All Bright Sanitation of Colorado, Inc. v. U.S. Citizenship & Immigration Servs.
| Decision Date | 11 September 2012 |
| Docket Number | Case No. 10-cv-21808-SCOLA |
| Parties | ALL BRIGHT SANITATION OF COLORADO, INC., Plaintiff, v. U.S. CITIZENSHIP AND IMMIGRATION SERVICES, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
THIS MATTER is before the Court upon the Plaintiff's Motion for Summary Judgment [ECF No. 23], filed by All Bright Sanitation of Colorado, Inc. ("All Bright"), and the Defendant's Cross-Motion for Summary Judgment [ECF No. 24], filed by United States Citizenship and Immigration Services (the "Agency"). For the reasons explained below, Plaintiff's Motion is granted in part, while Defendant's Cross-Motion is denied. The Court vacates the Agency's decision and remands this matter for further consideration, consistent with this Order.
In this case, All Bright seeks a determination under the Administrative Procedure Act ("APA"), 5 U.S.C. §706 et seq., that the Government improperly denied its petition for a foreign national to receive United States Non-Immigrant Investor Status pursuant to the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(E), and certain Federal Regulations, 8 CFR §214.2(e). All Bright requested that the Agency change the nonimmigrant visa status of its sole owner and shareholder, Simon Geisler, to "E-2 Treaty Investor" from "F-1 Student," the visa classification Geisler previously enjoyed. The Agency denied All Bright's application principally because it found Geisler, the treaty investor, had not satisfied the requirements of an "investment" under 8 C.F.R. § 214.2(e)(12). The question before the Court is whether the Agency properly determined that Geisler was not eligible for the "E-2 Treaty Investor" classification.
The "E-2 Treaty Investor" visa classification was established by Congress in order to encourage capital inflow by foreign investors and to create additional employment opportunities for United States citizens. A treaty investor is someone admitted to the United States "solely to develop and direct the operations of an enterprise in which he has invested, or of an enterprise in which he is actively in the process of investing, a substantial amount of capital." 8 U.S.C. § 1101(a)(15)(e)(ii). The governing requirements for obtaining this visa classification are set forth in 8 U.S.C. § 1101(a)(15)(e)(ii), and the implementing regulations, 8 C.F.R. § 214.2(e)(12) and 22 C.F.R. § 41.51, as well as in the U.S. Department of State Foreign Affairs Manual.
Of relevance here, the regulations require the treaty investor to have made an "investment," which is defined as:
[T]he treaty investor's placing of capital, including funds and other assets (which have not been obtained, directly or indirectly, through criminal activity), at risk in the commercial sense with the objective of generating a profit. The treaty investor must be in possession of and have control over the capital invested or being invested. The capital must be subject to partial or total loss if investment fortunes reverse. Such investment capital must be the investor's unsecured personal business capital or capital secured by personal assets. Capital in the process of being invested or that has been invested must be irrevocably committed to the enterprise. . . .
See 8 C.F.R. § 214.2(e)(12) (emphasis supplied); see also 22 C.F.R. § 41.51(b)(7).
So long as the funds or assets are received by legitimate means and are in the treaty investor's possession and control, they may qualify as an "investment," even if received as a gift. See, e.g., 9 FAM 41.51 N8.1-1. The value of equipment invested into the treaty enterprise may also be counted towards an "investment." See, e.g., 9 FAM 41.51 N8.2-2. Likewise, loans may qualify, but not if they are secured with the assets of the treaty enterprise:
Loans secured by the assets of the investment enterprise, such as mortgage debt or commercial loans, may not be used to meet the investment requirement. On the other hand, acceptable investment funds include such personal assets as a second mortgage on a home, unsecured or unencumbered loans or assets, and loans on the alien's personal signature.
See 62 Fed. Reg. 48138-01 (Sept. 12, 1997); see also 9 FAM 41.51 N8.1-2.
