Black v. United States Citizenship and Immigration Services

• Court: District Court, S.D. California
• Decided: June 5, 2023
• Docket: 3:22-cv-01059
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 NAVE BLACK, et al, Case No.: 22-cv-1059-CAB-MSB

14 Plaintiffs, ORDER RE MOTIONS FOR 15 v. SUMMARY JUDGMENT

16 UNITED STATES CITIZENSHIP AND

IMMIGRATION SERVICES, et al, 17 Defendants. [Doc. Nos. 28, 29] 18

20 Presently before the Court is Plaintiffs’ motion for summary judgment [Doc. No. 21 28] and Defendants’ cross-motion for summary judgment [Doc. No. 29]. The motions 22 have been fully briefed and the Court finds them suitable for determination on the papers. 23 For the reasons set forth, Plaintiffs’ motion is DENIED and Defendants’ cross motion is 24 GRANTED. 25 I. FACTUAL BACKGROUND 26 Plaintiffs Nave Black (“Mr. Black”) and Indo Projects, Inc. (“Indo”) bring this case 27 to challenge Defendant U.S. Citizenship and Immigration Services’ (“USCIS”) denial of 28 1 Indo’s Form I-140 petition to classify Mr. Black as an employment-based immigrant. The 2 Parties move for summary judgment on whether this denial was arbitrary, capricious, an 3 abuse of discretion, or contrary to law in violation of the Administrative Procedure Act. 4 In December 2017, while awaiting a decision on an unrelated application for 5 permanent resident status, Mr. Black helped incorporate the California company Attic 6 Projects, Inc. [Certified Administrative Record “CAR” at 3].1 At the same time, he started 7 working there in some capacity as either Operations Manager, Online Marketing Manager, 8 or Online Advertiser. [CAR at 17]. In November 2019, Attic Projects incorporated a branch 9 in the State of Washington, and Mr. Black is listed on the original incorporation documents 10 alongside his Attic Projects co-owners Eido Einav and Adam Goldman. [CAR at 3]. This 11 Washington branch was renamed “Indo Projects, Inc.” in December 2019. [CAR at 3]. By 12 September 2020, Indo removed Mr. Black from being listed as a company owner or 13 stakeholder, as it was apparently an error made by their attorney and Mr. Black “was never 14 an owner and received no shares.” [Doc. No. 30 at 5]. Mr. Black’s ownership position at 15 Indo was replaced by Stav Anafi, the mother of his child and the person he lived with for 16 over a year. [CAR at 3]. 17 In March 2021, Indo Projects started the process of sponsoring Mr. Black for a work 18 visa for an “other unskilled worker,” in the position of “Operations Manager.” First, Indo 19 applied for and received a prevailing wage determination from the Department of Labor 20 (“DOL”). [Doc. No. 28-1 at 8]. Indo then submitted ETA Form 9089 to the DOL. Upon a 21 review of Form 9089 and an additional audit of Indo, the DOL issued a labor certification 22 for the position. [Doc. No. 28-1 at 8]. By issuing the labor certification, the DOL certified 23 that there were no available U.S. workers for the job of Operations Manager and the 24 employment of the Mr. Black would not “adversely affect the wages and working 25 conditions of workers in the U.S. similarly employed.” 8 U.S.C. § 1182(a)(5)(A)(i). Upon 26

27 1 The page numbers herein refer to those listed at the bottom of the Certified Administrative Record, 28 1 receipt of this labor certification, Indo then filed the Form I-140 petition with USCIS in 2 April 2022, attaching Form 9089 and the DOL’s labor certification. [CAR at 260-270]. 3 II. PROCEDURAL BACKGROUND 4 Indo’s I-140 petition was initially denied by USCIS in June 2022 based on alleged 5 past marriage fraud committed by Mr. Black. [CAR at 2]. After receiving the June 2022 6 denial, Plaintiffs filed this case to dispute the denial as arbitrary and capricious, an abuse 7 of discretion, and not in accordance with the law. [Doc. No. 1]. 8 Presumably in response to Plaintiffs’ lawsuit, USCIS reopened Indo’s I-140 petition 9 on its own motion, as it is entitled to do pursuant to 8 C.F.R. § 103.5(a)(5)(ii). In addition 10 to its motion to reopen, USCIS filed a Notice of Intent to Deny (“NOID”) on November 3, 11 2022. In the NOID, USCIS provided the following reasons for its intent to deny: (1) it did 12 not believe Indo offered a “bona fide job opportunity” to all U.S. workers based on the 13 possible undisclosed familial relationship between Mr. Black and Ms. Anafi in its Form 14 9089 filed with the DOL; and (2) it was not convinced Mr. Black was qualified for the 15 position of Operations Manager at Indo. [CAR at 27-34]. USCIS gave Indo Projects 33 16 days to respond to the NOID. Indo filed a response on December 5, 2022. Upon 17 consideration of Indo’s response, USCIS issued a decision on January 5, 2023, denying the 18 petition based on the lack of a bona fide job opportunity open to all U.S. workers and Indo’s 19 failure to establish Mr. Black’s qualifications for the position. 20 In light of the January 2023 decision, Plaintiffs filed the first amended complaint, 21 alleging two causes of action under the Administrative Procedure Act (“APA”). [Doc. No. 22 23]. Plaintiffs also request declaratory judgment based on USCIS’ alleged failure to 23 provide adequate notice prior to reopening the petition in November 2022. 2 24 25

