author: COLEMAN, Circuit Judge: CLARK, Circuit Judge

text:
    MARINE WELDING & REPAIR WORKS, INC., Williamson Engine & Supply, Inc., Greenville Manufacturing & Machine Works, Inc., Greenville Propeller Works, Inc., Petitioners-Cross Respondents, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.
    No. 73-2218.
    United States Court of Appeals, Fifth Circuit.
    April 12, 1974.

      William W. Cody, Alan I. Berger, St. Louis, Mo., for petitioners-eross respondents.
    Elliott Moore, Deputy Assoc. Gen. Counsel, N.L.R.B., Washington, D. C., John J. A. Reynolds, Jr., Director N.L.R.B., Region 26, Memphis, Tenn., John Depenbrock, Atty., N.L.R.B., Washington, D. C., for respondent-cross petitioner.
    Before COLEMAN, CLARK and GEE, Circuit Judges.
   COLEMAN, Circuit Judge:

The prologue to the proceedings here under review is to be found in Marine Welding and Repair Works v. National Labor Relations Board, 8 Cir., 1971, 439 F.2d 395. There, the United States Court of Appeals enforced a Board finding that Marine Welding and Repair Works, Inc. and its associated Companies had violated Section 8(a)(3) of the Act by discharging Isiah Layton and Freddie Lee Walker.

That Court said:

“In sum, on this record, we observe conduct by an employer which violated the Act to a degree where we can say with certainty that the employees’ rights to engage in concerted organic zational activity were interfered with and restrained to a point of almost total obliteration”, 439 F.2d at 398.

This precipitated backpay proceedings pursuant to Section 10(c) of the National Labor Relations Act, 29 U.S.C. § 151 et seq. The Board’s Supplemental Decision and Order is reported, 202 NLRB No. 85. Marine Welding and Repair Works, Inc. petitions for review and the Board cross petitions for enforcement. The Order requires the Company to pay Layton $3,456 and Walker $10,312, with interest, for the periods elapsing between the time they were discharged and the subsequent offer of reemployment.

We enforce the order as to Isiah Lay-ton, but deny enforcement as to Freddie Lee Walker, with remand for further proceedings consistent herewith.

The Company raises/numerous objections to computations by which the Board arrived at the amount of the back pay awards: claiming-in some instances that there was no evidentiary support for certain items; in others, that there were mathematically incorrect computations; and in yet others, that the Board failed to give the Company credit for sums clearly established by the evidence. While these items have been ably and vigorously contested at all stages of the proceedings, our review of the record and briefs constrains us to hold that, except as hereinafter set forth, these matters fall within the statutory and credibility discretion conferred on the Board. That the Company was improperly denied the right to adduce certain evidence which might have affected the result is the sole point necessitating further analysis.

The principles governing the determination of the amount of a back pay award are well settled. At the outset, the Board has the burden only to show the gross back .pay due the claimant J. H. Rutter-Rex Manufacturing Company, Inc. v. N. L. R. B., 5 Cir., 1973, 473 F.2d 223, cert. denied 414 U.S. 822, 94 S.Ct. 120, 38 L.Ed.2d 55 (1973). The burden then shifts to the employer to establish affirmative defenses in mitigation of his liability. Mitigation usually assumes any or all of three forms: (1) the unavailability of employment where not caused by discriminatory factors, (2) wilful loss of earnings, and (3) interim earnings which are due to be deducted from the award, N. L. R. B. v. Mooney Aircraft, Inc., 5 Cir., 1966, 366 F.2d 809; N. L. R. B. v. Miami Coca Cola Bottling, 5 Cir., 1966, 360 F.2d 569; N. L. R. B. v. Brown and Root, Inc., 8 Cir., 1963, 311 F.2d 447.

The ultimate issue then becomes, what would not have been taken from the employees if the Company had not contravened the Act, Virginia Electric and Power Company v. N. L. R. B., 319 U.S. 533, 63 S.Ct. 1214, 87 L.Ed. 1568 (1943).

As already indicated, the Company defense in this case was built around all three of these grounds. The major contention is that it was denied a fair hearing because its efforts to subpoena records of the Mississippi Employment Service were defeated by the withdrawal of the subpoena.

At the request of the Company, the Board on March 13, 1972, issued the following subpoena duces tecum (omitting the formal opening and close):

“To Mr. Clarence Morris, Manager, Employment Service, Mississippi Employment Service, 121 S. Harvey Street, Greenville, Mississippi 38701
“YOU ARE HEREBY REQUIRED AND DIRECTED TO APPEAR BEFORE a Trial Examiner of the National Labor Relations Board, at a hearing to be held at Courtroom, Washington County Courthouse in the City of Greenville, Mississippi, on the 15th day of March, 1972, at 9:30 o’clock A.M., of that day, to testify in the Matter of Marine Welding and Repair Works, Inc., et al., Cases Nos. 26-CA-2736, et al.
“And you are hereby required to bring with you and produce at said time and place the following books, records, correspondence and documents :
“A. All records, files, reports, correspondence on the following:
a) Freddie Lee Walker Social Security No. [ XXX-XX-XXXX ]
b) Isiah Layton Social Security No. [ XXX-XX-XXXX ]
and for the period of time from May 5, 1967, through August 13, 1971, showing the dates each appeared and registered for employment referral during said period of time. [Italics added by this Court]
“B. All'records, reports, schedules, summaries, statistics and/or files for the periods of time between May 5, 1967, and August 13, 1971, showing the positions of employment for which each of the above named persons would have been considered. The number of such positions available, the date the positions were available, the location and the approximate wage of said positions, during the periods of time from May 5, 1967, and August 13, 1971.
“C. All records, reports, schedules, summaries and statistics showing, for the type of work indicated below, the number of openings, their location, the approximate rate of pay, and the date said opening became available, during the period of time from May 5, 1967, and ending August 13, 1971; said positions are:
1. Truck driver
2. Laborer
3. Welder’s helper
4. Pipe fitters helpers
5. Painter — and helper
6. Barge cleaner
7. Mechanic — diesel and engine
8. Mechanic’s helper.”

In response to the subpoena, the Mississippi Employment Security Commission presented its claim of privilege, asserting that “Said records and information are required by Section 7411, Mississippi Code of 1942, to be held confidential and shall not be published or opened to public inspection except to the extent necessary for the proper administration of the Mississippi Employment Security Law”.

