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TOKYO SANSEI, INC. v. ESPERDY

April 9, 1969

TOKYO SANSEI (NEW YORK), INC., et al., Plaintiffs,
v.
P. A. ESPERDY, etc., Defendants


Frankel, District Judge.


The opinion of the court was delivered by: FRANKEL

FRANKEL, District Judge.

The question before the court is whether plaintiff Jiro Takizawa is entitled to judicial reversal or modification of an administrative decision (by defendant District Director, affirmed by the Regional Commissioner, of the Immigration and Naturalization Service) denying his application to be classified as a "nonimmigrant alien" in the category of "treaty trader" under § 101(a)(15)(E)(i) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1101(a)(15)(E)(i). The proceeding from which this issue has crystallized began with a motion by all four of the named plaintiffs for a temporary injunction against threatened hurts which have now been postponed, if not eliminated as threats, by agreement of the parties. It is unnecessary now to detail fully the discussions and the stipulated arrangements by which the original motion has been transmuted into cross-motions for summary judgment. *fn1" Suffice it to say that there are no material issues of fact; that the undisputed question for the court is whether the decision of the Service denying the claim to "treaty trader" status was "arbitrary" or "capricious," 5 U.S.C. § 706(2)(A); Nippon Express U.S.A., Inc. v. Esperdy, 261 F. Supp. 561, 565-566 (S.D.N.Y.1966); and that the parties and the court perceive nothing to prevent, or to warrant postponing decision of that question.

 I.

 The statutory definition of treaty traders in 8 U.S.C. § 1101(a)(15)(E) - along with the succeeding definition of "treaty investors," a category of minor and incidental interest here - is embraced in the following clauses:

 
"The term 'immigrant' means every alien except an alien who is within one of the following classes of nonimmigrant aliens -
 
* * *
 
"(E) an alien entitled to enter the United States under and in pursuance of the provisions of a treaty of commerce and navigation between the United States and the foreign state of which he is a national * * *: (i) solely to carry on substantial trade principally between the United States and the foreign state of which he is a national; or (ii) solely to develop and direct the operations of an enterprise in which he has invested, or of an enterprise in which he is actively in the process of investing, a substantial amount of capital * * *."

 The statute derives from Section 3(6) of the Immigration Act of 1924, 43 Stat. 153, passed at a time when the country's hospitableness to long-term sojourns of aliens was not at its zenith. It has not been changed in any liberalizing or otherwise pertinent respect. *fn2"

 As is apparent from the nature of the subject matter, the according of treaty trader status is primarily and normally a matter for State Department officials. While it is permissible and by no means uncommon for the classification to be given by the Immigration Service to one already within our borders (the action sought by plaintiff Takizawa), the Service defers to and follows the relevant rulings of the State Department. See Nippon Express U.S.A. Inc. v. Esperdy, 261 F. Supp. 561, 564 (S.D.N.Y.1966); Immigration & Naturalization Service Operations Instructions § 248.6 (renumbered as of Jan. 29, 1969). For that reason, and on familiar principles of statutory construction, Zemel v. Rusk, 381 U.S. 1, 11, 85 S. Ct. 1271, 14 L. Ed. 2d 179 (1965); Udall v. Tallman, 380 U.S. 1, 16, 85 S. Ct. 792, 13 L. Ed. 2d 616 (1965); Massachusetts Trustees of Eastern Gas & Fuel Associates v. United States, 377 U.S. 235, 241, 84 S. Ct. 1236, 12 L. Ed. 2d 268 (1964); Power Reactor Development Co. v. International Union of Electricians, Radio & Machine Workers, 367 U.S. 396, 408, 81 S. Ct. 1529, 6 L. Ed. 2d 924 (1961); Alaska Steamship Co. v. United States, 290 U.S. 256, 262, 54 S. Ct. 159, 78 L. Ed. 302 (1933), the longstanding views of the Department are germane for our problem. Thus, the parties and the court have referred and given weight to the more detailed definition in State Department Regulations, 22 C.F.R. § 41.40:

 
"§ 41.40 Treaty traders.
 
(a) An alien shall be classifiable as a nonimmigrant treaty trader if he establishes to the satisfaction of the consular officer that he qualifies under the provisions of section 101(a)(15)(E)(i) of the Act and that: (1) He intends to depart from the United States upon the termination of his status; and (2) If he is employed by a foreign person or organization having the nationality of the treaty country which is engaged in substantial trade as contemplated by section 101(a)(15)(E)(i), he will be engaged in duties of a supervisory or executive character, or, if he is or will be employed in a minor capacity, he has special qualifications that will make his services essential to the efficient operation of the employer's enterprise and will not be employed solely in an unskilled manual capacity."

 Particularizing still further for the guidance of consular officers, Volume 9 of the Department's Foreign Affairs Manual (Part II, Annotated Nonimmigrant Visa Regulations) contains the following Notes to 22 C.F.R. § 41.40:

 
"10.1 Highly trained and specially qualified technicians employed by firms qualifying as treaty traders who are engaged in the training or supervision of persons employed in manufacturing, maintenance and repair functions are entitled to treaty trader status regardless of the fact that such technicians may themselves perform some manual duties.
 
"10.2 Qualified technicians coming to the United States to perform warranty repairs on intricate and complex products sold in the course of trade between the United States and the treaty country are entitled to treaty trader status if the employing firm establishes that it can not obtain the services of American technicians qualified to perform such repairs. The employing firms will be expected to plan for training American personnel to make such repairs and to utilize them as they become available for the performance of such functions. Consular officers should inquire of the employing firm regarding the training ...

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