Delta Talent, LLC v. Wolf

• Decision Date: 23 March 2020
• Docket Number: CAUSE NO. A-18-CV-0835-LY
• Citation: 448 F.Supp.3d 644
• Parties: DELTA TALENT, LLC, Plaintiff, v. Chad F. WOLF, in His Official Capacity as Acting Secretary of United States Department of Homeland Security, And United States Department of Homeland Security, Defendants.
• Court: U.S. District Court — Western District of Texas

448 F.Supp.3d 644

DELTA TALENT, LLC, Plaintiff,

v.Chad F. WOLF, in His Official Capacity as Acting Secretary of United States Department of Homeland Security,¹ And United States Department of Homeland Security, Defendants.

CAUSE NO. A-18-CV-0835-LY

United States District Court, W.D. Texas, Austin Division.

Signed March 23, 2020

Jonathan Wasden, Law Office, Fairfax Station, VA, Ruth Monty Willars, Monty & Ramirez LLP, Houston, TX, for Plaintiff.

John F. Paniszczyn, U.S. Attorney's Office, San Antonio, TX, Samuel P. Go, U.S. Department of Justice, Washington, DC, for Defendants.

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

LEE YEAKEL, UNITED STATES DISTRICT JUDGE

Before the court is the above-styled and numbered cause that arises under the Immigration and Nationality Act ("the Act"). See 8 U.S.C. §§ 1101 - 1537. Pursuant to the Administrative Procedure Act ("APA"), Plaintiff, Delta Talent, LLC, the Petitioner before the United States Citizenship and Immigration Services, Texas Service Center ("USCIS"), seeks judicial review and reversal of USCIS's February 26, 2019 Decision ("Decision") that denied Delta Talent's I-140 Petition "Immigrant Petition for Alien Worker" for a permanent resident visa ("the Petition"). See 5 U.S.C. §§ 500 - 559. By the Petition, Delta Talent sought an EB1C visa on behalf of Beneficiary Gerardo Gutierrez Osuna on the basis that for immigration-classification purposes, Gutierrez is an "immigrant multinational executive or manager."² See 8 U.S.C. § 1153(b)(1)(C). The EB1C visa would allow Gutierrez, as a Delta Talent employee, to remain in the United States as a permanent-resident alien. Before the court are the parties' cross-motions for summary judgment, responses, replies, exhibits, and the parties' Joint Appendix, which includes all matters from the certified administrative record that the parties considered pertinent to the court's review.³ Having considered all of the parties' filings and the applicable law, the court renders the following order.

"Summary judgment is required when ‘the movant shows that there is no dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ " Trent v. Wade , 776 F.3d 368, 376 (5th Cir. 2015) (quoting Fed. R. Civ. P. 56(a) ). "A genuine dispute of material fact exists when the ‘evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ " Nola Spice Designs, LLC v. Haydel Enters., Inc. , 783 F.3d 527, 536 (5th Cir. 2015) (quoting Anderson v. Liberty Lobby , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). "The moving party ‘bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.’ " Id. (quoting EEOC v. LHC Grp., Inc. , 773 F.3d 688, 694 (5th Cir. 2014) ). A fact is material if "its resolution could affect the outcome of the action." Aly v. City of Lake Jackson , 605 Fed. App'x 260, 262 (5th Cir. 2015). "If the moving party fails to meet [its] initial burden, the motion [for summary judgment] must be denied, regardless of the nonmovant's response." Pioneer Exploration, LLC v. Steadfast Ins. Co. , 767 F.3d 503 (5th Cir. 2014).

"When the moving party has met its Rule 56(c) burden, the nonmoving party cannot survive a summary judgment motion by resting on the mere allegations of its pleadings." Duffie v. United States , 600 F.3d 362, 371 (5th Cir. 2010). The nonmovant must identify specific evidence in the record and articulate how that evidence supports that party's claim. Willis v. Cleco Corp. , 749 F.3d 314, 317 (5th Cir. 2014). "This burden will not be satisfied by ‘some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.’ " Boudreaux v. Swift Transp. Co., Inc. , 402 F.3d 536, 540 (5th Cir. 2005). In deciding a summary-judgment motion, the court draws all reasonable inferences in the light most favorable to the nonmoving party. Darden v. City of Fort Worth , 866 F.3d 698, 702 (5th Cir. 2017).

On cross motions for summary judgment, the court reviews each party's motion independently, viewing the evidence and inferences in the light most favorable to the nonmoving party, determining for each side, whether judgment may be rendered in accordance with the Rule 56 standard. Amerisure Ins. Co. v. Navigators Ins. Co. , 611 F.3d 299, 304 (5th Cir. 2010) (internal citation and quotation omitted); Shaw Constr. v. ICF Kaiser Engrs., Inc. , 395 F.3d 533 fn. 8 & 9 (5th Cir. 2004).

