Bombay Mahal Restaurant, Inc. et al v. Napolitano et al

Filing 39

Judge William G. Young: ORDER entered. MEMORANDUM AND ORDER: This Courts GRANTS the Government's motion for summary judgment, ECF No. 22, and DENIES Patel's cross-motion for summary judgment, ECF No. 32. SO ORDERED...(Paine, Matthew)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

SANJIVKUMAR NARHARIBHAI PATEL,
Plaintiff,
v.
JEH JOHNSON, Secretary of the
United States Department of
Homeland Security, ERIC HOLDER,
JR., United States Attorney
General, UNITED STATES
CITIZENSHIP AND IMMIGRATION
SERVICES, and UNITED STATES
CITIZENSHIP AND IMMIGRATION
SERVICES ADMINISTRATIVE APPEALS
OFFICE,1
Defendants.

CIVIL ACTION
NO. 12-12317-WGY

MEMORANDUM AND ORDER
YOUNG, D.J.

March 11, 2014

“Give me your tired, your poor,
Your huddled masses yearning to breathe free.”
Inscription on the Statute of Liberty2
Well, not quite.

Today it might read, “Give us your

educated, skilled laborers willing to work at jobs Americans
1

Janet Napolitano, the former Secretary of the United
States Department of Homeland Security, was originally named a
defendant in this action. Because Secretary Napolitano has been
succeeded in office since this action’s initial filing, her
successor, Secretary Jeh Johnson, is substituted in the caption.
See Fed. R. Civ. P. 25(d).
2

Emma Lazarus, The New Colossus (1883).
1

either won’t or can’t do.

If the jobs dry up, we’ll tell you to

go home.”
This case plumbs the labyrinthine bureaucracy we have
created to effectuate the current policy.
I.

INTRODUCTION
In this case, Sanjivkumar Narharibhai Patel (“Patel”)

challenges the revocation of his I-140 immigration petition by
the United States Citizenship and Immigration Services.

After

careful review of the administrative record, this Court holds
that the agency’s revocation of the petition was not “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.”

5 U.S.C. § 706(2)(A).

It therefore

AFFIRMS the agency’s decision.
A.

Procedural History

On December 13, 2012, Bombay Mahal Restaurant, Inc.
(“Bombay Mahal”) and Patel filed a complaint against Janet
Napolitano, then-Secretary of the United States Department of
Homeland Security, Eric Holder, Jr., United States Attorney
General, the United States Citizenship and Immigration Services,
and the United States Citizenship and Immigration Services
Administrative Appeals Office (collectively, the “Government”).
Pls.’ Original Compl. Writ Mandamus, Declaratory J. & Injunctive
Relief (“Compl.”), ECF No. 1.

On April 11, 2013, the Government

moved to dismiss the complaint for lack of subject-matter

2

jurisdiction.

Defs.’ Rule 12(b)(1) Mot. Dismiss Lack Subject

Matter Jurisdiction, ECF No. 14.
an opposition on May 13, 2013.
Dismiss, ECF No. 19.

Bombay Mahal and Patel filed

Pls.’ Mem. Opp’n Defs.’ Mot.

The Court held a motion session on June 3,

2013, at which time it granted the motion as to Bombay Mahal.
Elec. Clerk’s Notes, June 3, 2013, ECF No. 21.
The Government moved for summary judgment against the
remaining plaintiff, Patel, on August 1, 2013.

Defs.’ Mot.

Summ. J. Sanjivkumar Narharibhai Patel’s Claims, ECF No. 22; see
also Defs.’ Mem. Supp. Mot. Summ. J. Sanjivkumar Narharibhai
Patel’s Claims (“Defs.’ Mem.”), ECF No. 23.

Patel filed his

opposition, along with a cross-motion for summary judgment, on
October 2, 2013.

Pl.’s Opp’n Defs.’ Mot. Summ. J. & Cross-Mot.

Summ. J., ECF No. 32; see also Pls.’ Mem. Opp’n Defs.’ Mot.
Summ. J. & Supp. Cross-Mot. Summ. J. (“Pls.’ Mem.”), ECF No. 33.
The Government filed a memorandum opposing Patel’s cross-motion
for summary judgment on November 7, 2013.

Defs.’ Opp’n Pl.’s

Cross Mot. Summ. J. Sanjivkumar Narharibhai Patel’s Claims
(“Defs.’ Opp’n”), ECF No. 38.
B.

Statutory and Regulatory Background

To regulate immigration into this country, the Immigration
and Naturalization Act (the “Act”) establishes a series of
procedures by which the Government may grant permanent residency
status to aliens who meet certain statutory criteria.

3

See,

e.g., 8 U.S.C. § 1154 (procedures for granting immigrant
status); 8 U.S.C. § 1255 (procedures for granting permanent
resident status).

One path to lawful immigration status

allocates visas based upon the employment qualifications of the
applicant.3

See 8 U.S.C. § 1153(b).

