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HARJINDER KAUR SINGH v. AG

December 24, 1980

Harjinder Kaur SINGH and Amar J. Macker, Plaintiffs,
v.
ATTORNEY GENERAL, Defendant



The opinion of the court was delivered by: GREENE

This action involves the denial of a petition for permanent residency status under a sixth preference immigration classification. Such a classification is established by section 203(a)(6) of the Immigration and Nationality Act, as amended, *fn1" which provides that visas shall be made available "to qualified immigrants who are capable of performing specified skilled or unskilled labor, not of a temporary or seasonal nature, for which a shortage of employable and willing persons exists in the United States." Although the Secretary of Labor found Ms. Singh qualified, the Attorney General, acting through the Immigration and Naturalization Service, *fn2" denied the petition, and this action followed.

I

 Plaintiff Singh is a citizen of India who entered the United States as an employee of a diplomatic official under A-2 nonimmigrant alien status. *fn3" Subsequently, she sought adjustment to permanent residency status under section 203(a)(6) on the basis of a petition filed on her behalf by plaintiff Macker, for whom Singh is currently employed as a live-in domestic worker. The petition included a labor certification issued by the Department of Labor, as required by the regulations. In spite of this certification, INS, after conducting its own investigation, determined that Singh had not established that she possessed the minimum qualification required for the position and that, accordingly, she was not entitled to a sixth preference classification.

 II

 The central legal issue presented for resolution concerns the division of authority between the Department of Labor and the Attorney General, acting through the INS, with respect to sixth preference immigration petitions. Plaintiffs assert that, the decision on the issuance of a labor certification having been committed to the jurisdiction of the Labor Department, INS had no independent authority to deny a petition once Labor had granted a certification. The INS argues, in effect, that a certification by the Secretary of Labor is merely a necessary prerequisite to a sixth preference visa petition but is not sufficient by itself. In INS' view, it has the authority independently to determine whether an applicant has met the qualification requirements set forth in the application, and that it also possesses the concomitant authority to deny a visa petition based upon its own negative determination.

 Both sides rely heavily upon a fairly recent decision of the Court of Appeals for this Circuit Castaneda-Gonzalez v. Immigration and Naturalization Service, 183 U.S. App. D.C. 396, 564 F.2d 417 (D.C.Cir.1977). In that case, the court was called upon to construe section 212(a)(14) of the Immigration and Nationality Act *fn4" which excludes from admission into the United States,

 
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 exclusion of aliens under this paragraph shall apply to (sixth) preference immigrant aliens....

 Relying upon the statutory language as well as the legislative history, the court concluded that, under this statutory provision, INS could not exclude an alien who had received a certification from the Department of Labor simply because, in the opinion of INS, the certification was based on an inaccurate factual basis. *fn5" The certification, said the court, is binding upon the Attorney General and the INS, and "an alien who has a labor certificate which has not been invalidated by the Secretary of Labor may not be deported as an alien excludable under subsection 212(a)(14)." 564 F.2d at 424 n. 14.

 The alien in Castaneda was not governed by sections 203 and 204 of the Act, *fn6" because at the time of his entry immigrants from countries in the western hemisphere were not subject to the preference system. See Castaneda, supra, 564 F.2d at 428 n. 26. However, the application of the instant plaintiff, who is an immigrant from Asia, *fn7" is governed by sections 203 and 204 as well as by subsection 212(a)(14). Section 204(b) of the Act *fn8" provides:

 
After an investigation of the facts in each case, and after consultation with the Secretary of Labor with respect to petitions to accord a status under section 203(a) ... (6), the Attorney General shall, if he determines that the facts stated in the petition are true and that the alien in behalf of whom the petition is made ... is eligible for a preference status under section 203(a), approve the petition....

 On its face, this section, unlike section 212(a)(14), does not vest plenary authority in the Secretary of Labor, but provides that "the Attorney General shall (depending upon certain conditions) approve the petition." Indeed, the Court of Appeals in Castaneda made a pointed distinction between the two sections, as follows (564 F.2d at 429):

 
A comparison of the statutory provisions governing preference status decisions and subsection 212(a)(14) supports our holding that the Attorney General does not have legislatively delegated authority to review the basis for the Secretary of Labor's certification decision. With respect to petitions for preference status which require assessment of either an alien's qualifications for an occupation or the state of the labor supply in the United States, section 204(b) directs the Attorney General to "(consult) with the Secretary of Labor' but nonetheless clearly provides that the Attorney General, himself, shall determine whether an alien is eligible for a preference under section 203(a). Id., 8 U.S.C. ยง 1154(b) (1970). This is further evidence of congressional sensitivity to the interplay of administrative authority which permeates the immigration laws, and demonstrates that, where Congress sought to involve the Department of Labor simply as an enforcement aid to the Attorney General in areas of its expertise, the legislators did not rely on any implied power of the Attorney General but provided an unambiguous expression of their intent. Subsection 212(a)(14) does not refer to "consultation' with or "initial screening' by the ...

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