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LU-ANN BAKERY SHOP v. NELSON

December 21, 1988

LU-ANN BAKERY SHOP, INC., et al., Plaintiffs,
v.
ALAN NELSON, Commissioner of the IMMIGRATION AND NATURALIZATION SERVICE, Defendant



The opinion of the court was delivered by: REVERCOMB

 REVERCOMB, DISTRICT JUDGE

 The case is a an action requesting a declaratory judgment and that the Court set aside defendant's decision to revoke the visa petition of plaintiff Vincenzo Bellomo, who has worked for plaintiff Lu-Ann Bakery Shop, Inc., in New York City. Review is made under the Administrative Procedure Act, 5 U.S.C. § 706. Plaintiffs and defendant have filed cross-motions for summary judgment; oral argument was heard on October 14, 1988. For the reasons stated herein, the Court grants plaintiff's motion for summary judgment, sets aside defendant's decision to revoke its approval of the petition of plaintiff Vincenzo Bellomo, and remands this matter to defendant for further action consistent with this opinion and order.

 I. Facts

 Plaintiff Vincenzo Bellomo, who is originally from Bivona, Italy, entered the United States on October 15, 1983, with a visitor visa that allowed him to stay in this country for six months. Plaintiff Lu-Ann Bakery, seeking to employ Mr. Bellomo as a baker, applied on November 3, 1983 for alien employment certification. Plaintiff's app. 30-31. The bakery established a minimum requirement of 18 months experience as a baker for the position. App. 30.

 After receiving approval of its application for alien employment certification on November 28, 1984, app. 27, Lu-Ann Bakery on December 5, 1984 filed a petition with the Immigration and Naturalization Service (INS) on behalf of Mr. Bellomo to "Classify Preference Status of Alien on Basis of Profession or Occupation," pursuant to § 203(a)(6) of the Immigration and Nationality Act, 8 U.S.C. § 1153(a)(6). App. 28-29. To support the petition, plaintiffs supplied a letter dated September 16, 1983 from a Ms. Vasile Giuseppa of Bivona, Italy. App. 36-37. The letter stated that Mr. Bellomo had worked for her in Bivona "for a period of three years, as a skilled baker." The INS on May 8, 1985 approved the petition, according preference status to Mr. Bellomo. App. 26.

 In November of 1985, however, the United States Consulate in Naples, Italy, conducted an investigation of Mr. Bellomo to determine whether his claim of being a baker for three years was accurate. The investigation was conducted by an Italian citizen employed by the United States. The report of this investigation, dated December 5, 1985, noted a number of contradictions to Mr. Bellomo's previously reported history. App. 20-22. The investigator interviewed Ms. Vasile Giuseppa, Mr. Bellomo's former employer, who first told the investigator that she did not recall writing a letter on behalf of Mr. Bellomo, and then, when presented with the letter, admitted only to signing it as a favor to Mr. Bellomo, who actually wrote it, she said. In reality, Mr. Bellomo had worked only one to two hours daily as an apprentice baker for a period of a year to eighteen months, she said, and she did not register Mr. Bellomo's employment as a baker at the city hall. His primary employment, she said, was as a mason or construction worker. The report also noted that records at the city hall in Bivona, Italy, listed Mr. Bellomo as a laborer ("manovale") and mason-carpenter ("carpentiere"). Finally, the report stated that a policeman, a city clerk, and customers in a bar in Bivona stated that they knew Mr. Bellomo to have worked as a mason or carpenter. App. 20-22.

 On the basis of this report, the INS on April 18, 1986 issued a notice of intent to revoke the approval of plaintiff Bellomo's petition for preference status. App. 19. An investigation of plaintiff Bellomo revealed, the notice said, that he "does not possess the required one and a half years experience as a baker. [He] is a mason/carpenter by trade." App. 19.

 Apparently without any further investigation, the INS on June 27, 1986 revoked its approval of Mr. Bellomo's petition for preference status. App. 23-24. "In light of the contradictory statements . . . and the lack of any additional evidence clearly establishing that the beneficiary was employed as a baker," the INS's Decision concluded, "the grounds for revocation have not been overcome. The fact that the beneficiary is listed as an 'artisan' on the town registers does not serve to establish prior employment as a baker." App. 24.

 Lu-Ann Bakery appealed the revocation on July 1, 1986, arguing that the case be investigated further because of four factors: 1) the discrepancy between the INS's report that Mr. Bellomo was registered as a laborer/carpenter and the mayor's statement that Mr. Bellomo was registered as an "artisan"; 2) that Mr. Bellomo's previous employer had recanted and explained her statements made to the INS investigator; 3) that Mr. Bellomo was successfully working as a baker at Lu-Ann Bakery, thus supporting the evidence he had significant baking experience in Italy; and 4) that the INS revocation implied that Mr. Bellomo did not work as a baker in Italy, even though the INS's own investigative report of December 1985 stated that Mr. Bellomo's former employer admitted that Mr. Bellomo worked part-time as a baker. App. 7.

 The INS dismissed the appeal on August 16, 1986, noting that although Lu-Ann Bakery

 
has claimed that [Mr. Bellomo] had previous employment as a baker, no evidence has been submitted other than the contradictory statements by the author of the employment letter. Given the discrepancies in the previous documentation, any such employment could only be proven through contemporary documentary evidence, such as tax records, employment records, or wage stubs. Mere statements would be insufficient.
 
Since the evidence submitted does not establish that the beneficiary met the minimum requirements of the job offer when the application for certification was ...

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