For visas given to skilled

workers, as is relevant in this case, the Act sets out a multiagency, tripartite scheme governing how such documents are
issued.

3

Employment-based immigrant visas are allocated in groups.
No more than 28.6 percent of visas may go to “[p]riority
workers,” which includes (a) “aliens with extraordinary
ability,” (b) “[o]utstanding professors and researchers,” and
(c) “[c]ertain multinational executives and managers.” 8 U.S.C.
§ 1153(b)(1). Another 28.6 percent of visas are allocated to
aliens who are “members of the professions holding advanced
degrees or aliens of exceptional ability.” Id. § 1153(b)(2). A
third set of visas, again totaling no more than 28.6 percent of
all visas, goes to “skilled workers, professionals, and other
workers.” Id. § 1153(b)(3). Skilled workers are defined as
“[q]ualified immigrants who are capable, at the time of
petitioning for classification . . ., of performing skilled
labor (requiring at least 2 years training or experience), not
of a temporary or seasonal nature, for which qualified workers
are not available in the United States.” Id. §
1153(b)(3)(A)(i). Another 7.1 percent of visas may go to
certain qualifying special immigrants. Id. § 1153(b)(4).
Finally, the remaining 7.1 percent of visas may go “to qualified
immigrants seeking to enter the United States for the purpose of
engaging in a new commercial enterprise.” Id. § 1153(b)(5)(A).
Currently, the total worldwide number of employment-based visas
that may be issued is capped at 140,000, plus “the difference
(if any) between the maximum number of visas which may be issued
under section 1153(a) of this title (relating to familysponsored immigrants) during the previous fiscal year and the
number of visas issued under that section during that year.” Id.
§§ 1151(d)(1), 1151(d)(2)(C).

4

First, an alien must have a prospective employer in the
United States, and that employer must then petition the
Department of Labor, via a Form ETA-750,4 to issue a labor
certificate.

See 8 U.S.C. § 1153(b)(3)(C); Masih v. Mukasey,

536 F.3d 370, 373 (5th Cir. 2008).

This certificate

memorializes the Department’s determination that (a) “there are
not sufficient workers who are able, willing, qualified . . .
and available at the time of application . . . to perform such .
. . labor,” and that (b) “the employment of such alien will not
adversely affect the wages and working conditions of workers in
the United States similarly employed.”

8 U.S.C. §

1182(a)(5)(A)(i).
Next, the employer may file an immigrant worker visa
petition (called a Form I-140) with the United States
Citizenship and Immigration Services (the “USCIS”).

Pai v.

United States Citizenship & Immigration Servs., 810 F. Supp. 2d
102, 104 (D.D.C. 2011).

This petition includes a series of

documentation requirements to establish that the worker does, in
fact, fall within one of the employment-based categories
established by the Act.

See 8 C.F.R. § 204.5.

4

The petitioner

As part of the petition process, the employer applicant
must file a Form ETA-750 with the Department of Labor. United
States v. Ryan-Webster, 353 F.3d 353, 356 (4th Cir. 2003). This
form “identifies the job opportunity and the employer’s minimum
job requirements.” Regal Int’l., Inc. v. Napolitano, No. 10 C
5347, 2011 WL 4538690, at *1 (N.D. Ill. Sept. 29, 2011).
5

bears the burden of proof by a preponderance of the evidence.
See 8 U.S.C. § 1361; see also Matthews v. United States
Citizenship & Immigration Servs., 458 F. App’x. 831, 833 (11th
Cir. 2012).

If approved, the petition will be forwarded to the

Department of State for the allotment of a visa number.5
Webster, 353 F.3d at 356.

Ryan-

If the petition is not approved, the

employer may appeal the decision to the USCIS Administrative
Appeals Office (the “AAO”).

See 8 C.F.R. § 103.3(a)(1)(ii).

Petition approval is not, however, irreversible.

First,

petitions may be revoked for cause, as “[t]he Secretary of
Homeland Security6 may, at any time, for what he deems to be good
and sufficient cause, revoke the approval of any petition
approved by him.”

8 U.S.C. § 1155.

“Good and sufficient cause”

includes any situation where “the evidence of record at the time
the decision was issued . . . warranted . . . a denial” of the
petition.

Matter of Estime, 19 I. & N. Dec. 450, 452 (BIA

1987); see also Love Korean Church v. Chertoff, 549 F.3d 749,
754 n.3 (9th Cir. 2008) (holding that the Estime standard is a
reasonable interpretation of 8 U.S.C. section 1155 and applying
5

After the I-140 petition is granted, the alien may file a
Form I-485 application to adjust her status to a legal permanent
resident. 8 U.S.C. § 1255(i); see also Pai, 810 F. Supp. 2d at
104-05. If that application is approved, the alien is then
eligible for her green card, thus concluding the immigration
status adjustment process. See Ryan-Webster, 353 F.3d at 356.
6

The Secretary has delegated his revocation authority to
any USCIS officer authorized to approve an employment-based
petition. 8 C.F.R. § 205.2(a).
6

that standard to its review of agency’s revocation decision).
Before a petition can be revoked, however, the USCIS must
provide notice of an intent to revoke to the petitioner, who
must then “be given the opportunity to offer evidence in support
of the petition . . . and in opposition to the grounds alleged
for revocation of the approval.”

