Atanackovic v. Duke

Citation399 F.Supp.3d 79
Decision Date27 March 2019
Docket NumberCase No.6:17-cv-06689-WKS
Parties Milan ATANACKOVIC, et al., Plaintiffs v. Elaine C. DUKE, et al., Defendants.
CourtU.S. District Court — Western District of New York

Brian C. Schmitt, Hake & Schmitt, New Windsor, MD, for Plaintiffs.

Joshua S. Press, U.S. Department of Justice-Civil Division, Washington, DC, Defendants.

OPINION AND ORDER

William K. Sessions III, District Court Judge

Plaintiffs seek review of Customs and Border Patrol's ("CBP") decision to deny Dr. Milan Atanackovic admission into the United States. At issue before the Court are Plaintiffs' and Defendants' Motions for Summary Judgment and Defendants' Motion to Strike Extra-Record Evidence.

For the reasons set forth below, Plaintiffs' Motion for Summary Judgment is granted in part and denied in part . Defendants' Cross-Motion for Summary Judgment is denied and Defendants' Motion to Strike is denied .

Statutory Background
I. The Immigration and Nationality Act and Canadian Citizens

Under the Immigration and Nationality Act ("INA"), a foreign national arriving at the United States is considered an "applicant for admission." 8 U.S.C. § 1225. "In general," a nonimmigrant applicant for admission who "is not in possession of a valid immigrant visa or border crossing identification card at the time of application for admission is inadmissible." 8 U.S.C. § 1182(a)(7)(B)(i)(II).

However, both Department of Homeland Security ("DHS") and Department of State regulations state that Canadian citizens are visa-exempt. DHS regulations provide that "[a] visa is generally not required for Canadian citizens, except those Canadians that fall under nonimmigrant visa categories E, K, S, or V as provided in paragraphs (h), (l), and (m) of this section and 22 CFR 41.2." 8 C.F.R. § 212.1(a)(1). Similarly, Department of State regulations provide that:

A visa is not required for an American Indian born in Canada having at least 50 percentum of blood of the American Indian race. A visa is not required for other Canadian citizens except for those who apply for admission in E, K, V, or S nonimmigrant classifications as provided in paragraphs (k) and (m) of this section and 8 C.F.R. § 212.1.

22 C.F.R. § 41.2.

II. J-1 Visa Program

The J-1 visa program allows nonimmigrant exchange visitors to temporarily come to the United States to teach, conduct research, or receive training. 8 U.S.C. § 1101(a)(15)(J). The J-1 visa program specifically mentions people coming to the U.S. to "receive graduate medical education." Id. To be eligible for a J-1 visa, an applicant must have "a residence in a foreign country which he has no intention of abandoning." Id.

People who come to the U.S. through the J-1 visa program to receive graduate medical training become subject to the two-year foreign residence requirement of 8 U.S.C. § 1182(e) :

No person admitted under section 1101(a)(15)(J) of this title ... who came to the United States ... in order to receive graduate medical education or training, shall be eligible to apply for an immigrant visa, or for permanent residence, or for a nonimmigrant visa under section 1101(a)(15)(H) or section 1101(a)(15)(L) of this title until it is established that such person has resided and been physically present in the country of his nationality or his last residence for an aggregate of at least two years following departure from the United States.

8 U.S.C. § 1182(e). Individuals subject to the two-year foreign residence requirement are also ineligible to apply for a change of status from J-1 to another nonimmigrant status from within the United States. 8 U.S.C. § 1258(a).

People subject to the two-year foreign residence requirement may seek a waiver of this requirement through the Department of State if (1) the alien's "departure from the United States would impose exceptional hardship" upon the alien's American citizen (or lawful permanent resident) spouse or child; (2) the alien cannot return to the country of his nationality or last residence because he would be subject to persecution on account of race, religion, or political opinion; (3) a U.S. government agency states that a waiver would be in the national interest; or (4) the alien's home country does not object to a waiver. 8 U.S.C. § 1182(e).

III. H-1B Visa Program

The H-1B visa program allows U.S. employers to temporarily hire foreign workers in specialty occupations. 8 U.S.C. § 1101(a)(15)(H)(i)(b). In order to employ a foreign worker, an employer must first submit a Form I-129 Petition for a Nonimmigrant Worker to the U.S. Citizenship and Immigration Services ("USCIS"). See 8 U.S.C. § 1184(c)(1), 8 C.F.R. § 214.2(h)(1)(i) ("The employer must file a petition with the Service for review of the services or training and for determination of the alien's eligibility for classification as a temporary employee or trainee, before the alien may apply for a visa or seek admission to the United States."). If USCIS "approves the H-1B classification, the nonimmigrant then may apply for an H-1B visa." 20 C.F.R. § 655.700(b)(3).

