The opinion of the court was delivered by: SHAW
An order to show cause why plaintiff should not be deported was issued by the Immigration and Naturalization Service on March 14, 1960. Hearing on the order to show cause was held on March 17, 1960. The decision was deferred for one week in order to permit plaintiff to file an application for adjustment of status. Plaintiff made application on March 22, 1960 for adjustment of status to confer the right of permanent residence pursuant to Section 245 of the Immigration and Nationality Act, 8 U.S.C.A. § 1255. It was found by decision of a Special Inquiry Officer of the Immigration and Naturalization Service on March 30, 1960 that plaintiff was subject to deportation but should be granted the privilege of voluntary departure within such period of time as the District Director of the Service should fix.
Plaintiff's application for adjustment of status was denied by the District Director on July 28, 1960 and the denial was affirmed by the Regional Commissioner on November 7, 1960. The reasons stated for denial of the application for adjustment of status as they appear in the record are quoted as follows:
"Your application, for adjustment of status under Section 245 of the Immigration and Nationality Act has been denied for the following reasons:
"Your application does not warrant favorable consideration in the exercise of discretion in view of the fact that you accepted employment at Three Sisters Restaurant, Dover, N.J. within four days after your admission as a crewman on March 7, 1959."
On May 23, 1960 plaintiff Three Sisters Restaurant, Inc., filed a petition to classify the status of Lechich for issuance of an immigration visa pursuant to Section 203(a)(1)(A) of the Act, 8 U.S.C.A. § 1153(a)(1)(A). It was contended in support of this application that Lechich was a person whose services were urgently needed by Three Sisters Restaurant because of his technical training, specialized experience and exceptional ability as an executive chef. This petition was approved on November 14, 1960,
approval thereof to expire on June 12, 1961.
Plaintiff Three Sisters Restaurant, Inc., is a corporation of New Jersey which operates a large restaurant located on Route 46, Dover, New Jersey. According to evidence which does not seem to be disputed, the restaurant can accommodate 250 customers at one sitting; the average annual receipts are $500,000; and approximately 56 people (payroll record indicates 60) are employed to operate it. It is alleged that approximately sixteen of these employees work in the kitchen. The establishment is described as a first class gourmet restaurant with excellent reputation for the quality of its food and service.
On June 2, 1961 the following communication was sent by Deputy District Director W. J. Wyrsch to Three Sisters Restaurant, Inc.:
"Reference is made to your visa petition in behalf of Edoardo Lechich which was approved on January 4, 1961.
"Please be informed that inquiry has disclosed that the beneficiary is not employed in your establishment as an Executive Chef.
"Accordingly you are hereby placed on notice that it is the intention of this office to revoke approval of the petition. However, you will be given until June 19, 1961 within which to offer evidence in support of the petition and in opposition to revocation of the approval. Careful consideration will be given all additional evidence presented by said date before final decision is made."
In response thereto counsel for Three Sisters Restaurant Inc., submitted by letter of transmittal dated June 15, 1961 an affidavit of Leo Marin, president and sole stockholder of Three Sisters Restaurant, a menu, a statement signed by twenty-three employees of the restaurant
and a statement by the pastor of Our Lady of the Lake Church, Lake Mohawk, New Jersey. The purport of these proofs was that Lechich was employed by petitioner as an executive chef.
By letter dated July 26, 1961 the following notice was given to petitioner by the Deputy District Director:
"I refer to your visa petition in behalf of Edoardo Lechich which was approved on November 14, 1960. As you know, a notice of intention to revoke the approval of the petition was served on you. Your attorney, Mr. Leon Rosen, has submitted certain evidence in opposition to the revocation of approval.
"In the meantime, because of the passage of time, the approval of the visa petition expired on June 12, 1961.
" Careful consideration was given to all the evidence presented in the case and you are informed that approval of the petition will not be revalidated. "
On October 24, 1961 plaintiffs commenced the action in this court seeking review pursuant to Section 10 of the Administrative Procedure Act, 5 U.S.C.A. § 1009, of the agency decisions of the Immigration and Naturalization Service denying the petition of Lechich for adjustment of status and revoking approval of the first preference visa petition obtained in his behalf by Three Sisters Restaurant, Inc. Injunctive relief restraining deportation was also sought. Jurisdiction was alleged under the ...