Herrera v. US. Citizenship and Immigration

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TRICIA HERRERA; and JUGENDSTIL, 

INC.,

Plaintiffs-Appellants,

v. No. 08-55493

U.S. CITIZENSHIP AND IMMIGRATION  D.C. No.

CV-00871-SGL-RZ

SERVICES; and ROBERT WIEMANN,

Director, Administrative Appeals OPINION

Office, U.S. Citizenship and

Immigration Services,

Defendants-Appellees.



Appeal from the United States District Court

for the Central District of California

Stephen G. Larson, District Judge, Presiding

Argued and Submitted

May 4, 2009—Pasadena, California

Filed July 6, 2009

Before: John T. Noonan, Diarmuid F. O’Scannlain, and

Susan P. Graber, Circuit Judges.

Opinion by Judge Graber

8209

HERRERA v. U.S. CITIZENSHIP AND IMMIGRATION 8211

COUNSEL

John B. Bartos and Charles M. Miller, The Miller Law

Offices, Studio City, California, for the plaintiffs-appellants.

8212 HERRERA v. U.S. CITIZENSHIP AND IMMIGRATION

Sherease Pratt, Office of Immigration Litigation, United

States Department of Justice, Washington, D.C., for the

defendants-appellees.

OPINION

GRABER, Circuit Judge:

The United States Citizenship and Immigration Services

(“agency”) may revoke its previous approval of a visa petition

“at any time” for “good and sufficient cause.” 8 U.S.C.

§ 1155. We must determine whether the enactment of 8

U.S.C. § 1154(j) altered the agency’s revocation authority.

We hold that it did not. Because the agency’s decision is oth-

erwise free of legal error and supported by substantial evi-

dence, we affirm the district court’s grant of summary

judgment to Defendants.

FACTUAL AND PROCEDURAL HISTORY

Plaintiff Tricia Herrera is a citizen of the Philippines. In

March 1994, she began working in the Philippines as the Vice

President of Marketing for a Philippine company, Plaintiff

Jugendstil, Inc. At the time, Jugendstil manufactured furniture

and provided interior design services to clients in various

countries, including the United States. Jugendstil sought to

transfer Herrera to its United States branch office and filed an

I-129 Petition for Nonimmigrant Work in L-1A classification

(“L-1A petition”) on her behalf. An approved L-1A petition

allows an alien who has worked for an international company

abroad to work temporarily in the United States for that same

company (or a legally related entity) “in a capacity that is

managerial [or] executive.” 8 U.S.C. § 1101(a)(15)(L); see

also Brazil Quality Stones, Inc. v. Chertoff, 531 F.3d 1063,

1066 (9th Cir. 2008) (discussing different types of L peti-

tions); see generally 8 U.S.C. § 1184 (statutory provisions

HERRERA v. U.S. CITIZENSHIP AND IMMIGRATION 8213

governing the admission of nonimmigrants); 8 C.F.R.

§ 214.2(l) (regulations governing L petitions). In March 1997,

the agency1 approved Jugendstil’s L-1A petition on behalf of

Herrera, for a period of one year. Herrera moved to the United

States and began working at Jugendstil’s United States branch

office. The agency later approved two extensions of the L-1A

petition: a one-year extension valid through March 10, 1999,

and a two-year extension valid through March 1, 2001. See 8

C.F.R. § 214.2(l)(15) (regulation governing extensions of L

petitions).

In 1999, Jugendstil filed an I-140 Immigrant Petition for

Alien Worker (“I-140 petition”) on Herrera’s behalf, under 8

U.S.C. §§ 1154(a)(1)(F) and 1153(b)(1)(C). Those statutory

provisions allow an employer to file an I-140 petition on

behalf of an alien who, among other things, seeks to work for

the company “in a capacity that is managerial or executive.”

8 U.S.C. § 1153(b)(1)(C); see also 8 U.S.C.

§ 1101(a)(44)(A)-(B) (defining the terms “managerial capaci-

ty” and “executive capacity”). The agency approved the I-140

petition in November 1999.

In February 2000, Herrera filed an I-485 Application to

Adjust Status to Legal Permanent Resident (“I-485 applica-

tion”) under 8 U.S.C. § 1255(a). On April 18, 2001, an officer

at the San Francisco District Office interviewed Herrera

regarding her I-485 application. The interviewing officer took

handwritten notes, which were not provided to Herrera at the

time but eventually were added to the administrative record.

