K.R.K. Irvine, Inc. v. Landon

• Decision Date: 23 February 1983
• Docket Number: No. 81-5915,81-5915
• Citation: 699 F.2d 1006
• Parties: K.R.K. IRVINE, INC., and Jorge Torres, Plaintiffs-Appellants, v. Michael LANDON, District Director, and Immigration and Naturalization Service, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1006

699 F.2d 1006

K.R.K. IRVINE, INC., and Jorge Torres, Plaintiffs-Appellants, v. Michael LANDON, District Director, and Immigration and Naturalization Service, Defendants-Appellees.

No. 81-5915.

United States Court of Appeals, Ninth Circuit.

Argued July 7, 1982.

Submitted Oct. 14, 1982.

Decided Feb. 23, 1983.

John F. Sheffield, Pasadena, Cal., for plaintiffs-appellants.

Katherine V. Tooks, Asst. U.S. Atty., Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before ANDERSON, SCHROEDER ¹ and FERGUSON, Circuit Judges.

PER CURIAM:

Jorge Torres and K.R.K. Irvine, Inc. (appellants) appeal the district court's denial of their motion for a preliminary injunction. Appellants seek to enjoin the Immigration and Naturalization Service (INS) from deporting Torres pending the result of an action in which appellants have challenged the INS's denial of their application for a sixth preference visa for Torres. The district court, adopting a report and recommendation prepared by a federal magistrate, ruled that appellants were not entitled to a preliminary injunction because they failed to demonstrate probable success on the merits of their claim against the INS. Appellants argue that the district court's ruling was based on erroneous legal

premises and should be reversed. We find, however, that the district court did not err and therefore we affirm the denial of appellants' motion for a preliminary injunction.

BACKGROUND

Jorge Torres is a native and citizen of Argentina who entered the United States on or about September 17, 1975 as a non-immigrant visitor for a temporary period. Sometime in November of 1975, Torres began working for appellant K.R.K. Irvine, Inc.

On June 11, 1977, appellants filed an application with the Department of Labor (DOL) pursuant to section 212(a)(14) of the Immigration and Nationality Act (the Act), 8 U.S.C. Sec. 1182(a)(14), requesting a labor certification for Torres as a moldmaker. On October 5, 1978, the DOL issued the requested labor certification. ²

Based on the issuance of the labor certification, K.R.K. Irvine, Inc. filed a petition on or about February 15, 1979, to classify Torres as a Sixth Preference Immigrant with the occupation of moldmaker. ³ On December 13, 1979, the INS district director denied appellants' petition. The district director found Torres had not satisfied the requirements necessary to perform the job duties of a moldmaker. The appellants appealed the district director's decision to the regional commissioner. On April 21, 1980, the regional commissioner affirmed the decision of the district director and on June 18, 1981, appellants' motion for reconsideration was denied. As a result of the denial of appellants' application for sixth preference status, Torres became immediately deportable on the ground that he had remained in the United States longer than permitted under his status as a non-immigrant visitor.

On July 14, 1981, a Warrant of Deportation was issued against Torres and he was notified in writing that he was to report for deportation on July 22, 1981. On July 22, 1981, appellants filed an action challenging the INS's denial of their application for sixth preference status, and on July 27, 1981, appellants moved for a preliminary injunction enjoining Torres' deportation during the pendency of the action. On October 1, 1981, the district court denied appellants' motion and appellants then pursued this appeal.

DISCUSSION

In this circuit, an order denying a preliminary injunction will be reversed only if the lower court abused its discretion or based its decision on erroneous legal premises. Los Angeles Memorial Coliseum Comm'n v. National Football League, 634 F.2d 1197, 1200 (9th Cir.1980); City of Anaheim v. Kleppe, 590 F.2d 285, 288 n. 4 (9th Cir.1978); William Inglis & Sons Baking Co. v. ITT Continental Baking Co., 526 F.2d 86, 88 (9th Cir.1975). Here, appellants contend only that the district court relied on erroneous legal premises and we limit our discussion to that argument. ⁴ Specifically, appellants contend that the district court mistakenly based its decision on the premise that the INS has authority to determine that an alien who has obtained a labor certification from the DOL is unqualified for the job certified. In effect, appellants argue that the issuance of a labor certification by the DOL binds the INS to find that the alien is qualified to perform the job certified.

Appellants' argument requires us to examine the statutory division of authority between the INS and the DOL. A brief description of the statutory and regulatory framework will provide useful background to this examination.

Sixth preference visas are available "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." 8 U.S.C. Sec. 1153(a)(6).

As a threshold requirement, an alien seeking a sixth preference visa must obtain a labor certification from the Secretary of Labor pursuant to section 212(a)(14) of the Act, 8 U.S.C. Sec. 1182(a)(14). Section 212(a) defines 33 different classes of aliens who are ineligible to receive visas and who will be excluded from admission to the United States unless certain requirements of the Act are satisfied. Section 212(a)(14) provides in part:

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.

Once the alien has obtained a labor certification, his prospective employer may then file a petition with the INS pursuant to section 204(a) of the Act, 8 U.S.C. Sec. 1154(a), requesting sixth preference status for the alien. Once an application under section 204(a) has been filed, the INS must determine pursuant to the procedures prescribed in section 204(b) and accompanying regulations whether the alien is qualified for sixth preference status. Section 204(b) provides in part:

After an investigation of the facts in each case, and after consultation with the Secretary of Labor with respect to petitions to award a status under section ... 203(a)(6) of this title, [INS] shall, if [it] determines that the facts stated in the petition are true and that the alien in behalf of whom the petition is made ... is eligible for a preference status under section 203(a) of this title, approve the petition ....

This review of the statutory provisions that govern the procedure for obtaining sixth preference status demonstrates that there is a careful division of functions between the Secretary of Labor and the INS. On the face of these provisions, it appears that the DOL is responsible only for determining the availability of suitable American workers for a job and the impact of alien employment upon the domestic labor market. It does not appear that the DOL's role extends to determining if the alien is qualified for the job for which he seeks sixth preference status. That determination appears to be delegated to the INS under section 204(b), 8 U.S.C. Sec. 1154(b), as one of the determinations incident to the INS's decision whether the alien is entitled to sixth preference status.

This interpretation of the statutory division of authority between the DOL and the INS is supported by the regulations promulgated pursuant to the Act. Under 20 C.F.R. Sec. 656.2(e), the function of the DOL is described as follows:

e) Role of the Department of Labor.

(1) The role of the Department of Labor under the Act derives from section 212(a)(14) (8 U.S.C. 1182(a)(14)), which provides that certain aliens who seek to immigrate to the United States for the purpose of employment in the United States are not eligible for a visa and shall be excluded unless the Secretary of Labor has first certified to the Secretary of State and to the Attorney General that:

(1)...