Hovhannisyan v. U.S. Dept. of Homeland Sec., Case No. CV 08-323AHM (JTLx).
| Decision Date | 14 October 2008 |
| Docket Number | Case No. CV 08-323AHM (JTLx). |
| Citation | 624 F.Supp.2d 1135 |
| Court | U.S. District Court — Central District of California |
| Parties | Aramayis HOVHANNISYAN v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY et al. |
S. Mohammad Reza Kazerouni, Law Offices of David L. Ross PA, Beverly Hills, CA, Seyed Abbas Kazerounian, Kazerouni Law Group, Irvine, CA, for Aramayis Hovhannisyan.
Stacey Ilene Young, Department of Justice — Civil Division, Washington, DC, for United States Department of Homeland Security et al.
Proceedings:
IN CHAMBERS (No Proceedings Held)
I. INTRODUCTION ......................................... 1138
II. BACKGROUND ........................................... 1139
III. DISCUSSION ........................................... 1142
A. The Court Has Subject Matter Jurisdiction ......... 1142
1. IIRIRA and REAL ID Act ......................... 1143
2. The Administrative Procedures Act .............. 1146
B. Plaintiff's Case is Not Moot ...................... 1147
C. Plaintiff Properly States a Claim ................. 1147
1. Legal standards ................................ 1147
2. Discussion ..................................... 1148
IV. CONCLUSION ........................................... 1152
On May 14, 2008, Defendants United States Department of Homeland Security ("DHS"), United States Citizenship and Immigration Service ("CIS") and Christina Poulos, Director of California Services Center ("CSC"), moved to dismiss Plaintiff Aramayis Hovhannisyan's Complaint seeking relief from CIS's rejection October 14, 2008 of his untimely petition for an H-1B visa and extension of stay. The government contends that CIS's decision is not subject to judicial review, that Plaintiff's claims are moot, and that CIS's decision was lawful.
The Court holds that it has jurisdiction to review this matter because 8 U.S.C. § 1184, the statute governing the admission of nonimmigrants, does not specifically give the agency the discretion to deny or accept untimely petitions. A regulation promulgated under that statute, 8 C.F.R. § 214.1(c)(4), does grant the agency a measure of discretion to accept untimely petitions, but it does not give the agency discretion to decide the issue in this case: whether or not the untimely filing involved in this case can be attributed to "extraordinary circumstances beyond the control of the applicant or petitioner." The Court also holds that the case is not moot, because the agency may still decide to accept Plaintiff's untimely petition.
As to the merits of the Complaint, the Court holds that the agency is not entitled to dismissal because it erred in failing to state a reasoned basis, supported by substantial evidence, for its determination that "extraordinary circumstances" were not present. The agency also erred in holding that under 8 C.F.R. § 214.1(c)(4) it may not excuse Plaintiff's failure to maintain his status. It appears that if the agency's interpretation of that regulation were correct then the regulation would be rendered null and void. Finally, the agency erred in determining that 8 C.F.R. 214.2(h)(9) prevents it from excusing untimeliness, because that regulation applies only to the initial approval period of an H petition, and Plaintiff's petition was for an extension of a pre-existing visa and grant of stay.
For the foregoing reasons, the Court DENIES Defendants' motion1 to dismiss. For reasons explained below, the Court REMANDS this matter to the agency for proceedings consistent with this Order.
Plaintiff is a citizen of Armenia who entered the United States as a nonimmigrant H-1B worker on April 23, 1999. An H-1B visa is an employment-based nonimmigrant visa that allows skilled aliens in certain "specialty occupations" to work in the United States for a limited time, under specified conditions. 8 U.S.C. § 1184. Plaintiff received an extension on his visa from August 20, 2001 through January 1, 2004.
On December 2, 2003, Plaintiff's employer, Business Computing, Inc. ("BCI"), through counsel, an attorney named Eric Avazian,3 filed a petition ("I-129 form") requesting that CIS grant Plaintiff an extension of stay and issue him a new H-1B visa from January 2, 2004 through January 1, 2007. All applications for "specialty applications" (which would include BCI's I-129 petition on behalf of Plaintiff) require evidence of the filing of a certified Labor Condition Application ("LCA") from the U.S. Department of Labor. 8 U.S.C. § 1182(n)(1); 8 C.F.R. § 214.2(h)(4)(iii)(B) and 20 C.F.R. § 655.700(b). Avazian, however, attached to the I-129 form an uncertified LCA. On February 7, 2004, CSC sent Avazian a Request for Evidence that asked for, among other things, a certified LCA. CAR at 129-32.4 The request states that Id. at 131.
