Our colleagues, Gary Endelman and Cyrus Mehta, wrote a comprehensive article addressing appeal issues in PERM cases. David Pakula, Michael Piston, and Sam Udani were also cited for their extensive input.
The article, called "What If I Don't Agree?: Review of a Denial of a Labor Certification in Federal Court," begins by opining the paradox that while the alien bears the burden of proof to establish eligibility for permanent residence under the Immigration and Nationality Act, the PERM regulation does not permit the alien to file an appeal of denial to BALCA or pay the Employer's attorney to file an appeal on behalf of the Employer.
The authors then go on to discuss whether a PERM application can be appealed directly to Federal District Court under the theory that the APA permits a cause of action to be brought by any "person" who has suffered a legal wrong or who has been adversely affected or aggrieved by agency action.
Thus it should be the APA at 5 U.S.C. 702 and not the PERM Rule at 20 CFR Sec. 656.24(e)(6)which is controlling in a situation where the alien, or any other person, wishes to bring an action for denial of a PERM application in Federal Court instead of appealing to BALCA.
The leading case is Darby v. Cisneros, 509 U.S. 137, 144-54, 125 L. Ed. 2d 113, 113 S. Ct. 2539 (1993). The authors maintain that exhaustion of administrative remedies by appealing to BALCA is not required if the following criteria exist: (1) Federal Review has been brought pursuant to the APA; (2) There is no statute that mandates an administrative appeal; (3) Either there is no regulation that mandates an administrative appeal, or if there is a regulation that mandates an administrative appeal, it also does not stay the agency decision pending administrative appeal; and (4) The adverse agency decision to be challenged is final for purposes of the APA.
The authors explain that based on these criteria, it "may be possible for an employer to bypass BALCA and seek review in federal court as there is no mandatory requirement in Sec. 656.26(a).
The fly in the ointment however is the fact that 20 CFR Sec. 656.24(d)(e)(3) provides that if a PERM application is denied, the Certifying Officer must advise that "failure to request review within 30 days of the date of the determination constitutes a failure to exhaust administrative remedies.
Under Darby, appeal may be brought under the APA if there is no regulation that mandates an administrative appeal, however, the language in the PERM Rule does not specifically mandate an administrative appeal. The Agency may have intended that to be the rule, but it did not express its intention. The authors point out that, "It is the agency's regulations, not its intentions, which are controlling."
The article then reviews more recent decisions following Darby and offers the warning that although the cases are not wholly supportive of access to federal court by aliens or others wishing to bypass appeals to BALCA, there is a body of law supporting the argument that jurisdiction should lie under the APA, even if aliens are the aggrieved parties.
In fact, the authors argue that the alien's right to appeal directly to federal courts under Darby is more clear for the following reasons: (1) 20 CFR 656.26 does not require an alien to go to BALCA; (2) In the labor certification context, the alien is not even informed of a right to appeal. This positive assertions relies on the premise that a decision called Ramirez v. Reich, 156 F.3d 1273 (DC Cir. 1998) was wrongly decided. In Ramirez, Darby was not mentioned. The Ramirez case only challenged the decision of the Certifying Officer as being arbitrary and capricious. The Authors suggest that the result might have been different, if the suit had challenged the validity of the PERM Regulation.
The authors conclude that due to the lack of clarity in the PERM rule, "the silence of those most directly responsible for the creation and administration of the labor certification process suggests, indeed commands, that the alien's APA rights not only be respected but nurtured and encouraged."