Medellin v. Bustos, 87-6165
| Citation | 854 F.2d 795 |
| Decision Date | 15 September 1988 |
| Docket Number | No. 87-6165,87-6165 |
| Parties | Venancio MEDELLIN, and Handi-Ad Printing Co., Plaintiffs-Appellants, v. Benjamin BUSTOS, in his official capacity as Certifying Officer of the United States Department of Labor, Employment and Training Administration, Dallas, Texas, Defendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Peter D. Williamson, Kelly A. Chaves, Houston, Tex., for plaintiffs-appellants.
Robert Darden, Frank A. Conforti, Asst. U.S. Attys., Houston, Tex., for defendant-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before CLARK, Chief Judge, GARZA and POLITZ, Circuit Judges.
This case is an appeal from the decision of the United States District Court for the Southern District of Texas. It involves the decision of appellee Benjamin Bustos, Certifying Officer of the United States Department of Labor, to disallow the substitution of an alien on a labor certification. The issue before us is whether that decision was arbitrary, capricious, an abuse of discretion or otherwise contrary to the law. The district court determined that the decision was proper. For the reasons stated below we reverse.
The Immigration and Nationality Act, 8 U.S.C. Sec. 1101 et seq., regulates the admission of aliens into the United States. The Attorney General of the United States and the Secretary of State are the principal administrators of its provisions. 20 C.F.R. Sec. 656.2(a)(1) (1988). The Immigration and Naturalization Service (INS) performs most of the functions of the Attorney General under the Act. Section 212(a) of the Act lists 31 categories of aliens who are ineligible to receive visas for entry into the United States. 8 U.S.C. Sec. 1182(a) (1952). Section 212(a)(14) excludes aliens seeking to immigrate "for the purpose of performing skilled or unskilled labor," except that such aliens may be eligible for a visa if:
the Secretary of Labor has determined that (A) there are not sufficient United States workers who are able, willing, qualified and available at the time of application for a visa and admission into the United States and at the place where the alien is to perform the work, and (B) the employment of the alien will not adversely affect the wages and working conditions of the United States workers similarly employed.
8 U.S.C. Sec. 1182(a)(14) (1952).
Thus, there exists some interaction between the INS and the Department of Labor (DOL) in determining the eligibility of this particular category of aliens for entrance visas.
Appellee Benjamin Bustos is the Certifying Officer for the DOL. He originally issued a labor certification on August 17, 1984 in favor of Handi-Ad Printing Co. and Mr. Artilano Renteria for the position of web press operation assistant. Mr. Renteria declined the offer. Fourteen months later, on November 4, 1985, Handi-Ad requested the DOL to allow substitution of a Mr. Venencio Medellin, a similarly qualified alien, on the labor certification. On November 10, 1985, Mr. Bustos denied the request.
The DOL has adopted a set of operating instructions, known as the Technical Assistance Guide (TAG). A provision contained in the TAG prohibits the substitution of one alien on a labor certification for another alien if more than six months have elapsed since the original date of certification. It was on the basis of this provision that Mr. Bustos denied appellant's application for substitution. Handi-Ad and Medellin appealed that decision to the United States District Court for the Southern District of Texas claiming that the denial was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law. The district court disagreed and granted summary judgment in favor of appellee. We are persuaded that the provision of the TAG in question conflicts with the applicable statute and regulations under the Immigration and Nationality Act. We therefore reverse.
It appears clear that the underlying policy of the Immigration and Nationality Act is, as appellee urges, to exclude aliens competing for American jobs and to protect the American labor market. Wang v. Immigration and Naturalization Service, 602 F.2d 211 (9th Cir.1979). But nothing so amorphous as the Department of Labor's role in fulfilling the broad policies of the INA is at issue here. In any event, a decision by the DOL to grant a labor certification constitutes an assessment that employment of an alien under the circumstances in question will not adversely affect INA policy. The issue presented in this case is whether Mr. Bustos's actions with respect to Mr. Medellin comport with section 212(a)(14) of the INA and the regulations that govern the administration of that statute.
Congress established a delicate interaction between the Department of Labor and the INS when it passed section 212(a)(14). This interplay of administrative authority permeates the immigration laws. Castaneda-Gonzalez v. Immigration and Naturalization Service, 564 F.2d 417, 429 (D.C.Cir.1977). The Secretary of Labor (the Secretary) has broad discretion to promulgate rules that will fill in the gaps left by the substantive requirements of section 212(a)(14). Production Tool v. Employment and Training Administration, 688 F.2d 1161, 1167 (7th Cir.1982). The government bases much of its argument upon the interpretation of section 212(a)(14) set out in the Department of Labor's Technical Assistance Guide. The TAG states that a labor certification issued pursuant to section 212(a)(14) "is limited to the specific job opportunity, the alien for whom the certification was granted, and the area of intended employment stated on the application." [emphasis added]. This is not an appropriate interpretation of section 212(a)(14) for three reasons.
First, this interpretation upsets the delicate interplay of administrative power established by the statute. If the TAG expresses an appropriate exercise of authority, then it effectively allows the Secretary of Labor to decide the eligibility status of particular aliens. This authority, however, resides in the INS rather than the DOL. It is the function of the Secretary, under section 212(a)(14), to determine: (A) whether sufficient American workers are able, willing, qualified, and available at the time and place where the alien is to be employed, and (B) whether employment of such aliens will adversely affect the wages and working conditions of the United States workers similarly employed. It is the INS, in fact as well as in effect, that must determine the fate of particular aliens. If the DOL is to exercise the authority to decide the visa eligibility status of individual aliens, such a shift of administrative power must result from an Act of Congress; it cannot derive from an interpretation by the DOL of a regulatory provision promulgated by the Secretary of that agency.
Second, the interpretation of section 212(a)(14) expressed by the TAG provision in question does not accord with the practices of either the INS or the DOL in this area of immigration law. Once the DOL grants a labor certification in a particular job area, the alien to whose benefit the grant inures still faces several procedural obstacles and potentially lengthy delays to his ultimate acquisition of an entry visa. Appellant asserts that four years typically elapse between the grant of a labor certification by the DOL and the issuance of an entry visa by the INS for Mexican nationals. 1 During this lapse of time,...
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...is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Id. § 706(2)(A); Medellin v. Bustos, 854 F.2d 795, 799 (5th Cir. 1988). An agency's interpretation of its own regulations is entitled to a high degree of deference. Ashbrook-Simon-Hartley v. McLaugh......
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