(dissenting);

The Immigration and Nationality Act requires generally that all immigrants entering the United States possess a valid, unexpired visa. 8 U.S.C. § 1181 (a). To this rule only one exception is made. § 1181(b). It allows “returning resident immigrants, defined in section 1101(a) (27) (B)” to be readmitted to the United States without a visa. Within § 1101(a) (27) (B) fall immigrants “lawfully admitted for permanent residence who [are] returning from a temporary visit abroad.”

These provisions, as the Service concedes, were designed primarily to assist aliens actually resident in the United States, who are eligible for citizenship, are treated for most purposes like citizens, and whose re-entry Congress had every reason to facilitate. The question in this case is the very narrow one whether the benefits Congress indubitably granted to aliens actually resident here extend also to commuters, who by definition neither reside here nor intend to do so, and who are ineligible to citizenship. Petition of Correa, 70 F.Supp. 265 (W.D.Tex.1948).

Is the commuter “lawfully admitted for permanent residence” within the meaning of § 1101(a) (27) (B) ? If he is, then when he returns to the United States from a visit home, 1 the Service may admit him pursuant to § 1181(b) without a valid visa 2 . But if he is not, *83 then the Government concedes that there is no authority in the immigration statutes for such informal admission, and the petitioners are entitled to an order compelling the Service to obey the law.

The crux of the majority’s opinion in this case is thus the first paragraph of Part II, where the majority, without discussion and virtually without authority, accepts the Service’s contention that an alien is “lawfully admitted for permanent residence” merely by virtue of the fact that he has at some time in the past been issued an immigrant visa. Immaterial are both an actual residence in the United States and the intention to establish one. Since I think this conclusion at war with the most elementary principles of statutory construction and unsupported by any consistent administrative interpretation, I must respectfully dissent. 3

I.

As the majority points out, “lawfully admitted for permanent residence” is a term of art, one that appears in many sections of the Act besides § 1101(a) (27) (B). The authors of the Act took the trouble carefully to define the term, § 1101(a) (20), and stated that a precise definition was necessary since “this term has especial significance because of its application to numerous provisions of the bill.” H.R.Rep.No.1865, 82d Cong., 2d Sess., 1952 U.S.Cong. & Adm.News, pp. 1653, 1684. Congress could not have made clearer its intention that the term be given a uniform significance throughout the Act. We are thus not at liberty to adopt one meaning of “lawfully admitted for permanent residence” in § 1101(a) (27) (B) and another in the other sections where the phrase appears: if commuters are lawfully admitted for permanent residence for purposes of § 1101(a) (27) (B), then they must be lawfully admitted for permanent residence for purposes of all other sections of the Act.

But, as I hope to show below, the majority’s construction of “lawfully admitted for permanent residence” as including commuters makes nonsense of the congressional policy embodied in no fewer than five sections of the Act entirely apart from § 1101(a) (27) (B), and is contrary to the plain meaning of two others. I conclude, simply on the basis of the language of the Act, that Congress cannot have thought commuters were “lawfully admitted for permanent residence.”

*84 Take first § 1182(h) and § 1182(i). These sections provide for waiver by the Attorney General, under certain circumstances, of the ban against entry of aliens who have been convicted of a crime or who have procured entry documents by fraud. In both cases the Attorney General may grant waiver only if the alien is the spouse, child, or parent of “a United States citizen or of an alien lawfully admitted for permanent residence.” If an alien lawfully admitted for permanent residence is taken to be one who actually resides or actually intends to reside in the United States, then the sections embody a humanitarian, family-maintaining policy for residents of the United States. But I can think of no reason why Congress would choose to extend favored treatment, for example, to a Mexican convicted of a crime, simply because he was the parent of a commuter resident in Tijuana.

Or take § 1182(a) (14). Read together with § 1101(a) (27) (A), the effect is to provide that a Mexican laborer seeking to enter the United States as a special immigrant (not as a commuter) must receive Labor Department certification unless he is the parent, child, or spouse of a United States citizen or of an alien lawfully admitted for permanent residence. Once again, this is a sensible and humanitarian policy if the laborer’s relatives actually reside in the United States. But why would Congress want to allow a Mexican laborer into the country as a special immigrant without certification, simply because his son is a commuter — by definition a resident of Mexico ?

