Healthy & Natural Trading LLC v. U.S. Department of Homeland Security

691 F. App'x 437

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 24, 2017
• Docket: 15-55030
• Status: Unpublished

Opinion

MEMORANDUM **

Healthy and Natural LLC (Healthy) and Marcelo Salles Pereira de Lucena (Luce-na), appeal a district court decision granting summary judgment in favor of the United States Citizenship and Immigration Service (USCIS). USCIS denied Healthy and Lucena’s petition to extend Lucena’s nonimmigrant L-1A visa for failure to establish Lucena as a qualifying executive or manager under 8 U.S.C. § 1101(a)(15)(L) and 8 U.S.C. § 1101(44)(A)-(B). We have jurisdiction under 28 U.S.C. § 1291 and affirm.

1. The district court did not err in affirming the USCIS’s determination that Lucena was not primarily employed in an executive or a managerial capacity. See Brazil Quality Stones, Inc. v. Chertoff, 531 F.3d 1063, 1067 (9th Cir. 2008) (reviewing under the Administrative Procedures Act). Healthy submitted vague, conclusory job descriptions that lacked specificity, failed to clarify Lucena’s day-to-day non-supervisory duties, and merely recited the elements of the regulatory definition of “executive.” See id. at 1070 (requiring “documents submitted to the agency [to] describe with particularity” the duties of the employee).

2. USCIS was not bound by its decision granting Healthy’s initial L-1A petition. See id. at 1066-67, 1071 (affirming the denial of a second petition despite approval of an initial petition). An L-1A petitioner applying for an extension must reestablish eligibility under the applicable statute and regulations. See 8 C.F.R. § 214.2(2)(7)(i)(A)(2),(3); see also Brazil Quality, 531 F.3d at 1066-67.

3. USCIS properly considered the size of Health/s organization. See Brazil Quality, 531 F.3d at 1070 (holding that although “an organization’s small size, standing alone, cannot support a finding that its employee is not acting in a managerial capacity, .... size is nevertheless a relevant factor in assessing whether an organization’s operations are substantial enough to support a manager”) (citation, alteration, and internal quotation marks omitted).

4. We decline to address the challenge to the evidentiary standard applied by US-CIS because that issue was not sufficiently raised in the district court. See United States v. Williams, 846 F.3d 303, 311 (9th Cir. 2016).

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.