Royal Siam Corp. v. Ridge, CIV.04-1843 HL.

• Decision Date: 24 March 2006
• Docket Number: No. CIV.04-1843 HL.,CIV.04-1843 HL.
• Citation: 424 F.Supp.2d 338
• Parties: ROYAL SIAM CORPORATION, et al., Plaintiffs v. Tom RIDGE, Secretary of the Department of Homeland Security, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

Page 338

424 F.Supp.2d 338

ROYAL SIAM CORPORATION, et al., Plaintiffs v. Tom RIDGE, Secretary of the Department of Homeland Security, et al., Defendants.

No. CIV.04-1843 HL.

United States District Court, D. Puerto Rico.

March 24, 2006.

Patrick D., O'Neill-Cheyney, O'Neill & Gilmore, San Juan, PR, for Royal Siam Corp., Surasak Srisang, Plaintiffs.

Maritza Gonzalez, United States, Attorney's Office, Torre Chardon, Lisa E. Bhatia-Gautier, United States, Attorney's Office, San Juan, PR, for Tom Ridge Secretary of the Department of Homeland Security, Department of Immigration and Naturalization Services, Robert P. Wiemann Director of the Administrative Appeals Office, Paul E. Novak Director of the Vermont Service Center, Defendants.

OPINION AND ORDER

LAFFITTE, District Judge.

Before the Court are Plaintiffs Royal Siam Corporation and Surasak Srisang's motion for declaratory judgment¹ and Defendants Department of Homeland Security ("DHS"); United States Citizenship and Immigration Services ("USCIS"); Robert P. Wiemann, Director of the USCIS Administrative Appeals Office ("AAO"); and Paul E. Novack, Director of the Vermont Service Center's motion for summary judgment.² After requesting an extension of time, Plaintiffs filed an opposition to Defendants' motion for summary judgment.³

For the reason set forth below, Plaintiffs' motion for declaratory judgment is denied and Defendants' motion for summary judgment is granted.

SCOPE OF REVIEW UNDER THE APA

Plaintiffs have filed this action pursuant to the Administrative Procedures Act (APA), 5 U.S.C. § 701, et seq. Plaintiffs contend that Defendant United States Citizenship and Immigration Services' ("USCIS") -a division of the United States Department of Homeland Security- decision denying Srisang's application for an H-1B category visa constitutes a reversible error of law. The Court's scope of review in this case is limited. Under the APA, the USCIS's decision may be reversed only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." APA, 5 U.S.C. § 706(2)(A). See also Garavito v. INS, 901 F.2d 173, 174 (1st Cir.1990); Tapis Intl v. INS, 94 F.Supp.2d 172, 174 (D.Mass.2000); Augat, Inc. v. Tabor, 719 F.Supp. 1158, 1160 (D.Mass.1989).

STANDARD OF REVIEW UNDER RULE 56(c)

Under Rule 56(c) of the Federal Rules of Civil Procedure, the Court will grant a motion for summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ. P.56(c). A genuine issue exists if there is sufficient evidence supporting the claimed factual dispute to require a choice between the parties' differing versions of the truth at trial. Morris v. Gov't Dev. Bank of Puerto Rico, 27 F.3d 746, 748 (1st Cir. 1994); LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir.1993). A fact is material only if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In determining if a material fact is "genuine" the Court does not weigh the facts but, instead, ascertains whether "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. See also Leary v. Dalton, 58 F.3d 748, 751 (1st Cir.1995).

Once a party moves for summary judgment, it bears the initial burden. Specifically, "`a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the [evidence] ... which it believes demonstrate the absence of a genuine issue of material fact.'" Crawford-El v. Britton, 523 U.S. 574, 600 n. 22, 118 S.Ct. 1584, 1598 n. 22, 140 L.Ed.2d 759 (1998) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)). Once this threshold is met, the burden shifts to the nonmoving party. The nonmovant may not rest on mere conclusory allegations or wholesale denials. See Fed.R.Civ.P. 56(e); Libertad v. Welch, 53 F.3d 428, 435 (1st Cir.1995). Instead, the nonmoving party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Furthermore, the nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).

