Fedin Bros. Co., Ltd. v. Sava

• Decision Date: 16 November 1989
• Docket Number: No. CV 88-3729.,CV 88-3729.
• Citation: 724 F. Supp. 1103
• Parties: FEDIN BROTHERS CO. LTD. and Huy-Yin Chen, Plaintiffs, v. Charles SAVA, District Director, Immigration & Naturalization Service, etc., Defendants.
• Court: U.S. District Court — Eastern District of New York

724 F. Supp. 1103

FEDIN BROTHERS CO. LTD. and Huy-Yin Chen, Plaintiffs, v. Charles SAVA, District Director, Immigration & Naturalization Service, etc., Defendants.

No. CV 88-3729.

United States District Court, E.D. New York.

November 16, 1989.

Alan Lee, New York City, for plaintiffs.

Andrew J. Maloney, U.S. Atty. by Scott Dunn, Asst. U.S. Atty., Brooklyn, N.Y., for defendants.

MEMORANDUM AND ORDER

WEXLER, District Judge.

In this lawsuit plaintiffs, Fedin Brothers, Inc. ("Fedin New York") and Huy-Yin Chen ("Chen"), seek review of an administrative decision rendered by the Immigration and Naturalization Service ("INS"), which denied Chen's application for a sixth preference immigration visa. Named as defendants are Charles Sava, District Director of the INS in New York City and Alan Nelson, Commissioner of the INS in Washington, D.C. Presently before the Court is the defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons stated below, defendants' motion for summary judgment is granted.

I. Background

Plaintiff Chen, a Taiwanese citizen, presently holds a nonimmigrant intracompany transferee visa (an "L-1 Visa"). This visa has been extended until November 13, 1990. On May 4, 1987, Fedin New York filed with the INS a sixth preference immigrant visa petition, naming Chen as the beneficiary. The petition sought to classify Chen pursuant to 8 U.S.C. Section 1153(a)(6), which provides that immigrant visas may be issued to "qualified immigrants who are capable of performing specified skilled or unskilled labor, not of a temporary or seasonal nature, for which a shortage of employable and willing persons exists in the United States." Id.

Generally, applications for a sixth preference immigrant visa must include a certification from the Department of Labor stating that there are not enough American workers to fill the offered position and that the alien's employment will not adversely affect the working conditions of American workers who are similarly employed. 8 U.S.C. Section 1182(a)(14). However, the Secretary of Labor has deemed that certain executive or managerial "intracompany transferees" are entitled to "blanket" labor certification. 20 C.F.R. Section 656.10, Schedule A, Group IV. To obtain blanket certification, an alien must establish: (1) that he was a manager or executive for a foreign company for one year preceding his visa application, and (2) that he is being transferred to a subsidiary of that company in the United States where he will be employed in an executive or managerial capacity. Alien applicants who seek to obtain blanket labor certification in accordance with Schedule A, Group IV must meet the eligibility requirements for a manager or an executive under the Immigration and Nationality Act, 20 C.F.R. Section 656.22(f)(1). Thus, the INS is the administrative agency that decides whether the alien applicant may obtain a blanket labor certification and subsequently an immigrant visa pursuant to 8 U.S.C. Section 1153(a)(6).

In the instant case, plaintiffs allege that Chen is entitled to a sixth preference immigrant visa as a matter of law because he has qualified for a blanket labor certification by performing duties in an executive or managerial capacity for a foreign company (for at least one year preceding his visa application) and its American subsidiary. Chen served as president of Fedin Brothers Co. Ltd. ("Fedin Taiwan"), a manufacturer of plastic parts incorporated in Taiwan, Republic of China. Furthermore, Chen submitted affidavits in his application to the INS stating that he performed and will continue to perform executive and managerial duties at Fedin New York, a wholly owned subsidiary of Fedin Taiwan incorporated in New York.

The INS Eastern Regional Service Center ("INS Center") determined that Chen did not perform in an executive or managerial capacity and subsequently denied the plaintiffs' visa petition on March 8, 1988. The INS Center ascertained that "the beneficiary is primarily providing all the services of the business, he is not supervising managers. He is not primarily performing executive or managerial duties and the enterprise has not grown to a size that would realistically support an executive or a manager." In re Huy-Yin Chen, I. & N. Dec. dated Mar. 8, 1988 at 2. The INS Center then decided that plaintiffs failed in their burden to "clearly establish that the offered position will be in either an executive or managerial position." Id. at 3.

