Musunuru v. Holder

• Decision Date: 29 January 2015
• Docket Number: Case No. 14CV088.
• Citation: 81 F.Supp.3d 721
• Parties: Srinivasa MUSUNURU, Petitioner, v. Eric H. HOLDER, Jr., et al., Respondents.
• Court: U.S. District Court — Eastern District of Wisconsin

81 F.Supp.3d 721

Srinivasa MUSUNURU, Petitioner

v.Eric H. HOLDER, Jr., et al., Respondents.

Case No. 14CV088.

United States District Court, E.D. Wisconsin.

Signed Jan. 29, 2015.

Kristine E. Michel, Immigration Attorneys LLP, Chicago, IL, for Petitioner.

Geoffrey Forney, Sherease R. Pratt, United States Department of Justice, Washington, DC, for Respondent.

DECISION AND ORDER

LYNN ADELMAN, District Judge.

Petitioner, an Indian citizen currently in the United States on an employment visa, brings this action under the Administrative Procedure Act (“APA”) seeking review of various actions of the U.S. Citizenship and Immigration Services (“USCIS”). Petitioner contends that USCIS's conduct led to the wrongful revocation of a petition by his former employer which resulted in a delay in his ability to become a permanent resident of the United States. Before me now is respondents' motion to dismiss.

I. Background

Under the Immigration and Nationality Act (“INA”), a noncitizen worker such as petitioner undergoes a three-step process to obtain permanent residency. First, his employer applies for a labor certification from the Department of Labor. 20 C.F.R. § 656.17(a)(1) ; see also 8 U.S.C. § 1182(a)(5). Second, the employer submits an I–140 visa petition to the USCIS on the employee's behalf. 8 C.F.R. § 204.5(l )(1) ; see also 8 U.S.C. § 1153(b)(3)(C). The employer must include in the petition a valid labor certification and evidence that the employee satisfies the educational, training, or other requirements dictated by the labor certification, 8 C.F.R. § 204.5(l )(3)(ii), and that the employer can pay the wage specified in the labor certification until the employee obtains permanent resident status, 8 C.F.R. § 204.5(g)(2). Third, when the USCIS approves the I–140 petition, the employee may apply to adjust his immigration status to that of permanent resident. 8 U.S.C. § 1255(a). To obtain permanent residency, however, an immigrant visa must be immediately available, id., and this will depend on the employee's priority date, which is the date the employer applied for a labor certification. 8 C.F.R. § 204.5(d). After an adjustment application has been pending for 180 days, the employee may change jobs or employers without affecting the validity of the I–140 petition (and the employee's priority date) as long as the new position “is in the same or similar occupational classification as the job for which the petition was filed.” 8 U.S.C. § 1154(j) ; 8 C.F.R. § 204.5(e).

In February 2004, Vision Systems Group, Inc. (“VSG”), petitioner's employer, applied for a labor certification on his behalf. In December 2005, the Department of Labor granted certification. VSG then filed an I–140 petition seeking to classify petitioner as a skilled worker or professional under 8 U.S.C. § 1153(b)(3) (commonly referred to as an EB–3 classification). The USCIS approved the petition, and in August 2007, petitioner applied for an adjustment to permanent resident status.

While his application was pending, petitioner began a new job with Crescent Solutions. In March 2011, Crescent Solutions filed a I–140 petition on his behalf seeking to classify him as a noncitizen who is a member of professions holding advanced degrees or is of exceptional ability under 8 U.S.C. § 1153(b)(2) (commonly referred to as an EB–2 classification). The USCIS approved the petition, but petitioner retained his February 2004 priority date from the VSG I–140 petition as the INA's portability provisions allow.

In May 2011, VSG was found to have unlawfully hired noncitizen workers. VSG's officers pled guilty to mail fraud and unlawful hiring and were debarred from participation in the labor certification program. As a result, the USCIS issued to VSG a notice of intent to revoke the I–140 petition VSG obtained on behalf of petitioner. Having gone out of business, VSG failed to respond. The USCIS invalidated VSG's labor certification, revoked its I–140 petition, and notified VSG of its right to appeal. VSG did not appeal. The USCIS did not notify petitioner of any of the proceedings against VSG. The USCIS then amended its approval of Crescent Solution's I–140 petition on behalf of petitioner, changing the priority date from February 2004, when VSG applied for labor certification, to January 28, 2011, when Crescent Solution applied. Petitioner tried to appeal the revocation decision within the USCIS, but the USCIS determined that, as an employee he lacked standing to do so.

