Adelfo V. MACEREN, Appellee, v. DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE, LOS ANGELES, CALIFORNIA, et al., Appellants.
No. 72-2818.
United States Court of Appeals, Ninth Circuit.
Oct. 25, 1974.
Rehearing Denied Feb. 20, 1975.
509 F.2d 934
In view of section 8(a) of the agreement, which makes all warranties effective as if made on and as of the closing date, it is clear that contrary to the district court‘s opinion, the warranty as to the collection of receivables should also run from the closing date. The terms of the warranty do not indicate that it is to be an exception from the general rule enunciated in section 8(a). On the contrary, the business realities of the exchange required that MGM be assured that when it parted with its stock at the closing, the receivables it would be acquiring would be paid within a reasonably short time.
Since 67% of the receivables werе not collected because they were extinguished by returns, which are expected, to a degree, in the record industry, we would not grant rescission on this ground without remanding to the district court for a determination of whether that figure was unreasonably high. However, in view of our holding that MGM is entitled to rescission on the ground that the Ross brothers failed to disclose the 70,000 no-charge records, such a remand is unnecessary.
IV.
The district court granted the Ross brothers $200,000 in damages on the ground that MGM had breached its obligation under the loan agreement to supply the Ross companies with financing of up to $500,000. However, since the district court should have granted MGM‘s claim for rescission of the agreement, it should also have dismissed the Ross brothers’ breach of contract claim.
The decision of the district court is reversed.
James R. Dooley, Asst. U. S. Atty. (argued), Los Angeles, Cal., for appellants.
Sidney Broffman (argued), Los Angeles, Cal., for appellee.
Before MOORE,* BROWNING and WALLACE, Circuit Judges.
MOORE, Circuit Judge:
The Immigration and Nationality Act provides that “[t]he number of aliens who may be issued immigrant visas or who may otherwise acquire the status of an alien lawfully admitted to the United States for permanent residence . . . shall not in any fiscal year exceed a total of 170,000.”
Immigrants who fit this description are given what the Immigration and Naturalization Service refers to as a “third preference,” i. e., third most preferential treatment is given to their applications for immigrant visas after the applications of the spouses and unmarried children of United States citizens and the spouses and children оf aliens lawfully admitted to the United States for permanent residence.
If an alien petitions the Attorney General for a “third preference,” the Attorney General is required to consult with the Seсretary of Labor before making a recommendation to the Department of State.
Adelfo V. Maceren is a native and citizen of the Philippine Islands, born February 23, 1933. He entered the United States as a visitor on March 30, 1968, and has remained in this country continuously since that date. He holds a Bachelor‘s Degree in Music and was a music teacher, on the secondary school
The Service referred the case to the Labor Department which, on November 18, 1969, issued a certification to the Service declaring that Maceren‘s admission to the United States as an immigrant would not “adversely affect the wages and working conditions of workers in the United States similarly employed.” Upon receipt of the labor certification, the Service approved Maceren‘s petition on November 28, 1969, and granted him the status of a member of the professions along with the third preference which such status entails.
Even though Maceren succeeded in obtaining his classification as а preferred immigrant, such classification did not immediately make him a lawful permanent resident of the United States. He had to wait until an immigrant visa number became available. Because of the backlog of Philippine nationals seeking admission to the United States as third-preference immigrants, no visa number could actually be assigned to Maceren until February 1971. On August 5, 1970, the Immigration and Naturalization Service informed Maceren that a visa number could be assigned him if he filed the proper application and appropriate supporting documents. Maceren followed all instructions аnd, on September 15, 1970, filed the application which the Service sent him.
The Service immediately acknowledged receipt of the application for permanent residence. Nothing more was done until Maceren received a notice to appear for an interview on February 8, 1971, and for a medical examination on February 17, 1971. Customarily, these are the final steps in granting permanent residence. At the interview, however, Maceren was informed that his petition for a preference had “expired” and permanent residence could not be granted.
On May 25, 1971, Maceren filed a complaint in the District Court praying, inter alia, that the court order the State Department to allocate a visa number to him nunc pro tunc; that the District Director, Immigration and Naturalization Service, Los Angeles, California, grant his application for adjustment of status to that of a permanent resident; and that the Secretary of Labor and the District Director consider the visa petition and the underlying labor certification revalidated and extended to a date when Maceren‘s application for adjustment of status is granted.
On September 7, 1971, appellants filed a motion to dismiss and а motion for summary judgment. On May 25, 1972, the District Court filed a Memorandum and Order denying appellants’ motions. On May 26, 1972, judgment was entered against appellants and the matter was remanded to them with instructions promptly to take all steps necessary to process Maceren‘s application for adjustment of status.
The dispute in this case revolves around certain regulations promulgated by the Secretary of Labor and by the Attorney General through which they have attempted to fulfill their responsibilities under the
Until March 30, 1971, the Attorney General applied a rule which required aliens seeking third preferences to renew their petitions annually or face denial on the ground that their petitions had lapsed. For aliens requiring individual certificates the one-year period of validity, even though it applied directly to the preference petition, ran not from the date on which the alien received approval of his petition but rather from the
Throughout this period the Secretary of Labor never limited the validity of an alien‘s labor certificate to any specific time period. In other words, а labor certificate never automatically “expired” at any time after issue.4 On February 4, 1971, the Secretary of Labor changed his approach and declared that “[l]abor certifications . . . shall be valid for 1 year after the date that the certification was actually made and revalidation shall be required after that period. . . .”
