Occidental Engineering Co. v. I.N.S., No. 84-5601
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
| Writing for the Court | Before SNEED, POOLE, and FERGUSON; SNEED |
| Citation | 753 F.2d 766 |
| Parties | OCCIDENTAL ENGINEERING COMPANY, a Delaware corporation, and Yi Ling Wang, Plaintiffs-Appellants, v. IMMIGRATION AND NATURALIZATION SERVICE; Dorothy Meisner, Acting Commissioner of the Immigration and Naturalization Service; Ed O'Connor, Regional Commissioner of the Immigration and Naturalization Service; Michael H. Landon, District Director of the Immigration and Naturalization Service; William French Smith, Attorney General of the United States, Defendants-Appellees. |
| Docket Number | No. 84-5601 |
| Decision Date | 11 February 1985 |
Page 766
Yi Ling Wang, Plaintiffs-Appellants,
v.
IMMIGRATION AND NATURALIZATION SERVICE; Dorothy Meisner,
Acting Commissioner of the Immigration and Naturalization
Service; Ed O'Connor, Regional Commissioner of the
Immigration and Naturalization Service; Michael H. Landon,
District Director of the Immigration and Naturalization
Service; William French Smith, Attorney General of the
United States, Defendants-Appellees.
Ninth Circuit.
Decided Feb. 11, 1985.
Page 767
Ronald H. Bonaparte, Bonaparte, Ibarra & O'Kane, Los Angeles, Cal., for plaintiffs-appellants.
Ian Fan, Asst. U.S. Atty., Los Angeles, Cal., for defendants-appellees.
Appeal from the United States District Court for the Central District of California.
Before SNEED, POOLE, and FERGUSON, Circuit Judges.
SNEED, Circuit Judge:
Occidental Engineering Company (Occidental) appeals the district court's grant of summary judgment in favor of the Immigration and Naturalization Service (INS). In the district court Occidental sought to overturn the INS's denial of its petition to reclassify an employee from visitor to temporary worker status as a person of "distinguished merit and ability" under 8 U.S.C. Sec. 1101(a)(15)(H)(i). This court has jurisdiction of the appeal pursuant to 28 U.S.C. Sec. 1291. We affirm.
I.
An alien can achieve temporary worker status if he "is of distinguished merit and ability and ... is coming temporarily to the United States to perform services of an exceptional nature requiring such merit and ability ..." 8 U.S.C. Sec. 1101(a)(15)(H)(i). The alien may satisfy the requirement of "distinguished merit and ability" by being a member of the "professions," Matter of General Atomic Co., 17 I. & N.Dec. 532, 533 (1980); Matter of Essex Cryogenics Industries, Inc., 14 I. & N.Dec. 196, 197 (1972), or by being "preeminent in his field of endeavor," Matter of Shaw, 11 I. & N.Dec. 277, 280 (1965).
The Immigration and Nationality Act defines "professions" as including but not limited to architects, engineers, lawyers, physicians, surgeons, and teachers. See 8 U.S.C. Sec. 1101(a)(32). To determine whether an occupation not enumerated in the statute constitutes a "profession," the INS considers if the position requires "a prolonged course of specialized instruction and study." See Matter of Shin, 11 I. & N.Dec. 686, 687 (1966). The INS has held that the term includes journalists, see Matter of Perez, 12 I. & N.Dec. 701, 702 (1968), but does not include translators, see Matter of Ho, 12 I. & N.Dec. 148, 150 (1967).
II.
FACTS AND PRIOR PROCEEDINGS BELOW
Yi Ling Wang, an employee of Occidental, entered the United States on December 26, 1979, with a temporary visitor's visa that authorized him to stay until June 25, 1980. Within weeks of his arrival in the United States, Occidental hired Wang as a translator. On February 21, 1980, Occidental petitioned the INS to change Wang's status from visitor to temporary worker, see 8 U.S.C. Sec. 1101(a)(15)(H)(i).
