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Svelte Construction LLC v. Baran

United States District Court, D. Minnesota

March 18, 2019

SVELTE CONSTRUCTION, LLC, Plaintiff,
v.
KATHY A. BARAN, Director, U.S Citizenship and Immigration Services; L. FRANCIS CISSNA, U.S. Citizenship and Immigration Services, Director; KIRSTJEN M. NIELSEN, Secretary, Department of Homeland Security, Defendants.

          ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

          NANCY E. BRASEL UNITED STATES DISTRICT JUDGE

         Plaintiff Svelte Construction, LLC (“Svelte”) seeks review of the Defendants' denial of its I-129 petition for an L-1A nonimmigrant visa so that its beneficiary, Anthony Chukwuemeka Ufo, may work in the United States as Svelte's CEO for one year. To receive the visa, Svelte has the burden of proving “the intended United States operation, within one year of the approval of the petition, will support an executive or managerial position.” 8 C.F.R. § 214.2(1)(3)(v)(C). Both parties have moved for summary judgment. Because there are insufficiently specific facts to prove Ufo would be primarily serving in an executive or managerial capacity, the Court grants the Defendants' motion and denies the Plaintiff's motion.

         BACKGROUND

         Svelte is registered as a limited liability company in Minnesota. [ECF No. 17-1 (“Admin. Rec.”) at 69.] Svelte claims to be a subsidiary of Svelte Construction Limited (“Svelte Nigeria”), a Nigerian civil and building construction company.[1] [ECF No. 14 at 2.] In January 2018, Svelte filed a Form I-129 for an L-1A nonimmigrant visa to allow Ufo to be employed within the United States as Svelte's Chief Executive Officer for one year. (Admin. Rec. at 2.) In the petition, Svelte indicated its type of business as “Civil and Building [C]onstruction.” (Id. at 23.) It also stated it currently has zero employees within the United States and that its address is 222 South 9th Street, Ste. 1600, Minneapolis, MN 55402. (Id.)

         After Svelte submitted its petition, the U.S. Citizenship and Immigration Services (“USCIS”) issued a Request for Evidence (“RFE”), asking Svelte to provide additional documentation to show that its office will support Ufo in a primarily managerial or executive position within one year. (Id. at 213-17.) Svelte submitted a response in March 2018, and a week later USCIS issued a decision denying the petition. (Id. at 218-447; 2-7.)

         Svelte then brought this action, seeking a declaratory judgment under the Administrative Procedure Act (“APA”), 5 USC § 702 et seq., and the Declaratory Judgment Act, 28 U.S.C. § 2201, that Ufo is entitled to the nonimmigrant visa. [ECF No. 1.] Both parties brought motions for summary judgment which are now before this Court. [ECF No. 12, 18.] At the hearing on the cross-motions for summary judgment, held on December 17, 2018, the Court requested supplemental briefing on the issue of whether it had subject matter jurisdiction to review USCIS's decision. Both Svelte and USCIS provided the Court with the requested briefing. [ECF No. 38, 41.]

         I. Subject Matter Jurisdiction

         At the outset, the Court considers whether it has jurisdiction to review the denial of the nonimmigrant visa petition. Neither party contests that this Court has jurisdiction, but the Court may address issues of statutory jurisdiction sua sponte. See Irshad v. Johnson, 754 F.3d 604, 607 (8th Cir. 2014) (courts may but need not address statutory jurisdiction sua sponte); Lukowski v. I.N.S., 279 F.3d 644, 646-47, n.1 (8th Cir. 2002); see also In re Tronox Inc., 855 F.3d 84, 95 (2d Cir. 2017); Diaz v. San Jose Unified Sch. Dist., 861 F.2d 591, 594 (9th Cir. 1988). A district court may not review “any . . . decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security. . .” 8 U.S.C. § 1252(a)(2)(B)(ii). This rule applies only to decisions made discretionary by statute, not by regulations. Kucana v. Holder, 558 U.S. 233, 246-49 (2010).

         Svelte requested USCIS classify Ufo as a nonimmigrant alien under 8 U.S.C. § 1101(a)(15)(L), which includes the following requirements:

[A]n alien who, within 3 years preceding the time of his application for admission into the United States, has been employed continuously for one year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and who seeks to enter the United States temporarily in order to continue to render his services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves specialized knowledge.

