De Souza et al v. Napolitano et al

Filing 76

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER: "In accordance with the foregoing, plaintiffs' motion for summary judgment (Docket No. 69 ) is DENIED and defendants' cross-motion for summary judgment (Docket No. 70 ) is ALLOWED. So ordered."(Moore, Kellyann)

United States District Court
District of Massachusetts
)
JOSE CARLOS DE SOUZA and SIRLENE )
MARIA GROBBERIO STEFANON,
)
)
Plaintiffs,
)
)
v.
)
)
SECRETARY JANET NAPOLITANO et
)
al.,
)
)
Defendants.
)
)

Civil Action No.
12-10197-NMG

MEMORANDUM & ORDER
GORTON, J.
This case arises out of the revocation of plaintiff
Jose Carlos De Souza’s previously approved Form I-140
Immigration Petition for Alien Worker (“I-140 petition”) by the
United States Citizenship and Immigration Services (“USCIS”).
Pending before the Court are the parties’ cross-motions for
summary judgment.

For the reasons that follow, the defendants’

motion will be allowed and the plaintiffs’ motion will be
denied.
I.

Background
A.

Statutory framework

The Immigration and Nationality Act provides for the
classification of an alien seeking admission to the United
States based on an offer of permanent employment as a skilled
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worker under the “third preference” category. 8 U.S.C. §
1153(b)(3)(A)(i).

The Secretary of Homeland Security (“the

Secretary”) has delegated to USCIS the authority to accept,
reject and/or adjudicate immigrant visa petitions.
Before filing a petition with USCIS, an employer must
obtain certification from the Department of Labor (“DOL”)
stating that there are no qualified, able and willing United
States workers able to fill the employer’s job opening.

If DOL

approves the application, the employer may then file an I-140
petition with USCIS to request that the alien be classified as
an employment-based immigrant.
If USCIS denies the employer’s I-140 petition, the employer
may appeal the decision to the Administrative Appeals Office
(“AAO”). 8 C.F.R. § 103.3(a)(1)(ii).

The AAO’s decision

constitutes the final agency action.
An approved I-140 petition may, however, be revoked.

Under

8 U.S.C. § 1155,
[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 [for an immigrant visa].
Such revocation authority has also been delegated to USCIS.

As

with decisions to deny an I-140 petition, decisions to revoke an
approved petition may be appealed to the AAO by the petitioning
employer.

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B.

Factual background

Jose Carlos De Souza (“De Souza”) and his wife Sirlene
Maria Grobberino Stefanon (“Stefanon”) (collectively,
“plaintiffs”) filed suit in February, 2012 against the
defendants in their official capacities for violations of the
Administrative Procedures Act, the Immigration and Nationality
Act and the plaintiffs’ rights to due process.1
Plaintiffs are natives and citizens of Brazil and currently
reside in Beverly, Massachusetts.

De Souza entered the country

in 1998 and found a position as a cook at Creative Catering in
Beverly, Massachusetts shortly thereafter.

In 2001, Creative

Catering filed a foreign labor certification with DOL on De
Souza’s behalf and that was subsequently approved.

Creative

Catering then filed an I-140 petition with USCIS on De Souza’s
behalf, which was approved in March, 2003.

Such approval made

De Souza, as the primary applicant, and Stefanon, as the
derivative applicant, eligible for adjustment of status to
permanent residents.

They each filed the necessary Application

to Adjust Status or Register Permanent Residence (“Form I-485”)
in May, 2003.
In 2006, De Souza “ported” his approved I-140 petition to
his current employer, Century House in Peabody, Massachusetts.

1

Jeh Johnson replaced Janet Napolitano as the Secretary of
Homeland Security on December 23, 2013.
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“Porting” is a process which allows beneficiaries of I-485
applications that have been pending for more than six months to
change employers without invalidating their petition so long as
the new position is in the same or similar classification.
USCIS revisited De Souza’s I-140 petition after discovering
that the plaintiffs’ attorney had engaged in fraudulent conduct
in another case.