In the interview, Herrera explained that, beginning at some

point in 2000, her employer primarily provided interior design

services and either did not manufacture furniture at all or did

very little furniture manufacturing.2 The interviewer requested

1

At the time, the agency was named the Immigration and Naturalization

Service. See Brazil Quality Stones, 531 F.3d at 1066 & n.2. For ease of

reference, we use “agency” to refer to the present and predecessor entities.

2

Plaintiffs dispute, to some extent, the content of Herrera’s statements

at that interview. But they do not dispute that, at some point in 2000,

Jugendstil shifted its focus to interior design.

8214 HERRERA v. U.S. CITIZENSHIP AND IMMIGRATION

certain documentation from Herrera, which she provided two

months later.

On March 13, 2002, the interviewing officer sent an inter-

nal referral memorandum to the California Service Center

(“CSC”). The memorandum concluded that Herrera’s role in

the company was neither managerial nor executive and rec-

ommended that the CSC revoke its prior approval of the I-140

petition. Because it was an internal memorandum, the agency

did not send Plaintiffs a copy.

On April 1, 2002, Herrera sent a notice to the CSC that she

had left her employer and accepted a new position as market-

ing manager with Bay Area Bumpers, an affiliate of Jugends-

til. Her notice stated that she wished to take advantage of the

recently enacted job-portability provision codified at 8 U.S.C.

§ 1154(j) (“Portability Provision”).

On July 25, 2002, the CSC issued a notice of intent to

revoke its previous approval of Herrera’s I-140 petition, pur-

suant to 8 U.S.C. § 1155 and 8 C.F.R. § 205.2. The statutory

provision states that “[t]he Secretary of Homeland Security

may, at any time, for what he deems to be good and sufficient

cause, revoke the approval of any petition approved by him

under section 1154 of this title.” 8 U.S.C. § 1155. The notice

of intent to revoke explained that Herrera did not meet the

approval requirements for an I-140 petition because, as

revealed by her statements in the 2001 interview, her job

duties were not executive or managerial as required by statute.

In particular, the notice mentioned the small size of Jugendstil

(only seven employees) and the nature of Herrera’s job duties

(which included visits to client sites). The notice afforded

Herrera 30 days to offer evidence and argument in rebuttal.

Herrera responded with a five-page letter from Jugendstil

and copies of Jugendstil’s quarterly wage reports. The CSC

was unpersuaded and, on November 12, 2002, it revoked its

previous approval of the I-140 petition. The revocation notice

HERRERA v. U.S. CITIZENSHIP AND IMMIGRATION 8215

rested on the same reasons stated in the notice of intent to

revoke: the small number of employees and Herrera’s self-

description of her job duties in 2001. The revocation notice

concluded that the evidence “clearly demonstrate[s] that [Her-

rera’s] duties were not and are not managerial or superviso-

ry.”

The next day, the CSC denied Herrera’s I-485 application.

Because Herrera was no longer the beneficiary of an approved

I-140 petition, she did not meet the requirements for approval

of her I-485 application. See 8 C.F.R. § 245.2(a)(2)(i) (listing

the requirements for approval of an I-485 application). Plain-

tiffs do not challenge that downstream decision here; they

challenge only the agency’s revocation of its previous

approval of the I-140 petition.3

Plaintiffs appealed the revocation to the Administrative

Appeals Office (“AAO”). The AAO denied the appeal in a

nine-page, single-spaced, written decision. The AAO con-

cluded that the evidence submitted at the time of the original

petition was insufficient to establish eligibility because of the

small number of employees and because of the AAO’s deter-

mination that Herrera’s primary function was not supervision

of other employees. Additionally, the AAO concluded that the

evidence of her role at the time of the 2001 interview was also

insufficient to establish eligibility for approval of the I-140

petition.

Plaintiffs filed this action in federal district court in 2006,

seeking review of the agency’s action under 5 U.S.C. § 706.

The district court granted summary judgment to Defendants,

and Plaintiffs timely appeal.

3

In December 2002, Bay Area Bumpers filed an I-140 petition on behalf

of Herrera, and Herrera filed a concurrent I-485 application. The agency

denied both, and Plaintiffs do not challenge those denials.

8216 HERRERA v. U.S. CITIZENSHIP AND IMMIGRATION

STANDARDS OF REVIEW

We review de novo the district court’s grant of summary

judgment. Love Korean Church v. Chertoff, 549 F.3d 749,

753-54 (9th Cir. 2008).

