MATTER OF C Y L 

In DEPORTATION Proceedings 

A-89,14627 

Decided by Board June 10, 1959 

Guam—Temporary admissions prior to 1952—Presumption of lawful residence 

under 8 CFR 9.2(j) [now 8 CFR 101.1(i)]. 

Contract laborers—Restaurant manager, supervisory cook and baker not within 

definition. 

Group of 12 aliens temporarily admitted to Guam prior to 1952 under contract 

to food concessionaire to United States Armed Forces, who were intended 

for employment in supervisory capacity as restaurant manager, cook, or 

baker, whn were occupationally qualified, and who were actually so employed, were not classifiable as contract laborers under the Immigration Act 

of 1917. Hence, they are entitled to the presumption of lawful permanent 

residence accorded by 8 CFR 4.2(j) [now 101.1(1)]. 

CHARGE: 

Warrant : Act of 1952—Section 241(a) (9) [8 U.S.C. 1251(a) (9)]—Failed to 

maintain status—Contract laborer. 

BEFORE THE BOARD 

Discussion: Respondent is a 38-year-old married male alien, a 

native and citizen of China. His last and only entry into the 

United States was at the Naval Air Station, Agana, Guam, on 

March 6, 1951. On December 9, 1955, the special inquiry officer 

ordered respondent deported on the ground that he was a contract 

laborer who failed to maintain the status in which he was admitted, 

in that he remained in the United States after the date on which 

his authorized stay terminated. On appeal, we found that respondent was not a contract laborer and is entitled to the presumption of 

permanent residence contained in 8 CFR 4.2(j) 1[now- 5 CFR 

18 CFR § 4.2 Presumption of lawful admission. An alien of any of the 

following- described classes shall be presumed to barn been lawfrilly admitted 

for permanent residence within the meaning of the Immigration and Nationality Act (even though no record of his admission can be found, except as 

otherwise provided in this part) unless the alien abandoned his status as a 

tawfnl permanent resident. or lost such status by operation of law, at some 

time subsequent to such admission: * * * (j) Aliens admitted to Guam. (1) 

An alien who establishes that he was admitted to Guam prior to December 24, 

1952, by records, such as Service records subsequent to June 15, 1952, records 

of the Guamanian Immigration Service, records of the Navy or Air Force, or 

records of contractors of those agencies, other than as a contract laborer, was 

not otherwise excludable under the Act of February 5, 1917, as amended, and 

who continued to reside in Guam until Deeember. 21, 1952, regardle:.s the, 

period of time for which admitted, 

371 
101.1(i)]. On motion of the Commissioner of the Immigration ana 

Naturalization Service that the record be reopened for the introduc 

tion of additional evidence, we withdrew our order of August 31, 

1956, and remanded the record for further proceedings. 

On September 3, 1958, the special inquiry officer found that 

respondent was brought to Guam for the purpose of boil* employed 

as a manager, that this is a position of a "mental nature" and that 

he was not, therefore, a contract laborer at the time of his arrival 

excludable under section 3 of the Immigration Act of 1917. The 

special inquiry officer found that respondent is entitled to the 

presumption contained in 8 CFR 4.2(j) and terminated the proceedings against him. The case was certified to the Board. When 

these case, = were previously before us we chose C 

as the leading case, and the principal decision related to him. Much 

of the general testimony and many of the exhibits were entered 

by the special inquiry officer in the record under his name and case 

number. Therefore, we will continue it as the leading case, even 

though proceeding as to him have been terminated. 

C L C and M , a partnership, and its successor 

corporation, Far East Trading Company, Inc., were concessionaires 

operating restaurants, cafes, snack bars, two (or three) bakeries, 

ice cream plants, a milk-bottling operation and maintenance facilities on Army and Air Force installations throughout Guam from 

December 1947 until some time in 1953. The record shows that 

Mr. C L C had engaged in similar activities in the 

Philippine Islands, beginning with his operation of the officers clubs 

in Manila in 1919. In 1947, Mr. M was Food Service Director, 

United States Army, in the Philippines. During 195:1 they operated 

20 such outlets on. Guam and employed probably 300 persons. This 

case comes before the Board with a group of similar cases concerning Chinese aliens who were imported into Guam for the purpose of employment by C— and M— , and who are still employed by Far East. 

Mr. C and Mr. M — have both testified that they attempted 

at first to operate their concessions on Guam with Filipino and 

local labor. After a few months they discovered they were on the 

verge of losing their substantial investment and informed the military authorities on Guam that they would he unable to continue 

unless they were permitted to import from the Philippines skilled 

and supervisory personnel who had b een employed by them in the 

past. They were given permission to bring 30 Chinese employees 

to tlic island, and military security later increased the allow -able 

number to 60. All personnel held permanent residence permission 

in the Republic of the Philippines and were screened by Unite 

States military authorities before proceeding to Guam. The record 

372 
show that all respondents had been employed by Mr. C prior to 

coming to Guam, except, perhaps, where the respondent. claims the 

record does not accurately describe his experience and employment 

history. The employers testify, and we see no reason to question 

the reasonableness of their assertions, that. they attempi d to bring 

in persons who were experienced bakers, cooks, cashiers, and managers, who would give the operations on Guam the kind of super-

-vision needed, who could purchase and distribute supplies, handle 

cash receipts, and instruct and supervise, the. rest of the staff. The 

employing corporation lost its concessions with the armed services 

in 1953, operations being taken over at that time by the Post Exchange. Respondents are now employed on Guam at restaurants 

owned and operated by the former employers. 