26 2 The Court finds Plaintiffs’ third cause of action frivolous and declines to address it in substance. 27 USCIS provided 33 days for Indo Projects to respond to its NOID; notice was sufficient pursuant to 20 C.F.R. § 103.5(a)(5)(ii). Therefore, Plaintiffs’ motion for summary judgment on this ground is 28 1 III. STANDARD OF REVIEW 2 “The APA permits judicial review of agency decisions when . . . no law or regulation 3 requires interagency review prior to seeking judicial review.” Chu Inv., Inc. v. Mukasey, 4 256 F. App’x 935, 936 (9th Cir. 2007). When a petition is denied by USCIS, the Court is 5 required to set it aside only if it is “arbitrary, capricious, an abuse of discretion, or otherwise 6 not in accordance with the law.” Herrera v. U.S. Citizenship & Immigr. Servs., 571 F.3d 7 881, 885 (9th Cir. 2009) (citing Family, Inc. v. U.S. Citizenship & Immigr. Servs., 469 F.3d 8 1313, 1315-16 (9th Cir. 2006)). “The arbitrary and capricious standard is a narrow one 9 under which the Court cannot substitute its judgment for the agency’s.” Peopletech Grp. 10 Inc. v. United States Dep’t of Homeland Sec., No. C19-1959 MJP, 2022 WL 102033, at *1 11 (W.D. Wash. Jan. 11, 2022). “The touchstone of ‘arbitrary and capricious’ review . . . is 12 ‘reasoned decisionmaking.’” E. Bay Sanctuary Covenant v. Garland, 994 F.3d 962, 980 13 (9th Cir. 2020) (quoting Altera Corp. & Subsidiaries v. Comm’r of Internal Revenue, 926 14 F.3d 1061, 1080 (9th Cir. 2019)). 15 The Court is generally limited to reviewing the administrative record available at the 16 time of the denial. See Goffney v. Becerra, 995 F.3d 737, 747-48 (9th Cir.), cert. denied, 17 211 L. Ed. 2d 366, 142 S. Ct. 589 (2021). Ultimately, “the agency’s factual findings are 18 reviewed for substantial evidence. [The Court] will not disturb the agency’s findings under 19 this deferential standard unless the evidence presented would compel a reasonable finder 20 of fact to reach a contrary result.” Herrera, 571 F.3d at 885 (citation and internal quotation 21 marks omitted). 22 IV. DISCUSSION 23 Plaintiffs dispute the January 2023 decision on two grounds. First, Plaintiffs argue 24 USCIS lacked the authority to invalidate the DOL’s labor certification absent fraud or 25 misrepresentation. Second, Plaintiffs argue USCIS abused its discretion because there was 26 no substantial evidence supporting the decision. Defendants contend USCIS acted within 27 its authority when it assessed the truthfulness of Plaintiffs’ representations in its Form I- 28 1 140 petition. Defendants also argue there was no abuse of discretion because USCIS 2 conducted a thorough investigation of the record when reaching its conclusion. 3 a. USCIS’ Authority to Invalidate the Labor Certification 4 “A labor certification is subject to invalidation by [USCIS] upon a determination . . 5 . of fraud or willful misrepresentation of a material fact involving the labor certification 6 application.” 20 C.F.R. 656.30(d); See Alva Decking, Inc. v. Holder, No. 1:12-CV-2330- 7 JLK-AP, 2013 WL 1609983, at *4 (D. Colo. Apr. 15, 2013) (finding USCIS’ invalidation 8 of the labor certification as a specific reason for revoking an employer’s I-140 petition was 9 justified where misrepresentation existed). However, if USCIS fails to challenge the 10 Secretary of Labor’s “findings about the conditions in the domestic labor market,” its 11 decision is not considered an invalidation of the labor certification. K.R.K. Irvine, Inc. v. 12 Landon, 699 F.2d 1006, 1009 (9th Cir. 1983) (finding that “a labor certification only binds 13 [USCIS] as to the availability of qualified United States workers and the impact of the 14 [immigrant worker’s] employment on the domestic market”). If USCIS does not explicitly 15 state that it is invalidating the labor certification in its denial of an I-140 petition, § 16 656.30(d) does not apply to the Court’s inquiry. 