Opinion
19-CV-11732 (LJL)(KNF)
03-19-2021
CEFERINO ANORA, JR., Plaintiff, v. OASIS PROFESSIONAL MANAGEMENT GROUP, LTD., MARISSA BECK, and RAMON AVENA, Defendants.
TO THE HONORABLE LEWIS J. LIMAN, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
KEVIN NATHANIEL FOX UNITED STATES MAGISTRATE JUDGE
INTRODUCTION
Plaintiff Ceferino Anora, Jr. (“Anora”) commenced this action against defendants Oasis Professional Management Group, Ltd. (“Oasis”), Marissa Beck (“Beck”), and Ramon Avena (“Avena”) (collectively, “defendants”). Anora alleged that Oasis and Beck, his employers, along with Avena, an immigration lawyer, violated the Forced Labor statute of the Trafficking Victims Protection Act of 2003 (“TVPA”), 18 U.S.C. § 1589, and that Beck and Oasis violated the TVPA's Human Trafficking statute, 18 U.S.C. § 1590. On October 5, 2020, Avena made a motion to dismiss the complaint against him for failure to state a claim upon which relief may be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Docket Entry No. 17. Anora filed his opposition to Avena's motion on November 6, 2020. Docket Entry No. 26. Avena filed his reply on November 19, 2020. Docket Entry No. 29. Thereafter, all parties stipulated that Anora would amend his complaint. Docket Entry No. 32. Anora filed the Amended Complaint on January 14, 2021. Docket Entry No. 35. Avena requested that the Court apply his motion to dismiss to the Amended Complaint. Docket Entry No. 34. Therefore, the Court will consider the contentions raised in the parties' submissions at Docket Entry Nos. 1720, 26, and 29, in determining whether the Amended Complaint states a claim against Avena upon which relief may be granted.
ALLEGATIONS IN THE AMENDED COMPLAINT
The following allegations are drawn from the Amended Complaint. See Docket Entry No. 35.
Anora is a citizen of the Philippines who came to the United States on a B-1 visa to sit for physical therapy licensure examinations. In May 2016, Anora was approached by a recruitment officer from Oasis, a healthcare staffing services provider. Oasis offered to employ Anora, and Beck, Oasis's president, offered Anora immigration sponsorship as a physical therapist under the EB-2 immigrant-worker category. Anora began working for Oasis as a physical therapist in June 2016, and was assigned to medical offices in Mount Vernon, New York; Brooklyn, New York; Forest Hills, New York; and the Bronx, New York. Oasis paid Anora initially at a rate of $27.00 per hour; in December 2016, Oasis raised his pay to $31.61 per hour.
Paragraph 7 of the Amended Complaint states that Anora “entered the United States lawfully with a B-1 visa . . .” and paragraph 105 refers to Anora's “B-1 status.” However, paragraphs 37 and 65 of the Amended Complaint refer to Anora's “B-2 status” and “B-2 nonimmigrant status.”
Avena was engaged by Beck and Oasis to provide immigration law advice and prepare and file immigration sponsorship documents. At Beck and Oasis's direction, Avena prepared a Form I-140 Immigrant Petition for Alien Worker and filed it on Anora's behalf with the United States Department of Homeland Security/Citizenship and Immigration Services (“USCIS”) in October 2016. Beck and Oasis signed this document, attesting that they would pay Anora at or above the prevailing wage rate for the physical therapist position. Anora alleges that “[u]pon information and belief, ” before filing the documents, Avena requested a prevailing wage determination for the position from the United States Department of Labor and informed Oasis and Beck of the prevailing wage. The prevailing wage rate for an EB-2 physical therapist position in the New York City area in the first half of 2016 was between $31.99 and $37.92 per hour; in the second half of 2016, it was between $37.92 and $43.86 per hour. When Avena filed the Form I-140 petition, Avena filed an EB-2 Form I-485 application on Anora's behalf, the purpose of which was to adjust Anora's visa status from nonimmigrant to immigrant and secure his green card.
