Lechich v. Rinaldi

• Decision Date: 20 September 1965
• Docket Number: No. C 902-61.,C 902-61.
• Citation: 246 F. Supp. 675
• Parties: Edoardo LECHICH and Three Sisters Restaurant, Inc., Plaintiffs, v. Dominick RINALDI, District Director of Immigration and Naturalization Service, Defendant.
• Court: U.S. District Court — District of New Jersey

246 F. Supp. 675

Edoardo LECHICH and Three Sisters Restaurant, Inc., Plaintiffs, v. Dominick RINALDI, District Director of Immigration and Naturalization Service, Defendant.

No. C 902-61.

United States District Court D. New Jersey.

September 20, 1965.

COPYRIGHT MATERIAL OMITTED

Leon Rosen, New York City, for plaintiffs.

David M. Satz, Jr., U. S. Atty., by Paul A. Nejelski, Newark, N. J., for defendant.

SHAW, District Judge.

Plaintiff Edoardo Lechich is a citizen of Yugoslavia¹. He entered the United States on March 7, 1959 as a crewman on the vessel S.S. Italia and was authorized to remain in this country as a non-immigrant alien so long as the vessel remained in port but in no event to exceed 29 days. He was then 24 years of age. Within 4 days after admission to this country as an alien crewman he visited his cousin, Leo Marin, president and owner of Three Sisters Restaurant in Dover, New Jersey and accepted employment there to work in the kitchen. According to Mr. Marin, plaintiff was first employed in the kitchen of Three Sisters Restaurant as a cook but was later promoted to the position of executive chef. It does not appear from the record that he could read, write or converse in the English language².

An order to show cause why plaintiff should not be deported was issued by the Immigration and Naturalization Service on March 14, 1960. Hearing on the order to show cause was held on March 17, 1960. The decision was deferred for one week in order to permit plaintiff to file an application for adjustment of status. Plaintiff made application on March 22, 1960 for adjustment of status to confer the right of permanent residence pursuant to Section 245 of the Immigration and Nationality Act, 8 U.S.C. A. § 1255. It was found by decision of a Special Inquiry Officer of the Immigration and Naturalization Service on March 30, 1960 that plaintiff was subject to deportation but should be granted the privilege of voluntary departure within such period of time as the District Director of the Service should fix.

Plaintiff's application for adjustment of status was denied by the District Director on July 28, 1960 and the denial was affirmed by the Regional Commissioner on November 7, 1960. The reasons stated for denial of the application for adjustment of status as they appear in the record are quoted as follows:

"Your application, for adjustment of status under Section 245 of the Immigration and Nationality Act has been denied for the following reasons:

"Your application does not warrant favorable consideration in the exercise of discretion in view of the fact that you accepted employment at Three Sisters Restaurant, Dover, N. J. within four days after your admission as a crewman on March 7, 1959."

On May 23, 1960 plaintiff Three Sisters Restaurant, Inc., filed a petition to classify the status of Lechich for issuance of an immigration visa pursuant to Section 203(a)(1)(A) of the Act, 8 U.S.C.A. § 1153(a)(1)(A). It was contended in support of this application that Lechich was a person whose services were urgently needed by Three Sisters Restaurant because of his technical training, specialized experience and exceptional ability as an executive chef. This petition was approved on November 14, 1960³, approval thereof to expire on June 12, 1961.

Plaintiff Three Sisters Restaurant, Inc., is a corporation of New Jersey which operates a large restaurant located on Route 46, Dover, New Jersey. According to evidence which does not seem to be disputed, the restaurant can accommodate 250 customers at one sitting; the average annual receipts are $500,000; and approximately 56 people (payroll record indicates 60) are employed to operate it. It is alleged that approximately sixteen of these employees work in the kitchen. The establishment is described as a first class gourmet restaurant with excellent reputation for the quality of its food and service.

By the provisions of 8 C.F.R. 204.2, implementing § 203(a)(1)(A), a clearance order by the United States Employment Service was required to be attached to the first preference visa petition filed by Three Sisters Restaurant, Inc. The clearance order attached to the petition describes the particular educational requirements, technical training, specialized experience or exceptional ability which would justify classification of Lechich as qualified for the issuance of a first preference visa. It prescribed as qualifications an ability to read and write English and five years experience as an executive chef with occupational title of executive chef coupled with ability to "supervise and coordinate the work of cooks and other kitchen employees; requisition food supplies. Supervise and assist in the preparation of meats, soups, sauces, vegetables and other foods, to proportion orders and cut meats. Generally supervise the entire operation of kitchen consisting of 16 employees."

