Bitang v. REGIONAL MANPOWER ADMIN. OF US DEPT. OF LABOR, 72 C 1099.

• Decision Date: 11 December 1972
• Docket Number: No. 72 C 1099.,72 C 1099.
• Citation: 351 F. Supp. 1342
• Parties: Severino BITANG et al., Plaintiffs, v. REGIONAL MANPOWER ADMINISTRATOR OF the UNITED STATES DEPARTMENT OF LABOR, Defendant.
• Court: U.S. District Court — Northern District of Illinois

351 F. Supp. 1342

Severino BITANG et al., Plaintiffs, v. REGIONAL MANPOWER ADMINISTRATOR OF the UNITED STATES DEPARTMENT OF LABOR, Defendant.

No. 72 C 1099.

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

December 11, 1972.

Samuel D. Myers, Freedman, Freedman & Myers, Chicago, Ill., for plaintiffs.

J. H. Alesia, Asst. U. S. Atty., Chicago, Ill., for defendant.

MEMORANDUM OF DECISION

TONE, District Judge.

Plaintiffs are aliens currently residing in the United States who sought immigrant visas for permanent residence under 8 U.S.C. § 1153(a)(3). That section provides for "third preference" to those "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."

Plaintiffs Severino Bitang, Evelyn De Borja, Renato Guttierrez, Jose Macaisa and Guillermo Reyes claim professional status as accountants. Plaintiff Ester De Guzman claims that status as an auditor and plaintiff Horace Yao as an accountant-auditor.

The Immigration and Naturalization Service apparently does not question plaintiffs' standing as "members of the professions" within the terms of the above quoted section. There is, however, an additional requirement which must be met before persons in plaintiffs' positions can qualify for permanent visas. The Secretary of Labor must determine and certify that the alien's entry into the domestic labor market will not be prejudicial to the American worker. 8 U.S.C. § 1182(a)(14) provides:

"(a) Except as otherwise provided in this chapter, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States:

. . . . . .

(14) Aliens 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."

The Secretary of Labor has delegated responsibility for making the above determination and certification to the Manpower Administration, Department of Labor. With respect to plaintiffs in the present case, the defendant Regional Manpower Administrator determined that there were sufficient American workers available in the Chicago area to perform the plaintiffs occupations. Plaintiffs seek a declaratory judgment under 28 U.S.C. § 2201 and review under the Administrative Procedure Act, 5 U.S.C. § 704 of that determination and denial of certification. This Court has jurisdiction. Song Jook Suh v. Rosenberg, 437 F.2d 1098 (9th Cir. 1971).

The matter is before the Court on cross motions for summary judgment. The issue to be determined is whether defendant abused his discretion. Golabek v. Regional Manpower Administration, 329 F.Supp. 892 (E.D.Pa.1971). The standard to be applied in making that determination is whether, based upon the facts in the administrative record, it can be said that the defendant's decision was "made without a rational explanation, inexplicably departed from established policies, or rested upon an impermissible basis such as an invidious discrimination against a particular race or group . . . ." Wan Ching Shek v. Esperdy, 304 F.Supp. 1086, 1087 (S.D. N.Y.1969). It is contended that defendant's decision was made without a rational explanation. Another test for abuse of discretion is whether, upon examining the administrative record, it can be said that there is no evidence to support the defendant's decision. Song Jook Suh v. Rosenberg, supra, 437 F.2d at 1102. Applying these tests to the administrative record in this case, I find that defendant has abused his discretion.

The sole basis found in the administrative record for defendant's determinations that there were in fact a sufficient number of American workers in the Chicago area "able, willing, qualified and available" to perform plaintiffs' professions were communications from the Illinois State Employment Service (ISES) to defendant that there were various numbers of people listed with that service who were seeking employment in the various occupations of plaintiffs.

The only evidence that several of these communications occurred consists of unsigned sheets of paper containing handwritten notes which apparently were found in the respective plaintiffs' files. The inference...