Opinion
CAUSE NO. A-18-CV-0835-LY
03-23-2020
DELTA TALENT, LLC, Plaintiff, v. Chad F. WOLF, in His Official Capacity as Acting Secretary of United States Department of Homeland Security, And United States Department of Homeland Security, Defendants.
Jonathan Wasden, Law Office, Fairfax Station, VA, Ruth Monty Willars, Monty & Ramirez LLP, Houston, TX, for Plaintiff. John F. Paniszczyn, U.S. Attorney's Office, San Antonio, TX, Samuel P. Go, U.S. Department of Justice, Washington, DC, for Defendants.
Jonathan Wasden, Law Office, Fairfax Station, VA, Ruth Monty Willars, Monty & Ramirez LLP, Houston, TX, for Plaintiff.
John F. Paniszczyn, U.S. Attorney's Office, San Antonio, TX, Samuel P. Go, U.S. Department of Justice, Washington, DC, for Defendants.
ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
LEE YEAKEL, UNITED STATES DISTRICT JUDGE
Before the court is the above-styled and numbered cause that arises under the Immigration and Nationality Act ("the Act"). See 8 U.S.C. §§ 1101 - 1537. Pursuant to the Administrative Procedure Act ("APA"), Plaintiff, Delta Talent, LLC, the Petitioner before the United States Citizenship and Immigration Services, Texas Service Center ("USCIS"), seeks judicial review and reversal of USCIS's February 26, 2019 Decision ("Decision") that denied Delta Talent's I-140 Petition "Immigrant Petition for Alien Worker" for a permanent resident visa ("the Petition"). See 5 U.S.C. §§ 500 - 559. By the Petition, Delta Talent sought an EB1C visa on behalf of Beneficiary Gerardo Gutierrez Osuna on the basis that for immigration-classification purposes, Gutierrez is an "immigrant multinational executive or manager." See 8 U.S.C. § 1153(b)(1)(C). The EB1C visa would allow Gutierrez, as a Delta Talent employee, to remain in the United States as a permanent-resident alien. Before the court are the parties' cross-motions for summary judgment, responses, replies, exhibits, and the parties' Joint Appendix, which includes all matters from the certified administrative record that the parties considered pertinent to the court's review. Having considered all of the parties' filings and the applicable law, the court renders the following order.
The Act creates two broad categories of employment-based visas: (1) nonimmigrant visas are temporary visas that can be immediately granted; and (2) immigrant visas are permanent-resident visas that often have years long wait lists. The Petition seeks an immigrant visa.
The Decision refers to Gerardo Gutierrez Osuna throughout as the "beneficiary," "an L-1A nonimmigrant working for the petitioner," or an "L-1 nonimmigrant." In the motions and responses, Gerardo Gutierrez Osuna is referred to as "the beneficiary" or "Gutierrez." The court refers to him as Gutierrez.
Delta Talent's Motion and Memorandum in Support of Plaintiff's Motion for Summary Judgment filed August 13, 2019 (Clerk's Document No. 22), Defendants' Opposition to Plaintiff's Motion for Summary Judgment filed October 30, 2019 (Clerk's Document No. 31), Defendants' Cross-Motion for Summary Judgment filed October 30, 2019 (Clerk's Document No. 32), Plaintiff's Reply to Defendants' Motion for Summary Judgment filed November 18, 2019 (Clerk's Document No. 35), Defendants' Reply in Support of Cross-Motion for Summary Judgment filed December 3, 2019 (Clerk's Document No. 36). Additionally, as the administrative record as too large for electronic filing, the parties' Joint Appendix was filed manually on December 17, 2019 (Clerk's Document No. 37).
"Summary judgment is required when ‘the movant shows that there is no dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ " Trent v. Wade , 776 F.3d 368, 376 (5th Cir. 2015) (quoting Fed. R. Civ. P. 56(a) ). "A genuine dispute of material fact exists when the ‘evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ " Nola Spice Designs, LLC v. Haydel Enters., Inc. , 783 F.3d 527, 536 (5th Cir. 2015) (quoting Anderson v. Liberty Lobby , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). "The moving party ‘bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.’ " Id. (quoting EEOC v. LHC Grp., Inc. , 773 F.3d 688, 694 (5th Cir. 2014) ). A fact is material if "its resolution could affect the outcome of the action." Aly v. City of Lake Jackson , 605 Fed. App'x 260, 262 (5th Cir. 2015). "If the moving party fails to meet [its] initial burden, the motion [for summary judgment] must be denied, regardless of the nonmovant's response." Pioneer Exploration, LLC v. Steadfast Ins. Co. , 767 F.3d 503 (5th Cir. 2014).
