Factora v. DISTRICT DIRECTOR OF US IMMIGRATION & NAT. SERV.

• Citation: 292 F. Supp. 518
• Decision Date: 18 October 1968
• Docket Number: Civ. No. 68-956.
• Court: U.S. District Court — Central District of California
• Parties: Antonio FACTORA, Petitioner, v. DISTRICT DIRECTOR OF the U. S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

292 F. Supp. 518

Antonio FACTORA, Petitioner, v. DISTRICT DIRECTOR OF the U. S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Civ. No. 68-956.

United States District Court C. D. California.

October 18, 1968.

Hiram W. Kwan, Los Angeles, Cal., for petitioner.

Wm. Matthew Byrne, Jr., U. S. Atty., Frederick M. Brosio, Jr., Asst. U. S. Atty., Chief of Civil Division, and Dzintra I. Janavs, Asst. U. S. Atty., Los Angeles, Cal., for respondent.

DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

HAUK, District Judge.

Petitioner filed a Petition for Judicial Review herein alleging that the respondent erroneously and arbitrarily denied his Petition for Classification under Section 203(a) (3) of the Immigration and Nationality Act of 1952, as amended.¹ The petition sought a judgment declaring that the denial of the petition was arbitrary, an abuse of discretion and contrary to law, and that petitioner was entitled to preference status under Sections 203(a) (3)² as a member of the professions.

Without filing an answer, respondent filed a Motion for Summary Judgment pursuant to Rule 56(b)³ and 56(c)⁴ of the Federal Rules of Civil Procedure, on the grounds that there is no genuine issue as to any material fact and that the respondent is entitled to judgment as a matter of law.

Respondent filed the Certified Administrative Record of the Immigration and Naturalization Service proceedings as well as a Memorandum of Points and Authorities in Support of the Motion for Summary Judgment. Petitioner filed a Memorandum in Opposition to Respondent's Motion for Summary Judgment. The facts as set forth in the Petition, the Certified Administrative Record, and agreed upon in the memoranda and oral argument are now recited.

Petitioner is a 32-year old native and citizen of the Republic of the Philippines. He first entered the United States at Honolulu, Hawaii, December 5, 1966, as a visitor for pleasure, and received extensions of stay in that status to December 1, 1967.

On October 2, 1967, petitioner filed a petition in his own behalf for preference classification under Section 203(a) (3) of the Immigration and Nationality Act, as amended.⁵ Petitioner sought this classification by alleging his qualifications as a member of the profession of business administration. In support of the petition, he submitted evidence of his education and work experience. This evidence shows that petitioner graduated from the University of Santo Tomas, Manila, Philippines, in 1961 with a Bachelor of Science degree in commerce. He was the manager of a gasoline station from 1961 to 1962, and an administrative aide in the Social Welfare Department from 1962 to 1963. Following a year's employment as an accountant, he served as confidential aid to a senator in the Philippines from 1964 to 1966. From July, 1967 to February, 1968, he was employed as an accounting clerk in the offices of Merrill, Lynch, Pierce, Fenner and Smith, Los Angeles, California. Since February, 1968, he has been employed in the same capacity by the Pacific Coast Stock Exchange.

On the basis of petitioner's education and work experience, the Bureau of Employment Security, United States Department of Labor, issued the certification required by Section 212(a) (14) of the Immigration and Nationality Act,⁶ listing petitioner as an "account analyst (banking.)"

In a written decision dated March 13, 1968, respondent denied petitioner's petition on the grounds that petitioner's academic degree did not qualify him as a member of the professions, and that his employment in a non-professional occupation was evidence that he did not intend to engage in a professional occupation. Petitioner filed an appeal with the Regional Commissioner of the Immigration and Naturalization Service for the Southwest Region, which was dismissed by written decision on May 8, 1968.

On June 7, 1968, petitioner commenced this action by filing a Petition for Judicial Review under Chapter 7 of the Administrative Procedure Act⁷ and the Declaratory Judgment Act.⁸

Since the parties to this action have agreed that there are no questions of fact to be tried and that the case is ripe for summary judgment, the only issues remaining to be decided are whether or not respondent's decision is contrary to law and hence, whether it should be affirmed or vacated. The Court has reviewed the pleadings, memoranda and exhibits submitted by the parties and the Certified Administrative Record.

