“But we decline to impose on the agency a requirement to discuss every piece of evidence it receives, . . . especially when it is clear from the decision that USCIS did address the rebuttal evidence.”
How later courts described this case
- “But we decline to impose on the agency a requirement to discuss every piece of evidence it receives, . . . especially when it is clear from the decision that USCIS did address the rebuttal evidence.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
SCOTLANDSHOP USA, INC.; and ANNA WHITE,
Plaintiffs,
v. 1:23-CV-0703
(GTS/DJS)
US CITIZENSHIP AND IMMIGRATION SERVICES;
UR M. JADDOU, Director of USCIS; and MARY
ELIZABETH BRENNAN SENG, Acting Director,
Texas Service Center,
Defendants.
_____________________________________________
APPEARANCES: OF COUNSEL:
HARRIS BEACH PLLC ALLISON B. FIUT, ESQ.
Counsel for Plaintiff
726 Exchange Street, Suite 1000
Buffalo, NY 14210
GREEN & SPIEGEL, LLC STEPHEN J. ANTWINE, ESQ.
Co-counsel for Plaintiff
1524 Delancey Street, 4th Floor
Philadelphia, PA 19102
U.S. DEPARTMENT OF JUSTICE BRIAN SCHAEFFER, ESQ.
Counsel for Defendants
P.O. Box 868, Ben Franklin Station
Washington, DC 20044
GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this immigration action filed by ScotlandShop USA, Inc.
(“ScotlandShop”), and Anna White (collectively “Plaintiffs”) against U.S. Citizenship and
Immigration Services (“USCIS”), Ur M. Jaddou in her official capacity as Director of the
USCIS, and Mary Elizabeth Brennan Seng in her official capacity as Acting Director of the
Texas Service Center (collectively “Defendants”), are (1) Plaintiffs’ motion for summary
judgment pursuant to Fed. R. Civ. P. 56, and (2) Defendants’ cross-motion for summary
judgment pursuant to Fed. R. Civ. P. 56. (Dkt. Nos. 21, 22.) For the reasons set forth below,
Plaintiffs’ motion for summary judgment is denied, and Defendants’ cross-motion is for
summary judgment is granted.
I. RELEVANT BACKGROUND
A. Plaintiffs’ Complaint
Generally, in their Complaint, Plaintiffs claim that Defendants violated the
Administrative Procedure Act (“APA”) by denying her application for L-1A non-immigrant
status. (Dkt. No. 1.) More specifically, Plaintiffs allege that Defendants’ denial of her
application was arbitrary, capricious, and contrary to the law in that the preponderance of the
evidence presented establishes that Plaintiff White is an “executive” within the meaning of the
relevant application. (Id.)
B. Parties’ Statements of Undisputed Material Facts
The Court agrees with Defendants that, although summary judgement is the appropriate
procedure through which to decide an APA-review case, the usual standards and rules under Fed.
R. Civ. P. 56 do not apply; and instead, the district court should base its decision on a review of
the administrative record compiled by the agency when it made its decision. (Dkt. No. 22,
Attach. 2, at 1.) See, e.g., Musclemakers v. U.S. Small Bus. Admin., 23-CV-0150, 2024 WL
4979168, at *4-6 (N.D.N.Y. Dec. 3, 2024) (Suddaby, J.). However, here, the Court has
employed its Local Rule 56.1 procedure regarding statements of fact for three reasons: (1) the
parties have gone to the trouble of proposing and responding a Statement of Material Facts, and
2
the Court has evaluated that proposed Statement by using the Certified Administrative Record or
“CAR” (see, infra, Part I.B.1. of this Decision and Order); (2) a reliance on the Court's Local
Rule 56.1 procedure does not inure to Defendants’ detriment; and (3) in any event, the Court has
also summarized, and relied on, the USCIS’ Decision of March 9, 2023 (see, infra, Part I.C. of
this Decision and Order).
Under N.D.N.Y. Local Rule 56.1, a party opposing summary judgment must file a
response to the moving party’s Statement of Material Facts that “shall mirror the movant’s
Statement of Material Facts by admitting and/or denying each of the movant’s assertions in a
short and concise statement, in matching numbered paragraphs,” supported by “a specific
citation to the record where the factual issue arises.” N.D.N.Y. L.R. 56.1(b). This requirement
is not a mere formality; rather “this and other local rules governing summary judgment are
essential tools intended to relieve the district court of the onerous task of hunting through
voluminous records without guidance from the parties.” LaFever v. Clarke, 17-CV-1206, 2021
WL 921688, at *6 (N.D.N.Y. Mar. 11, 2021) (Hurd, J.) (quoting Frantti v. New York, 414 F.
Supp. 3d 257, 284 [N.D.N.Y. 2019] [Hurd, J.]). Indeed, “[a] proper response to a movant’s
statement of material facts streamlines the summary judgment analysis ‘by allocating
responsibility for flagging genuine factual disputes on the participants ostensibly in the best
position to do so: the litigants themselves.’” LaFever, 2021 WL 921688, at *7 (quoting Alke v.
Adams, 16-CV-0845, 2018 WL 5297809, at *2 [N.D.N.Y. Oct. 25, 2018] [Hurd, J.]). “The
Court may deem admitted any properly supported facts set forth in the Statement of Material
Facts that the opposing party does not specifically controvert.” N.D.N.Y. L.R. 56.1(b).
3
Applying this legal standard here, the following facts have been asserted and supported
by record citations by each moving party, and either expressly admitted or denied without a
supporting record citation by each non-moving party. (Compare Dkt. No. 21, Attach. 2 with
Dkt. No. 22, Attach. 2.)
