Sun Il Yoo v. Immigration & Naturalization Service

534 F.2d 1325 SUN IL YOO, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. No. 74-2716. United States Court of Appeals, Ninth Circuit. Feb. 2, 1976. Rehearing and Rehearing En Banc Denied June 9, 1976. Ruth Shamir, Los Angeles, Cal., and Bert Greenberg, Beverly Hills, Cal., for petitioner. William D. Keller, U. S. Atty., Los Angeles, Cal., for respondent. OPINION Before ELY and WRIGHT, Circuit Judges, and EAST, * District Judge. ELY, Circuit Judge: 1 This is a Petition for Review which seeks to reverse the decision of the Board of Immigration Appeals denying petitioner's application for an adjustment of status and ordering him deported. For the reasons stated herein, we have concluded that the Petition is well taken. 2 Petitioner entered this country as a non-immigrant student in June, 1968. In October, 1969, a visa petition was filed in his behalf by Mil-Fast, Inc., seeking his classification as a sixth-preference immigrant by virtue of his occupation as a machinist. Because that occupation was then listed by the Labor Department as pre-certified under Schedule C of 29 CFR § 60 , Yoo could have obtained visa preference without showing that he had a…

This is a Petition for Review which seeks to reverse the decision of the Board of Immigration Appeals denying petitioner’s application for an adjustment of status and ordering him deported. For the reasons stated herein, we have concluded that the Petition is well taken.

Petitioner entered this country as a non-immigrant student in June, 1968. In October, 1969, a visa petition was filed in his behalf by Mil-Fast, Inc., seeking his classification as a sixth-preference immigrant by virtue of his occupation as a machinist. Because that occupation was then listed by the Labor Department as pre-certified under Schedule C of 29 CFR § 60 , Yoo could have *1327 obtained visa preference without showing that he had a specific job offer. Under Immigration and Naturalization (INS) regulations, 1 any alien whose occupation and potential employment area were covered by Schedule C would be considered by the INS as having obtained the labor certification required by 8 U.S.C. § 1182 (a)(14). Yoo qualified on both counts and thus was entitled to be certified by the INS once it found that he met the requirements.

In his application, Yoo stated that he had been employed by the Seoul…

Circuit Judge, dissenting:

I must respectfully dissent.

The majority recognizes that for the government to be estopped from denying petitioner the benefit of pre-certification in the consideration of his application for permanent residence, we must find “affirmative misconduct” on its part. I do not believe that an unexplained ten-month delay in processing constitutes the requisite showing under the test we recently approved in Santiago v. INS, 526 F.2d 488 (9th Cir. 1975) (en. banc).

The substance of the misconduct condemned by the majority consists of a period from March 23, 1970 to January 8, 1971 during which petitioner’s application was not acted upon. 1 Despite the absence of facts on the record relative to this period, the majority concludes that it represents “an unreasonable delay” without “apparent justification.” While I too can only hypothesize on the reasons for the delay, I suggest it may not have been without justification.

Petitioner’s original application stated that he had been employed as a machinist in Seoul, Korea. The result of an INS investigation contradicted this statement. Petitioner then submitted evidence to rebut the investigative report. His…