Diamond Miami Corporation v. United States Citizenship and Immigration Services

United States District Court

for the

Southern District of Florida

Diamond Miami Corporation and )

Zeenish Hamirani, Plaintiffs )

)

v. )

Civil Action No. 18-24411-Civ-Scola

)

United States Citizenship and )

Immigration Services, and others, )

Defendants )

Order on Cross-Motions for Summary Judgment

This matter is before the Court on the parties’ cross-motions for summary

judgment. (ECF Nos. 22, 23). The parties have each filed responses (ECF Nos.

23, 27) and replies (ECF Nos. 27, 31). Upon review of the record, the parties’

briefs, and the relevant legal authorities, the Court grants in part and denies

in part the Defendants’ motion (ECF No. 23) and grants in part and denies in

part the Plaintiffs’ motion (ECF No. 22.)

I. Background

On November 1, 2016, the United States Department of Labor sent

correspondence to Plaintiff Diamond Miami Corporation (“Diamond”) that the

Application for Permanent Employment Certification (ETA Form 9089) was

certified. (ECF No. 21 at ¶ 1.) This certification is required to file an I-140 petition.

On November 14, 2016, Diamond filed an Immigrant Petition for Alien Worker

(Form I-140) with the United States Citizenship and Immigration Services

(“USCIS”) seeking to classify Defendant Hamirani as an alien worker for the job

of “Operations Manager.” The position of Operations Manager required 36

months of experience as a beauty salon manager. (ECF No. 22 at 11.) In support

of the petition, Diamond submitted a letter from the owner of Shama’s Beauty

Salon verifying that Hamirani had more than 36 months experience as a beauty

salon manager.

On September 19, 2017, USCIS sent Diamond a Notice of Intent to Deny

(“NOID”) informing Diamond that it intended to deny the petition filed on behalf

of Hamirani because (1) Diamond did not disclose a familial relationship between

Hamirani and the president and 100% shareholder of Diamond and (2) Hamirani

provided contradictory information about her previous employment in a prior

statement to the State Department when applying for a student visa.

(Administrative Record, ECF No. 20-1 at 33-36.)

On October 20, 2017, Diamond’s counsel sent a letter and additional

documentation in response to the NOID. (Id. at 38-46.) The additional

documentation included five letters from Hamirani’s previous clients to help

bolster her experience working as a salon manager. (Id.) On November 17, 2017,

USCIS denied Diamond’s I-140 petition on behalf of Ms. Hamirani. The denial

letter stated that (1) Diamond failed to disclose a familial relationship between

the president of the company and Hamirani, thereby failing to show that the

position of “Operations Manager” was bona fide and available to other U.S.

workers and (2) Diamond Miami failed to establish that Hamirani met the

minimum requirements for the “Operations Manager” position based on

inconsistencies in found in a prior visa application. (Id. at 48-51.) USCIS also

made a finding of fraud or willful misrepresentation based on the same

inconsistencies in a prior visa application. (Id. at 51.)

II. Legal Standards

A. Summary Judgment Standard

Under Federal Rule of Civil Procedure 56, “summary judgment is

appropriate where there ‘is no genuine issue as to any material fact’ and the

moving party is ‘entitled to a judgment as a matter of law.’” See Alabama v. North

Carolina, 130 S. Ct. 2295, 2308 (2010) (quoting Fed. R. Civ. P. 56(a)). Here, as

the parties agree, the material facts are not in dispute and the Court’s review is

limited to the administrative record before the agency. Thus, this case is suited

for summary disposition under Rule 56. See Mahon v. U.S. Dep’t of Agric., 485

F.3d 1247, 1253 (11th Cir. 2007) (“Summary Judgment is particularly

appropriate in cases in which a district court is asked to review a decision

rendered by a federal administrative agency.”); Fla Fruit & Veg. Ass’n v. Brock,

771 F.2d 1455, 1459 (11th Cir. 1985) (“The summary judgment procedure is

particularly appropriate in cases in which the court is asked to review . . . a

decision of a federal administrative agency,” especially where “the court

considers the record that was before the agency”); see also Occidental Eng’g Co.

v. INS, 753 F.2d 766, 769 (9th Cir. 1985) (“summary judgment is an appropriate

mechanism” for the district court “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”).