8 C.F.R. § 205.2(b).

decisions can be appealed to the AAO.

Adverse

See id. § 205.2(d).

Second, under certain conditions, a petition can be
automatically revoked.

For the purposes of the case at bar, the

most relevant condition is that which automatically revokes the
petition “[u]pon termination of the employer’s business in an
employment-based preference case.” Id. § 205.1(a)(3)(iii)(D).
After the petition has been revoked, the USCIS must send notice
to the petitioner’s last known address.
C.

Id. § 205.1(b).

Facts

In November 2003, Bombay Mahal filed a Form ETA-750,
requesting that the Department of Labor certify an “Indian
[s]pecialty [cook]” position under 8 U.S.C. section 1153.
Certified Administrative Record7 (“AR”) 298.

On the form, Bombay

Mahal stated that a minimum of two years of experience was
required for the job, and that an employee in that role would
“[p]repare all types of Indian specialty dishes.”

7

Id.

One

The Certified Administrative Record was provided under
seal to the Court. See Elec. Order, Aug. 5, 2013, ECF No. 27.
7

month later, in December 2003, Bombay Mahal filed an I-140
petition hire Patel for the position.

Id. at 262.

Concurrent

with the I-140 petition submission, Patel filed an I-485
application to adjust his status to that of a permanent
resident. Id. at 6-9.
The USCIS initially denied the I-140 petition on September
14, 2004, stating that Bombay Mahal had not demonstrated an
“ability to pay the proffered wages,” as required by 8 C.F.R.
section 204.5(g).

Id. at 295.

After Bombay Mahal filed

additional documentation, the USCIS approved its petition on
November 16, 2004.

Id. at 33.

Patel then worked for Bombay

Mahal from June 2004 through November 2008; his employment ended
because the restaurant closed on December 31, 2008.

Id. at 144.

On February 15, 2009, Patel was hired to work as an Indian
specialty cook at the Bollywood Cafe.
1.

Id. at 143.

Revocation and the Initial Appeals Process

At the same time as Patel found a new job, the USCIS began
procedures to revoke his I-140 petition.

It issued a Notice of

Intent to Revoke on February 18, 2009, questioning Patel’s
qualifications, allegedly fraudulent materials submitted by
Patel’s then-lawyer, and Bombay Mahal’s compliance with
Department of Labor job advertising and recruiting requirements.
Id. at 258-59.

Bombay Mahal and Patel responded on March 10,

2009, and included letters of reference from Patel’s current and

8

previous employers, as well as documentation relating to Bombay
Mahal’s advertising practices.

Id. at 213-29.

The USCIS judged

this documentation inadequate and issued a Notice of Revocation
on August 5, 2009.

Id. at 256-60.

Bombay Mahal and Patel administratively appealed.
247.

Id. at

In a memorandum filed on October 6, 2009, they argued that

the USCIS improperly had presumed that because materials filed
by Patel’s then-lawyer in other cases had been fraudulent, the
materials in Patel’s case were therefore fraudulent, even though
there was no direct evidence of fraud in the instant case.
at 129-31.

Id.

They also criticized the USCIS’s handling of the

labor certification and recruitment procedures, and argued that
the USCIS failed objectively to consider evidence of Patel’s
work experience.

Id. at 132-35.

The USCIS took no action for the next three years, and on
November 1, 2012, it issued a Notice of Intent to Dismiss and
Derogatory Information.

Id. at 193.

The agency reported that

Bombay Mahal “was dissolved on March 2, 2010,” and “[i]f [the]
organization is no longer in business, then no bona fide job
offer exists, and the petition and appeal are therefore moot.”
Id.

In response, Patel and Bombay Mahal stated that they had

informed the USCIS that the restaurant had closed in their 2009
memorandum.

Id. at 118.

They also cited to Betancur v. Roark,

No. 10-11131-RWZ, 2012 WL 4862774 (D. Mass. Oct. 15, 2012)

9

(Zobel, J.), which held that because the employee in that case
was eligible for job portability under 8 U.S.C. section 1154(j),
the visa could not automatically

be revoked.

AR 118-19 (citing

Betancur, 2012 WL 4862774, at *8.).
The USCIS replied to this submission with a Request for
Evidence, issued on January 10, 2013, in which it disagreed with
Patel and Bombay Mahal’s interpretation of the job portability
provision.

Id. at 110-13.

