Castaneda-Gonzalez v. Immigration and Naturalization Service

• Citation: 183 U.S.App.D.C. 396,564 F.2d 417
• Decision Date: 27 May 1977
• Docket Number: No. 75-1580,CASTANEDA-GONZALE,P,75-1580
• Parties: Nazarioetitioner v. IMMIGRATION AND NATURALIZATION SERVICE.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 417

564 F.2d 417

183 U.S.App.D.C. 396

Nazario CASTANEDA-GONZALEZ, Petitioner v. IMMIGRATION AND NATURALIZATION SERVICE.

No. 75-1580.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 12, 1976.

Decided May 27, 1977.

James J. Hines, Falls Church, Va., for petitioner.

Richard I. Chaifetz, Atty., Dept. of Justice, Washington, D. C., with whom B. Franklin Taylor, Jr., Acting Chief, Government Regulations Section, Criminal Division, Washington, D. C., was on the brief, for respondent.

Before BAZELON, Chief Judge, and TAMM and ROBB, Circuit Judges.

Opinion for the court filed by TAMM, Circuit Judge.

TAMM, Circuit Judge:

Petitioner Nazario Castaneda-Gonzalez, an alien immigrant, seeks review of the decision of the Board of Immigration Appeals that he is deportable because the labor certificate on which he relied at the time of his entry into the United States was based on a material misrepresentation. ¹ He argues that the immigration laws do not permit the deportation of an alien whose labor certificate is based on incorrect facts unless it is shown that the misrepresentation was willful as well as material. We agree, and because the record before us does not support a finding of willfulness, we cannot affirm the Board of Immigration Appeal's decision. Since the question of willfulness was not addressed in the administrative proceedings because of the Board's erroneous interpretation of the statute, however, we remand this case to the Board for exploration of that issue.

I. STATUTORY FRAMEWORK

Subsection 241(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(1) (1970), empowers the Attorney General, who has delegated his authority to the Commissioner of the Immigration and Naturalization Service ² and the Board of Immigration Appeals, ³ to deport any alien who was excludable at the time of his entry into the United States. Section 212 of the Act specifies those aliens who are excludable and at the time Castaneda-Gonzalez entered this country included among its thirty-one enumerated excludable classes

(a)liens 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. ⁴

Immigration & Nationality Act, § 212(a)(14), 8 U.S.C. § 1182(a)(14) (1970). The certification referred to in subsection 212(a)(14) is popularly termed a "labor certificate," and the rules governing the application for and approval of a labor certificate have been set out in regulations of the Secretary of Labor. ⁵ In order to reduce the delay in processing requests the Secretary has published lists of employment categories for which he has made a general determination, apart from any particular individual application, that the substantive requirements of subsections 212(a)(14)(A) and (B) are or are not met. Schedule A lists those categories for which the requirements are met and Schedule B those for which they are not. If an alien seeks certification for a job which is not included in either Schedule A or B, the Secretary makes an individual determination, on the basis of information submitted by the alien and his prospective employer, ⁶ whether there are sufficient willing and qualified American workers available and whether employment of the alien will adversely affect the wages and working conditions of Americans similarly employed.

II. HISTORY OF THE CASE

In March 1970, Castaneda-Gonzalez applied for and was issued a labor certificate for employment as a Specialty Cook of foreign foods at the Golden Table Restaurant in Washington, D. C. "Cook" was not listed on either Schedule A or B at that time, ⁷ and the relevant regulations covering individual certification requests required one form describing the alien's qualifications and another describing his prospective employment in the United States. ⁸ Except for general descriptive information, Castaneda-Gonzalez's "Statement of Qualifications of Alien" form simply indicated that he had worked as a cook at the Pan American Restaurant in the airport terminal of Guatemala City from 1959 until July 1969. Administrative Record at 68. The complete description of the work performed at this job was "preparation of all Spanish type foods." Id. ⁹ His prospective employer was equally laconic on the "Job Offer for Alien Employment" form, describing the duties of the job offered as "preparation of Spanish dishes, such as paella, arroz con pollo" and stating the requirements as "3 yrs. experience as a cook" and "good health." Id. at 67. Despite the paucity of data, the Labor Department approved Castaneda-Gonzalez's request for certification on March 23, 1970, only three weeks after it was received.