The law judge granted the claim of privilege and revoked the subpoena. The Board denied the Company’s special appeal, and Board General Counsel refused to seek enforcement of the subpoena in the United States District Court.

Section 7411 of the Mississippi Code of 1942 reads as follows:

“§ 7411. Records and reports.
“Each employing unit shall keep true and accurate work records, containing such information as the commission may prescribe. Such records shall be open to inspection and be subject to being copied by the commission or its authorized representatives at any reasonable time and as often as may be necessary. The commission, board of review, and any referee may require from any employing unit any sworn or unsworn reports, with respect to persons employed by it, which they or any of them deem necessary for the effective administration of this act. Information thus obtained, or obtained from any individual pursuant to the administration of this act, shall, except to the extent necessary for the proper administration of this act, be held confidential and shall not be published or be opened to public inspection (other than to public employees in the performance of their public duties), in any manner revealing the individual’s or employing unit’s identity, but any claimant (or his legal representative) at a hearing before an appeal tribunal or the board of review shall be supplied with information from such records to the extent necessary for the proper presentation of his claim. Any employee or member of the board of review or any employee of the commission, who violates any provisions of this section, shall be fined not less than twenty dollars ($20.00), nor more than two hundred dollars ($200.00), or imprisoned for not longer than ninety (90) days, or both. The commission may make the state’s records relating to the administration of this act available to the railroad retirement board, and may furnish the railroad retirement board, at the expense of such board, such copies thereof as the railroad retirement board deems necessary for its purposes. The commission may afford reasonable cooperation with every agency of the United States charged with the administration of any unemployment insurance law.”

So far as we can ascertain, the Mississippi Supreme Court has never had occasion to construe the nature or scope of the confidentiality conferred by Section 7411. The Code Section mentions only the records kept by an employing unit when those records are furnished the Commission under the terms of the statute. That is not the type of record at issue in this appeal. Nevertheless, we need decide the “confidentiality” issue only to the extent that it is involved in this appeal and we go no further than that. Suffice it to say, we do not regard the statute as creating the privileged status recognized and accorded by the Administrative Law Judge. To say the least, the statute only confers a confidentiality which bans publication or opening of records “to public inspection”. The subpoena-compelled availability of such records in defense of a claim made for a beneficiary of the Act is not expressly covered and should not be implied to bar access to facts relevant to the issue raised by the back pay claim, see United States v. Woodall, 5 Cir., en banc, 1970, 438 F.2d 1317, 1324-1326.

In its appearance here, however, the Board does not depend on Section 7411 as its sole and only shield.

It takes refuge behind the proposition that the Board has the power to issue and revoke subpoenas, that this power has been delegated in the first instance to the administrative law judge, and the Board has established standards to govern his actions. This, of course, must be conceded, but it can hardly be argued that -this is an unbridled power which may be used to deprive an employer or an employee of his right to the benefit of evidence relevant and material to his case, especially so, where, as here, the subpoena was first issued without question and thereafter withdrawn in the face of a mistaken claim of privilege.

It is next argued that the production of the required documents was unnecessary and largely irrelevant to the Company’s case. As will later be demonstrated, we can hardly accept this argument.

The concluding argument of the Board is as follows (Brief, 23):

“Similarly, that portion of the subpoena requesting documents concerning the discriminatees’ record of registration with M.E.S.C. is unnecessary to the Company’s defense. For the discriminatees were fully examined by Company counsel in this regard, which testimony was heard and observed by the Administrative Law Judge; the discriminatees produced M.E.S.C. cards corroborating their testimony that they had registered with M.E.S.C. (A. 107-108, 144-146); and the fact that the M.E.S.C. records might reveal that the discriminatees registered with more or less frequency than their testimony and evidence indicated, would not detract from the substantial record evidence of their extensive efforts to secure interim employment, supra, pp. 7-8, 10-12. Accordingly, the Board properly weighed these factors and determined that on balance, the M.E.S.C. claim of privilege should be honored. And since the Board’s action clearly did not substantially prejudice the Company it is not cause to overturn the Board’s decision. Morgan Precision Parts v. N.L.R.B., 444 F.2d 1210, 1214 (C.A.5, 1971); N.L.R.B. v. Safeway [Safway] Steel Scaffolds, 383 F.2d 273, 276-277 (C.A.5, 1967), cert. den., 390 U.S. 955 [88 S.Ct. 1052, 19 L.Ed. 2d 1150]; N.L.R.B. v. Miami Coca-Cola Bottling Co., 403 F.2d 994, 996-997 (C.A.5, 1968).”

Isiah Layton

An examination of the record shows that between September, 1967 and August, 1971, Layton was steadily employed, although not every day or every week. In two quarters he earned more in his substitute employment than he would have made had he continued with Marine Welding. In other quarters he fell short of those earnings by such sums, respectively, as $20, $15, $51, $59, $95, and $53. The worst deficiency occurred in the first quarter of 1969, when he earned only $213.64. In the light of this consistent record, we agree with the Board that lack of records as to Layton’s visits to and referrals by the Mississippi Employment Service could not have prejudiced the Company, i. e. their presence, in whatever quantity, pro or con, could not have substantially affected the fact that Layton worked away during these four years, nearly all of it with one employer, a railway company, which obviously found his work to be satisfactory from the first quarter of 1968 to the third quarter of 1971.

The backpay award to Layton is accordingly enforced.

Freddie Lee Walker

Walker’s case presents an entirely different picture. In the beginning, after Walker’s discharge by Marine Welding, he “set the woods afire”. For the first three quarters he practically doubled the earnings he would have received from his former employer. For the subsequent quarters his earnings took a nose dive, unexplained by any protracted illness or other disability.

Running chronologically from the first quarter of 1968, his earnings were as follows:

Quarter Earnings
1 $ 750.20
2 975.76
3 1,049.12
4 0
5 776.62
6 1,532.59
7 89.00
8 25.00
9 25.00
10 25.00
11 977.84
12 1,492.09
13 25.00
14 395.01
15 692.85

In this state of the record, the employer was entitled to show, at least for quarters 4, 7, 8, 9, 10, 13 and 14 what the records of the Employment Service showed as to Walker’s visits, or lack of visits, in search of a referral for work. This would go to the very heart of his diligence, or lack of it, in seeking employment. The number of referrals given him would also be highly pertinent.

We accordingly hold that the Employment Service should have been required to produce these records and the administrative law judge should have considered them for whatever light they might have reflected on the genuineness of Walker’s efforts to obtain employment.

