Guru Ram Das Acad. Inc. v. Kerry, Case No. 1:16-cv-01906-SAB

• Decision Date: 27 October 2017
• Docket Number: Case No. 1:16-cv-01906-SAB
• Court: U.S. District Court — Eastern District of California
• Parties: GURU RAM DAS ACADEMY INC., Plaintiff, v. JOHN KERRY, et al., Defendants.

GURU RAM DAS ACADEMY INC., Plaintiff, v. JOHN KERRY, et al., Defendants.

Case No. 1:16-cv-01906-SAB

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

October 27, 2017

ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; AND GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

(ECF Nos. 34, 35, 37, 38, 39, 40)

Currently before the Court are the parties' cross-motions for summary judgment.¹

I.BACKGROUND

Plaintiff Guru Ram Das Academy ("Plaintiff") filed a petition with the United States Citizenship and Immigration Services ("USCIS") for a nonimmigrant worker, Kriti Arora ("Arora" or "the beneficiary"). The petition sought for Arora to be classified as an alien religious worker as defined at section 101(a)(15)(R) of the Immigration and Naturalization Act ("INA"). The petition was denied on February 25, 2015, because Plaintiff had not demonstrated how they would compensate Arora. (AR 107, 161-162.)

On April 30, 2015, Plaintiff filed a second petition with USCIS to classify Arora as a religious worker. (AR 30-36, 44, 153-204.) On September 21, 2015, Plaintiff's petition for a nonimmigrant worker was approved. (Administrative Record ("AR") 30.)

On September 23, 2015, USCIS conducted an on-site inspection of Plaintiff's facilities and determined that it qualified as a place of religious worship as defined by 8 C.F.R. § 214.22(f)(3). (Sec. Am. Compl. ("SAC") ¶ 10.)

On December 4, 2015, Arora submitted an application for a visa. (AR 15-20.) Arora was interviewed by the U.S. Embassy in New Delhi on January 8, 2016. (SAC ¶ 12.)

On November 20, 2016, the U.S. Embassy sent notice that the visa was refused pursuant to section 214(b) of the INA because Arora had failed to demonstrate sufficient ties to India. (SAC ¶ 13.)

On December 20, 2016, Plaintiff filed this action against Defendant John Kerry, Secretary of State of the United States Department of State seeking declaratory relief. (ECF No. 1.)

On January 27, 2017, the United States Embassy in New Dehli sent a memorandum to USCIS stating that upon investigation it was determined that Arora was not trained as a Sikh religious worker. (AR 11-12.) On this same date, a letter was mailed to Arora stating that she was not academically or professionally qualified to receive an R-1 religious Visa. (AR 13.) On February 14, 2017, Plaintiff filed a first amended complaint adding Lori Scialabba, Acting Director of the USCIS as a defendant in this action. (First Am. Compl. ("FAC") ¶ 4, ECF No. 7.)

On March 1, 2017, USCIS issued a notice of intent to revoke ("NOIR"). (AR 43-51.) Plaintiff submitted a response to the NOIR on March 30, 2017. (AR 52-141.) On April 28, 2017, Plaintiff's petition for a nonimmigrant worker was revoked. (AR 1, 30.) The revocation stated that Plaintiff did not sufficiently explain or provide independent objective evidence to overcome the issues identified in the NOIR regarding Plaintiff's ability to compensate Arora. (AR 3-5.) Additionally, it was found that the inconsistencies in the evidence were insufficient to demonstrate Arora's qualifications as a minister. (AR 5-8.) Therefore, Plaintiff had not met its burden of establishing how Arora would be compensated and that she was qualified for the proffered position. (AR 9.)

On May 30, 2017, Plaintiff filed a second amended complaint naming Rex Tillerson inplace of John Kerry, and James McCament in place of Lori Scialabba as defendants in the action. (SAC ¶¶ 3, 4.) On June 16, 2017, Defendants filed an answer to the complaint. (ECF No. 24.) The administrative record was filed under seal on July 14, 2017. (ECF No. 30.) On August 14, 2017, Defendant filed redacted copies of the administrative record. (ECF Nos. 31, 32.)

On August 16, 2017, the parties filed cross motions for summary judgment. (ECF Nos. 34, 35.) On September 13, 2017, the parties filed oppositions to the motions for summary judgment. (ECF Nos. 37, 38.) On October 4, 2017, Plaintiff and Defendants filed a reply. (ECF Nos. 39, 40.)

