Sodipo v. Rosenberg

• Decision Date: 12 January 2015
• Docket Number: Case No. 13–cv–04856–JD
• Citation: 77 F.Supp.3d 997
• Parties: Abiodun Sodipo, Plaintiff, v. Ron Rosenberg, et al., Defendants.
• Court: U.S. District Court — Northern District of California

77 F.Supp.3d 997

Abiodun Sodipo, Plaintiff

v.Ron Rosenberg, et al., Defendants.

Case No. 13–cv–04856–JD

United States District Court, N.D. California.

Signed January 12, 2015

Abiodun Sodipo, Dublin, CA, pro se.

Genevieve McCarthy Kelly, Washington, DC, for Defendants.

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

Re: Dkt. No. 17

JAMES DONATO, United States District Judge

Plaintiff Abiodun Sodipo, a Nigerian citizen who resides in the United States, appeals from a decision by the United States Citizenship and Immigration Services (“USCIS”) denying his petition for an immigrant visa based on employment. A petitioner seeking an employment-based immigrant visa under 8 U.S.C. § 1153(b)(2)(A), as Sodipo does, typically must have a job offer in hand from an employer in the U.S., as well as a “labor certification” from the Department of Labor stating that workers already in the United States are not available to do the job and will not be adversely affected if the visa is granted. See 8 U.S.C. § 1153(b)(2) ; 8 U.S.C. § 1182(a)(5)(A)(i) ; 8 C.F.R. 204.5(k)(4)(i). Sodipo has neither a job offer nor a labor certification, but contends that he is entitled to a waiver from these requirements under 8 U.S.C. § 1153(b)(2)(B)(i), which allows dispensing with these prerequisites when doing so would be in the national interest. The defendants—USCIS and the chief of its Administrative Appeals Office (“AAO”)—move for summary judgment on all of the counts in Sodipo's complaint. The Court grants the motion.

BACKGROUND

According to a 2005 application for labor certification submitted by his then-employer, Sodipo holds a Bachelor of Science degree in Electronic and Electrical Engineering from Obatemi Awolowo University in Nigeria and a Master of Science degree in Electrical Engineering from the University of New South Wales in Australia. See Administrative Record (“A.R.”) at 144, Dkt. No. 12. After earning his master's degree in 1998, Sodipo came to the U.S. and worked as a Technical Support Engineer at VPNet Technologies from 2000 to 2002; then as a Network Support Engineer for AEKO Consulting from 2002 to 2004, and thereafter as a Software Support Engineer for Caymas Systems, providing support to customers and communicating customer feedback to the Engineering department. See A.R. at 142–43. Sodipo's employment with Caymas was terminated on February 23, 2006—he claims in retaliation for making a complaint of discrimination—and his employer-sponsored visa application was abandoned. See A.R. at 306.

After leaving Caymas, Sodipo says he refrained from working until June 28, 2010, when he filed a petition with USCIS seeking an immigrant visa based on employment under 8 U.S.C. § 1153(b)(2)(A). A.R. at 80. That statutory provision governs so-called “second preference” employment-based immigrants, who qualify by virtue of either being “members of the professions holding advanced degrees or their equivalent” or “who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States.” 8 U.S.C. § 1153(b)(2)(A).¹ The statutory provision also usually requires the alien to have a job offer, but Sodipo, who was not employed at the time he filed his petition, argued that he qualified for a national interest waiver from this requirement under 8 U.S.C. § 1153(b)(2)(B)(i).

On January 11, 2011, USCIS issued a decision concluding that Sodipo had not established that he qualified for a national interest waiver. It applied a test set forth by the Board of Immigration Appeals (“BIA”)—the highest administrative appellate body charged with interpreting the immigration laws—which requires that three factors be shown in order to obtain a national interest waiver: (1) the alien must seek employment in an area of substantial intrinsic merit; (2) the proposed benefit to be provided by the alien must be national in scope; and (3) the petitioner “must persuasively demonstrate that the national interest would be adversely affected if a labor certification were required.” In re New York State Dep't of Trans., 22 I. & N. Dec. 215, 217–18, 1998 WL 483980 (BIA Aug. 7, 1998) (“NYSDOT ”). USCIS found that Sodipo had not shown that the proposed benefit he would bring would be “national in scope” (the second prong) and that requiring labor certification would adversely affect the national interest (the third prong). A.R. at 190–93.