On September 30, 2009, All Bright filed its petition seeking to qualify Geisler, a citizen of Austria, as an "E-2 Treaty Investor." Geisler formed and incorporated All Bright, a Colorado corporation of which he is the sole owner and shareholder. The application indicated that Geisler, through All Bright, had invested a total of $653,329 in order to purchase an existing garbage collection business, Canyon Waste & Recycling, Inc. ("Canyon"). The claimed investment was comprised of $226,690 in equipment, $375,000 in loans, and the rest in cash. The cash had allegedly been given to Geisler by his father, who owned and operated another waste management company in North Carolina. Geisler's father had also gifted the garbage collection equipment, for $1, directly to All Bright. There were two loans: one from Canyon's owners to All Bright for $175,000; and another from LEAF Funding, Inc., a third party lender, to All Bright for $200,750. Although there was no collateral on the $175,000 loan, Geisler signed a personal guaranty for payment. The garbage collection equipment, gifted by Geisler's father, was pledged as collateral on the $200,750 loan. That loan was also backed by a personal guaranty from Geisler.
The Agency denied All Bright's petition on March 15, 2010, finding that it failed to establish the necessary statutory and regulatory requirements for Geisler to receive the "E-2 Treaty Investor" visa classification. Thereafter, All Bright filed a motion to reopen, which the Agency denied on May 5, 2010, leaving the earlier decision undisturbed.
On June 2, 2010, All Bright filed a Complaint in this Court, challenging the Agency's decision under the APA. Subsequently, on July 31, 2010, the parties informed the Court that the Agency had agreed to receive further evidence from All Bright in support of its petition. The Court therefore administratively closed the case on August 5, 2010, to allow the Agency sufficient time to consider any new evidence. On August 11, 2010, the Agency vacated its previous decision and granted All Bright's motion to reopen.
On January 7, 2011, after All Bright submitted additional information, the Agency issued a new decision that again denied All Bright's petition. According to the Agency, All Bright failed to show that the capital invested in the treaty enterprise met all of the requirements for an "investment" under 8 U.S.C. § 1101(a)(15)(ii) and 8 C.F.R. § 214.2(e)(12). The Agency found that Geisler failed to show he was "in possession of and ha[d] control over the capital invested or being invested," as required by the regulations. See 8 C.F.R. § 214.2(e)(12). The Agencyexplained that the record showed the equipment, worth $248,689, had been transferred directly from Geisler's father to All Bright in exchange for $1, but that the equipment was never in the "possession" or "control" of Geisler himself. It reached this conclusion notwithstanding that Geisler was the sole owner and shareholder of All Bright, because corporations are legal entities separate from their principals and shareholders.
In addition, the Agency found that All Bright's loans could not be counted because Gaiesler was not personally and primarily liable on either of them. See 8 C.F.R. § 214.2(e)(12) (). The Agency concluded that the $200,750 loan did not qualify for "investment" treatment because the loan was secured with All Bright's assets, namely the equipment that Geisler's father had gifted to the corporation. The Agency also did not count the $175,000 loan because it was made without collateral. With respect to the cash, the Agency recognized that there was evidence Geisler's father had given money to his son, but found no documentation demonstrating that Geisler invested such funds into All Bright.
On February 8, 2011, All Bright filed a motion to reconsider the January 7, 2011 decision. The Agency denied that request on April 19, 2011, finding that All Bright failed to establish the decision was based on an incorrect application of law or policy. The Agency reiterated that All Bright had not shown that the capital at issue met the requirements for an "investment," as defined by 8 C.F.R. § 214.2(e)(12).
This Court has jurisdiction to review the Agency's denial of an "E-2 Treaty Investor" petition under the APA, 5 U.S.C. § 706, and the federal question statute, 28 U.S.C. § 1331.2
This case requires the Court to apply an amalgamation of legal standards informed by the summary judgment rule, the standard of review under the APA, and the deference accorded administrative agency action.
Under Federal Rule of Civil Procedure 56, "summary judgment is appropriate where there 'is no genuine issue as to any material fact' and the moving party is 'entitled to a judgment as a matter of law.'" See Alabama v. North Carolina, 130 S. Ct. 2295, 2308 (2010) (quoting Fed. R. Civ. P. 56(a)). Here, as the parties agree, the material facts are not in dispute and the Court's review is limited to the administrative record before the agency. Thus, this case is suited for summary disposition under Rule 56. See Mahon v. U.S. Dep't of Agric., 485 F.3d 1247, 1253 (11th Cir. 2007) (); Fla Fruit & Veg. Ass'n v. Brock, 771 F.2d 1455, 1459 (11th Cir. 1985) (...
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