The opinion of the court was delivered by: Tone, District Judge.
Plaintiffs are aliens currently residing in the United
States who sought immigrant visas for permanent residence
under 8 U.S.C. § 1153(a)(3). That section provides for "third
preference" to those "qualified immigrants who are members of
the professions, or who because of their exceptional ability in
the sciences or the arts will substantially benefit
prospectively the national economy, cultural interests, or
welfare of the United States."
Plaintiffs Severino Bitang, Evelyn De Borja, Renato
Guttierrez, Jose Macaisa and Guillermo Reyes claim
professional status as accountants. Plaintiff Ester De Guzman
claims that status as an auditor and plaintiff Horace Yao as
The Immigration and Naturalization Service apparently does
not question plaintiffs' standing as "members of the
professions" within the terms of the above quoted section.
There is, however, an additional requirement which must be met
before persons in plaintiffs' positions can qualify for
permanent visas. The Secretary of Labor must determine and
certify that the alien's entry into the domestic labor market
will not be prejudicial
to the American worker. 8 U.S.C. § 1182 (a) (14) provides:
"(a) Except as otherwise provided in this
chapter, the following classes of aliens
shall be ineligible to receive visas and
shall be excluded from admission into the
(14) 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."
The Secretary of Labor has delegated responsibility for
making the above determination and certification to the
Manpower Administration, Department of Labor. With respect to
plaintiffs in the present case, the defendant Regional
Manpower Administrator determined that there were sufficient
American workers available in the Chicago area to perform the
plaintiffs occupations. Plaintiffs seek a declaratory judgment
under 28 U.S.C. § 2201 and review under the Administrative
Procedure Act, 5 U.S.C. § 704 of that determination and denial
of certification. This Court has jurisdiction. Song Jook Suh v.
Rosenberg, 437 F.2d 1098 (9th Cir. 1971).
The matter is before the Court on cross motions for summary
judgment. The issue to be determined is whether defendant
abused his discretion. Golabek v. Regional Manpower
Administration, 329 F. Supp. 892 (E.D.Pa. 1971). The standard
to be applied in making that determination is whether, based
upon the facts in the administrative record, it can be said
that the defendant's decision was "made without a rational
explanation, inexplicably departed from established policies,
or rested upon an impermissible basis such as an invidious
discrimination against a particular race or group . . . ." Wan
Ching Shek v. Esperdy, 304 F. Supp. 1086, 1087 (S.D.N.Y. 1969).
It is contended that defendant's decision was made without a
rational explanation. Another test for abuse of discretion is
whether, upon examining the administrative record, it can be
said that there is no evidence to support the defendant's
decision. Song Jook Suh v. Rosenberg, supra, 437 F.2d at 1102.
Applying these tests to the administrative record in this case,
I find that defendant has abused his discretion.
The sole basis found in the administrative record for
defendant's determinations that there were in fact a
sufficient number of American workers in the Chicago area
"able, willing, qualified and available" to perform
plaintiffs' professions were communications from the Illinois
State Employment Service (ISES) to defendant that there were
various numbers of people listed with that service who were
seeking employment in the various occupations of plaintiffs.
The only evidence that several of these communications
occurred consists of unsigned sheets of paper containing
handwritten notes which apparently were found in the
respective plaintiffs' files. The inference that is sought, of
course, is that these were made by the certifying officer
during telephone conversations with employees of the ISES.
In support of their motion plaintiffs state that the ISES
accepts applicants' statements of qualification without
verification, does not verify whether they are presently
employed, and makes no effort to strike from the list of
applicants the names of those persons who have found
employment unless those persons request such action. Although
the Government does not dispute these contentions, I am
hesitant to ascribe such a lack of organization to that
agency. Nevertheless, the fact remains that the record does
not show that any job seekers listed were "able," "qualified"
or even still "available" on the date in question.
The result might be different if the numbers of persons
listed with the employment service as allegedly seeking
positions in plaintiffs' occupations were of such magnitudes
as to make it reasonable to discount those who had falsely
listed their qualifications or their lack of current
employment or who had not yet had their names removed after
they had in fact found employment. This sufficiently
substantial quantity was present only in the case of Jose
Macaisa. As to other plaintiffs the numbers of applicants
listed by the service were so small, given the size of the
accountant population in the Chicago area, as to amount to no
evidence of a shortage when combined with the lack of any
evidence that those listed were in fact "able," "qualified,"
and still "available." (I.e., De Borja — 34, De Guzman — 17,
Reyes — 21, Yao — 20.)
With respect to plaintiffs Bitang and Guttierrez, it appears
that the defendant merely adopted the conclusory statement of
the ISES that these plaintiffs' professions were listed as
surplus. I recognize that a certain amount of reliance upon
state agency findings is necessary. Nevertheless, the statute
conferring upon the Secretary of Labor the responsibility for
making these determinations certainly requires more than blind
and unquestioning acquiescence in a state agency's ultimate
conclusions. There is again no ...