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Diamond Miami Corp. v. United States Citizenship and Immigration Services

United States District Court, S.D. Florida

October 7, 2019

Diamond Miami Corporation and Zeenish Hamirani, Plaintiffs
v.
United States Citizenship and Immigration Services, and others, Defendants

          ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

          Robert N. Scola, Jr. United States District Judge.

         This matter is before the Court on the parties' cross-motions for summary judgment. (ECF Nos. 22, 23). The parties have each filed responses (ECF Nos. 23, 27) and replies (ECF Nos. 27, 31). Upon review of the record, the parties' briefs, and the relevant legal authorities, the Court grants in part and denies in part the Defendants' motion (ECF No. 23) and grants in part and denies in part the Plaintiffs' motion (ECF No. 22.)

         I. Background

         On November 1, 2016, the United States Department of Labor sent correspondence to Plaintiff Diamond Miami Corporation (“Diamond”) that the Application for Permanent Employment Certification (ETA Form 9089) was certified. (ECF No. 21 at ¶ 1.) This certification is required to file an I-140 petition. On November 14, 2016, Diamond filed an Immigrant Petition for Alien Worker (Form I-140) with the United States Citizenship and Immigration Services (“USCIS”) seeking to classify Defendant Hamirani as an alien worker for the job of “Operations Manager.” The position of Operations Manager required 36 months of experience as a beauty salon manager. (ECF No. 22 at 11.) In support of the petition, Diamond submitted a letter from the owner of Shama's Beauty Salon verifying that Hamirani had more than 36 months experience as a beauty salon manager.

         On September 19, 2017, USCIS sent Diamond a Notice of Intent to Deny (“NOID”) informing Diamond that it intended to deny the petition filed on behalf of Hamirani because (1) Diamond did not disclose a familial relationship between Hamirani and the president and 100% shareholder of Diamond and (2) Hamirani provided contradictory information about her previous employment in a prior statement to the State Department when applying for a student visa. (Administrative Record, ECF No. 20-1 at 33-36.)

         On October 20, 2017, Diamond's counsel sent a letter and additional documentation in response to the NOID. (Id. at 38-46.) The additional documentation included five letters from Hamirani's previous clients to help bolster her experience working as a salon manager. (Id.) On November 17, 2017, USCIS denied Diamond's I-140 petition on behalf of Ms. Hamirani. The denial letter stated that (1) Diamond failed to disclose a familial relationship between the president of the company and Hamirani, thereby failing to show that the position of “Operations Manager” was bona fide and available to other U.S. workers and (2) Diamond Miami failed to establish that Hamirani met the minimum requirements for the “Operations Manager” position based on inconsistencies in found in a prior visa application. (Id. at 48-51.) USCIS also made a finding of fraud or willful misrepresentation based on the same inconsistencies in a prior visa application. (Id. at 51.)

         II. Legal Standards

         A. Summary Judgment Standard

         Under Federal Rule of Civil Procedure 56, “summary judgment is appropriate where there ‘is no genuine issue as to any material fact' and the moving party is ‘entitled to a judgment as a matter of law.'” See Alabama v. North Carolina, 130 S.Ct. 2295, 2308 (2010) (quoting Fed.R.Civ.P. 56(a)). Here, as the parties agree, the material facts are not in dispute and the Court's review is limited to the administrative record before the agency. Thus, this case is suited for summary disposition under Rule 56. See Mahon v. U.S. Dep't of Agric., 485 F.3d 1247, 1253 (11th Cir. 2007) (“Summary Judgment is particularly appropriate in cases in which a district court is asked to review a decision rendered by a federal administrative agency.”); Fla Fruit & Veg. Ass'n v. Brock, 771 F.2d 1455, 1459 (11th Cir. 1985) (“The summary judgment procedure is particularly appropriate in cases in which the court is asked to review . . . a decision of a federal administrative agency, ” especially where “the court considers the record that was before the agency”); see also Occidental Eng'g Co. v. INS, 753 F.2d 766, 769 (9th Cir. 1985) (“summary judgment is an appropriate mechanism” for the district court “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”).

         B. APA Standard Of Review

         When reviewing agency action under the APA, the district court must determine whether the agency's decision was arbitrary, capricious, or an abuse of discretion. See Mathews v. USCIS, 458 Fed.Appx. 831, 833 (11th Cir. 2012). This standard “provides the reviewing court with very limited discretion to reverse an agency decision, and is exceedingly deferential, ” especially “in the field of immigration.” See Id. (citations omitted). The relevant inquiry is “whether an agency's decision was based on consideration of the relevant factors and whether there has been a clear error of judgment.” See Mahon, 485 F.3d at 1253 (citation omitted).

         Review is limited to the material before the agency - that is, the administrative record. See Preserve Endangered Areas of Cobb's History, Inc. v. U.S. Army Corps of Eng'rs, 87 F.3d 1242, 1246 (11th Cir. 1996). “[A] court does not consider any evidence that was not in the record before the agency at the time that it made the decision or promulgated the regulation, ” see United States v. Guthrie, 50 F.3d 936, 944 (11th Cir. 1995), because “the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court, ” see Fla Power & Light Co. v. Lorion, 470 U.S. 729, 743 (1985). In making its decision, “[t]he agency is not required to discuss every piece of evidence, so long as it gives reasoned consideration to the evidence submitted.” Xunbing Liu v. U.S. Attorney Gen., 440 Fed.Appx. 718, 719 (11th Cir. 2011).

         The Eleventh Circuit has held that “an agency fails to give reasoned consideration to the record evidence when it misstates the contents of the record, fails to adequately explain any illogical conclusions, or provides justifications for its decision which are unreasonable or do not respond to any arguments in the record.” See Id. “If the record before the agency does not support the agency action, if the agency has not considered all relevant factors, or if the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.” Lorion, 470 U.S. at 744.

         To prevail on summary judgment, where the agency denies the visa petition on multiple grounds, it need only show that one of the grounds was sufficient to deny the petition. See Z-Noorani, Inc. v. Richardson,950 F.Supp.2d 1330, 1337 (N.D.Ga. 2013) (citations omitted). For the plaintiff to succeed, he “must establish that each of these bases ...


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