Factual Background
I. Undisputed Facts

Dr. Atanackovic first entered the United States on a J-1 visa on June 5, 2013. ECF 1 at 6. Dr. Atanackovic's J-1 status was sponsored by the Educational Commission for Foreign Medical Graduates. ECF 1 at 7. As such, Dr. Atanackovic is subject to the two-year foreign residence requirement on the basis of his participation in graduate medical education. Id.

In 2016, USCIS approved an H-1B petition, submitted by Unity Hospital, to employ Dr. Atanackovic. Id. The approved petition was valid from September 12, 2016 to September 11, 2019, with notice to the Peace Bridge in Buffalo, New York as the designated port of entry. Id. Dr. Atanackovic did not obtain an H-1B visa. ECF 12-2 at 2-3. Rather, Dr. Atanackovic presented himself at the United States border with his approved H-1B petition. Id. With this documentation, Dr. Atanackovic entered the United States multiple times between September 2016 and January 2017. Id.

On January 11, 2017, Dr. Atanackovic again presented himself for admission to the United States at the Peace Bridge port of entry. ECF 1 at 7. Dr. Atanackovic was denied admission on January 11, 2017 "because United States Customs and Border Protection determined that Dr. Atanackovic did not have the necessary waiver under 8 U.S.C. § 1182(e) to be allowed admission to work at Unity Hospital." ECF 12-2 at 2. The ground of inadmissibility cited by CBP was 8 U.S.C. § 1182(a)(7)(A)(i)(I). ECF 12-1 at 23, ECF 13 at 14. Dr. Atanackovic was allowed to withdraw his request for admission and return to Canada. ECF 12-2 at 2-3.

After his denial of admission in January 2017, Dr. Atanackovic filed a Department of Health and Human Services clinical Interested Government Agency waiver request. ECF 1 at 12. This was approved by USCIS on July 27, 2017. Id. A new employer, Rochester General Hospital, filed a new H-1B petition for Dr. Atanackovic on July 14, 2017. Id. The new H-1B petition was approved on August 1, 2017 and Dr. Atanackovic was admitted to the United States on the new H-1B petition at the Peace Bridge port of entry on August 9, 2017. Id.

Dr. Atanackovic currently resides with his family in the state of New York and works at Rochester General Hospital. ECF 12-2 at 3.

In October, 2017, Dr. Atanackovic; his wife, Bojana Savic; Unity Hospital of Rochester; and Rochester General Hospital (collectively, "Plaintiffs") filed this case in United States District Court for the Western District of New York against Elaine C. Duke, Acting Secretary of the U.S. Department of Homeland Security; Kevin K. McAleenan, Acting Commissioner of U.S. Customs and Border Protection; Rose Brophy, Director of Field Operations for U.S. Customs and Border Protection in the Buffalo Field Office; and Jefferson B. Sessions, the Attorney General of the United States (collectively, "Defendants"). ECF 1. The Complaint alleges three causes of action: (1) abuse of discretion and violation of the Administrative Procedure Act, (2) failure to provide reasoned analysis describing a marked change in policy of permitting visa-exempt Canadians from entering the United States when such nationals are subject to the two-year foreign residence requirement, and (3) declaratory relief under the Declaratory Judgment Act. Id.

Plaintiffs filed a Motion for Summary Judgment, arguing that Defendants' refusal to admit Dr. Atanackovic was arbitrary and capricious, and that Defendants needed to provide a reasoned analysis for a marked change in policy. ECF 9-1 at 2. Defendants filed a Cross-Motion for Summary Judgment alleging that Plaintiffs' claims are moot, that CBP's actions were discretionary and not subject to review by this court, and that CBP's actions were lawful. ECF 12-1 at 2. Defendants also filed a Motion to Strike extra-record evidence submitted by Plaintiffs. ECF 15 at 1.

II. Disputed Facts

Plaintiffs submitted a Statement of Material Facts and four supporting declarations with their Motion for Summary Judgment. Defendants argue these should not be considered by the Court. ECF 15. The declarations come from Dr. Atanackovic, the named Plaintiff in this case; Mary Parlet, Vice President of the Primary Care Institute for Rochester Regional Health ("RRH"); Gregory H. Siskind, experienced practicing immigration attorney and co-author of the J-1 Visa Guidebook and The Physician Immigration Handbook; and William A. Stock, experienced immigration attorney and immediate past president of the American Immigration Lawyers Association ("AILA"). ECF 9-3.

Dr. Atanackovic's declaration gives a more detailed account of his experience with CBP officers on January 11, 2017, the day he was refused admission into the United States. ECF 9-3 at 6.

Mary Parlet's declaration addresses the organizational plaintiffs. Ms. Parlet is the Vice President of the Primary Care Institute for Rochester Regional Health, the parent company that owns both Rochester General Hospital and Unity Hospital. ECF 9-3 at 10. Parlet explains...

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