Hou Ching Chow v. Attorney General, Civ. A. No. 2418-72.

• Court: United States District Courts. United States District Court (Columbia)
• Writing for the Court: Jack Wasserman, Washington, D. C., for plaintiff
• Citation: 362 F. Supp. 1288
• Parties: HOU CHING CHOW v. The ATTORNEY GENERAL.
• Docket Number: Civ. A. No. 2418-72.
• Decision Date: 06 July 1973

362 F. Supp. 1288

HOU CHING CHOW
v.
The ATTORNEY GENERAL.

Civ. A. No. 2418-72.

United States District Court, District of Columbia.

July 6, 1973.

Jack Wasserman, Washington, D. C., for plaintiff.

Richard I. Chaifetz, Criminal Div., Dept. of Justice, Washington, D. C., for defendant.

362 F. Supp. 1289

MEMORANDUM AND ORDER

AUBREY E. ROBINSON, Jr., District Judge.

This action seeks review of an administrative decision of the Immigration and Naturalization Service (I.N.S.), and a declaratory judgment that the attempted repeal of an I.N.S. regulation is invalid for failure to comply with the rule-making provisions of the Administrative Procedure Act, 5 U.S.C. § 553. Presently before the Court are Defendant's Motion to Dismiss or, in the alternative, for Summary Judgment, and Plaintiff's Cross-Motion for Summary Judgment.

Plaintiff is a doctoral candidate at the University of Missouri and a citizen of Taipei, Taiwan, China. He is presently in the United States on a non-immigrant visa which expires August 11, 1973. Pursuant to Section 245 of the Immigration and Nationality Act, 8 U.S.C. § 1255, on October 9, 1972, Plaintiff Chow submitted an application for adjustment of status from non-immigrant alien to that of alien lawfully admitted for permanent residence. Section 245 authorizes the Attorney General in his discretion to so adjust the status of an alien if (1) the alien makes application for adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is approved. Generally, an immigrant visa is not available to an alien seeking to enter the United States for the purpose of performing skilled or unskilled labor unless the Secretary of Labor certifies (1) that there are not sufficient workers in the United States to perform such work, and (2) the employment of the alien will not adversely affect the wage and working conditions of United States citizens so employed. 8 U.S.C. § 1182(a)(14).

Prior to August 2, 1972, by decision of the Board of Immigration Appeals, Matter of Redekop-Rempening, II I & N Dec. 674 (1966), and by administrative regulations 8 C.F.R. 212.8(b)(5) (1972)—promulgated shortly after the Redekop decision, alien students who established that they had sufficient funds to support themselves during their studies without working were not subject to the "labor certificate" provision of 8 U.S.C. § 1182(a)(14). A similar "student exemption" from the labor certificate requirement was set forth in State Department Regulations, 22 C.F.R. 42.91(a)(14)(ii)(f). This meant that alien students with sufficient funds who did not intend to seek employment during their period of study and who sought adjustment of status, were not "ineligible to receive an immigrant visa . . ." merely because they had not obtained a labor certificate from the Secretary of Labor.

Shortly before Plaintiff submitted his application for adjustment of status, the State Department, on July 22, 1972,¹ and the Immigration and Naturalization Service, on August 2, 1972,² revoked the student exemption. This was done by regulations published without notice and effective immediately. Thereafter, alien students such as Plaintiff, seeking adjustment of status under Section 245 of the Act, have been required to obtain the labor certification described above. When Plaintiff applied for adjustment of status his application was rejected on the ground that he was ineligible for adjustment of status for failure to obtain a labor certificate.

Plaintiff contends that the regulations revoking the student exemption, published without notice and effective immediately, are invalid for failure to comply with the rule making provisions of the Administrative Procedure Act, 5 U.S.C. § 553. He seeks a review of the administrative decision rejecting his application and a declaratory judgment that the attempted repeal of the student exemption is invalid.

362 F. Supp. 1290

Defendant first contends that the Court is without jurisdiction to review the denial of adjustment of status since that decision is one committed to the discretion of the Attorney General. 8 U.S.C. § 1255. The judicial review provisions of the Administrative Procedure Act do not apply to the extent that "agency action is committed to agency discretion." 5 U.S.C. § 701. Yet, as Plaintiff contends, an exercise of discretion is not involved here. Plaintiff's application was not rejected by the Attorney General in the exercise of his discretion; rather his application was returned on the ground that, as a matter of law, Plaintiff was ineligible for adjustment for failure to obtain a labor certificate.³ That is a question of law properly subject to review here. Brownell v. Gutnayer, 94 U.S.App.D.C. 90, 212 F.2d 462 (1954).

Defendant contends that the repeal of regulations allowing the student exemption from labor certification is excepted from the rule-making provisions of the Administrative Procedure Act. The Act states expressly that it does not apply to matters involving the "foreign affairs of the United States."⁴ Yet the exception

"is not to be loosely interpreted to mean any function extending beyond the borders of the United States, but only those `affairs' which so affect relations with other Governments, that, for example, public rule-making provisions would clearly provoke definitely undesirable international consequences."

S.Rep.No. 752, 79th Cong. 1st Sess. (1946). Further, in Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616 (1951), the Supreme Court held the Administrative Procedure Act⁵ applicable to deportation proceedings of the Immigration and Naturalization Service. If deportation proceedings do not come within the foreign affairs exemption, most certainly mere adjustment of alien status and labor certification requirements are not so exempt. While the specific effect of Wong Yang Sung was overruled by subsequent legislation,⁶ there is no indication that the legislation was motivated in any way by Congressional intent to reassert a foreign affairs exemption.⁷ The theory of Wong

362 F. Supp. 1291

Yang Sung remains valid, then, and a firm indication that the foreign affairs exception in the Administrative Procedure Act is not available to the I.N.S. in the present case.⁸

A further problem is presented once it is determined that the foreign affairs exception to the Administrative Procedure Act is unavailable here. That problem stems from the fact that the rule-making provisions of the Act were not followed in the initial promulgation of the "student exemption" regulations. Accordingly, Defendant argues, if the attempted repeal of the regulation was invalid, so also was its initial promulgation. That would leave the matter exactly where Defendant contends it should be, with no "student exemption" from the labor certification requirement available to Plaintiff. The matter is not quite so simple, however, and bears further examination.

The student exemption⁹ from the requirement that aliens seeking adjustment of status obtain a labor certification¹⁰ was originally promulgated by I.N.S. in 1966.¹¹ The promulgating notice indicated that compliance with the...