J-P
A returning resident alien commuter is inadmissible to the United States when destined to employment with a firm concerning whom the Secretary of Labor has issued a certification under
EXCLUDABLE: Act of 1952—Section 212(a)(14) [
BEFORE THE BOARD
DISCUSSION: Appellant is 25 years old, married, male, a native and citizen of Mexico. He arrived at El Paso, Texas, on January 8, 1962, and applied for admission as a returning resident alien commuter, presenting a Form I-151, Alien Registration Receipt Card. Following an exclusion hearing, the special inquiry officer ordered that he be admitted to the United States in the status for which he had applied, and certified the case to this Board for final decision. The District Director, El Paso District, files a brief in opposition to the special inquiry officer‘s order.
Appellant was admitted to the United States on January 21, 1957, at El Paso, Texas, as an immigrant, and since that time has been entering as a commuter for employment when he has been able to secure employment in this country. Appellant first began working for Peyton Packing Company at El Paso in February 1960, and worked for them intermittently from that time until the date of his hearing in exclusion proceedings on January 10, 1962. On one occasion he lost three or four months from work as the result of an injury (necessitating an operation) suffered in the course of his employment. On March 2, 1959, the Amalgamated Meat Cutters and Butchers, AFL-CIO, struck the Peyton Packing Company. In
On petition by the union involved, the Secretary of Labor on October 20, 1959, issued a certification and advised the Attorney General as follows:
Pursuant to the provisions of
section 212(a)(14)(B) of the Immigration and nationality Act, 68 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.
The union brought suit in the United States District Court naming the Attorney General and the Commissioner of Immigration as defendants to require these officers to enforce the aforesaid certification of the Secretary of Labor. The certification was ineffective from the viewpoint of the union, as the Service interpreted the provisions of
It was the Board‘s opinion that C—C— (9 I. & N. Dec. 387) fell within “an ineligible class” solely because his prospective employer was, unknown to him, “an ineligible employer.” The certification under
In Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO v. Rogers and Swing, supra, the court was aware of the history of the “commuter” class, and said:
. . . 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 section 212(a)(14) pertaining to particular employment, such an alien would be excludable. It is not sufficient to resort to an “amiable fiction” 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, withsection 101(a)(15)(H) , was newly designed by the 1952 Act in order to assure “strong safeguards for American labor.” (Emphasis supplied.)
The defendants urge Matter of H—O—, supra,1 upon the Court. . . 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
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.2
The court said that Mexican commuters do not reside in the United States and that it is, therefore, not possible for them to be “aliens lawfully admitted for permanent residence,” but this should not mean “that Mexicans or Canadians cannot commute to work in the United States,” so long as they are not destined to an employer covered by a “certification.”
Appellant testified that he and his wife moved to El Paso in order to remove themselves from the class of commuters, but, because the Peyton Packing Company was able to employ appellant only part time, his pay check, after deductions, was not sufficient to permit him to live in El Paso, except under the poorest conditions. Therefore, they returned to Juarez. He testified that he has unsuccessfully sought other employment.
Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO v. Rogers and Swing, supra, precludes the Immigration Service from admitting respondent only if he is destined to employment with the Peyton Packing Company, so long as the Secretary of Labor‘s certification under
It is the conclusion of the Board that the alien should be given permission to reapply for admission to the United States in commuter status if he seeks readmission for other than the prohibited employment. This is not to be considered as a general rule, but is to apply only to employees of the Peyton Packing Company, because the status of their commuter employees has been determined by a federal court decision which we consider to be binding upon us.
ORDER: It is ordered that the order of the special inquiry officer be and is hereby reversed.
It is further ordered that the applicant be excluded as a returning resident alien commuter, so long as he is destined to employment with the Peyton Packing Company, El Paso, Texas.
It is further ordered that the appellant be given permission to reapply for admission as a commuter worker when, and if, he is destined to employment with an employer not covered by a certification of the Secretary of Labor under