In February, 2009, after plaintiffs’

adjustment application had been pending for nearly six years,
USCIS issued a Notice of Intent to Revoke (“NOIR”) the
underlying I-140 petition, upon which the Form I-485 depended.
It issued a second NOIR later that month.

Both documents stated

that there was no proof that the labor certification process was
properly followed.
USCIS issued a Notice of Revocation the following month and
a second Notice of Revocation in May, 2009 based on the second
NOIR.

Plaintiffs and Century House appealed both of those

Notices and both were denied for lack of standing because USCIS
decreed that only the affected party, Creative Catering, was
entitled to appeal.

In October, 2009, USCIS denied plaintiffs’

Form I-485 based on the I-140 petition revocations.
In November, 2012, USCIS reopened the matter sua sponte and
issued a third NOIR.

No one responded to that NOIR.

USCIS thus

revoked plaintiffs’ I-140 petition for a fourth time and
certified the matter for review to the Administrative Appeals
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Office.

In June, 2013, the AAO affirmed the revocation on the

grounds that 1) Century House lacked standing to appeal the
administrative decision and 2) the materials submitted in
support of the petition were deficient.
C.

Procedural history

Plaintiffs initiated this lawsuit in February, 2012 and
filed an amended complaint several months later.

They filed a

second amended complaint in December, 2012 claiming that the
defendants violated the Administrative Procedures Act, the
Immigration and Nationality Act and the plaintiffs’ rights to
due process.

The parties filed cross-motions for summary

judgment in July, 2014.
II.

Cross-Motions for Summary Judgment
The parties assert that they are each entitled to judgment

as a matter of law.

Plaintiffs contend that the government

violated statutory authority and their rights to due process
because it 1) failed to take De Souza’s “ported” I-140 petition
approval into account when insisting that Century House lacked
standing, 2) exaggerated perceived inconsistencies in De Souza’s
employment history and 3) tolerated “extraordinary delay” in
adjudicating the visa petition.
Defendants, in their cross-motion for summary judgment,
contend that the Court lacks jurisdiction over this case because
1) the plaintiffs lack standing to challenge the I-140
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revocation, 2) USCIS’s revocation decision was discretionary and
therefore not subject to judicial review and 3) the alternate
grounds for jurisdiction raised by the plaintiffs fail as a
matter of law.

They also dispute the substantive arguments

raised by the plaintiffs.
The Court begins its analysis with the threshold
jurisdictional question raised in the defendants’ motion for
summary judgment.
A.

Legal Standard

The role of summary judgment is “to pierce the pleadings
and to assess the proof in order to see whether there is a
genuine need for trial.” Johnson v. Gordon, 409 F.3d 12, 16-17
(1st Cir. 2005)(quoting Garside v. Osco Drug, Inc., 895 F.2d 46,
50 (1st Cir. 1990)).

The burden is on the moving party to show,

through the pleadings, discovery and affidavits, “that there is
no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(c).
A fact is material if it “might affect the outcome of the
suit under the governing law.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).

“Factual disputes that are irrelevant

or unnecessary will not be counted.” Id.

A genuine issue of

material fact exists where the evidence with respect to the

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material fact in dispute “is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
Once the moving party has satisfied its burden, the burden
shifts to the non-moving party to set forth specific facts
showing that there is a genuine, triable issue. Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986).

The Court must view the

entire record in the light most favorable to the non-moving
party and indulge all reasonable inferences in that party’s
favor.

Johnson, 409 F.3d at 17.

Summary judgment is

appropriate if, after viewing the record in the non-moving
party’s favor, the Court determines that no genuine issue of
material fact exists and that the moving party is entitled to
judgment as a matter of law. Id.
B.

Application
i.

Subject matter jurisdiction

An “objection that a federal court lacks subject matter
jurisdiction may be raised at any stage in the litigation.”
Arbaugh v. Y&H Corp., 546 U.S. 500, 500 (2006).

Defendants

assert that they are entitled to summary judgment because the
Court lacks subject matter jurisdiction to review USCIS’s
decision to revoke the I-140 petition.

