Adelfo v. MacEren v. District Director, Immigration and Naturalization Service, Los Angeles, California

WALLACE, Circuit Judge

(dissenting) :

I respectfully dissent.

The majority affirms the district court’s judgment ordering the Immigration and Naturalization Service to grant Maceren permanent resident status primarily because it concludes that the retroactive application of 29 C.F.R. § 60.-5(b) would be incongruous with the retroactive aspects of 8 C.F.R. § 204.4(b). The majority bases its conclusion upon its assumption that the reinstatement provisions of section 204.4(b) would be a nullity if section 60.5(b) were to be applied retroactively. Thus, it holds that we must give retroactive effect only to section 204.4(b), because a court should give effect to the later of two inconsistent regulations.

I disagree that the retroactive application of section 60.5(b) would be inconsistent with the provisions of section 204.4(b) or that the two regulations are irreconcilable. ’ Under the provisions of 8 C.F.R. § 204.4(b), as it read from May 9, 1970, to March 30, 1971, a preference petition under section 203(a)(3) or (6) of the Act that was supported by a labor certification remained valid for one year from the date the labor certification was signed. Until February 4, 1971, the labor certification was valid indefinitely. On February 4, however, the Secretary of Labor revised section 60.5(b), to provide that the labor certification expires after one year unless revalidated. The regulation further provides that “this provision shall be applicable to both new and outstanding certifications . ” (Emphasis added.)

Subsequent to the issuance of section 60.5(b), on March 30, 1971, the Immigration and Naturalization Service revised section 204.4(b) to provide that a preference petition remains valid as its supporting labor certification is valid, rather than for the one-year period provided previously. The regulation further provides that a preference petition “which had heretofore become invalid solely because the date until which the approval was valid had lapsed, is hereby reinstated provided the conditions of this paragraph are met.” One of these conditions is that the preference petition be supported by a valid and unexpired labor certification.

The majority reasons that this savings clause is inconsistent with section 60.5(b), since the preference petition would have expired prior to March 30 only if its supporting labor certification had been signed more than a year prior to that date. If section 60.5(b) is ap*942plied to “outstanding” as well as new certifications, all such supporting certifications would be invalid. Under such a construction, the majority concludes, no preference petition could ever be reinstated under the savings clause.

The majority overlooks the fact, however, that between February 4, the date that the new section 60.5(b) became effective, and March 30, the date the new section 204.4(b) became effective, an immigrant could have revalidated his labor certification. Thus, on March 30 he would have had a valid labor certification but an expired preference petition. The savings clause by its express terms applies to these individuals.

The fact situation in this case demonstrates how the regulation was designed to work. Maceren’s preference petition expired on November 17, 1970, but his labor certification remained invalid until February 4, when it terminated automatically under the new regulation. If Maceren had revalidated his labor certification between February 4 and March 30, his preference petition would have been reinstated under the savings clause.

Although this construction of the regulations limits the scope of the savings clause to a short period of time, it gives effect to all of the terms of both regulations. The majority’s construction requires the court to give no effect to the language in section 60.5(b) that makes that regulation applicable to “outstanding” labor certifications. Under established rules of construction, we are to give effect to all the words of a statute and to harmonize all the statutes dealing with one subject. Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 633, 93 S.Ct. 2469, 37 L.Ed.2d 207 (1973); Jarecki v. G. D. Searle & Co., 367 U.S. 303, 307, 81 S.Ct. 1579, 6 L. Ed.2d 859 (1961); United States v. Menasche, 348 U.S. 528, 538-539, 75 S. Ct. 513, 99 L.Ed. 615 (1955); Ruiz v. Morton, 462 F.2d 818, 819-820 (9th Cir. 1972), aff’d, 415 U.S. 199, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974). The majority needlessly fails to apply this rule.

I would conclude that Maceren was not entitled to permanent resident status because his preference petition had expired and because he failed to revalidate his labor certification. I, therefore, would reverse.