Estrada-Hernandez v. Holder

Decision Date15 May 2015
Docket NumberCase No. 13CV2791 JLS (RBB).
Citation108 F.Supp.3d 936
CourtU.S. District Court — Southern District of California
Parties Jose Luis ESTRADA–HERNANDEZ, and Jose Luis Farias–Estrada, Plaintiffs, v. Eric H. HOLDER, Jr., Attorney General of the United States, et al., Defendants.

Robert George Nadalin, The Law Offices of Robert Nadalin, San Diego, CA, for Plaintiffs.

Aaron S. Goldsmith, Department of Justice, Washington, DC, Samuel William Bettwy, U.S. Attorney's Office Southern District of California, San Diego, CA, for Defendants.

AMENDED ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

JANIS L. SAMMARTINO, District Judge.

Presently before the Court is Plaintiffs Jose Luis Estrada–Hernandez ("Estrada") and Jose Luis Farias–Hernandez' (the "Beneficiary") (collectively, "Plaintiffs") Motion for Summary Judgment ("MSJ"). (Plaintiffs' MSJ, ECF No. 23.) Also before the Court is Defendant's Combined Cross–MSJ and Opposition to Plaintiffs' MSJ, (Def. Cross MSJ, ECF No. 24), as well as the parties' associated replies. (Plaintiffs' Reply, ECF No. 25; Def. Reply, ECF No. 26.)

The Court vacated the hearing set for February 19, 2015 and took the matter under submission without oral argument pursuant to Civil Local Rule 7.1(d)(1). Having considered the parties' arguments and the law, the Court DENIES Plaintiffs' MSJ and GRANTS Defendant's Cross–MSJ.

BACKGROUND

Estrada is the sole proprietor of Estrada's Mexican Food ("Estrada's"), a restaurant in Santee, California. (Administrative Record ("AR") 2, 9, ECF No. 13.) Estrada petitioned the United States Citizenship and Immigration Service ("USCIS") for permission to permanently employ the Beneficiary as a Michoacán specialty cook, but the application was denied. (Id. at 2.)

1. Legal Framework

Under the Immigration and Nationality Act, the government may grant visas to qualified immigrant aliens who are offered permanent employment for which qualified workers are not available in the United States. 8 U.S.C. § 1153(b)(3)(A). Authority to administer this statute has been delegated to the Secretary of Homeland Security and sub-delegated to the USCIS. See id. § 1103(a)(1); 8 C.F.R. § 2.1 ; Pub. Law No. 107–296, §§ 451(b)(1), 471 (Nov. 25, 2002) (abolishing the Immigration and Naturalization Service and transferring the adjudication of immigrant visa petitions to USCIS).

To begin the process, an alien's prospective employer must file ETA Form 9089, "Application for Permanent Employment Certification," with the Department of Labor ("DOL"). 20 C.F.R. § 656.17(a)(1). When filing the Application, the employer must state the actual minimum requirements of the job, including the wage offered and the experience required. (See AR 36–37, ECF No. 13.) Prior to approval, the DOL must certify (1) there are no qualified, able, and willing United States workers available to take the position at the time of application and (2) the employment of the alien will not adversely affect the wages or working conditions of similarly situated workers in the United States. 8 U.S.C. § 1182(a)(5)(A)(i). Once the DOL approves the Application, the employer can petition the USCIS to classify a specific alien beneficiary as an employment-based immigrant using Form I–140. See 8 C.F.R. § 204.5(a), (c). The USCIS uses the DOL approval date, known as the "priority date," in evaluating the petition. Id. § 204.5(d).

The employer bears the burden of showing that the job offer to the beneficiary is a realistic one. Thus, the employer must show that it has the ability to pay the proffered wage and that the prospective employee has the requisite experience. Id. §§ 204.5(g)(2), (l )(3)(ii)(A).

Section 204.5(g)(2) provides:

Any petition filed by or for an employment-based immigrant which requires an offer of employment must be accompanied by evidence that the prospective United States employer has the ability to pay the proffered wage. The petitioner must demonstrate this ability at the time the priority date is established and continuing until the beneficiary obtains lawful permanent residence. Evidence of this ability shall be either in the form of copies of annual reports, federal tax returns, or audited financial statements.... In appropriate cases, additional evidence, such as profit/loss statements, bank account records, or personnel records, may be submitted by the petitioner or requested by the Service.
Section 204.5(l )(3)(ii)(A) provides:
Any requirements of training or experience for skilled workers, professionals, or other workers must be supported by letters from trainers or employers giving the name, address, and title of the trainer or employer, and a description of the training received or the experience of the alien.
2. Factual and Procedural History

Estrada submitted ETA Form 9089 to the DOL on behalf of the Beneficiary. (AR 35–44, ECF No. 13.) The Application stated that Estrada's was unable to find an able, willing, and qualified worker within the United States to fill the Michoacán line cook position. (Id. at 43.) The position offered an annual wage of $20,969 and required six months experience as a Michoacán specialty cook. (Id. at 36–37.) The DOL certified the labor certification on September 15, 2010, which serves as the priority date for the subsequent petition to USCIS.1 (AR 212, ECF No. 14.) Estrada then petitioned the USCIS for classification of the Beneficiary as an "other worker" pursuant to 8 U.S.C. § 1153(b)(3)(A). (AR 2, ECF No. 13.)

