Beyond Mgmt. Inc. v. Holder
| Citation | 778 F.Supp.2d 1375 |
| Decision Date | 25 March 2011 |
| Docket Number | Civil Action No. 1:10–CV–2482–MHS. |
| Parties | BEYOND MANAGEMENT, INC., Plaintiff,v.Eric HOLDER, Jr., Attorney General of the United States, et al., Defendants. |
| Court | U.S. District Court — Northern District of Georgia |
OPINION TEXT STARTS HERE
Charles H. Kuck, Danielle M. Conley, Kuck Casablance LLC, Atlanta, GA, for Plaintiff.Christopher W. Hollis, United States Department of Justice, Washington, DC, Darcy F. Coty, U.S. Attorney's Office, Atlanta, GA, for Defendants.
This action is before the Court on defendants' motion to dismiss due to lack of subject matter jurisdiction or, in the alternative, for summary judgment. For the following reasons, the Court denies the motion to dismiss and grants the motion for summary judgment.
On September 11, 2008, plaintiff Beyond Management, Inc. (“BMI”), a hotel management company, filed Form I–129, Petition for a Nonimmigrant Worker, with United States Citizenship and Immigration Services (“USCIS”) Vermont Service Center seeking to be approved as an international cultural exchange program and to obtain Q–1 visas for four named beneficiaries pursuant to Section 101(a)(15)(Q) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101(a)(15)(Q). A Q–1 status nonimmigrant alien is defined as “an alien having a residence in a foreign country which he has no intention of abandoning who is coming temporarily (for a period not to exceed 15 months) to the United States as a participant in an international cultural exchange program approved by the Secretary of Homeland Security for the purpose of providing practical training, employment, and the sharing of the history, culture, and traditions of the country of the alien's nationality and who will be employed under the same wages and working conditions as domestic workers.” 8 U.S.C. § 1101(a)(15)(Q); 8 C.F.R. § 214.2(q)(2)(i).
On November 3, 2008, USCIS asked BMI Admin. R. at 377. On December 17, 2008, BMI responded to the request with additional evidence. Id. at 375.
By decision dated December 24, 2008, the Director of USCIS Vermont Service Center denied BMI's I–129 petition. The denial noted that all four beneficiaries had been in the United States on J–1 visas training in the hospitality industry with an emphasis on front desk operations and culinary arts. The denial concluded that the beneficiaries were “temporary workers that your organization is attempting to fit into the Q1 visa category,” and that the duties they “would primarily be performing would be independent of any claimed cultural exchange program that you claim to have at your organizations [sic] locations.” Admin. R. at 34.
On January 21, 2009, BMI filed a timely appeal of the denial of its petition to USCIS's Administrative Appeal Office (“AAO”). By decision dated May 13, 2010, the AAO affirmed the Director's decision and dismissed BMI's appeal. Admin. E. at 1–14. The AAO first found that BMI had failed to show that its program qualified as an international cultural exchange program because it “failed to establish that the beneficiar[ies] would be engaged in employment or training of which the essential element is the sharing with the American public, or a segment of the public sharing a common cultural interest, of the culture of the aliens' countries of nationality.” Id. at 12 (emphasis in original). Second, the AAO found that the Director had correctly determined that only two of the four beneficiaries, who were all in the United States as J–1 exchange visitors at the time of filing, had obtained waivers of the two-year foreign residency requirement. Id. at 12–13.1 Finally, the AAO found that BMI had failed to provide sufficient documentation supporting the claim that it would offer the beneficiaries wages and working conditions comparable to those given to local domestic workers similarly employed. Id. at 13.
On August 9, 2010, BMI brought this action against named government officials pursuant to the Administrative Procedure Act (“APA”) asking the Court to declare that the decisions of December 24, 2008, and May 13, 2010, were arbitrary and capricious and in violation of the INA and the APA. Plaintiff asks the Court to reverse or remand this matter to the agency for a decision consistent with the evidence, to award BMI reasonable attorneys' fees and costs, and to grant such other relief as may be just and proper.
Defendants assert that this Court has no jurisdiction to review the discretionary decisions of the Director and the AAO, and that the case should therefore be dismissed. In the event the Court determines that it does have jurisdiction, defendants contend they are entitled to summary judgment on BMI's claims.
