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HOU CHING CHOW v. AG

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


July 6, 1973

HOU CHING CHOW
v.
The ATTORNEY GENERAL

Aubrey E. Robinson, Jr., District Judge.

The opinion of the court was delivered by: ROBINSON, JR.

MEMORANDUM AND ORDER

Aubrey E. Robinson, Jr., District Judge.

 This action seeks review of an administrative decision of the Immigration and Naturalization Service (I.N.S.), and a declaratory judgment that the attempted repeal of an I.N.S. regulation is invalid for failure to comply with the rule-making provisions of the Administrative Procedure Act, 5 U.S.C. § 553. Presently before the Court are Defendant's Motion to Dismiss or, in the alternative, for Summary Judgment, and Plaintiff's Cross-Motion for Summary Judgment.

 Plaintiff is a doctoral candidate at the University of Missouri and a citizen of Taipei, Taiwan, China. He is presently in the United States on a non-immigrant visa which expires August 11, 1973. Pursuant to Section 245 of the Immigration and Nationality Act, 8 U.S.C. § 1255, on October 9, 1972, Plaintiff Chow submitted an application for adjustment of status from non-immigrant alien to that of alien lawfully admitted for permanent residence. Section 245 authorizes the Attorney General in his discretion to so adjust the status of an alien if (1) the alien makes application for 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. Generally, an immigrant visa is not available to an alien seeking to enter the United States for the purpose of performing skilled or unskilled labor unless the Secretary of Labor certifies (1) that there are not sufficient workers in the United States to perform such work, and (2) the employment of the alien will not adversely affect the wage and working conditions of United States citizens so employed. 8 U.S.C. § 1182(a)(14).

 Prior to August 2, 1972, by decision of the Board of Immigration Appeals, Matter of Redekop-Rempening, II I & N Dec. 674 (1966), and by administrative regulations 8 C.F.R. 212.8(b)(5) (1972) -- promulgated shortly after the Redekop decision, alien students who established that they had sufficient funds to support themselves during their studies without working were not subject to the "labor certificate" provision of 8 U.S.C. § 1182(a)(14). A similar "student exemption" from the labor certificate requirement was set forth in State Department Regulations, 22 C.F.R. 42.91(a)(14)(ii)(f). This meant that alien students with sufficient funds who did not intend to seek employment during their period of study and who sought adjustment of status, were not "[ineligible] to receive an immigrant visa . . ." merely because they had not obtained a labor certificate from the Secretary of Labor.

 Shortly before Plaintiff submitted his application for adjustment of status, the State Department, on July 22, 1972, *fn1" and the Immigration and Naturalization Service, on August 2, 1972, *fn2" revoked the student exemption. This was done by regulations published without notice and effective immediately. Thereafter, alien students such as Plaintiff, seeking adjustment of status under Section 245 of the Act, have been required to obtain the labor certification described above. When Plaintiff applied for adjustment of status his application was rejected on the ground that he was ineligible for adjustment of status for failure to obtain a labor certificate.

 Plaintiff contends that the regulations revoking the student exemption, published without notice and effective immediately, are invalid for failure to comply with the rule making provisions of the Administrative Procedure Act, 5 U.S.C. § 553. He seeks a review of the administrative decision rejecting his application and a declaratory judgment that the attempted repeal of the student exemption is invalid.

  Defendant first contends that the Court is without jurisdiction to review the denial of adjustment of status since that decision is one committed to the discretion of the Attorney General. 8 U.S.C. § 1255. The judicial review provisions of the Administrative Procedure Act do not apply to the extent that "agency action is committed to agency discretion." 5 U.S.C. § 701. Yet, as Plaintiff contends, an exercise of discretion is not involved here. Plaintiff's application was not rejected by the Attorney General in the exercise of his discretion; rather his application was returned on the ground that, as a matter of law, Plaintiff was ineligible for adjustment for failure to obtain a labor certificate. *fn3" That is a question of law properly subject to review here. Brownell v. Gutnayer, 94 U.S. App. D.C. 90, 212 F.2d 462 (1954).

