offer fell below the prevailing wage scale paid to Philadelphia public school art teachers. Subsequently, plaintiff's employer was notified that a labor certification could not be issued because (1) available job market information would not warrant a certification of unavailability of United States workers at the prevailing wage in the Philadelphia area and (2) employment at substandard wages would have an adverse effect on United States labor.
On May 1, 1970, the vice principal of the high school requested the Regional Manpower Administrator to reconsider plaintiff's application, but on May 11, it was again denied. Plaintiff's employer informed the Administrator on July 21, that further attempts to hire a qualified art teacher had been unsuccessful, and reconsideration of the application was again requested. On August 7, the Administrator reaffirmed his previous denial and eleven days later plaintiff filed the present action.
The court's initial finding must be whether it has jurisdiction to review a determination relegated to the Secretary of Labor. The government urges we do not but concedes that there is a practice of assuming jurisdiction arguendo so that a determination can be reviewed on its merits. Previous cases have not squarely decided this problem. However, several have held that there is a general tendency to favor judicial review of administrative action which is especially powerful in immigration and naturalization cases. Estrada v. Ahrens, 296 F.2d 690 (5th Cir. 1961), involved the excluding of an alien who was in possession of a visa. The court stated that the effect of the Administrative Procedure Act and the Immigration Act was to make available judicial review of agency action relating to immigration. It then found that a court of law was the proper place to test unauthorized administrative power. Hom Sin v. Esperdy, 239 F. Supp. 903 (S.D.N.Y. 1965), held that a denial of consideration would run counter to the liberal policy of judicial review which does exist.
Once a court assumes jurisdiction, its scope of review is limited to determining whether there has been an abuse of discretion or whether statutory authority has been exceeded. In Blazina v. Bouchard, 286 F.2d 507 (3rd Cir. 1961), which involved an application for a stay of deportation, the court stated that an application may not be denied arbitrarily or capriciously or for reasons which evince a complete disregard of the law and the facts. The United States Supreme Court has long held that in exclusion cases involving an alien's attempt at entry, decisions of administrative officers, acting within powers expressly conferred upon them by statute, must conform fully to constitutional requirements of due process: United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 70 S. Ct. 309, 94 L. Ed. 317 (1950). The courts in such instances will make no de novo findings of fact and no full judicial review of the factual issues is permitted: Flower Furniture Manufacturing Corp. v. Esperdy, 229 F. Supp. 182 (S.D.N.Y. 1962).
An administrative decision based upon erroneous legal standards cannot stand: SEC v. Chenery Corp., 318 U.S. 80, 94, 63 S. Ct. 454, 87 L. Ed. 626 (1943). A denial of any review would leave petitioner helpless and subject to deportation despite the possible merits of the underlying case.
Accordingly, we find that this court has jurisdiction to review the findings of the Secretary of Labor made pursuant to § 212(a)(14) of the Immigration and Nationality Act, as amended, 8 U.S.C. § 1182(a)(14), but that that review is limited to determining whether the Secretary abused his discretion or committed an error of law.
Section 212(a)(14) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(14) provides:
(a) * * * the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States: