Kompella v. United States Citizenship & Immigration Servs.

• Decision Date: 31 August 2021
• Docket Number: CV-20-00190-PHX-DJH
• Parties: Srinivas Kompella, et al., Plaintiffs, v. United States Citizenship and Immigration Services, Defendant.
• Court: U.S. District Court — District of Arizona

Srinivas Kompella, et al., Plaintiffs, v. United States Citizenship and Immigration Services, Defendant.

No. CV-20-00190-PHX-DJH

United States District Court, D. Arizona

August 31, 2021

ORDER

HONORABLE DIANE J. HUMETEWA UNITED STATES DISTRICT JUDGE

This is an action brought under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. On January 10, 2018, Defendant United States Citizenship and Immigration Services (“USCIS”) denied Plaintiffs Srinivas and Lakshmi Soudha Kompella's (“Plaintiffs”) I-485 applications to adjust their status to lawful permanent residents (“LPR Applications”) (“January 10, 2018, LPR Denials”). Plaintiffs now ask this Court to review the lawfulness of these denials.

Pending before the Court is Plaintiffs' Motion for Summary Judgment (Doc. 51) and Statement of Facts (Doc. 52). Defendant filed a Response (Doc. 54), and Plaintiffs filed a Reply (Doc. 55).^[1] Neither party requested oral argument, and the Court finds the matter can be disposed on the briefing.

I. Background Facts

A. Immigrant Petitions for Employment-Based Green Cards

The Immigration and Nationality Act (“INA”) provides that a certain number of immigrants may apply for green card status based on an employer's offer of a permanent job as a skilled worker or professional. See 8 U.S.C. §§ 1153(b)(3)(A)(i), (ii). This adjustment to legal permanent resident (“LPR”) status involves a three-step process. First, a United States employer applies to the U.S. Department of Labor (“DOL”) for a labor certification by showing that there are no qualified, able, and willing U.S. workers to fill the job and that the alien's employment will not adversely affect the wages and working conditions of U.S. workers. See 8 USC § 1182(a)(5)(A)(i). Second, having obtained the necessary DOL certification, the employer files an Immigrant Petition for Alien Worker (Form I-140) (“I-140 petition”) with USCIS to have the prospective employee classified as an employment-based immigrant. See 8 C.F.R. § 204.5(c); 8 U.S.C. § 1154 (conferring USCIS authorization to grant a I-140 petition). Approval of the employer's I-140 petition does not itself accord LPR status to the immigrant beneficiary; approval is instead a precondition to applying for adjustment of status. See 8 USC § 1154(e); 8 C.F.R. § 245.1(c). Based on the approved immigrant visa petition, the third step is that the immigrant applies for adjustment to LPR status (“I-485 petition”). See 8 U.S.C. § 1255(a); 8 C.F.R. § 245.2(a)(2)(i)(B). Under 8 U.S.C. § 1255(a), USCIS has discretion to adjust a non-citizen's status if, among other things, the non-citizen “is eligible to receive an immigrant visa” and “an immigrant visa is immediately available to him [or her] at the time his application is filed.” See 8 U.S.C. § 1255(a).

At any point in this process, USCIS, after giving the employer notice and an opportunity to respond, may revoke the approval of an I-140 petition “for what [the Secretary] deems good and sufficient cause.” See 8 U.S.C. § 1155; 8 C.F.R. § 205.2(b); id. § 205.2(a) (delegating authority to USCIS). The administrative appeal provision for I-140 revocations under 8 C.F.R. § 205.2(d) states that a petitioner “may appeal the decision to revoke the approval within 15 days after the service of notice of the revocation.” 8 C.F.R. § 205.2(d). The Administrative Appeals Office (“AAO”) and not the Board of Immigration Appeals (“BIA”) reviews these appeals. If USCIS denies or revokes an I-140 petition, it will also deny any dependent, pending I-485 adjustment of status petition. See George v. Napolitano, 693 F.Supp.2d 125, 130 (D.D.C. 2010). There is no administrative appeal process for denial of an I-485 petition by USCIS. 8 C.F.R. § 245.2(c) (“No appeal shall lie from the denial of an application but such denial shall be without prejudice to the alien's right to renew his or her application in proceedings under 8 CFR part 240.”).

B. USCIS's Denial of Plaintiffs' I-485 Petitions

The following facts are taken from the certified administrative record filed in this matter. (Docs. 46, 47, 48, and 53). On April 10, 2004, after receiving the requisite DOL certification, non-party Real Technologies filed an I-140 petition on Mr. Kompella's behalf. (AR, Doc. 47-5 at 39-81). The I-140 petition was approved by USCIS on June 23, 2005. (Id.)

On July 2, 2007, based on that approval, both Plaintiffs filed individual petitions to adjust their statuses to lawful permanent residents (“2007 I-485 petitions”). (AR, S. Kompella's 2007 I-485 petition, Doc. 46-10 at 42; AR, L. Kompella's 2007 I-485 petition, Doc. 48-5 at 4).^[2] During the pendency of these 2007 I-485 petitions, USCIS provided Real Technologies with a notice of intent to revoke its I-140 Petition. (AR, Doc. 47-4 at 90- 94). USCIS did not provide Plaintiffs with the notice of intent to revoke. (Doc. 34 ¶ 18; Doc. 43 ¶ 18). On August 31, 2012, the USCIS revoked the I-140 Petition that Real Technologies had filed on Mr. Kompella's behalf (“August 31, 2012, I-140 Revocation”). (AR, Doc. 47-4 at 76-87). On September 17, 2012, as a result of that revocation, USCIS denied the Kompellas' pending 2007 I-485 petitions (“September 17, 2012, I-485 Denials”). (AR, S. Kompella's 2012 I-485 Petition Denial, Doc. 46-10 at 30-31; AR, L. Kompella's 2012 I-485 Petition Denial, Doc. 48-5 at 2-3).