We have jurisdiction to review a visa revocation decision

under 8 U.S.C. § 1155, notwithstanding the jurisdiction-

stripping provisions of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996. ANA Int’l Inc. v. Way,

393 F.3d 886, 888-89 (9th Cir. 2004); but see id. at 895 (Tall-

man, J., dissenting) (stating that the majority’s holding is con-

trary to congressional intent and creates an intra- and inter-

circuit conflict); Spencer Enters., Inc. v. United States, 345

F.3d 683, 694-95 (9th Cir. 2003) (Beezer, J., dissenting) (stat-

ing that he would hold that this court lacks jurisdiction over

the agency’s discretionary decision to grant or deny a visa

petition). Because the AAO’s decision was the agency’s final

decision, we review the AAO’s decision. See 5 U.S.C. § 704

(granting judicial review over “final agency action” (emphasis

added)); cf. Aguilera-Montero v. Mukasey, 548 F.3d 1248,

1250 (9th Cir. 2008) (“When the [Board of Immigration

Appeals (‘BIA’)] conducts a de novo review and issues its

own decision, we review the BIA’s decision rather than the

[immigration judge’s].” (alteration and internal quotation

marks omitted)).

Under 5 U.S.C. § 706(2)(A), we may set aside the agency’s

decision only if it is “arbitrary, capricious, an abuse of discre-

tion, or otherwise not in accordance with law.” See Family

Inc. v. US Citizen & Immigration Servs., 469 F.3d 1313,

1315-16 (9th Cir. 2006) (applying this standard to the agen-

cy’s determination that the plaintiff would not be acting in a

managerial capacity); Spencer Enters., 345 F.3d at 693

(applying this standard to the agency’s denial of a visa peti-

tion). “The agency’s factual findings are reviewed for sub-

stantial evidence. We will not disturb the agency’s findings

under this deferential standard unless the evidence presented

HERRERA v. U.S. CITIZENSHIP AND IMMIGRATION 8217

would compel a reasonable finder of fact to reach a contrary

result.”4 Family Inc., 469 F.3d at 1315 (citation and internal

quotation marks omitted).

DISCUSSION

Plaintiffs argue that the agency lacked the authority to

revoke its previous approval of the I-140 petition because

Herrera met the requirements of the Portability Provision and

that, in any event, the agency’s revocation was legally errone-

ous and not supported by substantial evidence. We review the

arguments in turn.

A. The Agency’s Revocation Authority

[1] Before the 2000 enactment of the Portability Provision,

the agency’s revocation authority was clear. “The Secretary of

Homeland Security may, at any time, for what he deems to be

good and sufficient cause, revoke the approval of any petition

approved by him under section 1154 of this title [which

includes an I-140 petition].” 8 U.S.C. § 1155 (emphases

added); see also 8 C.F.R. § 205.2 (implementing regulations).

The statute permits revocation “at any time,” so there plainly

was no time constraint on when the agency could revoke the

approval. The statute also permits revocation only “for what

[the agency] deems to be good and sufficient cause.” We have

held that “[t]he [BIA] has reasonably interpreted this statutory

requirement to be satisfied if ‘the evidence of record at the

time the decision was issued . . . warranted . . . [a] denial’ of

the petition.” Love Korean Church, 549 F.3d at 754 n.3 (ellip-

ses and last alteration in original) (quoting In re Estime, 19 I.

& N. Dec. 450, 452 (B.I.A. 1987)); see also In re Ho, 19 I.

& N. Dec. 582 (B.I.A. 1988) (applying the In re Estime stan-

dard). That is precisely the agency’s reason here.

4

Plaintiffs argue that the district court did not apply the correct standard

of review in this regard. Plaintiffs’ arguments are not relevant, because we

review the district court’s decision de novo.

8218 HERRERA v. U.S. CITIZENSHIP AND IMMIGRATION

[2] Plaintiffs argue that the Portability Provision changes

that analysis. In 2000, Congress recognized that long delays

by the agency in processing I-485 applications were causing

practical difficulties for some applicants. See, e.g., 146 Cong.

