Z-Noorani, Inc. v. Richardson

• Decision Date: 05 June 2013
• Docket Number: Civil Action No. 2:12–CV–00115–WCO.
• Citation: 950 F.Supp.2d 1330
• Parties: Z–NOORANI, INC., Plaintiff, v. Gregory A. RICHARDSON, Director of the Texas Service Center, U.S. Citizenship and Immigration Services, Alejandro Mayorkas, Director of U.S. Citizenship and Immigration Services, Janet Napolitano, Secretary, Department of Homeland Security, and Eric H. Holder, Jr., U.S. Attorney General, Defendants.
• Court: U.S. District Court — Northern District of Georgia

950 F.Supp.2d 1330

Z–NOORANI, INC., Plaintiff,
v.
Gregory A. RICHARDSON, Director of the Texas Service Center, U.S. Citizenship and Immigration Services, Alejandro Mayorkas, Director of U.S. Citizenship and Immigration Services, Janet Napolitano, Secretary, Department of Homeland Security, and Eric H. Holder, Jr., U.S. Attorney General, Defendants.

Civil Action No. 2:12–CV–00115–WCO.

United States District Court,
N.D. Georgia,
Gainesville Division.

June 5, 2013.

[950 F.Supp.2d 1332]

Leslie A. Diaz, Siskind Susser P.C., Atlanta, GA, for Plaintiff.

Aaron S. Goldsmith, United States Department of Justice, Washington, DC, Aileen Bell Hughes, Office of United States Attorney, Atlanta, GA, Defendants.

ORDER
WILLIAM C. O'KELLEY, Senior District Judge.

The court has before it for consideration plaintiff's “Claim for Declaratory Judgment” [15], plaintiff's “First Motion to Supplement and File Under Seal” [16], plaintiff's “Second Motion to Supplement the Record” [17], and defendants' “Response to Plaintiff's Motion for Judgment and Cross–Motion for Summary Judgment” [18].

I. General Factual and Procedural Background

Plaintiff is a Georgia corporation in the business of operating a convenience store known as “Saad's Express” in Oakwood, Georgia. On April 25, 2001 (the “Priority Date”), plaintiff filed an Application for Employment Certification (Forms ETA–750A and ETA–750B) for Dilshad Gilani (“Gilani”) for the position of store manager. The position required two years of experience and had an annual wage of $36,600 per year. This application was approved and certified on February 22, 2003, by the Department of Labor (the “Labor Certification”). Plaintiff then filed

[950 F.Supp.2d 1333]

an I–140 Petition for Alien Worker on Gilani's behalf on April 16, 2004, to sponsor her for permanent residence based on her employment with the plaintiff. The I–140 was approved on March 1, 2005.

Four years after the labor certification was filed, Gilani left plaintiff's employ. In accordance with USCIS procedures, plaintiff withdrew the approved I–140 petition for Gilani and substituted another alien, Imroze Mohammad (“Mohammad”), in her place. On April 17, 2007, plaintiff filed a new I–140 petition on behalf of Mohammad. This I–140 petition was denied on July 14, 2008, after the Service Center Director determined that Mohammad had failed to provide adequate evidence of his work experience from 2000 to 2008.

On August 13, 2008, plaintiff filed a Motion to Reconsider the denial of the I140 and, in the alternative, appealed the decision to the USCIS's Administrative Appeals Office (“AAO”). The Motion to Reconsider was denied, and the case was transferred to the AAO.

On December 17, 2008, the AAO issued a Notice of Derogatory Information (the “First NDI”). The First NDI identified two potential problems with the I–140. First, the USCIS had reason to believe that Mohammad was the son of plaintiff's Vice President, Zubeda Mohammad. This suggested that Mohammad may have an ownership interest in plaintiff which, if true, raised concerns about whether the employment offer was bona fide. Second, it was unclear whether Mohammad had the requisite two years of relevant work experience prior to the Priority Date.

Plaintiff responded on January 15, 2009. Plaintiff submitted corporate minutes, loan documents, and licensing documents in an effort to show that Mohammad did not have an ownership interest in plaintiff. Plaintiff also attempted to disprove any suggestion that it had materially misrepresented Mohammad's relationship to plaintiff's owners by noting that the original beneficiary of the Labor Certification was not a relative, and the form in use at the time the Labor Certification was filed did not specifically ask about a familial relationship. As to Mohammad's prior work experience, plaintiff explained that Mohammad had spent two years working for Shiza, Inc., a company that had previously owned and operated Saad's Express. When plaintiff purchased Saad's Express from Shiza, Inc. in 2000, Mohammad had already been working there for two years.

