Grinin v. Johnson

• Decision Date: 15 December 2016
• Docket Number: CIVIL ACTION NO. H–16–00259
• Citation: 224 F.Supp.3d 525
• Parties: Vladislav GRININ, Plaintiff, v. Secretary Jeh Charles JOHNSON, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

224 F.Supp.3d 525

Vladislav GRININ, Plaintiff,

v.Secretary Jeh Charles JOHNSON, et al., Defendants.

CIVIL ACTION NO. H–16–00259

United States District Court, S.D. Texas, Houston Division.

Signed December 15, 2016

Alexey Tarasov, Houston, TX, for Plaintiff.

Sairah Gul Saeed, Christina Parascandola, Vinita Balakrishnan Andrapalliyal, United States Department of Justice, Civil Division, Washington, DC, for Defendants.

MEMORANDUM AND ORDER

Lee H. Rosenthal, Chief United States District Judge

HaloPolymer Trading filed an I–140 immigrant petition for the plaintiff, Vladislav Grinin, seeking to classify him as a multinational executive and allow him to remain in the United States as a permanent resident. The agency and the Administrative Appeals Office concluded that there was insufficient reliable evidence showing that Grinin met the statutory and regulatory requirements of an executive. Grinin challenges the ruling and moved for summary judgment on his claim that the agency and AAO erred. (Docket Entry No. 18). The government has responded and cross-moved for summary judgment, and Grinin has filed a reply. (Docket Entry Nos. 25, 26).

Based on careful review of the motions, response, and reply; the record; the arguments of counsel; and the relevant law, this court grants the government's motion for summary judgment and denies Grinin's cross-motion for summary judgment. The reasons are set out below.

I. Background¹

Grinin, a Russian citizen, worked for HaloPolymer Trading, Inc., a wholly owned subsidiary of OJSC HaloPolymer. AR.523–24, 573. OJSC HaloPolymer produces almost 10% of the world's supply of fluoropolymer products. Grinin came to the United States in 2012 to begin HaloPolymer Trading's operations. Id. He was admitted to the United States in September 2012 as a nonimmigrant L–1A multinational executive, based on his position as president of HaloPolymer Trading. AR.120. This first visa was granted under the "new office" provision of 8 C.F.R. § 214.2(1)(3)(v), based on Grinin's role in opening HaloPolymer Trading's United States operations. AR.120. In July 2013, shortly before the visa was to expire, HaloPolymer Trading submitted a renewal application for Grinin as an L–1A multinational executive. AR.120. The renewal petition was granted, extending Grinin's L–1A status to August 31, 2015. AR.80.

In May 2014, HaloPolymer Trading filed a Form I–140 petition seeking permanently to classify Grinin as an immigrant multinational executive.² AR.113. The United States Citizenship and Immigration Services, or "USCIS," reviewed the petition and requested additional evidence. AR.960–69. The request for evidence noted that the evidence of Grinin's daily job duties submitted with the petition contained discrepancies about the corporate structure and the number, identities, and jobs of HaloPolymer Trading's employees. AR.962–64. The request noted that the submitted materials did not substantiate the claim that Grinin's primary duties were executive. AR.964. The materials, for example, did not show that he was managing HaloPolymer Trading's employees in an executive role. AR.964.

HaloPolymer Trading filed a response to the agency's request for more evidence. AR.733–44. The response included, among other things, another organization chart showing three employees (including Grinin); separate departments for accounting, marketing, administration, and technical work; and an amended description of Grinin's job responsibilities. AR.737–39, 751–53.

The agency denied the I–140 petition on two grounds. AR.50–67. The agency found insufficient evidence showing that Grinin would function primarily in an executive capacity. AR.62–63. The agency also found that the record failed to show that in the three years before entering the United States, HaloPolymer Trading employed Grinin for one year as a multinational executive, as the statute required. AR.64.

