Javier v. Immigration & Naturalization Service

• Decision Date: 03 December 1971
• Docket Number: No. 71 C 1405.,71 C 1405.
• Citation: 335 F. Supp. 1391
• Court: U.S. District Court — Northern District of Illinois
• Parties: Aurelio M. JAVIER, Plaintiff, v. IMMIGRATION & NATURALIZATION SERVICE, Defendant.

335 F. Supp. 1391

Aurelio M. JAVIER, Plaintiff, v. IMMIGRATION & NATURALIZATION SERVICE, Defendant.

No. 71 C 1405.

United States District Court, N. D. Illinois, E. D.

December 3, 1971.

Richard Lowery, Chicago, Ill., for plaintiff.

William Bauer, U. S. Atty., Matt P. Cushman, Asst. U. S. Atty., Chicago, Ill., for defendant.

MEMORANDUM OPINION

Motion For Summary Judgment

MAROVITZ, District Judge.

On January 6, 1971, the Plaintiff, Aurelio M. Javier, who is a Philippine citizen, entered this country as a nonimmigrant for pleasure. Plaintiff was entitled to remain in the United States up to and including March 1, 1971, with such status. On or about March 4, 1971, Plaintiff submitted a visa petition with supporting documents which sought a reclassification to a third preference immigrant as an accountant under Section 203(a) (3) of the Immigration and Nationality Act as amended.

In his supporting documents, Plaintiff stated that he had attended, but had not graduated from, Jose Rizal College, in Mandoluyong, Philippines. Plaintiff attended Jose Rizal College from June of 1959 to November of 1963. The Plaintiff received 109 credits, with 30 hours in accounting while attending Jose Rizal College, and therefore never graduated.

Plaintiff, in his supporting documents, states that his work experience consisted of accounting and storekeeping for the Bureau of Customs, Manila, Philippines from February of 1963 to December of 1966. He states the nature of the business to be warehousing with his duties consisting of using an adding machine and typewriter. Plaintiff also states that he worked from January of 1966 to December of 1968 as an accounting clerk for Atlas Equipment and Machines. He states that his duties there also consisted of the use of an adding machine and typewriter. On March 17, 1971, the District Director of the Immigration and Naturalization Service denied Plaintiff's third preference visa petition as an accountant. As the reason for his denial of the petition, the District Director stated:

"A bachelors degree with a major in accounting or education and experience equivalent to a degree is required to qualify for third preference immigrant classification as an accountant. You have only one hundred and nine (109) total college credits, and you do not have a bachelors degree and you claim no experience as an accountant. Therefore, the petition is denied." R. 11.

The Plaintiff was allowed 15 days from the date of the District Director's decision to appeal to the Regional Commissioner of the Immigration and Naturalization Service.

On March 23, 1971, Plaintiff's attorney filed a Notice of Appeal and requested 10 days in which to file a brief. On March 27, 1971 a brief was filed on behalf of the Plaintiff.

The reasons given for the appeal were that:

1. Plaintiff had 30 units in accounting which is sufficient for a major in that subject.

2. Plaintiff had experience as he had been an apprentice accountant for five years and three additional thereafter.

3. Plaintiff's education and experience were the equivalent of a bachelor's degree in the profession of accounting.

On May 5, 1971, the Regional Commissioner of the Immigration and Naturalization Service denied Plaintiff's appeal for a third preference and in his decision stated:

"The petition for preference classification as an accountant was filed by a 31-year-old native and citizen of the Philippines. The record reflects the petitioner attended Jose Rizal College, Philippines from the first semester 1959-1960 through the first semester 1962-1963. During this period he earned 109 college credits. He did not graduate and received no degree. His statements concerning employment experience submitted with his petition reflect employment from February 1963 to December 1966 as an `accountant and storekeeper' for the Bureau of Customs, Philippines, and from January 1966 to December 1968 as an `accounting clerk' for a machinery company in Quezon City. On appeal counsel argues that the District Director, in his decision, failed to take into consideration the petitioner's employment background; that his background, coupled with his 109 college credits, is qualifying for third preference classification. The District Director's decision was proper. The petitioner does not have a baccalaureate degree. His experience as an accounting clerk and in the position of accountant and storekeeper for the Customs Service combined with his education are not sufficient to establish that he is entitled to the classification under the provisions of Section 203(a) (3) of the Immigration and Nationality Act, as amended. The appeal will be dismissed."