Rec. 8437 (2000), also reported at 146 Cong. Rec. S4191-01,

*S4191 (daily ed. May 18, 2000) (“All of us have heard the

horror stories of the long delays in processing naturalization

and immigration applications. What was once a 6-month pro-

cess has now become a 3- to 4-year ordeal.” (statement of

Sen. Feinstein)). One practical problem concerned aliens, like

Herrera, who were working pursuant to an approved I-140

petition. An I-140 petition is filed by the employer, not by the

employee. Before Congress enacted the Portability Provision,

a beneficiary employee of an I-140 petition could not change

jobs and still receive the benefit of the I-140 petition. As the

title of the Portability Provision states, Congress granted a

certain amount of “[j]ob flexibility for long delayed appli-

cants”:

Job flexibility for long delayed applicants for

adjustment of status to permanent residence

A petition under subsection (a)(1)(D)[5] of this

section [i.e., an I-140 petition] for an individual

whose application for adjustment of status pursuant

to section 1255 of this title [i.e., an I-485 applica-

5

The correct reference here is to subsection (a)(1)(F), not subsection

(a)(1)(D). The error appears to have been caused by an intervening (and

incomplete) renumbering of some subsections. See Perez-Vargas v. Gon-

zales, 478 F.3d 191, 192 n.2 (4th Cir. 2007) (explaining the source of the

error); see also Sung v. Keisler, 505 F.3d 372, 374 (5th Cir. 2007) (quoting

the statute beginning after the typographical error); Matovski v. Gonzales,

492 F.3d 722, 730 (6th Cir. 2007) (quoting the full statutory text, and pro-

ceeding as if there were no typographical error; that is, that the statute

referred to subsection (a)(1)(F)). The agency does not argue that the Porta-

bility Provision is inapplicable for this reason. Like the Fourth, Fifth, and

Sixth Circuits, we proceed on the basis that the statute refers to subsection

(a)(1)(F).

HERRERA v. U.S. CITIZENSHIP AND IMMIGRATION 8219

tion] has been filed and remained unadjudicated for

180 days or more shall remain valid with respect to

a new job if the individual changes jobs or employ-

ers if the new job is in the same or a similar occupa-

tional classification as the job for which the petition

was filed.

8 U.S.C. § 1154(j).

[3] The effect of the Portability Provision is clear. Whereas

an alien working under an I-140 petition previously could not

change jobs without seeking a new I-140 petition via his or

her new employer, an alien now may change jobs and the

original I-140 petition “shall remain valid with respect to

[the] new job,” subject to certain requirements. Nothing sug-

gests that the Portability Provision altered the agency’s revo-

cation authority.

Plaintiffs disagree. They point out that the agency does not

dispute that Herrera met all the requirements of the Portability

Provision: When she changed jobs (presumably to a qualify-

ing position), her I-485 application had been pending for 180

days.6 Plaintiffs argue that, because the Portability Provision

states that the petition “shall remain valid,” the agency cannot

revoke its previous approval of that petition.

As an initial matter, Plaintiffs’ argument ignores the larger

context of the provision. The Portability Provision states that

6

Three important events occurred in the following order: (1) Herrera

filed her I-485 application; (2) more than 180 days later, she changed jobs

and submitted a letter stating that she believed that she had met the

requirements of the Portability Provision; and (3) the agency issued the

notice of intent to revoke its previous approval of the I-140 petition.

(Internally, the agency began to question its previous approval of the peti-

tion well before Herrera changed jobs, but there is no indication in the

record that Herrera was aware of that fact and, in any event, the agency

did not act formally to revoke its approval of the petition until after Her-

rera changed jobs.)

8220 HERRERA v. U.S. CITIZENSHIP AND IMMIGRATION

the petition “shall remain valid with respect to [the] new job”

(emphasis added), not that the petition shall forevermore

remain valid. More to the point, in order for a petition to “re-

main” valid, it must have been valid from the start. The

agency here held that the petition should not have been

approved; in other words, the petition was not, and had never

been, valid. Plaintiffs assert that, to the contrary, a petition is

“valid” for purposes of the Portability Provision as soon as the

agency approves the petition. We are unpersuaded.