All of the. aliens included in this group are designated by Far 

East as managers, chief cooks, and chief bakers, and have been 

paid monthly salaries plus expenses and yearly bonuses from the 

time they first came to Guam. The special inquiry officer found 

that four of the twelve respondents were riot contract laborers at the 

time of entry, and terminated proceedings as to them. Proceedings 

were terminated as to C , A-8944627 (instant case), 

who Was found to be a manager; L L , A-8944604. found to 

be a manager; Y , .A.8944606, found to be a chief cook; 

and T T , A-8944635, found to be a chief baker. We agree 

■Nith the special inquiry officer that respondent was not a contract 

laborer at the time of his arrival and was not, therefore, excludable 

on that ground under section 3 of the Immigration Act. of 1917. It 

is necessary to determine why the special inquiry officer distinguished 

between this respondent and the others as to whom proceedings 

were not. terminated. 

It is contended by the Immigration and Naturalization Service 

that the Immigration Act of 1917, as amended, was applicable to 

Guam and constituted the immigration law of Guam, at the time of 

respondent's arrival there, even though the statute was not enforced 

in that area, and that the aliens, including respondent, necessarily 

were brought into Guam under that. law. Section 3 of the Immigration Act of 1917 forbids the importation of contract labor for 

permanent residence.2However, the 9th proviso to section permits the importation of contract labor for temporary periods. un- 

"Oection 0, Immigration Act of 1917, as amended, provider: "That the f,dlowing classes of aliens shall be excluded from admission into -United :States: 

* * persons hereinafter called contract laborers, who have been induced, 

assisted, encouraged, or solicited to migrate to this country by offers or promises of employment, whether such offers or promises are true or false, or in 

consequence of agreement, oral, written or printed, express or implied, to perform labor in this country of any kind, skilled or unskine,i * 

373 
der prescribed rules and conditions. 3The special inquiry officer 

found that because importation of the respondents as contract 

laborers for permanent residence was forbidden, necessarily they 

were admitted temporarily under the 9th proviso. 

Respondent contends that since the record does not show for what 

period of time he was admitted nor in what status, necessarily he 

was admitted for permanent residence. Counsel argues, first, that 

the Immigration Act of 1917, as amended, had no application to 

Guam; that it was never enforced in Guam; that the Organic Act 

of Guam, effective on August 1, 1950, indicated that the 1917 act 

was not intended to apply to Guam; and that respondent was, 

therefore, admitted at the time of his first entry for permanent 

residence by those responsihle for enforcement of law on Guam. 

The special inquiry officer refers to the Penal Code of Guam 

which became effective on February 1, 1934 and remained effective 

until July 14, 1953. He states that it enumerated in section 175 

thereof the classes of aliens who would be excludable from admission into the Island of Guam (exh. SF-1 attached to deposition exh. 

R-8). The classes enumerated are similar to those set forth in 

section 3 of the Immigration Act of 1917. In addition, subparagraph (k) of section 175 included in the excludable classes, 

"All persons who are prohibited by United States law from entering any United States possession." The special inquiry officer concludes from section 175 of the Penal Code that "it is clear that the 

applicability of the immigration Act of 1917 to Guam was recognized in the enactment of the Penal Code." The applicability of the 

1917 act to Guam was not clearly recognized by the Deputy Chief 

of Naval Operations in 1948, nor the Immigration Service. See 

discussion of background material in our decision Matter of S—, 

3 I. & N. Dec. 589, at 599 and 600 (April 26, 1940). It seems clear 

that the exclusion provisions of the Immigration Act of 1917 were 

used as a model in the enactment of the Penal Code of Guam, followed for the sake of convenience and consistency. 

Section 25(b) of the Organic Act of Guam provided for the 

appointment by the President. of the United States of a commission 

of 7 persons to ascertain which Federal statutes not applicable to 

Guam should be made applicable and which statutes applicable to 

Guam should be declared inapplicable. Organic Act of Guam, 64 

Shat. *84, section 25(h). A Commission on the Application of 

the Federal Laws to Guam was appointed by the President pur- 

- 3Section 3, Immigration Act of 1917, as amended, provides: "* * Provided 

further, [Cl That the CommisNiener of Immigration and Naturalization with 

the approval of the Attorney General shall issue rules and prescribe. oonchtiOnS, including exaction of such bonds as may he necessary, to control and 

regulate the admission and return of otherwise inadmissible aliens applying 

ffir temporary atinik.,:ion • 

374 
suant to this statute. The findings of this Commission were not 

part of the record when this case last came before us, but we rejected counsel's contention at that time that until such a report was 

made and acted upon the Immigration Act of 1917 was ineffective in 

Guam. The report of the Commission made in 1951 is now part of 

the record (exh. R-22A, exh. R-22B, p. 62). The Commission found 

that the Immigration Act of 1017 was applicable to Guam and that 

there was no need for any change in its applicability. It seems to 

us that for the purposes of the present appeals this determination 

settles the issue. The 1917 act did apply to Guam, even though 

there was no one there to enforce it, and even though a completely 

different body of regulations and orders were being enforced. In 

Ex parts Rogers, 104 F. Supp. 393 (D.C. Guam, May 9, 1952), 

the court held that the Immigration Act of 1917, as amended, is 

applicable to Guam; that Guam is included by the definition in 

section 1 of that statute; and that the Government of Guam had the 

residual authority to enforce the immigration laws of the United 

States in default of performance by the United States Immigration 

and Naturalization Service. 