Relying in part on the Ninth

Circuit’s decision in Herrera v. United States Citizenship &
Immigration Servs., 571 F.3d 881 (9th Cir. 2009), the agency
concluded that 8 U.S.C. section 1154(j) requires the petition to
“remain valid” at the time the employee changes jobs, but
because Bombay Mahal had closed (thus invalidating the petition)
before Patel changed jobs, he was not eligible for job
portability.

AR 110-11.

The USCIS further pointed to evidence

indicating that Bombay Mahal also had filed sixteen Form I-140
petitions on behalf of other beneficiaries, and requesting tax
records demonstrating the restaurant’s “continuing ability to
pay the combined proffered wages to each beneficiary.”

Id. at

112 (citing Matter of Great Wall, 16 I. & N. Dec. 142, 144-45
(BIA 1977)).

Bombay Mahal and Patel responded by sending

Patel’s individual tax records from 2004 through 2012 and
corporate tax records for Bombay Mahal from 2003 through 2008.
Id. at 46.

10

2.

The Administrative Appeals Office Decision

On March 20, 2013, the AAO dismissed the appeal.
at 32-45.

See id.

Before addressing the substance, the AAO first

concluded that the USCIS’s 2009 notice was not sufficiently
specific as per 8 C.F.R. sections 103.2(b)(16) and 205.2.
at 34-36.
Id. at 36.

Id.

The AAO thus withdrew the agency’s initial decision.
It did, however, conclude that “the approval of

[Bombay Mahal] may not be reinstated, as the record does not
establish that the petition was approvable when filed, or that
[Patel] ported off of an approved petition pursuant to [8 U.S.C.
section 1154(j)].”

Id.

First, the AAO held that Bombay Mahal’s I-140 petition was
automatically revoked because the business had closed in late
2008, and Patel did not port to new employment until 2009.
at 37, 39.

Id.

The AAO also held that Patel and Bombay Mahal had

been given proper notice of this ground in January 2013 and had
been provided an opportunity to submit evidence that a bona fide
job offer existed at the time the restaurant closed.

Id. at 38-

39.
Second, the AAO held that the petition was invalid at the
time of its filing, because Bombay Mahal had not demonstrated
the ability to pay the proffered wage to Patel, nor could it
show such capacities for the other I-140 beneficiaries working
at Bombay Mahal.

See id. at 39-41.

11

After reviewing the

submitted tax documentation, it concluded that “[w]hile the net
income in 2003 was sufficient to pay the proffered wage to
[Patel in] that year, it is not sufficient to pay all the
sponsored workers, including the 13 for whom Form I-140
petitions were pending in 2003.”

Id. at 42.

Third, the AAO found that the “record does not support
[Bombay Mahal]’s contention that [Patel] had the requisite work
experience in the job offered.”

Id. at 45.

It examined two

letters of employment verification provided to the agency, but
concluded that neither letter satisfied the requirements of 8
C.F.R. sections 204.5(g) or (l)(3)(ii)(A), and thus the agency
“had good and sufficient cause to revoke the approval of the
petition.”8
II.

Id.

ANALYSIS
A.

Standard of Review

Under the Administrative Procedure Act (the “APA”), a
district court may review an agency’s final decision, which for
these purposes is the AAO’s March 2013 ruling.

5 U.S.C. § 704;

see also Herrera, 571 F.3d at 885 (holding that AAO decision is
final for APA purposes).

The APA does not provide for de novo

8

The AAO also held that the agency improperly found that
Bombay Mahal did not comply with the recruitment procedures
specified under the Act, see AR 42-43, and that the agency’s
“finding of fraud or willful misrepresentation against [Bombay
Mahal] was arbitrary,” id. at 43; see id. at 43-45. It thus
vacated those portions of the initial opinion. Id. at 45.
12

review, but instead specifies that a court may only “hold
unlawful and set aside agency action, findings, and conclusions
found to be . . . arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.”

5 U.S.C. § 706(2)(A).

An agency [determination] is arbitrary and capricious
if the agency lacks a rational basis for adopting it –
for example, if the agency relied on improper factors,
failed to consider pertinent aspects of the problem,
offered a rationale contradicting the evidence before
it, or reached a conclusion so implausible that it
cannot be attributed to a difference of opinion or the
application of agency expertise.
Associated Fisheries of Me., Inc. v. Daley, 127 F.3d 104, 109
(1st Cir. 1997) (citing Motor Vehicle Mfrs. Ass’n v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).
Such review is “narrow” and “highly deferential,” and so
long as the court determines that “the agency’s decision is
supported by a rational basis,” it must affirm, “even if it
disagrees with the agency’s conclusions.”

River St. Donuts, LLC

v. Napolitano, 558 F.3d 111, 114 (1st Cir. 2009); see also
Carcieri v. Kempthorne, 497 F.3d 15, 43 (1st Cir. 2007) (holding
that agency actions are presumed to be valid), rev’d on other
grounds sub nom., Carcieri v. Salazar, 555 U.S. 379 (2009).
Finally, at the summary judgment stage, “the district judge
sits as an appellate tribunal,” and “[t]he ‘entire case’ on
review is a question of law.”