[4] We agree with the division of the AAO that addressed

this issue in In re Applicant [Name Redacted by the AAO],

No. WAC 02 282 54013, 2005 WL 1950775 (A.A.O. Jan. 10,

2005). There, the AAO noted that “[t]he term ‘valid’ is not

defined by the statute, nor does the congressional record pro-

vide any guidance as to its meaning.” Id. The AAO reviewed

various dictionary definitions and “the overall design of the

nation’s immigration laws.” Id. In particular, it noted that

“ ‘[a]ny employer desiring and intending to employ within the

United States an alien entitled to classification under [8

U.S.C. § ] . . . 1153(b)(1)(C) . . . may file a petition with the

Attorney General [now Secretary of Homeland Security] for

such classification.’ ” Id. (second bracketed entry added)

(quoting 8 U.S.C. § 1154(a)(1)(F)). The AAO concluded that,

“to be considered ‘valid’ in harmony with the thrust of the

related provisions and with the statute as a whole, the petition

must have been filed for an alien that is ‘entitled’ to the

requested classification.” Id. The AAO reasoned that,

“[c]onsidering the statute as a whole, it would severely under-

mine the immigration laws of the United States to find that a

petition is ‘valid’ when that petition . . . was approved, if it

was filed on behalf of an alien that was never ‘entitled’ to the

requested visa classification.” Id. (emphasis added). We agree

with the AAO’s cogent analysis.7

7

The agency does not argue that we should give Skidmore deference to

the AAO’s branch office decision, so we accord it no special deference.

HERRERA v. U.S. CITIZENSHIP AND IMMIGRATION 8221

We add that we take Congress’ enactment at face value: It

intended to grant “[j]ob flexibility for long delayed appli-

cants,” 8 U.S.C. § 1154(j) (emphasis added), not to constrain

the agency’s revocation authority. Had Congress intended to

constrain the agency’s revocation authority, it easily could

have expressed that intent clearly. For example, it could have

stated so explicitly in the Portability Provision, or it could

have amended 8 U.S.C. § 1155, which provides that the

agency may revoke its previous approval of a petition “at any

time” for “good and sufficient cause.”

Finally, we add that Plaintiffs’ reading of the Portability

Provision leads to plainly unintended practical consequences.

Congress clearly recognized that long delays were causing

difficulties for certain applicants, and the Portability Provision

afforded job flexibility for those whose I-485 applications had

been pending for 180 days or more. But it is just as clear that

Congress did not intend to grant extra benefits to those who

changed jobs. Under Plaintiffs’ reading, however, just such a

result would occur, for the following reasons.

[5] Consider a person in the same situation as Herrera’s,

except that she did not change jobs while her I-485 applica-

tion was pending. The Portability Provision does not apply,

because she did not change jobs. As discussed above, the

agency can revoke the hypothetical person’s I-140 petition “at

any time.” Under Plaintiffs’ interpretation, however, the

agency could revoke the hypothetical person’s I-140 petition,

but it could not revoke Herrera’s. Nothing in the legislative

history, the statutory text, or common sense suggests that

But see United States v. Mead Corp., 533 U.S. 218, 234 (2001) (giving

Skidmore deference to interpretations contained in agency manuals or

enforcement guidelines); Tablada v. Thomas, 533 F.3d 800, 806 (9th Cir.

2008) (giving Skidmore deference to a Program Statement by the Bureau

of Prisons); Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1014 (9th Cir.

2006) (giving Skidmore deference to unpublished one-member decisions

by the BIA). Nevertheless, we agree with the reasoning in In re Applicant.

8222 HERRERA v. U.S. CITIZENSHIP AND IMMIGRATION

Congress intended applicants to have the ability, simply by

changing jobs, to shield from revocation the agency’s errone-

ous previous approval of an I-140 petition. Yet Plaintiffs’

reading would do just that. Furthermore, under Plaintiffs’

interpretation, an applicant would have a very large incentive

to change jobs, in order to guarantee that the agency’s

approval of an I-140 petition could not be revoked. Congress

could not have intended those results.

Plaintiffs urge us to overlook those reasons in favor of their

interpretation of a 2003 internal agency memorandum written

by the Acting Associate Director for Operations, William R.

Yates (“Yates Memorandum”). Plaintiffs direct us to the fol-

lowing passage:

If approval of the Form I-140 is revoked or the

Form I-140 is withdrawn before the alien’s Form I-

485 has been pending 180 days, the approved Form

I-140 is no longer valid with respect to a new offer

of employment and the Form I-485 may be denied.

If at any time the [agency] revokes approval of the

Form I-140 based on fraud, the alien will not be eli-

gible for the job flexibility provisions of [the Porta-

bility Provision] and the adjudicating officer may, in

his or her discretion, deny the attached Form I-485

immediately.

Plaintiffs argue that the foregoing passage requires that, when

an I-485 application has been pending for 180 days, the

agency may revoke its approval of the I-140 petition only in

the case of fraud.