"When the moving party has met its Rule 56(c) burden, the nonmoving party cannot survive a summary judgment motion by resting on the mere allegations of its pleadings." Duffie v. United States , 600 F.3d 362, 371 (5th Cir. 2010). The nonmovant must identify specific evidence in the record and articulate how that evidence supports that party's claim. Willis v. Cleco Corp. , 749 F.3d 314, 317 (5th Cir. 2014). "This burden will not be satisfied by ‘some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.’ " Boudreaux v. Swift Transp. Co., Inc. , 402 F.3d 536, 540 (5th Cir. 2005). In deciding a summary-judgment motion, the court draws all reasonable inferences in the light most favorable to the nonmoving party. Darden v. City of Fort Worth , 866 F.3d 698, 702 (5th Cir. 2017).
On cross motions for summary judgment, the court reviews each party's motion independently, viewing the evidence and inferences in the light most favorable to the nonmoving party, determining for each side, whether judgment may be rendered in accordance with the Rule 56 standard. Amerisure Ins. Co. v. Navigators Ins. Co. , 611 F.3d 299, 304 (5th Cir. 2010) (internal citation and quotation omitted); Shaw Constr. v. ICF Kaiser Engrs., Inc. , 395 F.3d 533 fn. 8 & 9 (5th Cir. 2004).
In the context of a challenge to an agency action under the APA, "[s]ummary judgment is the proper mechanism for deciding, as a matter of law, whether an agency's action is supported by the administrative record and consistent with the APA standard of review." American Stewards of Liberty v. United States Dept. of Interior , 370 F. Supp. 3d 711, 723 (W.D. Tex. 2019) (quoting Blue Ocean Inst. v. Gutierrez , 585 F. Supp. 2d 36, 41 (D.D.C. 2008) ). When a party seeks review of agency action under the APA, the district judge sits as an appellate tribunal. See e.g., Redeemed Christian Church of God v. United States Citizenship & Immigration Servs. , 331 Fed. Supp. 3d 684, 694 (S.D. Tex. 2018). The entire case on review is a question of law. Id. Under the APA, it is the role of the agency to resolve factual issues to arrive at a decision that is supported by the administrative record, whereas ‘the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." Id. Summary judgment serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review. Id.
An applicant for a visa bears the burden of establishing eligibility by a preponderance of the evidence. See National Hand Tool Corp. v. Pasquarell , 889 F.2d 1472, 1475 (5th Cir. 1989). A denial of an application for a visa may be reversed by the court only if the USCIS decision is found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A) ; see also Defensor v. Meissner , 201 F.3d 384, 386 (5th Cir. 2000). "Although a reviewing court is bound to ensure that the [USCIS] engaged in ‘reasoned decision-making’ in denying an application, the [USCIS] is entitled to considerable deference in its interpretation of the governing statute." National Hand Tool Corp. , 889 F.2d at 1475 (citations omitted). The court may not substitute its own judgment for that of UCIS. City of Abilene v. United States Envtl. Prot. Agency , 325 F.3d 657, 664 (5th Cir. 2003). The court may only consider "whether the [USCIS] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment"–it does not reweigh the evidence. Marsh v. Oregon Nat. Res. Council , 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) ; Delta Found. Inc. v. United States , 303 F.3d 551, 563 (5th Cir. 2002). "Thus, if the agency considers the factors and articulates a rational relationship between the facts and the choice made, its decision is not arbitrary and capricious." Delta , 303 F.3d at 563. And indeed the "agency's decision need not be ideal, so long as the agency gave minimal consideration to relevant facts contained in the record." Id. The court also recognizes that deference is particularly appropriate in immigration matters, which are a "sovereign prerogative" of the executive and legislative branches of government. Landon v. Plasencia , 459 U.S. 21, 34, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982).
