United States District Court, D. Minnesota
ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
E. BRASEL UNITED STATES DISTRICT JUDGE
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.
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. [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.
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;
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.]
Subject Matter Jurisdiction
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
requested USCIS classify Ufo as a nonimmigrant alien under 8
U.S.C. § 1101(a)(15)(L), which includes the following
[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).
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.
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. 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
Standard of Review
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).
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 ...