Finally, on March 30, 1971,
The net effect of these changes, at least in the general case, has been no change at all. The approval, by the Attorney General, of an alien‘s petition for preferential classification is still valid for a period of one year from the date of certification by the Secretary of Labor just as it was under the old rule. This is not to say, however, that the regulation change has not given rise to many difficulties particularly with respect to those applications that were outstanding when the regulations were revised.
On November 17, 1970, one year after Maceren had been issued a labor certificate, Maceren‘s preference petition expired under the terms of the Attorney General‘s regulation. The Immigration and Naturalization Service, however, took no notice of this expiration. On January 26, 1971, the Service summoned
The expiration of the approval does not decide this case because the March 30, 1971, revision of § 204.4(b) stipulates that:
The approval of a petition to classify an alien under section 203(a)(3) [third perference status as a professional] which had heretofore become invalid solely because the date until which the approval was valid had lapsed, is hereby reinstated provided the conditions of this paragraph are met.
There has never been any question that Maceren has complied with all legal requirements and would have received an immigrant visa but for the fact that approval of his preferential status expired. Thus, § 204.4(b)‘s retroactivity clause would appear to reactivate the approval of Maceren‘s petition provided the conditions of that regulation are met.
The Service argues that for reactivation to be successful, Maceren‘s petition must be supported by a valid and unexpired labor certification. Moreover, although there was no time limit on the labor certificate first granted to appellee, labor certificates acquired a one-year term on February 4, 1971, when
On the other hand, Maceren argues that the new labor regulation which limits the certificate‘s period of validity does not apply to him because his labor certificate was valid and outstanding without time limitation when § 60.5(b) was revised.
For the reasons set forth below we find in favor of the appellee and affirm the decision of the District Court.
Under normal circumstances the regulations promulgated by the Secretary of Labor or his designated officers must be upheld if they are founded on considerations rationally related to the statute he is administering. Cf. Boske v. Comingore, 177 U.S. 459, 470 (1900). The one-year period оf validity instituted by the revised version of § 60.5(b) is not unreasonable when applied prospectively to new preference petitions in view of the Secretary‘s duty to advise the Attorney General of the condition of a constantly changing labor market. A one-year time limitation on the labor certificate‘s validity will often permit the Secretary to re-evaluate the potential contribution of an aspiring immigrant, in the light of ephemeral labor conditions, before permanent resident status is finally granted.
A new and disturbing element is introduced into the calculus, however, when the Secretary аttempts to apply such a rule retrospectively to those labor certificates which have been previously granted or reinstated and which continue to support preference petition approvals which are the subject of pending adjudication by the Secretary of State who must grant or deny immigrant status.
In Addison v. Holly Hill Fruit Prods., Inc., 322 U.S. 607, 620 (1944), the Supreme Court observed that “law should avoid retroactivity as much as possible.” See also Securities & Exchange Commission v. Chenery Corp., 332 U.S. 194, 203 (1947). In applying this adage the lower courts have sought to balance the possible inequitable results produced by the retroactive application of an administrative rule against the demands of statutory design.
Which side of this balance preponderates is in each case a question of law, resolvable by reviewing courts with no overriding obligation of deference to the agency decision, NLRB v. Guy F. Atkinson Co., 195 F.2d 141 (9th Cir. 1952); and courts have not infrequently declined to enforce adminis
It is true that the Secretary of Labor has been granted discretionary рower to make rules that protect the American economy from job competition and from adverse working standards as a consequence of immigrant workers entering the labor market, 1965 U.S.Code, Congressional and Administrative News pp. 3333, 3334. Cf. Cobb v. Murrell, 386 F.2d 947 (5th Cir. 1967); Braude v. Wirtz, 350 F.2d 702 (9th Cir. 1965). But it is equally clear that the Congressional purpose is not substantially enhanced by requiring
On the other hand, the unfair prejudice to the holder of the previously issued labor certificate is manifest, particularly with respect to those aliens seeking recognition of their prоfessional status who had been permitted to enter this country as temporary visitors while their visa applications were pending so that this country might profit from their skills without delay. In some cases, if the applicant was a citizen from a country from which many wished to emigrate, the wait for a visa could take several years. During this time aliens would have been practicing their profession, establishing themselves and their families, marrying, becoming absorbed into the economy, or otherwise planting firm roots. Retroactive application of § 60.5(b) would make deportation a certainty for thosе, like Maceren, who are unable to obtain revalidation of their certificates due to a change in labor conditions.7
Even if we were to hold that the balance between individual hardship and the demands of statutory design tipped in the direction of the appellants, their integrated interpretation of the two relevant regulations,
The Immigration and Naturalization Service argues that the original approval of Maceren‘s petition, which expired on November 17, 1970, was not reinstated by the retroactivity clаuse in
The Service‘s interpretation of the relationship between
Where the retroactivity provisions of sections 204.4(b) and 60.5(b) appear to be irreconcilable, the earlier regulation should give way to the later in time. We therefore hold that
Because we feel that the retroactive application of
WALLACE, Circuit Judge (dissenting):
I respectfully dissent.