Plaintiffs then filed an appeal with the INS Administrative Appeals Unit ("AAU"). On September 30, 1988, the AAU dismissed plaintiffs' appeal because it found that Chen had been singlehandedly providing the services of Fedin New York, rather than performing duties which may be regarded as primarily managerial or executive in substance. On December 8, 1988, plaintiffs filed a complaint in the United States District Court for the Eastern District of New York seeking judicial review of the INS' decision denying Chen's application for a sixth preference immigration visa classification through Schedule A, Group IV. Arguing that Chen has not performed duties primarily executive or managerial in nature, defendants maintain they properly denied Chen's visa application. Accordingly, defendants move for summary judgment. After reviewing the applicable legal standards, the Court will address defendants' motion.

II. Standard of Review

Under the Immigration and Nationality Act, 8 U.S.C. Section 1101 et seq., the grant or denial of a visa preference classification is within the discretionary powers of the INS. North American Industries, Inc. v. Feldman, 722 F.2d 893, 898 (1st Cir.1983); Mila v. District Director, 678 F.2d 123, 125 (10th Cir.1982), cert. denied, 459 U.S. 1104, 103 S.Ct. 726, 74 L.Ed.2d 952 (1983); Elatos Restaurant Corp. v. Sava, 632 F.Supp. 1049 (S.D.N.Y.1986). Therefore, judicial review of a denial of a visa petition is narrowly circumscribed and limited to whether the decision of the INS was arbitrary, capricious or an abuse of discretion. 5 U.S.C. 706(2)(A); Pancho Villa Restaurant, Inc. v. United States Department of Labor, 796 F.2d 596, 597 (2d Cir. 1986); London Typographers, Inc. v. Sava, 628 F.Supp. 570, 576 (S.D.N.Y.1986). Furthermore, an abuse of discretion may be found when an INS determination is "unsupported by reasonable, substantial ... evidence on the record considered as a whole." Elatos Restaurant Corp., 632 F.Supp. at 1053 (citations omitted). In fact, it is well established in the Second Circuit "that abuse of discretion is shown only if the decision under review was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group." London Typographers, Inc., 628 F.Supp. at 576. See also Li Cheung v. Esperdy, 377 F.2d 819 (2d Cir.1967). In determining whether the INS abused its discretion, the Court must bear in mind that the petitioner or beneficiary carries the burden of proving that the applicant is entitled to the visa classification. Tongatapu Woodcraft of Hawaii, Ltd., 736 F.2d 1305, 1308 (9th Cir.1984); London Typographers, Inc., 628 F.Supp. at 576; K.C.P. Food Co., Inc. v. Sava, 623 F.Supp. 1080, 1082-83 (S.D.N.Y.1985).

Generally, a reviewing court defers to the construction accorded a statute by the agency in charge of its administration. Bertrand v. Sava, 684 F.2d 204, 217 (2d Cir.1982); K.C.P. Food Co., 623 F.Supp. at 1082. With respect to immigration cases, courts have been particularly deferential to the decisions of the INS. In this regard it has been noted that "it is not the province of the Court to insist that the Service's interpretations of the Act result in a perfect immigration scheme, or even that they be the best interpretations possible." K.C.P. Food Co., 623 F.Supp. at 1082. Moreover, the same Court went on to say that "even as to purely legal questions," decisions of the INS are worthy of "a review tempered by respect for the Service's expertise in interpreting and administering the Act." Id. (citations omitted). See also Bertrand v. Sava, 684 F.2d 204, 214 (2d Cir.1982) (indicating that the Court "improperly substituted its judgment for that of the INS director" in a habeas corpus proceeding involving aliens).

With these principles in mind, the Court now turns to the case at bar. It is to be noted that the review is limited to the facts contained in the certified administrative record of the Administrative Appeals Unit (AAU) and the Eastern Regional Service Center. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 825-826, 28 L.Ed.2d 136 (1971); K.C.P. Food Co., 623 F.Supp. at 1082.

III. Discussion

In their motion for summary judgment, defendants claim that the INS properly denied plaintiffs' petition for a sixth preference visa classification filed on behalf of Chen. First, defendants maintain that their decision effectuates Congressional intent with respect to nonimmigrant intracompany transferees. Secondly, defendants argue that INS regulations regarding executive and managerial duties comport with the intent of Congress. Finally, defendants contend that plaintiffs have failed in their attempt to prove that Chen will perform managerial or executive duties for Fedin New York. The Court will address each one of these contentions separately.

A. Congressional Intent

To reiterate, plaintiffs claim that Chen is entitled to blanket labor certification in that his position at Fedin New York has been and will be managerial or executive in nature. 20 C.F.R. 656.10 Schedule A, Group IV. In accordance with 20 C.F.R. Section 656.22, an applicant seeking such blanket certification must fulfill the requirements for a nonimmigrant intracompany transferee ("L-1" visa) as set forth in 8 U.S.C. Section 1101(a)(15)(L), as well as the INS regulations promulgated to...