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Ross v. Marshall

decided: June 22, 1981.


Appeal from judgment of the United States District Court for the District of Connecticut, T. Emmet Clarie, Chief Judge, vacating the denial of appellee Ross's labor certification application for appellee Marfil. Reversed and remanded for further proceedings.

Before Feinberg, Chief Judge, Oakes, Circuit Judge and Bonsal, District Judge.*fn*

Author: Feinberg

Secretary of Labor Ray Marshall and R. B. Albina, District Director of the Immigration and Naturalization Service office in Hartford, Connecticut, appeal from a judgment of the United States District Court for the District of Connecticut, T. Emmet Clarie, Chief Judge. That order vacated a decision of the Secretary denying an application by plaintiff-appellee Richard E. Ross for a labor certification for his "live-in" housekeeper, plaintiff-appellee Teresa Kordys Marfil. The district judge held that the administrative proceeding leading to the Secretary's decision was flawed because of a failure to consider relevant evidence. For reasons indicated below, we conclude that the district judge erred in this ruling, but we remand for further consideration of an issue that was raised but not reached in the district court.


Plaintiff Ross and his wife, who is an active participant in his business, live in Westport, Connecticut. Ross is in the real estate business in New York City where he buys old brownstones, which he then restores, remodels and sells. Ross commutes daily from Connecticut to his office in the city; Mrs. Ross goes to New York about twice a week to meet with contractors and designers and to look at brownstones for possible purchase. When the occasion demands, the Rosses use the New York City office as an apartment for an overnight stay. They also operate a bottled water business together, with offices in New York City; this business requires regular visits to upper New York State. The Rosses have one child, a boy who was nine years old in November 1978.

At that time, Ross applied for a labor certification for Marfil, an alien, so that he could hire her as a live-in housekeeper. This procedure is required by the Immigration and Nationality Act, which vests in the Secretary of Labor primary responsibility for determining whether aliens should be allowed to enter the country "for the purpose of performing skilled or unskilled labor." In order for an alien to be admitted for this purpose, the Secretary must certify that "there are not sufficient workers in the United States who are able, willing, qualified, ... and available," and that employment of the alien "will not adversely affect the wages and working conditions of the workers in the United States similarly employed." See 8 U.S.C. ยง 1182(a)(14).*fn1

In his original application, Ross stated that he travelled a great deal on business, that his wife usually joined him on business trips, and that he frequently entertained at home; he asserted that a live-in housekeeper was a "necessity" for him and his wife. In March 1979, the Certifying Officer of the Department of Labor issued a Notice of Findings, denying Ross's application. The reasons for denial included the following:

(The applicable regulation) provides that the job opportunity's requirements, unless adequately documented as arising from business necessity, are those normally required for the job in the United States, as defined for the job in the Dictionary of Occupational Titles (DOT).... (The DOT does not require that a housekeeper live in at the employer's premises.) The fact that (Ross's) wife "usually joins (him) on business trips" is not a business necessity; it is a preference. Further documentation is necessary to justify business necessity.

Ross responded to this demand for further documentation by offering two signed statements that reiterated his need for a live-in housekeeper. These statements did not add much to Ross's original assertions, and omitted any mention of Mrs. Ross's economic interest, and substantial work responsibilities, in the two family businesses described above. The Certifying Officer found the additional information inadequate, noting that the "rebuttal does not address the need for business necessity. From the information provided, (Mrs. Ross's) joining her husband on business trips and evening entertainment are considered style of living and personal preference, neither of which can be considered a business necessity." Accordingly, the Certifying Officer denied Ross's application in April 1979.

On May 8, 1979, Ross sought administrative review of this denial by forwarding to the appropriate agency official a "request for review" and "all the documents which accompanied the denial of certification." The "request for review," which focused on the issue of business necessity for the live-in requirement, consisted of five typewritten pages containing substantial and significant further evidence in support of Ross's claim; e. g., that his wife had "invested substantial sums of her separate funds in (the family real estate) business and actively participate(d) in its operation," which required frequent business trips away from home; and that Mrs. Ross had similar duties connected with the family bottled water business. In July 1979, a Hearing Officer affirmed the denial of Ross's application. Relying on the applicable regulation, the Hearing Officer specifically excluded from consideration the new evidence offered by Ross in his May 7 request for review, concluding that "treatment of the new factual assertions ... as either rebuttal evidence or as justification for a remand or a hearing would be wholly inappropriate."

Ross then brought this action to review the denial of his application, and to restrain the Immigration and Naturalization Service from deporting Marfil and her alien husband, Marfil-Sukerman.*fn2 Chief Judge Clarie construed the applicable regulation to require the Hearing Officer to consider the new evidence offered by Ross in his May 7 request for review. The judge therefore vacated the decision of the Hearing Officer and remanded the case to him, with directions to hold "a new hearing ... at which time all available evidence shall be considered."*fn3 From that order, Secretary Marshall and District Director Albina appeal.*fn4


Before addressing the merits of the appeal, we must briefly consider a threshold question of mootness. The parties have informed us that Ross reapplied for a labor certification for Marfil on March 27, 1981, and that this application is now pending. Ross could include in this new application all of the evidence excluded from consideration by the Hearing Officer who reviewed his November 1978 application. The new application does not moot this case, however, because the visas that are issued to aliens upon the granting of labor certifications are allotted on a first-come, first-served basis, according to the date of application for certification. As appellants stated at oral argument, "If (appellees) were to abandon this appeal, and simply go with the new application, they would (be put) ... in a substantially less favorable position." Given this fact, we find that the issues presented are still "live" and that the parties retain a legally cognizable interest in the outcome of the case. United States Parole Commission v. Geraghty, 445 U.S. 388, 395-97, 100 S. Ct. 1202, 1207-08, 63 L. Ed. 2d 479 (1980). Consequently, we conclude that this case is not moot.

Turning to the merits, the key issue on appeal concerns the proper interpretation of the regulation relied on by the Hearing Officer in refusing to consider the additional evidence submitted to him on review of the ...

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