Patel v. Johnson

• Decision Date: 11 March 2014
• Docket Number: Civil Action No. 12–12317–WGY.
• Citation: 2 F.Supp.3d 108
• Parties: Sanjivkumar Narharibhai PATEL, Plaintiff, v. Jeh JOHNSON, Secretary of the United States Department of Homeland Security, Eric Holder, Jr., United States Attorney General, United States Citizenship and Immigration Services, and United States Citizenship and Immigration Services Administrative Appeals Office, Defendants.
• Court: U.S. District Court — District of Massachusetts

2 F.Supp.3d 108

Sanjivkumar Narharibhai PATEL, Plaintiff,

v.Jeh JOHNSON, Secretary of the United States Department of Homeland Security, Eric Holder, Jr., United States Attorney General, United States Citizenship and Immigration Services, and United States Citizenship and Immigration Services Administrative Appeals Office,¹ Defendants.

Civil Action No. 12–12317–WGY.

United States District Court, D. Massachusetts.

Signed March 11, 2014.

Anthony Drago, Jr., Boston, MA, for Plaintiff.

Craig W. Kuhn, United States Department of Justice, Washington, DC, Jennifer A. Serafyn, United States Attorney's Office MA, Boston, MA, for Defendants.

MEMORANDUM AND ORDER

YOUNG, District Judge.

“Give me your tired, your poor,

Your huddled masses yearning to breathe free.”

Inscription on the Statute of Liberty ²

Well, not quite. Today it might read, “Give us your educated, skilled laborers willing to work at jobs Americans either won't or can't do. If the jobs dry up, we'll tell you to go home.”

This case plumbs the labyrinthine bureaucracy we have created to effectuate the current policy.

I. INTRODUCTION

In this case, Sanjivkumar Narharibhai Patel (“Patel”) challenges the revocation of his I–140 immigration petition by the United States Citizenship and Immigration Services. After careful review of the administrative record, this Court holds that the agency's revocation of the petition was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). It therefore AFFIRMS the agency's decision.

A. Procedural History

On December 13, 2012, Bombay Mahal Restaurant, Inc. (“Bombay Mahal”) and Patel filed a complaint against Janet Napolitano, then-Secretary of the United States Department of Homeland Security, Eric Holder, Jr., United States Attorney General, the United States Citizenship and Immigration Services, and the United States Citizenship and Immigration Services Administrative Appeals Office (collectively, the “Government”). Pls.' Original Compl. Writ Mandamus, Declaratory J. & Injunctive Relief (“Compl.”), ECF No. 1. On April 11, 2013, the Government moved to dismiss the complaint for lack of subject-matter jurisdiction. Defs.' Rule 12(b)(1) Mot. Dismiss Lack Subject Matter Jurisdiction, ECF No. 14. Bombay Mahal and Patel filed an opposition on May 13, 2013. Pls.' Mem. Opp'n Defs.' Mot. Dismiss,ECF No. 19. The Court held a motion session on June 3, 2013, at which time it granted the motion as to Bombay Mahal. Elec. Clerk's Notes, June 3, 2013, ECF No. 21.

The Government moved for summary judgment against the remaining plaintiff, Patel, on August 1, 2013. Defs.' Mot. Summ. J. Sanjivkumar Narharibhai Patel's Claims, ECF No. 22; see also Defs.' Mem. Supp. Mot. Summ. J. Sanjivkumar Narharibhai Patel's Claims (“Defs.' Mem.”), ECF No. 23. Patel filed his opposition, along with a cross-motion for summary judgment, on October 2, 2013. Pl.'s Opp'n Defs.' Mot. Summ. J. & Cross–Mot. Summ. J., ECF No. 32; see also Pls.' Mem. Opp'n Defs.' Mot. Summ. J. & Supp. Cross–Mot. Summ. J. (“Pls.' Mem.”), ECF No. 33. The Government filed a memorandum opposing Patel's cross-motion for summary judgment on November 7, 2013. Defs.' Opp'n Pl.'s Cross Mot. Summ. J. Sanjivkumar Narharibhai Patel's Claims (“Defs.' Opp'n”), ECF No. 38.

B. Statutory and Regulatory Background

To regulate immigration into this country, the Immigration and Naturalization Act (the “Act”) establishes a series of procedures by which the Government may grant permanent residency status to aliens who meet certain statutory criteria. See, e.g.,8 U.S.C. § 1154 (procedures for granting immigrant status); 8 U.S.C. § 1255 (procedures for granting permanent resident status). One path to lawful immigration status allocates visas based upon the employment qualifications of the applicant.³See8 U.S.C. § 1153(b). For visas given to skilled workers, as is relevant in this case, the Act sets out a multi-agency, tripartite scheme governing how such documents are issued.

First, an alien must have a prospective employer in the United States, and that employer must then petition the Department of Labor, via a Form ETA–750,⁴ to issue a labor certificate. See8 U.S.C. § 1153(b)(3)(C); Masih v. Mukasey, 536 F.3d 370, 373 (5th Cir.2008). This certificate memorializes the Department's determination that (a) “there are not sufficient workers who are able, willing, qualified ... and available at the time of application ... to perform such ... labor,” and that (b) “the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.” 8 U.S.C. § 1182(a)(5)(A)(i).