On May 13, 1971, Plaintiff was notified that as a result of the denial of his appeal he was to depart from the United States on June 13, 1971.

On June 10, 1971, Plaintiff's attorney notified the Immigration and Naturalization Service of the instant action and asked that deportation be suspended until the Court disposed of the Complaint.

On July 8, 1971, the Immigration and Naturalization Service agreed to suspend action pending a decision in the District Court. On September 14, 1971, the Defendant filed its motion for summary judgment.

It is well established that this Court's duty in reviewing administrative immigration decisions is limited to determining whether the law in question has been properly applied and to whether there has been an abuse of discretion. Song Jook Suh v. Rosenberg, 437 F.2d 1098 (9th Cir. 1971); Pizarro v. District Director, I.N.S., 415 F.2d 481 (9th Cir. 1969); Dong Yup Lee v. U. S. Immigration and Naturalization Service, 407 F.2d 1110 (9th Cir. 1969).

"Abuse of discretion may be found only if there is no evidence to support the decision or if the decision is based on an improper understanding of the law". Song Jook Suh v. Rosenberg, 437 F.2d 1098 at 1102. We must therefore determine whether, under the applicable statutes, Javier's request for a third preference visa was properly denied.

Section 203(a) (3) of the Immigration and Nationality Act (8 U.S.C. § 1153(a) (3)) states:

"Visas shall next be made available * * * to qualified immigrants who are members of the professions, or who because of their exceptional ability in the sciences or the arts will substantially benefit prospectively the national economy, cultural interests, or welfare of the United States."

Although in its definitional section (8 U.S.C. § 1101(a) (32)) the Immigration Statute categorizes "profession" as specifically including architects, engineers, lawyers, physicians, surgeons and teachers, that list was by no means meant to be exhaustive and the Immigration and Naturalization Service has been fairly liberal in granting third preferences where some exceptional ability or evidence of professional status is present. Zoologists (Matter of Roychaudhuri, 11 I.N. 715 (1966)) and Entomologists (Matter of Nakatsug AWA, 11 I.N. 843, (1966)) to cite a couple of examples, have been admitted under this criteria.

Though there are no hard and fast rules as to who is a professional there are various distinguishing characteristics that aid in the decisional process. We will discuss some of these categories progressing from those instances most clearly within the realm of the third preference to those least likely to qualify. The highest form of attainment and one most conclusive of third preference qualifications is a college degree in the profession under which one seeks the preference plus experience in that field. If the evidence substantiates those characteristics a District Court might well find that the denial of a third preference by the Immigration Service was an abuse of discretion. Quite understandably a college degree is the most basic requirement for professional status and the most telling factor in determining whether that status exists. Yet the simple presence of a college degree or the absence of it is not by itself dispositive of professional status.

One seeking a third preference might possess a degree yet not be considered a professional either because his vocation is not a profession or because he lacks practical experience while an applicant lacking a degree may have the redeeming ingredient of adequate experience that is equivalent to a degree depending on the profession in question.

In Tang v. District Director of the U. S. Immigration and Naturalization Service, 298 F.Supp. 413 (C.D.Cal.1969) an alien who had a degree in electronic engineering but only a few months employment in a position that was not strictly an engineering one was denied a third preference on the grounds that the institution from which he received his degree was not accredited and that his engineer-in-training position could in no way be considered as the equivalent of practicing engineering or recognition as a professional engineer.

In Pizarro v. District Director of the United States Immigration and Naturalization Service, 415 F.2d 481 (9th Cir. 1969) an alien applied for a third preference as a professional trained in psychology. The applicant held a Bachelor of Science Degree with a major in psychology yet the Immigration Service concluded that she did not have sufficient experience and that a master's degree or the equivalent thereof was a minimum requirement for status as a professional psychologist and that with only a bachelor's degree and minimum practical experience she did not have the educational qualifications...