Khedkar v. U.S. Citizenship & Immigration Servs.
| Citation | 552 F.Supp.3d 1 |
| Decision Date | 05 August 2021 |
| Docket Number | Civil Action No. 20-1510 (RC) |
| Parties | Pravin KHEDKAR, Plaintiff, v. U.S. CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Adam J. Rosen, Murthy Law Firm, Owings Mills, MD, for Plaintiff.
Sian Jones, U.S. Department of Justice, Washington, DC, for Defendants.
GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Courts ordinarily presume that Congress and government agencies act in concert to construct and maintain a cohesive body of laws. See, e.g. , Miles v. Apex Marine Corp. , 498 U.S. 19, 32, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990) (); Consumers Union of U.S., Inc. v. Kissinger , 506 F.2d 136, 145 (D.C. Cir. 1974) (Danaher, J., concurring) (). But that is not always true. Sometimes, perhaps even for understandable reasons, agencies do not update their regulations to keep up with statutory changes. The conflict leaves ordinary people in a confusing predicament.
Plaintiff Pravin Khedkar found himself in just such a situation. After immigrating to the United States, he took advantage of a statute that allowed him to leave the employer that sponsored his visa and work elsewhere. Yet regulations that predated the statute required the federal government to continue to send immigration correspondence to Khedkar's original employer. When the original employer did not respond to a request for evidence, the government denied a petition that would have made Khekdar eligible for permanent residency. Khedkar claims the government acted improperly.
The Court agrees. Following the regulations was incompatible with the statutory scheme that allowed Khedkar to change employers, so the government's petition denial must be set aside. The government should have treated Khedkar as a party to the petition adjudication proceedings and sent him any related correspondence.
Noncitizens cannot work in the United States without authorization from U.S. Citizenship and Immigration Services ("USCIS"). The Immigration and Nationality Act ("INA") gives preference in obtaining permanent work authorization to, among others, immigrants employed as managers or executives at multinational businesses. See 8 U.S.C. § 1153(b)(1)(C). For an immigrant manager or executive to receive that preferential treatment, his employer must submit to USCIS an I-140 Petition for Alien Worker demonstrating that he qualifies for it. See id. § 1154(a)(1)(F); 8 C.F.R. § 204.5(j). The immigrant is called the petition's "beneficiary." See 8 C.F.R. § 204.5(a).
An immigrant who is the beneficiary of an approved I-140 petition can apply to become a lawful permanent resident. See 8 U.S.C. § 1255(a). He makes that request by filing an I-485 Application to Register Permanent Residence or Adjust Status. See 8 C.F.R. § 245.2(a)(3)(ii) ; see also Vemuri v. Napolitano , 845 F. Supp. 2d 125, 127 (D.D.C. 2012). Even though an approved I-140 petition is required to obtain permanent residency through the I-485 process, an immigrant can sometimes file his I-485 application at the same time his employer files the I-140 petition. See 8 C.F.R. § 245.2(a)(2)(i).
To give immigrants flexibility to change jobs when there are delays in processing I-485 applications, Congress enacted what is called the "portability provision." See Ravulapalli v. Napolitano , 773 F. Supp. 2d 41, 45 (D.D.C. 2011). The portability provision states that an I-140 petition "shall remain valid" to support an immigrant's I-485 application for permanent residency even when the immigrant changes jobs if (1) the immigrant's I-485 application has been pending for 180 days or more and (2) the new job is "in the same or a similar occupational classification" as the one for which the immigrant's original employer filed the petition. 8 U.S.C. § 1154(j). It is meant to allow an immigrant to move—or "port"—to a new employer without fear that USCIS will deny his I-485 application based on the lack of an approved I-140 petition from the new employer. See Ravulapalli , 773 F. Supp. 2d at 45.
Khedkar came to the United States to work as a manager at Deloitte Consulting LLP. J.A. 129–30, 333. The next year, Deloitte filed an I-140 petition so Khedkar could work in the United States permanently. See Defs.’ Statement Material Facts Not in Genuine Dispute ( ) ¶ 1, ECF No. 16-2; see also J.A. 332–36, 660. The petition asserted that Khedkar was entitled to preference because he was a multinational executive or manager. JA. 332, 660. Khedkar filed an I-485 application at the same time. J.A. 24, 236–53.
Nine months later, Khedkar informed USCIS that he was going to start a job with Alpha Net Consulting LLC. J.A. 653–59. He invoked the portability provision to retain the I-140 petition Deloitte filed on his behalf as the basis for his I-485 application. J.A. 653. The petition was still pending. Defs.’ SMF ¶ 4.