Twenty-one months later, in December 1971, Castaneda-Gonzalez was admitted to the United States as an immigrant on the basis of the Secretary of Labor's certification of his prospective employment as a Specialty Cook at the Golden Table Restaurant. He immediately reported to work, but his employer was unsatisfied with his skills and told him that he would not continue to employ him as a cook. Castaneda-Gonzalez remained at the Golden Table for a short while as a dishwasher. After leaving that position he worked as a potwasher in one of the restaurants of the Kennedy Center for the Performing Arts and later as a kitchen handyman at the El Tio Pepe restaurant.

On January 9, 1974, two years after his entry into this country, the Immigration and Naturalization Service issued Castaneda-Gonzalez an order to show cause why he should not be deported. The Service charged that he was excludable at the time of his entry as an alien seeking to perform labor without the required certification from the Secretary of Labor. J.A. at 1-2. A hearing was held before an Immigration Judge who found in favor of the Service and ordered Castaneda-Gonzalez deported. The Board of Immigration Appeals affirmed that order on the basis of its own determination that Castaneda-Gonzalez was not qualified for the position for which the Secretary of Labor had certified him and its conclusion that because of this he could be treated as if he had had no labor certificate at all at the time of his entry.

Castaneda-Gonzalez now urges us to reverse the decision of the Board of Immigration Appeals. He argues that the Immigration and Nationality Act does not give the Attorney General and his delegates the power to review independently the facts surrounding the issuance of a labor certificate and to declare that the Secretary of Labor's certification had no effect. Under his construction of the statute, whenever the Service seeks to deport an immigrant because of inaccuracies in the factual basis of his labor certification, it must proceed under subsection 212(a)(19) of the Act which requires proof of fraud or willful misrepresentation of a material fact. ¹⁰

III. STATUTORY AUTHORITY OF THE ATTORNEY GENERAL

The Board of Immigration Appeals rejected Castaneda-Gonzalez's interpretation of the statute. According to the Board, section 103(a) of the Act, which defines the powers and duties of the Attorney General under the immigration laws, grants him the authority to invalidate a labor certificate issued by the Secretary of Labor. Section 103(a) provides:

The Attorney General shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens, . . . (and decisions) by the Attorney General with respect to all questions of law shall be controlling.

8 U.S.C. § 1103(a) (1970). The findings required by subsection 212(a)(14) as to the available supply of American workers and the impact on wages and working conditions within the United States may not be strictly questions of adjudicative fact, but they are hardly questions of law. If section 103(a) is a source of authority for the Board to invalidate the Secretary of Labor's determination of those issues, it must arise from that section's general grant of power to administer and enforce all immigration laws. The Service urges us to adopt just such a construction. It first notes that the Secretary of Labor is not included within the explicit exception clause of section 103(a) ¹¹ and then argues that if Congress had intended to except the Secretary's labor certificate determination from review by the Attorney General it would have included him within that clause. Although it would facilitate our decision, we cannot accept the proposition that any determination of fact not explicitly exempted by section 103(a) is necessarily subject to review by the Attorney General. To do so would be to fall prey to circular reasoning, for that proposition assumes that section 103(a)'s affirmative grant of authority to the Attorney General includes the power to decide whether the substantive requirements of subsection 212(a)(14) are satisfied in any given factual situation which is the precise issue we must decide in this case. If the affirmative grant of section 103(a) is not so inclusive, then, regardless of whether the Secretary of Labor's labor certification authority is mentioned in the exception clause of that section, the Board's deportation order exceeded its statutory authority. ¹²

Section 103(a) is a broad grant of general administrative and enforcement authority to the Attorney General. Subsection 212(a)(14) is a narrowly drawn provision which focuses particularly and precisely on the admission of aliens seeking to take up...