Herrera v. U.S. Citizenship and Immigration Services

• Decision Date: 06 July 2009
• Docket Number: No. 08-55493.,08-55493.
• Citation: 571 F.3d 881
• Parties: Tricia HERRERA; and Jugendstil, Inc., Plaintiffs-Appellants, v. U.S. CITIZENSHIP AND IMMIGRATION SERVICES; and Robert Wiemann, Director, Administrative Appeals Office, U.S. Citizenship and Immigration Services, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

571 F.3d 881

Tricia HERRERA; and Jugendstil, Inc., Plaintiffs-Appellants, v. U.S. CITIZENSHIP AND IMMIGRATION SERVICES; and Robert Wiemann, Director, Administrative Appeals Office, U.S. Citizenship and Immigration Services, Defendants-Appellees.

No. 08-55493.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 4, 2009.

Filed July 6, 2009.

John B. Bartos and Charles M. Miller, The Miller Law Offices, Studio City, CA, for the plaintiffs-appellants.

Sherease Pratt, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for the defendants-appellees.

Appeal from the United States District Court for the Central District of California, Stephen G. Larson, District Judge, Presiding. D.C. No. CV-00871-SGL-RZ.

Before JOHN T. NOONAN, DIARMUID F. O'SCANNLAIN, and SUSAN P. GRABER, Circuit Judges.

OPINION

GRABER, Circuit Judge:

The United States Citizenship and Immigration Services ("agency") may revoke its previous approval of a visa petition "at any time" for "good and sufficient cause." 8 U.S.C. § 1155. We must determine whether the enactment of 8 U.S.C. § 1154(j) altered the agency's revocation authority. We hold that it did not. Because the agency's decision is otherwise free of legal error and supported by substantial evidence, we affirm the district court's grant of summary judgment to Defendants.

FACTUAL AND PROCEDURAL HISTORY

Plaintiff Tricia Herrera is a citizen of the Philippines. In March 1994, she began working in the Philippines as the Vice President of Marketing for a Philippine company, Plaintiff Jugendstil, Inc. At the time, Jugendstil manufactured furniture and provided interior design services to clients in various countries, including the United States. Jugendstil sought to transfer Herrera to its United States branch office and filed an I-129 Petition for Nonimmigrant Work in L-1A classification ("L-1A petition") on her behalf. An approved L-1A petition allows an alien who has worked for an international company abroad to work temporarily in the United States for that same company (or a legally related entity) "in a capacity that is managerial [or] executive." 8 U.S.C. § 1101(a)(15)(L); see also Brazil Quality Stones, Inc. v. Chertoff, 531 F.3d 1063, 1066 (9th Cir.2008) (discussing different types of L petitions); see generally 8 U.S.C. § 1184 (statutory provisions governing the admission of nonimmigrants); 8 C.F.R. § 214.2(l) (regulations governing L petitions). In March 1997, the agency¹ approved Jugendstil's L-1A petition on behalf of Herrera, for a period of one year. Herrera moved to the United States and began working at Jugendstil's United States branch office. The agency later approved two extensions of the L-1A petition: a one-year extension valid through March 10, 1999, and a two-year extension valid through March 1, 2001. See 8 C.F.R. § 214.2(l)(15)(regulation governing extensions of L petitions).

In 1999, Jugendstil filed an I-140 Immigrant Petition for Alien Worker ("I-140 petition") on Herrera's behalf, under 8 U.S.C. §§ 1154(a)(1)(F) and 1153(b)(1)(C). Those statutory provisions allow an employer to file an I-140 petition on behalf of an alien who, among other things, seeks to work for the company "in a capacity that is managerial or executive." 8 U.S.C. § 1153(b)(1)(C); see also 8 U.S.C § 1101(a)(44)(A)-(B) (defining the terms "managerial capacity" and "executive capacity"). The agency approved the I-140 petition in November 1999.

In February 2000, Herrera filed an I-485 Application to Adjust Status to Legal Permanent Resident ("I-485 application") under 8 U.S.C. § 1255(a). On April 18, 2001, an officer at the San Francisco District Office interviewed Herrera regarding her I-485 application. The interviewing officer took handwritten notes, which were not provided to Herrera at the time but eventually were added to the administrative record. In the interview, Herrera explained that, beginning at some point in 2000, her employer primarily provided interior design services and either did not manufacture furniture at all or did very little furniture manufacturing.² The interviewer requested certain documentation from Herrera, which she provided two months later.

On March 13, 2002, the interviewing officer sent an internal referral memorandum to the California Service Center ("CSC"). The memorandum concluded that Herrera's role in the company was neither managerial nor executive and recommended that the CSC revoke its prior approval of the I-140 petition. Because it was an internal memorandum, the agency did not send Plaintiffs a copy.

