Gestuvo v. District Dir. of US Immigration & Nat. Serv.

• Decision Date: 23 December 1971
• Docket Number: Civ. No. 70-2434.
• Citation: 337 F. Supp. 1093
• Court: U.S. District Court — Central District of California
• Parties: Orlando David GESTUVO, Petitioner, v. DISTRICT DIRECTOR OF the UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

337 F. Supp. 1093

Orlando David GESTUVO, Petitioner, v. DISTRICT DIRECTOR OF the UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Civ. No. 70-2434.

United States District Court, C. D. California.

December 23, 1971.

Earl R. Steen, of Kwan, Cohen & Quan, Inc., Los Angeles, Cal., for plaintiff.

Robert L. Meyer, U. S. Atty., Frederick M. Brosio, Jr., Asst. U. S. Atty., Chief, Civil Division, Rex Heeseman, Asst. U. S. Atty., Los Angeles, Cal., for respondent.

MEMORANDUM AND ORDER DENYING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT AND ESTOPPING RESPONDENT

PREGERSON, District Judge.

This case is before the Court because the Immigration and Naturalization Service changed its mind: as a result, petitioner faces deportation. The Service originally concluded that petitioner's professional credentials made him eligible for permanent residence in the United States as an immigrant. Relying on that determination, petitioner remained in the United States and established a life for himself here. Eighteen months later, however, the Service decided that petitioner was not and never had been qualified for permanent residence status. Petitioner has brought suit for judicial review of the Service's second decision. The Court has jurisdiction of the matter by virtue of the Declaratory Judgment Act, 28 U.S.C. § 2201, and the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq.

I

Orlando David Gestuvo is a citizen of the Philippines who seeks permanent residence status in the United States under the 1965 amendments to the Immigration and Nationality Act, 8 U.S.C. §§ 1101 et seq. On August 24, 1967, Gestuvo visited the United States Embassy in Manila and filed a petition for classification as a preference immigrant (Form I-140; Tr. 13), claiming that he was a qualified professional eligible for a preference under 8 U.S.C. § 1153(a) (3). He stated in his petition that he intended to reside in Brooklyn, New York; that his profession was "banking"; and that he held the degree of Bachelor of Business Administration.

Under 8 U.S.C. § 1182(a) (14) an alien holding a preference classification granted pursuant to § 1153(a) (3) may not enter the United States unless the Department of Labor certifies, first, that there are not sufficient workers in the United States "able, willing, qualified, and available" for the type of work that the alien intends to perform and, second, that employment of the alien will not "adversely affect the wages and working conditions of the workers in the United States similarly employed." Therefore Gestuvo again visited the United States Embassy on July 8, 1968, and filed an application for labor certification (Form ES-575; Tr. 15). In this application Gestuvo spelled out his credentials in detail. He listed the elementary and high schools that he had attended and pointed out that he had received the degree of Bachelor of Business Administration from the University of the East, which is located in Manila, during 1964. He attached a photostatic copy of his degree and of his complete university transcript, in English, listing all courses taken and grades received. Gestuvo also included his employment history, beginning approximately with the time of his graduation from the university. From May 1964 until October 1966 he had worked as a "Storekeeper" for the Philippine Notions Company, a button manufacturer. He explained that in that capacity he had "Arrainged (sic) the importation and exportation documents." Thereafter, from October 1966 until December 1967, he had worked for the Bowlmore Bowling Lanes and Restaurant, a family-owned business. He described his position there as "Bookkeeper" and explained that his duties had consisted of "Bookkeeping and managing the business at the same time." Finally, from January 1968 until the time that he filed his application, Gestuvo had been employed as a records and filing clerk in the Accounting Division of the Office of the Treasurer of the Province of Bulacan.

With these details before them, two government agencies charged with administering the Act proceeded to evaluate Gestuvo's credentials. On October 28, 1968, the Department of Labor issued the labor certification required by § 1182(a) (14) (Tr. 15). Shortly thereafter, on November 19, the Service approved Gestuvo's petition for a preference classification (Tr. 25). Gestuvo, meanwhile, had left the Philippines on a trip to Europe. On November 12, 1968 — seven days before his petition was approved — he appeared at the United States Embassy in Madrid, Spain, and obtained a nonimmigrant visitor's visa. He entered the country at New York on November 27, 1968.