On June 2, 1961 the following communication was sent by Deputy District Director W. J. Wyrsch to Three Sisters Restaurant, Inc.:

"Reference is made to your visa petition in behalf of Edoardo Lechich which was approved on January 4, 1961.

"Please be informed that inquiry has disclosed that the beneficiary is not employed in your establishment as an Executive Chef.

"Accordingly you are hereby placed on notice that it is the intention of this office to revoke approval of the petition. However, you will be given until June 19, 1961 within which to offer evidence in support of the petition and in opposition to revocation of the approval. Careful consideration will be given all additional evidence presented by said date before final decision is made."

In response thereto counsel for Three Sisters Restaurant Inc., submitted by letter of transmittal dated June 15, 1961 an affidavit of Leo Marin, president and sole stockholder of Three Sisters Restaurant, a menu, a statement signed by twenty-three employees of the restaurant⁴ and a statement by the pastor of Our Lady of the Lake Church, Lake Mohawk, New Jersey. The purport of these proofs was that Lechich was employed by petitioner as an executive chef.

By letter dated July 26, 1961 the following notice was given to petitioner by the Deputy District Director:

"I refer to your visa petition in behalf of Edoardo Lechich which was approved on November 14, 1960. As you know, a notice of intention to revoke the approval of the petition was served on you. Your attorney, Mr. Leon Rosen, has submitted certain evidence in opposition to the revocation of approval.

"In the meantime, because of the passage of time, the approval of the visa petition expired on June 12, 1961.

"Careful consideration was given to all the evidence presented in the case and you are informed that approval of the petition will not be revalidated." (Emphasis supplied.)

On October 24, 1961 plaintiffs commenced the action in this court seeking review pursuant to Section 10 of the Administrative Procedure Act, 5 U.S.C. A. § 1009, of the agency decisions of the Immigration and Naturalization Service denying the petition of Lechich for adjustment of status and revoking approval of the first preference visa petition obtained in his behalf by Three Sisters Restaurant, Inc. Injunctive relief restraining deportation was also sought. Jurisdiction was alleged under the Declaratory Judgments Act, 28 U.S.C.A. § 2201; § 279 of the Immigration and Nationality Act, 8 U.S.C.A. § 1329 and 28 U.S.C.A. § 1331.

After this action was commenced it was agreed by counsel for Three Sisters Restaurant, Inc. and the United States Attorney that Three Sisters Restaurant, Inc., should have an opportunity to submit a second first preference visa petition on behalf of Lechich and that neither side would move in this action until such petition had been processed through the Service⁵.

The second first preference visa petition was filed with the Immigration and Naturalization Service on or about November 26, 1962⁶. The clearance order of the United States Employment Service filed with this petition set forth as qualifications that the immigrant be able to "read and write; equivalent of 8th grade education" with occupational title of executive chef whose duties as such were: "Supervises and coordinates the work of cooks and other kitchen employees. Requisitions food supplies. Supervises and assists in the preparation of meats, soups, sauces, vegetables and other foods. Decides portion of orders. Supervises sixteen employees." Experience requirements as an executive chef were limited to three years.

An investigation was conducted by the Immigration and Naturalization Service during the course of which 15 persons, who were or had been employees of Three Sisters Restaurant, Inc., while Lechich was employed there, were interviewed and their statements taken under oath. In addition thereto, Leo Marin and Lechich were also given opportunity to furnish their statements under oath. The District Director concluded on April 3, 1963 that the second first preference visa petition sought by Three Sisters Restaurant, Inc. should be denied. The Notice of Denial setting forth the reasons is quoted as follows:

"Your visa petition in behalf of Edoardo Lechich has been denied for the following reasons:

Although you state the beneficiary has been employed as an executive chef, the beneficiary is listed on your payroll books as a butcher and the preponderance of evidence obtained through inquiry has ascertained that the beneficiary has never been employed by you as an executive chef; or that he has ever performed the duties required by the clearance order; or that he possesses the three years experience as an executive chef required by the clearance order. The documentary evidence relating to his qualifications merely reflect employment on vessels as a deck boy, kitchen helper, second cook and third cook from 1955 to 1956. It is therefore concluded that the beneficiary does not possess the high skill and ability contemplated by the statute."

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