SAXBE, ATTORNEY GENERAL, ET AL. v. BUSTOS ET AL.
No. 73-300
Supreme Court of the United States
Argued October 17, 1974—Decided November 25, 1974
419 U.S. 65
*Together with No. 73-480, Cardona et al. v. Saxbe, Attorney General, et al., also on certiorari to the same court.
Bruce J. Terris argued the cause for respondents in No. 73-300 and petitioners in No. 73-480. With him on the brief were John W. Karr and Joseph Onek.†
MR. JUSTICE DOUGLAS 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
Those who qualify under
The Act presumes that an alien is an immigrant “until he establishes... that he is entitled to a nonimmigrant status“;3 and it defines “immigrant” as every alien who cannot bring himself into an enumerated class of nonimmigrants.4 One class of nonimmigrants5 is “an alien having a residence in a foreign country which he has no intention of abandoning... (ii) who is coming temporarily to the United States to perform temporary services or labor, if unemployed persons capable of performing such service or labor cannot be found in this country.”6
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. If he cannot qualify as a nonimmigrant some other way, such an alien is subject to the Act‘s numerical limitations, unless he is included in the classes of “immediate relatives” of a United States citizen or “special immigrants.”7 On the other hand, as already noted, one variety of “special immigrant” is an alien “lawfully admitted for permanent residence, who is returning from a temporary visit abroad.”8 One who so qualifies is excluded
This suit was brought by the United Farm Workers Organizing Committee11 for declaratory and injunctive
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.”
A main reliance of plaintiffs is on the provision of the Act13 which in the much-discussed subsection (15) (H) (ii) provides that one category of alien nonimmigrant is “an alien having a residence in a foreign country which he has no intention of abandoning... (ii) who is coming temporarily to the United States to perform temporary services or labor, if unemployed persons capable of performing such service or labor cannot be found in this country.” Under the argument tendered, these alien commuters partially meet the definition of nonimmigrants in subsection (15) (H) (ii) in that they have a foreign residence which they do not intend to abandon and come here temporarily to perform temporary service, but fail to satisfy subsection (15) (H) (ii) completely in that they do not show that unemployed people capable of performing the services cannot be found in this Nation. That should invoke the presumption in the Act, already noted, that an alien is an immigrant until or unless he proves he is a nonimmigrant.14
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 Service15 has been that it does not cover an alien, like the commuter, who has a “permanent residence” here and who comes to perform a job of a permanent character, even though the
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),18 that is, whether commuters are “lawfully admitted for permanent residence” when they have no actual residence in this country.
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,19 (2) requirements as to qualitative matters such as health, morals, and economic status,20 and (3) the need for an immigrant visa.21 The applicant must also state whether he plans to remain in the United States permanently.22 But the Act does not declare or suggest that the status will be denied him, if he does not intend to reside permanently here. As we read the Act, the “status” acquired carries several important privileges: He may remain in the United States indefinitely; he is free to work in this country; he may return to this country after a temporary absence abroad; and he has the privilege of establishing a permanent residence in the United States.
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 1924.26 But under those statutes commuters remained able freely to cross the border subject only to qualitative restrictions in the 1917 Act.
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 1951,27 requiring farmers in this Nation to make reasonable efforts to attract domestic workers prior to certification by the Secretary of Labor of the need for foreign labor.
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,28 does not apply to aliens lawfully admitted for permanent residence returning from a temporary visit abroad and to certain close relatives. An alien who first sought admission after the effective date of the 1965 Amendment would need a certificate of the Secretary of Labor; but if he already was an alien lawfully admitted to the United States for permanent residence and returning from a temporary visit abroad, the 1965 amendments would not affect him. The purpose of Congress was to limit new admissions of alien laborers, not to prejudice the status of aliens who, whether daily or seasonal commuters, had acquired permanent residence here and were returning to existing jobs.29
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 Report35 that the dimensions of the problem are considerable. Daily commuters from Mexico number more than 42,000 of whom 25,000 are engaged in occupations other than agriculture. The total of Canadian commuters exceeds 10,000. Seasonal commuters number at least 8.300 according to the Service‘s estimate. The United States Commission on Civil Rights estimates that if Mexican commuters were cut off, they would lose $50
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.
MR. JUSTICE WHITE, joined by MR. JUSTICE BRENNAN, MR. JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN, 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.1 The daily commuter‘s defining characteristic is his limited presence in this country; he comes across the border to work each day and returns to his actual dwelling place in Mexico or Canada when his work is done. The seasonal commuter, in contrast, remains in this country continuously during the seasons in which he works here, but then absents himself completely for the remaining portions of the year. For the Court to reach its result, it must undertake the unlikely project of demonstrating that these aliens are in legal effect permanent residents of the United States under the immigration laws.
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.”
Confronted with the obvious difficulty that this statutory language defining permanent resident status and the regulations will not accommodate the daily and seasonal commuters,2 the majority, without the aid of legislative history, contends that these plain words should be given special, technical meanings:
“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.” 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 residents3—the ultimate rationale for the decision must be that the plain
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.9 Only with the passage of the 1952 legislation and subsequent amendments was there evidence of some possible concern on the part of Congress with the number of Mexican and Canadian aliens entering this country to work. Thus if Congress both expressed concern at the influx of alien workers but approved the commuter practice, then the Court‘s conclusion of congressional acquiescence in the administrative construction would have some persuasive force. Since that construction conflicts with the meaning of the statute on its face, however, something more than silence is required to establish acquiescence. Cf. Leary v. United States, 395 U. S. 6, 24-25 (1969). The only evidence of congressional acceptance cited by the Court is a brief description of the prior practice with respect to commuters contained in an extremely extensive report of an investigation of this Nation‘s immigration system published by the Senate Judiciary Committee in 1950.10
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.12
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
Notes
“(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.”
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.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.
“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 Order governing permanent admission will be considered as having entered for permanent residence.”
“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.”