On September 27, 2017, Anora's Form I-140 petition was denied, due to deficiencies in the notice of filing submitted by Avena. As a result of the denial of the Form I-140 petition, on October 18, 2017, Anora's Form I-485 application was also denied. When Anora learned that the application and petition had been denied, he contacted Oasis and Beck, who told him that they would resolve the issues by filing new versions of the documents, and that he could continue working for them because he still had a valid employment authorization document card. Anora's nonimmigrant visa had expired on October 21, 2016. Anora continued working for Oasis and Beck. Avena filed a second Form I-140 petition and a second Form I-485 application on Anora's behalf in December 2017. Anora alleges that Avena filed the new forms “to cover up his incompetence, ” that Avena “knew or should have known that ‘a pending adjustment application does not put a foreign national in a lawful immigration status' or that the ‘period of first I-485 application cannot count as time spent in lawful immigration status'”, and that Avena “deliberately misrepresented [Anora's] eligibility to adjust status and re-filed [Anora's] Form I-485 adjustment application so he could bill [Anora] for his services and also so that his clients, herein Defendants Oasis and Beck, could continue to obtain the labor or services of [Anora].”
In April 2018, Anora began complaining to Oasis and Beck that he suspected he was not being paid at or above the prevailing wage rate for the physical therapist position. Anora asked Oasis and Beck what hourly rate he should be receiving and asked for copies of the prevailing wage determination as well as the rest of his immigration paperwork. Oasis's physical therapy coordinator shouted at Anora over the telephone, telling him that he was being difficult to deal with and complaining too much. The physical therapy coordinator also told Anora that he was being paid the prevailing wage rate but did not provide Anora with copies of the documents he sought. Anora alleges that Avena knew that Oasis and Beck were not paying their employees, including Anora, the prevailing wage rates, but did not remind Oasis and Beck to pay their employees at least the prevailing wage rates.
Because he had not received copies of his immigration documents and the prevailing wage determination, Anora “refused to take any new assignments” from Oasis from September 15, 2018, through October 2, 2018. Oasis's physical therapy coordinator told Anora that if he did not respond to Oasis's communications attempting to give him his next assignment, Beck had threatened that she would not respond to a request for evidence from USCIS that was pending in connection with Anora's second Form I-140 petition. The physical therapy coordinator also said that if Anora did not stop complaining, Oasis and Beck would withdraw their immigration sponsorship. Afraid that they would follow through with these threats, Anora returned to work for Oasis and continued to be paid a wage of $31.61 per hour.
On January 24, 2019, USCIS approved Anora's second Form I-140 petition. However, on June 13, 2019, USCIS denied Anora's second I-485 application, on the ground that the first I-140 petition and first I-485 application had been denied. Even though Anora had been unlawfully present in the United States since his original visa had expired in October 2016, Beck and Avena convinced Anora that they could still fix the problem with his immigration documents. On June 20, 2019, Avena emailed Anora, advising him that he could still work for Oasis because his employment authorization document card remained valid and the Form I-485 denial was not yet final. On June 25, 2019, Anora wrote back to Avena and Beck, informing them that based on Avena's legal opinion that his employment authorization document card meant he could still work legally for Oasis, he would continue to do so. Anora questioned again whether he was being paid at the proper rate. In that email message, Anora “asked [] Beck and Avena why did they give him hope that his immigration papers could still be fixed” and “told them that they probably did so, so that [Anora] would continue working for [] Oasis at less wages than what he was supposed to be paid.” Anora reminded Beck that she had threatened not to respond to the request for evidence if Anora did not take a new assignment. Beck and Avena did not respond to this email message.
