The opinion of the court was delivered by: MCLEAN
This is an action for a declaratory judgment (28 U.S.C. § 2201) and for review under the Administrative Procedure Act (5 U.S.C. § 1009) of a decision of the District Director of the Immigration and Naturalization Service dated June 15, 1966, which denied an application made by plaintiff Nippon Express U.S.A., Inc. (Nippon) on behalf of plaintiff Yoko Yokoyama for continuation of her status as a "treaty trader" under a treaty between the United States and Japan dated April 2, 1953 ( 4 U.S.T. & O.I.A. 2063).
Plaintiffs have moved for an order (1) setting aside defendant's decision; (2) ordering defendant to grant the application; and (3) enjoining defendant from initiating deportation proceedings against Yoko Yokoyama until the termination of this action.
The initial argument of this motion was limited to the application for a preliminary injunction restraining defendant from initiating deportation proceedings. Thereafter counsel for both parties asked the court to decide the entire case, there being no dispute of fact and no need for a hearing. In order to expedite a determination of this controversy for the convenience of both parties, I undertook to do this. Accordingly, I will treat the case as though both parties had moved for summary judgment.
The facts may be briefly summarized as follows:
Miss Yokoyama is a Japanese national. She first came to the United States in November 1959 as a visitor. In February 1960, her status was changed to that of a student. She took courses at the Art Students League in New York.
Thereafter she accepted employment with Transcontinental Mercantile Corp. (Transcontinental) as purchasing agent of women's apparel for export to Japan. On January 6, 1965 she applied to the Immigration and Naturalization Service for reclassification to the status of non-immigrant treaty trader under Section 101(a)(15)(E) of the Immigration and Nationality Act (8 U.S.C. § 1101(a)(15)(A)). This application was granted on January 28, 1965. Her temporary stay in the United States as a treaty trader was subsequently extended to October 8, 1966.
On April 1, 1966, Nippon, a New York subsidiary of a Japanese express company, wrote to the Immigration and Naturalization Service stating that it wished to employ Miss Yokoyama as a bookkeeper. The letter stated:
"We have been looking for a qualified individual with equal linguistic ability as well as accounting background. Due to the Nature of our business, it is necessary for her to have adequate knowledge of the Japanese and English language since she will be communicating with the home office as well as answer phones."
"Miss Yokoyama's present status is that of a Treaty Trader to work for Transcontinental Mercantile Corp. and is valid until October 8, 1966. We respectfully request your changing Miss Yokoyama's employer from Transcontinental Mercantile Corp. to Nippon Express."
The District Director treated this letter as an application on behalf of Miss Yokoyama for continuation of her status as a treaty trader in her new employment. By letter dated June 15, 1966, addressed to Miss Yokoyama, the District Director denied the application. His letter pointed out that her first application for treaty trader status had been granted in order that Transcontinental could make use of her knowledge of textiles and fashion design. It stated that she had not established that she was a bookkeeper or accountant and that the description of her proposed employment "does not indicate that the company is to engage you in a capacity requiring special qualifications essential to your proposed employer's enterprise."
Both plaintiffs now claim that this decision was arbitrary and contrary to the treaty and to the regulations pertaining to the definition of a treaty trader under that treaty.
Before considering the merits of this controversy, a preliminary question of jurisdiction must be decided. Under 8 U.S.C. § 1105a(a), the Court of Appeals has sole and exclusive jurisdiction to review "all final orders of deportation" made against aliens pursuant to administrative proceedings before a special inquiry officer as prescribed in the Act (8 U.S.C. § 1252(b)). Courts of Appeals in other circuits are in conflict as to the effect of this statute upon the jurisdiction of the district court to entertain an action such as this. The Seventh Circuit has held that a decision of the Immigration and Naturalization Service prior to deportation proceedings which determines the alien's status, may be reviewed by the Court of Appeals in passing upon a final order of deportation and that consequently, the District Court has no power to review it in an ...