In January 2015, HaloPolymer Trading appealed the denial to the Administrative Appeals Office, the AAO. AR.48. In August 2015, the appeal was dismissed. The AAO found that the agency had erred by finding that Grinin had not worked as a multinational executive for one year before the petition was filed. AR.11. The AAO affirmed the other basis for denying the petition, that it failed to provide enough reliable, probative evidence to show that Grinin would be employed in a qualifying executive capacity. AR.10. As noted in the request for additional evidence, the AAO found that the job description was vague. AR.5, 9. The agency had declined to consider a more detailed job description submitted in response to the request for evidence. The statute requires that a petition be "accompanied by a statement from an authorized official" of the petitioning employer. 8 C.F.R. § 204.5(j)(3)(i). This more detailed job description did not include information showing that the document preparer was an official authorized to do so. AR.9. The AAO considered a separate job description that identified the authorized official who prepared it through a signature. This job description was deficient because it merely repeated regulatory language, and because the specifics it did provide were contradicted by other evidence. Id. For example, the description indicated that Grinin would hire a general manager and administrative manager during "his first year," but the record showed that he had hired neither more than two years later. Id. The AAO also noted other reasons to conclude that there was an insufficient basis to find executive status. The petition showed that HaloPolymer Trading had contracted with its parent company, OJSC HaloPolymer, to perform management services. As a result, Grinin was not performing this work, undermining the claim that his primary duties were executive. See AR.9, 663–75.

Grinin filed this lawsuit seeking a declaration that his I–140 immigrant visa petition, and the corresponding I–485 petition, were improperly denied. (Docket Entry No. 1). After extensive briefing and oral argument at a hearing held on December 6, 2016, this court affirms the AAO's decision and grants the government's motion for summary judgment, denying Grinin's cross-motion. The reasons are set out below.

II. The Motions for Summary Judgment

A. The Applicable Legal Standards

1. Summary Judgment

"Summary judgment is required when ‘the movant shows that there is no genuine 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, L.L.C. 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) ); see also Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

"Where the non-movant bears the burden of proof at trial, the movant may merely point to the absence of evidence and thereby shift to the non-movant the burden of demonstrating by competent summary judgment proof that there is an issue of material fact warranting trial." Id . (quotation marks omitted); see also Celotex , 477 U.S. at 325, 106 S.Ct. 2548. Although the party moving for summary judgment must demonstrate the absence of a genuine issue of material fact, it does not need to negate the elements of the nonmovant's case. Boudreaux v. Swift Transp. Co. , 402 F.3d 536, 540 (5th Cir. 2005). "A fact is ‘material’ if its resolution in favor of one party might affect the outcome of the lawsuit under governing law." Sossamon v. Lone Star State of Texas , 560 F.3d 316, 326 (5th Cir. 2009) (quotation omitted). "If the moving party fails to meet [its] initial burden, the motion [for summary judgment] must be denied, regardless of the nonmovant's response." United States v. $92,203.00 in U.S. Currency , 537 F.3d 504, 507 (5th Cir. 2008) (quoting Little v. Liquid Air Corp. , 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)).

"Once the moving party [meets its initial burden], the non-moving party must ‘go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.’ " Nola Spice , 783 F.3d at 536 (quoting EEOC , 773 F.3d at 694 ). The nonmovant must identify specific evidence in the record and articulate how that evidence supports that party's claim. Baranowski v. Hart , 486 F.3d 112, 119 (5th Cir. 2007). "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 , 402 F.3d at 540 (quoting Little , 37 F.3d at 1075 ). In deciding a summary-judgment motion, the court draws all reasonable inferences in the light most favorable to the nonmoving party. Connors v. Graves , 538 F.3d 373, 376 (5th Cir. 2008) ; see also Nola Spice , 783 F.3d at 536.

When the parties cross-move for summary judgment, the court must review "each motion independently, viewing the evidence and inferences in the light most favorable to the nonmoving party." Mid–Continent Cas. Co. v. Bay Rock Operating Co. , 614 F.3d 105, 110 (5th Cir. 2010) (alteration omitted) (quotation marks omitted).

2. Review of Agency Determinations Under the Administrative Procedure Act

"[W]hen a party seeks review of agency action under the APA, the district judge sits as an appellate tribunal." Am. Bioscience, Inc. v. Thompson , 269 F.3d 1077, 1083 (D.C. Cir. 2001)....