B. APA Standard Of Review

When reviewing agency action under the APA, the district court must

determine whether the agency’s decision was arbitrary, capricious, or an abuse

of discretion. See Mathews v. USCIS, 458 F. App’x 831, 833 (11th Cir. 2012).

This standard “provides the reviewing court with very limited discretion to

reverse an agency decision, and is exceedingly deferential,” especially “in the field

of immigration.” See id. (citations omitted). The relevant inquiry is “whether an

agency’s decision was based on consideration of the relevant factors and whether

there has been a clear error of judgment.” See Mahon, 485 F.3d at 1253 (citation

omitted).

Review is limited to the material before the agency – that is, the

administrative record. See Preserve Endangered Areas of Cobb’s History, Inc. v.

U.S. Army Corps of Eng’rs, 87 F.3d 1242, 1246 (11th Cir. 1996). “[A] court does

not consider any evidence that was not in the record before the agency at the

time that it made the decision or promulgated the regulation,” see United States

v. Guthrie, 50 F.3d 936, 944 (11th Cir. 1995), because “the focal point for judicial

review should be the administrative record already in existence, not some new

record made initially in the reviewing court,” see Fla Power & Light Co. v. Lorion,

470 U.S. 729, 743 (1985). In making its decision, “[t]he agency is not required to

discuss every piece of evidence, so long as it gives reasoned consideration to the

evidence submitted.” Xunbing Liu v. U.S. Attorney Gen., 440 F. App’x 718, 719

(11th Cir. 2011).

The Eleventh Circuit has held that “an agency fails to give reasoned

consideration to the record evidence when it misstates the contents of the record,

fails to adequately explain any illogical conclusions, or provides justifications for

its decision which are unreasonable or do not respond to any arguments in the

record.” See id. “If the record before the agency does not support the agency

action, if the agency has not considered all relevant factors, or if the reviewing

court simply cannot evaluate the challenged agency action on the basis of the

record before it, the proper course, except in rare circumstances, is to remand

to the agency for additional investigation or explanation.” Lorion, 470 U.S. at

744.

To prevail on summary judgment, where the agency denies the visa

petition on multiple grounds, it need only show that one of the grounds was

sufficient to deny the petition. See Z-Noorani, Inc. v. Richardson, 950 F. Supp. 2d

1330, 1337 (N.D. Ga. 2013) (citations omitted). For the plaintiff to succeed, he

“must establish that each of these bases was arbitrary, capricious, an abuse of

discretion or otherwise not in accordance with the law.” Id.

III. Analysis

USCIS denied Diamond’s I-140 immigrant visa petition on behalf of

Zeenish Hamirani and invalidated Hamirani’s ETA Form 9089 Application

because (1) Diamond failed to disclose a familial relationship between the

president of the company and Hamirani, thereby failing to show that the position

of “Operations Manager” was bona fide and available to other U.S. workers and

(2) Diamond Miami failed to establish that Hamirani met the minimum

requirements for the “Operations Manager” position. (ECF No. 23-1 at 8-9.) The

Plaintiffs move for summary judgment arguing that USCIS’s decision was

arbitrary and capricious and should be reversed. (ECF No. 22.) On the other

hand, the Defendants move for summary judgment arguing that USCIS’s

position was not arbitrary and capricious and should stand. (ECF No. 23-1.)