In subsequent email messages to Beck, Avena, and Oasis employees during June and July 2019, Anora continued to complain about his wages, ask for copies of the immigration documents filed on his behalf, and question why Avena had filed a new Form I-140 petition and new Form I-485 application when it was not possible for this to allow Anora to continue working legally in the United States. Avena did not reply to Anora's email messages, although Avena's “office” asked Anora to sign a motion to reopen the Form I-485 application denial. On July 9, 2019, Anora emailed Avena, asking Avena whether “he knew that the re-filing of [Anora's] Form I-485 adjustment application, after it had initially been denied, would not count as time spent in lawful immigration status, as per the USCIS website, ” and asked again for a copy of his I-140 petition. Avena did not respond to the July 9, 2019, email message. Avena later told Anora, Oasis, and Beck that Anora could be deported because his visa had expired. Anora “decided to terminate his employment relationship” with Oasis, because Anora's concerns were not addressed adequately by Oasis, Beck, and Avena.
Anora alleges that “the only reason Defendants Oasis, Beck and their immigration lawyer misrepresented the law to [Anora] on immigration sponsorship was so that Defendant Oasis could continue to obtain [Anora's] services, and yet pay him less than what it should be paying him in terms of prevailing wage rate” and that the defendants “hid the fact that the denial of the first Form I-140 immigrant petition which caused the denial of [Anora's] first Form I-485 adjustment application meant that the [employment authorization document] card issued to [Anora] would no longer be valid as well” and that they “hid this fact so that they could continue to obtain [Anora's] services or labor and benefit therefrom.” Anora alleges that the defendants “knew or should have known” that filing a second set of his immigration documents would not result in Anora being authorized to continue working legally in the United States. Particularly, Avena “knew or should have known, as any competent immigration lawyer would know” that filing a second set of documents would not result in Anora being authorized to continue working legally in the United States, and Avena “deliberately misled” Anora that filing a second set of documents would cure the problem.
Anora alleges that “through fraud and/or abuse of the immigration sponsorship process, Defendants secured and obtained [Anora's] services or labor and his continuing services or labor” and that “Oasis, Beck, and Avena knowingly benefited financially from participation in the obtainment or provision of [Anora's] labor or services, through abuse of the immigration legal process.” Anora alleges that “the recommendation of and actual re-filing of [the] Form I-485 adjustment application was an abuse of the immigration sponsorship process because the refiling of the Form I-485 adjustment application was resorted to, not to secure [Anora's] green card, but to exert pressure on [Anora] to continue working for Defendants Oasis and Beck or to cause [Anora] not to leave Defendants' employment.” Further, Anora alleges that “by falsely claiming” that filing a second set of documents would allow Anora to continue working legally for Oasis “and/or by being negligently silent as to the truths of the effects of the futile re-filings, Defendants Oasis, Beck[, ] and Avena knowingly benefited financially from participation in the obtainment or provision of [Anora's] labor or services, through abuse of the immigration legal process.”
LEGAL STANDARD
To survive a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), a complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974 (2007)). The factual allegations contained in the complaint must “be enough to raise a right to relief above the speculative level” and “nudge [the claim] across the line from conceivable to plausible.” Twombly, 550 U.S. at 555, 570, 127 S.Ct. at 1965, 1974. While a court must accept the factual allegations contained in the complaint as true, legal conclusions that are couched as factual allegations are not entitled to the presumption of truth. See Iqbal, 556 U.S. at 678, 129 S.Ct. at 1950; see also Kirch v. Liberty Media Corp., 449 F.3d 388, 398 (2d Cir. 2006) (internal quotation marks and citations omitted) (“Conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to [defeat] a motion to dismiss.”) Thus, when deciding a motion to dismiss under Rule 12(b)(6), the Court need not credit speculative inferences, “bald assertions and conclusions of law.” Spool v. World Child Int'l Adoption Agency, 520 F.3d 178, 183 (2d Cir. 2008) (internal quotation marks omitted).
