Lee v. Immigration and Naturalization Service, 75-2014
| Decision Date | 13 September 1976 |
| Docket Number | No. 75-2014,75-2014 |
| Citation | 541 F.2d 1383 |
| Parties | Jin Soo LEE, Petitioner-Appellant, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Leslie J. Frank, of Popkin, Shamir & Greenberg, Los Angeles, Cal., for petitioner-appellant.
William D. Keller, U.S. Atty. of Los Angeles, Cal., Brian H. Simpson, Atty. of I & NS, San Francisco, Cal., for respondent-appellee.
Before HUFSTEDLER and GOODWIN, Circuit Judges, and KING, * District Judge.
Lee seeks review of a deportation order contending that the Immigration and Naturalization Service erred in denying his application for adjustment of status in that the Service made errors of fact and law in deciding that he was statutorily ineligible for relief. We agree with Lee that he was statutorily eligible for adjustment of status because, as a "religious worker" within the meaning of 29 C.F.R. § 60.7, he was entitled to an immediate immigration visa under 8 U.S.C. § 1255(a).
Lee, a 32-year-old married Korean citizen, legally entered the United States in 1968 as a nonimmigrant visitor. His status was changed in 1970 to nonimmigrant student with authorization to remain until September, 1973. In May, 1972, he applied for permanent resident status arguing visa availability as a religious worker. The Service denied his application in February, 1973, but granted him the privilege of voluntary departure. Lee continued his stay, and the Service commenced deportation proceedings in January, 1975, under 8 U.S.C. § 1251(a)(2). At his hearing he conceded deportability, but renewed his application for adjustment of status as a religious worker. The immigration judge denied the application on a finding that Lee was statutorily ineligible for adjustment of status because he was not a "religious worker" as defined in 29 C.F.R. § 60.7. The Board of Immigration Appeals affirmed the immigration judge and dismissed his appeal. This petition for review followed.
Our first task is to decide whether the Service's rejection of Lee's application for noneligibility is subject to our review on the abuse of discretion standard or on the broader review available under the substantial evidence test. When the sole question in a declination of adjustment of status case is whether the applicant was or was not statutorily ineligible, the standard of our review is the substantial evidence test. Unless the applicant is statutorily eligible for adjustment of status, no adjustment of status is permissible (8 C.F.R. § 242.17(d)); neither the Service nor the Attorney General has any discretion to exercise until the applicant clears the eligibility hurdle. Accordingly the abuse of discretion standard is not appropriate in reviewing eligibility; the proper test is the substantial evidence standard. (See, e. g., Foti v. Immigration and Naturalization Service (1963) 375 U.S. 217, 228-29, 84 S.Ct. 306, 11 L.Ed.2d 281, 2 Gordon & Rosenfield, Immigration Law and Procedure, § 8.14, at 8-94 (Rev. ed. 1976).) As we stated in dictum in Kasravi v. Immigration and Naturalization Service (9th Cir. 1968) 400 F.2d 675, at 677, n. 3:
Section 1255(a) of Title 8 requires factual findings to ascertain whether the applicant meets the legal standard prescribed by the statute, which, in pertinent part, states:
"(a) The status of an alien . . . who was inspected and admitted . . . into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such 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."
The Service concluded that Lee had not satisfied the statutory prerequisites and was thus not eligible for relief. Lee was eligible if he had either obtained an individual labor certificate, or if he qualified for an exemption from the certification requirement. He had no individual certificate; he contended that he was exempted because he was a "religious worker," entitled to "blanket certification," under 29 C.F.R. § 60.7, Schedule A, Group III. The question is whether Lee was a "religious worker," as that term is defined in sub-categories (a) and (c) of Group III:
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