A closing comment is in order. While the Employment Service did not challenge the subpoena on those grounds (preferring to stand on privilege), parts B and C of the subpoena were, on their face, unreasonable and oppressive. The Employment Service may not have its work disrupted and its fundamental function frustrated by being required every time a backpay hearing comes up to search for, collect, and produce a van load of records of the type demanded in parts B and C.

As to the employee, Isiah Layton, the backpay order is enforced.

As to the employee, Freddie Lee Walker, enforcement is denied, without prejudice, and his backpay award is remanded to the Board for further proceedings not inconsistent herewith.

CLARK, Circuit Judge

(concurring):

I concur in the result reached by the majority opinion. However,' I read Section 7411 as conferring confidentiality to “[¡information . . . obtained from an individual pursuant to the administration of this act” as well as to information obtained from an employing unit. Thus, as I construe it, the reach of the statute would extend to the records sought here. For the reasons set out by Judge Coleman, this enactment does not create the privileged status recognized and accorded by the Administrative Law Judge.

      . As a matter of practice, Board General Counsel, under Board Rules and Regulations, Series 8 (29 C.F.R., § 102.53), includes in the backpay specifications a deduction of those amounts earned from other than the offending employer as revealed by personal interviews and social security records.

      . In Carr v. Monroe Manufacturing Company, 431 F.2d 384, cert, den., 400 U.S. 1000, 91 S.Ct. 456, 27 L.Ed.2d 451 (1971), this Court held in a case of alleged racial discrimination in assignments and employment that Section 7411 does not confer an absolute privilege. See, also, Fears v. Burris Manufacturing Company, D.C., 48 F.R.D. 91 (1969). Both these cases centered on employer records.
      While Section 7412 of the Mississippi Code of 1942 was not asserted in the claim of imvilege, we notice its existence and express the view that it deals only with privilege in the case of communications which might afford a basis for libel or slander.


source: Caselaw Access Project

author: GOLDBERG, Circuit Judge:

license: Public Domain

text:
    Enriqueta Reginalda GONZALEZ de MORENO, Petitioner, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
    No. 73-1826.
    United States Court of Appeals, Fifth Circuit.
    April 10, 1974.

      Albert Armendariz, Sr., El Paso, Tex., for petitioner.
    Troy A. Adams, Jr., Dist. Director, Immig. & Nat., New Orleans, La., Elliott L. Richardson, Atty. Gen., U. S. Dept, of Justice, John L. Murphy, Chief, Gov. Regulations Sec., Dept, of Justice, Crim. Div., Washington, D. C., William S. Sessions, U. S. Atty., San Antonio, Tex., Robert P. Trout, Atty., Washington, D. C., Ralph Harris, Asst. U. S. Atty., El Paso, Tex., William E. Weinert, Dist. Director, U. S. Immigration & Nat. Service, El Paso, Tex., for respondent.
    Before THORNBERRY, GOLDBERG and INGRAHAM, Circuit Judges.
   GOLDBERG, Circuit Judge:

Petitioner, Mrs. Enriqueta Reginalda Gonzalez de Moreno, seeks review of a final deportation order of the Board of Immigration Appeals entered against her under the provisions of 8 U.S.C. § 1252(b). Our jurisdiction rests on 8 U.S.C. § 1105a.

Petitioner, a forty-one year old Mexican national, has been a resident of the United States for approximately twenty years. The Immigration and Naturalization Service instituted these proceedings in 1972, seeking petitioner’s expulsion from this country in accordance with section 241(a)(1) of the Immigration and Nationality Act (“the Act”) as an immigrant alien who at the time of entry did not possess a valid visa or recognized substitute document. Petitioner did not deny these charges either before the special inquiry officer or on appeal to the Board, but rather asserted that she qualified for relief from deportation under sections 241(f), 244(a)(1), and 249 of the Act. Both the inquiry officer and the Board found petitioner ineligible for relief under any of the specified provisions. We affirm the administrative determination that sections 244(a) (1) and 249 provide petitioner no refuge. The arguments presented to this Court in opposition to that holding are without merit. However, finding that the relief mandated by section 241(f) was denied on the basis of an incorrect interpretation of the statute, we reverse the order of the Immigration and Naturalization Board and remand this cause for the exercise of a properly informed administrative judgment.

Section 241(f) provides that:

“The provisions of this section relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as aliens who have sought to procure or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation shall not apply to an alien otherwise admissible at the time of entry who is the spouse, parent, or a child of a United States citizen or of an alien lawfully admitted for permanent residence.”

The Service does not dispute that petitioner fulfills many of the statute’s prerequisites for relief from deportation. Petitioner’s spouse and five of her children are American citizens. She gained entry to this country by innocently misrepresenting herself as an American citizen, and the present deportation proceeding “results directly from the misrepresentation.” Immigration and Naturalization Service v. Errico, 1966, 385 U.S. 214, 217, 87 S.Ct. 473, 476, 17 L.Ed.2d 318.

The sole objection to the application of § 241(f) in this case arises from the Government’s argument that in order to be found otherwise admissible at the time of entry an alien must have submitted to the system for processing immigrants. Since those who gain admission to the United States in Mrs. de Moreno’s fashion, through the false assertion of citizenship, are never subjected to this screening procedure, they are necessarily excluded from coverage. Though the argument was not made in the administrative proceeding or in its brief to this Court, at oral argument the Government did attempt to justify the distinction between false visa claims and false claims of citizenship. Counsel contended that § 241(f) relief should be denied to aliens who entered under claims of citizenship in order to protect the Government’s legitimate interest in the integrity of the immigration system. The Immigration and Naturalization Service is evidently of the opinion that there is a significantly greater chance of detecting qualitatively ineligible aliens even in the process of a fraudulent immigration proceeding than by means of a subsequent § 241(f) investigation. The Service contends that, since it is virtually impossible to determine whether aliens who entered under claims of citizenship were qualitatively admissible at time of entry, that requirement can have meaning only if such aliens are read out of the statute. A panel of the Second Circuit, over the dissent of Judge Mulligan, found this position persuasive. See Reid v. Immigration and Naturalization Service, 2 Cir. 1974, 492 F.2d 251 [1974]. However, when the identical argument was pressed by the Government with great vigor before the Ninth Circuit in Lee Fook Chuey v. Immigration and Naturalization Service, 9 Cir. 1971, 439 F.2d 244, it was rejected. We concur in that rejection, finding the Government’s position to be without support in the language or logic of the statute. ,f

By its terms § 241(f) provides relief for those who obtain visas, other documentation, or entry by means of fraud or misrepresentation. The use of the disjunctive indicates that the section was intended to apply to aliens who had no need to lie or misrepresent in the course of obtaining a visa, but whose actual entry into this country hinged on a misstatement of fact — whether intentional or innocent. One such class of aliens would be those falsely representing themselves as American citizens. Indeed, given the requirement of a visa or recognized substitute document for the entry of nationals of most foreign countries and the improbability that one who had honestly obtained a visa would have reason to lie upon presenting his documentation at the border, the most logical application of the separate “fraudulent entry” provision is to precisely those aliens in petitioner’s position — those who entered under a claim of citizenship.

