Agor v. Lynch
| Decision Date | 13 September 2017 |
| Docket Number | 16 Civ. 2354 (PGG) |
| Citation | 276 F.Supp.3d 7 |
| Parties | Longinus AGOR, Plaintiff, v. Loretta LYNCH, in her official capacity as Attorney General of the United States; Preet Bharara, in his official capacity as United States Attorney for the Southern District of New York; and United States Department of Homeland Security, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Yoram M. Nachimovsky, Law Offices of Yoram Nachimovsky, New York, NY, for Plaintiff.
Brandon Matthew Waterman, Bryan Keith Lonegan, Shane Patrick Cargo, United States Attorney's Office, New York, NY, for Defendants.
Plaintiff Longinus Agor brings this action, pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 etseq., against the United States Department of Homeland Security ("DHS"), Loretta Lynch, Attorney General of the United States, and Preet Bharara, United States Attorney for the Southern District of New York.1 (Dkt. No. 1) Plaintiff is a Nigerian citizen who entered the United States in 1998 on a temporary visitor visa, and who remained in this country illegally after the visa expired. In 2009, Plaintiff applied for an adjustment of status, seeking eligibility as a "grandfathered alien" within the meaning of Section 245(i) of the Immigration and Naturalization Act ("INA"), 8 U.S.C. § 1255(i), based on a prior I–140 visa petition that he filed in 1999. The United States Citizenship and Immigration Services ("USCIS") denied Plaintiff's application, on the grounds that the 1999 petition was not "approvable when filed," and that Plaintiff is therefore not eligible for an adjustment of status as a "grandfathered alien." Plaintiff seeks judicial review of the agency's denial, and an order directing the agency to approve his application.
Defendants have moved for summary judgment, arguing that the agency's decision to deny Plaintiff's application for an adjustment of status was not arbitrary or capricious, or otherwise contrary to law. (See Notice of Motion (Dkt. No. 15); Def. Moving Br. (Dkt. No. 16) at 14)2 For the reasons stated below, Defendants' motion will be granted.
Plaintiff is a native and citizen of Nigeria. (Certified Administrative Record ("CAR") at 309, 315–16) In 1981, Plaintiff graduated from the University of Lagos College of Medicine with "degrees of M.B., B.S." (Id. at 39) According to Plaintiff's resume and letters of recommendation, he received several awards for academic achievement while in medical school in Nigeria. (Id. at 218–19, 225–28) Based on an article Plaintiff wrote for "Medilag"—the "Journal of the Medical Students' Association" at the University of Lagos College of Medicine—he won an award for "outstanding contribution[ ]" to the journal. (Id. at 218–19, 230–36)
In 1983, Plaintiff was certified as a medical practitioner by the Nigeria Medical Council. (Id. at 221) Plaintiff subsequently worked at various hospitals and medical clinics in Nigeria. (See id. at 31–32, 218–19) In 1998, the Educational Commission for Foreign Medical Graduates awarded Plaintiff a certificate of readiness to enter residency or fellowship programs in the United States. (See id. at 38)
On June 11, 1998, Plaintiff entered the United States at Detroit, Michigan, on a B–2 temporary visitor visa.3 (Id. at 61, 106, 319) Although Plaintiff's visitor visa expired on April 27, 1999 (see id. at 319), the I–94 card4 issued to Plaintiff upon arrival in the United States permitted him to remain in this country until December 10, 1999. (Id. at 106) Plaintiff did not leave the United States, however.