1. Plaintiffs’ Statement of Undisputed Material Facts
1. ScotlandShop is a specialty retail company that produces and sells Scottish
clothing through its online portal and physical retail locations in Duns, Scotland and Latham,
New York.
2. ScotlandShop was originally founded in 2002 by Plaintiff Anna White.
3. Plaintiff White is the owner and Managing Director of ScotlandShop.
4. ScotlandShop operates with twenty-five employees in Scotland and, currently,
with two employees physically present at the New York State location.1
5. Plaintiff ScotlandShop is fully incorporated in the United States and maintains all
necessary tax and licensure for doing business in New York State.2
1 Defendants dispute this asserted fact, arguing that “[a]t the time of filing, Scotland Shop
indicated they had two employees in the United States,” but Defendants have failed to cite any
evidence to support this assertion. (Dkt. No. 22, Attach. 2, at ¶ 4.) In any event, the evidence
cited by Plaintiffs does not establish that four employees were at the New York location (as they
assert); the cited charts show Plaintiff (who by her own admission is not currently working at the
New York location because she is attempting to procure a visa), Emily Redman (who the chart
acknowledges is also “visa pending”), Tara Griffin as the “Albany Store Manager,” and Maria
Snow as the “US Retail & Tailoring Assistant.” (Dkt. No. 17, Attach. 2, at 13-14.) Moreover,
Plaintiffs’ petition states that, at the time of that petition, Plaintiff ScotlandShop had two
employees currently in the United States. (Dkt. No. 17, Attach. 1, at 17.) The Court has
therefore altered the asserted fact to better reflect the cited evidence.
2 Defendants state in response that they do not know whether this asserted fact is correct,
but indicate that they do not dispute that the cited evidence contains relevant business, tax and
licensure filings related to New York State. (Dkt. No. 22, Attach. 2, at ¶ 5.) Because lack of
4
6. Plaintiff White is the sole executive of ScotlandShop, and her duties as Managing
Director include business development, business strategy, and team development.3
7. In her executive position, Plaintiff White maintains full discretionary authority to
establish operational, strategic, and performance objectives for the company.4
8. On January 5, 2022, Plaintiff White received approval from Defendant USCIS for
an L-1A “New Office” visa based on her executive role as Managing Director of ScotlandShop.5
9. On April 12, 2022, Plaintiff White was denied the formal visa related to this L-1A
“New Office” classification by the U.S. Department of State’s U.S. Embassy in London,
England, which indicated that Plaintiff White was inadmissible to the United States under
Immigration and Naturalization Act (“INA”) Section 212(a)(6)(E), which denies admission to
knowledge does not constitute a proper denial, this fact is deemed to be admitted. See Birchmore
v. Granville Cent. Sch. Dist., 18-CV-1456, 2021 WL 22606, at *1 n.3 (N.D.N.Y. Jan. 4, 2021)
(Sharpe, J.) (deeming to be admissions responses to the statement of material facts in which the
plaintiff asserted she lacked knowledge to admit or deny certain facts); accord Stamm v.
Onondaga Cnty., 17-CV-0579, 2019 WL 1004527, at *2 (N.D.N.Y. Mar. 1, 2019) (Suddaby,
C.J.).
3 This asserted fact is deemed admitted for essentially the same reason discussed above in
Note 2 of this Decision and Order.
4 This asserted fact is deemed admitted for essentially the same reason discussed above in
Note 2 of this Decision and Order.
5 Defendants object to the asserted fact because, they argue, it is not at issue in this
litigation and outside the scope of the CAR. (Dkt. No. 22, Attach. 2, at ¶ 8.) However, whether
this fact is material is more appropriately assessed by the Court as part of its consideration of the
legal issues in this case. Further, a copy of this approval is indeed contained within the CAR.
(Dkt. No. 17, Attach. 1, at 32.) Because Defendants do not deny the fact asserted or cite any
contrary evidence, this fact is deemed to be admitted.
5
those who “encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to
enter the United States.”6
10. The U.S. Embassy did not provide any basis or records for this visa denial.7
11. On November 29, 2022, Plaintiff ScotlandShop filed a Form I-129 Petition for
Non-Immigrant Worker with Defendant USCIS seeking “L-1A manager or executive”
classification for Plaintiff White.8
12. Plaintiff White sought to apply for this visa pursuant to her executive role and
based on her “executive capacity” as defined in the INA.9
13. On December 8, 2022, Defendant USCIS issued a Request for Evidence (“RFE”)
to Plaintiffs.
6 This asserted fact is deemed admitted for essentially the same reason discussed above in
Note 5 of this Decision and Order. The Court notes that a copy of a letter indicating this denial
is contained within the CAR. (Dkt. No. 17, Attach. 1, at 28.)
7 This asserted fact is deemed admitted for essentially the same reason discussed above in
Note 5 of this Decision and Order. Further, although Plaintiffs do not include a citation to the
CAR in support of this fact, it appears supported by the same letter they relied upon to support
the assertion in Statement of Fact Number 9 above.
8 Defendants dispute this asserted fact, stating that the relevant evidence shows that
Plaintiffs checked the “L-1A manager or executive box” as opposed to Plaintiffs’ assertion that
she was specifically seeking classification in an executive role. (Dkt. No. 22, Attach. 2, at ¶ 14.)
The Court agrees that nothing in the cited petition clearly shows that Plaintiff White was seeking
a visa specifically as an executive (as opposed to as a manager). The Court has therefore altered
the above-asserted fact to reflect the record evidence.
