Interim Decision #1996

Interim Decision #1996

MATTER OF ANTTALAINEN

In Deportation Proceedings

A-19160785

Decided by Board August 6, 1969

Because deportation proceedings are not the proper forum, request of

respondent on appeal in such proceedings is denied for reopening solely

for the issuance of subpoenas to officials of the Department of Labor with

which to challenge in judicial proceedings that Department's denial of her

request for a labor certification, upon the issuance of which depends her

eligibility for adjustment of status under section 245 of the Immigration

and Nationality Act, as amended.

CHARGE :

Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251]—Nonimmigrant

temporary visitor—remained longer.

ON BEHALF OF RESPONDENT: Donald L. Ungar, Esquire

517 Washington Street

San Francisco, California 94111

On May 9, 1969, the special inquiry officer granted the respondent the privilege of departing from the United States voluntarily

without expense to the Government on or before June 8, 1969, or

any extension beyond such date as might be granted by the District Director, and under such conditions as the District Director

should direct. The special inquiry officer also provided for the respondent's deportation from the United States to Finland, on the

charge contained in the order to show cause, in the event of her

failure so to depart. The appeal from his decision, which brings

the case before this Board for consideration, will be dismissed.

The record relates to a female alien, a native and citizen of

Finland, who last entered the United States on or about March 7,

1968. She was then admitted as a visitor for a temporary period

until June 30, 1968. She was thereafter authorized to remain in

the United States in that status until December 30, 1968. She has,

however, remained here since the latter date without authority.

The foregoing establishes the respondent's deportability on the

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Interim Decision #1996

charge contained in the order to show cause. This was conceded

in the course of the hearing before the special inquiry officer,

when the respondent was represented by counsel, It stands unchallenged on appeal. This aspect of the case, accordingly, needs

no further discussion.

The special inquiry officer has granted the respondent the privilege of departing from the United States voluntarily without expense to the Government. Suffice it to say, in this connection, that

the record ,before us supports the special inquiry officer's action

n this respect.

This appeal is concerned solely with the special inquiry officer's

ienial of the respondent's request for the issance of subpoenas

o appropriate officials of the Department of Labor. The purpose

d this request was to develop the record with respect to their reusal to issue the respondent a labor certification for employment

s a "live-in" domestic by a Mr. & Mrs. C. David Robinson of

an Francisco, for whom the respondent presently works in that

apacity. According to the record, the reason for the denial of the

ibor certification was that the position held by the respondent

mild be filled by a "live-out" domestic, and that qualified workers

ere available in the area involved (p. 4).

The point was raised in this deportation proceeding on the

Rory that if the respondent were issued a labor certification, she

ould be entitled to adjustment of her status to that of a permamt resident under section 245 of the Immigration and Nationalr Act (8 U.S.C. 1255). Concomitantly, it was urged that she

ould be permitted to create a record herein on the basis of

lich she can challenge the denial of the labor certification in ju;jai proceedings. We, however, agree with the special inquiry

icer that these proceedings do not afford the proper forum for

creation of a record on that issue.

The law (section 212(a) (14), Immigration and Nationality

t; 8 U.S.C. 1182) makes the issuance of a labor certification a

tter solely for the consideration of the Department of Labor.

cording to the record, that Department has stated the reasons

its denial of the respondent's request for such a certification,

i she is aware of them. If the respondent believes those reaIs are groundless, it is to the Department of Labor that she

st look for redress. This administrative tribunal is not the

per forum for review thereof. There is, accordingly, no reason

.eopen these proceedings to take testimony on this issue.

'he respondent cites the case of Dong Yup Lee v. INS, 407

d 1110 (9 Cir., 1969), as authority for the proposition that an

.

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Interim Decision #1996

alien whose eligibility for permanent resident status depends

upon the issuance of an employment certification may, in a deportation hearing, challenge the denial by the Secretary of Labor of

a request for the certification. For the following reasons, we find

that case inapposite here.

Dung Yup Lee was admitted to the United States as one of the

musicians accompanying a touring Korean dance group, in the

status of a nonimmigrant alien of distinguished merit and ability

(section 101 (a) (15) (H) (i) of the Immigration and Nationality

Act; 8 U.S.C. 1101). He subsequently sought to have himself classified as a preference quota immigrant because of his "exceptional ability in the arts," under section 203(a) (3) of the Immigration and Nationality Act; 8 U.S.C. 1153. His petition for such

classification was denied by the Service, for reasons which need

not be discussed here.

Lee's case subsequently came before this Board for consideration on appeal from a special inquiry officer's order denying his

application for adjustment of his status to that of a permanent

resident (A-14609823, November 21, 1967) and thereafter

(April 15, 1969) on a motion for reconsideration of the same

issue. In both instances, we pointed out that since Lee was not

the beneficiary of an approved visa petition, he was ineligible for

adjustment of his status to that of a permanent resident because

an immigrant visa was not readily available to him. We did not

on either occasion review the action of the Service in denying the

respondent's visa petition, for the reason that under the regulations (8 CFR 204.1 (c) and 103.1(e)) we had no authority to do

so. Clearly, the limits of this Board's jurisdiction are as described

in 8 CFR 3.1 (b),' and counsel has pointed to no provision thereof

which gives us the authority he would here ascribe to us. The

only additional comment required in this respect is that the court

itself in the Lee case (p. 1112) stated that it did not and could

not consider the correctness of the Service decisions to deny the

alien's visa petition; and that accordingly, as well as in view of

the foregoing opinion, we approve the special inquiry officer's denial of the subpoenas requested by the respondent.'

ORDER: It is ordered that the appeal be and the same is

hereby dismissed.

2

Mater of DeG—, 8 I. & N. Dec. 325, 335.

See Alonzo v. INS, 408 F.2d 667, 668 (7 Cir., 1969).

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