The TVPA's Forced Labor statute prohibits anyone from knowingly obtaining the labor or services of a person:
(1) by means of force, threats of force, physical restraint, or threats of physical restraint to that person or another person;
(2) by means of serious harm or threats of serious harm to that person or another person; (3) by means of the abuse or threatened abuse of law or legal process; or
(4) by means of any scheme, plan, or pattern intended to cause the person to believe that, if that person did not perform such labor or services, that person or another person would suffer serious harm or physical restraint.18 U.S.C. § 1589(a).
The statute defines “serious harm” as “any harm, whether physical or nonphysical, including psychological, financial, or reputational harm, that is sufficiently serious, under all the surrounding circumstances, to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing labor or services in order to avoid incurring that harm.” 18 U.S.C. § 1589(c)(2). The Second Circuit has held that threats of deportation or of withdrawal of immigration sponsorship can constitute threats of serious harm as contemplated by 18 U.S.C. § 1589(c). See Adia v. Grandeur Mgmt., Inc., 933 F.3d 89, 93-94 (2d Cir. 2019). “[A]buse or threatened abuse of law or legal process” is defined as “the use or threatened use of a law or legal process, whether administrative, civil, or criminal, in any manner or for any purpose for which the law was not designed, in order to exert pressure on another person to cause that person to take some action or refrain from taking some action.” 18 U.S.C. § 1589(c)(1).
The statute further prohibits “knowingly benefit[ing], financially or by receiving anything of value, from participation in a venture which has engaged in the providing or obtaining of labor or services by any of the means described in subsection (a), knowing or in reckless disregard of the fact that the venture has engaged in the providing or obtaining of labor or services by any of such means.” 18 U.S.C. § 1589(b). Title 18 U.S.C. § 1595(a) provides a person victimized by a violation of 18 U.S.C. § 1589 a private right of action for damages.
APPLICATION OF LEGAL STANDARD
18 U.S.C. § 1589(a)(2)Anora has not alleged facts sufficient to state a claim that Avena “knowingly obtain[ed] [his] labor or services . . . by means of serious harm or threats of serious harm to [Anora] or another person.” 18 U.S.C. § 1589(a)(2). Although a threat of deportation can constitute a threat of serious harm, see Adia, 933 F.3d at 93-94, Anora does not allege facts tending to show that Avena threatened him with deportation. Anora alleges only that Avena informed Anora, Oasis, and Beck that Anora could be deported because his immigration petitions had been denied and his visa had expired. This warning of a potential adverse consequence resulting from the denial of Anora's immigration petition does not rise to the level of a “threat of serious harm.” Moreover, Anora does not allege that Avena informed him that he could be deported, or otherwise used the means of serious harm or threats of serious harm, “in order to obtain his labor.” Therefore, Anora fails to state a claim against Avena under 18 U.S.C. § 1589(a)(2).
18 U.S.C. § 1589(a)(3)Neither has Anora alleged facts sufficient to state a claim that Avena “knowingly obtain[ed his] labor or services . . . by means of the abuse or threatened abuse of law or legal process.” 18 U.S.C. § 1589(a)(3). Anora has not alleged facts tending to show that Avena “used or threatened to use the law or legal process . . . in any manner or for any purpose for which the law was not designed” in order to “exert pressure on” Anora to continue working for Oasis. 18 U.S.C. § 1589(c)(a).