9 Defendants dispute this asserted fact, but the evidence cited by Plaintiffs – specifically a
letter from her legal counsel appended to her petition – contains statements supporting a finding
that Plaintiff White was seeking to be considered in relation to her executive role; indeed, the
executive nature of her role is emphasized multiple times in this letter. (Dkt. No. 17, Attach. 1,
at 28-30.) In the absence of evidence to the contrary, this fact is deemed admitted.
6
14. The RFE contained the following statement: “The record does not demonstrate
that the beneficiary’s intended U.S. employment meets all four criteria defined in the definition
of managerial capacity.”
15. The RFE contained the following statement: “USCIS is unable to ascertain
whether the beneficiary will work primarily in a managerial position.”
16. On February 24, 2023, Plaintiffs responded to the RFE and provided more than
300 additional documents.
17. On March 9, 2023, Defendant USCIS formally denied Plaintiffs’ request for L-1A
Intracompany Transferee classification.10
2. Defendants’ Statement of Undisputed Material Facts
1. On March 9, 2023, Defendant USCIS issued its decision denying Plaintiff
ScotlandShop’s L-1A petition seeking to classify Plaintiff White as an intracompany transferee.
2. The Government filed the CAR, consisting of 562 pages, on September 26, 2023.
C. USCIS’ Decision
In its decision of March 9, 2023, USCIS considered (a) Plaintiff White’s functions in her
position abroad, (b) Plaintiff White’s functions to be performed in the United States, and (c) her
approval on a prior petition. (Dkt. No. 17, Attach. 4, at 89-97.) As to Plaintiff White’s functions
in her position abroad, USCIS found that Plaintiffs’ submission of evidence was deficient even
after responding to the RFE, stating that (a) the fact that Plaintiff White holds a senior position
10 The Court agrees with Defendants that the cited portion of the CAR does not support, as
an undisputed matter of fact, that the reason for the denial of Plaintiffs’ petition was specifically
because that petition was assessed “in relation to ‘managerial capacity.’” (Dkt. No. 22, Attach.
2, at ¶ 21.)
7
“does not necessarily establish eligibility for classification as an intracompany transferee in an
executive capacity,” (b) she may possess discretionary authority and decision-making, but the
position descriptions provided were “insufficient to establish that her actual duties are primarily
executive in nature,” (c) although she has the title of Managing Director, “the evidence furnished
does not establish that [her] actual duties performed are primarily executive in nature,” (d) the
duties she listed in response to the RFE were “general, repetitive, and appear to simply
paraphrase the statutory definition of executive capacity” and do not establish that Plaintiff
White spent the “primary portion of her time directing management,” such that “USCIS is unable
to determine whether the beneficiary’s subordinates qualify as management and that they relieve
the beneficiary from conducting routine day-to-day job duties.” (Id. at 92.) USCIS concluded
that, “based on the totality of the evidence, it appears that [Plaintiff White] is primarily
performing routine tasks associated with the operations of her company and will not be relieved
from performing non-qualifying job duties,” and, as a result, she had not established that she had
been employed abroad in a position that was executive. (Id.)
As to Plaintiff White’s functions to be performed in the United States, USCIS found that
Plaintiffs’ submission of evidence was deficient even after responding to the RFE, stating that (a)
the evidence provided did not demonstrate executive capacity because participation in meetings
(without appropriate details) and hiring/recruiting are not primarily executive duties, (b) the
organizational chart submitted for the U.S. location showed two employees, both of whom are
listed with managerial titles, but no subordinate employees and no evidence indicating any non-
managerial employees who would be performing the non-qualifying, operational, and
administrative duties of that location, (c) there is no evidence to show that any other employees
8
would relieve either Plaintiff White or the apparent management employees from involvement in
operational functions, and merely placing herself at the top of the chart is insufficient to show
that she would be directing the management of that location, and (d) given the small number of
employees at the U.S. location, “it is likely that [Plaintiff White] would have to compensate for
those staffing deficiencies in order to meet the company’s immediate operational needs.” (Id. at
95-96.) USCIS therefore concluded that Plaintiffs had not established that Plaintiff White would
be employed primarily in a managerial or executive capacity in the United States. (Id. at 96.)
USCIS additionally found that Plaintiffs’ petition was requesting new employment and
consulate notification and was not an extension request of a previous petition, and therefore was
a separate proceeding. (Id. at 96.) It recognized also that the prior petition had been a “New
Office” petition, and that, even if it construed Plaintiffs’ new petition as requesting an extension
of the previously granted petition, “the eligibility requirements for an initial ‘New Office’ filing
is [sic] not the same as a ‘New Office’ extension,” and “[a]s such, this still would be considered
a material change in circumstances and deference is not applicable.” (Id.)
D. Parties’ Briefing on the Motions for Summary Judgment
1. Plaintiffs’ Memorandum of Law
Generally, in support of their motion for summary judgment, Plaintiffs assert two
arguments. (Dkt. No. 21, Attach. 3.) First, Plaintiffs argue that Defendant USCIS’ decision
denying her petition was arbitrary and capricious, because (a) it assessed Plaintiff White’s role
under a “managerial capacity” framework as opposed to an “executive capacity” framework, and
(b) had it properly considered her role under the executive capacity framework, it would have
found that her petition should have been granted. (Id. at 11-18.) Relatedly, Plaintiffs argue that
9
Defendant USCIS erred when assessing the managerial function of employees at Plaintiff
ScotlandShop’s location in the United States, because it applied requirements that are not
imposed by the relevant statutes. (Id. at 16-18.)