Avazian submitted the requested evidence, but on June 8, 2004, CIS denied the I-129 petition because BCI had failed to file for a certified LCA prior to filing the I-129 petition, and because the certified LCA that Avazian did send to CSC contained employment dates that were different from the employment dates requested in the I-129 petition. The LCA had been certified by the Department of Labor as valid from April 27, 2004 through January 1, 2007. On July 1, 2004, BCI filed a Motion to Reconsider/Appeal and included a new certified LCA reflecting employment dates from January 1, 2004 through January 1, 2007. The LCA was certified by the Department of Labor as valid from June 23, 2004 through January 1, 2007.
On August 3, 2004, Plaintiff and BCI, again through attorney Avazian, filed a new I-129 petition that requested authorization for Hovhannisyan to live and work in the United States from January 1, 2004 through January 1, 2007.5 Avazian included a cover letter asking the agency to excuse the late filing of the petition because "[t]he failure to timely file this petition and maintain the status of the beneficiary was beyond the control of the petitioner and the beneficiary since it was the failure of our office to obtain the certified Labor Condition Application prior to the filing of the petition." CAR at 44.
On April 18, 2005, CIS granted Plaintiff a H-1B visa valid from June 23, 2004 to January 1, 2007, and sent the visa to Ottawa, Canada, but denied his petition for an extension of stay.6 The CIS Notice of Decision states that the extension of stay was denied because
The beneficiary[ is] no longer in a valid nonimmigrant status and therefore must depart the United States. . . . The beneficiary's prior H-1B status . . . was valid from August 20, 2001 to January 1, 2004. The H-1B petition was submitted on August 3, 2004 which was approximately 8 months after the beneficiary's valid status had expired. As such, the beneficiary was in violation of his H-1B status at the time of filing the petition for extension. [¶] The beneficiary has failed to maintain his nonimmigrant status and is therefore ineligible for the requested extension of stay. Accordingly, the request for extension of stay is denied.
CAR at 28-29. As a result, Plaintiff was required to leave the country to obtain the new visa. (The record does not reflect whether he actually did so.)
On May 18, 2005, Plaintiff, represented by new counsel, filed a "Motion to Reopen/Reconsider," arguing that his failure to maintain lawful nonimmigrant status was due to ineffective assistance of counsel, an "extraordinary circumstance" that should have excused the late filing. On November 28, 2005, CIS denied the motion on the ground that Plaintiff failed to present new facts that were previously unavailable.
On December 9, 2005, Plaintiff filed suit in this Court seeking a declaratory judgment reversing the decision of CIS to deny his request for extension of stay and requiring CIS to approve his request for an H-1B visa from January 2, 2004 through January 1, 2007. Almost one year later, on December 4, 2006, the Court granted in part Plaintiff's motion for summary judgment and remanded the action to CIS. As a threshold matter, the Court concluded "that a determination regarding a petition for a nonimmigrant H-1B visa is not `committed to agency discretion by law,'" and that the Court had jurisdiction to review the agency action. Dec. 4, 2006 Order at 9. The Court then ruled that CIS erred in failing to address or rule on the ineffective assistance of counsel arguments Plaintiff raised in his motion to reconsider. Id. at 12-13. The Court remanded the matter to CSC "to address in good faith and issue a considered decision on [Plaintiff's] motion to reconsider." Id. at 13. The Court denied Plaintiff's request to compel CIS to grant his petition for extension of status.
On February 2, 2007, CIS concluded that Plaintiff's claim of ineffective assistance of counsel did not constitute an "extraordinary circumstance" and therefore did not excuse the untimely filing of the I-129 petition. Feb. 2, 2007 CIS Decision. CIS also held that the Board of Immigration Appeals decision In re Lozada, 19 I. & N. Dec. 637 (BIA 1988), which sets forth procedural guidelines for establishing ineffective assistance of counsel claims, did not apply to the filing of I-129 petitions. CIS further held that even if Lozada did apply, Plaintiff failed to meet its requirements because he did not prove that he submitted a complaint about Avazian to the California State Bar. Finally, CIS also concluded that even if it excused the late filing, the relevant regulations prohibited it from granting an extension of stay because the certified LCA did not cover the full term of Plaintiff's...
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