Kwan v. Donovan
| Citation | 777 F.2d 479 |
| Decision Date | 26 November 1985 |
| Docket Number | No. 84-6558,84-6558 |
| Parties | Wellington Y. KWAN, Plaintiff-Appellant, v. Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Defendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Wellington Y. Kwan, pro se.
Carolyn M. Reynolds, Asst. U.S. Atty., Los Angeles, Cal., for defendant-appellee.
Appeal from the United States District Court for the Central District of California.
Before BROWNING, KENNEDY, and HUG, Circuit Judges.
Wellington Y. Kwan ("Kwan") appeals from the order of summary judgment entered in favor of the then-Secretary of Labor, Raymond J. Donovan ("Secretary") affirming the Department of Labor's ("Department") denial of labor certification.
Shelly Yunn-Ching Wann ("Wann") is a citizen of Taiwan, Republic of China, who entered the United States on a student visa. Since December, 1980, Wann has been employed by Kwan as a bilingual bookkeeper/clerk. Kwan is a sole practitioner in Los Angeles, specializing in immigration law. Seventy percent of Kwan's clients are Chinese. Wann's time at work is equally divided between her bookkeeping responsibilities and various secretarial functions, including answering the telephone and translating documents from Chinese to English.
On June 26, 1981, Kwan filed an application for alien employment certification with the Department on behalf of Wann, which was denied on April 7, 1983 by the Department's certifying officer. The certifying officer determined that the job opportunity requirements were not justified by a business necessity, and that the combination of duties was not logical and was unduly restrictive for the job opportunity. Kwan made a timely request for administrative review pursuant to 20 C.F.R. Sec. 656.26(e). Under that regulation, the administrative law judge ("ALJ") reviews the denial of the labor certification on the basis of record, the request for review, and any legal briefs submitted. The ALJ reviewed the record and affirmed the denial of labor certification. On May 14, 1984, Kwan filed a complaint, seeking declaratory and injunctive relief and judicial review of the administrative decision. On October 24, 1984, summary judgment was entered in favor of the Secretary, affirming the denial of the labor certification. This appeal ensued.
In reviewing the propriety of a grant of summary judgment, our task is identical to that of the trial court. Ward By & Through Ward v. United States Department of Labor, 726 F.2d 516, 517 (9th Cir.1984). That is, we must view the evidence and inferences de novo, in the light most favorable to the non-moving party, in this instance, Kwan, to determine whether the trial court correctly found that there was no genuine issue of material fact and that the moving party, here the Secretary, was entitled to judgment as a matter of law. Id.
The district court and this court can reverse the Secretary's denial of alien employment certification decision only if the decision is found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. Sec. 706(2)(A) (1982); Seo v. United States Department of Labor, 523 F.2d 10, 12 (9th Cir.1975); Walker v. Navajo-Hopi Indian Relocation Commission, 728 F.2d 1276, 1278 (9th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 298, 83 L.Ed.2d 233 (1984). Traditionally, an agency's interpretation of its own regulation is entitled to a high degree of deference. Sierra Club v. Clark, 756 F.2d 686, 690 (9th Cir.1985); Hawaiian Electric Co. v. EPA, 723 F.2d 1440, 1447 (9th Cir.1984).
Under the arbitrary and capricious standard, the reviewing court is limited to deciding "whether there has been a clear error of judgment by the agency and whether the agency action was based upon a consideration of relevant factors." Nance v. Environmental Protection Agency, 645 F.2d 701, 705 (9th Cir.), cert. denied, 454 U.S. 1081, 102 S.Ct. 635, 70 L.Ed.2d 615 (1981). The scope of review under the arbitrary and capricious standard is limited, and a court may not substitute its judgment for that of the agency. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971).
Section 212(a)(14) of the Immigration and Nationality Act (the "Act"), 8 U.S.C. Sec. 1182(a)(14) (1982), provides for the exclusion of aliens seeking permanent employment unless the Secretary determines that (1) there are not sufficient workers who are able, willing, qualified, and available at the time of application for a visa and (2) the employment of such aliens will not adversely affect the wages and working conditions of the workers in the United States similarly employed. 1 The labor certification requirement was incorporated in the Act to prevent "an influx of aliens entering the United States for the purpose of performing skilled or unskilled labor where the economy of individual localities is not capable of absorbing them at the time they desire to enter the country." Cheung v. Immigration and Naturalization Service, 641 F.2d 666, 669 (9th Cir.1980) (quoting H.R.Rep. No. 1365, 82d Cong., 2d Sess., reprinted in 1952 U.S.Code Cong. & Ad.News 1653, 1705).
The Secretary has promulgated regulations that require the employer, as a prerequisite to certification, to conduct a systematic recruitment of domestic workers. 20 C.F.R. Part 656 (1981). An employer seeking labor certification must actively recruit domestic workers in the manner prescribed in the regulations in order to test the domestic labor market. 2 If this recruitment is unsuccessful and the regulations have been complied with, certification is granted.
In addition to the recruitment requirements, the employer must comply with 20 C.F.R. Sec. 656.21(b)(2)(i)(A)-(C).
(2) The employer shall document that the job opportunity has been and is being described without unduly restrictive job requirements:
(i) The job opportunity's requirements, unless adequately documented as arising from business necessity:
(A) Shall be those normally required for the job in the United States;
(B) Shall be those defined for the job in the Dictionary of Occupational Titles (D.O.T.) including those for subclasses of jobs;
(C) Shall not include requirements for a language other than English.
20 C.F.R. Sec. 656.21(b)(2)(ii) specifically provides that if the job opportunity involves a combination of duties, such as in the instant case, the job opportunity must be...
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