Second, Plaintiffs argue that Defendant USCIS’ decision was arbitrary and capricious,
because it failed to give any deference to a prior determination approving a L-1A “New Office”
petition on behalf of Plaintiff White. (Id. at 19-25.) More specifically, Plaintiffs argue that
Defendant USCIS has not provided a sufficient explanation regarding any change in
circumstances that justifies its choice to not afford deference to that prior determination, and it
failed to provide Plaintiff White with a reasonable opportunity to respond to any new material or
derogatory information. (Id.) Plaintiffs further argue that, if Defendant USCIS believed a
material change in circumstances had occurred since Plaintiff White’s original petition, it should
have sought to revoke its approval of that petition. (Id. at 22-25.)
2. Defendants’ Opposition Memorandum of Law and Cross-Motion
Generally, in their opposition memorandum of law and cross-motion for summary
judgment, Defendants make four arguments. (Dkt. No. 22, Attach. 1.) First, Defendants argue
that the relevant determination was not arbitrary or capricious, because Defendant USCIS
correctly found that Plaintiff White’s position in Scotland and prospective position in the United
States are not primarily executive in that it found that her description of her duties was too
general and that the evidence presented suggests that she was and would be performing routine
operational tasks. (Id. at 10-15.) Defendants further argue that Defendant USCIS properly
considered the size of Plaintiff ScotlandShop’s operations in the United States, because one of
the relevant considerations is whether the organization’s operations are substantial enough to
10
support a manager, and Defendant USCIS concluded that Plaintiff ScotlandShop’s two United
States-based employees were insufficient to reasonably show that Plaintiff White would not be
performing significant non-executive duties as part of her prospective work at that location. (Id.
at 14-15.)
Second, Defendants argue that Defendant USCIS complied with its own policies when
choosing not to defer to the approval on the prior petition, because (a) the policy upon which
Plaintiffs rely applies to extensions of petitions, not new petitions, and Plaintiffs here filed a new
petition, (b) Defendant USCIS specifically found that, even if the new petition was treated as an
extension, the eligibility requirements between the two petitions were not the same and therefore
there were material changes in circumstances, (c) Defendant USCIS did acknowledge the prior
approval and found that such prior approval was not appropriate, (d) Plaintiffs’ arguments about
new information and unknown derogatory information are red herrings, because Plaintiffs were
already aware of the existence of the prior approval and the reasons why the U.S. Department of
State refused to issue her a visa on that prior approval, and (e) there is nothing to support
Plaintiffs’ speculative assertion that Defendant USCIS used that prior Department of State denial
as a pretext for denying her more recent petition. (Id. at 15-18.) Defendants further argue that
the fact that the prior approval was not revoked makes no difference here because, as Plaintiffs
acknowledge, the visa period that would have been covered by that petition was set to expire
soon after Plaintiffs filed the current petition, and, in any event, Plaintiffs withdrew their prior
application and therefore there was no determination to afford deference. (Id. at 18-20.)
Defendants also argue that Defendant USCIS was not required to provide an explanation for why
11
it reached a different result on the current petition and that it remained Plaintiffs’ burden to prove
entitlement to a visa. (Id. at 20.)
Third, Defendants argue that Defendant USCIS properly applied the statutory and
regulatory provisions when assessing Plaintiffs’ petition. (Id. at 20-22.) More specifically,
Defendants argue that (a) Plaintiffs’ petition does not seek approval only upon the basis of
executive capacity, but also contains references to managerial capacity and therefore any
assessment of whether Plaintiff White was a manager was not inappropriate, and (b) contrary to
Plaintiffs’ argument, Defendant USCIS did consider Plaintiff White’s status explicitly under an
executive capacity, not only under a managerial capacity. (Id.)
Fourth, Defendants argue that Defendant USCIS did not rely on the Department of
State’s finding of inadmissibility as a basis for denying the current petition, and Plaintiffs have
offered no evidence to support that speculative assertion. (Id. at 22-23.)
3. Plaintiffs’ Combined Reply / Opposition Memorandum of Law
Generally, in their combined reply / opposition memorandum of law, Plaintiffs argue that
Defendant USCIS’ determination was arbitrary and capricious, because it ignored evidence
presented that substantiated that Plaintiff White’s duties were in an executive capacity as
required for approval of her petition, noting that the determination discusses only a selective
portion of the evidence and fails to properly consider the evidence as a whole. (Dkt. No. 25, at
1-12.)
4. Defendants’ Reply Memorandum of Law
Generally, in reply to Plaintiffs’ opposition memorandum of law, Defendants make two
arguments. (Dkt. No. 27.) First, Defendants argue that Plaintiffs’ arguments amount to little
12
more than a request that this Court substitute its judgment and interpretation of the record for that
of Defendant USCIS, which is not the proper role of the Court. (Id. at 2.)
Second, Defendants argue that Defendant USCIS’ determination regarding whether
Plaintiff White properly showed sufficient work in an executive capacity is reasonable and that
the Court cannot infer that Defendant USCIS ignored or failed to consider evidence merely
because it did not specifically discuss that evidence in the determination. (Id. at 2-6.)
II. RELEVANT LEGAL STANDARDS
A. Legal Standard Governing a Motion for Summary Judgment
Under Fed. R. Civ. P. 56, summary judgment is warranted if “the movant shows that
there is no genuine dispute as to any material fact and that the movant is entitled to a judgment as
a matter of law.” Fed. R. Civ. P. 56(a). A dispute of fact is “genuine” if “the [record] evidence
is such that a reasonable jury could return a verdict for the [non-movant].” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).11 As for the materiality requirement, a dispute of fact is
"material" if it "might affect the outcome of the suit under the governing law . . . . Factual
disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248.
In determining whether a genuine issue of material fact exists, the Court must resolve all
ambiguities and draw all reasonable inferences against the movant. Anderson, 477 U.S. at 255.