In the context of a challenge to an agency action under the APA, "[s]ummary judgment is the proper mechanism for deciding, as a matter of law, whether an agency's action is supported by the administrative record and consistent with the APA standard of review." American Stewards of Liberty v. United States Dept. of Interior , 370 F. Supp. 3d 711, 723 (W.D. Tex. 2019) (quoting Blue Ocean Inst. v. Gutierrez , 585 F. Supp. 2d 36, 41 (D.D.C. 2008) ). When a party seeks review of agency action under the APA, the district judge sits as an appellate tribunal. See e.g., Redeemed Christian Church of God v. United States Citizenship & Immigration Servs. , 331 Fed. Supp. 3d 684, 694 (S.D. Tex. 2018). The entire case on review is a question of law. Id. Under the APA, it is the role of the agency to resolve factual issues to arrive at a decision that is supported by the administrative record, whereas ‘the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." Id. Summary judgment serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review. Id.

An applicant for a visa bears the burden of establishing eligibility by a preponderance of the evidence. See National Hand Tool Corp. v. Pasquarell , 889 F.2d 1472, 1475 (5th Cir. 1989). A denial of an application for a visa may be reversed by the court only if the USCIS decision is found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A) ; see also Defensor v. Meissner , 201 F.3d 384, 386 (5th Cir. 2000). "Although a reviewing court is bound to ensure that the [USCIS] engaged in ‘reasoned decision-making’ in denying an application, the [USCIS] is entitled to considerable deference in its interpretation of the governing statute." National Hand Tool Corp. , 889 F.2d at 1475 (citations omitted). The court may not substitute its own judgment for that of UCIS. City of Abilene v. United States Envtl. Prot. Agency , 325 F.3d 657, 664 (5th Cir. 2003). The court may only consider "whether the [USCIS] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment"–it does not reweigh the evidence. Marsh v. Oregon Nat. Res. Council , 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) ; Delta Found. Inc. v. United States , 303 F.3d 551, 563 (5th Cir. 2002). "Thus, if the agency considers the factors and articulates a rational relationship between the facts and the choice made, its decision is not arbitrary and capricious." Delta , 303 F.3d at 563. And indeed the "agency's decision need not be ideal, so long as the agency gave minimal consideration to relevant facts contained in the record." Id. The court also recognizes that deference is particularly appropriate in immigration matters, which are a "sovereign prerogative" of the executive and legislative branches of government. Landon v. Plasencia , 459 U.S. 21, 34, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982).

With these principles in mind, the court's review is limited to matters within the certified administrative record.

Citizens to Preserve Overton Park v. Volpe , 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).

Background

The amended complaint alleges that Delta Talent LLC, a Texas Limited Liability Company, headquartered in Austin, Texas, is a subsidiary of Delta Inmobiliaria y Valores, S.A. de C.V. ("DIVA"), a Mexican multimillion dollar real estate business. DIVA, its affiliates, and subsidiaries operate under the trade name "Desarrollos Delta Group" ("DIVA/Desarrollos"). This conglomerate consists of several real estate and financial investment companies located in the United States and Mexico that are owned and controlled by the same five members of the Garza Santos family. DIVA/Dessarrollos Delta invested funds and has ownership and control of El Rincon U.S.A., S.A. de C.V. ("El Rincon"), "an entity created solely to hold financial investments from Mexico to the United States." El Rincon and the Garza Santos family have a combined 100% interest in three United States businesses, including Delta Talent.

On October 24, 2012, Delta Talent, on behalf of Gutierrez, filed a Form I-129, Petition for a Nonimmigrant Worker, seeking an L-1A visa–an intra-company visa for a petitioner's alien-employee to remain in the United States temporarily–that was approved on December 12, 2012.⁴ As part of that process, Delta Talent provided copies of Gutierrez's degree in accounting and proof he was a certified public accountant. Delta Talent explained that Gutierrez would function at a senior management level, working to develop and implement business strategies. Delta Talent also represented that Gutierrez would lead its operations in the United States.

Then on June 24, 2014, Delta Talent filed the Petition, asserting that it was hiring Gutierrez as Vice-President of Delta Talent and would employ him permanently in the United States. Delta Talent's Petition sought to classify Gutierrez as a multinational executive or manager. See 8 U.S.C. § 1153(b)(1). After issuing a Notice of Intent to Deny ("NOID") and a Request for Evidence, USCIS denied the Petition on July...