Sodipo appealed this denial to the AAO, which found in an April 2, 2012, decision that Sodipo (contrary to the decision below) would be able to provide a benefit that was “national in scope,” but concluded that denial of Sodipo's petition was still proper because he had not shown the third prong—that requiring labor certification would adversely affect the national interest. A.R. 26–31. It also dismissed Sodipo's appeal on the alternative ground that he had failed to submit an ETA–750B form with his up-to-date employment history; instead, he had submitted a photocopy of his ETA–750B from his employer-sponsored application in 2005.

Sodipo then filed a first motion for reconsideration of the AAO's decision. The motion was denied by the AAO on December 28, 2012. A.R. at 12–17. The AAO's decision rejected Sodipo's arguments that: (1) his prior work experience was sufficient to satisfy the third prong of the NYSDOT test; (2) NYSDOT impermissibly imposed requirements on aliens beyond those intended by the statute in violation of Kazarian v. USC IS, 596 F.3d 1115, 1121–22 (9th Cir.2010) (holding that the AAO erred by imposing evidentiary requirements not found in statute); and (3) he was excused from submitting an up-to-date employment history with his ETA–750B form because of his lack of employment subsequent to his prior form. Id.

Sodipo filed a second motion for reconsideration, largely retreading the same ground he had in his previous submissions. A.R. at 22–23. The AAO denied the second motion on September 19, 2013. A.R. at 1–5. On October 18, 2013, Sodipo launched this case by filing a complaint asking the Court to set aside the agency's determination. See Complaint, Dkt. No. 1. On June 16, 2014, defendants filed a motion for summary judgment, which is now fully briefed. See Dkt. Nos. 17, 18, 20, 21.

LEGAL STANDARD

“Generally, judicial review of agency action is limited to review of the record on which the administrative decision was based.” Partridge v. Reich, 141 F.3d 920, 926 n. 4 (9th Cir.1998). “[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.” City & County of San Francisco v. United States, 130 F.3d 873, 877 (9th Cir.1997) (citation omitted). Because the presence of the administrative record, which the parties have stipulated to, usually means there are no genuine disputes of material fact, it allows the Court to decide whether to set aside the agency determination on summary judgment without a trial. See Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) (per curiam); Hun g er v. Leininger, 15 F.3d 664, 669 (7th Cir.1994) (“The motion for summary judgment is simply the procedural vehicle for asking the judge to decide the case on the basis of the administrative record.”).

An “agency action may be set aside only if ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” Family Inc. v. USCIS, 469 F.3d 1313, 1315 (9th Cir.2006) (quoting 5 U.S.C. § 706(2)(A) ). Our circuit has “held it an abuse of discretion for the Service to act if there is no evidence to support the decision or if the decision was based on an improper understanding of the law.” Tongatapu Woodcraft Hawaii Ltd. v. Feldman, 736 F.2d 1305, 1308 (9th Cir.1984) (internal quotations omitted).

DISCUSSION

I. JURISDICTION

The Court's first task is to determine whether this action is properly before it. See Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). The Court's obligation to determine whether it has subject-matter jurisdiction applies even when, as is the case here, the parties agree that it does. See Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 850–51, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986) (holding that lack of subject-matter jurisdiction cannot be cured by the consent of the parties).

The parties suggest that the Court has jurisdiction under the Administrative Procedure Act (“APA”), which gives district courts original jurisdiction to review agency actions.See 5 U.S.C. § 704. Jurisdiction under the APA does not extend, however, to agency actions that are “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). This exception “is applicable in those rare instances where statutes are drawn in such broad terms that in a given case there is no law to apply.” Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). At first blush, this may seem to be one of those rare instances, for the operative statute gives the Attorney General broad and standards-free discretion in deciding whether to issue national security waivers:

Subject to clause (ii), the Attorney General may, when the Attorney General deems it to be in the national interest, waive the requirements of subparagraph (A) that an alien's services in the sciences, arts, professions, or business be sought by an employer in the United States.

8 U.S.C. § 1153(b)(2)(B)(i). Were this the last word on granting national security waivers, it is likely the Court would lack jurisdiction over this case because of the lack of any meaningful standard against which to judge the agency's decision, as at least two other courts have concluded. See Zhu v. INS, 300 F.Supp.2d 77, 80 (D.D.C.2004) ; Talwar v. INS, No. 00 CIV. 1166 JSM, 2001 WL 767018, at *7 (S.D.N.Y. Jul. 9, 2001).

But as noted earlier, the BIA has in NYSD...