The interpretation proferred by the Government is not only contrary to the plain meaning of the words used by Congress, it is also without support in the legislative history of the statute. We have neither found nor have we been directed to any committee reports or congressional statements indicating an intent to limit the embrace of this statute to visa-bearing aliens. Indeed, the evidence available from those sources points with some force in the opposite direction. But even were the weight of congressional comment sufficient to create uncertainty as to the proper reading of this statute, the Government’s position would nevertheless fall to the interpretive canons announced by the Supreme Court in Immigration and Naturalization Service v. Errico, supra. For in that opinion the Court, while noting that “the meaning of the words ‘otherwise admissible’ [in § 241(f)] is not obvious,” instructed that “if there [be] some doubt as to the correct construction of the statute, the doubt should be resolved in favor of the alien.” In this case the Government has first attempted to create doubt where the statute speaks with seeming clarity, and has then urged us to resolve that doubt against the alien. This Court is bound, however, by the language of the Congress and the decisions of the Supreme Court. We have no warrant under Errico to apply bizarre techniques of interpretation to restrict the scope of § 241 (f).

Finally, it should be noted that even when the specific language, legislative history, and proper method of interpreting the statute are ignored, the Government’s position prevents a logical defense. Section 241(f) was designed to provide relief to those who have evaded the full rigor of the immigration process by their misrepresentations. The basic assumption of the provision is that the alien has rendered himself liable to deportation by this circumvention of the system. No one disputes, for example, that the statute covers the case of an alien who has obtained a visa by materially misrepresenting his status, even to the point of falsifying his identity and couhtry of origin. If § 241(f) holds an alien “otherwise admissible” who has made a mockery of the immigration interview by his distortion of reality, we see no justification for denying the protection of that section to an alien who has taken the small additional step of entirely avoiding the procedure by asserting American citizenship. Lies concerning identity, occupation, and country of origin may well render the initial immigration investigation either as worthless as no investigation at all, or as difficult and fruitless as a later § 241(f) inquiry. More importantly, the Government’s argument overlooks the fact that § 241(f) was not intended to shore up the integrity of the immigration process, but rather was designed as an instrument of humanitarian relief to be applied once the wall has been breached.

“Almost invariably, by the time that the relief provision of 241(f) is invoked, the integrity of the immigrant visa system has been long violated. Section 241(f) deals with the problem after the breach has occurred. When Congress enacted this provision, it was reconciling strong and conflicting policies. Congress was dealing with problems arising from violations of the visa system, and had to do so in the context of ongoing family ties and expectations which had developed for many years after the breach. Without placing blame, we believe Section 241(f) as we have interpreted it, is the result of the ineffective enforcement of immigration laws, not the cause of it.”

Lee Fook Chuey, supra, at 250 of 439 F.2d.

Section 241(f) is not primarily-designed to provide a retroactive enforcement mechanism. It is a benevolent statute. Mercy and compassion are inherent in its ameliorative function; and we are convinced that Congress did not intend for the courts to be niggardly in their interpretation of its language. If the term “otherwise admissible” is to have meaning within the context of the statute it must be interpreted as requiring that an alien meet only the physical, mental, and moral standards for admission to this country set out in 8 U.S.C. § 1182. Because of the erroneous view of the law adopted below no administrative judgment has been made on petitioner’s qualitative acceptability at the time of entry. It is therefore appropriate to remand this cause for such a determination.

The Order is reversed; and the cause is remanded to the Board of Immigration Appeals.

      . 8 U.S.C. § 1251(a)(1) (1970).

      . 8 U.S.C. § 1251(f) (1970).

      . 8 U.S.C. § 1254(a)(1) (1970):
      “[T]he Attorney General may, in his discretion, suspend deportation and adjust the status of an alien lawfully admitted for permanent residence, in the case of an alien who applies to the Attorney General for suspension of deportation and—
      (1) is deportable under any law of the United States except the provisions specified in paragraph (2) of this subsection; has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application and proves that during all of such period he was and is a person of good moral character; and is a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence. . . . ”

      . 8 U.S.C. § 1259 (1970):
      A record of lawful admission for permanent residence may, in the discretion of the Attorney General and under such regulations as he may prescribe, bo made in the case of any alien, as of the date of the approval of his application or, if entry occurred prior to July 1, 1924, as of the date of such entry, if no such record is otherwise available and such alien shall satisfy the Attorney General that he is not inadmis-sable under section 1182(a) of this title insofar as it relates to criminals, procurers and other immoral persons, subversives, violators of the narcotic laws or smugglers of aliens, and he establishes that he—
      (a) entered the United States prior to June 30, 1948;
      (b) has had his ersidence in the United States continuously since such entry;
      (c) is a person of good moral character; and
      (d) is not ineligible to citizenship.

      . The opinion of the special inquiry officer, adopted by the Board, held that petitioner could not receive the record of lawful admission provided by section 249 because she “has not satisfactorily borne the burden of establishing that she entered the United States prior to June 30, 1948, and that she lias had her residence in this country continuously since such entry.” Petitioner’s own allegations concerning her date of entry changed on several occasions during the course of the administrative proceedings ; and documentary evidence introduced at the hearing, including an affidavit executed by petitioner in 1970, indicated that she had resided in Mexico as late as 1951. In light of this record, it can hardly be argued that petitioner has fulfilled the statutory requirement of establishing continuous residence from June 30, 1948.
      Petitioner, as a native of a country contiguous to the United States, is excluded from the coverage of section 244(a) (1), and can receive such discretionary suspension of deportation pursuant to section 244(f)(3) [8 U.S.C. § 1254(f)(3)] only upon a showing “that [s]he is ineligible to obtain a nonquota immigrant visa.” No satisfactory showing of ineligibility was made below; and petitioner seeks to circumvent that requirement by attacking the constitutionality of distinctions on the basis of national origin. It is clear, however, that Congress may tailor immigration procedures to meet the problems posed by the exceptional volume or nature of the immigrants from particular countries. Cf. Faustino v. Immigration and Naturalization Service, 2 Cir. 1970, 432 F.2d 429, cert. denied, 1971, 401 U.S. 921, 91 S.Ct. 909, 27 L.Ed.2d 824. The special treatment afforded nationals of contiguous countries in section 244 of the Act is an acceptable congressional judgment that could justifiably flow from the number of Canadian and Mexican nationals entering the United States, the ease of such entry, and the relative availability of visas.