The INS District Director denied the petition on the ground that Occidental had not proven that Wang qualified as a person of "distinguished merit and ability." Occidental
Page 768
submitted additional information about Wang's skills and moved the District Director to reopen the case. This motion was denied on September 28, 1980.Occidental appealed the District Director's decision to the Western Regional Commissioner of the INS. The Regional Commissioner, on March 13, 1981, dismissed the appeal because Wang was not a person of "distinguished merit and ability" and because Occidental sought to hire Wang permanently rather than temporarily.
On April 6, 1981, Occidental requested that the INS Central Office in Washington review the Regional Commissioner's decision. The INS denied the request but indicated to Occidental that if "you can demonstrate that the beneficiary's duties are that of a professional editor or if you can obtain additional evidence that the beneficiary's abilities as a translator are distinguished above his peers, you may wish to file a motion to reopen or reconsider the proceeding with the Regional Commissioner."
On July 1, 1981, Occidental moved the Regional Commissioner to reconsider his decision. On October 23, the Regional Commissioner denied the motion on the basis that the argument raised in the motion had been previously considered.
Occidental filed this action in the Central District of California on March 15, 1982. The suit challenged both the INS's denial of the petition for...
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...Summary judgment is particularly applicable to cases involving judicial review of final agency action. Occidental Engineering Co. v. INS, 753 F.2d 766, 770 (9th Cir.1985) (citation omitted). Summary judgment is appropriate in this case because the issues presented address the legality of th......
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E. Tex. Med. Center-Athens v. Azar, Civil Action No. 17-543 (RBW)
...the evidence in the administrative record permitted the agency to make the decision it did.’ " Id. (quoting Occidental Eng'g Co. v. INS, 753 F.2d 766, 769–70 (9th Cir. 1985) ). In other words, "when a party seeks review of agency action under the APA, the district judge sits as an appellate......
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Rahman v. Napolitano, Case No. C09–1269 RSM.
...However, in cases challenging final agency action, a district court's role is different. See, e.g. Occidental Engineering Co. v. INS, 753 F.2d 766 (9th Cir.1985). The district court “is not required to resolve any facts in a review of an administrative proceeding.” Id. at 769. Rather, “the ......
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Fogo De Chao Churrascaria, LLC v. U.S. Dep't of Homeland Sec., Civil Action No. 10–1024(RBW).
...the evidence in the administrative record permitted the agency to make the decision it did.’ ” Id. (quoting Occidental Eng'g Co. v. INS, 753 F.2d 766, 769–70 (9th Cir.1985)). In other words, “when a party seeks review of agency action under the APA, the district judge sits as an appellate t......
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Alliance v. United States Forest Serv., No. CV 05-107-M-DWM
...Summary judgment is particularly applicable to cases involving judicial review of final agency action. Occidental Engineering Co. v. INS, 753 F.2d 766, 770 (9th Cir.1985) (citation omitted). Summary judgment is appropriate in this case because the issues presented address the legality of th......
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E. Tex. Med. Center-Athens v. Azar, Civil Action No. 17-543 (RBW)
...the evidence in the administrative record permitted the agency to make the decision it did.’ " Id. (quoting Occidental Eng'g Co. v. INS, 753 F.2d 766, 769–70 (9th Cir. 1985) ). In other words, "when a party seeks review of agency action under the APA, the district judge sits as an appellate......
-
Rahman v. Napolitano, Case No. C09–1269 RSM.
...However, in cases challenging final agency action, a district court's role is different. See, e.g. Occidental Engineering Co. v. INS, 753 F.2d 766 (9th Cir.1985). The district court “is not required to resolve any facts in a review of an administrative proceeding.” Id. at 769. Rather, “the ......
-
Fogo De Chao Churrascaria, LLC v. U.S. Dep't of Homeland Sec., Civil Action No. 10–1024(RBW).
...the evidence in the administrative record permitted the agency to make the decision it did.’ ” Id. (quoting Occidental Eng'g Co. v. INS, 753 F.2d 766, 769–70 (9th Cir.1985)). In other words, “when a party seeks review of agency action under the APA, the district judge sits as an appellate t......