Defendants contend that Section 242(a)(2)(B)(ii) of the INA, 8 U.S.C. § 1252(a)(2)(B)(ii), bars this Court from reviewing USCIS's denial of BMI's I–129 petition. That provision states in pertinent part that “no court shall have jurisdiction to review ... any ... decision of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security ....” 8 U.S.C. § 1252(a)(2)(B)(ii) (emphasis supplied). The subchapter to which the statute refers is subchapter II of Chapter 12 of Title 8, 8 U.S.C. §§ 1151–1378. Zafar v. U.S. Att'y Gen., 461 F.3d 1357, 1361 (11th Cir.2006). It therefore includes 8 U.S.C. § 1184, which governs nonimmigrant visa petitions such as the I–129 at issue here.
Section 1184 provides in pertinent part that “[t]he admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the Attorney General may by regulations prescribe....” 8 U.S.C. § 1184(a)(1) (emphasis supplied). Defendants contend that the discretion-granting “may” in the statutory language means that the authority for deciding whether to admit nonimmigrant aliens, including Q–1 status nonimmigrants, is “specified” to be in the discretion of the Attorney General, and that judicial review of such decisions is therefore barred under 8 U.S.C. § 1252(a)(2)(B)(ii).
Neither the Eleventh Circuit nor any other circuit has addressed this issue specifically in the context of a Q–1 visa application. However, in Nat'l Collegiate Recreation Servs. v. Chertoff, 447 F.Supp.2d 527 (D.S.C.2006), the district court addressed the identical issue presented here. In that case, the court opted for a narrower interpretation of Section 1252(a)(2)(B)(ii), holding that it “bars judicial review only of determinations of the Attorney General which Subchapter II of the INA specifies as being ‘in his discretion.’ ” Id. at 532 (emphasis in original). The court rejected the government's broader interpretation (the same interpretation defendants urge in this case), which would have applied the jurisdiction-stripping provision “to all inherently discretionary determinations, not just determinations made pursuant to provisions specified as being within the discretion of the Attorney General.” Id. at 531, Although “plausible,” the court found the government's reading of the statute contrary to principles of statutory construction requiring (1) clear and convincing evidence of legislative intent to restrict access to judicial review, (2) a strong presumption in favor of judicial review of administrative action, and (3) construction of ambiguities in deportation statutes in favor of the alien. Id. at 532.
Applying the narrower interpretation, the court found that “because neither the relevant Subchapter of the INA, nor the Regulations passed pursuant to the INA, specify that the Attorney General's decision to approve Q–1 international cultural exchange programs is ‘in his discretion,’ section 1252(a)(2)(B)(ii) does not bar this court from reviewing the Government's denial.” Id. (footnote omitted). This Court finds the district court's decision in Nat'l Collegiate Recreation Servs. to be well-reasoned and persuasive.
Contrary to defendants' argument, this case is not controlled by the Eleventh Circuit's decision in Zafar. In that case, the court held that Section 1252(a)(2)(B)(ii) did not bar court review of an Immigration Judge's decision to deny a motion to continue a removal hearing because authority for that decision was not found in the relevant statutory provisions of the INA, Zafar, 461 F.3d at 1360, The court noted several examples of statutorily specified discretionary powers of the Attorney General, including one that, like 8 U.S.C. § 1184(a)(1), does not contain “in his discretion” language but only specifies that the Attorney General “ may authorize immigration officers” to take certain actions. Id. at 1361 (quoting 8 U.S.C. § 1221(c)) (emphasis supplied). The court, however, acknowledged that these statutory provisions “[are] not before us,” and concluded that decisions under these statutes would “presumably” not be reviewable by any court. Id. Thus, the language on which defendants rely is mere dicta and does not control the decision in this case.
The Court concludes that it has jurisdiction to review defendants' denial of plaintiff's I–129 petition. Therefore, the Court denies defendants' motion to dismiss.
II. Motion for Summary Judgment
Summary judgment is appropriate when “there is no genuine issue as to any material fact ... and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), The Court must construe the evidence and all inferences drawn from the evidence in the light most...
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