Fogo De Chao (Holdings), Inc. v. U.S. Dep't of Homeland Sec., Civil Action No. 15-1272 (RBW)

• Decision Date: 26 September 2016
• Docket Number: Civil Action No. 15-1272 (RBW)
• Parties: FOGO DE CHAO (HOLDINGS), INC., Plaintiff, v. U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.
• Court: U.S. District Court — District of Columbia

211 F.Supp.3d 31

FOGO DE CHAO (HOLDINGS), INC., Plaintiff,

v.U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.

Civil Action No. 15-1272 (RBW)

United States District Court, District of Columbia.

Signed September 26, 2016

Carl W. Hampe, Fragomen, Del Rey, Bernsen & Loewy LLP, Washington, DC, for Plaintiff.

Brian Christopher Ward, U.S. Department of Justice, Wynne Patrick Kelly, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

REGGIE B. WALTON, United States District Judge

The plaintiff, Fogo De Chao (Holdings), Inc. ("Fogo" or the "petitioner"), which operates Brazilian-style steakhouses known as churrascarias , seeks judicial review under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 –706 (2012), of the defendants' denial of a non-immigrant, "L-1B" work visa to transfer the proposed beneficiary of the visa from Fogo's Brazilian subsidiary to the position of a churrasqueiro chef in the petitioner's United States locations. See generallyCompl. Currently pending before the Court are the parties' cross-motions for summary judgment, see generally Plaintiff's Motion for Summary Judgment ("Pl.'s Mot."); Defendants' Cross-Motion for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment ("Defs.' Mot."), which present essentially two questions: (1) whether the position that the intended L1-B beneficiary would occupy "involves specialized knowledge;" and (2) whether the evidence on the record is sufficient to establish that the proposed beneficiary possesses such "specialized knowledge" as required under the applicable regulatory scheme discussed herein. See generally Plaintiff's Memorandum of Points and Authorities in Support of Motion for Summary Judgment ("Pl.'s Mem.") at 17–26. Upon consideration of the parties' submissions, the Court will grant in part and deny in part both parties' motions.¹

I. BACKGROUND

The lengthy procedural and factual background underlying Fogo's extended effort to obtain a non-immigrant work visa for Rones Gasparetto ("Gasparetto") is detailed in the District of Columbia Circuit's opinion in Fogo de Chao (Holdings), Inc. v. U.S. Dep't of Homeland Security , 769 F.3d 1127, 1132–35 (D.C.Cir.2014), and the Court will not reiterate every detail of that history here. But a brief recitation of the relevant regulatory and procedural background is helpful to frame the Court's analysis of the motions currently before the Court.

A. Statutory and Regulatory Background

The Immigration and Nationality Act (the "Act") "create[d] a nonimmigrant visa program for qualifying employees of multinational companies that are being transferred to the United States." Fogo de Chao (Holdings) , 769 F.3d at 1130 (citing 8 U.S.C. §§ 1101 et seq. ). The Act authorizes the issuance of a visa to

an alien who, within [three] years preceding the time of his application for admission into the United States, has been employed continuously for one year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and who seeks to enter the United States temporarily in order to continue to render his services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves specialized knowledge ....

8 U.S.C. § 1101(a)(15)(L). "A visa granted to an employee whose work entails specialized knowledge is commonly referred to as an L-1B visa ...." Fogo de Chao (Holdings) , 769 F.3d at 1130. The Act itself does not define what amounts to "specialized knowledge," id. but the United States Citizenship and Immigration Services (the "Service") promulgated a regulation defining the term as

special knowledge possessed by an individual of the petitioning organization's product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization's processes and procedures.

8 C.F.R. § 214.2(l )(1)(ii)(D). Accordingly, an employer seeking a "specialized knowledge" or L-1B visa must submit, in addition to other requirements,

(ii) [e]vidence that the alien will be employed in an executive, managerial, or specialized knowledge capacity, including a detailed description of the services to be performed[;]

(iii) [e]vidence that the alien has at least one continuous year of full-time employment abroad with a qualifying organization within the three years preceding the filing of the petition[; and]

(iv) [e]vidence that the alien's prior year of employment abroad was in a position that was managerial, executive, or involved specialized knowledge and that the alien's prior education, training, and employment qualifies him/her to perform the intended services in the United States; however, the work in the United States need not be the same work which the alien performed abroad.

Id. § 214.2(l )(3).