American Bioscience, Inc. v.

Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001).

13

In so doing,

the court considers “the full administrative record that was
before the [agency] at the time [it] made [its] decision.”
Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 420
(1971), abrogated by Califano v. Sanders, 430 U.S. 99 (1977);
see also Olsen v. United States, 414 F.3d 144, 155 (1st Cir.
2005) (observing that the district court may supplement the
administrative record only under limited circumstances where
plaintiff has demonstrated that the agency has acted in bad
faith or has tried to frustrate judicial review).
B.

Subject-Matter Jurisdiction

Before reaching the merits, this Court first must determine
whether it has subject-matter jurisdiction to hear this claim.
Two statutes control the issue.
First, Congress has limited the ability of the federal
courts to review discretionary immigration decisions.

It has

determined that “no court shall have jurisdiction to review . .
. [any decision of the Secretary of Homeland Security] the
authority for which is specified under this subchapter to be in
the discretion of the . . . Secretary of Homeland Security.”
U.S.C. § 1252(a)(2)(B)(ii).

8

Second, when determining whether to

revoke visa petitions, “[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.”

Id. § 1155.

14

The question for this

Court, then, is whether the language of section 1155 is
sufficiently expansive to qualify as “discretionary,” and thus
non-reviewable, under section 1252.
Federal courts have not settled on an answer to this
question.

A majority of circuits have concluded that section

1155 is a non-reviewable discretionary decision.9

In explaining

their determinations, these courts first highlight the words
“may” and “at any time,” and conclude that they are “permissive”
words that “plainly signif[y] a discretionary decision.”
Khader v. Monica, 366 F.3d 562, 567 (7th Cir. 2004).

El-

Second,

they focus on the statutory language “for what [the Secretary]
deems to be good and sufficient cause,” concluding both that the
word “deems” commits the decision to the judgment of the
Secretary, and that the standard itself is “highly subjective”
and thus provides an insufficiently precise standard to be
considered judicially manageable.

9

Id. at 567-68; see also Jilin

See Mehanna v. United States Citizenship & Immigration
Servs., 677 F.3d 312, 313 (6th Cir. 2012); Green v. Napolitano,
627 F.3d 1341, 1344-45 (10th Cir. 2010); Abdelwahab v. Frazier,
578 F.3d 817, 821 (8th Cir. 2009); Sands v. United States Dep’t
of Homeland Sec., 308 F. App’x. 418, 419-20 (11th Cir. 2009);
Ghanem v. Upchurch, 481 F.3d 222, 224 (5th Cir. 2007); Jilin
Pharm. USA, Inc., v. Chertoff, 447 F.3d 196, 205 (3d Cir. 2006).
The Second Circuit has concluded that the substantive decision
to revoke a petition is “committed to the discretion of the
Attorney General,” but that the court retains jurisdiction to
determine whether mandatory notice requirements associated with
that revocation have been met. Firstland Int’l, Inc. v. United
States Immigration & Naturalization Serv., 377 F.3d 127, 130-31
(2d Cir. 2004).
15

Pharm. USA, Inc. v. Chertoff, 447 F.3d 196, 204-05 (3d Cir.
2006) (“Here, the requirement of ‘for what [the Secretary] deems
good and sufficient cause’ in [section] 1155 is so vague as to
be useless as a guide to a reviewing court.”) (first alteration
in original).
The Ninth Circuit has taken an opposite tack and determined
that there is jurisdiction.

In ANA International, Inc. v. Way,

393 F.3d 886 (9th Cir. 2004), it recognized that the language
“‘may, at any time, for what he deems to be’ . . . plainly
authorizes some measure of discretion.”

Id. at 893.

The court

concluded, however, that the words “good and sufficient cause”
are not without meaning, but rather “refer[] to a meaningful
standard that the [Secretary of Homeland Security] may ‘deem’
applicable or inapplicable in a particular case, but which he
does not manufacture anew in every new instance.”

Id. at 894.

Thus, it concluded, the courts retain jurisdiction.

In dissent,

Judge Tallman rejected this view, concluding that a “common
sense reading of the language” of the statute “provides that the
[Secretary of Homeland Security] gets to decide whether and when
to act for whatever reasons he alone believes are good and
sufficient.”

Id. at 896-97 (Tallman, J., dissenting).

He also

rejected the view that Congress ought be required to “recite the
words ‘sole and unreviewable discretion’ as some sort of

16

talismanic incantation” in order to make an executive function
discretionary.

Id. at 898.

The First Circuit has yet to reach this issue, and there is
an intra-circuit split among the district courts about whether
they retain jurisdiction.

