Rahman v. Napolitano

Decision Date09 December 2011
Docket NumberCase No. C09–1269 RSM.
Citation814 F.Supp.2d 1098
PartiesRashid Abdur RAHMAN, et al., Plaintiff, v. Janet NAPOLITANO, Secretary of the United States Department of Homeland Security, et al., Defendant.
CourtU.S. District Court — Western District of Washington


Devin T. Theriot-Orr, Robert H. Gibbs, Gibbs Houston Pauw, Seattle, WA, for Plaintiffs.

Melissa Leibman, U.S. Department of Justice, Washington, DC, Priscilla To-Yin Chan, U.S. Attorney's Office, Seattle, WA, for Defendants.


RICARDO S. MARTINEZ, District Judge.

This matter is before the Court for consideration of the parties' cross-motions for summary judgment. Dkt. 99; 103. Plaintiffs, Mr. Rashid Abdur Rahman and family, filed this action for a declaratory judgment and mandamus relief, seeking favorable Court action regarding several immigrant visa petitions filed by Mr. Rahman's former employer on behalf of Mr. Rahman. The Court heard oral argument on this matter on November 8, 2011. For the reasons set forth below, plaintiffs' motion for summary judgment shall be granted, and defendants' motion shall be denied.

The Court has jurisdiction pursuant to 28 U.S.C. § 1331 and the Administrative Procedures Act, 5 U.S.C. § 701 et seq.


Mr. Rahman, an information technology consultant, legally entered the United States on an H–1B non-immigrant visa that was approved in April 2000. H–1B visas allow aliens to come to the United States temporarily “to perform services or labor for ... an employer.” 8 C.F.R. 214.2(h)(1)(i). The H–1B classification that applied to Mr. Rahman was for performance of “services in a specialty occupation.” 8 C.F.R. §§ 214.2(h)(1)(ii)(B)( 1 ) & 214.2(h)(4)(i)(A)( 1 ).

In 2001, Mr. Rahman changed jobs and his new employer, Goldstone Technologies, petitioned the United States Citizenship and Immigration Service (USCIS) for a new H–1B visa (approved in Nov. 2001). Dkt. # 99, p. 1. In March 2002, Mr. Rahman began working for Wiztech. Dkt. # 99, p. 2.

Wiztech was incorporated in Maryland in 1998. Dkt. # 99, p. 2. In order to maintain corporate status in the State of Maryland, the corporation must file and pay its annual taxes and unemployment insurance contributions and file an annual report. Md.Code Ann., Corps & Ass'ns § 3–503 (West 2011). Wiztech did not file its property return in 2001 and consequently forfeited its charter in 2002.1 Dkt. # 103, p. 1; 91, p. 77.

However, in 2003, Wiztech filed paperwork with the Illinois Secretary of State so that it could conduct business in Illinois. Dkt. # 91, p. 23. Due to an Illinois statute regarding similarly named corporations, Wiztech operated under an assumed name, “IntelliBytes, Inc.,” in Illinois. Dkt. # 91, p. 57. Accordingly, for the purposes of this Order, Intellibytes and Wiztech are synonymous.

a. Wiztech/Intellibytes' H–1B Petitions

In January 2003, USCIS approved Intellibytes' Form I–129 petition to change Mr. Rahman's employer and extend Mr. Rahman's H–1B status until 2005. Dkt. # 99, p. 2. Again, in 2005, Intellibytes filed and USCIS approved a Form I–129 H–1B petition to extend Mr. Rahman's status until 2006.

In 2006 Intellibytes filed another Form I–129 H–1B petition to extend Mr. Rahman's status until May 2007. Dkt. # 86, p. 297. Again, in 2007, Intellibytes filed an extension request for 2007–08. Dkt. # 99, p. 2–3. In May 2008, Mr. Rahman left Intellibytes and relocated to Seattle, Washington. Dkt. # 91, p. 25. Thereafter, Mr. Rahman accepted a position with Bolton Valley Group (BVG), and BVG filed a Form I–129 petition in June 2008. Dkt. # 99, p. 25; Dkt. 103, p. 4. At this point, neither Intellibytes' 2006 nor its 2007 Form I–129 petitions had been adjudicated.

In June 2008, USCIS issued a Request for Evidence (RFE) for Intellibytes' 2006 and 2007 H–1B petitions; Intellibytes made a timely response. Dkt. # 95, p. 132. Subsequently, in January 2009, USCIS denied Intellibytes' 2006 petition, finding: (1) Intellibytes did not qualify as an “employer” (Dkt. # 86, p. 79), (2) Intellibytes did not comply with the terms and conditions of the Labor Condition Application (Dkt. # 86, p. 82), and (3) the position did not qualify as a “specialty occupation” (Dkt. # 86, p. 83). Because the 2006 petition was denied, the 2007 extension could not be approved, and it was also denied. Dkt. # 96, p. 86.