Although Anora claims that the “recommendation of and actual re-filing of [the] Form I-485 adjustment application was an abuse of the immigration sponsorship process because the refiling of the Form I-485 adjustment application was resorted to, not to secure [Anora's] green card, but to exert pressure on [Anora] to continue working for Defendants Oasis and Beck or to cause [Anora] not to leave Defendants' employment, ” Anora does not allege sufficient factual material to render this claim more than speculative. Anora alleges that Avena, an immigration attorney, was engaged by Oasis and Beck to file immigration documents on Anora's behalf, that Avena prepared and filed a Form I-140 petition and a Form I-485 application with USCIS, and that after both were denied, Avena recommended that a second version of each form be filed and, thereafter, prepared and filed a second version of each form. Anora alleges that Avena told Anora, Oasis, and Beck, incorrectly, that filing the second set of documents would solve the problem and that Anora could continue working legally for Oasis. Anora's various allegations regarding Avena's motivation for filing a second set of documents are inconsistent. Contrary to his claim that Avena recommended that a second set of immigration documentation be filed “to exert pressure” on Anora to continue working for Oasis, Anora also alleges that the reason Avena recommended that a new Form I-140 petition and new Form I-485 application be filed was “to cover up his incompetence.” Anora alleges further that Avena “knew or should have known, as any competent immigration lawyer would know, ” that filing a second set of paperwork could not correct the problem. However, he “deliberately misrepresented [Anora's] eligibility to adjust status and re-filed [Anora's] Form I-485 adjustment application so he could bill [Anora] for his services and also so that his clients, herein Defendants Oasis and Beck, could continue to obtain the labor or services of [Anora].” Later in the Amended Complaint, Anora alleges that Avena “falsely claimed” that filing a second set of documents would fix the problem “and/or . . . negligently [was] silent as to the truths of the effects of the futile re-filings.”
Anora, thus, alleges that Avena: 1) acted negligently with respect to filing the second set of documents; and 2) filed the second set of documents deliberately, knowing that the filing could not result in Anora being authorized to work for Oasis legally. In addition, Anora alleges variously that the reason Avena undertook to file the second set of documents was to cover up his incompetence, receive payment for the work, and to “exert pressure on [Anora] to continue working for Defendants Oasis and Beck.” In the face of these inconsistencies, Anora has not alleged plausibly that Avena undertook to file a second set of documents in order to exert pressure on Anora to continue working for Oasis. The bare assertions that Avena misrepresented to Anora that the filing of the second Form I-485 application would secure successfully his green card “in order to exert pressure on [Anora] to continue working for Defendants Oasis and Beck” and “so that his clients, herein Defendants Oasis and Beck, could continue to obtain the labor or services of [Anora]” are legal conclusions couched as factual allegations and, on a motion to dismiss, are not required to be given the presumption of truth. Accordingly, Anora has failed to state a claim against Avena under 18 U.S.C. § 1589(a)(3).
18 U.S.C. § 1589(a)(4)Anora has not alleged facts sufficient to state a claim that Avena “knowingly . . . obtained[ed his] labor or services . . . by means of any scheme, plan, or pattern intended to cause [him] to believe that, if [he] did not perform such labor or services, [he] or another person would suffer serious harm.” 18 U.S.C. § 1589(a)(4). Anora contends that Avena's recommendation that a second set of documents be filed after USCIS denied the first set “constituted a scheme, plan or pattern that Defendants, including Defendant Avena, intended to cause [Anora] to believe that if he did not continue performing his labor or services, he would suffer serious harm, specifically, financial harm and/or harm to his immigration status.” As discussed above, while a threat of deportation can constitute a threat of serious harm for the purposes of 18 U.S.C. § 1589(a)(4), Anora does not allege that Avena intended to cause Anora to believe that, if Anora did not continue working for Oasis, Anora would be deported. Anora alleges merely that, after the filing of the second set of documents was unsuccessful, Avena informed Anora that he would be deported because Anora's visa had expired. Anora also alleges that Beck and an Oasis employee threatened not to respond to the pending request for evidence from USCIS if Anora would not take a new assignment, and told Anora that Oasis would withdraw its immigration sponsorship if he did not stop complaining about his pay rate. This could constitute a scheme to obtain Anora's labor by making him believe that serious harm, in the form of deportation following withdrawal of immigration sponsorship, would befall Anora if he continued complaining about his pay rate and did not take a new assignment. See Adia, 933 F.3d at 93 (finding that plaintiff had stated a claim under 18 U.S.C. 1589(a)(4) when “[t]he defendants' threat that they would withdraw sponsorship could plausibly be understood as a scheme to convince him that he would be harmed by deportation if he left or asked for overtime pay.”). However, Anora does not allege that he told Avena of the threats made by Beck and Oasis at the time they were made, that Avena was otherwise aware of these threats when they were made, or that Avena was party to a scheme or plan that produced these threats; Anora alleges only that he mentioned these threats in an email message sent to Avena in June 2019, eight months after the threats were made in September 2018. Accordingly, Anora has failed to state a claim against Avena under 18 U.S.C. § 1589(a)(4).