In early 1999, Plaintiff obtained a business card for "Professor William Smart, Counselor at Law," who held himself out as "specializ[ing] in INS Matters." (Id. at 394, 429) The business card lists Smart's address as "Center for Research, 490 Bay Street, Staten Island, NY 10340." (Id. at 429) According to Plaintiff, in February 1999, he met with Smart, provided him with a copy of his resume, and paid him "a few thousand dollars" to prepare forms for an application for lawful permanent residence in the United States. (See id. at 394) Smart allegedly prepared the forms using Smart's Staten Island address, and after Plaintiff signed the completed forms, he had no further involvement in their submission. (Id. at 215, 394–95)
On September 30, 1999, Plaintiff's Form I–140 Immigrant Petition for Alien Worker ("1999 I–140 Petition") was filed with the Immigration and Naturalization Service ("INS").5 (Id. at 332, 338–39) Part 1 of the form—which requests "[i]nformation about the person or organization filing this petition"—identifies Plaintiff as the petitioner and provides the following address:
"Colombia University, Attn: Professor Willie Williams, 490 Bay Street, Room 3A, S[taten] I[sland], N[ew] Y[ork]." (Id. at 338) In Part 5 of the form—which requests information about the "[t]ype of petitioner"—the box "Self" is checked.6 (Id. at 339) Plaintiff's signature appears on the form. (Id. at 339, 394)
Plaintiff's Form I–140 states that he is petitioning for a visa under the classification of "[a]n outstanding professor or researcher." (Id. at 338) Plaintiff's application states that he will hold full-time employment as a medical doctor conducting "AIDS research—African population" at "Colombia University."7 (Id. at 339) There is no evidence, however, that Plaintiff had, or expected to have, an employment relationship with Columbia University or any other educational institution at the time his 1999 I–140 Petition was submitted.
On October 2, 2000, the INS sent Plaintiff a notice of intent to deny his 1999 I–140 Petition. (Id. at 334–37) The notice acknowledges that Plaintiff filed a visa petition under the classification of "Outstanding Professors and Researchers," and cites the following deficiencies in Plaintiff's application:
(Id. at 335) The notice further states that the INS (Id. ) The notice also directs Plaintiff to "[s]ubmit a completely executed Form I–140 signed by an authorized official of the U.S. employer that intends to permanently employ the beneficiary." (Id. )
As to William Smart, a/k/a "Willie Williams," the notice of intent to deny states:
It appears you wish to be represented in this matter. The individual listed as your representative has not been shown to be an attorney or an accredited representative before this Service. Please provide documentary evidence to show that your representative is an attorney in good standing or has been accredited as a bona fide representative before this Service.
(Id. ) The INS sent the notice of intent to deny to Plaintiff, care of "Colombia University, 490 Bay St RM 3A, Staten Island NY 10304," which is the address listed in Plaintiff's I–140 petition. (See id. at 334, 338)
On November 24, 2000, the INS sent Plaintiff a formal notice denying his 1999 I–140 Petition. (Id. at 332) The denial letter—which was sent to the same address—states:
Plaintiff claims that he never received copies of the notice of intent to deny or the formal notice of denial. (Id. at 395)
Between 2000 and 2003, Plaintiff completed his medical residency at the Morehouse School of Medicine in Atlanta, Georgia, and received a certification in internal medicine from the American Board of Internal Medicine. Plaintiff then worked as a medical practitioner in North Carolina and South Carolina. (See id. at 31–36)
On July 26, 2001, INS Special Agent Bob Martin contacted Plaintiff in connection with an investigation into Smart's submission of fraudulent visa applications. (Id. at 213, 215) Smart was later arrested and charged with visa fraud. (Id. at 214; see also No. 02 Cr. 249 (S.D.N.Y.) (DAB)) Investigators remained in contact with Plaintiff in the event that his testimony would be needed against Smart, but Plaintiff was never called to testify.8 (CAR at 214–15)
On December 8, 2004, Plaintiff filed a Form I–485 Application to Register Permanent Resident or Adjust Status, along with Supplement A to Form I–485 for Adjustment of Status Under Section 245(i) (collectively, the "2004 I–485 Application"). (Id. at 96–101) Plaintiff admitted in his application that he had "failed ... to maintain, continuously, lawful status" in the United States, and he claimed eligibility for adjustment of status as a "grandfathered alien"—within the meaning of Section 245(i) of the INA, 8 U.S.C. § 1255(i) —based on his 1999 I–140...
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Agor v. Sessions, 17-3231-ag
...omitted)). Agor's 1999 petition sought an employment-based immigrant visa as an "outstanding professor or researcher." Agor v. Lynch, 276 F. Supp. 3d 7, 11 (S.D.N.Y. 2017). To qualify for an immigrant visa in this category, Agor was required to show that he was: (1) "recognized internationa......