In addition, “[the movant] bears the initial responsibility of informing the district court of the
11 As a result, “[c]onclusory allegations, conjecture and speculation . . . are insufficient to
create a genuine issue of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) [citation
omitted]. As the Supreme Court has explained, “[The non-movant] 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, 585-86 (1986).
13
basis for its motion, and identifying those portions of the . . . [record] which it believes
demonstrate[s] the absence of any genuine issue of material fact.” Celotex v. Catrett, 477 U.S.
317, 323-24 (1986). However, when the movant has met its initial burden, the non-movant must
come forward with specific facts showing a genuine issue of material fact for trial. Fed. R. Civ.
P. 56(a), (c), (e).12
Implied in the above-stated burden-shifting standard is the fact that, where a non-movant
willfully fails to respond to a motion for summary judgment, a district court has no duty to
perform an independent review of the record to find proof of a factual dispute.
Of course, when a non-movant willfully fails to respond to a motion for summary
judgment, “[t]he fact that there has been no [such] response . . . does not . . . [by itself] mean that
the motion is to be granted automatically.” Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).
Rather, as indicated above, the Court must assure itself that, based on the undisputed material
facts, the law indeed warrants judgment for the movant. Champion, 76 F.3d at 486; Allen v.
Comprehensive Analytical Group, Inc., 140 F. Supp.2d 229, 232 (N.D.N.Y. 2001) (Scullin, C.J.);
N.D.N.Y. L.R. 7.1(b)(3). What the non-movant's failure to respond to the motion does is lighten
the movant's burden.
For these reasons, this Court has often enforced Local Rule 56.1 by deeming facts set
forth in a movant's statement of material facts to be admitted, where (1) those facts are supported
by evidence in the record, and (2) the non-movant has willfully failed to properly respond to that
12 Among other things, Local Rule 7.1(a)(3) requires that the non-movant file a response to
the movant's Statement of Material Facts, which admits or denies each of the movant's factual
assertions in matching number paragraphs, and supports any denials with a specific citation to
the record where the factual issue arises. N.D.N.Y. L. R. 7.1(a)(3).
14
statement.13
Similarly, in this District, where a non-movant has willfully failed to respond to a
movant’s properly filed and facially meritorious memorandum of law, the non-movant is deemed
to have “consented” to the legal arguments contained in that memorandum of law under Local
Rule 7.1(a)(3).14 Stated another way, when a non-movant fails to oppose a legal argument
asserted by a movant, the movant may succeed on the argument by showing that the argument
possess facial merit, which has appropriately been characterized as a “modest” burden. See
N.D.N.Y. L.R. 7.1(a)(3) (“Where a properly filed motion is unopposed and the Court determined
that the moving party has met its burden to demonstrate entitlement to the relief requested
therein . . . .”); Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n.1 (N.D.N.Y. Oct.
30, 2009) (Suddaby, J.) (collecting cases); Este-Green v. Astrue, 09-CV-0722, 2009 WL
2473509, at *2 & n.3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting cases).
B. Legal Standard Governing Review of an Agency Decision Under
the Administrative Procedure Act
13 Among other things, Local Rule 56.1(b) requires that the non-movant file a response to
the movant's Statement of Material Facts, which admits or denies each of the movant's factual
assertions in matching numbered paragraphs, and supports any denials with a specific citation to
the record where the factual issue arises. N.D.N.Y. L. R. 56.1(b).
14 See, e.g., Beers v. GMC, 97-CV-0482, 1999 U.S. Dist. LEXIS 12285, at *27-31
(N.D.N.Y. March 17, 1999) (McCurn, J.) (deeming plaintiff’s failure, in his opposition papers, to
oppose several arguments by defendants in their motion for summary judgment as consent by
plaintiff to the granting of summary judgment for defendants with regard to the claims that the
arguments regarded, under Local Rule 7.1[b][3]; Devito v. Smithkline Beecham Corp., 02-CV-
0745, 2004 WL 3691343, at *3 (N.D.N.Y. Nov. 29, 2004) (McCurn, J.) (deeming plaintiff’s
failure to respond to “aspect” of defendant’s motion to exclude expert testimony as “a concession
by plaintiff that the court should exclude [the expert’s] testimony” on that ground).
15
“When a party challenges agency action under the APA, the district court acts as an
‘appellate tribunal’ and the case on review presents ‘a question of law.’” Rosati v. Mayorkas,
691 F. Supp. 3d 597, 602 (N.D.N.Y. 2023) (Hurd, J.). “[R]eview of agency actions under the
Administrative Procedure Act is ‘narrow and deferential.’” Am. Cruise Lines v. United States,
96 F.4th 283, 286 (2d Cir. 2024) (quoting Kakar v. U.S. Citizenship & Immigr. Servs., 29 F.4th
129, 132 [2d Cir. 2022]). That review is “‘limited to examining the administrative record to
determine whether the agency decision was based on a consideration of the relevant factors and
whether there has been a clear error of judgment.’” Kakar, 29 F.4th at 132 (quoting Nat. Res.
Def. Council, Inc. v. Muszynski, 268 F.3d 91, 97 [2d Cir. 2001]). “Thus, [u]nder the APA, we
may set aside an agency action that is arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with the law.’” Kakar, 29 F.4th at 132 (quoting Alzokari v. Pompeo, 973 F.3d
65, 70 [2d Cir. 2020]). “An agency’s decision is arbitrary and capricious only if ‘the agency has
relied on factors which Congress has not intended it to consider, entirely failed to consider an
important aspect of the problem, offered an explanation for its decision that runs counter to the
evidence before the agency, or is so implausible that it could not be ascribed to a difference in
view or the product of agency expertise.’” Am. Cruise Lines v. United States, 96 F.4th at 286;
see also Ohio v. Env’t Prot. Agency, 603 U.S. –– , 144 S.Ct. 2040, 2053 (2024) (“An agency
action qualifies as ‘arbitrary’ or ‘capricious’ if it is not ‘reasonable and reasonably explained.’”)