8 U.S.C. § 1101(a)(15)(L); INA § 101(a)(15)(L). The admissibility of nonimmigrants through L-1A visas is governed by 8 U.S.C. §1184, which provides that “[t]he Attorney General shall provide a process for reviewing and acting upon petitions under this subsection with respect to nonimmigrants described in section 101(a)(15)(L) within 30 days after the date a completed petition has been filed.” 8 U.S.C. §1184(c)(2)(C).

         While the Eighth Circuit has not considered the statute at issue in this case, it conducted a similar evaluation in Ginters v. Frazier. 614 F.3d 822, (8th Cir. 2010). In Ginters, the Eighth Circuit found that the statutory sections governing the Form I-130, Petition for Alien Relative-8 U.S.C. § 1154(b) and (c)-are not discretionary, and can therefore be reviewed. Ginters, 615 F.3d at 828-29. The court held that “[t]he use of the word ‘shall' in [Sections 1154(b) and (c)] indicates the Attorney General does not have discretion with regard to . . . granting an I-130 petition . . . .” Id. The court noted there was no other language in the statute conferring discretion upon the Attorney General, distinguishing the case from other cases where certain determinations were explicitly listed as “within the sole discretion of the Attorney General.” Id. (citing Suvorov v. Gonzales, 441 F.3d 618, (8th Cir. 2006), Ignatova v. Gonzales, 430 F.3d 1209, 1213 (8th Cir. 2005), and Ebrahim v. Gonzales, 471 F.3d 880 (8th Cir. 2006)). The same analysis applies here. The relevant statute-8 U.S.C. § 1184(c)-states the Attorney General shall make a process for reviewing petitions. And, as in Ginters, there is no additional language in the statute giving the Attorney General discretion. Without language conferring discretion on the Attorney General, this Court will not read the statute as within the discretion on the Attorney General such that it does not have jurisdiction to review this case.[2]

         Several courts outside the Eighth Circuit have agreed with this analysis- determining that 8 U.S.C. § 1184(c)(1) does not preclude judicial review under 8 U.S.C. § 1252(a)(2)(B)(ii) because the language of the statute does not explicitly leave the decision to grant the visa within the sole discretion of Attorney General.[3] See Fogo De Chao (Holdings) Inc. v. U.S. Depʹt of Homeland Sec., 769 F.3d 1127, 1138-39 (D.C. Cir. 2014) (determining § 1184(c)(1) does not preclude judicial review of a denial of a L-1B visa: “Congress nowhere textually assigned such judgments to the Secretary of Homeland Securityʹs or the Attorney Generalʹs sole discretion.”); Hakamudin v. Chertoff, No. CIV. 4:08-CV-1261, 2008 WL 8444770, at *4 (S.D. Tex. Aug. 18, 2008). (Section 1184(c)(1) “appears to simply designate the Attorney General as the proper official to make such a determination. Devoid of any language specifying the level of deference to be afforded the Attorney General, [the statute] does not preclude judicial review under Section 1252.”); Shah v. Chertoff, No. 3:05-CV-1608 BH(K)ECF, 2006 WL 2859375, at *5 (N.D. Tex. Oct. 5, 2006) (determining the court had jurisdiction because “§ 1184(c)(1) does not plainly specify discretion”). As these cases note, the language of § 1184(c)(1) appears simply to be instructing the Attorney General to establish regulations; it does not appear to be giving the Attorney General sole discretion to evaluate petitions. Therefore, the Court has jurisdiction to review USCIS's denial of Svelte's petition.

         II. Standard of Review

         “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute of fact is “genuine” if a factfinder could reasonably determine the issue in the non-moving party's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A court considering a motion for summary judgment must view the facts in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences to be drawn from those facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The nonmoving party “may not rest upon allegations, but must produce probative evidence sufficient to demonstrate a genuine issue [of material fact] for trial.” Davenport v. Univ. of Ark. Bd. of Trs., 553 F.3d 1110, 1113 (8th Cir. 2009) (citing Anderson, 477 U.S. at 247-49).

         Generally speaking, “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. A court may set aside an agency's decision if it finds the decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706(2). An agency's decision is arbitrary or capricious if “the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” El Dorado Chem. Co. v. E.P.A.,763 F.3d 950, 955-56 (8th Cir. 2014)(citation omitted). “The scope of review is ‘narrow and a court is not to substitute its judgment for that of the agency.'” Rauenhorst v. U.S. Depʹt of Transp., Fed. Highway Admin., 95 F.3d 715, 718-19 (8th Cir. 1996) (citation omitted). At the same time, however, “the agency must ...


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