Robert Yiu Tsang Cheung v. District Director, Immigration and Naturalization Service

641 F.2d 666 Robert YIU TSANG CHEUNG, Plaintiff-Appellant, v. DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE, Defendant-Appellee. No. 77-3033. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 7, 1979. Decided Oct. 16, 1980. As Amended March 13, 1981. 1 Max H. Danziger, Marina Del Rey, Cal., for plaintiff-appellant. 2 Eva Halbreich, Asst. U. S. Atty., Los Angeles, Cal., for defendant-appellee. 3 Before SNEED and TANG, Circuit Judges and SPENCER WILLIAMS * , District Judge. SPENCER WILLIAMS, District Judge: 4 Robert Yiu Tsang Cheung appeals a decision of the United States District Court for the Central District of California granting summary judgment to appellees. The issue in this case is whether a professional who intends to practice his profession in this country may qualify as a business investor and thereby avoid the labor certification requirement. We hold that a professional may not and affirm the decision of the Immigration and Naturalization Service denying appellant business-investor status. I. FACTS 5 Appellant is a native and citizen of China who resides in San Luis Obispo and who is self-employed as an optometrist. He filed with the…

Robert Yiu Tsang Cheung appeals a decision of the United States District Court for the Central District of California granting summary judgment to appellees. The issue in this case is whether a professional who intends to practice his profession in this country may qualify as a business investor and thereby avoid the labor certification requirement. We hold that a professional may not and affirm the decision of the Immigration and Naturalization Service denying appellant business-investor status.

I. FACTS

Appellant is a native and citizen of China who resides in San Luis Obispo and who is self-employed as an optometrist. He filed with the Immigration and Naturalization Service (INS) on May 30, 1975 for a non-preference status visa, pursuant to 8 U.S.C. § 1153 (a)(8), 1 and on January 12, 1976 for a third preference status visa, pursuant to 8 U.S.C. § 1153 (a)(3). 2 The INS denied his application to obtain non-preference status as a business investor because it found he did not come within the meaning of 8 C.F.R. § 212.8 (b)(4). 3 It denied his petition for a third preference status visa, as a professional, because the Department of Labor could not verify an unavailability of…

dissenting.

I dissent respectfully.

For the purposes of avoiding the labor certification requirement, Cheung falls within the plain meaning of the regulation, 8 C.F.R. § 212.8 (b)(4) (1974):

Although the INS interprets this regulation to exclude professionals, deference need not be given to an agency construction that is clearly “contrary to the plain and sensible meaning of the regulation.” Ruangswang v. INS, 591 F.2d 39, 43 (9th Cir. 1978). The district court reasoned, and I agree, that since professionals were not singled out as excluded from the alien investor exception, they are of necessity included.

Further, the majority implies that this regulation should be construed to exclude professionals because to do otherwise would render it violative of the statute. I do not find this rationale persuasive. The purpose of the labor certification requirement is to avoid the reduction of job opportunities. See H.R.Rep. No. 1365, 82d Cong.2d Sess. (cited in the majority’s opinion). In the instant case, however, the record shows that Cheung would in fact be increasing job opportunities by employing two to three auxiliary persons. Therefore, I see nothing in the statute itself which…