There are similar examples in other contexts. Thus § 1153(a) (2) awards second preference visas to the spouse, unmarried son or unmarried daughter of an alien lawfully admitted for permanent residence. No doubt few visas would be awarded to commuter families under this provision, since immigrants born in the Western Hemisphere are exempt from the numerical limitations on entry. § 1153(a). But it remains hard to see why Congress would want to give special preference to the children born abroad of parents who emigrate to Canada or Mexico and become commuters.

Finally, § 1251(f) forbids the deportation of an alien who procured entry by fraud, if he is the spouse, parent, or child of a citizen or of an alien lawfully admitted for permanent residence. Would this court really construe § 1251(f) as forbidding the deportation of a Mexican who had procured entry by fraud, simply because he had a son who was a commuter resident in Tijuana? I cannot believe we would, but if the majority opinion is correct we would be obliged to.

So far I have discussed only the untoward consequences for other sections of the Act that flow from the majority’s actual holding in this case — that commuters are lawfully admitted for permanent residence. The reasoning of the majority, however, leads to consequences still more absurd than the actual holding.

The majority argues that commuters are lawfully admitted for permanent residence simply because “each of them at one time received a valid immigration visa.” If this is correct, it follows that all of the thousands of people, all over the world, who have ever received a valid immigration visa, also qualify as aliens lawfully admitted for permanent residence. Such aliens would not of course be commuters, since never having come to this country they could not be said to be “returning from a temporary visit abroad” and would be ineligible to use Form 1-151 as an entry document. But since according to the majority they were lawfully admitted for permanent residence, they are entitled to the benefits which that status confers.

Thus their relatives who have been convicted of crimes are entitled to specially favorable treatment. § 1182(h). Their relatives who enter this country by fraudulent means may not be deported. § 1251(f). If they were born in the Western Hemisphere, their relatives may enter as special immigrants without certification by the Secretary of Labor. *85 § 1182(a) (14). Most startling of all, the unmarried sons and daughters of such aliens are entitled to second preference visas even though the alien himself might have been eligible for no preference whatsoever. And all these consequences follow even if the alien “lawfully admitted” never leaves his homeland. If Congress intended such a result, it chose an odd way of saying so.

Two other sections of the Act also suggest strongly that the majority is incorrect in making “lawfully admitted for permanent residence” turn solely on the fact that an immigration visa was issued, without regard to the residence or intended residence of the alien. The first is § 1182(g). That section grants privileges to the parent or unmarried son or daughter of “a United States citizen, or of an alien lawfully admitted for permanent residence, or of an alien who has been issued an immigrant visa.” If the majority position is correct, then the entire last phrase is surplusage, since any alien who has been issued an immigrant visa is an alien lawfully admitted for permanent residence. Congress, however, seems to have thought the categories distinct.

Second is the definition of the border-crossing card in § 1101(a) (6). The statute there distinguishes between an “alien lawfully admitted for permanent residence’* and an “alien resident in foreign contiguous territory.” If one accepts the Service’s construction of “lawfully admitted for permanent residence,” I suppose that it is possible to give some meaning to the second phrase by construing it as applicable to non-immigrants. But the question before us is precisely whether the Government’s construction of the statute is correct. And, approaching § 1101(a) (6) with an open mind, it would certainly appear that the plain meaning of the words indicates that an “alien lawfully admitted for permanent residence” is not an “alien resident in foreign contiguous territory.”

II.

Any lingering doubt that commuters are not lawfully admitted for permanent residence ought to have been dispelled by Congress’s failure to modify § 1101(a) (27) (B) in 1965. Judge Youngdahl had held five years previously, in the only decision on point, that commuters could not be considered lawfully admitted for permanent residence within the meaning of the section. Amalgamated Meat Cutters & Butcher Workmen of North America v. Rogers, 186 F.Supp. 114 (D.D.C.1960). Congress was well aware of the decision, as the committee hearings show. But it expressed no dissatisfaction whatsoever with Judge Youngdahl’s decision, and declined to amend the statutory provisions on which it was based. The majority makes much of the silence of Congress as evincing an intention not to change the law. But, whatever the case in regard to other matters, the law left unchanged as to § 1101(a) (27) (B) was Judge Youngdahl’s decision. Under the circumstances, I think it must be deemed adopted. 4