The special inquiry officer and counsel discuss a number of statutes, 

regulations and instructions relating to the control of immigration 

into Guam which were effective during the period from 1948 through 

1952. In addition to the Immigration Act of 1917 and the Organic 

Act of Guam of August 1, 1950, as amended, and the Penal Code 

of Guam there were Executive Order No. 8683 establishing naval 

defensive sea areas around and naval air space reservations over 

the islands of Rose, Tutuila and Guam, signed on February 14, 

1941 (exhs. W-1 and W-2 attached to exh. R-7) ; Civil Regulations 

with the force and effect of law in Guam, promulgated by the 

Acting Secretary of the Navy on August 4, 1947 (exh. W-5 attached to exh. R-7) ; Agreement Between the United States and the 

Republic of the Philippines for the Recruitment of Filipino Laborers 

and Employees by the United States Army, effective by exchange of 

notes, signed at Manila, May 13 and May 16, 1947 (exh. W-3 attached to exh. R-7) ; CINCPACFLT Instruction 5521.1A, issued 

by the Commander-in-Chief, United States Pacific Fleet on November 10, 1952, relating to clearance for travel in the Pacific 

and adjacent areas (exh. W-7 attached to exh. R-6) ; and others. 

There is extensive testimony on the manner in which the statutes, 

regulations and instructions were applied and enforced on Guam 

and the procedures followed with respect to the immigration into 

Guam during the period from 1948 to 1952. The record coninns 

the testimony of Carlton Skinner, Naval Governor of Guam ruin 

September 1949 to August 1, 1950, and Civil Governor of Guam 

from September 1950 to March 1953 (exh. R-8), Admiral Arthur 

375 
Radford, Commander-in-Chief, Pacific Fleet, from May 1, 1949, to 

July 10, 1953 (exh. R-6), Captain William Mott, Chief International Law Officer in the Office of Judge Advocate General of the 

Navy from 1946 to 1948 and Legal Officer and Island Government 

Officer on the staff of the Commander-in-Chief, Pacific, and High 

Commissioner of the Trust Territory of the Pacific Islands from 

July 1948 to November 1950 (exit. R-7), and others. Apparently 

all this testimony is designed to demonstrate that no -one, including respondent, was admitted to Guam for permanent residence. 

We concluded in our previous decision (August 31, 1956, withdrawn) that it was possible that respondents were admitted to the 

United States as skilled labor under the 4th proviso to section 3 

of the 1917 Act:4We stated that, while it was true that there was 

no hearing and determination by the Attorney General prior to the 

importation as provided by the 4th proviso, the Immigration 

Service was not operating in that area and such a hearing would 

not have been possible. On the subject of available labor, the 

Department of Labor and personnel of the Government of Guam 

wrote, in part, to the United States Department of Justice, Immigration and Naturalization Service, on December 16, 1953: 

This is to advise that we have reviewed the petition of C L C 

and M—, Guam, M.I., dated December 16, 1953, regarding the renewal of 

petition of alien contract laborers. 

According to the records of this office there are no qualified workers available locally. 

We found that respondents were admitted to Guam by those who 

were at that time exercising the "residual authority" to enforce the 

immigration laws, in the absence of the Immigration and Naturalization Service; that they were skilled laborers; and that it might 

be presumed that they were admitted for permanent residence under the 4th proviso to section 3 of the 1917 act, if that act was 

effective on Guam at the time of their admission. 

The record now contains a large amount of evidence establishing 

that no aliens or citizens were permitted to enter Guam for the 

purpose of establishing permanent residence without having its 

first obtained the written permission of the Governor of Guam, 

and that it was the policy of the Navy, as well as of the Civil 

Government of Guam, to deny admission to Guam for permanent 

4 Immigration Act of 1917, section 3, 4th proviso, provides: "Provided further, [4] That skilled labor, if otherwise admissible, may be imported if labor 

of like kind unemployed can not be found In this country, and the question 

of the necessity of importing such skilled labor in any particular luz•tance 

may be determined by the Attorney General upon the application of any person interested, such application to be made before such importation, and such 

determination by the Attorney General to be reached after a full hearing and 

an investigation into the factrs of the ease." 

376 
residence. CINCPACFLT Instruction 5521.1A, November 10, 1052, 

provides: 

Entrance of non-United States citizens to permanently reside on Guam or the 

Trust Territory is contrary to existing policy. Entrance of foreign nationals 

to Guam or the Trust Territory on a temporary ur interim basis will be 

restricted to very compelling reasons, and then, only under carefully controlled 

conditions. 

On the basis of this instruction and on the basis of Executive 

Order 8683, rules and regulations regulating the entry of non-

-United States nationals into the Island of Guam required that all 

entries be by specific permission of the Commander-in-Chief and 

were temporary. Aside from security reasons, Admiral Radford 

testified that the reason for the restriction on the period of stay 

was that after the termination of the military construction program 

on Guam, it was not desired that the population of Guam be 

expanded permanently. Other witnesses also testified that security 

reasons, plus consideration for the civilian native population, required that the large number of aliens brought into Guam in connection with the military construction program be returned to the 

point of recruitment. The former Naval and Civil Governor of 

Guam, Carlton Skinner, -testified that, to his knowledge, no aliens 

were permitted to reside permanently on Guam except for a number of refugee doctors from Europe who were admitted to Guam 

about 1950 under the 4th proviso to section 3 of the Immigration 

Act of 1917. In a letter dated March 8, 1950, the Commissioner of 

Immigration on Guam, E. R. Jones, stated that the laws of Guam 

did not provide for the granting of permanent residence on Guam 

(exh. R-16). 