(quoting FCC v. Prometheus Radio Project, 592 U.S. 414, 423 [2021]).
In reviewing an administrative decision, “‘[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.’” Nwankwere v. Jaddou, 22-CV-1212, 2023 WL
16
5835785, at *6 (E.D. Ca Sept. 8, 2023) (quoting United States Citrus Sci. Council v. United
States Dep’t of Agric., 312 F. Supp. 3d 884, 894 [E.D. Cal. 2018]). However, “a court may not
‘substitute its judgment for that of the agency,’” but “must ensure, among other things, that the
agency has offered ‘a satisfactory explanation for its action[,] including a rational connection
between the facts found and the choice made.’” Ohio v. Env’t Prot. Agency, 144 S.Ct at 2053
(quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513 [2009]; Motor Vehicle Mfrs.
Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43 [1983]).
III. ANALYSIS
After carefully considering whether Defendant USCIS’ decision was arbitrary or
capricious, the Court answers this question in the negative for the reasons stated in Defendants’
memoranda of law. See, supra Parts I.D.2 and 4 of this Decision and Order. To those reasons,
the Court adds the following four points.
First, Plaintiffs’ argument that Defendant USCIS assessed Plaintiff White’s petition
under the criteria for managerial capacity as opposed to executive capacity is simply untenable.
As was discussed above in Part I.C of this Decision and Order, Defendant USCIS’ decision
clearly indicates that Plaintiffs’ RFE response–and ultimately her petition–was deficient because
they had not shown that Plaintiff White met the criteria under either a managerial or executive
capacity, and its analysis plainly focuses most heavily on their having failed to show that she met
the criteria related to executive capacity. (Dkt. No. 17, Attach. 4, at 89-96.) Specifically, USCIS
discussed Plaintiff White’s duties both abroad and as she would function in the United States and
explained why it believed the evidence submitted did not sufficiently show that her duties were
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primarily executive in nature or that she spent the primary portion of her time directing
management. (Id.)
In fact, Plaintiffs’ argument ignores much of Defendant USCIS’ final decision, arguing
that Defendant USCIS erred because the RFE referenced a need for Plaintiffs to demonstrate that
Plaintiff White was acting in a managerial capacity, and citing portions of the final decision in
which Defendant USCIS discussed or quoted the RFE. (Dkt. No. 21, Attach. 3, at 13-14.)
Although it is true that Defendant USCIS referenced managerial capacity at certain places in the
final decision, those references do not change the fact that Defendant USCIS nonetheless clearly
considered Plaintiffs’ petition under the executive capacity when rendering the final decision.
Plaintiffs’ argument that Defendant USCIS failed to evaluate the petition according to the
appropriate capacity is therefore rejected.
Second, Plaintiffs argue that Defendants acted in an arbitrary and capricious manner in
that they inappropriately failed to consider the size and circumstances of Plaintiff ScotlandShop
by essentially requiring, against their own regulations, another level of employees below the
managers at its United States retail location. (Dkt. No. 21, Attach. 3, at 17-18.) As an initial
matter, the size of the organization was not the only reason Defendant USCIS found Plaintiffs’
application evidence to be insufficient; it also noted that evidence that Plaintiff White would
participate in meetings did not explain what duties were involved in attending those meetings,
and that participating in hiring and recruiting employees is a human resource responsibility
rather than an executive function. (Dkt. No. 17, Attach. 4, at 95.) Defendant USCIS does rely
also on the fact that, at the time the application was filed, the United States branch had only two
employees, both of whom were listed as “managers” with no subordinate staff; but it also notes
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that the fact that both of those employees are “managers” left it unclear who would be
performing operational and administrative duties given the fact that there were no apparent non-
managerial employees to perform those tasks. (Id.) Defendant USCIS therefore found that,
because of this uncertainty and the small number of staff, it was “likely that [Plaintiff White]
would have to compensate for those staffing deficiencies in order to meet the company’s
immediate operational needs.” (Id. at 95-96.) The decision therefore makes clear that it was not
merely the size of the United States branch that formed the basis of Defendant USCIS’
conclusion, but rather the lack of evidence substantiating who would be performing the
operational and administrative work at the branch.
Plaintiffs does not indicate what evidence in the CAR would require a different
conclusion, but rather relies on the fact that Plaintiff White is “founder and Managing Director”
of ScotlandShop, and on the assertion that she “spends most of her time performing executive
tasks”; yet these arguments do not show that USCIS’ decision was arbitrary and capricious.
Plaintiffs admit that Plaintiff White “necessarily performs some non-executive tasks” due to “the
small size of ScotlandShop, which only opened its U.S. subsidiary in 2021.” (Dkt. No. 21,
Attach. 3, at 18.) Plaintiffs assert that these are only a “very small percentage of her work,” but
she has not cited any evidence from the CAR that would suggest Defendant USCIS’ finding to
the contrary is unreasonable. To the extent Plaintiffs argue that Plaintiff White was involved in
creating and executing incorporation documents, tax registration materials, sales contracts, and
other such documents, that fact might show that she has executive powers, but it does not show
that her day-to-day duties at the United States location would be primarily executive in nature, as
she has cited no evidence in the CAR that she would engage in such tasks on a regular basis.