*86 The conclusion derives support from the 1965 change in wording of § 1181(b). Until 1965, the section provided informal documentation requirements for aliens “lawfully admitted for permanent residence” returning to the United States from abroad. Congress changed the language to refer to “returning resident immigrants, as defined in § 1101(a) (27) (B).” Assuming that the majority is correct and that no change in the substantive law was intended, the new language indicates Congress’s belief that those who were “lawfully admitted for permanent residence” could properly be described as “resident immigrants”. Such a belief is perfectly compatible with Judge Youngdahl’s view. But it is hard indeed to square with the Service’s position that residence in the United States is irrelevant in determining whether an alien is lawfully admitted for permanent residence.

III.

Nor can I agree with the majority that the definition of lawfully admitted for permanent residence contained in § 1101(a) (20) requires us to adopt the Service’s construction here. As the Government’s brief points out, the statutory definition comes ultimately from United States ex rel. Georgas v. Day, 43 F.2d 917, 918-919 (2d Cir. 1930), and United States ex rel. Stapf v. Corsi, 287 U.S. 129, 133 , 53 S.Ct. 40 , 77 L.Ed. 215 (1932), cases involving a very different problem.

In those cases an alien who had improperly gained admission to the United States stayed in this country for three years, until the statute of limitations had run and he could no longer be deported. He then went abroad, and upon his return to the United States the Service attempted to exclude him. He contended that since before leaving the United States he had been a legal resident (in the sense of being non-deportable), he was entitled to re-enter as an “immigrant previously lawfully admitted to the United States returning from a temporary visit abroad,” as the statute then read.

The courts in both Georgas and Stapf rejected the alien’s contentions. They drew a distinction between aliens who, for whatever reasons, were non-deportable and those who, by virtue of a lawful admission in the past, occupied the status of being lawfully admitted for permanent residence. Only the latter type of lawfully resident alien was entitled to re-enter the United States upon returning from abroad. The history § 1101(a) (20) thus shows that the language was adopted simply to reject for the future the contentions that Georgas and Stapf had made. And in neither of those cases was there the remotest suggestion that the courts endorsed the doctrine now espoused by the Service, or considered actual residence in the United States irrelevant to the status of having been lawfully admitted. Both Georgas and Stapf were unmistakably residents of the United States at the time they went abroad.

The majority also rely on evidence that Congress in 1952 knew that the Service considered commuters aliens lawfully admitted for permanent residence. But of course the question for us is whether Congress, knowing the Service’s practice, adopted it — whether, in other words, the definition of “lawfully admitted for permanent residence” in the statute is the same as the one used by the Service before 1952. The best guide to what Congress intends, of course, is what it says, and for the reasons given in Part I, I cannot agree that the language of the Act is compatible with the Service’s interpretation.

Finally, I doubt that in the circumstances of this case any firm conclusions can be drawn from Congress’s failure to curtail the Service’s commuter practice. Prior to the change in the Secretary of Labor’s certification procedure in 1965, *87 it mattered very little whether an alien was admitted as a special immigrant under § 1101(a) (27) (A) or as a commuter under § 1101(a) (27) (B). No quota or other restrictions faced either class of entering aliens. Only if the Secretary of Labor made a certification — a fairly rare event — did the commuter even arguably have any advantages over the special immigrant. Even this advantage, moreover, by 1965 would have seemed foreclosed by Judge Youngdahl’s decision in Amalgamated Meat Cutters, supra, and the Service’s decision in Matter of Bailey, supra note 3. Congressmen familiar with the law, and aware that many thousands of Mexicans entered the country to find work, can be forgiven their failure to protest immediately what must have seemed only a minor and technical violation of the rules — the admission as commuters of those who would have been admissible without difficulty as special immigrants.

IV.

