KHAMISANI v. HOLDER
| Decision Date | 31 March 2011 |
| Docket Number | CIVIL ACTION NO. H-10-0728 |
| Parties | SHAHEEN KHAMISANI, et al, Plaintiffs, v. ERIC HOLDER, et al., Defendants. |
| Court | U.S. District Court — Southern District of Texas |
OPINION TEXT STARTS HERE
The plaintiffs have filed a complaint challenging an adverse administrative decision by the United States Citizenship and Immigration Service ("USCIS") in connection with an employment-based (EB-1) immigrant visa petition. The defendants have provided a copy of the administrative record and have filed a motion for summary judgment.1 (Docket No. 14). The plaintiffs have not filed a response and the time to do so has expired. After reviewing all of the pleadings, and the applicable law, the Court grants the defendants' motion and dismisses this case for reasons set forth below.
The primary plaintiff, Shaheen Khamisani (A#098-702-587), is a native and citizen of Pakistan. The other plaintiff in this case is KB Affordable, Inc. ("KBA"). KBA purports to be a registered Texas corporation, located in Sugar Land, that engages in "furniture retail and car rental services." KBA states that it is an affiliate of Khamisani Brothers Limited ("KBL"), which is located in Karachi, Pakistan.
Ms. Khamisani entered the United States in 2004 on a non-immigrant visitor's visa. 2On November 9, 2006, KBA filed a Form I-140 petition on Ms. Khamisani's behalf for an employment-based immigrant visa. 3In particular, KBA requested an immigrant visa designating Ms. Khamisani as a "multinational executive or manager" (otherwise known as an EB-1 visa).4 The visa petition was accompanied by a Form I-485 application to adjust Ms. Khamisani's status to that of a lawful permanent resident. on July 23, 2007, a regional USCIS office (the Nebraska Service Center) requested additional evidence to support the visa petition that KBA filed on Ms. Khamisani's behalf. on February 28, 2008, the Regional Director of the Nebraska Service Center denied the Form I-140 visa petition after finding that KBA did not meet its burden to show that it qualified for the type of visa requested. Without a valid immigrant visa, officials also denied Ms. Khamisani's Form I-485 application for an adjustment of status. on December 9, 2009, the USCIS Administrative Appeals office ("AAO") affirmed the decision and dismissed the appeal filed on Ms. Khamisani's behalf by KBA. Thereafter, the AAO denied KBA's motion to reopen and/or reconsider the appeal.
Ms. Khamisani and KBA contend that the administrative decision to deny the Form I-140 petition for an employment-based visa was "arbitrary and capricious" because Ms. Khamisani was qualified for classification as a multinational executive or manager. The plaintiffs seek relief under the Administrative Procedure Act, 5 U.S.C. § 706, and the Declaratory Judgment Act, 28 U.S.C. § 2201. The defendants have filed a motion for summary judgment, along with the administrative record, arguing that the decision at issue was not arbitrary or capricious because KBA failed to meet all the criteria for the requested visa. The parties' contentions are discussed below under the governing legal standard.
Motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil Procedure. Under this rule, a reviewing court "shall grant summary judgment if 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." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A fact is "material" if its resolution in favor of one party might affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is "genuine" if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. Id.
If the movant demonstrates the absence of a genuine issue of material fact, the burden shifts to the non-movant to provide specific facts showing the existence of a genuine issue for trial. See Matsushita, 475 U.S. at 587. In deciding a summary judgment motion, the reviewing court must "construe all facts and inferences in the light most favorable to the nonmoving party." Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010) (internal citation and quotation marks omitted). However, the non-movant cannot avoid summary judgment simply by presenting "conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation." TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002); Little v. Liquid Air Corp, 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). Further, the court has no obligation under Rule 56 "to sift through the record in search of evidence to support a party's opposition to summary judgment." Adams v. Travelers Indem. Co., 465 F.3d 156, 164 (5th Cir. 2006) (quotation omitted).
As noted above, the plaintiffs have not filed a response to the motion for summary judgment. According to this Court's local rules, responses to motions are due within twenty-one days, S.D. Tex. R. 7.3, unless the time is extended. Any failure to respond is "taken as a representation of no opposition." S.D. Tex. R. 7.4. The Court expressly directed the plaintiffs to respond and even granted an extension of time. (Docket Nos. 12, 17). To date, however, no response has been received. Notwithstanding the plaintiffs' failure to respond, summary judgment may not be awarded by default. See Hibernia Natl Bank v. Administration Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985). "A motion for summary judgment cannot be granted simply because there is no opposition, even if failure to oppose violated a local rule." Hetzel v. Bethlehem Steel Corp., 50 F.3d 360, 362 n.3 (5th Cir. 1995) (citing Hibernia Natl Bank, 776 F.2d at 1279). In that regard, the movant has the burden of establishing the absence of a genuine issue of material fact and, unless he has done so, the reviewing court may not grant the motion regardless of whether any response was filed. See Hetzel, 50 F.3d at 362 n.3. Nevertheless, in determining whether summary judgment is warranted, the district court may accept as undisputed the facts set forth in the motion. See Beard v. Banks, 548 U.S. 521, 527 (2006); Eversley v. MBank Dallas, 843 F.2d 172, 174 (5th Cir. 1988).
As noted above, the plaintiffs seek declaratory relief from the administrative decision denying an employment-based visa petition for the preferential classification reserved for multinational executives and managers. The plaintiffs invoke jurisdiction under the Administrative Procedures Act (the "APA"), 5 U.S.C. § 706. Decisions to grant or deny visa petitions are subject to judicial review under 5 U.S.C. § 706, but the standard is a highly deferential one which presumes that the agency's action is valid. See Louisiana Philharmonic Orchestra v. INS, 44 F. Supp. 2d 800, 802 (W.D. La. 1999) (citing Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275, 283 (D.C. Cir. 1981)); see also United States v. Mead Corp., 533 U.S. 218, 234 (2001) ().
The USCIS enjoys broad discretion in deciding whether to grant or deny visa petitions based on preference classifications. See Louisiana Philharmonic, 44 F. Supp. 2d at 802 (citing Omni Packaging, Inc. v. United States INS, 733 F. Supp. 500, 502 (D.P.R. 1990)). A reviewing court may not reverse or set aside the agency's decision unless it was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); National Hand Tool Corp. v. Pasquarell, 889 F.2d 1472, 1475 (5th Cir. 1989). Thus, this narrow scope of review forbids a reviewing court from substituting its judgment for that of the agency, and mandates affirmance if a rational basis exists for the agency decision, even if the court might otherwise disagree. See Louisiana Philharmonic, 44 F. Supp. 2d at 802-03.
After considering the domestic workforce and the need for highly skilled workers, Congress authorizes a limited number of employment-based visas each year. See Charles Gordon, Stanley Mailman, & Stephen Yale-Loehr, 3 Immigration Law and Procedure § 39.03[1]. The USCIS allocates a number of these immigrant visas to "certain multinational executives and managers" who serve "in a capacity that is managerial or executive." 8 U.S.C. § 1153(b)(1)(C); IKEA U.S. v. U.S. Dep't of Justice, INS, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). If qualified, multinational executives and managers are among those workers given "first priority" for visas in the employment context, along with aliens possessing "extraordinary ability in the sciences, arts, education, business, or athletics, which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation." Aliens for Better Immigration Laws v. U.S., 871 F. Supp. 182, 184 (S.D.N.Y. 1994) (); see also Succar v. Ashcroft, 394 F.3d 8, 15 n.6 (1st Cir. 2005) () (citing 8 U.S.C. § 1153(b)); see also Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 28 (D.D.C. 2003) (...
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