Documents now in the record which indicate that respondent's 

admission into Guam was only temporary, and that this was the 

understanding of everyone concerned, include: (1) Requests for 

Clearance to Enter Guam (civilian employee) addressed to "Commanding General, Marianas Bonins Command" signed by the Personnel Director of the Marbo Central Exchange all provide that 

"Proposed duration of stay on Guam" shall be one year; (2) Employment Agreements between respondents and the employing concessionaire all provide, "Length of Agreement: Your appointment 

is for a period of one (1) year from date of this agreement, unless 

terminated sooner by the Concessionaire"; (3) Marbo Central Exchange Officer at Guam on May 12, 1952, requested the Commissioner of Immigration for the Philippines to extend the reentry permits for some of respondents for another year, because they desired 

to renew their employment agreements on Guam (Sec P- C 

C , A—S944633, record, exh. R-1) ; (4) Memorandum, .Tune 27, 

1951, from the Marbo Central Exchange Officer concerning "Emo i l 

'g971 2—R1 9,1 
ployment of Aliens by Civilian Concerns after Termination of 

Employment with Marbo Central Exchange" (exli. R-13F) states 

that Command policy prohibits the release of Filipino or Chinese 

nationals to civilian concerns after termination or breach of contract and that all such personnel must be returned to point of 

origin upon separation from the Command. This memorandum 

states further that in accordance with policy established by COMNAVMAR, Chinese nationals who take leave to China and for the 

Philippines will not he permitted to return to Guam; (5) A letter 

of September 8, 1947, from Brigadier General Farthing to the 

Hon. C. A. Pownall, Governor of Guam, requesting reconsideration 

for the entry of certain Chinese nationals (description clearly relates to a group such as respondents) for a period not to exceed 

one year, and concludes with a clause which appears several places 

in the record: "With this control there could be no problem of colonization" (exh. R-13E) ; (6) A memorandum of August: 9, 1949, 

from the Acting Attorney General of Guam to the Civil Administrator concerning a request for permanent residence status states 

that the Naval Government of Guam discontinued such grants 

"over one year ago and the renewed use of this grant now is not 

considered timely" (exh. R-11). These and other documents, and 

the testimony of the witnesses referred to above, discussed in more 

detail by the special inquiry officer, establish that respondents were 

not. admitted for permanent residence upon arrival on Guam under 

any provision of law. 

In the meantime large numbers of construction workers were imported into Guam by the Armed Services and by private companies 

operating under contracts with the United States Government. The 

Immigration Service has stated that there are, or were when the 

present proceedings began, 12,000 alien workers on Guam. Counsel 

attempted to demonstrate that there have been exceptions to the 

procedures provided; that there were some persons admitted for 

permanent residence on Guam; and that groups were brought into 

Guam without the permission or knowledge of the Immigration 

Department of the Government of Guam. Juan L. Gumataotao, the 

Customs arid Immigrant Inspector under the Naval Government of 

Guam from April 16, 1947, to August 1, 1950, and Supervisory 

Immigration Officer under the Territorial Government of Guam 

from August 1, 1950, to August 10, 1950, testified that the Armed 

Forces brought labor into the Island in large numbers without his 

seeing or approving the admission. Confusion arose from exceptions made in behalf of civilian contractors and their employees 

traveling under orders issued by the Armed Forces. Mistakes or 

exceptions may have been made, and they would be almost unavoidable in as large an undertaking as the construction on Guam under 

378 
wartime conditions . 5Fvon sn, we fail to so.e. that such mistakes and 

exceptions affect the status of respondents in the present proceedings, whose position must continue to remain peculiarly their own. 

On June 16, 1952, the Immigration and Naturalization Service 

opened an office on Guam and assumed the responsibility for administering immigration laws in the area. The Immigration and 

Nationality Act of 1952 clearly includes Guam. The Immigration 

and Naturalization Service, following the policy pursued by this 

Government when the Service commenced operations in the Virgin 

Islands, purported to presume lawful admission for aliens in Guam 

but made an exception of "contract laborers," by 8 CFR 4.2(j), Fed. 

Register, December 8, 1954, effective January 3, 1955. See footnote 1. 

Following the release of our previous decision on August 31, 1956, 

8 CFR 4.2(j) was amended on October 26, 1956.6The special inquiry officer's excellent statement on the effect of this amendment, 

with which we concur, is, in part, as follows: 

While the purpose of the amendment of 8 CFR 4.2(j) is obvious, the effect 

of the amendment of the regulation on the respondents herein is not so readily 

apparent. The residence status of all of the respondents was presented to 

this Service for adjudication prior to the amendment of the regulation on 

October 26, 1956. If the respondents became entitled to status as permanent 

residents under 8 CFR 4.2(j) in the form in which it was originally published 

on December 8, 1954, it is not deemed that they would be divested of their 

right to such status by rcaon of the amendment of the regulation on October 

26, 1956. There is nothing in the amended regulation to indicate that it was 

intended to have retroactive effect. In the absence of such indication the 

amendment, under the general rule of statutory construction, may be applied 

retrospectively if it relates to matters that are remedial or procedural but not 

if vested rights are involved. * * * It is noted also that there is nothing in 

the regulation which would permit any rebuttal of the so-called "presumption" 

since the right to permanent residence status would automatically vest in 

any alien who met the description of any of the classes enumerated in the 

regulation. Determination of the status of the respondents under 8 CFR 

4.2(j) will, therefore, be made on the basis of that regulation as it existed 

prior to its amendment. 

Korean War—June 25, 1950, to July 27, 1953 (Armistice signed). 

