Integrity Gymnastics & Pure Power Cheerleading, LLC v. U.S. Citizenship & Immigration Servs.

• Decision Date: 14 September 2015
• Docket Number: Case No. 2:10–CV–440
• Citation: 131 F.Supp.3d 721
• Parties: Integrity Gymnastics & Pure Power Cheerleading, LLC, Plaintiff, v. United States Citizenship and Immigration Services, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

131 F.Supp.3d 721

Integrity Gymnastics & Pure Power Cheerleading, LLC, Plaintiff,

v.United States Citizenship and Immigration Services, et al., Defendants.

Case No. 2:10–CV–440

United States District Court, S.D. Ohio, Eastern Division.

Signed September 14, 2015

Ghassan M. Shihab, The Law Firm of Shihab & Associates, Co., LPA, Matthew Robert Porter, Nardone Law Group, LLC, Columbus, OH, for Plaintiff.

Glenn Matthew Girdharry, Katherine Elizabeth Goettel, United States Department of Justice, Washington, DC, for Defendants.

OPINION & ORDER

ALGENON L. MARBLEY

, UNITED STATES DISTRICT JUDGE

This matter is before the Court on Defendant United States Citizenship and Immigration Services' Motion for Summary Judgment, (Doc. 37), and Plaintiff Integrity Gymnastics & Pure Power Cheerleading, LLC's Cross-Motion for Summary Judgment, (Doc. 38). Plaintiff Integrity Gymnastics & Pure Power Cheerleading, LLC ("Integrity Gymnastics" or "Plaintiff") brings this action against United States Citizenship and Immigration Services ("USCIS"), challenging the agency's denial of an I-140 immigrant visa petition that Plaintiff filed on behalf of Natalia Vasilievna Laschonava.¹ Defendant moves for summary judgment, asking this Court to affirm the agency's decision; Plaintiffs likewise move for summary judgment asking the Court to reverse. After careful consideration, this Court DENIES Plaintiff's Motion for Summary Judgment, (Doc. 38), and GRANTS Defendant's Motion for Summary Judgment, (Doc. 37).

I. BACKGROUND

A. Factual Background

Plaintiff, Integrity Gymnastics, is a gymnastics and cheerleading training facility located in Plain City, Ohio. Plaintiff moves this Court to overturn the decision of USCIS denying a petition for permanent residence that Plaintiff filed on behalf of Natalia Laschonava. (Certified Administrative Record , Doc. 24, at PageID 1670). Laschonava is a native of the former Union of Soviet Socialist Republics ("U.S.S.R."). She was born in what is now the country of Latvia and deemed a citizen and national of the Republic of Belarus at the time of her entry into the United States. (Id. at 1908).

In 1988, Laschonava was a gymnast on the Soviet Union national team, for which she received an Olympic gold medal in women's gymnastics. (Id. at 1719-27). Laschonava has not competed as a gymnast since 1991. (Id. at 1139). In 1999, Laschonava entered the United States in H-1B non-immigrant (temporary) status to work as a gymnastics coach for Southern Tier Gymnastics in Endwell, New York. (Id. at 1141, 1907, 1913). In 2004, Laschonava extended her H-1B status and began working as a gymnastics coach for Camden Gymnastics Inc. in Brunswick, Georgia. (Id. at 1910-11). In 2006, Laschonava again extended her H-1B status and began working for Plaintiff Integrity Gymnastics as the "Optional Girls Team" gymnastics coach. (Id. at 1668-69, 1909).

B. Plaintiff's I-140 Petition

On June 12, 2007, seeking to permanently employ Laschonava as a gymnastics coach, Plaintiff filed a Form I-140 Immigrant Petition for Alien Worker ("I-140 petition") on her behalf. The I-140 petition requested a visa allowing Laschonava permanent residence in the United States as an "alien of extraordinary ability" pursuant to § 203(b)(1)(A) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1153(b)(1)(A)

. (Id. at 586-89). Plaintiff maintains that it filed its petition based on Laschonava's extraordinary ability "in gymnastics." Defendant, on the other hand, contends that Plaintiff sought Laschonava's certification as an alien of extraordinary ability based on her extraordinary ability "as a gymnastics coach." The letter attached to Plaintiff's position states that "[Integrity Gymanstics] wish[es] to sponsor Ms. Laschonava (sic ) for permanent residence in the position of Optional Girls Team Coach," and goes on to discuss the reasons it believes Laschonava is "well qualified to fill this position." (Id. at 1670-71).

In support of their I-140 petition, Plaintiff submitted: (1) evidence of Laschonava's 1988 team Olympic gold medal; (2) media articles about Laschonava's awards and achievements as a gymnast; (3) Laschonava's resume; (4) evidence of Laschonava's gymnastics coaching experience in Belarus; (5) media articles about Laschonava as a gymnastics coach; (6) evidence of the accomplishments of some of the gymnasts coached by Laschonava; and, (7) letters in support of her I-140 petition from various people in the field of gymnastics. (Id. at 1718-1905).