The Service argues finally that the mere existence of the commuter practice constitutes an administrative construction of the Immigration Act which we should honor. For the reasons already stated, it seems to me that the plain meaning of the Act and the intent of Congress are so clear as to foreclose judicial deference to an administrative agency. But I think it important to point out that we are not presented here with any consistent or coherent interpretation of the sort to which courts have traditionally deferred. Cf. Norwegian Nitrogen Co. v. United States, 288 U.S. 294, 315 , 53 S.Ct. 350 , 77 L.Ed. 796 (1933). Indeed, to the extent that the Service has in the past advanced any consistent interpretation of the Immigration Act, that interpretation has been directly in conflict with the Service’s position in this case.

It is of course- true that the Service has since 1952. continued to admit commuters to the United States without requiring entry visas. But the Service itself has admitted that the real basis of the practice is not statutory command but administrative fiat:

Matter of M — -D—S— et al., 8 I. & N. Dec. 209, 213 (1958) (emphasis supplied) .

Nor has the Service sought to legitimize this essentially lawless position by regulations describing and controlling the operations of the commuter system. Prior to 1952, of course, such regulations existed. But they were repealed upon passage of the Immigration Act and never again republished — eloquent testimony, in and of itself, to rebut the Service’s current view that Congress in 1952 intended no change in the commuter practice.

Despite the absence of regulations, however, commuters continued to cross the border freely. The Service took the position that the 1952 Act had not disturbed “the practice of considering commuters as permanent residents”, and relied on the “fiction of a commuter’s permanent United States residence coinciding with his place of employment.” Matter of H— O — , 5 I. & N.Dec. 716, 718-19 & n. 13 (1954).

This position was formalized in a regulation issued in 1957 which, with changes not material here, remained in force until 1966. It read as follows:

22 Fed.Reg. 6377 (1957) (emphasis supplied) .

The regulation is plainly inconsistent with the Service’s present position. It clearly forbids the entry without a valid or re-entry permit of any immigrant not returning to an “unrelinquished lawful permanent residence” in the United States, and thus makes the privilege of using a Form 1-151 to gain entry dependent upon actual residence in the United States. It is compatible with the commuter practice, which continued during the years 1957-66, only on the assumption, apparently made by the Service, that a commuter’s place of employment constitutes an unrelinquished lawful permanent residence in the United States.

The same view of the Act was taken by the Service in the 1958 decision in Matter of M— D— S — , et al., supra. That was an appeal by the District Director from a finding by the Special Inquiry Officer that certain alien commuters had been improperly excluded. The aliens had been issued immigrant visas, had used them to acquire Forms 1-151, and had until a little more than six months previously been employed in the United States and admitted as commuters. When they sought to gain entry into the United States, they presented their still valid Forms 1-151. The District Directors, however, excluded them on the grounds that they could not claim commuter status if they had had no United States employment for six months previously.

The Special Inquiry Officer, adopting essentially the position now urged by the Service, ruled that since the aliens had been lawfully admitted for permanent residence, they were entitled to use the Form 1-151 as long as the latter was valid — at that time as now one year. But the Board of Immigration Appeals reversed, holding that by being unemployed for six months the commuters had abandoned [their] status of permanent residents].” 8 I. & N.Dec. at 213. Once again, therefore, the Service expressed its understanding that actual residence in the United States was essential to, the commuter’s status as an alien lawfully admitted for permanent residence but that the commuter’s place of employment was such a residence.

This view of the Act was also the Service’s litigating position before Judge Youngdahl in the Amalgamated Meat Cutters case. See Memorandum in Support of Defendants’ Motion to Dismiss at 10; Note, Aliens in the Fields, 21 Stan.L.Rev. 1750, 1755 (1969). But here the Service encountered a well-deserved rebuff. Judge Youngdahl pointed out that the Immigration Act itself defined “residence” as a person’s “place of general abode * * * his principal, actual dwelling place in fact, without regard to intent.” 8 U.S.C. § 1101 (a) (33). The language of the Act was obviously irreconcilable with any contention that a commuter’s place of employment could constitute a residence. Judge Youngdahl therefore rejected the Service’s position. 186 F.Supp. at 118-119 .

Faced with this check, the Service was obliged “to re-examine the provisions of the 1952 Act, * * * and to adopt a new theory of the legal basis for the commuter practice.” Note, supra, 21 Stan.L.Rev. at 1757. Hence, when the commuter practice once again came under attack in Texas State AFL-CIO v. Kennedy, 117 U.S.App.D.C. 343 , 330 F.2d 217 (1964), the Service was ready with the theory it now advances — that the commuter was not required to establish any residence in the United States, either fictitious or actual.

Yet even today, the Service’s own regulations for the use of Form 1-151 are not entirely consistent with the position it espouses in litigation. Unlike the version in force before 1966, the current *89 text of 8 C.F.R. § 211.1 (b) (1970) is not totally incompatible with the Service’s commuter practice. But the caption to that section, which now includes an anti-strikebreaker clause that the Service concedes to be applicable to commuters, continues to refer to “aliens returning to an unrelinquished lawful permanent residence.”

I would reverse the judgment below.

. I agree with the majority that it does not impose an undue strain upon the statutory language to hold that a commuter’s nightly trips home from his job are “temporary visits abroad.” See Part III of the majority opinion.

. The majority does not fully explain the importance to petitioners of their contention that any alien entering the United States must possess a valid visa. According to an I. & N.S. survey, most commuters who enter the United States are farmworkers, general laborers, or domestics, all of whom are in competition with petitioners. See 115 Cong.Rec. 7737-7738 (T969). At the present time the Secretary of Labor will not certify that such workers are in short supply in the United States, or that the admission of aliens for such purposes will not adversely affect wages and working conditions here. 29 C.F.R. § 60 (a) (2) (1970). Hence under § 1182(a) (14) of the Act, such aliens are ineligible for visas as special immigrants. Unless they can enter without a visa as commuters, therefore, they cannot enter the United States at all. (Skilled workers, whose trades are in short supply in this country, have no difficulty obtaining visas as special immigrants ; elimination of the commuter status would make no difference to them.)

Petitioners argue, with considerable justice, that the Service’s commuter practice constitutes an enormous and unjustifiable loophole in the certification procedure, and makes a shambles of the strong congressional policy of protecting American labor from low-wage foreign competition. They cite statistics showing that wage rates paid to commuters are consistently lower than the rates paid United States residents for the same work. See 115 Cong.Rec. 7738 (1969). Petitioners suggest that even if, strictly as a matter of statutory construction, the language of the Act can be held to support the Service’s commuter practice, the longstanding congressional policy requires that this court read the Act so as to protect working people who live here. Since in my view the language of the Act cannot possibly be read to support the Service’s contention, I have no occasion to reach these questions of policy.

. Since I believe commuters are not “lawfully admitted for permanent residence,” I have no need to decide whether they are immigrants, as the Service contends, or non-immigrants as petitioners urge. Resolution of the question is not of great practical importance. If commuters are non-immigrants, then they may enter only if “unemployed persons capable of performing such service or labor cannot be found in this country. § 1101(a) (15) (H) (ii). If commuters are immigrants, then unless they are lawfully admitted for permanent residence they are special immigrants who may not enter without certification by the Secretary of Labor as discussed in footnote 2, supra. In neither ease would the farmworkers, laborers, or domestics whose entry worries petitioners be admissible.

I note, however, the following difficulties in the argument advanced by the majority for accepting the Service’s view:

. Nor is it possible, as the majority suggests in another context, to construe Congress’s silence in 1965 as endorsement of the Service’s disapproval of Judge Youngdahl’s decision. True it is that the Service thought Amalgamated Meat Cutters wrongly decided and told Congress so. But at the very same time the Service was in administrative proceedings following the decision it disliked. In Matter of Bailey, 11 I. & N.Dec. 466, 467 (1965), the Board of Immigration Appeals agreed with Judge Youngdahl that a commuter was not to be admitted to the United States in the face of an adverse certification by the Secretary of Labor — a view incompatible with the Service’s current position that a commuter is an 1101(a) (27) (B) immigrant to whom the certification procedure does not apply. In revising the Secretary of Labor’s powers so as to make certification a prerequisite to entry rather than a ground for exclusion, Congress no doubt expected that the Service would continue to follow Judge Youngdahl’s decision in Amalgamated Meat Cutters and its own decision in Bailey, and hold that a com *86 muter could not enter unless the Secretary had made the appropriate certification. Specific amendment of § 1101(a) (27) (B) was thus unnecessary.