68 CFR §4.2(j), as amended October 26, 1956: "(j) Aliens admitted to 

01411,1(t. (1 ) Au alien who establishes that he was 219tultlet1 to Guam prior to 

December 24, 1952, by records, such as Service records subsequent to June 15, 

1952, records of the Guamanian Immigration Service, records of the Navy or 

Air Force, or records of contractors of those agencies; that he was not exciudahie under the Act of reuruary P , 1917, as amenaea; anu that he continued to reside in Guam until December 24, 1952, and thereafter has not 

been admitted or readmitted into Guam as a nonimmigrant: Provided, That 

the provisions of this subparagraph shall not apply to an alien who was 

exempted from the contract la9orer provision of section 3 of the Immigration 

Act of February 5, 1917, as amended, through the exercise, expressly or nupliedly, of the 4th or 9th provisos to section 3 of the said act." 

379 
Radford, Commander-in-Chief, Pacific Fleet, from May 1, 1949, to 

July 10, 1953 (exh. R-6), Captain William Mott, Chief International Law Officer in the Office of. Judge Advocate General of the 

Navy from 1946 to 1948 and Legal Officer and Island Government 

Officer on the staff of the Conimander-in-Chief, Pacific, and High 

Commissioner of the Trust Territory of the Pacific rslands from 

July 1948 to November 1950 (exh. R-7), and others. Apparently 

all this testimony is designed to demonstrate that no-one, including reSpondent, was admitted to Guam for permanent residence. 

We concluded in our previous decision (August 31, 1956, withdrawn) that it was possible that respondents were admitted to the 

United States as skilled labor under the 4th proviso to section 3 

of the 1917 Act. 4We stated that, while it was true that there was 

no hearing and determination by the Attorney General prior to the 

importation as provided by the 4th proviso, the Immigration 

Service was not operating in that area and such a hearing would 

not have been possible. On the subject of available labor, the 

Department of Labor and personnel of the Government of Guam 

wrote, in part, to the United States Department of Justice, Immigration and Naturalization Service, on December 16, 1953: 

This is to advise that we have reviewed the petition of C L C 

and M---, Guam , M 1_, dated December 16, 1953, regarding the renewal of 

petition of alien contract laborers. 

According to the records of this office there are no qualified workers available locally. 

We found that respondents were admitted to Guam by those who 

were at that time exercising the "residual authority" to enforce the 

immigration laws, in the absence of the Immigration and Naturalization Service; that they were skilled laborers; and that it might 

be presumed that they were admitted for permanent residence under the 4th proviso to section 3 of the 1917 act, if that act was 

effective on Guam at the time of their admission. 

The record now contains a large amount of evidence establishing 

that no aliens or citizens were permitted to enter Guam for the 

purpose of establishing permanent residence. without having 

first obtained the written permission of the Governor of Guam, 

and that it was the policy of the Navy, as well as of the Civil 

Government of Guam, to deny admission to Guam for permanent 

4 Immigration Act of 1917, section 3, 4th proviso, provides: "Provided further, [4] That skilled labor, if otherwise admissible, may be imported if labor 

of like kind unemployed can not be found in this country, and the question 

of the necessity of importing such skilled labor in any particular instance 

may be determined by the Attorney General upon the application of any person interested, such application to he made before such importation, and such 

determination by the Attorney General to he reached after a full hearing and 

an investigation into the facts of the case." 

376 
perienee, skill and administrative capacity, as lie recognized when 

he admitted four of the twelve. 

The special inquiry officer found with regard to Y 

A-8944606 ;"as a chief cook the work to be performed by the respondent was primarily supervisory or administrative, although it 

undoubtedly also involved a certain amount of cooking." We find 

that all the cooks, bakers and managers are entitled to the same 

finding. 

The available payroll information is tabulated for the purpose of 

ascertaining the comparative salaries during the same period. See 

Appendix I. The cooks received approximately the same salaries. 

They were first admitted to Guam at salaries of $125 to $150 a month 

except L H , A-8944626, who was both a cook and baker and 

was paid $102.:50 from the beginning. The managers received $90 

and $100 a month. The three bakers were paid the most—$125, 

$150, and $170 a month during this period. They also received all 

living and medical expenses Mr M testified that, respondents 

were paid by their contracts a yearly bonus equivalent to one month's 

salary. Mr. C testified that the supervisory employees were to 

be paid such bonuses in lieu of overtime payments, and depending 

on whether the company showed a profit. The non-supervisory employees the waiters, busboys, kitchen helpers received $35 and $40 

a month, plus living expenses. Mr. C testified that he would not 

have paid managers' salaries to waiters and that the wage scale 

paid in his establishments was comparable to that paid by other 

employers in the area. 

The cashiers were to account each day for the tickets, and to 

receive money, to be responsible for the correct charging of articles 

sold and for cash and daily records and reports. Sometimes they 

acted as assistant, managers, or managers and were responsible for 

the manager's fund of two to five hundred dollars which was used 

for the purchase of necessary items, and for monitoring the work of 

other employees. Respondents all had some responsibility for training the helpers and apprentices under them, although at the reopened hearings they all felt it necessary to emphasize these activities and to discount any actual cooking or other physical endeavor. 