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Moreover, Plaintiffs’ arguments regarding whether the managerial employees at the
United States branch should be considered “functional managers” despite having no subordinates
is beside the point. Defendant USCIS did not rely on the fact that those employees did not have
any subordinates in the abstract or find that subordinate employees are required, but rather
determined that the lack of lower-level employees raised the question of who was performing the
operational and administrative duties required to complete the day-to-day work of the branch.
There was nothing unreasonable in Defendant USCIS pointing to the fact that the evidence did
not adequately establish whether those functions would be taken care of without Plaintiff
White’s involvement when determining whether there was a likelihood that Plaintiff White’s
duties at the branch might not be primarily executive or managerial in nature. See DuMarc Am.,
Inc. v. Cuccinelli, 20-CV-0007, 2021 WL 168931, at *5 (D.D.C. Jan. 4, 2021) (upholding
USCIS’ finding that plaintiff was not an executive or manager where she had failed to submit
evidence related to subordinate employees that would show that the organization has “a
functioning operational staff to relieve [the applicant] of ‘day-to-day duties,’” and that such
analysis was proper under the statutory and regulatory framework); see also Q Data Consulting,
Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003) (upholding INS denial of L-1A petition where
it could “reasonably infer that many of the office’s [non-executive or non-managerial]
responsibilities would gravitate towards [the applicant]” where there was no evidence of
sufficient subordinate staff to relieve the applicant from performing non-qualifying duties).
Defendant USCIS therefore did not rely on the size of the branch in the way Plaintiffs argue, but
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rather on what the evidence failed to establish related to the day-to-day operations of the
branch.15
Third, Plaintiffs’ argument that Defendant USCIS ignored or failed to consider relevant
evidence is unfounded. The fact that Defendant USCIS may not have specifically addressed
certain evidence in its decision does not mean that it failed to consider that evidence. An agency
adjudicator need not discuss every piece of evidence in order to show that it considered such
evidence. See Mestanek v. Jaddou, 93 F.4th 164, 174 (4th Cir. 2024) (“But we decline to impose
on the agency a requirement to discuss every piece of evidence it receives, . . . especially when it
is clear from the decision that USCIS did address the rebuttal evidence.”); D.W. v. Raufer, 839 F.
App’x 723, 727 (3rd Cir. 2020) (noting that USCIC “is not required to ‘discuss every piece of
evidence mentioned by an asylum applicant’”) (quoting Green v. Att’y Gen. of U.S., 604 F.3d
503, 509 [3rd Cir. 2012]); Diamond Miami Corp. v. U.S.C.I.S., 18-CV-24411, 2019 WL
4954807, at *2 (S.D. Fl Oct. 8, 2019) (“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.’”) (quoting Xunbing Liu v. U.S. Att’y Gen., 440 F. App’x 718, 719 [11th Cir. 2011]).
There is no reason to believe from the written decision that Defendant USCIS failed to consider
15 The Court notes that, in documentation related to the submission of evidence in response
to the RFE, Plaintiffs indicated that, as to the updated organizational charts, “the U.S.
organizational chart only includes manager-level employees. Retail staff are not included on the
chart, but are included in all payroll-related documentation.” (Dkt. No. 17, Attach. 4, at 53.)
The submitted payroll information shows that, although other individuals did work at the New
York branch in 2022 besides those listed on the organizational chart, the only two employees
who worked there beyond July 2022 were Tara Griffin and Maria Snow. (Dkt. No. 17, Attach. 1,
at 59; Dkt. No. 17, Attach. 2, at 100, 102, 104, 108, 112-57.) As noted above in the Statement of
Undisputed Material Facts, Plaintiffs’ relevant petition was filed on November 29, 2022. As a
result, there is no evidence in the CAR that there were any employees working at the New York
branch other than Tara Griffin and Maria Snow as of the date Plaintiffs filed the petition.
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the relevant evidence. The decision notes that Plaintiffs’ submission of evidence in response to
the RFE included “[d]ocuments regarding the staffing” and “[d]ocuments pertaining to the U.S.
company’s personnel and payroll,” which would appear to encompass evidence such as resumes
of employees that Plaintiffs assert was ignored. (Dkt. No. 17, Attach. 4, at 92.) Moreover, to the
extent that Plaintiffs argue that the evidence Defendant USCIS allegedly ignored would have
resulted in a different finding, the Court, after reviewing the record, finds that Defendant USCIS’
conclusions related to the nature of Plaintiff’s job duties in the United Kingdom were reasonable
and therefore must be upheld. Although Plaintiffs might disagree with Defendant USCIS’
assessment that Plaintiff White’s duties are not sufficiently “executive” in nature, where the
agency’s finding is reasonable, it is not the role of the Court to reweigh the evidence to reach a
contrary conclusion.