With these principles in mind, the court's review is limited to matters within the certified administrative record. Citizens to Preserve Overton Park v. Volpe , 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).
Background
The amended complaint alleges that Delta Talent LLC, a Texas Limited Liability Company, headquartered in Austin, Texas, is a subsidiary of Delta Inmobiliaria y Valores, S.A. de C.V. ("DIVA"), a Mexican multimillion dollar real estate business. DIVA, its affiliates, and subsidiaries operate under the trade name "Desarrollos Delta Group" ("DIVA/Desarrollos"). This conglomerate consists of several real estate and financial investment companies located in the United States and Mexico that are owned and controlled by the same five members of the Garza Santos family. DIVA/Dessarrollos Delta invested funds and has ownership and control of El Rincon U.S.A., S.A. de C.V. ("El Rincon"), "an entity created solely to hold financial investments from Mexico to the United States." El Rincon and the Garza Santos family have a combined 100% interest in three United States businesses, including Delta Talent.
On October 24, 2012, Delta Talent, on behalf of Gutierrez, filed a Form I-129, Petition for a Nonimmigrant Worker, seeking an L-1A visa–an intra-company visa for a petitioner's alien-employee to remain in the United States temporarily–that was approved on December 12, 2012. As part of that process, Delta Talent provided copies of Gutierrez's degree in accounting and proof he was a certified public accountant. Delta Talent explained that Gutierrez would function at a senior management level, working to develop and implement business strategies. Delta Talent also represented that Gutierrez would lead its operations in the United States.
An L-1A visa is available to:
an 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, and the alien spouse and minor children of any such alien if accompanying him or following to join him.
8 U.S.C. § 1101(a)(15)(L).
Then on June 24, 2014, Delta Talent filed the Petition, asserting that it was hiring Gutierrez as Vice-President of Delta Talent and would employ him permanently in the United States. Delta Talent's Petition sought to classify Gutierrez as a multinational executive or manager. See 8 U.S.C. § 1153(b)(1). After issuing a Notice of Intent to Deny ("NOID") and a Request for Evidence, USCIS denied the Petition on July 10, 2017. Delta Talent moved USCIS twice to reopen the matter, however, both motions were denied, with the last of the two denials occurring on December 14, 2017. Then, on its own motion and after suit was filed in this court, USCIS reopened the Petition and issued a second NOID on December 6, 2018. On January 7, 2019, Delta Talent responded to the NOID by submitting additional materials, after which USCIS issued the Decision.
The court stayed proceedings in this suit, pending USCIS issuing the Decision.
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The Decision reflects that USCIS determined that Delta Talent failed to prove by a preponderance of the evidence that Gutierrez was fully qualified for the benefit sought. See Matter of E-M- , 20 I. & N. Dec. 77 (Comm'r 1989). Specifically, USCIS determined that Delta Talent did not establish: (1) that it has a qualifying relationship with the foreign entity DIVA; (2) that Gutierrez had been employed in the proper capacity by DIVA in Mexico; and (3) that Gutierrez will be working for Delta Talent in the United States in a qualifying multinational managerial or executive capacity. Delta Talent moves the court for an order declaring the Decision unlawful and directing Defendants to approve the Petition. The Defendants move the court to affirm the Decision.
The law
To qualify for a multinational executive or manager visa classification, Delta Talent must establish that it has a qualifying relationship with the foreign entity.
Certain multinational executives and managers. An alien is described in this subparagraph if the alien, in the 3 years preceding the time of the alien's application for classification and admission into the United States under this subparagraph, has been employed for at least 1 year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and the alien seeks to enter the United States in order to continue to render services to the same employer or to a subsidiary or affiliate thereof in a capacity that is managerial or executive.
8 U.S.C. § 1153(b)(1)(C). "Managerial capacity" and "executive capacity" are defined terms. See 8 U.S.C. § 1101 (a)(44)(A), (B) ; 8 C.F.R. 214.2(l)(1)(ii). The term "managerial capacity" means an assignment within an organization in which the employee primarily
(i) manages the organization, or a department, subdivision, function, or component of the organization;
(ii) supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;
(iii) if another employee or other employees are directly supervised, has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) or, if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and
(iv) exercise discretion over the day-to-day operations of the activity or function for which the employee has authority.