The Kompellas spent the next several years unsuccessfully challenging USCIS's August 31, 2012, I-140 Revocation and September 17, 2012, I-485 Denials. (AR, 10/9/2012, First Motion to Reopen, Doc. 46-10 at 8-29; AR, 12/9/2013, Second Motion to Reopen, Docs. 46-8 at 54-106; 46-9 at 1-94; 46-10 at 1-3; AR, 6/5/2014, Third Motion to Reopen, Docs. 46-7 at 13-85; 46-8 at 1-48. See also AR, 11/8/2013, Denial of First Motion to Reopen, Doc. 46-10 at 4-7; AR, 4/23/2014, Denial of Second Motion to Reopen, Doc. 46-8 at 49-53; AR, 1/16/2015, Denial of Third Motion to Reopen, Doc. 46-7 at 7- 12)).

On March 14, 2016, the Kompellas filed new I-485 petitions (“2016 I-485 petitions”). (AR, S. Kompella's 2016 I-485 Application, Docs. 46-3 at 23-87, 46-4, 1- 67, 46-5 at 1-67; 46-6 at 1-75; AR, L. Kompella's 2016 I-485 Application, Docs. 48-3 at 15-16, 48-4 at 1-8). The 2016 I-485 petitions were denied on July 18, 2016 (“July 18, 2016, I-485 Denial”). (AR, Docs. 46-3 at 1-3; 48-3 at 13-14). In the July 18, 2016, I-485 Denial, the USCIS noted that “since the approval of the underlying immigrant visa petition has been revoked for cause, it cannot serve as a valid basis on which to adjust your status.” (Id.)

On September 14, 2016, Plaintiffs filed suit in the U.S. District Court for the District of Columbia, alleging that USCIS did not act in accordance with the law when it revoked the I-140 and denied their I-485 petitions, because it did not provide them notice of and opportunity to respond to the Notice of Intent to Revoke the approval of the I-140 petition. (AR, Doc. 47 at 42). On January 3, 2017, Plaintiffs agreed to voluntarily dismiss that complaint “based on an agreement in which the I-140 proceedings would be reopened, and a new Notice of Intent to Revoke would be issued directly to the beneficiary.” (AR, Doc. 47-4 at 56, 71-72; see also AR, Docs. 46-7 at 5-6; 48-4 at 16; 48-3 at 3-4, 53-1 at 10-11). On January 24, 2017, USCIS notified Mr. Kompella that his 2016 I-485 petition was to “be reopened and restored to pending status” in light of the fact that “the underlying Form I-40 petition has been reopened for continued revocation proceedings. . . pursuant to a litigant-based settlement.” (AR, Doc. 53-1 at 10). On February 16, 2017, USCIS provided to Real Technologies and Mr. Kompella its notice of intent to revoke the I-140 petition and Real Technologies' labor certification that was filed in support of the I-140. (AR, Doc. 47-4 at 54-70). Mr. Kompella responded and objected to the notice of intent to revoke; Real Technologies did not. (AR, Doc. 47-4 at 2-35).

On January 4, 2018, USCIS again revoked Real Technologies' I-140 Petition; it also invalidated the labor certification supporting the Petition upon a finding of fraud or misrepresentation (“January 4, 2018 I-140 Revocation”). (AR, Docs. 47-2 at 80-91; 47-3 at 1-72). In that decision, USCIS notified Mr. Kompella of his right to appeal by “filing a Notice of Appeal or Motion (Form I-290B) within 18 days of the date of this decision.” (AR, Doc. 47-3 at 72). It also stated that “[i]f USCIS does not receive a properly filed appeal, this decision will become final.” (Id.)

On January 10, 2018, USCIS denied the Kompellas' 2016 I-485 petitions (“January 10, 2018, I-485 Denial”) on the grounds that the I-140 Petition on which they were based had been revoked. (AR, Doc. 46-7 at 1-4; Supp. AR, Doc. 53-1 at 2-5). The January 10, 2018, I-485 Denial concluded by stating, “USCIS regulations do not provide for an appeal to this decision. However, you may file a motion to reopen or reconsider within thirty days of the date on this decision (33 days if this notice was received by mail).” (AR, Doc. 46-7 at 4). The record does not reflect that Plaintiffs filed a motion to reopen or reconsider the January 10, 2018, I-485 Denials. These Denials are the decisions being challenged in this matter.^[3]

Although they did not move to reopen or reconsider the denials of their I-485 petitions, on January 29, 2018, Mr. Kompella appealed the USCIS's January 4, 2018, I-140 Revocation (“January 29, 2018 Appeal”). (AR, Doc. 47-1 at 79-85). On October 17, 2019, the AAO rejected that appeal as untimely filed (“October 17, 2019, Appeal Rejection”). (AR, Doc. 47-1 at 78) (noting that an appeal of “a notice of revocation [must be made] within 18 calendar days of the date it was mailed”).

Over eight months later, on June 19, 2020, USCIS, on its own review,...