To aid the Court in the task of identifying genuine issues of material fact in the record, the District for Puerto Rico has adopted Local Rule 56 (formerly Local Rule 311.12). D.P.R. L.Civ.R 56(b)-(c). Local Rule 56(b) requires that a party moving for summary judgment submit, in support of the motion, "a separate, short, and concise statement of material facts as to which the moving party contends there is no genuine issue to be tried and the basis of such contention as to each material fact, properly supported by specific reference to the record." Id; see also Leary, 58 F.3d at 751. Further, "[a] party opposing a motion for summary judgment shall submit with its opposition a separate, short and concise statement of material facts. The opposing statement shall admit, deny or qualify the facts by reference to each numbered paragraph of the moving party's statement of material facts and unless a fact is admitted, shall support each denial or qualification by a record citation ..." D.P.R. L.Civ.R 56(c). "Where the party opposing summary judgment fails to comply, the rule permits the district court to treat the moving party's statement of facts as uncontested." Alsina-Ortiz v. Laboy, 400 F.3d 77, 80 (1st Cir.2005). The Court will only consider the facts alleged in the parties' Local Rule 56 statements when entertaining the movant's arguments. Rivera v. Telefonica de Puerto Rico, 913 F.Supp. 81, 85 (D.P.R. 1995).

BACKGROUND

The facts in this case are not disputed.⁴ On November 4, 1999, Plaintiff Surasak Srisang, a citizen of Thailand, was granted an H-1B "specialty occupation" employment visa to work as a restaurant manager for Royal Thai Restaurant in Old San Juan, Puerto Rico for a term of three years.⁵ Prior to the end of this three-year period, Plaintiff Royal Siam Corporation, offered Srisang a restaurant manager position at their Thai food restaurant in Isla Verde, Carolina. The Royal Siam restaurant has between six and eight (6-8) employees and a gross annual income of $437,522.00. On or about October 15, 2002, Plaintiffs' petition for a renewal of Srisang's H-1B petition was filed with Defendant DHS (specifically, its Processing Unit of the Vermont Service Center ("VSC")). Plaintiffs assert that the restaurant manager position qualifies as a "specialty occupation" within the meaning of 8 U.S.C. § 1184 and associated regulations promulgated thereunder, and that Srisang is therefore entitled to an H-1B visa.

On October 24, 2002, the USCIS requested additional information from Plaintiffs, namely evidence that a baccalaureate degree in a specific field of study is a standard minimum requirement for the position, as well as information concerning duties, responsibilities, and personnel history of other employees currently employed in the position of restaurant manager. Plaintiffs responded to this request by submitting information which included a letter from a competitor stating that the industry norm requires that restaurant managers hold a baccalaureate degree in business administration or its equivalent.

On January 27, 2003, Srisang's 1-129 H-1B visa petition was denied. Plaintiff's filed a timely appeal with the USCIS Administrative Appeals Office (AAO). On May 21, 2004, the AAO upheld the denial, finding that Plaintiffs' did not establish the criteria required for classification of the position as a "specialty occupation." Relying on the United States. Department of Labor's Occupational Outlook Handbook, the AAO found that Srisang's duties resemble those performed by a food service manager and that a baccalaureate degree is not required for the position and that the position is not so complex or unique that it can be performed only by an individual with a degree.

Plaintiffs filed an action before this Court on August 16, 2004, seeking a declaratory judgment, as well as preliminary and permanent injunctive relief. A hearing on Plaintiffs' petition for a preliminary injunction was heard on September 1, 2004. At the hearing the Court ordered a stay of all removal or deportation proceedings against Srisang. Defendants subsequently filed a motion for summary judgment and an alternative motion for remand. On December 29, 2004, the Court entered an opinion and order denying Defendants' summary judgment motion and granting Defendants' motion for remand, thereby remanding the case back to the Administrative Appeals Office (AAO) of the United States Citizenship and Immigration Services.⁶ In said opinion, the Court held that although a prior visa decision is not binding precedent, the USCIS's failure to provide an explanation of why it decided to deny Srisang's H-1B visa petition after it had previous granted him an H-1B visa for an equivalent position constituted an abuse of discretion. Thus, the Court remanded the case to the AAO of the USCIS to "reconsider its decision and explain the change in circumstances, if any, or other factors warranting the denial of Srisang's petition after previously granting him an H-1B visa for employment as a restaurant manager for an equivalent employer." Dkt. No. 23, p. 8.

On February 22, 2005, the AAO issued a second decision on Plaintiff's appeal, affirming its 2004 decision denying Srisang's petition to extend his H-1B employment.⁷ The AAO's decision concludes that petitioner had failed to establish that the proffered position of...