On November 17, 2009, the AAO issued a second Notice of Derogatory Information (the “Second NDI”). The Second NDI again questioned whether the employment offer was bona fide, this time because the AAO had discovered that plaintiff's director, Ramzan Ali Mohammad, had left his last name off of several documents, including the I–140 form, and signed simply as “Ramzan Ali.” The AAO felt that this was a deliberate attempt to hide the fact that Ramzan Ali was Mohammad's father. The Second NDI also restated concerns about Mohammad's prior work experience. Specifically, the AAO noted that Mohammad was not listed as an employee on plaintiff's tax returns for 2004, which was one of the years Mohammad claimed to have worked for plaintiff. The AAO requested payroll records to help explain this inconsistency. Finally, the AAO questioned whether plaintiff had three to four employees for Mohammad to supervise because on February 5, 2007, plaintiff had indicated that it had only three active employees, two of whom were Mohammad and his supervisor. The AAO asked plaintiff to submit a variety of tax forms to resolve this inconsistency. The requested forms included plaintiff's W–3 Forms for the years 2000 through 2008, 941 Forms for each quarter of 2007 and 2008, and any 1099 or W–2 Forms issued

[950 F.Supp.2d 1334]

to employees other than Mohammad from 2000 through 2008.

Plaintiff responded to the Second NDI in December, 2009. Plaintiff argued that there was no material misrepresentation as to Mohammad's relationship with plaintiff's owners because (1) neither the ETA–750 Forms nor the I–140 Form asked whether a familial relationship existed between the owners and the beneficiary, (2) Ramzan Ali commonly signed without using his surname Mohammad, and (3) Zubeda Mohammad, Mohammad's mother, had made no effort to hide her relationship to Mohammad when she signed the ETA–750 Form. Additionally, plaintiff argued that the AAO should find a bona fide job offer existed since the original Labor Certification was filed for Gilani and Mohammad was already employed in the position at the time of the substitution. As to the concerns raised over Mohammad's prior work experience, plaintiff argued that whether Mohammad was employed in 2004 was irrelevant because he had already established that he had two years of relevant work experience prior to the Priority Date. Nevertheless, plaintiff submitted a 1099 Form for Mohammad for the year 2004. Lastly, plaintiff submitted evidence that it had maintained at least five employees since 2007.

On September 26, 2011, the AAO issued a notice of denial for three different reasons: (1) plaintiff failed to establish that Mohammad possessed two years of experience in the job offered as of the Priority Date; (2) plaintiff failed to establish its continuing ability to pay the proffered wage; and (3) plaintiff failed to demonstrate that the job offer remained realistic and bona fide from the priority date onward.

On May 21, 2012, plaintiff filed this action seeking a declaratory judgment that (1) the position constitutes a bona fide job offer; (2) the AAO's denial of plaintiff's I–140 petition was without basis in fact or law and contrary to and inconsistent with applicable immigration statutes, regulations, and operating instructions; and (3) no material misrepresentation occurred in this case.¹ Plaintiff also seeks attorney's fees and costs under the Equal Access to Justice Act.

Following a Scheduling Conference held on October 17, 2012, defendants filed the Administrative Record (“AR”) under seal.² Soon thereafter, plaintiff filed a motion for declaratory judgment. Simultaneously with its motion, plaintiff filed two motions to supplement the AR. These motions sought to file (1) the Administrative Record for the I–140 Petition for Alien Worker filed on behalf of Gilani (the “Gilani Record”) and (2) a USCIS policy memorandum on the procedures for the determination of ability to pay under 8 C.F.R. § 204.5(g)(2) dated May 4, 2004 (the “Policy Memorandum”). Defendants oppose both motions to supplement and filed a cross-motion for summary judgment in response to plaintiff's motion for declaratory judgment.

II. Standard of ReviewA. Summary Judgment

Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). “An issue of fact is ‘material’ if, under the applicable substantive law, it might affect the outcome of the case.”

[950 F.Supp.2d 1335]

Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259 (11th Cir.2004). “An issue of fact is ‘genuine’ if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party.” Id. at 1260.

The moving party may demonstrate the absence of a genuine dispute of material fact by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations ... admissions, interrogatory answers, or other materials.” FED. R. CIV. P. 56(c)(1)(A). In addition to the materials cited by the parties, the court may also refer to other materials in the record. Id. at 56(c)(3). The moving party “always bears the initial responsibility of informing the district court of the basis for its motion” by “identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quotation marks omitted).

This initial responsibility is discharged when the movant shows that the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof....