Rogers v. Larson

Rogers v. Larson

Opinion

 [***91]  [*618]   OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

This appeal raises the important question of whether 24 V.I.C. § 129, which provides for the replacement of alien nonimmigrant  [*619]  workers in the Virgin Islands with United  [***92]  States citizens or permanent resident [**2]  aliens, ¹ [**3]  is (1) preempted under the Supremacy Clause, Art. VI, cl. 2, of  [***93]  the Constitution, ² by the Immigration and Nationality Act (INA), 66 Stat. 163, as amended, 8 U.S.C. §§ 1101, et seq., or (2) violative of the Equal Protection Clause of the Fourteenth Amendment as applied through section 3 of the Revised Organic Act of the Virgin Islands, 48 U.S.C. § 1561, as amended. ³

The district court denied a request for injunction against enforcement of the Virgin  [*620]  Islands statute and dismissed the complaint, finding neither pre-emption nor equal protection violations. Rogers v. Larsen,     V.I.    , 411 F. Supp. 122 (D. V.I. 1976). Because we disagree as to pre-emption, the order of the district court will be reversed.  [**4]  ⁴ Under the view we take of this case, it is unnecessary to reach the issue of equal protection.

 [**5]  I.

Appellant Rafael Lockhart ⁵ [**6]  was admitted to the Virgin Islands for temporary employment as a nonimmigrant  [***94]  alien under § 101(a)(15)(H)(ii) of the INA, 8 U.S.C. § 1101(a)(15)(H)(ii), ⁶ and the regulations promulgated thereunder (8 C.F.R. Ch. 1). Prior to his entry, a determination had been made in accordance with the regulations promulgated under the INA by, or in behalf of, the United States Department of Labor that local workers were not available for the positions which the temporary alien nonimmigrant workers would fill and that the employment of these workers, including Lockhart, would not adversely affect the wages and working conditions of the domestic workers similarly employed. See 8 C.F.R. § 214.2(h)(3). ⁷ On April 5, 1975, pursuant to notice given by the Virgin Islands Commissioner of Labor under 24 V.I.C. § 129(a), appellant Lockhart's employer, the Litwin Corporation, informed him by letter that his position was to be filled by a United States citizen or permanent resident alien as required by Virgin Islands law and that his employment would terminate in 14 days on April 18, 1975.

The issue before us is whether 24 V.I.C. § 129(a) is [**7]  pre-empted by the INA and the relevant federal regulations. ] Although power to regulate immigration is unquestionably exclusively a federal power, regulation of immigration is not per se pre-empted by constitutional power.  De Canas v. Bica, 424 U.S. 351, 354-55, 47 L. Ed. 2d 43, 96 S. Ct. 933 (1976). ] When the statutes of a state or territory are challenged as void under the  [***95]  Supremacy Clause, "no simple formula can capture the complexities of this determination; the conflicts which may develop between state and federal action are as varied as the fields to which congressional action may apply." Goldstein v. California, 412 U.S. 546, 561, 37 L. Ed. 2d 163, 93 S. Ct. 2303 (1973). The Supreme Court has, however, established three grounds upon which a local statute may be deemed pre-empted by federal law. It will be pre-empted (1) if "Congress has unmistakenly  [*621]  so ordained," or (2) if "the nature of the regulated subject matter permits no other conclusion"  [**8]  but pre-emption, Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 10 L. Ed. 2d 248, 83 S. Ct. 1210 (1963); De Canas v. Bica, supra at 356; or (3) if it violates the Supremacy Clause by standing "as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." ⁸ Hines v. Davidowitz, 312 U.S. 52, 67, 85 L. Ed. 581, 61 S. Ct. 399 (1941); Florida Lime & Avocado Growers, Inc. v. Paul, supra at 141; Goldstein v. California, supra at 561; De Canas v. Bica, supra at 363. Our task, then, is to determine if 24 V.I.C. § 129(a) is void because it is pre-empted by the INA under any one of these tests.

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