8 U.S.C. § 1101 (a)(44)(A). The term "executive capacity" means an assignment within an organization in which the employee primarily
(i) directs the management of the organization or a major component or function of the organization;
(ii) establishes the goals and policies of the organization, component, or function;
(iii) exercises wide latitude in discretionary decision-making; and
(iv) receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.
Ownership and control are factors that must be examined in determining whether a qualifying relationship exists between United States and foreign entities for purposes of this visa classification. Ownership refers to the direct or indirect legal right of possession of the assets of an entity with full power and authority to control, and control means the direct or indirect legal right and authority to direct the establishment, management, and operations of an entity. Matter of Church Scientology Int'l , 191 I. & N. Dec. at 595 (Comm'r 1986). Control may be "de jure" by reason of ownership of 51 percent of outstanding stocks of the other entity or it may be "de facto" by reason of control of voting shares through partial ownership and possession of proxy votes. Matter of Hughes , 18 I. & N. Dec. 289 (Comm'r 1982).
As general evidence of a company's qualifying relationship, stock certificates alone are not sufficient evidence to determine whether a stockholder maintains ownership and control of a corporate entity. USCIS must examine the corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant annual shareholder meetings to determine the total number of shares issued, the exact number issued to the shareholder, the subsequent percentage ownership and its effect on corporate control. The petitioner must disclose all agreements relating to the voting of interests, the distribution of profit, the management and direction of the company, and any other factor affecting actual control of the company. Matter of Siemens Medical Sys., Inc. , 19 I. & N. Dec. 362 (Comm'r 1986).
For an immigrant employee to obtain a multinational executive or manager visa, the petitioner must establish that the beneficiary's duties will be primarily executive or managerial. A first line supervisor will not qualify as an international manager unless the employees supervised are professional. 8 U.S.C. § 101(a)(44)(A). Often it is necessary to consider other factors, including the petitioner's organizational hierarchy and its staffing, as these factors are accurate indicators of a company's ability to relieve the beneficiary from having to focus time primarily on the performance of non-qualifying operational tasks. See e.g., Fedin Bros. Co. Ltd. v. Sava , 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989)
Analysis
Delta Talent contends that USCIS was arbitrary and capricious for failing to distinguish between the denied EB1C immigrant multinational manager or executive petition and the previously approved L-1A nonimmigrant intracompany transferee manager petition.
Although similar, the statutory and regulatory requirements differ between the immigrant and nonimmigrant visas. Each petition is separate and independent, and USCIS must adjudicate each on its own merit. The fact that a beneficiary was previously deemed eligible as an L-1A nonimmigrant visa does not automatically establish the beneficiary's eligibility as an immigrant. See Matter of Church Scientology Int'l , 19 I. & N. Dec. 593, 597 (BIA 1988) ; see also National Hand Tool , 889 F.2d at 1476 (Congress did not intend for USCIS "to be bound by its initial determination that an employee is a manager for purposes of granting a temporary visa when an application for a permanent visa is filed"). Further, the benefits of a immigrant visa–permanent residence–are distinct from those provided by a nonimmigrant visa–only temporary residence. A decision to deny an I-140 petition, despite the earlier grant of an L-1A visa, does not violate the APA. See 8 U.S.C. § 1361 ("Whenever any person makes application for a visa or any other document required for entry, or makes application for admission, or otherwise attempts to enter the United States, the burden of proof shall be upon such person to establish that he is eligible to receive such visa or document.")
Qualifying relationship
The Decision concluded that Delta Talent failed to show by a preponderance of the evidence that Delta Talent, an American LLC organization, and DIVA a Mexican business organization, have a qualifying legal relationship under the Act's definition and the accompanying regulation. See 8 U.S.C. § 1153(b)(C) ; 8 C.F.R. 204.5(j) ).
The Decision provides that discrepancies exist in Delta Talent's supporting documents, and USCIS could not determine that Delta Talent has a qualifying relationship with DIVA. Specifically, USCIS determined that it was unable to discern whom Delta Talent's managers and members were because the supporting documents provided conflicting information. Additionally, USCIS could not determine who owned and controlled Delta Talent.
