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ELATOS RESTAURANT CORP. v. SAVA

March 18, 1986

ELATOS RESTAURANT CORP., d/b/a CORNER LUNCH, Plaintiff, against CHARLES C. SAVA, District Director, Immigration & Naturalization Service, Defendant


The opinion of the court was delivered by: STEWART

MEMORANDUM DECISION

STEWART, District Judge:

 Plaintiff Elatos Restaurant d/b/a Corner Lunch ("plaintiff" or "petitioner") bring this action against defendant Charles C. Sava, New York District Director of the Immigration & Naturalization Service ("INS"), seeking review of a final decision by INS Regional Commissioner Stanley E. McKinley ("Regional Commissioner") that denied plaintiff's petition to grant George Milatos ("beneficiary") preference status for the issuance of an immigrant visa on the basis of his profession or occupation under the immigration and Nationality Act, 8 U.S.C. § 1153(a)(6). Plaintiff moves for summary judgment pursuant to Fed. R. Civ. P. 56. Defendant cross-moves for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). We deny plaintiff's motion and grant defendant's cross-motion.

 BACKGROUND

 On July 23, 1981, plaintiff, a New York corporation doing business as a restaurant in Queens, New York, under the trade name of Corner Lunch, filed an application for alien employment certification with the United States Department of Labor ("DOL"). In its application, plaintiff stated that it needed a Greek specialty cook with four years' experience. Plaintiff named George Milatos, a resident of Nassau, Bahamas, as the beneficiary and indicated that it would employ him full-time at a weekly salary of $230. In support of plaintiff's application, the beneficiary indicated that he had worked for Nassau Airport Caterers Ltd. in the Bahamas from 1963 until June 1978, preparing and cooking specified Oriental and Greek dishes. An unsworn letter dated October 31, 1980 from the General Manager of Nassau Airport Caterers, George Skandaliarius, verified the beneficiary's employment "as a cook with a wide knowledge of international cuisine."

 Following the DOL's certification and approval of the application, plaintiff petitioned the INS on April 8, 1982 to classify the beneficiary's status as eligible for a sixth preference visa. The petition, which was accompanied by the approved labor certification including the October 31, 1980 letter from Skandaliarius, indicated that plaintiff had a net annual income of $95,000. On June 17, 1982, the District Director denied the petition on the ground that plaintiff had failed to establish that the beneficiary had "any experience cooking primarily Greek and Oriental foods, as required by the labor certification."

 A June 30, 1962 appeal to the Regional Commissioner was dismissed on March 11, 1983 because of plaintiff's failure to provide documentation of the beneficiary's experience. Plaintiff requested reconsideration of this decision and enclosed an August 16, 1982 letter from Skandaliarius stating that the beneficiary had been employed by his company, El Toro Restaurant, in the Bahamas as a Greek specialty cook for the past five years. In response, the Regional Commissioner withdrew his earlier decision and remanded the case to the District Director for a new decision.

 On July 22, 1983, the District Director denied plaintiff's petition a second time. Apart from plaintiff's failure to submit verification of the alien's qualifications in the proper affidavit form, see 8 C.F.R. § 204.2(i) the District Director found that plaintiff had also failed to offer evidence sufficient to establish that the beneficiary had the requisite experience required by the DOL certification or that plaintiff could meet the proffered wage. He certification or that plaintiff could meet the proffered wage. He certified his decision for review to the Regional Commissioner. Plaintiff, who had been proceeding pro se, retained counsel in March 1984.

 By letter dated July 12, 1984, the Regional Commissioner advised plaintiff that it had fifteen days to supplement the record with documentary evidence in support of its appeal. Plaintiff responded by submitting two affidavits and its 1982 corporate income tax return. The affidavit submitted from Skandaliarius stated that he was the general manager of Nassau Airport Caterers and owner of El Toro Restaurant from 1974 to 1982, and that the beneficiary had in fact been employed by El Toro for four years rather than five years as previously stated in his August 16, 1982 letter. The second affidavit was submitted from Bernard Murphy, who stated that he was the Head Chef at International Airport Caterers, that he had worked with the beneficiary from July 1985 until June 1978, and that the beneficiary was "a cook of international cuisine specialising [sic] in Greek Food." Plaintiff's tax return reflected a net taxable income of $5,717.49.

 After consideration of the supplemented record, the Regional Commissioner affirmed the decision of the District Director and dismissed plaintiff's appeal on September 28, 1984. The Regional Commissioner found that, since the proffered wage was twice plaintiff's taxable income, plaintiff had failed to establish its ability to pay the beneficiary. He also found that the conflicting statements in the record failed to establish the required experience.

 In commencing the present action on November 21, 1984, plaintiff contends that the denial of its petition is unsupported by reasonable, probative, and substantial evidence and constitutes an abuse of discretion by the INS. Plaintiff further contends that the denial discriminates against plaintiff as a small business in violation of the due process clause.

 DISCUSSION

 Under the Immigration and Nationality Act (the "Act"), 8 U.S.C. § 1153, the INS is accorded broad discretion to grant or deny visa preference classifications. See North American Industries, Inc. v. Feldman, 722 F.2d 893, 898 (1st Cir. 1983); Mila v. District Director, 678 F.2d 123, 125 (10th Cir. 1982), cert. denied, 459 U.S. 1104, 74 L. Ed. 2d 952, 103 S. Ct. 726 (1983); Delgado v. INS, 473 F. Supp. 1343, 1348 (S.D.N.Y. 1979). As a result, review of such decisions by the district courts is limited to determining from the administrative record whether the INS abused its discretion. Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305, 1308 (9th Cir. 1984). The reviewing court may find abuse of discretion if an INS decision is "'[un]supported by reasonable, substantial...evidence on the record considered as a whole.'" De Los Santos v. INS, 525 F. Supp. 655, 660 (S.D.N.Y. 1981) (quoting Bastidas v. INS, 609 F.2d 101, 104 (3d Cir. 1979)), aff'd, 690 F.2d 56 (2d Cir.1982). See also Wong Wing Hang v. INS, 360 F.2d 715, 717 (2d Cir. 1966).

 In reviewing INS decisions, however, the court must bear in mind two considerations. First, "control over matters of immigration is a sovereign prerogative." Landon v. Plasencia, 459 U.S. 21, 34, 74 L. Ed. 2d 21, 103 S. Ct. 321 (1982). While the court "must not yield to the temptation to rubberstamp all decisions," Rosedale & Linden Park Co. v. Smith, 595 F. Supp. 829, 834 (D.D.C. 1984), it must nonetheless give deference to the INS's interpretation of the statute that it is charged by law with administering and enforcing. See De Los Santos, 690 F.2d 56, 59-60 (2d Cir. 1982); Nazareno v. Attorney General, 168 U.S. App. D.C. 22, 512 F.2d 936, 939-40 (D.C. Cir.), cert. denied, 423 U.S. 832, 46 L. Ed. 2d 49, 96 S. Ct. 53 (1975). In this regard, INS interpretations need not be the best possible interpretations, and the court should not overturn a decision "simply because it may prefer another interpretation of the statute," INS v. Jong Ha Wang, 4 ...


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