18 U.S.C. § 1589(b)Anora does not allege facts sufficient to state a claim that Avena “knowingly benefit[ed], financially or by receiving anything of value, from participation in a venture which has engaged in the providing or obtaining of labor or services by any of the means described in subsection (a), knowing or in reckless disregard of the fact that the venture has engaged in the providing or obtaining of labor or services by any of such means.” 18 U.S.C. § 1589(b).
There are insufficient facts from which the Court can infer that Avena knowingly participated in any alleged violations of Section 1589(a) by Oasis and Beck. Anora alleges that “upon information and belief” Avena requested a prevailing wage determination from the Department of Labor before filing the first Form I-140 petition, that Avena informed Beck and Oasis of the prevailing wage rate, and that Avena did this again prior to filing the second Form I-140 application. While Anora alleges that Avena had “knowledge that Defendants Oasis and Beck were not paying their immigration beneficiary-employees, including herein [Anora], the correct prevailing wage rates, ” he does not plead sufficient factual material to move this claim beyond speculation. Although Federal Rule of Civil Procedure 9(b) allows knowledge and other conditions of a person's mind to be alleged generally, even with respect to these states of mind “the Federal Rules do not require courts to credit a complaint's conclusory statements without reference to its factual context.” Iqbal, 556 U.S. at 686, 129 S.Ct. at 1954. Anora does not allege that he told Avena that he was being paid less than the prevailing wage rate; he raised his complaints about his wages to Beck and Oasis employees. Anora alleges that, on June 25, 2019, three years after Anora's employment with Oasis began, Anora emailed Beck and Avena and alluded to the fact that he thought he was being paid less than he should have been, but Avena did not respond to this email message. At most, the well-pleaded factual allegations suggest that Avena knew or should have known that Beck and Oasis were paying Anora less than the prevailing wage rate, because previous cases involving Beck and Oasis's mistreatment and underpayment of workers were “widely publicized” and “upon information and belief, . . . many individuals, including [Avena] came to know about” these cases. However, notwithstanding Avena's knowledge or lack thereof regarding Anora's pay rate, Anora does not allege that Avena knew or had reason to know of Beck and Oasis's threats to not respond to the request for evidence or withdraw his immigration sponsorship until eight months after these threats were allegedly made. Therefore, Anora has not alleged that Avena “participat[ed] in a venture . . . knowing or in reckless disregard of the fact that” prohibited means were used to obtain Anora's labor.
Furthermore, Anora does not allege that Avena received any benefits other than payment for his immigration-related legal services. Anora does not allege that these payments were dependent on or in any way related to Beck and Oasis's alleged underpayment of Anora. See Geiss v. Weinstein Co. Holdings LLC, 383 F.Supp.3d 156, 169 (S.D.N.Y. 2019) (addressing identical language in 18 U.S.C. § 1591(a) and finding that the crucial question is whether benefits were provided because of participation in conduct violating the TVPA). Insufficient factual matter exists in the Amended Complaint from which the Court can infer that Avena knowingly benefited from participation in a venture to obtain Anora's services or labor through means proscribed by 18 U.S.C. § 1589(a), or that he acted knowing of, or in reckless disregard of, the fact that such means were used. Anora has therefore failed to state a claim against Avena under 18 U.S.C. § 1589(b).
RECOMMENDATION
For the reasons set forth above, I recommend that Avena's motion to dismiss the complaint against him, Docket Entry No. 17, be granted.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Any requests for an extension of time for filing objections must be directed to Judge Lewis J. Liman. Failure to file objections within fourteen (14) days will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003).