The court looks to "whether the [D]ecision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Judulang v. Holder , 565 U.S. 42, 53, 132 S.Ct. 476, 181 L.Ed.2d 449 (2011). The court has reviewed the record and concludes that the Decision was based on USCIS's consideration of the relevant evidence presented to it and the applicable factors. The court concludes that Delta Talent has failed to show clear error in the Decision regarding USCIS's inability to determine who owned and controlled Delta Talent. Further the court finds that Delta Talent has not shown that this portion of USCIS's Decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.
Gutierrez's work experience–past and future
The second and third issues in this case revolve around whether Delta Talent established by a preponderance of the evidence Gutierrez's work experience in the past with DIVA and his work going forward with Delta Talent each qualify under the Act as functions of a multinational manager or executive.
Regarding Gutierrez's past work experience, USCIS noted several discrepancies in the evidence submitted by Delta Talent, and based upon them, USCIS was unable to determine that Gutierrez was previously employed in a qualifying capacity. The Decision outlines all of the information submitted by Delta Talent. USCIS concluded that it was unable to find that Gutierrez "performed the necessary high-level responsibilities, and that he was primarily engaged in managerial duties, as required for this [immigration] classification." Even after additional submissions by Delta Talent, it remained unclear to USCIS "what duties [Gutierrez] performed on a day-to-day basis, as [the descriptions were] overly broad and general in nature, lacking the necessary level of details." Further, USCIS concluded that some of the duties were ordinary operational duties. USCIS also found that "the description of [Gutierrez's] employment with [Delta Talent] and DIVA on his L1 nonimmigrant visa applications called into question the evidence submitted (and the claims made) in support of Form I-140 regarding the capacity in which he worked for DIVA and [Delta Talent]." Additionally, USCIS determined that the record included many discrepancies "regarding the nature of [Gutierrez's] overseas employment (not just his job title)." Finally, from the description about how Gutierrez spent his time, USCIS found that it was "not apparent that such activities are managerial-level tasks."
Regarding Gutierrez's work experience, the question before the court is whether USCIS failed to "articulate a rational relationship between the facts and the choice made" in the Decision. Delta Found. , 303 F.3d at 563. Only if USCIS did not, may the Decision be found to be arbitrary, capricious, or an abuse of discretion.
A petition for a multinational executive or manager must be accompanied by a statement from an authorized official of the petitioning United States employer which demonstrates that:
(8) If the alien is already in the United States working for the same employer or a subsidiary or affiliate of the firm or corporation, or other legal entity by which the alien was employed overseas, in the three years preceding entry as a nonimmigrant, the alien was employed by the entity aboard for at least one year in a managerial or executive capacity;
8 C.F.R. § 204.5(j)(3)(i). A federal agency's interpretation of regulatory language under its administration is "to be accepted unless Congress has spoken directly on the issue." Defensor , 201 F.3d at 386. USCIS found that the evidence in the administrative record did not show that Gutierrez's work experience satisfied the regulatory requirement. The question is whether there exists a rational relationship between the facts found and the choice made by USCIS. Here, the court finds that USCIS rationally based it conclusions regarding Gutierrez's previous work experience and his proposed work for Delta Talent on the evidence presented and the regulatory requirements. Delta Talent has not shown that this portion of the Decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.
Conclusion
The record evidence supports the Decision, which provides a detailed rational connection between the facts presented and the conclusions drawn. The court's review is highly deferential and the Decision is not "so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Wilson v. United States Dep't of Agric. , 991 F.2d 1211, 1215 (5th Cir. 1993). "The agency decision need only have a rational basis, and it does not have to be a decision which the court would have made." Id. The court will not reweigh the evidence presented to USCIS. Delta Talent has not shown that the Decision is arbitrary, capricious, an abuse of discretion, or otherwise a violation of the law. Accordingly, USCIS's motion for summary judgment is granted and the court affirms the Decision. Delta Talent's motion for summary judgment is denied.
IT IS ORDERED that Defendants' Cross-Motion for Summary Judgment filed October 30, 2019 (Clerk's Document No. 32) is GRANTED .
IT IS FURTHER ORDERED that the USCIS's February 26, 2019 Decision is AFFIRMED .
IT IS FURTHER ORDERED that Delta Talent's Motion for Summary Judgment filed August 13, 2019 (Clerk's Document No. 22) is DENIED .