II. Discussion

Petitioner challenges the USCIS's failure to provide him with notice and an opportunity to respond to its revocation of VSG's I–140 petition on his behalf and its denial of his internal appeal of the revocation decision. Respondents first move to dismiss pursuant to Fed.R.Civ.P. 12(b)(1), arguing that 8 U.S.C. § 1252(a)(2)(B)(ii) precludes judicial review of “any ... decision or action of the Attorney General or Secretary of Homeland Security ... which is specified under this subchapter to be in the [ir] ... discretion ...” While revocation of a previously-approved visa petition is a discretionary decision which I may not review, El–Khader v. Monica, 366 F.3d 562, 563 (7th Cir.2004), petitioner's lawsuit does not challenge the revocation itself but claims that the USCIS failed to follow the correct procedure in revoking the I–140 petition and argues that procedure is not discretionary. See 8 C.F.R. § 103.2(b)(16)(i) (“[T]he applicant or petitioner ... shall be advised of” derogatory information and given an opportunity to be heard.); 8 C.F.R. § 204.5(n)(2) (“The petitioner shall be informed in plain language of the reasons for denial and of his or her right to appeal.”); Kurapati v. U.S. Bureau of Citizenship & Immigration Servs., 775 F.3d 1255, 1262 (11th Cir.2014) (“Even when a decision is committed to agency discretion, a court may consider allegations that an agency failed to follow its own binding regulations.” (internal quotation omitted)). Based on this authority, I conclude that Congress has not stripped the federal courts of jurisdiction over the claim that plaintiff asserts.

Respondents also contest petitioner's standing to sue, both Article III standing and so-called prudential standing. To establish Article III standing, petitioner must allege (1) a “personal injury” or injury in fact, (2) that the injury is “fairly traceable to the defendant's allegedly unlawful conduct,” and (3) that the injury is “likely to be redressed by the requested relief.” Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). An injury in fact is one “that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.”

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),Inc., 528 U.S. 167, 180–81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). The proponent of jurisdiction must “ ‘set forth’ by affidavit or other evidence ‘specific facts' ” supporting standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (quoting Fed.R.Civ.P. 56(e) ).

Petitioner contends that he suffered injury by losing his original priority date, and respondents do not dispute this. Also, at least two circuits have recognized such a loss as a concrete injury for Article III standing purposes. Kurapati, 775 F.3d at 1260 ; Patel v. U.S. Citizenship & Immigration Servs., 732 F.3d 633, 638 (6th Cir.2013). I agree that by being forced to wait longer to become a permanent resident petitioner suffered a concrete, particularized injury. I also conclude that petitioner's injury is traceable to respondents' actions and redressable. Petitioner alleges that respondents failed to give him notice of and an opportunity to be heard regarding derogatory information relevant to VSG's I–140 petition and barred him from appealing revocation of the petition within USCIS in violation of federal regulations and due process, and that these actions directly affected his eligibility for permanent residency. He alleges that had he been able to contest the revocation, he would have shown that it was improper because VSG did not fraudulently obtain a labor certificate on his behalf. He points out that he overcame allegations of fraud regarding his work with VSG when the USCIS attempted to revoke Crescent Solutions's I–140 petition. This is enough to show that respondents' alleged failure to follow required procedures caused his injury and that his injury is redressable because if given the opportunity to be heard, petitioner is likely to succeed in preventing the revocation.

With respect to prudential standing, the APA entitles a person “suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute” to seek judicial review of the action. 5 U.S.C. § 702. To bring a claim under the APA, a petitioner's alleged injuries must be “arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” Ass'n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). This is not a particularly demanding standard. Clarke v. Sec. Indus. Ass'n, 479 U.S. 388, 399, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987). I apply the zone-of-interests test “in keeping with Congress's evident intent when enacting the APA to make agency action presumptively reviewable.” Match–E–Be–Nash–She–Wish Band of Pottawatomi Indians v. Patchak, ––– U.S. ––––, 132 S.Ct. 2199, 2210, 183 L.Ed.2d 211 (2012) (internal quotations omitted). “In cases where the plaintiff is not itself the subject of the contested regulatory action, the test denies a right of review if the plaintiff's interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.”...