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December 12, 1985

K.C.P. FOOD CO., INC., Plaintiff, against CHARLES C. SAVA, District Director, Immigration & Naturalization Service, Defendant

The opinion of the court was delivered by: LEISURE

LEISURE, District Judge :

This matter is before the Court on plaintiff's motion for summary judgment pursuant to Fed. R. Civ. P. 56 and defendant's motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). Plaintiff seeks district court review of a final decision by the Associate Commissioner for Examinations of the Immigration and Naturalization Service ("INS" or the "Service"), which denied plaintiff's petition to grant the beneficiary, Christoforos Bollas ("Bollas"), preference status for the issuance of a non-immigrant visa on the basis of his profession or occupation. 8 U.S.C. § 1153(a)(6).

 The appeal herein is properly reviewable by the Court pursuant to the Administrative Procedure Act. 5 U.S.C. §§ 701, et. seq. Plaintiff asserts two claims on this appeal. First, that the denial by the defendant of the sixth preference visa petition is contrary to applicable laws and regulations and is unsupported by substantial evidence. Plaintiff claims that the administrative agency decision should be set aside as an abuse of discretion pursuant to 5 U.S.C. § 706(2)(A)&(E). Second, plaintiff asserts that the denial by defendant discriminates against the plaintiff as a small business in violation of the Fifth Amendment Due Process Clause.

 For the following reasons, plaintiff's request for summary judgment is denied and defendant's cross-motion is granted.


 K.C.P. Food Co., Inc. ("K.C.P.") is a New York corporation that operates a coffee shop and restaurant under the name of Twin Donut Shop in New York City. On April 13, 1983, K.C.P. filed an alien employment certification with the United States Department of Labor ("DOL"). This application constitutes evidence of an offer of employment pursuant to 20 C.F.R. § 656.20(c). The application, submitted for Bollas' benefit, stated that plaintiff would employ Bollas as a Greek Specialty Cook at a salary of $260 per week.

 On June 9, 1983, the DOL certified and approved the application pursuant to 8 U.S.C § 1182(a)(14). The approval process includes a certification by the DOL that there are insufficient United States workers to fill the position offered and that the employment of the alien by plaintiff will not adversely affect the wages and working conditions of workers in the United States who are similarly employed. 8 U.S.C. § 1182(a)(14).

 On July 21, 1983, plaintiff petitioned the Service on behalf of Bollas to classify his status as eligible for a sixth preference visa pursuant to Section 203(a)(6) of the Immigration and Nationality Act (the "Act"), 8 U.S.C. § 1153(a)(6). This section provides that the sixth preference status is

available . . . to qualified immigrants who are capable of performing specified skilled or unskilled labor, not of a temporary or seasonal nature, for which a shortage of employable and willing persons exists in the United States.

 Plaintiff submitted the DOL certification along with various affidavits documenting the beneficiary's pertinent work experience and asserted that it earned an income of $120,000 per year. Certified Administrative Record ("Record") at 14.

 On December 12, 1983, the INS returned the petition and requested that further documentary evidence be submitted which showed plaintiff's ability to pay the proffered wage. See Defendant's Memorandum of Law at 17 n.*. Plaintiff filed its most recent corporate tax return on May 2, 1984, nearly five months after the INS request. The INS District Director denied the petition on May 25, 1984, based on plaintiff's failure to establish the requisite financial ability to meet the proffered wage. Record at 8-9. In reaching that decision, he considered evidence submitted by plaintiff which indicated that although the beneficiary was offered a yearly wage of $13,520, the net income of the Twin Donut Shop at the end of the fiscal year for September 1983 was $8,541.75. Record at 9.

 Plaintiff filed an appeal of the District Director's decision to the Associate Commissioner on May 31, 1984, pursuant to 8 C.F.R. § 103.3. Plaintiff asserted that the corporate tax return, submitted as evidence of financial ability to pay Bollas the proffered wage, did not reflect the corporation's "true" ability to pay. Record at 6-7. The Associate Commissioner affirmed the District Director's denial of the petition and dismissed the appeal on July 17, 1984. The Associate Commissioner found that the corporate tax return showed an 88% drop in inventory from the beginning to the end of the fiscal year. He also found it unlikely that plaintiff would triple its income in order to meet the additional payroll burden of the proffered wage to the beneficiary. Record 1-2. Plaintiff commenced the present action on November 21, 1984.


 Review by the Court of denials of preference visas is limited to a determination of whether the denial was an abuse of discretion. Song Jook Suh v. Rosenberg, 437 F.2d 1098, 1102 (9th Cir. 1971). The Court's determination must be made on the administrative record that was before the Service. Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305, 1308 (9th Cir. 1984). Abuse of discretion may be found only if there is no evidence to support the decision. Id., quoting Song Jook Suh, 437 F.2d at 1102. In general, the Court must give deference to the construction accorded to a statute by the agency charged with its administration. De Los Santos v. INS, 690 F.2d 56, 59 & 60 (2d ...

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