Compare Magalhaes v. Napolitano, 941

F. Supp. 2d 150, 152-53 (D. Mass. 2013) (Gorton, J.) (holding
that court had no jurisdiction to review visa revocation
decision), with Betancur v. Roark, No. 10-cv-11131-RWZ, slip op.
at 3 (D. Mass. Aug. 19, 2011) (Gertner, J.) (holding that court
has jurisdiction to review visa revocation decision).
This Court, on balance, concludes that the arguments that
section 1155 commits the revocation decision to the discretion
of the agency are more persuasive.

Because this is a close

question, however, engendering both an inter-circuit and intracircuit split, this Court will proceed to analyze the merits of
the complaint.

See, e.g., Seale v. Immigration & Naturalization

Serv., 323 F.3d 150, 156 (1st Cir. 2003) (allowing court to
adjudicate merits before addressing question of statutory
standing); Sierra Club v. Robertson, 28 F.3d 753, 760 (8th Cir.
1994) (acknowledging that “the standing issue presents a close
question,” and thus “for the sake of completeness and
efficiency” addressing the merits of the challenge).
C.

Automatic Revocation

17

The AAO’s first justification for revoking Patel’s I-140
petition is that “approval of the petition was automatically
revoked under 8 C.F.R. [section] 205.1(a)(3)(iii)(D) upon the
termination of the petitioner’s business in November 2008.”
39; see also Defs.’ Mem. 10.

AR

This Court agrees.

The regulations governing the Act provide, in relevant
part, that the approval of an I-140 petition like Patel’s
automatically is revoked “[u]pon termination of the employer’s
business in an employment-based preference case under [8 U.S.C.
sections 1154(b)(1)(B), 1154(b)(1)(C), 1154(b)(2), or
1154(b)(3)].” 8 C.F.R. § 205.1(a)(3)(iii)(D).

The USCIS has

determined that a business is terminated for the purposes of
this section when it is no longer an active business.

See,

e.g., [Identifying Information Redacted By Agency], 2013 WL
4775251, at *2 (AAO Mar. 28, 2013) (automatic revocation
triggered when petition has “gone out of business”);
[Identifying Information Redacted By Agency], 2012 WL 8501708,
at *1 (AAO Apr. 26, 2012) (no active business when business is
reported closed); [Identifying Information Redacted by Agency],
2012 WL 4713199, at *1 (AAO Apr. 5, 2012) (no active business
when petitioning company had been closed).
In the instant case, Bombay Mahal reported in a letter
attached as part of Patel’s appeal that the “business officially

18

closed on [December 31, 2008].”10

AR 144.

Under the plain text

of the regulation, then, because Bombay Mahal closed by the end
of 2008, and therefore ceased to become an active business at
that time, Patel’s petition was automatically revoked as of
December 31, 2008.11
In response, Patel points to 8 U.S.C. section 1154(j)’s
“porting” provision and argues that because he changed jobs, the
USCIS is prevented from automatically revoking his petition.
See Pls.’ Mem. 17.

That provision states:

A petition under subsection (a)(1)(D)12 of this section
for an individual whose application for adjustment of
status pursuant to section 1255 of this title 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 employers if the new job is
10

In the memorandum accompanying the 2009 appeal, Patel
reports that the business closed in November 2008. AR 200.
Whether the business closed in November or December 2008,
however, is immaterial for the purpose of this analysis.
11

The date that the restaurant ceased to be “active” is
different from the date the business was “dissolved,” and per
the Commonwealth of Massachusetts, Corporations Division, Bombay
Mahal was dissolved on March 2, 2010. AR 120. Patel does not
argue that “termination” under the regulation requires that the
business be dissolved, as opposed to it being no longer active.
In any event, as an agency’s interpretation of its own
regulation, the USCIS’s construction is to be affirmed unless it
is “plainly erroneous or inconsistent with the regulation,” Auer
v. Robbins, 519 U.S. 452, 461 (1997) (quoting Robertson v.
Methow Valley Citizens Council, 490 U.S. 332, 359 (1989)), and
in this case, the interpretation is neither.
12

This numbering appears to be a scrivener’s error and
should refer to subsection (a)(1)(F). See Herrera, 571 F.3d at
886 n.5.

19

in the same or a similar occupational classification
as the job for which the petition was filed.
8 U.S.C. § 1154(j) (emphasis added).

This provision, however,

provides Patel no comfort.
This Court is not the first entity to interpret this
statutory language, and here it steps upon ground already
trodden.

In Matter of Al Wazzan, the AAO construed this

provision and held in a precedential decision that “the petition
must be ‘valid’ to begin with if it is to ‘remain valid with
respect to a new job.’”

25 I. & N. Dec. 359, 365 (AAO 2010)

(quoting 8 U.S.C. § 1154(j)).