Considering the emphasis on titles in these cases it is understandable. Mr. Karl Giesemlorfer, Security Supervisor for the Army 

and Air Force Exchange Service on Guam from July 1948 to January 1958, testified that after C and M lost its concessions 

with the Marbo Central Exchange, it was one of his duties to organize the food services for the Exchange. He took over the Filipino personnel of C and M to operate the food service 

organization, and he stated that these people had all been trained 

by the Chinese employees of C and M 

381 
ployment of Aliens by Civilian Concerns after Termination of 

Employment with Marbo Central Exchange" (exh. R-13F) states 

that Command policy prohibits the release of Filipino or Chinese 

nationals to civilian concerns after termination or breach of contract and that all such personnel must be returned to point of 

origin upon separation from the Command. This memorandum 

states further that in accordance with policy established by COMNAVMAR, Chinese nationals who take leave to China and for the 

Philippines will not he permitted to return to Guam; (5) A letter 

of September 8, 1947, from Brigadier General Farthing to the 

Hon. C. A. Pownall, Governor of Guam, requesting reconsideration 

for the entry of certain Chinese nationals (description clearly relates to a group such as respondents) for a period not to exceed 

one year, and concludes with a clause which appears several places 

in the record: "With this control there could be no problem of colonization" (exit. R-13E) ; (6) A memorandum of August 9, 1949, 

from the Acting Attorney General of Guam to the Civil Administrator concerning a request for permanent residence status states 

that the Naval Government of Guam discontinued such grants 

"over one year ago and the renewed use of this grant now is not 

considered timely" (exh. R-1I). These and other documents, and 

the testimony of the witnesses referred to above, discussed in more 

detail by the special inquiry officer, establish that respondents were 

not admitted for permanent residence upon arrival on Guam under 

any provision of law. 

In the meantime large numbers of construction workers were imported into Guam by the Armed Services and by private companies 

operating under contracts with the United States Government. The 

Immigration Service has stated that there are, or were when the 

present proceedings began, 12,000 alien workers on Guam. Counsel 

attempted to demonstrate that there have been exceptions to the 

procedures provided; that there were some persons admitted for 

permanent residence on Guam; and that groups were brought into 

Guam without the permission or knowledge of the Immigration 

Department of the Government of Guam. Juan L. Gumataotao, the 

Customs and Immigrant Inspector under the Naval Government of 

Guam from April 16, 1947, to August 1, 1950, and Supervisory 

Immigration Officer under the Territorial Government of Guam 

from August 1, 1950, to August. 16, 1950, testified that the Armed 

Forces brought labor into the Island in large numbers without his 

seeing or approving the admission. Confusion arose from exceptions made, in behalf of civilian contractors and their employees 

traveling under orders issued by the Armed Forces. Mistakes or 

exceptions may have been made, and they would be almost unavoidable in as large an undertaking as the construction on Guam under 

378 
radical—from laborer to merchant and restaurant keeper. In the 

instant cases, the changes were only of a degree. We must look at 

the actual work done by respondent, the manner in which he was 

employed from the time of his arrival to determine the true capacity 

in which he was to be used. Suppose that a group of illiterates was 

imported into Guam, all accidentally designated ahead of time as 

"inamtgem", suppose further, that following their arrival they were 

found to be incompetent and were demoted to sweepers the next day. 

Would it still be contended that the original erroneous designation 

controls? An employee of C and M— may have been assigned for a few weeks immediately following his arrival on Guam 

to work as "counterman" in the same establishment where he became 

manager the following month, but this does not mean that he entered as a laborer. Most of these people were coming to Guam as 

replacements for those who were returning to the Philippines, or 

going on leave. One of the personnel people testified that their 

principal problem was one of "home sickness," and that many of 

the employees refused to stay on Guam more than three years. It 

would seem almost inevitable that a new "manager" or even chief 

cook or baker might break in on a new job under the direction of 

the departing supervisor. 

The records relating to respondents are sparse, partly due to the 

fact that prior to the arrival of the Immigration and Naturalization Service on Guam in 1952 immigration records were kept in a 

less precise manner than has been customary under the aegis of the 

Service. It is also alleged that many of the records of C and 

M were destroyed in a typhoon, and that they have moved their 

offices on Guam many times. Exhibit R-23 is a list of respondents 

and the wages shown by the first monthly sheets following their 

entries into Guam. This list carries a note to the effect that the 

first pay sheets have been turned over to the "United States Immigration, Agana, Guam," as exhibits during the previous trial. There 

was considerable discussion as to whether or not these pay sheets 

were turned over to a representative of the Immigration Service, 

and, if so, their ultimate disposition. So far as we can discover, 

there is no conclusion as to whether or not the Immigration Service 

actually received these records, or as to the disposition of them if 

they did exist. 

There are the following kinds of records: 

(1) Application and Personal History sheets. Mr. C testified 

that the information forms for each employee were probably filled 

out by V Y in the Philippines, although the individuals 

were hired personally by Mr. C , and Nat (lie fact that the form 

shows that the respondent was entering Guam in the position of 

checker is not necessarily conclusive that that is the capacity in 

which ho was employed. 

383 
The special inquiry officer found that four of respondents, including C Y L , were not contract laborers and, therefore, became entitled to the presumption of lawful admission provided by regulation, but that eight others of this group were contract laborers under the law and hence within the exception. Although the language of the statute forbidding the importation of 

aliens under contract- "to perform labor in this country of any kind, 

skilled or unskilled" is broad, the tendency of the cases has been to 

reduce its application. The rule usually cited is from Ex parte 

Gouthro, 296 Fed. 506 (E.D: Mich., 1924) (aff'd United States. v. 

Gouthro, 8 F.2d 1023 (C.A. 6, 1925)), as follows, at p. 509: 

Tt must now be regarded as settled that the purpose of Congress in enact 

lug this so-called "contract labor" legislation was to prevent the importation 

into this country of an ignorant, servile class of foreign laborers, to work at 

a low rate of wages, and thus reduce other laborers engaged in like occupations to the level of the aosioted immigrant; and this provision of the statute 

does not refer nor apply to persons whose work requires mental, rather than 

merely manual, effort as its dominant element. Church of Holy Trinity v. 

United States, 143 U.S. 457, 12 Sup. Ct. 511, 36 L. Ed. 226; United States v. 