To establish the ability to pay the proffered wage of $20,969, Estrada submitted copies of IRS Form W–2, Wage and Tax Statements, for 2010 through 2012. (Id. at 8.) These IRS forms reflect payments made by Estrada to the Beneficiary of $19,760, $19,380, and $23,296, respectively. (Id. ) However, the social security number listed on the Form W–2s does not belong to the Beneficiary. (Id. at 8, 67; AR 259, ECF No. 14.) Estrada also provided his income tax returns as sole proprietor of Estrada's for 2010, 2011, 2012. (AR 9, ECF No. 13.) These forms list his adjusted gross income for the three years as $23,409, $34,664, and $36,259, respectively. (Id.; AR 436, 452, ECF No. 15; AR 233, ECF No. 14.) Estrada supports a family of six and did not provide a complete list of monthly expenses for the time period. (AR 9, ECF No. 13.) However, Estrada did submit copies of household bills for December 2012, January 2013, and February 2013, reflecting annualized household expenses of approximately $52,000. (Id. ) Estrada also submitted records of a property evaluation for home in Santee California, checking account information, and quarterly wage reports. (Id. at 10–11.)

In the application, Estrada states that the Beneficiary is qualified for the offered position because he worked as a Michoacán specialty cook at Valentine's Taco Shop in San Diego, California from March 5, 1990 to June 4, 2004 and also as a Michoacán specialty cook for Estrada in Santee from June 7, 2004 until September 15, 2010. (Id. at 3.) To demonstrate that the Beneficiary possessed the minimum experience, Estrada submitted three documents. (Id. at 4–5; AR 258, ECF No. 14; AR 427, ECF No. 15; AR 19, ECF No. 13.) First, Antonio Hernandez Hernandez provided one letter, dated June 12, 2007, stating that he was the Beneficiary's supervisor at Valentine's Taco Shop from March 1990 until June 2004. (Id. at 4.) The second document is an affidavit from Valentin Estrada dated September 3, 2013, in which he states that he was the sole owner of Valentine's Taco Shop and employed the Beneficiary as a Michoacán specialty cook from March 1990 to June 2004. (Id. ) Third, Estrada provided his own letter as owner and supervisor of Estrada's, on business letterhead, stating that the Beneficiary has been employed as a full-time Michoacán specialty cook at Estrada's since June 2004. (Id. at 5.) All three letters use identical language to that of the labor certification to describe the proffered job duties. (Id. at 4–5.)

On April 12, 2013, Director Mark J. Hazuda denied the immigrant visa petition on the grounds that Estrada failed to establish that he could pay the Beneficiary the proffered wage and that the Beneficiary had the requisite experience. (AR 250–53, ECF No. 14.) Plaintiff timely appealed the decision to the Administrative Appeals Office (AAO). (AR 2, ECF No. 13; AR 215, 222–28, ECF No. 14.) The AAO reviewed the appeal de novo. (AR 2, ECF No. 13.) In completing its review, the AAO requested and received additional evidence from Estrada. (Id. at 12–18.) On October 15, 2013, the AAO dismissed the appeal on the same grounds, finding that Estrada failed to establish that he could pay the Beneficiary the proffered wage and that the Beneficiary had the requisite experience. (Id. at 2–11.)

On November 25, 2013, Plaintiffs filed a Complaint in this Court for declaratory and injunctive relief, pursuant to the Administrative Procedure Act ("APA"). (Complaint 1, ECF No. 1.) Subsequently, the Parties filed cross-motions for summary judgment. (Plaintiffs' MSJ, ECF No. 23; Def. Cross MSJ, ECF No. 24.)

STANDARD OF REVIEW

In actions brought under the APA, summary judgment serves as an avenue for deciding whether a final agency determination is adequately supported by the administrative record when there is no genuine issue of material fact. Nw. Motorcycle Ass'n v. U.S. Dep't Agric., 18 F.3d 1468, 1471–72 (9th Cir.1994). Under the APA, a Court should hold agency actions to be unlawful only if they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Agency action is arbitrary and capricious if:

The agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

City of Sausalito v. O'Neill, 386 F.3d 1186, 1206 (9th...

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