A. Denial based on non-disclosure of familiar relationship

With regard to USCIS’s first ground for denying the Plaintiff’s application,

the Plaintiffs argue that it was “unreasonable” for USCIS to find that a familial

relationship exists between Hamirani and the owner of Diamond. (ECF No. 22 at

5-6.) The owner and president of Diamond is Abdul Bhimani. (ECF No. 21 at ¶

6.) Mr. Bhimani is the father of Asif Bhimani, Hamirani’s brother-in-law. (Id.) In

other words, Asif is married to Hamirani’s sister. (Id.) The Plaintiffs do not

dispute that this relationship exists. Instead, according to the Plaintiffs, this is

not a “familial relationship” that required disclosure.

In response, USCIS argues that the purpose of this disclosure is to allow

the Department of Labor to evaluate the nature of the close relationship so it can

determine whether the position is open to all qualified workers. (ECF No. 23-1 at

10.) According to USCIS, this relationship was close enough to call into question

whether this was a bona fide job opportunity equally available to all qualified

workers. (Id. at 10-12.) Upon careful review, the Court agrees with the

Defendant.

The Department of Labor publishes a list of Frequently Asked Questions

for filling out Form 9089. With regard to “familial relationships,” it provides the

following: “A familial relationship includes any relationship established by blood,

marriage, or adoption, even if distant. For example, cousins of all degrees,

aunts, uncles, grandparents, and grandchildren are included. It also includes

relationships established through marriage, such as in-laws and step-families.”

(ECF No. 23-1 at 11) (emphasis added). USCIS found that Hamirani’s

relationship with her brother-in-law’s father is a familial relationship that should

have been disclosed under this description provided by the Department of

Labor’s FAQs. (Id.) The Plaintiffs argue that the FAQs do not assert the position

that a familial relationship exists due to “in laws of blood relatives.” (ECF No. 22

at 6.)

The Court finds that USCIS’s decision was not arbitrary or capricious. A

plain reading of the FAQs establishes that a distant relationship, through blood

or marriage, must be disclosed. Here, there is clearly a relationship, even if

distant and through marriage, between Hamirani and her brother-in-law’s

father. This relationship should have been disclosed. The Plaintiffs’ position that

the FAQs do not specifically say that a familial relationship includes the “in laws

of blood relatives” elevates form over substance. The Department of Labor’s

FAQ’s advise applicants to disclose even “distant” relationships so that it may

determine whether the job is a bona fide opportunity available to other U.S.

workers. See 20 C.F.R. §§ 656.17(l). After the Plaintiffs failed to disclose the

relationship, the NOID informed Diamond of the problem. (ECF 20-1 at 175.)

Instead of disclosing and producing evidence that it was a bona fide job

opportunity, Diamond argued that it did not have to disclose the relationship.

(Id. at 125-126.) As a result, USCIS was never given the opportunity to evaluate

whether this was a bona fide job opportunity. Accordingly, the Court finds that

USCIS’s denial based on the Plaintiffs’ failure to disclose the familial relationship

is not arbitrary or capricious.

B. Denial based on inconsistencies in employment history

As the Court has determined that USCIS’s denial of the application based

on the Plaintiffs’ failure to disclose a familial relationship was valid, it need not

address the merits of USCIS’s second basis for denial: that Hamirani did not

meet the minimum requirements for the position. See Z-Noorani, 950 F. Supp.

2d at 1346-47. However, the Plaintiffs ask the Court to make a finding that

Hamirani did not make a material misrepresentation or commit fraud because

this finding could have future immigration implications for Hamirani. (ECF No.

22 at 16.) In order to analyze USCIS’s finding of fraud, the Court must address

USCIS’s second basis for denial.

As an alternative basis for denial, USCIS found that Hamirani did not show

that she had the requisite 36 months of work experience because of contradictory

claims regarding her employment history. (ECF No. 20-1 at 50.) Section H of

Form 9089 states that the minimum requirement for the job of Operations

Manager is 36 months of experience as a beauty salon manager. (Id. at 193.)