      . The special inquiry officer of the Service based his denial of 241(f) relief largely on the innocent nature of petitioner’s assertion of citizenship. Petitioner’s father had told her that she was a citizen of the United States and he had supported this claim with documents belonging to her dead sister. Mrs. de Moreno did not doubt the truthfulness of her father’s statements at the time she related them to U.S. Immigration officials.
      The notion that 241 (f) should be interpreted as an expression of Congressional solicitude only for culpable aliens, to the exclusion of the misinformed, was eloquently denounced by Judge Frankel in Matter of Yuen Lan Hom, 289 F.Supp. 204, 205-206 (S.D.N.Y.1968):
      “There was a time when judges tended to view legislators as insensitive intruders marring the beauty and symmetry of the law. It may have been possible in that age for courts to conclude solemnly that the people’s elected representatives had contrived deliberate rules of law which could not fail to outrage anyone with a claim to intelligence or ordinary decency. It was also an age, after all, when at least some judges saw it as evidence of the Law’s mysterious splendors when they deemed themselves bound rigidly by judge-made rules which were shocking to everyone and professedly repulsive to the judges themselves. The times are not improved in all respects, but we have mostly lived past that sort of thing.
      “So let it be acknowledged that it would take some powerful showing of underlying sense and purpose to justify the gross surface anomaly the Service proposes. Far from supplying such an unlikely demonstration, the pertinent materials quite clearly compel rejection of the Service’s position.” [citations omitted]
      The Board of Immigration Appeals has acquiesced in the determination that 241(f) covers both innocent and fraudulent misstatements, see Matter of Lim, 13 I & N Dec 169; and at oral argument the Government abandoned any reliance on this aspect of the opinion below.

      . “Literally, § 241(f) applies only when the alien is charged with entering in violation of § 212(a) (19) of the statute, which excludes from entry ‘[a]ny alien who . . . has procured a visa or other documentation by fraud, or by wilfully misrepresenting a material fact.’ Under this interpretation, an alien who entered by fraud could be deported for having entered with a defective visa or for other documentary irregularities [as in the case of petitioner de Moreno] even if he would have been admissible if he had not committed the fraud. The Government concedes that such an interpretation would be inconsistent with the manifest purpose of the section, and the administrative authorities have consistently held that § 241(f) waives any deportation charge that results directly from the misrepresentation regardless of the section of the statute under which the charge was brought, provided that the alien was ‘otherwise admissible at the time of entry.’ ” [citations omitted]
      Immigration and Naturalization Service v. Errico, 1966, 385 U.S. 214, 217, 87 S.Ct. 473, 476, 17 L.Ed.2d 318. See also Muslemi v. Immigration and Naturalization Service, 9 Cir. 1969, 408 F.2d 1196.

      . In 1961 Senator Eastland, Chairman of the Senate Judiciary Committee, remarked in reference to § 241(f) and similar ameliorative provisions of the Act that:
      “Those provisions relate to the waiver of grounds of inadmissibility and deportability in the cases of certain close relatives of U.S. citizens and lawful permanent residents involving conviction of minor criminal offenses, fraudulent misrepresentations in connection with applications for visas or admission to the United States.” [emphasis added]
      107 Cong.Rec. 19653-54.
      In his able dissent in Reid Judge Mulligan noted that “there is language in the legislative history . . . indicating that the principal beneficiaries of the law were Mexican nationals who were able to avoid border restrictions. If the Congress bad in mind the so-called ‘wet back’ entrants, then it is difficult to comprehend that it intended oply visa-carrying entrants.” 492 F.2d at 263. See also H.R. Report No. 1199, 85th Cong. 1st Session, p. 11.

      . 385 U.S. at 218.

      . 385 U.S. at 225. Errico held that an alien would be otherwise admissible within the meaning of the statute even if he should have been excluded at the time of entry under the applicable quota restrictions.


author: GODBOLD, Circuit Judge: CLARK, Circuit Judge

text:
    REDDY, INC., et al., Plaintiffs, Vishwas B. Dhekney, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF LABOR, etc., Defendant-Appellee.
    No. 73-1275.
    United States Court of Appeals, Fifth Circuit.
    April 10, 1974.

      A. Don Crowder, Dallas, Tex., for plaintiff-appellant.
    Frank D. McCown, U. S. Atty., Charles D. Cabaniss, Asst. U. S. Atty., Dallas, Tex., for defendant-appellee.
    Before THORNBERRY, GODBOLD and CLARK, Circuit Judges.
   GODBOLD, Circuit Judge:

Vishwas Dhekney, an Indian national, sought an immigrant visa for permanent residence in the United States under 8 U.S.C. § 1153(a)(3), which excludes:

Visas shall next be made available, in a number not to exceed 10 per cen-tum 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.

An alien seeking admission under (a) (3) must, however, show that he is not excluded from admission by reason of the provisions of 8 U.S.C. § 1182(a) (14), which provides:

Aliens seeking to enter the United States, for the purpose of performing skilled or unskilled labor, unless the Secretary of Labor has determined and certified to the Secretary of State and to the Attorney General that (A) there are not sufficient workers in the United States who are able, willing, qualified, and available at the time of application for a visa and admission to the United States and at the place to which the alien is destined to perform such skilled or unskilled labor, and . (B) the employment of such aliens will not adversely affect the wages and working conditions of the workers in the United States similarly employed. The exclusion of aliens under this paragraph shall apply to special immigrants defined in section 1101(a) (27) (A) of this title (other than the parents, spouses, or children of United States citizens or of aliens lawfully admitted to the United States for permanent residence), to preference immigrant aliens described in sections 1153(a)(3) and 1153(a)(6) of this title, and to nonpreference immigrant aliens described in section 1153(a) (8) of this title;

The certification procedures of the Secretary of Labor are delegated to the Manpower Administration of that department “for the area of the alien’s intended residence.” 29 C.F.R. § 60.3(b).