On the basis of all this material and the arguments of both parties, the Court now renders its decision.

DECISION

Respondent Erred in Denying Petitioner's Petition for Preference Classification Under Section 203(a) (3) of the Immigration and Nationality Act and His Decision Should be Vacated.

Although respondent filed a motion for summary judgment, the Court may enter judgment for either party where both parties have agreed that there is no dispute as to the facts and that the case is ready for judgment. The Court may enter summary judgment for petitioner without requiring the filing of a cross-motion. Walter v. Dunlap, 250 F.Supp. 76 (D.C.Pa.1966), affirmed 368 F.2d 118 (3rd Cir. 1966).

Section 203(a) (3) of the Immigration and Nationality Act of 1952, as amended, provides that preference shall be given to qualified members of the professions in the allotment of visas.⁹ The term "profession" is defined by Section 101 (a) (32) of the Act,¹⁰ to "include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries."

The Immigration and Naturalization Service is charged with the enforcement of this provision as well as the other provisions of the Immigration and Nationality Act. Accordingly, that Service issues written decisions interpreting the provisions of the Act and their application to persons invoking those provisions.

Petitioner sought preference classification based on his qualification as a member of the profession of business administration. The Immigration and Naturalization Service has recognized business administration as a profession within the meaning of Section 101(a) (32). Matter of Chu, 11 I & N Dec. 881 (1966). Matter of Chu cites Matter of Shin, 11 I & N Dec. 686 (1966), for an extensive discussion of the meaning of the term "profession" and concludes that business administration is encompassed in this definition. It further concludes that a baccalaureate degree in business administration from an accredited college or university is sufficient to qualify a person as a member of this profession.

The evidence before the Court reveals that Petitioner's Bachelor of Science degree in Commerce is equivalent to a baccalaureate degree in business administration. Petitioner raised this contention in the administrative proceedings as well as before this Court and respondent has acquiesced in such a determination. The Court takes notice that petitioner's degree is from the University of Santo Tomas, an internationally recognized institution of higher learning. The evidence supports a determination that petitioner has met the degree rquirements set forth in the Chu decision. To hold otherwise would be contrary to recognized precedent and standards promulgated by the Immigration and Naturalization Service.

However, a cogent consideration advanced by respondent for denying the petition for preference classification was that petitioner had not shown an intent to engage in a professional occupation. The Immigration Service requires that a person seeking preference classification must show a bona fide intent to engage in his professional occupation. This standard has been variously interpreted in its application to a variety of situations. The Immigration and Naturalization Service has recognized that many aliens cannot practice their professions immediately after entry into the United States and still it has found the requisite intent where the aliens have not engaged in activity that would evidence a conflicting intent. Employment in a nonprofessional occupation does not of itself preclude an alien from being classified as a member of the professions, eligible for third preference. Matter of Stamatiades, 11 I & N Dec. 643 (1966); Matter of Chu, supra; Matter of Naufahu, 11 I & N Dec. 904 (1966).

The language of the Chu case is particularly relevant in considering the present case:

"On March 18, 1965, the Secretary of Labor testified before a subcommittee of the House Committee on the Judiciary regarding certain aspects of H.R. 2580 which, as amended, was enacted as P.L. 89-236. In advocating that specific job offers not be required for highly educated and specialized immigrants, such as those now encompassed in the third preference, the Secretary stated that the addition to this country of those immigrants would be a definite boon to the American culture and work force. He agreed that this would be so even if the alien would not occupy one of the specific skills for which he merited consideration as a preference alien, and stated that the alien should be `free to climb'."

* * * * * *

"The beneficiary is a recent college graduate and as yet does not have a permanent lawful status in the United States. It is not a reflection on his ability that he is starting a business career on a lower rung on the ladder of success. He expects and intends to continue in his business career and by reasons of his academic training for a professional career can climb to higher rungs and he should be `free to climb'."

This quotation is favorably cited in Matter of Tenorio, A14 697 692 (1968),¹¹ an unreported decision of the Regional Commissioner for the Southwest Region.¹² In that case the alien was a native and citizen of the Philippines who had obtained a Bachelor of Business Administration degree at the University of the East. A copy of her academic transcript from that University was included in petitioner's exhibits and proved to...