17 USCIS did not explicitly cite an invalid labor certification as its reason for denying 18 Indo’s petition. Instead, USCIS determined it was not convinced Indo offered Mr. Black a 19 bona fide job opportunity open to all U.S. workers. Plaintiffs argue that an inquiry into 20 whether an employer offered a “bona fide job opportunity” is exclusively a question for 21 the DOL at its labor certification stage. Yet Plaintiffs ignore that USCIS’ determination 22 here was made independently from the DOL’s certification. After a review of the entire 23 administrative record and further independent research, USCIS was not convinced the job 24 was open to all U.S. workers. While USCIS reviewed Form 9089 filed with the DOL in 25 making its decision, it did not expressly invalidate the DOL’s certification. Because USCIS 26 did not invalidate the DOL’s labor certification, it did not need an independent finding of 27 fraud or misrepresentation. Accordingly, Plaintiffs’ motion for summary judgment based 28 1 on this argument is DENIED, and Defendants motion for summary judgment is 2 GRANTED. 3 b. USCIS’ Decision Was Supported by Substantial Evidence 4 Under the Immigration and Nationality Act, USCIS may grant an I-140 petition after 5 an investigation of the facts of each case “and determin[ing] that the facts stated in the 6 petition are true.” 8 U.S.C. § 1154(b). The burden of proof is on the petitioner to 7 demonstrate to USCIS that the information it provides is true. See 8 U.S.C. § 1361. USCIS 8 has the authority to determine whether the petitioner has sufficiently established that the 9 position was open to all U.S. workers. See Peopletech Group Inc., 2022 WL 102033, at *9 10 (citing Diamond Miami Corp. v. U.S. Citizenship & Immigr. Servs., 2019 WL 4954807, at 11 *3 (S.D. Fla. Oct. 8, 2019)). The Ninth Circuit has confirmed USCIS has the authority to 12 assess whether an immigrant worker is qualified for the job offered by the petitioning 13 employer. See K.R.K Irvine, 699 F.2d at 1008. 14 1. Bona Fide Job Opportunity Open to All U.S. Workers 15 USCIS denied the petition because it “did not believe that this was a bona fide job 16 opportunity open to U.S. workers.” [CAR at 9]. In coming to this conclusion, USCIS did 17 not only look at the extensive immigration history of Mr. Black but also did independent 18 research into the leadership history of Attic Projects and Indo Projects. The totality of 19 USCIS’ research revealed the significant financial relationship between Attic Projects and 20 Indo Projects. It also highlighted Mr. Black’s personal relationships with the owners of 21 Indo, including a co-parenting relationship with Ms. Anafi and long-term friendship with 22 Mr. Goldman. [CAR at 5]. While Plaintiffs argue Indo posted the job and complied with 23 the requirements of the DOL in establishing a “bona fide job opportunity” on paper, this 24 remains separate from USCIS’ determination of the truthfulness contained in the I-140 25 petition. The Court finds USCIS conducted a sufficient investigation pursuant to § 1154(b) 26 and had substantial evidence to conclude that the job was likely not offered to all U.S. 27 workers. 28 1 2. Mr. Black’s Qualifications 2 USCIS also denied the petition because Indo failed to prove Mr. Black was qualified 3 ||for the position of Operations Manager. The requisite qualifications established by the 4 || DOL for an Operations Manager position are “12 months of experience in the job offered 5 12 months of experience in the alternate occupation of General Manager or similar.” 6 ||[CAR at 9]. USCIS determined that the inconsistencies contained in the sworn statements 7 || provided to establish Mr. Black’s past employment history, such as the various accounts 8 ||of his job title and start date at Attic Projects, casted doubt on Mr. Black’s qualifications. 9 ||[CAR at 9-111]. Additionally, USCIS noted the lack of any “independent objective 10 evidence” required to prove that Mr. Black was qualified for the position. [CAR at 12]. In 11 Plaintiffs failed to meet their burden to prove the truthfulness of the representations 12 made in the petition pursuant to § 1361 and USCIS was well within its discretion under 13 || Ninth Circuit precedent to determine whether Mr. Black was qualified. 14 Accordingly, Plaintiffs’ motion for summary judgment based on the lack of 15 substantial evidence is DENIED. Defendants’ cross motion for summary judgment is 16 || GRANTED. 17 Vv. CONCLUSION 18 The Court finds the January 2023 Decision issued by USCIS was supported by 19 || substantial evidence and could be made without a finding of fraud or misrepresentation. 20 || Therefore, Defendants’ cross motion for summary judgment is GRANTED and Plaintiffs’ 21 ||motion for summary judgment is DENIED. The Clerk of Court shall enter judgment for 22 Defendants and CLOSE the case. 23 24 It is SO ORDERED. 25 Dated: June 5, 2023 € 26 Hon. Cathy Ann Bencivengo 27 United States District Judge 28