On October 1, 2008, USCIS issued to Integrity Gymnastics a request for evidence ("RFE") on the I-140 petition. (Id. at 1558-59). The RFE first noted that the I-140 Petition indicated that a visa was sought for Laschonava "to come to the United States to function as a coach of gymnastics." It then requested that the company provide additional evidence of Laschonava's eligibility for classification as an alien of extraordinary ability, specifically: that she "has sustained national or international acclaim as a coach of gymnasts." (Id. at 1559). On November 11, 2008, in response to the RFE, Plaintiff submitted additional evidence to USCIS Laschonava's behalf. (Id. at 1560-1655). On January 20, 2009, after a timely response to the request for additional evidence, the Director of the Nebraska Service Center ("NSC") of the USCIS denied Plaintiff's I-140 petition. (Id. at 1474-77). On February 19, 2009, Plaintiff filed a motion to reopen/ reconsider the decision. (Id. at 1467). USCIS denied Plaintiff's motion to reopen/ reconsider on March 25, 2009. (Id. at 1464-66). On April 20, 2009, Plaintiff appealed USCIS's decision to deny the I-140 petition to the USCIS Administrative Appeals Office ("AAO"). (Id. at 1347). On January 12, 2010, AAO upheld the agency's decision, affirming the denial of Plaintiff's I-140 petition. (Id. at 1333-46).

On May 19, 2010, Integrity Gymnastics filed the present action in this Court, seeking review of the AAO's decision under the Administrative Procedure Act ("APA"). (See Compl ., Doc. 1). On June 23, 2010, however, the AAO re-opened its initial administrative decision denying the I-140 petition, pursuant to 8 C.F.R. § 103.5(a)

(5(ii). (Doc. 24 at PageID 1108). On August 21, 2010, Integrity Gymnastics submitted briefing and additional evidence of Laschonava's claimed eligibility for classification as an alien of extraordinary ability to the AAO. (Id. at 1114-1324). On January 26, 2011, after conducting a de novo review of all of the evidence before it, the AAO affirmed its initial decision and upheld denial, for the second time, of Plaintiff's I-140 petition. (Id. at 1077-1104). On February 28, 2011, Plaintiff filed an Amended Complaint before this Court seeking APA review of the AAO's latest I-140 denial decision. (See Pl.'s Am. Compl ., Doc. 19). Plaintiff asserts that the AAO's January 26, 2011 decision constitutes the agency's final decision and, accordingly, is the decision subject to judicial review. (Id. ).

C. Present Procedural Posture

Both parties move the Court for summary judgment in their favor. In Defendant's motion, it asks this Court to affirm the agency's denial of Plaintiff's I-140 petition on behalf of Laschonava. (Doc. 37). Plaintiffs, on the other hand, request summary judgment reversing the agency's decision. (Doc. 38). This matter is briefed and ripe for review.

II. STANDARD OF REVIEW

A. Summary Judgment

Federal Rule of Civil Procedure 56

provides, in relevant part, that summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." The nonmoving party must then present "significant probative evidence" to show that "there is [more than] some metaphysical doubt as to the material facts." Moore v. Philip Morris Cos., Inc. , 8 F.3d 335, 339–40 (6th Cir.1993). The mere existence of a scintilla of evidence in support of the opposing party's position will be insufficient to survive the motion; there must be evidence on which the jury could reasonably find for the opposing party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 251, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; see alsoCopeland v. Machulis , 57 F.3d 476, 479 (6th Cir.1995). The standard of review for cross-motions for summary judgment "does not differ from the standard applied when a motion is filed by only one party to the litigation." United States S.E.C. v. Sierra Brokerage Servs., Inc. , 712 F.3d 321, 327 (6th Cir.2013).

B. Review under the Administrative Procedure Act

Under the Administrative Procedure Act ("APA"), when a district court is reviewing final agency action, the usual rules governing summary judgment do not apply. SeeCity of Cleveland v. Ohio , 508 F.3d 827 (6th Cir.2007)

; North Carolina Fisheries Ass'n, Inc. v. Gutierrez , 518 F.Supp.2d 62 (D.D.C.2007). Instead, a district court's review is limited to whether the agency's action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(a)

( "The reviewing court shall...hold unlawful and set aside agency action, findings, and conclusions found to be—arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."); see alsoSimms v. National Highway Traffic Safety Admin. , 45 F.3d 999, 1003 (6th Cir.1995). A determination of whether an agency's action was arbitrary, capricious, or an abuse of discretion must be made on the basis of the administrative record. See 5 U.S.C. § 706 ("the court shall review the whole record or those parts of it cited by a party"); see alsoFlorida Power & Light Co. v. Lorion , 470 U.S. 729, 734, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985) ; Camp v. Pitts , 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) ; Tongatapu Woodcraft Hawaii Ltd. v. Feldman , 736 F.2d 1305, 1308 (9th Cir.1984) ; Sierra Club v. Dombeck , 161 F.Supp.2d 1052, 1064 (D.Ariz.20...