We do not read so much into the Yates Memorandum. The

quoted passage touches on the revocation issue only indirectly

and does not provide a clear directive to those processing

revocations of I-140 petition approvals. Indeed, the memoran-

dum concerns the processing of I-485 applications, not the

conditions under which the agency may revoke its previous

HERRERA v. U.S. CITIZENSHIP AND IMMIGRATION 8223

approval of an I-140 petition. See also Yates Memorandum at

1 (“The purpose of this memorandum is to provide field

offices with guidance on processing Form I-485, Application

to Register Permanent Residence or Adjust Status [i.e., an I-

485 application].” (emphasis added)). Furthermore, Plaintiffs’

reading of the Yates Memorandum is inconsistent with the

statutory text: Nowhere does the Portability Provision distin-

guish between fraud and other reasons for revocation.

[6] In conclusion, we hold that the Portability Provision

does not affect the agency’s revocation authority, which per-

mits revocation “at any time” for “good and sufficient cause.”

8 U.S.C. § 1155.

B. Challenges to the Notice of Intent to Revoke

[7] The notice of intent to revoke was legally sufficient. It

plainly advised Herrera that she was not, and had never been,

“eligible for the classification sought.” It therefore met the

regulatory requirement that Herrera be given “notice” of the

“ground” on which the agency sought revocation. 8 C.F.R.

§ 205.2(a).

[8] The notice of intent to revoke also met the procedural

requirements described in In re Estime, 19 I. & N. Dec. at

451. A petitioner generally “must be permitted to inspect the

record of proceedings, must be advised of derogatory evi-

dence of which he is unaware, and must be offered an oppor-

tunity to rebut such evidence and to present evidence in his

behalf.” Id. Nothing in the record suggests that those require-

ments were not met. The handwritten notes taken by the CSC

officer at Herrera’s 2001 interview and the officer’s internal

memorandum were not the sort of “derogatory evidence” con-

templated by In re Estime. In any event, Herrera was not “un-

aware” of the content of her 2001 interview because she gave

8224 HERRERA v. U.S. CITIZENSHIP AND IMMIGRATION

the interview. And it was the interview itself, not the internal

summaries of it, that caused the agency to seek revocation.8

C. Challenges to the Revocation

[9] The AAO’s decision is supported by substantial evidence.9

The AAO held that Herrera’s job description did not qualify

as acting in “managerial capacity” or “executive capacity,”

because “[t]he description of the beneficiary’s duties, the

organizational chart, and the position descriptions of two indi-

viduals subordinate to the beneficiary’s position are not suffi-

cient to establish eligibility for this visa classification.”

Plaintiffs dispute the relevance and weight of the factors con-

sidered by the AAO, but the factors are permissible consider-

ations and the AAO’s conclusions are supported by

substantial evidence. See, e.g., Family Inc., 469 F.3d at 1316

(“[T]he [agency] may properly consider an organization’s

small size as one factor in assessing whether its operations are

substantial enough to support a manager.”); id. (holding that

a company’s organizational chart is also a valid factor for

8

Plaintiffs also challenge the admissibility of the documents in federal

court, even though they are in the certified administrative record. We

reject Plaintiffs’ argument. Our review of agency action is limited to the

administrative record. Cent. Elec. Coop., Inc. v. Bonneville Power Admin.,

835 F.2d 199, 204 (9th Cir. 1987). Plaintiffs made a similar argument

before the AAO, challenging the correctness of the information in the doc-

uments. The AAO responded that Plaintiffs had not submitted affidavits

describing her job duties to contradict those described in the notice of

intent to revoke and that they bear the burden of producing such evidence.

We find no factual or legal error in the AAO’s ruling.

9

Plaintiffs occasionally couch this argument in terms that allege proce-

dural violations. For instance, they argue that the AAO did not consider

the record evidence and did not consider the rebuttal evidence that Jugend-

stil submitted. In its decision, the AAO plainly described the record evi-

dence and the rebuttal evidence and stated its reasons for rejecting that

evidence. There is no procedural violation. Plaintiffs essentially are argu-

ing that the AAO could not possibly have reached its conclusion if it had

fully considered the relevant evidence—a “substantial evidence” argu-

ment.

HERRERA v. U.S. CITIZENSHIP AND IMMIGRATION 8225

consideration). As in Family Inc., “[w]e have considered the

record evidence in this case, and it does not compel a contrary

conclusion.” Id.

[10] Finally, the AAO applied the proper legal standard.

The surest way to determine the job duties of a particular

position is to question the person employed in that position,

which is what the agency did here.

AFFIRMED.