Section K of Form 9089 states that Hamirani was a salon manager from February

10, 2008 to March 31, 2013. (Id. at 196.) However, in 2011, Hamirani applied

for a student visa. Hamirani’s 2011 visa application stated that she was a

student at Manzar College of Arts and Media Management and was not currently

employed. (Id. at 216, 223.) She also told the Department of State that she had

no previous employment experience. (Id. at 224.) USCIS found that this

inconsistency undermined Hamirani’s work qualifications. (ECF No. 23-1 at 15.)

The NOID informing Diamond of the inconsistencies states the following:

Department of State (DOS) records show that in 2011

the beneficiary attested that she was a student at

Manzar College of Arts Media and Management, and

was not currently employed. The beneficiary also

attested at that time that she did not have any previous

employment. This information directly contradicts the

evidence submitted by the petitioner to demonstrate the

beneficiary’s qualifying employment. . . [.]

The Petitioner must reconcile the discrepancies in the

beneficiary’s dates and company of employment . . . Also

provide independent objective evidence to explain and

resolve these discrepancies. The evidence may include

but is not limited to, the beneficiary’s tax records, the

beneficiary’s employment records, and the beneficiary’s

pay stubs and Form W-2’s.

Any evidence of experience must be in the form of

letter(s) from the beneficiary’s current or former

employer(s) . . . Before USCIS can consider secondary

evidence, the petitioner must establish that such

evidence does not exist or cannot be obtained.

(ECF No. 20-1 at 35.) In response to this letter, Diamond responded by explaining

that the experience was gained in Pakistan. “There are no formal tax or

employment records. Pay stubs are non existent because all employees are paid

in cash.” (ECF No. 20-1 at 40.) In an effort to further bolster her work experience

without pay stubs or formal records, Diamond submitted five letters from

Hamirani’s previous clients. (Id.)

On February 6, 2018, USCIS denied Diamond’s I-140 Petition. (Id. at 96.)

USCIS’s denial letter acknowledged the additional letters of support submitted

on behalf of Hamirani (ECF No. 20-1 at 100) but did not consider them a rebuttal

to the inconsistencies pointed out in the NOID. (Id.) USCIS stated that “in

rebuttal of the contradictory claims of experience, the petitioner submitted only

a letter from the petitioner’s attorney, the petitioner has not submitted evidence

to overcome the inconsistencies in the record.” (Id.) This “letter” is the cover letter

from Diamond’s attorney which explains Diamond’s position and outlines the

additional documentation submitted in support of the petition. USCIS also found

that “[t]he petitioner failed to address the inconsistences in the form of a written

explanation to clarify the beneficiary’s contradictory claims of experience made

to the Department of State and USCIS.” Id. In its response brief, USCIS further

argues that Diamond did not provide “independent objective evidence” to resolve

the inconsistencies in the record. (ECF No. 23-1 at 15.)

“[T]he role of the court is not to conduct its own investigation and

substitute its own judgment for the administrative agency’s decision.” Saga

Overseas, LLC v. Johnson, 200 F. Supp. 3d 1341, 1345 (S.D. Fla. 2016) (Cooke,

J.). Under the APA, the Court cannot “re-weigh the evidence presented[.]” Id.

(citing Smith v. Holder, 487 F. App’x 731, 73 (3d Cir. 2012)). However, where

USCIS “fails to adequately explain any illogical conclusions or provides

justifications for its decision which are unreasonable or do not respond to any

arguments in the record,” the Court may remand to the agency for additional

investigation or explanation. See Xunbing Liu v. U.S. Attorney Gen., 440 F. App’x

718, 719 (11th Cir. 2011).