Defendants contend that

the decision was committed to agency discretion under the plain
language of 8 U.S.C. § 1155 because the statute provides that

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the Secretary “may, at any time, for what he deems to be good
and sufficient cause,” revoke the approval of the petition.
Federal courts lack jurisdiction to review discretionary
decisions under 8 U.S.C. § 1252(a)(2)(B)(ii), which provides in
relevant part that
no court shall have jurisdiction to review ... any [ ]
decision or action of the Attorney General or the Secretary
of Homeland Security the authority for which is specified
under this subchapter to be in the discretion of the
Attorney General or the Secretary of Homeland Security[.]
Plaintiffs respond that USCIS’s decision is not
discretionary and is subject to judicial review because the
revocation must be based on “good and sufficient cause.”

Citing

Ninth Circuit authority, they contend that an absolute and
unreviewable authority to revoke would render the clause
meaningless. See ANA Int'l, Inc. v. Way, 393 F.3d 886, 898 (9th
Cir. 2004) (holding that the authority to revoke under 8 U.S.C.
§ 1155 is “bounded by objective criteria” and is therefore
reviewable).
This Session of this Court, however, has previously held
that it lacked jurisdiction to review a determination by USCIS
to revoke an I-140 petition. See Magalhaes v. Napolitano, 941
F.Supp.2d 150, 153 (2013); see also Patel v. Johnson, CIV.A. 1212317-WGY, 2014 WL 930823, *6 (D. Mass. Mar. 11, 2014) (holding
that the decision to revoke approval of I-140 petition is
discretionary and not subject to judicial review).
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Although the question of whether a court has jurisdiction
to review the revocation of an immigration petition has not been
decided by the First Circuit, this Court noted in Magalhaes that
seven of the eight Circuit courts that have considered this
question have held that the language of § 1155 “plainly
signifies a discretionary decision.” 941 F. Supp. 2d at 152
(quoting El-Khader v. Monica, 366 F.3d 562, 567 (7th Cir. 2004).
See also Mehanna v. USCIS, 677 F.3d 312 (6th Cir. 2012); Green
v. Napolitano, 627 F.3d 1341 (10th Cir. 2010); Abdelwahab v.
Frazier, 578 F.3d 817, 821 (8th Cir. 2009); Sands v. DHS, 308 F.
App’x 418, 419-20 (11th Cir. 2009) (unpublished), cert denied,
130 S. Ct. 64 (2009); Ghanem v. Upchurch, 481 F.3d 222 (5th Cir.
2007); Julin Pharm. USA, Inc. v. Chertoff, 447 F.3d 196 (3d Cir.
2006).

Only the Ninth Circuit has found that § 1155 does not

render the decision purely discretionary.

See e.g. ANA Int'l,

393 F.3d at 898.
This Court rejected the Ninth Circuit’s interpretation and
agreed with the dissent in ANA Int’l, which noted that the
majority opinion took the clause “good and sufficient cause” out
of context because it failed to consider the preceding words,
“what he deems to be...”. See Magalhaes, 941 F.Supp.2d at 152-53
(citing ANA Int’l, 393 F.3d at 897).

In adopting the majority

construction of the statute, this Court therefore concluded that
by using the terms “may”, “at any time” and “what he deems to
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be” in § 1155, Congress sought to specify that the authority to
make revocation decisions is within the discretion of defendants
and outside the scope of judicial review. Id. at 153.
The Court commiserates with the plaintiffs’ unfortunate
predicament and perceives no logical reason why an employer to
whom an approved I-140 petition has been “ported” ought not have
standing to appeal an adverse ruling of the Secretary but the
AAO has ruled otherwise and plaintiffs have not cited case law
to the contrary.

Having concluded that the Court lacks subject

matter jurisdiction to review USCIS’s determination to revoke
plaintiffs’ I-140 petition, it declines to address further the
questions of standing or the substantive merits of the case
raised by the plaintiffs.

ORDER
In accordance with the foregoing, plaintiffs’ motion for
summary judgment (Docket No. 69) is DENIED and defendants’
cross-motion for summary judgment (Docket No. 70) is ALLOWED.

So ordered.
/s/ Nathaniel M. Gorton __
Nathaniel M. Gorton
United States District Judge
Dated November 26, 2014

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