The majority affirms the district court‘s judgment ordering the Immigration and Naturalization Service to grant Maceren permanent resident status primarily because it concludes that the retrоactive application of
I disagree that the retroactive application of section 60.5(b) would be inconsistent with the provisions of section 204.4(b) or that the two regulations are irreconcilable. Under the provisions of
Subsequent to the issuance of section 60.5(b), on Mаrch 30, 1971, the Immigration and Naturalization Service revised section 204.4(b) to provide that a preference petition remains valid as its supporting labor certification is valid, rather than for the one-year period provided previously. The regulation further provides that a preference petition “which had heretofore become invalid solely because the date until which the approval was valid had lapsed, is hereby reinstated provided the conditions of this paragraph are met.” One of these conditions is that the preference petition be supported by a valid and unexpired labor certification.
The majority reasons that this savings clause is inconsistent with section 60.5(b), since the preference petition would have expired prior to March 30 only if its supporting labor certification had been signed more than a year prior to that date. If section 60.5(b) is ap
The majority overlooks the faсt, however, that between February 4, the date that the new section 60.5(b) became effective, and March 30, the date the new section 204.4(b) became effective, an immigrant could have revalidated his labor certification. Thus, on March 30 he would have had a valid labor certification but an expired preference petition. The savings clause by its express terms applies to these individuals.
The fact situation in this case demonstrates how the regulation was designed to work. Maceren‘s preference petition expired on November 17, 1970, but his labor certification remainеd valid until February 4, when it terminated automatically under the new regulation. If Maceren had revalidated his labor certification between February 4 and March 30, his preference petition would have been reinstated under the savings clause.
Although this construction of the regulations limits the scope of the savings clause to a short period of time, it gives effect to all of the terms of both regulations. The majority‘s construction requires the court to give no effect to the language in section 60.5(b) that makes that regulation applicable to “outstanding” labor certifications. Under established rules of construction, we are to give effect to all the words of a statute and to harmonize all the statutes dealing with one subject. Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 633 (1973); Jarecki v. G. D. Searle & Co., 367 U.S. 303, 307 (1961); United States v. Menasche, 348 U.S. 528, 538-539 (1955); Ruiz v. Morton, 462 F.2d 818, 819-820 (9th Cir. 1972), aff‘d, 415 U.S. 199 (1974). The majority needlessly fails to apply this rule.
I would conclude that Maceren was not entitled to permanent resident status because his preference petition had expired and because he failed to revalidate his labor certification. I, therefore, would reverse.
Robert F. WILLIAMS, Appellant, v. TRANS WORLD AIRLINES, Appellee.
No. 84, Docket 74-1469.
United States Court of Appeals, Second Circuit.
Argued Sept. 30, 1974.
Decided Jan. 10, 1975.
Notes
(a) Aliens whо are subject to the numerical limitations specified in section 1151(a) of this title shall be allotted visas or their conditional entry authorized, as the case may be, as follows:
(1) Visas shall be first made available, in a number not to exceed 20 per centum of the number specified in section 1151 (a) (ii) of this title, to qualified immigrants who are the unmarried sons or daughters of citizens of the United States.
(2) Visas shall next be made available, in a number not to exceed 20 per centum of the number specified in section 1151 (a) (ii) of this title, plus any visas not required for the classes specified in paragraph (1) of this subseсtion, to qualified immigrants who are the spouses, unmarried sons or unmarried daughters of an alien lawfully admitted for permanent residence.
(3) Visas shall next be made available, in a number not to exceed 10 per centum of the number specified in section 1151 (a) (ii) of this title, to qualified immigrants who are members of the professions, or who because of their exceptional ability in the sciences or the arts will substantially benefit prospectively the national economy, cultural interests, or welfare of the United States.
(4) Visas shall next be made available, in a number not to exceed 10 per centum of the number specified in section 1151 (a) (ii) of this title, plus any visas not required for the classes specified in paragraphs (1) through (3) of this subsection, to qualified immigrants who are the married sons or the married daughters of citizens of the United States.
(5) Visas shall next be made available, in a number not to exceed 24 per centum of the number specified in section 1151 (a) (ii) of this title, plus any visas not required for the classes specified in paragraphs (1) through (4) of this subsection, to qualified immigrants who are the brothers or sisters of citizens of the United States.
(6) Visas shall next be made available, in a number not to exceed 10 per centum of the number specified in section 1151 (a) (ii) of this title, 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.
Although it could, under different circumstances, be argued that a labor certification pursuant to
The аpproval of a petition to classify an alien as a preference immigrant under section 203 (a) (3) or (6) of the Act shall remain valid for a period of 1 year from the date of any individual certification issued by the Secretary of Labor pursuant to section 212(a) (14) of the Act; if a blanket certification has been issued covering the alien‘s profession or occupation, the approval shall remain valid for a period of 1 year from the date of approval.