Lazes, 163 U.S. 258, 16 Sup. Ct. 998, 41 L. Ed. 151; Settarrenberg v. Dollar 

Steamship Co., 245 U.S. 122, 38 Sup. Ct. 28, 62 L. Ed. 189; Gay v. Hudson 

River Electric Power Co., 178 Fed. 499; Tatsukichi Kuwabara v. United States, 

260 Fed. 104, 171 C.C.A. 140 (C.C.A. 9) ; United States v. Union Bank of Canada., (C.C.A. 2) 202 Fed. M, 8 1438; Ea parte Aird, (D.C.) 216 Fed. 904. 

Gouthro held that a Western Union Telegraph operator was not a 

contract laborer. Aird held that a "class A draftsman" employed 

by Bethlehem Shipbuilding Corp. was not a contract laborer. We 

followed these cases in Matter of S , 1 I. & N. Dec. 196 (Feb. 

19, 1942). We pointed out that the Immigration and Naturalization Service has held that professional tennis, football, baseball, 

hockey and soccer players, and professional boxers, are not contract 

laborers. In that case we held that a ski instructor was not a con 

tract laborer. In Matter of MeL ,1 I. 8.7, N. Dec. 264 (June 20, 

1042), we stated that the Immigration and Naturalization Service 

has held further that race track jockeys, race track starters, horse 

grooms and trainers are not contract laborers. We held that a 

hockey player, temporarily employed in a supervisory or administrative capacity at a public golf course, was not a contract laborer. 

See also Matter of B ,1 I. R N. Dec. 593 (Nov. 12, 1943) ; Matter 

of Mad? , 1 I. & N. Dec. 682 (Dec. 16, 1943). The special 

inquiry officer's decision declares that the basis of these decisions 

was the fact that the work to be performed by them was not a type. 

which can be considered manual labor. This is where we part 

company with the special inquiry officer. Respondents were not 

domestic servants. The services performed by them, mass cooking, 

baking and supervising in commercial establishments, required ex-' 

380 
manager of all of the C and M restaurants on Guam, and 

that at the time of his statement (exh. 4) he was employed by Far 

East Trading Company as manager of the Town House Coffee Shop. 

At the reopened hearing additional records and testimony were 

obtained, and nothing contradicts the record established in the earher hearing. Respondent, testified on June 3, 1958, that he had 

worked for C C at Clark Field in the Philippine Islands as 

cashier, collecting the receipts and disbursing money for wages and 

supplies at all of C 's five restaurants at Clark Field from 1946 

to 1949. 

Respondent was entitled to a finding that he was brought to Guam 

for the purpose of being employed in a position which does not fall 

under the contract-labor category, and that he is, therefore, entitled to the presumption contained in 8 CFR 4.2(j) as a person who 

was lawfully admitted for permanent residence on his arrival on 

Guam on March 6, 1951. This is in accordance with the order we 

made on August 31, 1956. The order terminating proceedings as to 

him was correct. . 

In summary as to all employees, the record establishes that it was 

well understood by the employees and the concessionaires on Guam 

that entry was authorized for periods of one year only. No grant 

of permanent residence to respondents was made or intended at time 

of entry. Counsel's,- continuons objections, that the testimony taken 

and evidence adduced were not within the scope of the Board's 1956 

order reopening the record, were time consuming and were correctly overruled. The order was, and was intended to be, broad in 

its scope and in its interpretation. The record is much more. informative than it was in its previous state. 

The four C and M employees who were admitted by the 

special inquiry officer are, on the average, better documented than 

the eight who were not, admitted, but the existence of more documents should not determine their right to remain. No single test 

can determine the classification of contract labor, such as, "Does he 

perform mental as opposed to menial labor?" We have attempted 

to look at all the elements—the documents, the skill, experience and 

competence of the employee, and the manner in which his talents 

were utilized following his admission. The record establishes that 

those who were admitted were not supervisory or superior in relation to the others in the group. Appendix I was designed to show 

the comparative salaries and job designations of the twelve. All 

were supervisory in relation to the Filipino employees and received 

three to five times the pay of the kitchen helpers, bus boys and 

waiters. Each of the bakers was in charge of a different shift, or 

at a different bakery, at least within a few days of his arrival. Each 

cook was head cook in a different restaurant. The cooks and bakers 

385 
The record indicates that respondents all had, and were expected 

to have, a certain amount of versatility in the food preparation and 

purveying field. The bakers were also qualified as cooks. The 

managers were competent to double as cashiers, checkers and waiters. 

Several witnesses mentioned that Chinese restaurants are run differently from other restaurants, in that the managers circulate, 

sometimes taking the orders and serving the food themselves and 

helping with the cleaning-up. Mr. C and Mr. M both testified that a degree of versatility is necessary ia.all lines of work. 

There was no painful stratification by "job sheets," as there is in 

the Civil Service system. There was considerable travel among the 

employees (until these proceedings began), some of them returning 

to the Philippines, or taking leave in Hong Kong, and being replaced by others. The nature of C and M 's operations at 

that time was fluid, depending on the movement of troops and the 

progress of construction work on Guam. Respondents entered Guam 

shortly before or during the Korean War. Snack bars and other 

installations opened and closed as the need arose. 