 Defendant contends that the repeal of regulations allowing the student exemption from labor certification is excepted from the rule-making provisions of the Administrative Procedure Act. The Act states expressly that it does not apply to matters involving the "foreign affairs of the United States." *fn4" Yet the exception

 

"is not to be loosely interpreted to mean any function extending beyond the borders of the United States, but only those 'affairs' which so affect relations with other Governments, that, for example, public rule-making provisions would clearly provoke definitely undesirable international consequences."

 S. Rep. No. 752, 79th Cong. 1st Sess. (1946). Further, in Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S. Ct. 445, 94 L. Ed. 616 (1951), the Supreme Court held the Administrative Procedure Act *fn5" applicable to deportation proceedings of the Immigration and Naturalization Service. If deportation proceedings do not come within the foreign affairs exemption, most certainly mere adjustment of alien status and labor certification requirements are not so exempt. While the specific effect of Wong Yang Sung was overruled by subsequent legislation, *fn6" there is no indication that the legislation was motivated in any way by Congressional intent to reassert a foreign affairs exemption. *fn7" The theory of Wong Yang Sung remains valid, then, and a firm indication that the foreign affairs exception in the Administrative Procedure Act is not available to the I.N.S. in the present case. *fn8"

 A further problem is presented once it is determined that the foreign affairs exception to the Administrative Procedure Act is unavailable here. That problem stems from the fact that the rule-making provisions of the Act were not followed in the initial promulgation of the "student exemption" regulations. Accordingly, Defendant argues, if the attempted repeal of the regulation was invalid, so also was its initial promulgation. That would leave the matter exactly where Defendant contends it should be, with no "student exemption" from the labor certification requirement available to Plaintiff. The matter is not quite so simple, however, and bears further examination.

 The student exemption *fn9" from the requirement that aliens seeking adjustment of status obtain a labor certification *fn10" was originally promulgated by I.N.S. in 1966. *fn11" The promulgating notice indicated that compliance with the rule-making provisions of the Administrative Procedure Act was "unnecessary in this instance because the rule prescribed by the order is interpretative in nature." *fn12" If the regulation was in fact merely "interpretative" it would be expressly exempt from the rule-making provisions of the Administrative Procedure Act. *fn13" Defendant does not presently rely on such a contention, but the Court finds it necessary to examine the argument.

 While there is a meaningful distinction between interpretative and substantive rules, *fn14" the Court is not bound by the "label" attached by the administrative agency. *fn15" The Court must look to such factors as the real effect of the rule, the source authority for its promulgation, and the force and effect which attach to the rule itself. *fn16" On each of these points the "student exemption" regulation and the regulation revoking it appear to be substantive regulations under the terms of the Administrative Procedure Act. The promulgating notice *fn17" expressly cited statutory authority for the issuance of regulations by the Attorney General. *fn18" Such regulations have been repeatedly held to have the full force and effect of law. *fn19" And, most significantly, this Court finds that the "student exemption" regulation, and especially the revocation of that regulation has a real and substantial effect on the rights of parties such as Plaintiff herein. As such, they are precisely the type of regulations for which Congress intended notice and opportunity to comment, as provided in the rule-making provisions of the Administrative Procedure Act. *fn20"

 If the original rules are substantive, then, the question arises whether they are invalid ab initio for failure to comply with the Act. The answer is that they are not, for another express exemption from the Act authorized their initial promulgation. As a "substantive rule which grants or recognizes an exemption" *fn21" the original I.N.S. student exemption was excepted from the prior notice and delayed effective date requirements of the Act. There is no corresponding exception, however, for rules revoking an exemption once granted. Revocation, therefore, can proceed only in accord with the rule-making provisions of the Administrative Procedure Act.

 Upon the above considerations, and upon consideration of the entire record herein, it is this 5th day of July, 1973,

 Ordered, that Plaintiff's Motion for Summary Judgment be and hereby is, granted, and it is

 Further ordered, that Defendant's Motion to Dismiss or, in the alternative, for Summary Judgment be and hereby is denied, and it is

  Further ordered, that the revocation of the student exemption, 8 C.F.R. 212.8(b)(5)(1972), to the labor certificate requirement by regulation promulgated August 1, 1972, 37 F.R. 15419, be and hereby is declared to be contrary to law, 5 U.S.C. § 553, and without effect, and it is

 Further ordered, that Plaintiff's application for adjustment of status be and hereby is remanded to the Attorney General for further consideration and processing not inconsistent with the decision entered herein.


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