The AAO further went on to define

a “valid” petition as one to which the applicant is “entitled.”
Id. at 367.
In considering the agency’s construction in Al Wazzan, the
Court must first answer a prerequisite question regarding the
degree of deference that ought be accorded to this
interpretation: the highly deferential standard set out in
Chevron, U.S.A., Inc. v. National Resources Defense Council,
Inc., 467 U.S. 837, 842-43 (1984), where an agency
interpretation is adopted so long as it is a “permissible
construction of the statute,” or the less deferential standard
of Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944), where the
agency is given only the deference warranted by its “power to
persuade.”

20

The First Circuit, in interpreting the Supreme Court’s
opinion in United States v. Mead Corp., 533 U.S. 218 (2001), has
determined that the primary consideration governing the type of
deference that ought apply is whether the interpretation was
intended “to carry the force of law,” and a major indicator of
that intention is whether the decision was precedential and
published.

River St. Donuts, 558 F.3d at 115-116 (holding that

an unpublished, non-precedential AAO decision ought be given
Skidmore deference).
Al Wazzan is a published, precedential decision, 25 I. & N.
Dec. at 359 n.1, which has the force of law and is binding on
the agency, 8 C.F.R. § 103.3(c).
Chevron deference.

Thus, it ought be given

See River St. Donuts, 558 F.3d at 116; see

also Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1012 (9th Cir.
2006) (“[T]he ‘essential factor’ in determining whether an
agency action warrants Chevron deference is its precedential
value.”).

Applying Chevron, the AAO’s construction is a

reasonable interpretation of an ambiguous statutory provision,
and thus ought be adopted.

See Herrera, 571 F.3d at 888

(adopting the AAO’s “cogent analysis” in Al Wazzan).13

13

Herrera was referring to an unpublished version of Al
Wazzan, which was issued by the AAO in 2005. Herrera, 571 F.3d
at 888; Al Wazzan 25 I. & N. Dec. at 359 n.1. Al Wazzan was
later republished as a precedential opinion in 2010. 25 I. & N.
Dec. at 359 n.1.
21

In the instant case, the AAO expanded slightly upon its Al
Wazzan interpretation in its March 2013 opinion.

It concluded

that:
A plain reading of the phrase “will remain valid”
suggests that the petition must be valid prior to any
consideration of whether or not the adjustment
application was pending more than 180 days and/or the
new position is [the] same or similar.
In other words, it is not possible for a petition
to remain valid if it is not valid currently.
AR 37.

While the AAO’s non-precedential opinion is not entitled

to Chevron deference, it may claim deference under Skidmore.
Skidmore determines deference based upon a “sliding-scale
approach under which the degree of deference accorded to an
agency interpretation hinges on a variety of factors, such as
‘the thoroughness evident in [the agency’s] consideration, the
validity of its reasoning, [and the] consistency [of its
interpretation] with earlier and later pronouncements.”

Doe v.

Leavitt, 552 F.3d 75, 81 (1st Cir. 2009) (quoting Skidmore, 323
U.S. at 140) (alterations in original).

In applying Skidmore,

the First Circuit has further distilled these factors into
“thoroughness, formality, validity, consistency, and agency
expertise.”

Id. at 81 (citing Kristin E. Hickman & Matthew D.

Krueger, In Search of the Modern Skidmore Standard,107 Colum. L.
Rev. 1235, 1259 (2007)).
These factors cut in favor of granting the AAO considerable
deference.

Turning first to thoroughness, as part of its

22

analysis, the agency “highlighted relevant portions of both the
statutory scheme and its legislative history,” as well as other
on-point judicial precedent.

The appropriate use of these

sources is a consideration in determining whether the
“interpretation was a product of through consideration.”

Id. at

82 (citing Western Union Tel. Co. v. Fed. Commc’n Comm’n, 665
F.2d 1126, 1143 (D.C. Cir. 1981)).

Moreover, the agency’s

interpretation was first promulgated in its January 2013 Request
for Evidence, see AR 110-11, and Patel had an opportunity to
respond to that construction in writing, see AR 46-47.

This is

the type of “open exchange” between parties that the First
Circuit has termed a “badge of thoroughness.”

Doe, 552 F.3d at

82 (citing Rubie’s Costume Co. v. United States, 337 F.3d 1350,
1356 (Fed. Cir. 2003)).

Second, while this interpretation lacks

the force of law, it was not a mere casual construction, but
rather was the product of a multilayered intra-agency appellate
process involving relatively formal procedures.

See 8 C.F.R. §

103.3 (discussing AAO procedures).
Third, “[t]he ‘validity’ element of Skidmore analysis draws
. . . attention to whether an agency pronouncement is wellreasoned, substantiated, and logical.”

De La Mota v. United

States Dep’t. of Educ., 412 F.3d 71, 80 (2d Cir. 2005).

Here,

the agency appropriately and reasonably built its interpretation
upon the gloss that Al Wazzan gave to “will remain valid.”

23

The

AAO’s interpretation of the phrase to mean that “it is not
possible for a petition to remain valid if it is not valid
currently,” AR 38, is logically consistent with Al Wazzan’s
interpretation of “remain valid” to mean that the petition must
be valid “to begin with.”