The special inquiry officer has stated that the best evidence of the 

capacity in which the respondents were employed, the purpose for 

which they were brought to Guam, ordinarily would be the official 

record of arrival, but here there. was no such record so recourse 

must be had to such records as there were. Since respondents arrived during an era of impossible record keeping, the best evidence 

is the capacity in which they were actually employed either immediately or within a reasonable time after their arrival. The special 

inquiry officer quotes Ex parte Kaiehiro Sugimoto, 33 F.2d 926, 

aff'd 38 F.2d. 207, cert. den. 281 U.S. 745, and Tulsidas v. In-sular 

Collector of Customs, 262 U.S. 258, that "It is his status at the time 

of entry, and not that subsequent to entry which controls." In 

Tulsidas and Suginwto there is no indication how long after the 

aliens' arrivals as laborers that they changed their occupations and 

became a merchant and a restaurant keeper. However, the special 

inquiry officer has interpreted this rule most rigidly, declaring that 

if there was any lapse of time after an alien's arrival before he 

was put into a managerial or supervisory position he was not brought 

to Guam to be employed in such a position. The special inquiry 

officer found in several cases where the aliens were given temporary 

jobs until they were permanently assigned, that it was the temporary employment, no matter how brief, which governed the status 

in which they entered. He states (p. 37, special inquiry officer's 

decision), "If he arrived on Guam on April 3, 1951, for the purpose 

of being employed as a waiter, the fact that the next day he was 

assigned to work as a cashier would not have made him admissible 

on April 3, 1951." In l'ul8idas and Sugimoto the changes were 

AR9 
APPENDIX I 

Y -K 

L-'( Y9-) 

C F 

Nv--(WF F 1 

8-944-636 

A M 

T-•(TT-) 

8-944-635 

L II 

(II -L ) 

8-944-020 

F--1FK (K 

F ) 

8-94.1-603 

C It 

5-944-025 

8-949-606 

Nov. 1948 

'125. 

Nov. 1948 

- 150. 

Nor. 1918 

- 162.50 

Dec. 1948 

- 150. 

Dec. 1948 

135. 

Dec. 1948 

- 102.50 

Jam 1949 

Asst. 

Cook 150. 

Jan. 1949 

Asst. 

Cook 155. 

Jan. 1949 

Chief 

Baker 162.50 

Feb. 1919 

Cook 150. 

Feb. 1949 

Asst. 

Cook 155. 

Mar, 1949 

- 150. 

Mar. 1949 

155. 

Apr. 1011 

- 150. 

A pr, 1912 

155. 

May 1949 

- 150. 

Juno 1995 

- 150. 

Julie 1949 

102.59 

July 1999 

 150. 

July 1599 

162.50 

July 1919 

Chief 

Cook 162.50 

Aug. 1949 

195 month) 

155. 

Aug. 1949 

Baker 162.50 

Aug. 1949 

162.50 

;Sept-. 1949 

Cook 150. 

Sept. 1949 

155. 

Sept. 1949 

162.50 

Sept. 1949 

Baker 27.08 

(5 days) 

Oct. 1949 

- 150. 

Oct. 1999 

Cook 158.88 

Oct. 1949 

Baker 102.50 

Oct. 1949 

102.56 

Oct. 1949 

Cook 150. 

Nov. 1950 

Chief 

Baker 120.42 

(21 days) 

Nov. 1950 

Cook 171.13 

2 pages 

Nov. 1.950 

Cook 45.50 

(7 days) 

Dec. 1950 

Chief 

Cook 162.75 

Dec. 1950 

Chief 

Baker 170.63 

Dec. 1950 

(1a month) 

Baker 63. 

Sept_ 23, 1951 

Empl. 

Contract 

Ch. Cook 

167.63 

July 12, 1951 

Empl. 

Contract 

Ch. Baker 

175.75 

Fob. 1951 

Cook 150. 

Feb. tom 

Baker 125. 

Oct. 1951 

Chief 

Cook 167.63 

Sept. 21, 1851 

Empl. 

Contract 

Baker 100. 

Jan. 16, 1952 

Empl. 

Contract 

Ch. Cook162.25 

Feb. 11, 1952 

Empl. 

Contract 

Ch. Cook 

175.75 

Nov. 22, 1951 

Empl. 

Cnntrnst 

Ch. Cook 

150. 

Nov. 1951 

Asst. 

Chief 

Baker 

*Proceedings terminated by spec al inquiry officer. 

387 
APPENDIX I—Continued 

C-1----- 

L--* 

(L C—) 

8-994-627 

L A • 

(A L--) 

8-999-604 

P--C--C— 

(L F ) 

8-949-633 

C—(2— 

N-- 

Y (N ) 

8-944-611 

K—N-- 

(N--K--) 

8 914 602 

L—W-- 

P--Q--- 

(L :=1 ) 

8-944-013 

Nov. 1950 

Manager 110. 

Dec. 1959 

Manager 110. Dec. 1950 

Cook 150. 

Mar. 1951 

"in charge" 

65. 

(25 days) 

Mar. 1951 

"counter" 

temp. assign. 

65. 

(26 days) 

Apr. 1951 

Manager 100, 

(2 peer5) 

Apr. 1951 

85. 

(25 lays) 

May 1951 

Manager 110, 

June 1951 

Manager 13.5. 

Oct. 1951 

Manager 150. 

Oct. 1951 

Alanager 

16.15 

(5 days) 

Oct. 1951 

At anger 

116.87 

Nov. 1951 

Manager 126. 

Jan. 6, 1952 

ELLIpl. 

Contract 

Manager 150. 

Mar. 6, 1952 

Erupt. 

Contract 

Manager 125, 

July 20, 1951 

Culp]. 

Contract 

Manager 

1 15.50 

March 6, 1952 

Ealpl. 

Contract 

Manager 170. 

Apr. 3, 1952 

Euipl. 

Contract 

Manager 140. 

May 26, 1552 

Empl. 

Contract 

Ch. Cook 

157.50 

*Proceedings terminated by special inquiry officer. 

388