To facilitate the processing of requests for certificates, the Secretary of Labor has made determinations of various categories of employment with respect to which certification will issue. This is covered by 29 C.F.R. § 60.2(a)(1):

For the categories of employment described in Schedule A at § 60.7 except for any geographic limitations therein set forth, there are not sufficient workers who are able, willing, qualified, and available for employment and the employment of aliens in such categories in such areas will not adversely affect the wages and working conditions of workers in the United States similarly employed.

With respect to various other categories certification is foreclosed by 29 C.F.R. § 60.2(a)(2):

For the categories of employment' described in Schedule B at § 60.7 subject to any geographic limitations therein set forth, the certification required by section 212(a) (14) cannot now be made.

Dhekney’s employment did not fall within either Schedule A or Schedule B, so that he (or a person on his behalf) was required to file a Statement of Qualifications of Alien form under 29 C.F.R. § 60.3(b). This Dhekney did through his employer, Reddy, Inc., which previously had employed him and, representing that it was unable to replace him, desired to reemploy him. Reddy identified itself on the application as engaged in “metal roll forming and fabrication.” It described the job offered to Dhekney as “engineering design specialist in light gauge metals.” It further described the job, and special requirements for it, thusly: “Design light gauge metal structures, estimate costs, develop light gauge metal applications, develop light gauge metal empirical test data, supervise field construction of light gauge metal structures studies in elastic stability of light gauge, thin walled steel sections [,] familiarity with light gauge metal theory and applications.”

Reddy, Inc. is a small company whose only plant is located in Dallas, Texas. Thus Dallas was the “area of the alien’s intended residence.” The application was filed June 26, 1972, with the Regional Manpower Administrator in Dallas. It was denied one day later, June 27, by a letter stating:

On the basis of information available to us, we cannot issue the certification required by Section 212(a) (14) of the Immigration and Nationality Act, as amended.
Reason: Available job market information will not warrant a certification of unavailability of workers in the U.S. U.S. workers are available. Labor market information indicates a surplus of engineers who are willing to relocate.

The record does not reveal the “information available to [the Administrator]” on which these conclusions were reached.

On July 14, Reddy, on Dhekney’s behalf, filed what it styled an “application for reconsideration . . . based on

new facts and clarification of information not formally presented in the original request.” Included was this statement :

At the suggestion of Mr. Maceo Johnson, Mr. E. W. Gloer of the National Registry for Engineers was contacted (see enclosure 2). Mr. Gloer affirmed that the combination of skills which were necessary for our purposes, i. e. a civil engineer with specialization and proficiency in the use of light gauge steel was extremely unique. He further stated that he would confirm this fact to the Department of Labor in Dallas, on request. Telephone number: (916) 445-4344.

Attached was the following memorandum signed by the president of Reddy (though 'undated it appears from its face to relate to a date between the denial of June 27 and the filing of the “application for reconsideration” on July 14):

This date, the undersigned and Mr. V. Dhekney, met with Mr. Johnson, Department of Labor, with regard to the determination made on the application for Alien Employment Certification for Mr. Dhekney dated, June 27, 1972. I explained to Mr. Johnson that our requirement was not for a general Civil Engineer but specifically for a Civil Engineer specializing in light gauge steel. Mr. Johnson related that he was not a specialist in engineering qualifications and that he made his determinations based on information provided him concerning the availability of engineers classified in broad categories (in this case, Civil Engineers). I explained that I had attempted to obtain another engineer with Mr. Dhekney’s qualifications through advertising and through the Texas Employment Commission and that I was completely unsuccessful in this endeavor. Mr. Johnson stated that a determination of this type could be made by the National Registry for Engineers (NRE) in Sacramento, California and he instructed me to call or write to Mr. E. W. Gloer of NRE. Pursuant to Mr. Johnson’s instructions, I called Mr. E. W. Gloer and informed him of our requirements as per attached job description. In response Mr. Gloer said that an engineer proficient in light gage steel with a background of Civil Engineering was extremely rare. He agreed to confirm our conversation if the Dallas Labor & Manpower Department needed verification.

The Reviewing Officer affirmed the Certifying Officer in a written decision dated July 18. The decision defined the issue to be “the availability of qualified United States workers,” and then stated, in pertinent part:

The petition for review reveals that appellant has consulted the National Registry for Engineers as to the availability of United States workers with the specific qualifications of the position under consideration. Said petition further discloses that the National Registry considered the combination of skills required by appellant employer to be unique.
Communications with the National Registry for Engineers confirmed that the combination of skills required for the position was unique. However, it is the combination of engineering skills possessed by the alien that is unique, in that a civil engineer is not usually proficient in light gauge steel. It does not follow that there are no United States engineers available with proficiency in light gauge steel. Further communication with the National Registry revealed that specialization in light gauge steel is usually one of the skills included in that of mechanical engineer. A review of said Registry discloses an ample supply of qualified mechanical engineers. Based on these facts, it is clear there is no shortage of qualified United States workers.
In addition to the foregoing, it is noted that the record in this case discloses that subject alien is to be paid $750.00 a month. Such wage is below the prevailing wage for the occupation of Civil Engineer. The prevailing wage rate for this occupation ranges from $800.00 to $1,000.00 a month. Section 212(a) (14) (B) of the afore-stated Act precludes labor certification when such would adversely affect the wages and working conditions of similarly employed United States workers. Even if we were to find that United States workers are not available, in this case, the substandard wage would still preclude the issuance of a labor certification.

Dhekney and Reddy then brought this action in the District Court for the Northern District of Texas. The United States filed a certified copy of the proceedings before the Regional Manpower Administrator, and the parties filed cross motions for summary judgment. The District Court granted summary judgment for the Government on the basis of part (A) of § 1182(a)(14), holding that the Regional Manpower Administrator did not abuse his discretion “in determining that there are American workers who are available within the United States that are able, willing and qualified to perform the work in which plaintiff Dhekney was employed by Red-dy to perform.” (Emphasis added.)

