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).
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 On August 1, 1959, because plaintiff was of the opinion the striking employees had been replaced by aliens resident in Juarez, Mexico (which lies just over the border from El Paso), the plaintiff petitioned the Secretary of Labor to invoke § 212(a)(14) of the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,
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 -- ...