Asuncion v. DISTRICT DIRECTOR OF US IMMIGRATION & N. SERV.

• Decision Date: 02 June 1970
• Docket Number: No. 24143.,24143.
• Citation: 427 F.2d 523
• Parties: Cynthia ASUNCION, Appellant, v. DISTRICT DIRECTOR OF the UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

427 F.2d 523 (1970)

Cynthia ASUNCION, Appellant, v. DISTRICT DIRECTOR OF the UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Appellee.

No. 24143.

United States Court of Appeals, Ninth Circuit.

June 2, 1970.

Arthur D. Cohen (argued), Hiram W. Kwan, Los Angeles, Cal., for appellant.

David H. Anderson (argued), Asst. U. S. Atty., Wm. M. Byrne, Jr., U. S. Atty., Los Angeles, Cal., John N. Mitchell, U. S. Atty. Gen., Washington, D. C., Steven M. Suffin, I.N.S., San Francisco, Cal., Joseph Sureck, Regional Counsel, San Pedro, Cal., for appellee.

Before HAMLEY, BROWNING and TRASK, Circuit Judges.

TRASK, Circuit Judge.

Cynthia Asuncion appeals from the District Court's granting of the Immigration and Naturalization Service's motion for a summary judgment on her petition for judicial review of the Service's denial of a preference visa. The District Court had jurisdiction under the Declaratory Judgment Act, 28 U.S.C. § 2201, and the Administrative Procedure Act, 5 U.S.C. § 701 et seq.

Miss Asuncion, a native and citizen of the Philippines, attended college for two to three years in the Philippines, receiving an associate in arts degree in homemaking in 1964 and a kindergarten-primary teacher's certificate in 1965. She taught in the Philippines for two years before entering the United States as a non-immigrant visitor in April, 1966. She received extensions of stay in that category to May 15, 1968. In 1967, she was employed as a teacher in religious education in the second grade at a parochial school in Pasadena, California.

On June 3, 1968, appellant filed a petition with the Service for a third preference classification visa, pursuant to Section 203(a) (3) of the Immigration and Naturalization Act, 8 U.S.C. § 1153(a) (3). She based her application on her profession of elementary school teacher and religious worker. The statute reads in pertinent part:

"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."

The term, "professions", is defined in 8 U.S.C. § 1101(a) (32) to include "teachers in elementary or secondary schools."

The District Director of the Immigration and Naturalization Service denied the petition. An appeal to the Regional Commissioner was also denied. Upon petition for review, the District Court entered summary judgment against appellant. We affirm.

As only a question of law is presented here, the District Court's resolution of the matter by means of granting appellee's motion for summary judgment was procedurally proper. Kalatjis v. Rosenberg, 305 F.2d 249, 253 (9th Cir. 1962); Yau v. District Director, 293 F.Supp. 717, 721 (C.D.Cal.1968).

The scope of judicial review in cases of denial of preference classification visas is exceedingly narrow. This court is limited to a determination of whether the Attorney General has abused his discretion in denying the classification required for the preferential visa. Pizarro v. District Director, 415 F.2d 481, 483 (9th Cir. 1969); Dong Yup Lee v. United States Immigration & Naturalization...