In addition to relying on the regulatory provisions above, the defendants also rely on the following two internal agency memoranda when interpreting the term "specialized knowledge." See Fogo de Chao (Holdings) , 769 F.3d at 1131. The 1994 agency memorandum authored by James A. Puleo states that the indicators of "specialized knowledge" may include "knowledge that is valuable to the employer's competitiveness in the market place," "knowledge which, normally, can be gained only through prior experience with that employer," or "knowledge of a product or process which cannot be easily transferred or taught to another individual." James A. Puleo, Interpretation of Special Knowledge (Mar. 9, 1994) ("Puleo Mem.") at 2. And a 2004 agency memorandum specifically addresses "specialty cooks seeking L-1B status," stating that "[c]hefs or [s]pecialty cooks generally are not considered to have ‘specialized knowledge’ for L-1B purposes, even though they may have knowledge of a restaurant's special recipe or food preparation technique," but sets forth several factors, none of which are "necessarily controlling," that adjudicators may consider when assessing whether a proposed beneficiary possesses the requisite "specialized knowledge." Fujie O. Ohata, Interpretation of Specialized Knowledge for Chefs and Specialty Cooks seeking L-1B status (Sept. 9, 2004) ("Ohata Mem.") at 1, 2.

B. Procedural Background

The defendants are: (1) the United States Department of Homeland Security (the "Department"); (2) Jeh Johnson, Secretary of the Department (the "Secretary"); (3) the Service, a component within the Department; (4) Leon Rodriguez, Director of the Service (the "Director"); and (5) Ronald Rosenberg, Director of the Service's Administrative Appeals Office (the "Appeals Office Director"). Compl. at 1. Fogo is a Delaware corporation, id. ¶ 15, that operates "upscale churrascarias in ten locations in Brazil, one location in Mexico, and [in twenty-six] cities throughout the [United States]—including one in Washington, [D.C.]," id. ¶ 25. Fogo filed a petition for an L-1B non-immigrant, business visa on behalf of Gasparetto, an individual alleged to be a gaucho chef or churrasqueiro , id. ¶ 40, to allow Gasparetto to transfer from one of Fogo's restaurants in Brazil to one of Fogo's United States locations. Compl. ¶ 2. The defendants, through the Service, have twice denied the Gasparetto petition. See id. ¶ 3. This Court previously affirmed the defendants' initial denial of the Gasparetto petition. Fogo de Chao Churrascaria, LLC v. U.S. Dep't of Homeland Sec. , 959 F.Supp.2d 32, 51–52 (D.D.C.2013) (Walton, J.). On appeal, however, the Circuit reversed the Court's prior disposition of the case and remanded the Gasparetto petition for further agency proceedings. Fogo de Chao (Holdings) , 769 F.3d at 1152. In significant part, the Circuit rejected the defendants' blanket refusal to consider "cultural knowledge" as part of its analysis of whether Gasparetto possessed the required "specialized knowledge" to qualify him for an L-1B visa. 769 F.3d at 1139–42. The Circuit also concluded that the "Appeals Office's finding that there was insufficient evidence of Gasparetto's completion of the company's internal ... churrasqueiro training program, which is a prerequisite before an employee may be considered for transfer to the United States" was "not supported by substantial evidence." Id. at 1146.

Notwithstanding the Circuit's opinion, on remand, the defendants again denied the Gasparetto petition in a June 2015 decision issued by the Appeals Office. A.R.3 at 29. Fogo then initiated this second suit seeking further review of the Appeals Office's determination.

II. STANDARD OF REVIEW

In a case involving review of final administrative action upon a motion for summary judgment, the usual standard of review set forth in Federal Rule of Civil Procedure 56 does not apply. E.g. , Se. Conference v. Vilsack , 684 F.Supp.2d 135, 142 (D.D.C.2010). Rather, a court must "decid[e], as a matter of law, whether an agency action is supported by the administrative record and [is] consistent with the ... [arbitrary and capricious] standard of review [under the APA]." Loma Linda Univ. Med. Ctr. v. Sebelius , 684 F.Supp.2d 42, 52 (D.D.C.2010) (citing Stuttering Found. of Am. v. Springer , 498 F.Supp.2d 203, 207 (D.D.C.2007) ), aff'd , 408 Fed.Appx. 383 (D.C.Cir.2010) ; see also Richards v. INS , 554 F.2d 1173, 1177 & n. 28 (D.C.Cir.1977).

"Arbitrary and capricious" review is "highly deferential" and "presumes the agency's action to be valid." Envt'l. Def. Fund, Inc. v. Costle , 657 F.2d 275, 283 (D.C.Cir.1981). "The scope of review under the ‘arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). Rather, "court[s] consider[ ] whether the agency acted within the scope of its legal authority, whether the agency has explained its decision, whether the facts on which the...