Yui Sing Tse and Debbie Siu-Mai Tse v. Immigration and Naturalization Service

596 F.2d 831 YUI SING TSE and Debbie Siu-Mai Tse, Petitioners-Appellants, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee. No. 77-1075. United States Court of Appeals, Ninth Circuit. March 26, 1979. Robert O. Wells, Jr. (argued), Moriarty, Long, Mikkelborg & Broz, Seattle, Wash., for petitioners-appellants. Lauren S. Kahn (argued), Dept. of Justice, Washington, D. C., Philip Wilens, Dept. of Justice, Washington, D. C., for respondent-appellee. On Petition for Review of Deportation Order of the Board of Immigration Appeals. Before BROWNING and WALLACE, Circuit Judges, and WATERS * , district judge. BROWNING, Circuit Judge: 1 Petitioner appeals from an order of the Board of Immigration Appeals denying his application for adjustment of status, directing deportation, and granting voluntary departure. 1 2 Petitioner was admitted to the United States on a student visa in January, 1971. In March, 1973, on application of a Chinese restaurateur in Vancouver, Washington, the Department of Labor issued an alien employment certification under section 212(a)(14) of the Immigration and Naturalization Act, 8 U.S.C. § 1182 (a)(14) (Supp.1978), authorizing petitioner's…

Petitioner appeals from an order of the Board of Immigration Appeals denying his application for adjustment of status, directing deportation, and granting voluntary departure.

Petitioner was admitted to the United States on a student visa in January, 1971. In March, 1973, on application of a Chinese restaurateur in Vancouver, Washington, the Department of Labor issued an alien employment certification under section 212(a)(14) of the Immigration and Naturalization Act, 8 U.S.C. § 1182 (a)(14) (Supp. 1978), authorizing petitioner’s employment as a Chinese specialty cook.

Petitioner then applied under section 245 of the Act, 8 U.S.C. § 1255 (Supp.1978), for adjustment of status to that of a permanent resident claiming entitlement to a sixth preference immigrant visa under section 203(a)(6) of the Act, 8 U.S.C. § 1153 (a)(6) (Supp.1978). Section 203(a)(6) makes such visas available to persons, “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;” provided they have complied with the labor certification requirements of section…

dissenting:

I respectfully dissent.

While this case presents a complicated situation, its complexity is largely due to the mendacity of the petitioner. To secure his visa, he certified that he was a civil servant and that he desired to come to the United States in order to further his education. To be sure that a prospective student will not be a drain on the labor market, the application form contains the question: “Who will pay for your transportation and expenses?” He responded, “Father.” It was based upon this visa application dated November 17, 1970, that the petitioner was allowed originally to come to the United States of America. He did so and apparently began his studies.

Approximately one and a half years after his entry into the United States, he filed an application with the United States Department of Labor in an effort to obtain a labor certificate. This certificate, if validly secured, would allow him to apply for a different visa which would then allow him to work. Under his prior visa, he could not legally do so.

This latter application adequately demonstrates what had actually occurred. In violation of the laws of the United States, he was in fact already…