In March 2009, Intellibytes appealed the denial of both petitions. The Administrative Appeals Office (AAO) dismissed the timely appeals in June 2009. Dkt. # 96, p. 31. In September 2009, plaintiffs filed their complaint with this court, seeking review of the agency's final decision. Dkt. # 1. USCIS subsequently reopened Mr. Rahman's case sua sponte. Dkt. # 103, p. 4–5; 95, p. 27.

Upon reopening Mr. Rahman's case, USCIS reviewed Mr. Rahman's entire administrative record. Dkt. # 95, p. 27. In November 2009, the AAO sent Intellibytes a notice that the findings may be unfavorable, and allowed 30 days for them to respond. Dkt. # 95, p. 27. The AAO issued its final opinion on November 26, 2010. Dkt. # 95, p. 1. In the final opinion, the AAO upheld the denial of Intellibytes' 2006 and 2007 petitions and revoked Mr. Rahman's 2003 and 2005 visas. Dkt. # 95, p. 26.

b. Permanent Residence Petitions

Meanwhile, in parallel, Intellibytes began the process of applying for permanent residence for Mr. Rahman by filing an Application for Employment Certification with the U.S. Department of Labor (DOL). Dkt. # 91, p. 24. The DOL approved the labor certification in September 2006. Dkt. # 91, p. 223. In March 2007, Wiztech continued the process by filing an I–140 petition on behalf of Mr. Rahman. Dkt. # 91, p. 209. Finally, in August 2007, the plaintiffs submitted the final petition (Form I–148) to apply for permanent residence. Dkt. # 9, p. 3.

In April 2009, USCIS issued an RFE for the I–140, and it was subsequently approved in June 2009. Dkt. # 99, p. 3–4. However, after reconsidering the H–1 B petitions in late 2009, USCIS issued a notice of derogatory information and RFE with regards to the I–140 in April 2010. Dkt. # 91, p. 72. In May, Wiztech responded and withdrew their I–140 petition. Dkt. # 91, p. 23. USCIS revoked the I–140 in July 2010. Dkt. # 99, p. 5.

Plaintiffs now move for summary judgment. Dkt. # 99. Plaintiffs ask this court to find USCIS' action arbitrary and capricious and: (1) reverse the decision to revoke Intellibytes' 2003 and 2005 approved H–1 B petitions; (2) reverse the decision to deny the 2006 and 2007 H–1B petitions; (3) reverse the decision to revoke Wiztech's I–140 petition on behalf of Mr. Rahman; (4) reverse the decision to revoke Intellibytes' labor certification; and (5) reverse the decision to revoke Cascade Engineering's approved 2010 H–1B petition. In response, the defendants move for summary judgment, stating that plaintiffs have failed show that USCIS' actions were arbitrary or capricious. Dkt. # 103, p. 1.

I. Standard of Review

Summary judgment is proper if the pleadings, discovery, affidavits and disclosure materials on file show that “there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a) & (c) (as amended December 1, 2010). However, in cases challenging final agency action, a district court's role is different. See, e.g. Occidental Engineering Co. v. INS, 753 F.2d 766 (9th Cir.1985). The district court “is not required to resolve any facts in a review of an administrative proceeding.” Id. at 769. Rather, “the agency's factual findings are reviewed for substantial evidence.” Family Inc. v. USCIS, 469 F.3d 1313, 1315 (9th Cir.2006). [T]he function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.” Id. An agency's findings should not be set aside “under this deferential standard ‘unless the evidence presented would compel a reasonable finder of fact to reach a contrary result.’ Family Inc., 469 F.3d at 1315 (emphasis in original) (quoting Monjaraz–Munoz v. INS, 327 F.3d 892, 895 (9th Cir.2003), amended by 339 F.3d 1012 (9th Cir.2003)).

More specifically, judicial review of final agency action is governed by the “arbitrary or capricious” standard, and the agency decision should only be set aside if it was “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Under this standard, “the reviewing court may not substitute its judgment for that of the agency.” Western Radio Services Co., Inc. v. Espy, 79 F.3d 896, 900 (9th Cir.1996) (citing Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 376, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989)). Rather, the court must determine if the agency decision “was made after considering the relevant factors and whether the agency made a clear error in judgment.” Western Radio Services Co., Inc., 79 F.3d at 900 (citing Marsh, 490 U.S. at 378, 109 S.Ct. 1851). The court may reverse an agency decision if:

[T]he agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, offered an explanation that ran counter to the evidence before the agency, or offered one that is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Western Radio Services Co., Inc., 79 F.3d at 900 (citing

Dioxin/Organochlorine Center v. Clarke, 57 F.3d 1517, 1521 (9th Cir.1995)). Also, “if [the agency] announces and follows—by rule or by settled course of adjudication—a general policy by which its exercise of discretion will be governed, an irrational departure from that policy (as opposed to an avowed alteration of it) could constitute action that must be overturned.” INS v. Yang, 519 U.S. 26, 32, 117 S.Ct. 350, 136 L.Ed.2d 288 (1996); see also Morton v. Ruiz, 415 U.S. 199, 235, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974) (“Where the...

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