On April 1, 2002, Herrera sent a notice to the CSC that she had left her employer and accepted a new position as marketing manager with Bay Area Bumpers, an affiliate of Jugendstil. Her notice stated that she wished to take advantage of the recently enacted job-portability provision codified at 8 U.S.C. § 1154(j) ("Portability Provision").

On July 25, 2002, the CSC issued a notice of intent to revoke its previous approval of Herrera's I-140 petition, pursuant to 8 U.S.C. § 1155 and 8 C.F.R. § 205.2. The statutory provision states that "[t]he Secretary of Homeland Security may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under section 1154 of this title." 8 U.S.C. § 1155. The notice of intent to revoke explained that Herrera did not meet the approval requirements for an I-140 petition because, as revealed by her statements in the 2001 interview, her job duties were not executive or managerial as required by statute. In particular, the notice mentioned the small size of Jugendstil (only seven employees) and the nature of Herrera's job duties (which included visits to client sites). The notice afforded Herrera 30 days to offer evidence and argument in rebuttal.

Herrera responded with a five-page letter from Jugendstil and copies of Jugendstil's quarterly wage reports. The CSC was unpersuaded and, on November 12, 2002, it revoked its previous approval of the I-140 petition. The revocation notice rested on the same reasons stated in the notice of intent to revoke: the small number of employees and Herrera's self-description of her job duties in 2001. The revocation notice concluded that the evidence "clearly demonstrate[s] that [Herrera's] duties were not and are not managerial or supervisory."

The next day, the CSC denied Herrera's I-485 application. Because Herrera was no longer the beneficiary of an approved I-140 petition, she did not meet the requirements for approval of her I-485 application. See 8 C.F.R. § 245.2(a)(2)(i)(listing the requirements for approval of an I-485 application). Plaintiffs do not challenge that downstream decision here; they challenge only the agency's revocation of its previous approval of the I-140 petition.³

Plaintiffs appealed the revocation to the Administrative Appeals Office ("AAO"). The AAO denied the appeal in a nine-page, single-spaced, written decision. The AAO concluded that the evidence submitted at the time of the original petition was insufficient to establish eligibility because of the small number of employees and because of the AAO's determination that Herrera's primary function was not supervision of other employees. Additionally, the AAO concluded that the evidence of her role at the time of the 2001 interview was also insufficient to establish eligibility for approval of the I-140 petition.

Plaintiffs filed this action in federal district court in 2006, seeking review of the agency's action under 5 U.S.C. § 706. The district court granted summary judgment to Defendants, and Plaintiffs timely appeal.

STANDARDS OF REVIEW

We review de novo the district court's grant of summary judgment. Love Korean Church v. Chertoff, 549 F.3d 749, 753-54 (9th Cir.2008).

We have jurisdiction to review a visa revocation decision under 8 U.S.C. § 1155, notwithstanding the jurisdictionstripping provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. ANA Int'l Inc. v. Way, 393 F.3d 886, 888-89 (9th Cir.2004); but see id. at 895(Tallman, J., dissenting) (stating that the majority's holding is contrary to congressional intent and creates an intra- and intercircuit conflict); Spencer Enters., Inc. v. United States, 345 F.3d 683, 694-95 (9th Cir.2003) (Beezer, J., dissenting) (stating that he would hold that this court lacks jurisdiction over the agency's discretionary decision to grant or deny a visa petition). Because the AAO's decision was the agency's final decision, we review the AAO's decision. See 5 U.S.C. § 704 (granting judicial review over "final agency action" (emphasis added)); cf. Aguilera-Montero v. Mukasey, 548 F.3d 1248, 1250 (9th Cir.2008) ("When the [Board of Immigration Appeals (`BIA')] conducts a de novo review and issues its own decision, we review the BIA's decision rather than the [immigration judge's]." (alteration and internal quotation marks omitted)).

Under 5 U.S.C. § 706(2)(A), we may set aside the agency's decision only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." See Family Inc. v. U.S. Citizenship & Immigration Servs., 469 F.3d 1313, 1315-16 (9th Cir.2006) (applying this standard to the agency's determination that the plaintiff would not be acting in a managerial capacity); Spencer Enters., 345 F.3d at 693 (applying this standard to the agency's denial of a visa petition). "The agency's factual findings are reviewed for substantial evidence. We will not disturb the agency's findings under this deferential standard unless the evidence presented would compel a reasonable finder of fact to reach a contrary result."⁴ Family Inc., 469 F.3d at 1315(citation and internal quotation marks omitted).

DISCUSSION

Plaintiffs argue that the agency lacked the authority to revoke its previous approval of the I-140 petition because Herrera met the requirements of the Portability Provision and...