Based on the language in its denial, it appears that USCIS did not credit

the five additional letters and required a written explanation of the

inconsistencies. The NOID asked Diamond to provide independent objective

evidence to reconcile the discrepancies. (ECF No. 20-1 at 35.) However, the NOID

also stated that USCIS “can” consider secondary evidence, if the petitioner

establishes that such evidence does not exist or cannot be obtained. (Id.) USCIS

glosses over this in its response. (See ECF No. 23-1 at 15.) USCIS fails to address

whether Diamond established that Pakistani pay stubs and employment records

were not available and why the additional letters could not sufficiently resolve

the inconsistencies. (See id.) Moreover, USCIS emphasizes that Diamond did not

provide a “written explanation.” (Id. at 16.) However, that was not requested in

the NOID.

The Court finds that USCIS’s denial based on these inconsistencies was

arbitrary and capricious. Diamond’s failure to provide pay stubs or a written

explanation of the inconsistencies “cannot rationally lead to the conclusion” that

Hamirani did not have the requisite 36 months of experience. See Betancur v.

Roark, No. 10-11131, 2012 WL 4862774, at *7 (D. Mass. Oct. 15, 2012) (“But

the mere failure to provide such further evidence cannot rationally lead to the

conclusion that Betancur forged his previous work history and supporting

documentation.”) Hamirani provided five letters from former clients as well as a

letter from her former employer to help resolve the inconsistencies. USCIS does

not explain why these could not be used to resolve the inconsistencies where

employment records were not available from Pakistan. However, because the

Court found that the failure to disclose the familiar relationship was not arbitrary

and capricious, USCIS’s decision stands.

C. USCIS’s finding of willful misrepresentation or fraud

In its denial letter, USCIS made an additional finding of fraud based on

Hamirani’s misrepresentations related to her work history (addressed in Section

B above). The Plaintiffs ask the Court to reverse this finding because it may have

future immigration implications for Hamirani.

Section 1182 states that “[aJny alien who by fraud or willfully

misrepresenting a material fact, seeks to produce a visa, other documentation,

or admission into the United States or other benefit provided under this Act is

inadmissible.” 8 U.S.C. § 1182(a)(6)(C)(i). To be considered material, the

misrepresentation must be one which “tends to shut off a line of inquiry which

is relevant to the alien’s eligibility, and which might well have resulted in a proper

determination that he be excluded.” Matter of Ng, 17 I & N. Dec. 536, 537 (BIA

1980).

The Plaintiffs argue that Hamirani’s failure to disclose her employment

when applying for a student visa in 2011 is not material because she was not

applying for a work visa at the time. (ECF No. 22 at 17.) Because she was

applying for a student visa, her work experience was not relevant to the visa

determination. (Jd.) USCIS asserts that the Plaintiffs’ argument assumes that the

2011 visa statement was the false one, and not Hamirani’s representation on

Form 9089 to the Department of Labor. (ECF No. 23-1 at 19.) However, there is

no evidence that Hamirani was falsifying her employment history in her Form

9089 and USCIS failed to explain why it did not credit Hamirani’s employment

letters. Because the Court previously held that the Defendant’s denial based on

Hamirani’s inconsistent statements related to her work experience was arbitrary

and capricious, it must also find that the finding of fraud or willful

misrepresentation based on these inconsistencies is also arbitrary and

capricious. Cf. Betancur, 2012 WL 4862774 at *8 (finding that because the

agency’s underlying conclusion that beneficiary didn’t work at purported

previous place of employment was arbitrary and capricious, the finding that he

knowingly misrepresented a material fact had to also be set aside).

IV. Conclusion

Based on the foregoing, the Court grants in part and denies in part the

Defendants’ motion (ECF No. 23) and grants in part and denies in part the

Plaintiffs’ motion (ECF No. 22.) The Court affirms USCIS’s denial of Diamond’s

I-140 petition based on the non-disclosure of a familiar relationship and reverses

USCIS’s finding of fraud or willful misrepresentation. The Court finds it

unnecessary to remand the matter given that the fraud finding is not case

dispositive. The Clerk is directed to close this case. All pending motions, if any,

are denied as moot.

Done and ordered at Miami, Florida on October 7, 2019.

44 N. Scola, Jr.

United States District Judge