A week after that, USCIS sent a request for evidence to Deloitte. J.A. 208–17. The request stated that Deloitte's I-140 petition needed more details about the duties Khedkar would perform to justify classifying him as an executive or manager. J.A. 209. Those details included "[a]n explanation of the specific daily tasks that are involved with the completion of each of the beneficiary's proposed duties." Id. (emphasis omitted). The request also demanded more information from Deloitte to establish that Khedkar had performed executive or managerial duties for at least one year in the three-year period prior to the petition's filing—a statutory requirement. J.A. 210–11; see also 8 U.S.C. § 1153(b)(1)(C).
Two-and-a-half months later, Khedkar notified USCIS that he was changing jobs once more. J.A. 671–77. He had accepted a position with IBM Corporation. J.A. 673. Khedkar again invoked the portability provision so that he could continue to rest his I-485 application on Deloitte's I-140 petition. J.A. 671.
The following month, USCIS denied the I-140 petition. J.A. 200. Its decision letter explained that Deloitte never responded to its request for evidence. J.A. 202. Khedkar protested by filing a motion to reopen the decision. J.A. 111–16. USCIS dismissed his motion. J.A. 35–36, 107–10. It said that regulations prevented an I-140 petition beneficiary like Khedkar from challenging agency decisions regarding the petition. J.A. 109. Khedkar appealed, J.A. 2–21, but USCIS summarily denied his appeal on the same grounds as his motion to reopen, J.A. 1.
Khedkar then brought this suit against USCIS. See Compl., ECF No. 1.1 He asserts three claims under the Administrative Procedure Act. First, Khedkar alleges that USCIS unlawfully denied the I-140 petition by following regulations that excluded him from the adjudicative and appeal processes. Id. ¶¶ 74–92. Second, Khedkar asserts that USCIS improperly delayed processing the notices he sent the agency to notify it of his job moves. Id. ¶¶ 93–109. Third, Khedkar alleges that USCIS violated his procedural due process rights. Id. ¶¶ 111–15. Khedkar bases his first two claims in the INA, USCIS regulations, and agency precedent decisions. Id. ¶¶ 92, 109. He grounds his third claim in the Fifth Amendment. Id. ¶¶ 111–15.
Before the Court now are cross-motions for summary judgment on all Khedkar's claims. See Mem. P & A Supp. Pl.’s Mot. Summ. J. ("Pl.’s Mot."), ECF No. 15-1; Mem. P & A Opp'n Pl.’s Mot. and Supp. Defs.’ Cross-Mot. Summ. J. ( ), ECF No. 17-1; see also Pl.’s Reply Defs.’ Opp'n Pl.’s Mot. Summ. J. and Mem. Opp'n Defs.’ Cross-Mot. Summ. J. ("Pl.’s Reply"), ECF No. 18; Reply Supp. Defs.’ Cross-Mot. Summ. J. ( ), ECF No. 20.
A court's evaluation of a summary judgment motion looks different than usual when it reviews an agency action under the Administrative Procedure Act ("APA"). See Rempfer v. Sharfstein , 583 F.3d 860, 865 (D.C. Cir. 2009). In an APA suit, the court's review is largely limited to the contents of the administrative record. See id. ; see also CTS Corp. v. EPA , 759 F.3d 52, 64 (D.C. Cir. 2014). The court thus "sits as an appellate tribunal" to determine whether, as a matter of law, the record supports the agency's decision. See Am. Bioscience, Inc. v. Thompson , 269 F.3d 1077, 1083–84 (D.C. Cir. 2001) ; see also Roberts v. United States , 883 F. Supp. 2d 56, 62 (D.D.C. 2012), aff'd , 741 F.3d 152 (D.C. Cir. 2014). Summary judgment simply "serves as the mechanism" for deciding that question. Citizens for Resp. & Ethics in Wash. v. U.S. SEC , 916 F. Supp. 2d 141, 145 (D.D.C. 2013).
The APA requires a court to set aside agency action that is "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Judicial review for arbitrariness is "narrow." Judulang v. Holder , 565 U.S. 42, 52–53, 132 S.Ct. 476, 181 L.Ed.2d 449 (2011) (quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) ). An agency action is "arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation for its decision that runs counter to the evidence before the agency." Animal Legal Def. Fund, Inc. v. Perdue , 872 F.3d 602, 611 (D.C. Cir. 2017) (brackets omitted) (quoting State Farm , 463 U.S. at 43, 103 S.Ct. 2856 ). By the same token, a "court will ordinarily uphold an agency's decision so long as the agency ‘examined...
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