On our own motion we have raised the issue of the authority of a federal district court or court of appeals to review a decision of the Secretary of Labor made pursuant to § 1182(a)(14). Our concern was prompted in part by our decision in Cobb v. Murrell, 386 F. 2d 947 (CA5, 1967). In response to our request for supplemental briefs addressing Cobb and the general issue of authority to review, the Department of Labor has taken the position that Cobb is distinguishable and that federal courts have authority to exercise limited review. We agree. In Cobb we determined that a federal court lacked power to review a decision of the Secretary of Labor denying § 1182(a) (14) certification where the action was brought by the potential employer and the alien denied certification was not a party to the action, was not present in the country, and was “not on any border or ship asking for admission.” 386 F.2d at 949. Dhekney’s case, however, is quite different. Not only is he, unlike the alien in Cobb, a party to the action, but also he was, unlike the alien in Cobb, already lawfully present in the United States when he sought certification under § 1182(a) (14). The relevance of these differences is, in brief, that in Cobb neither the alien nor the employer had legal standing to attack the decision, while in the present case it is clear that at least Dhekney has such standing.

Cobb contains language which, if removed from its context, would appear to preclude review pursuant to the Administrative Procedure Act (APA) of Labor Department determinations under § 1182(a) (14). After concluding that review was not granted by the then existing provisions of the Immigration and Nationality Act, we stated in Cobb:

Moreover, the clear purpose of the certification procedure commits such action to “agency discretion” and thus excludes it from the coverage of the Administrative Procedure Act.

386 F.2d at 951. But examination of the opinion seems to us to reveal that the basis for finding the APA inapplicable was that neither the non-party alien nor the plaintiff employer had suffered the sort of injury to a protected legal right necessary for standing to seek review under the APA. In the paragraph following the one quoted above, the court said,

Thus, we are in agreement with the Ninth Circuit’s specific holding in Braude that aliens outside the country have no standing to challenge a determination of the Secretary of Labor that their entry would adversely affect wages and working conditions of workers in the United States.

386 F.2d at 951. And still later in discussing the rights of the employer the court noted,

The only argument which Cobb might now assert is that congressional action to aid employers, embodied in Section 1154(b), gave him a legally protected right which was violated by the Secretary of Labor, and that this right is sufficient for obtaining judicial review through either the APA or the Declaratory Judgment Act.

The court then found that no such legally protected right existed and concluded, “We fail to find any hope for Cobb in any statute or in the Constitution.” 386 F.2d at 952.

We think it beyond dispute that Dhekney, an alien lawfully resident in this country at the time he sought § 1182(a) (14) certification, is “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute,” 5 U.S.C. § 702, and is therefore entitled to review unless “statutes preclude judicial review” or “agency action is committed to agency discretion by law,” 5 U.S.C. § 701. The APA’s judicial review provisions were designed to be applied broadly, and “only upon a showing of ‘clear and convincing evidence’ of a contrary legislative intent should the courts restrict access to judicial review.” Abbott Laboratories v. Gardner, 387 U.S. 136, 140-141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681, 686-687 (1967), citing Rusk v. Cort, 369 U.S. 367, 379-380, 82 S.Ct. 787, 794, 7 L.Ed.2d 809, 817 (1962). We find no such evidence here. Nor can we accept the notion that this deter-ruination is committed to agency discretion to such an extent as to preclude our limited review for erroneous application of the statutory standards. The findings required under § 1182(a) (14) are quite specific. There is little room for the exercise of that unfettered discretion based on unique competence which justifies a court in refusing any review at all. Cf. Ferry v. Udall, 336 F.2d 706, 711-712 (CA9, 1964); Davis, Administrative Law Treatise, § 28.16 (Supp. 1970). Additionally, as this court observed in a case somewhat similar to this one, “In immigration and deportation cases courts have been especially responsive to the powerful pull of the [Administrative Procedure] Act in the direction of the right of judicial review of agency action.” Estrada v. Ahrens, 296 F.2d 690 (CA5, 1961).

Our conclusion that review under the APA is available is in accord with the decisions of at least two other circuits in similar cases. Song Jook Suh v. Rosenberg, 437 F.2d 1098 (CA9, 1971) and Mendez v. Major, 340 F.2d 128 (CA8, 1965), and with the decisions of a number of district courts in circumstances almost identical to those here. First Girl, Inc. v. Regional Manpower Administrator, 361 F.Supp. 1339 (N.D.Ill. 1973); Digilab, Inc. v. Secretary of Labor, 357 F.Supp. 941 (D.Mass.1973); Bitang v. Regional Manpower Administrator, 351 F.Supp. 1342 (N.D.Ill.1972); Golabek v. Regional Manpower Administration, 329 F.Supp. 892 (E.D.Pa.1971).

We turn then to consideration of the merits. The decision of the Reviewing Officer did not respond at all to the “at the place to [sic] which the alien is destined to perform such skilled or unskilled labor” requirement of the statute. That place was the Dallas, Texas, area, and the decision referred to only “United States engineers” and “qualified United States workers.” The “at the place” provision of the statute is reflected in the implementing Regulations. The scheduled categories entitled to automatic certification under Schedule A are in terms of “in such areas.” 29 C.F.R. § 60.2(a)(2). And, as we have already pointed out, the request for certification goes to the office of the Manpower Administration “for the area of the alien’s intended residence.” 29 C.F.R. 60.3(b). Thus, the reviewing officer’s determination is patently insufficient. We have examined the record and can find not a whisper of evidence relating to availability of workers — mechanical engineers or civil engineers — in the area of Dallas, Texas. The Reviewing Officer’s erroneous standard was compounded by the District Court’s application of the standard of workers available “within the United States.”

The District Judge did not reach the Reviewing Officer’s determination under (B) of § 1182(a) (14) relating to wage rates. The administrative action cannot, however, be saved under that finding. Having characterized the labor to be done by appellant as that of a me- chemical engineer, and having found adversely to appellant, under (A), by examining [under an erroneous standard] the supply of qualified mechanical engineers, the officer found adversely against him under (B) by examining the wages of civil engineers. The phrase “similarly employed” in (B) describes those persons performing the labor referred to in the introductory clause of subsection (14) and in (A) of that subsection. If appellant were trained in the ministry but performing light gauge steel work, the relevant wages and working conditions of “the workers in the United States similarly employed” would be those of persons performing light gauge steel work, which by the Department’s definition is mechanical engineer’s work, and not the wages and working conditions of ministers.

The decision of the District Court must be reversed and the cause remanded to the District Court with instructions to remand to the Department of Labor for reconsideration of the application under proper standards. The inquiry under Section 1182(a) (14) into the sufficiency of workers is “at the time of application,” an inquiry hardly susceptible of retrospective determination. Necessarily the Department’s reconsideration must be in the light of the facts existent at the time of reconsideration, with respect to both sufficiency of workers and adverse effect on wages and working conditions of workers similarly employed.

