the plaintiff's motion to reconsider and cited the company's failure to submit any additional material evidence to bolster its case. Defendant's Motion for Summary Judgment, Para. 11. The Service could easily find plaintiff's explanation for why it did not furnish the necessary documents -- that they were "not retained" when the company reorganized -- to be unsatisfactory. Plaintiff's Statement Of Material Facts As To Which There Are No Genuine Issue, Para. 12. Thus, the Court holds that the INS decision was neither arbitrary nor capricious, as plaintiff contends, because the petitioner has not met its burden of proving that it had the financial ability to pay the wage stated in the application for a visa preference.
Plaintiff further alleges that the INS exceeded its authority and suggests that the Service should, in effect, automatically grant preference status to whomever secures an employment certificate from the Department of Labor. Plaintiff's Motion for Summary Judgment, 19-20. This Circuit has repudiated the plaintiff's interpretation of the Immigration and Nationality Act, noting that, "although the Act allocates a limited role to the DOL [Department of Labor], it vests primary responsibility for implementation with INS . . . . There is no doubt that the authority to make preference classification decisions rests with INS . . . . The determination of the INS is final and not subject to review by DOL." Madany v. Smith, 225 U.S. App. D.C. 53, 696 F.2d 1008, 1012 (D.C. Cir. 1983); see 8 C.F.R. Sec. 204.2(e)(4); U.S. v. Mendoza-Lopez, 481 U.S. 828, 55 U.S.L.W. 4688, 4690, 95 L. Ed. 2d 772, 107 S. Ct. 2148 (1987). Thus, the INS does not exceed its authority when it denies a work permit to an alien, as happened here, even though the DOL determined that the alien's presence would not have an adverse impact on the American workforce. Hassanali v. Attorney General, 599 F. Supp. 189, 193 (D.D.C. 1984); Rosedale and Linden Park Co. v. Smith, 595 F. Supp. 829, 832 (D.D.C. 1984).
Plaintiff also asserts that the INS refusal to grant its petition was an abuse of discretion and contrary to law. Plaintiff's Motion for Summary Judgment, 1-2. The allegations must again be rejected as a matter of law. The Supreme Court recently reiterated its view that "courts must respect the interpretation of the agency to which Congress has delegated the responsibility for administering the statutory program." Immigration and Naturalization Service v. Cardoza Fonseca, 480 U.S. 421, 107 S. Ct. 1207, 1222, 94 L. Ed. 2d 434 (1987); see also Immigration and Naturalization Service v. Rios-Pineda, 471 U.S. 444, 85 L. Ed. 2d 452, 105 S. Ct. 2098 (1985); Robbins v. Reagan, 250 U.S. App. D.C. 375, 780 F.2d 37, 45 (D.C. Cir. 1985).
Judicial deference is particularly important in immigration matters, which have long been regarded as the province of the executive branch. Elatos Restaurant Corp. v. Sava, 632 F. Supp. 1049, 1053 (S.D.N.Y. 1986). The judiciary may not defer to an agency when it has acted inconsistently, Cardoza Fonseca, 107 S. Ct. at 1221, but no such showing has been made here. Plaintiff avers that the INS has handled sixth preference petitions inconsistently, by granting a visa to another alien whose application was identical to that of Perdomo. Plaintiff's Motion for Summary Judgment, 35. The documents the plaintiff submitted, however, are insufficient to establish either that the applications were identical or that the INS rulings were conflicting.
The Court must uphold the INS regardless of how much deference is due. The agency has not abused its discretion under the standard adopted in this Circuit: the INS findings, based on the financial viability of the alien's prospective employer, are consistent with the relevant statute and are reasonably calculated to serve its purpose. 8 U.S.C. 1154(a)(1); see also Nazareno v. Attorney General, 168 U.S. App. D.C. 22, 512 F.2d 936, 939-40 (D.C. Cir. 1975); Wing Ding Chan v. Immigration and Naturalization Service, 203 U.S. App. D.C. 396, 631 F.2d 978, 980-81 (D.C. Cir. 1980). The INS interpretation need not be the best possible one: an agency decision cannot be overturned simply because a court would have made a different choice. Nazareno, supra, at 940; Elatos, supra, at 1053.
The Court finds that the INS discharged its duty properly, and therefore dismissed plaintiff's allegations that the INS abused its discretion and acted contrary to law.
Plaintiff has failed to show that there are any material facts at issue, nor has plaintiff overcome defendants' argument that they will prevail as a matter of law. The Court will enter an Order, of even date herewith, granting defendants' motion for summary judgment and denying plaintiff's motion for summary judgment.
In accordance with the Memorandum Opinion of even date herewith, it is, by the Court, this 10th day of July, 1987,
ORDERED: that the defendants' motion for summary judgment be, and hereby is, granted, and the plaintiff's motion for summary judgment be, and is hereby, denied; and
IT IS FURTHER ORDERED: that the above entitled case shall be dismissed from the dockets of this Court.