Next, the employer may file an immigrant worker visa petition (called a Form I–140) with the United States Citizenship and Immigration Services (the “USCIS”). Pai v. United States Citizenship & Immigration Servs., 810 F.Supp.2d 102, 104 (D.D.C.2011). This petition includes a series of documentation requirements to establish that the worker does, in fact, fall within one of the employment-based categories established by the Act. See8 C.F.R. § 204.5. The petitioner bears the burden of proof by a preponderance of the evidence. See8 U.S.C. § 1361; see also Mathews v. United States Citizenship & Immigration Servs., 458 Fed.Appx. 831, 833 (11th Cir.2012). If approved, the petition will be forwarded to the Department of State for the allotment of a visa number.⁵Ryan–Webster, 353 F.3d at 356. If the petition is not approved, the employer may appeal the decision to the USCIS Administrative Appeals Office (the “AAO”). See8 C.F.R. § 103.3(a)(1)(ii).

Petition approval is not, however, irreversible. First, petitions may be revoked for cause, as “[t]he Secretary of Homeland Security ⁶ may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him.” 8 U.S.C. § 1155. “Good and sufficient cause” includes any situation where “the evidence of record at the time the decision was issued ... warranted ... a denial” of the petition. Matter of Estime, 19 I. & N. Dec. 450, 452 (BIA 1987); see also Love Korean Church v. Chertoff, 549 F.3d 749, 754 n. 3 (9th Cir.2008) (holding that the Estime standard is a reasonable interpretation of 8 U.S.C. section 1155 and applying that standard to its review of agency's revocation decision). Before a petition can be revoked, however, the USCIS must provide notice of an intent to revoke to the petitioner, who must then “be given the opportunity to offer evidence in support of the petition ... and in opposition to the grounds alleged for revocation of the approval.” 8 C.F.R. § 205.2(b). Adverse decisions can be appealed to the AAO. See id. § 205.2(d).

Second, under certain conditions, a petition can be automatically revoked. For the purposes of the case at bar, the most relevant condition is that which automatically revokes the petition “[u]pon termination of the employer's business in an employment-based preference case.” Id.§ 205.1(a)(3)(iii)(D). After the petition has been revoked, the USCIS must send notice to the petitioner's last known address. Id.§ 205.1(b).

C. Facts

In November 2003, Bombay Mahal filed a Form ETA–750, requesting that the Departmentof Labor certify an “Indian [s]pecialty [cook]” position under 8 U.S.C. section 1153. Certified Administrative Record ⁷ (“AR”) 298. On the form, Bombay Mahal stated that a minimum of two years of experience was required for the job, and that an employee in that role would “[p]repare all types of Indian specialty dishes.” Id. One month later, in December 2003, Bombay Mahal filed an I–140 petition hire Patel for the position. Id. at 262. Concurrent with the I–140 petition submission, Patel filed an I–485 application to adjust his status to that of a permanent resident. Id. at 6–9.

The USCIS initially denied the I–140 petition on September 14, 2004, stating that Bombay Mahal had not demonstrated an “ability to pay the proffered wages,” as required by 8 C.F.R. section 204.5(g). Id. at 295. After Bombay Mahal filed additional documentation, the USCIS approved its petition on November 16, 2004. Id. at 33. Patel then worked for Bombay Mahal from June 2004 through November 2008; his employment ended because the restaurant closed on December 31, 2008. Id. at 144. On February 15, 2009, Patel was hired to work as an Indian specialty cook at the Bollywood Cafe. Id. at 143.

1. Revocation and the Initial Appeals Process

At the same time as Patel found a new job, the USCIS began procedures to revoke his I–140 petition. It issued a Notice of Intent to Revoke on February 18, 2009, questioning Patel's qualifications, allegedly fraudulent materials submitted by Patel's then-lawyer, and Bombay Mahal's compliance with Department of Labor job advertising and recruiting requirements. Id. at 258–59. Bombay Mahal and Patel responded on March 10, 2009, and included letters of reference from Patel's current and previous employers, as well as documentation relating to Bombay Mahal's advertising practices. Id. at 213–29. The USCIS judged this documentation inadequate and issued a Notice of Revocation on August 5, 2009. Id. at 256–60.

Bombay Mahal and Patel administratively appealed. Id. at 247. In a memorandum filed on October 6, 2009, they argued that the USCIS improperly had presumed that because materials filed by Patel's then-lawyer in other cases had been fraudulent, the materials in Patel's case were therefore fraudulent, even though there was no direct evidence of fraud in the instant case. Id. at 129–31. They also criticized the USCIS's handling of the labor certification and recruitment procedures, and argued that the USCIS failed objectively to consider evidence of Patel's work experience. Id. at 132–35.

The USCIS took no action for the next three years, and on November 1, 2012, it issued a Notice of Intent to Dismiss and Derogatory Information. Id. at 193. The agency reported that Bombay Mahal “was dissolved on ...