It is not clear from the record precisely when Gestuvo learned that the Service had approved his petition for a preference classification, but certainly it was after his arrival in the United States. The Service did not issue its approval until after Gestuvo had obtained his visitor's visa. Gestuvo, moreover, was not in the Philippines at the time that the petition was approved, but the Service mailed its notice of approval (Form I-171B) to him at his address in the Philippines (Tr. 25). Once he did learn of the approval, however, he applied to the Service for adjustment of his status to that of permanent residence pursuant to 8 U.S.C. § 1255(a). In addition, at some time that the record does not specify, Gestuvo left New York for Southern California, where he found a position with a firm that services electrical household appliances produced by major American manufacturers (Tr. 12).

No immediate decision could be reached, however, on Gestuvo's application for adjustment of status. Under 8 U.S.C. § 1152(a), the number of natives of any single foreign country who may, if they have not yet been admitted to the United States, obtain immigrant visas, or who may, if they have already legally entered the United States as non-immigrants, obtain an adjustment of their status to that of permanent residence is limited to a total of 20,000 during any one fiscal year. Therefore natives of those few countries from which there is a large exodus of immigrants to the United States experience long delays before they can either obtain immigrant visas or permanent residence status — i. e., before immigrant visa numbers become available. The Philippines is one of these countries, and as a result, Gestuvo has run afoul of certain Regulations promulgated by the Service.

In 8 C.F.R. §§ 204.4(b) and 205.1(b) (1) the Service has provided that its approval of the credentials of an alien seeking an immigrant visa or permanent residence as a professional entitled to preference classification shall remain in effect for only one year past the date of the labor certification issued pursuant to § 1182(a) (14). If the alien has not in the meantime obtained the immigrant visa or permanent residence status that he seeks, the Service's approval shall expire. After this expiration the alien may, under 8 C.F.R. § 204.4(c), apply to the Service for revalidation of the Service's approval. If the alien's labor certification remains valid or is revalidated by the Department of Labor, the Service's approval of the alien's petition for a preference classification "may be revalidated for a period of 1 year * * *, provided the beneficiary i. e., the alien has retained his status as established in the petition * * *."

Under the provisions of Regulations 204.4(b) and 205.1(b) (1) the Service's approval of Gestuvo's petition expired on October 29, 1969. The Service waited until March 6, 1970, before notifying Gestuvo of the expiration of the approval (Form I-71; Tr. 10). Gestuvo applied for revalidation of the approval on March 12, listing his profession as "accounting" (Tr. 11) and enclosing a letter from his employer (Tr. 9). His employer, Golden State Appliance Service and Parts, Inc., of Los Angeles, notified the Service that Gestuvo was employed as an "assistant supervisor of shipping" and that the employer considered him a "permanent employee" and was "well satisfied with his work."

The Service denied Gestuvo's request for revalidation of its approval.

The Service's District Director in Los Angeles mailed a copy of the Service's decision (Form I-292; Tr. 8) to Gestuvo at his old address in the Philippines on June 7, 1970. The decision explained, "Despite your academic qualification, you have failed to exhibit a bona fide intent to be occupied in a professional field commensurate thereto." Gestuvo appealed to the Regional Commissioner on June 23 (Tr. 7) and submitted a more detailed letter from his employer (Tr. 5). The employer wrote that Gestuvo "is a permanent employee and is working in many departments of our company, mainly accounting." The letter continued, "Since we are a small business but are growing, there is a need for personnel capable to handle more than one position."

The Regional Commissioner dismissed Gestuvo's appeal on July 30, stating,

"The appellant has a degree in Business Administration and claims his occupation is `banking.' Banking, per se, is not an occupation, there being many positions in banking, some of which may be professional, but not all of them. The record will not support a finding that the appellant is eligible for the classification he seeks. Furthermore, the petition was not approvable in the first instance. Therefore, the appeal will be dismissed" (Tr. 2-3).

On October 28 Gestuvo instituted this action for judicial review of the Service's decision. The case was remanded to the Service for further administrative proceedings on March 17, 1971, and on May 17 the Regional Commissioner reaffirmed his previous decision. This suit for judicial review was reopened on August 2, and the respondent's motion for summary judgment, brought pursuant to Rule 56, F.R.Civ.P., is now before the Court.

II

The Court of Appeals for the Ninth Circuit has consistently held that a refusal by the Service to approve a petition for a preference classification...