Moreover, as was discussed above, Defendant USCIS did not err in its assessment of
Plaintiff White’s projected duties at the United States location. Therefore, even if the Court were
to find that Defendant USCIS acted in an arbitrary and capricious manner in finding her United
Kingdom-based duties to not be executive in nature, Plaintiffs were still required to also show
that her United States-based duties were going to be executive in nature. Plaintiffs appear to
imply that the fact that she works in an executive capacity in the United Kingdom is sufficient
because both that branch and the United States branch are part of the same “organization,” of
which she is the head. (Dkt. No. 25, at 10-11.) However, 8 C.F.R. § 214.2(l)(1)(ii)(A) states that
an intracompany transferee is an individual who “has been employed abroad continuously for
one year by a firm or corporation or other legal entity or parent, branch, affiliate, or subsidiary
thereof, and who seeks to enter the United States temporarily in order to render his or her
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services to a branch of the same employer or a parent, affiliate, or subsidiary thereof in a
capacity that is managerial, executive, or involves special knowledge.” 8 C.F.R. §
214.2(l)(1)(ii)(A) (emphasis added); see also 8 C.F.R. § 214.2(l)(3) (indicating that the petitioner
must include evidence that their year of prior employment abroad was, as relevant, in a
managerial or executive capacity, as well as that the employment in the United States will be in a
managerial or executive capacity). The plain meaning of this regulation therefore indicates that
the services rendered to the branch located in the United States must be in a managerial or
executive capacity. Thus, the nature of Plaintiff White’s expected duties specifically for the
United States branch must themselves be sufficiently executive or managerial in order to qualify
under the L-1A Intracompany Transferee standard. Therefore, even if the Court were to find that
Defendant USCIS erred in its consideration of Plaintiff White’s duties toward the United
Kingdom branch (which it does not), the fact that Plaintiffs have not shown error in the
assessment of her prospective duties for the United States branch would still merit upholding
Defendant USCIS’ ultimate decision to deny the petition.
Fourth, Plaintiffs argue that Defendants arbitrarily and capriciously failed to afford
deference to its approval of her prior L-1A “New Office” petition, used her visa denial as a
pretext for denial of her new petition, and failed to provide a cogent explanation as to what
“change in material circumstances” caused her to no longer meet the eligibility criteria or an
opportunity to respond to any new material information informing that decision. (Dkt. No. 21,
Attach. 3, at 19-21.) In its decision, Defendant USCIS noted that it “will generally defer to its
prior determination of eligibility” when adjudicating a subsequent petition or application, but
concluded that no such deference was warranted because Plaintiffs’ petition was “a separate
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proceeding and not considered a prior determination” given that it was “requesting new
employment and consulate notification [and] as such [] is not an adjudicating extension request.”
(Dkt. No. 17, Attach. 4, at 96.) Defendant USCIS therefore explicitly indicated that it found that
the decision on the prior petition did not constitute a “prior determination” and therefore was not
entitled to deference.
The policy upon which Plaintiffs’ argument relies, which is found in the USCIS Policy
Manual, Volume 2, Chapter 4, explicitly applies to extensions. (Dkt. No. 17, Attach. 3.) Indeed,
the specific section that Plaintiffs cite (as the basis for their argument that not only was deference
warranted, but also that certain opportunities to respond were required if deference was not
afforded) is entitled “Extension of Petition Validity,” and discusses affording deference to a prior
approval in the context of “[a] request for an extension of petition validity,” which “follows a
previous finding of eligibility for the classification.” (Id. at 1-2.) Because, as Defendant USCIS
correctly found, Plaintiff’s relevant petition was not a request for extension on her New Office
petition that had previously been granted, but rather a new and separate L-1A petition for an
Intracompany Transferee, this policy does not apply in this situation. As a result, Defendant
USCIS had no responsibility to afford deference to the previous New Office approval under this
policy, or to provide the articulation of reasons or opportunity to respond that the policy requires.
Similarly, Plaintiffs’ arguments regarding an alleged failure to afford her with an
opportunity to respond to derogatory information related to a “material change in circumstances”
also fail for multiple reasons. Most prominently, this citation to a change in circumstances
occurred in the context of an alternative finding in which Defendant USCIS assumed that
Plaintiffs’ petition was an extension request on the prior New Office petition, which, as already
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discussed, is entirely hypothetical because Defendant USCIS had already found that this petition
was not an extension request of the prior approved petition. Moreover, the “material change in
circumstances” referenced is not any derogatory information, but rather, according to Defendant
USCIS, the fact that “the eligibility requirements for an initial ‘New Office’ filing is [sic] not the
same as a ‘New Office’ extension.” (Dkt. No. 17, Attach. 4, at 96.) Defendant USCIS therefore
clearly found that, even under this hypothetical alternative situation, deference would not be
warranted because an extension request would have been subject to different eligibility
requirements than the initial “New Office” petition was, a legal finding that is supported by the
case law Defendants cite in their response memorandum of law. (Dkt. No. 22, Attach. 1, at 17-
18.) There is no apparent legal error or arbitrary and capricious action in Defendant USCIS’
choice not to afford deference to the finding on the prior New Office petition.
Finally, Plaintiffs have not cited any evidence in the CAR or otherwise to support their
assertion that Defendant USCIS relied even in part on the State Department’s finding of
inadmissibility related to the previous application. The fact that Defendant USCIS mentioned
“your statement of the Embassy’s refusal to issue a visa” does not lead to any inference of an
improper reliance on the fact of that visa denial. As discussed earlier, Defendant USCIS
provided reasons supported by the CAR, and its explanations for its determination indicate its
conclusion was not arbitrary or capricious.16
16 To the extent that Plaintiffs argue error in the fact that Defendant USCIS did not revoke
the approval on the prior petition, Defendants are correct that this fact makes no difference,
because the prior petition was expired by the time of Defendant USCIS’ determination, and the
CAR shows that Plaintiffs, through a letter by ScotlandShop’s Operations Manager, Katie
Bidwell, withdrew that prior petition. (Dkt. No. 17, Attach. 1, at 34 [“Accordingly, this also
serves as the withdrawal of Ms. White’s prior petition.”].)
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ACCORDINGLY, it is
ORDERED that Plaintiffs’ motion for summary judgment (Dkt. No. 21) is DENIED;
and it is further
ORDERED that Defendants’ cross-motion for summary judgment (Dkt. No. 22) is
GRANTED; and it is further
ORDERED that Plaintiffs’ Complaint (Dkt. No. 1) is DISMISSED.
Dated: December 17, 2024
Syracuse, New York
U.S. District Judge
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