De Souza v. Napolitano
| Decision Date | 26 November 2014 |
| Docket Number | Civil Action No. 12–10197–NMG. |
| Citation | 62 F.Supp.3d 175 |
| Court | U.S. District Court — District of Massachusetts |
| Parties | Jose Carlos DE SOUZA and Sirlene Maria Grobberio Stefanon, Plaintiffs, v. Secretary Janet NAPOLITANO, et al., Defendants. |
William P. Joyce, Joyce and Associates, P.C., Boston, MA, for Plaintiffs.
Michael P. Sady, United States Attorney's Office, Boston, MA, Stacey I. Young, U.S. Department of Justice, Washington, DC, for Defendants.
This case arises out of the revocation of plaintiff Jose Carlos De Souza's previously approved Form I–140 Immigration Petition for Alien Worker (“I–140 petition”) by the United States Citizenship and Immigration Services (“USCIS”). Pending before the Court are the parties' cross-motions for summary judgment. For the reasons that follow, the defendants' motion will be allowed and the plaintiffs' motion will be denied.
The Immigration and Nationality Act provides for the classification of an alien seeking admission to the United States based on an offer of permanent employment as a skilled worker under the “third preference” category. 8 U.S.C. § 1153(b)(3)(A)(i). The Secretary of Homeland Security (“the Secretary”) has delegated to USCIS the authority to accept, reject and/or adjudicate immigrant visa petitions.
Before filing a petition with USCIS, an employer must obtain certification from the Department of Labor (“DOL”) stating that there are no qualified, able and willing United States workers able to fill the employer's job opening. If DOL approves the application, the employer may then file an I–140 petition with USCIS to request that the alien be classified as an employment-based immigrant.
If USCIS denies the employer's I–140 petition, the employer may appeal the decision to the Administrative Appeals Office (“AAO”). 8 C.F.R. § 103.3(a)(1)(ii). The AAO's decision constitutes the final agency action.
Such revocation authority has also been delegated to USCIS. As with decisions to deny an I–140 petition, decisions to revoke an approved petition may be appealed to the AAO by the petitioning employer.
Jose Carlos De Souza (“De Souza”) and his wife Sirlene Maria Grobberino Stefanon (“Stefanon”) (collectively, “plaintiffs”) filed suit in February, 2012 against the defendants in their official capacities for violations of the Administrative Procedures Act, the Immigration and Nationality Act and the plaintiffs' rights to due process.1
Plaintiffs are natives and citizens of Brazil and currently reside in Beverly, Massachusetts. De Souza entered the country in 1998 and found a position as a cook at Creative Catering in Beverly, Massachusetts shortly thereafter. In 2001, Creative Catering filed a foreign labor certification with DOL on De Souza's behalf and that was subsequently approved. Creative Catering then filed an I–140 petition with USCIS on De Souza's behalf, which was approved in March, 2003. Such approval made De Souza, as the primary applicant, and Stefanon, as the derivative applicant, eligible for adjustment of status to permanent residents. They each filed the necessary Application to Adjust Status or Register Permanent Residence (“Form I–485”) in May, 2003.
In 2006, De Souza “ported” his approved I–140 petition to his current employer, Century House in Peabody, Massachusetts. “Porting” is a process which allows beneficiaries of I–485 applications that have been pending for more than six months to change employers without invalidating their petition so long as the new position is in the same or similar classification.
USCIS revisited De Souza's I–140 petition after discovering that the plaintiffs' attorney had engaged in fraudulent conduct in another case. In February, 2009, after plaintiffs' adjustment application had been pending for nearly six years, USCIS issued a Notice of Intent to Revoke (“NOIR”) the underlying I–140 petition, upon which the Form I–485 depended. It issued a second NOIR later that month. Both documents stated that there was no proof that the labor certification process was properly followed.
USCIS issued a Notice of Revocation the following month and a second Notice of Revocation in May, 2009 based on the second NOIR. Plaintiffs and Century House appealed both of those Notices and both were denied for lack of standing because USCIS decreed that only the affected party, Creative Catering, was entitled to appeal. In October, 2009, USCIS denied plaintiffs' Form I–485 based on the I–140 petition revocations.
In November, 2012, USCIS reopened the matter sua sponte and issued a third NOIR. No one responded to that NOIR. USCIS thus revoked plaintiffs' I–140 petition for a fourth time and certified the matter for review to the Administrative Appeals Office. In June, 2013, the AAO affirmed the revocation on the grounds that 1) Century House lacked standing to appeal the administrative decision and 2) the materials submitted in support of the petition were deficient.
Plaintiffs initiated this lawsuit in February, 2012 and filed an amended complaint several months later. They filed a second amended complaint in December, 2012 claiming that the defendants violated the Administrative Procedures Act, the Immigration and Nationality Act and the plaintiffs' rights to due process. The parties filed cross-motions for summary judgment in July, 2014.
The parties assert that they are each entitled to judgment as a matter of law. Plaintiffs contend that the government violated statutory authority and their rights to due process because it 1) failed to take De Souza's “ported” I–140 petition approval into account when insisting that Century House lacked standing, 2) exaggerated perceived inconsistencies in De Souza's employment history and 3) tolerated “extraordinary delay” in adjudicating the visa petition.
Defendants, in their cross-motion for summary judgment, contend that the Court lacks jurisdiction over this case because 1) the plaintiffs lack standing to challenge the I–140 revocation, 2) USCIS's revocation decision was discretionary and therefore not subject to judicial review and 3) the alternate grounds for jurisdiction raised by the plaintiffs fail as a matter of law. They also dispute the substantive arguments raised by the plaintiffs.
The Court begins its analysis with the threshold jurisdictional question raised in the defendants' motion for summary judgment.
The role of summary judgment is “to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Johnson v. Gordon, 409 F.3d 12, 16–17 (1st Cir.2005) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir.1990) ). The burden is on the moving party to show, through the pleadings, discovery and affidavits, “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 fact is material 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, 91 L.Ed.2d 202 (1986). “Factual disputes that are irrelevant or unnecessary will not be counted.” Id. A genuine issue of material fact exists where the evidence with respect to the material fact in dispute “is such that a reasonable jury could return a verdict for the nonmoving party.” Id.
Once the moving party has satisfied its burden, the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine, triable issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Court must view the entire record in the light most favorable to the non-moving party and indulge all reasonable inferences in that party's favor. Johnson, 409 F.3d at 17. Summary judgment is appropriate if, after viewing the record in the non-moving party's favor, the Court determines that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Id.
i. Subject matter jurisdiction
An “objection that a federal court lacks subject matter jurisdiction may be raised at any stage in the litigation.” Arbaugh v. Y & H Corp., 546 U.S. 500, 500, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). Defendants assert that they are entitled to summary judgment because the Court lacks subject matter jurisdiction to review USCIS's decision to revoke the I–140 petition. Defendants contend that the decision was committed to agency discretion under the plain language of 8 U.S.C. § 1155 because the statute provides that the Secretary “may, at any time, for what he deems to be good and sufficient cause,” revoke the approval of the petition.
Plaintiffs respond that USCIS's decision is not discretionary and is subject to judicial review because the revocation must be based on “good and sufficient cause.” Citing Ninth Circuit authority, they contend that an absolute and unreviewable authority to revoke would render the clause meaningless. See ANA Int'l, Inc. v. Way, 393...
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