a)(14) although their parents, spouses or children are expressly excepted. The statute speaks of the parents, spouses and children of resident aliens and does not cover the resident aliens themselves because the statute only permits exclusion, not deportation. Relatives of a resident alien are amenable to exclusion; the resident alien is not himself so amenable because once he departs from the United States, his status as a resident alien is lost. A subsequent re-entry can then be made only if he can comply with the various statutory provisions applicable to entrant aliens generally. *fn3" And the statute could not be employed against resident aliens physically within the United States because the statute does not authorize deportation. Thus, the Court concludes that aliens lawfully admitted for permanent residence are not embraced within § 212(a)(14). *fn4"

 The further questions arise: are commuters aliens lawfully admitted for permanent residence? If not, can they be so treated administratively for the limited purpose of permitting their employment in the United States?

 The term 'lawfully admitted for permanent residence' is defined by § 101(a)(20) of the Act, 8 U.S.C.A. § 1101(a)(20) 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.'(Emphasis supplied.)

 The term 'residence' is defined by § 101(a)(33) of the Act, 8 U.S.C.A. § 1101(a) (33), as:

 'the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent. * * *'

 With these legislative statements as the guide, it is clear that Mexican commuters do not reside in the United States, *fn5" and that it therefore is not possible for them to be aliens lawfully admitted for permanent residence. This should not mean, however, that Mexicans or Canadians cannot commute to work in the United States. The defendants can utilize the documentary requirements and administrative procedures they think best under the applicable law for aliens who work in this country and live in Mexico or Canada. If the defendants are satisfied that an alien can enter the United States to work here, they could then permit the alien to commute. But when the Secretary of Labor has issued a certification under § 212(a)(14) pertaining to particular employment, such an alien would be excludable. It is not sufficient to resort to an 'amiable fiction' *fn6" to justify a wholesale evasion of the Secretary's certification -- Mexican commuters destined for the employment covered by the certification must be excluded just as any other Mexican nonresident alien. To do otherwise would be to permit administrative practice to make a shambles of a provision which, with § 101(a)(15)(H), *fn7" was newly designed by the 1952 Act in order to assure 'strong safeguards for American labor.' *fn8"

 The defendants urge Matter of H-O, supra, note 5, upon the Court. The Board of Immigration Appeals there held that the Immigration and Nationality Act of 1952 did not require the exclusion of a Mexican commuter. Although the Board makes the broad statement that 'the practice of considering commuters as permanent residents has not been disturbed by the act of 1952', the Board was not faced with the effect of a § 212(a)(14) certification upon the excludability of a commuter. Furthermore, stress is put upon the definition of 'border crossing identification card' as given in § 101(a)(6), 8 U.S.C.A. § 1101(a)(6), *fn9" but the Court does not believe this provision, defining a documentary term, makes a commuter a resident of the United States, when it is clear that he is not, so as to permit his entry notwithstanding the certification the Secretary of Labor.

 The Court concludes, therefore, that 'returning lawfully domiciled resident aliens' may enter the United States to work at the Peyton Packing Company, but that commuters are not within this class and should be excluded.

 The defendants' motion is denied.

 Counsel to submit order.

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