Reversed and remanded with directions.

CLARK, Circuit Judge

(concurring in part and dissenting in part):

I concur in holding that judicial review is proper.

The majority opinion does not hold that the RMA’s refusal to certify Dhek-ney as a third preference alien was arbitrary and capricious. See Golabek v. RMA, 329 F.Supp. 892 (E.D.Pa.1971). Instead, it premises its conclusion that the reviewing officer must have applied an incorrect legal standard upon two factors: (1) the RMA reviewing officer’s opinion did not specifically speak in terms of the “at the place” requirement of 8 U.S.C. § 1182(a) (14), and (2) the record contains “not a whisper of evidence relating to availability of workers — mechanical engineers or civil engineers — in the area of Dallas, Texas.” I am persuaded that this reasoning is predicated upon two misconceptions. First, the majority fails to accord the RMA findings the presumptive correctness to which they are entitled and secondly, the majority fails to recognize the correct burden of proof to be applied in this case.

I do not say that the RMA can disregard the “at the place” requirement of 1182(a) (14), but I do say that they have not done so. In the instant case, the reviewing officer stated that based upon his communications with the National Registry for Engineers “it is clear that there is no shortage of qualified United States’ workers.” Such language is entirely consistent with application of the correct statutory standard. For example, the reviewing officer could have considered only those individuals listing a residence in the Dallas area or indicating an interest in locating there in making his determination, or he could have determined that because of the large number of qualified mechanical engineers listed, the statistical probability was such that some of these would be interested in working in the Dallas area. The majority, however, decides that because the reviewing officer’s findings do not track the statute in haec verba he must have overlooked the terms of the statute he is charged with applying. This deduction is contrary to the presumption of correctness which must be accorded the RMA’s administrative findings. Furthermore, conceding arguendo the lack of “a whisper” of evidence in the record of availability of qualified workers in the Dallas area would not change things. The majority does not decide that the RMA’s determination was contrary to the proof and therefore arbitrary and capricious, but only that the reviewing officer applied the wrong standard.

The statute under which Dhekney sought certification, 8 U.S.C. § 1182(a)(14), is phrased in terms of an alien’s ineligibility unless it can be certified that such alien meets the requirements specified in 1182(a) (14) (A) & (B). Accordingly, the burden was on Dhekney to show entitlement to certification and not upon the RMA to demonstrate that he was not so entitled. I would not find that the RMA abused its discretion in not certifying Dhekney. Dhekney and Reddy presented no evidence to show unavailability of workers in the Dallas area. Reddy’s asserted failure to find a replacement for Dhek-ney is too narrow and subjective to meet such a burden. The statute is not designed to fulfill a peculiar manpower requirement of a particular employer but is designed to benefit “prospectively the national economy, cultural interests, or welfare of the United States.” As recognized by the reviewing officer, Reddy created the description of a unique combination of skills which were really job-acquired talents rather than qualifications for employment (civil engineer proficient in light gauge steel structures), adopted them as prerequirements for its job, and then has sought certification for Dhekney upon its failure to find any other individual with such a novel combination of skills.

Because I would affirm, I respectfully dissent.

      . Since Dhekney is a party, we need not address the question whether Reddy, Inc., his employer, has independent standing to seek review.

      . In Braude v. Wirtz, 350 F.2d 702 (CA9, 1965), the Ninth Circuit held that 181 Mexican nationals residing in Mexico and seeking to immigrate to California for agricultural employment had no right to judicial review of a Labor Department determination under § 1182(a) (14) that their employment would “adversely affect wages and working conditions.” '

      . “The Bill of Bights is a futile authority for the alien seeking admission for the first time to these shores. But once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders. Such rights include those protected by the First and Fifth Amendments and by the due process clause of the Fourteenth Amendment.” Bridges v. Wixon, 326 U.S. 135, 161, 65 S.Ct. 1443, 1455, 89 L.Ed. 2103, 2119 (1945) (Concurring opinion of Justice Murphy).

      . The Immigration and Nationality Act contains no explicit preclusion of review of the decision complained of, nor does it establish any special procedure for the review of such decisions. It does establish exclusive procedures for “judicial review of all final orders of deportation,” 8 U.S.C. § 1105a(a), and for judicial review of “final order[s] of exclusion,” 8 U.S.C. § 1105a(b), and the legislative history evidences a desire to restrict the methods of reviewing such orders to those set out in the statute, 1961 U.S.Code Cong. & Admin.News pp. 2966-2977. But the determination here is not an order of either type. So far as we can tell, no order of deportation or exclusion has ever been issued against Dhekney. (Whether the determination here is one which could be reviewed in a § 1105a proceeding in the Court of Appeals or habeas corpus proceeding after issuance of a final order is a complex question on which we express no opinion.) Deferring review until the issuance of such an order would serve no function since the determination is not one susceptible of modification by the Immigration and Naturalization Service but is rather a determination assigned by the statute to the Department of Labor, whose provisions for internal review Dhekney has exhausted. Although neither the statute nor departmental regulations establish any procedure for obtaining judicial review of the decision, there is no indication in § 1182(a) (14) itself or in its legislative history, see 1965 U.S.Code Cong. & Admin.News p. 3328 et seq., of a desire to preclude such review.

      . Dhekney was an applicant allegedly qualified as a professional, and therefore his request fell under § 60.3(b). A person performing unskilled labor falls under subsection (c) of the same regulation, but he is governed by the same statutory provision, e. g., § 1182 (a) (14). The regulations governing an application by such a worker accentuate the statutory requirement of localized information concerning the proposed i>lace of employment. The unskilled applicant must have his prospective employer file a “Statement of Qualifications of Alien” form, a “Job Offer for Alien Employment” form, and in some cases a “Supplemental Statement for Live-at-Work Job Offers,” all with a local office of the State Employment Service serving the area where he will be employed. The state office reviews the forms and “area labor market information pertaining to the availability of U. S. workers and the prevailing wages and working conditions in the area of employment similar to the alien’s intended employment.” 29 C.F.R. § 60.3(c). It then forwards the forms and information to the office of the Manpower Administration for that area. The regulations then provide: “a labor certification determination will be made based on the information submitted by the State Employment Service and any other applicable data available to the Manpower Administration area office.” Id.

      . It is worthy of note that the certifying officer whose decision was before the reviewing officer found that “[l]abor market information indicates a surplus of engineers who are willing to relocate.”