II.STANDARD OF REVIEW FOR ADMINISTRATIVE ACTIONS

The district court's jurisdiction to review the USCIS's revocation of a visa petition is predicated on 28 U.S.C. § 1331 and reinforced by the enactment of the Administrative Procedure Act ("APA"), 5 U.S.C. § 701(a)(2). Love Korean Church v. Chertoff, 549 F.3d 749, 753 (9th Cir. 2008). The APA guides review of agency actions and an agency decision or finding of fact may be reversed if it is "arbitrary, capricious, [or] an abuse of discretion," or "unsupported by substantial evidence." Spencer Enterprises, Inc. v. United States, 345 F.3d 683, 693 (9th Cir. 2003) (quoting 5 U.S.C. § 706). The standard of review under section 706 is a narrow one and the district court may not substitute its judgment for that of the agency. Northwest Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). "[T]he 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." City & Cty. of San Francisco v. United States, 130 F.3d 873, 877 (9th Cir. 1997) (quoting Occidental Eng'g Co. v. INS, 753 F.2d 766, 769 (9th Cir.1985)).

"In order for an agency decision to be upheld under the arbitrary and capricious standard, a court must find that evidence before the agency provided a rational and ample basis for its decision." Northwest Motorcycle Ass'n, 18 F.3d at 1471. In reviewing the agency's explanation, the court must "consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Motor Vehicle Mfrs.Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). The reviewing court must determine the propriety of the agency's actions solely on the grounds invoked by the agency. Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305, 1308 (9th Cir. 1984).

As this case involves review of a final agency determination under the APA, resolution of this matter does not require fact finding and this court's review is limited to the administrative record. Northwest Motorcycle Ass'n, 18 F.3d at 1472. The agency's factual findings, including credibility findings, are reviewed for substantial evidence. Monjaraz-Munoz v. I.N.S., 327 F.3d 892, 895 (9th Cir.), opinion amended on denial of reh'g, 339 F.3d 1012 (9th Cir. 2003). "Under this 'extremely deferential' standard," the court "must uphold the [agency's] findings unless the evidence presented would compel a reasonable finder of fact to reach a contrary result." Id.

III.NOTICE OF REVOCATION

On April 28, 2017, a notice of revocation of nonimmigrant petition was issued which addressed the evidence Plaintiff submitted in response to the NOIR finding that Plaintiff had failed to overcome the grounds for revocation. (AR 1-9.) The notice of revocation initially addressed how the beneficiary would be compensated. (AR 3.)

On the new form I-129, you state you will compensate the beneficiary a salary of $100 per week ($5,200 per year - for 52 weeks per year), in addition to the room, board, and expenses. In a subsequent letter dated April 14, 2015, you state it is actually a salary of $400 per month ($4,800 per year), in addition to the room, board, and expenses.

In the NOIR, you were advised that the 2013 and 2014 documents you submitted were identical to those submitted in a prior petition resulting in a denial for compensation. In other words, USCIS had previously determined that the 2013 and 2014 documents did not adequately demonstrate how you would compensate the beneficiary.

In the current petition, you also submitted three new documents referencing 2015 bank statements. You were advised in the NOIR that, in totality, the 2013, 2014 and 2015 documents were insufficient to demonstrate how you would compensate the beneficiary.

ln response to the NOIR, you now submit the following as it pertains to compensation:

• A letter from your counsel.

• A copy of l-797E Notice of Action, indicating a Request for Evidence (RFE) was issued to you November 14, 2014 under the prior receipt number.

• This is considered Page 1 of the RFE• Page 2 of the RFE, requesting evidence of compensation.

• Note: only Page 1 (Form l-797E) and Page 2 were submitted. Page 2 appears to continue, but the subsequent pages were not submitted.

• Page 4 of what appears to be the Denial Notice issued February 25, 2015

? Indicating in part, that the submitted evidence is insufficient to demonstrate how you will compensate the beneficiary.

• A January 07, 2015 letter from your counsel, in response to the RFE.

? This letter references a "Declaration"_ from [redacted] was submitted.

• An undated document titled "Declaration of_[redacted]"

• Form l-292, first page, of Notice of Action, indicating the prior petition was denied.

In sum, USCIS has reviewed your response and determined that the totality of the evidence in the record does not demonstrate how you will compensate the beneficiary.

Your response to the NOIR does not contain sufficient documentation to overcome this ground for revocation. Your submission includes a new letter from your counsel, a prior letter from yourself regarding a previously filed petition, and copies of partial pages of the prior petition's RFE, RFE response, and Denial notice.

The current letter from your attorney makes several assertions; however, assertions by counsel are not considered evidence. [Citations omitted.] Additionally, counsel's argument concerning the initial approval of this petition is not persuasive. Specifically, USCIS notes that the agency is not estopped from properly administering the Congressionally imposed requirements of the Act upon discovery of a prior erroneous decision. [Citations omitted.] In this case, the petition was erroneously approved without sufficient evidence to document the issue of compensation.

Your counsel further asserts that in the NOIR, USCIS disregarded the objective evidence filed with the current petition. However,

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