Al Wazzan, 25 I. & N. Dec. at 365.

Moreover, the AAO engaged with the purpose of the statute in a
thoughtful and logical manner by examining the regulatory
context at the time the statute was written, while also
considering the Ninth Circuit’s interpretation of the same
See AR 37.

language in Herrera.

Such factors cut in favor of a

determination that the interpretation was valid.

See Doe, 552

F.3d at 82 (considering whether agency “made good use of
available interpretive resources” to determine validity).
Fourth, with respect to consistency, as discussed above,
the agency’s interpretation is consistent with the approach
taken in Al Wazzan, and there is no evidence that USCIS has
taken a different interpretive tack since it began enforcing the
porting provision.

Finally, turning to agency expertise, the

USCIS is the agency charged with interpreting this statute, and
it does so on a “proactive day-to-day” basis, which cuts in
favor of deference.

In re New Times Sec. Servs., Inc., 371 F.3d

68, 82 (2d Cir. 2004).
Thus, for the aforementioned reasons, because the AAO’s
interpretation is worthy of deference, this Court adopts the

24

agency’s construction of the term “will remain valid” to mean
that “the petition must be valid prior to any consideration of
whether or not” the rest of the portability provision applies.
AR 37.
Turning back to the facts of the case, because Bombay Mahal
ceased being an active business in December 2008, Patel’s
petition was automatically terminated at that time.

Therefore,

when he moved to a new job at Bollywood Cafe in February 2009,
he had no valid petition to port, even though he satisfied all
of the other additional statutory criteria.14

Thus, the agency

properly revoked his petition under 8 C.F.R. section
205.1(a)(3)(iii)(D).
D.

For-Cause Termination

In addition to the automatic revocation grounds discussed
above, the AAO justified terminating Patel’s petition on two
additional, independent for-cause grounds: that Bombay Mahal
lacked the ability to pay the proffered wage to all its I-140
beneficiary-employees, and that Patel did not provide sufficient
evidence of his employment training and experience.
In the precedential decision, Matter of Estime, 19 I. & N.
Dec. 450 (BIA 1987), the agency held that it may revoke a

14

There is no dispute that Patel’s petition had been
pending for more than 180 days, that he had changed employers,
and that his new job was in the same or similar occupation
classification as his original job.
25

petition if the “evidence of record at the time the decision was
issued . . . warranted such a denial.”

Id. at 452.

The Ninth

Circuit has held that this is a “reasonabl[e] interpret[ation]”
of the agency’s revocation authority, and thus ought be given
Chevron deference.

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

749, 754 n.3 (9th Cir. 2008).

This Court agrees.

It thus

reviews the AAO’s decision in the instant case for compliance
with that substantive requirement, and, as required by the APA,
applies an arbitrary and capricious standard of review.
1.

Ability to Pay Proffered Wage

An employer filing an I-140 petition on behalf of an
immigrant employee must have the ability to pay that worker.
The relevant regulatory provision states:
Any petition filed by or for an employment-based
immigrant which requires an offer of employment must
be accompanied by evidence that the prospective United
States employer has the ability to pay the proffered
wage. The petitioner must demonstrate this ability at
the time the priority date is established and
continuing until the beneficiary obtains lawful
permanent residence. Evidence of this ability shall
be either in the form of copies of annual reports,
federal tax returns, or audited financial statements.
8 C.F.R. § 204.5(g)(2).

This obligation is not limited only to

the specific petition at issue, and the agency cites to Matter
of Great Wall, 16. I. & N. Dec. 142 (BIA 1977), for the
proposition that the regulation requires that the employer “must
establish the continuing ability to pay the combined proffered

26

wages to each beneficiary from the priority date of the instant
petition.”15

AR 40 (citing Great Wall, 16. I. & N. Dec. at 144-

45).

15

While Great Wall has been repeatedly embraced by the
agency for the above-stated proposition, see, e.g., [Identifying
Information Redacted by Agency], 2012 WL 9161264, at *6 (AAO
Nov. 29, 2012), the agency’s reasoning in the original
administrative action is relatively thin. Great Wall starts
with the premise that Congress did not intend that a petitioner
“who admittedly could not pay the offered wage at the time the
petition was filed” should be eligible to have the petition
approved. 16 I. & N. Dec. at 144-45. In order to implement
this congressional consideration, it then concludes that “the
[agency] must consider the merits of the petitioner’s job offer,
so that a determination can be made whether the job offer is
realistic and whether the wage offer can be met,” which thus
requires an examination of the “circumstances at the time of
filing of the petition.” Id. at 145. Such circumstances
presumably include a determination of whether the employer could
pay the wages of all the employees reported working at the site
-- if not, then the offer would not be “realistic,” and from
that reasoning the agency appears to have drawn the proposition
that the petitioner must be able “to pay the combined proffered
wages to each beneficiary.” AR 40. The agency does not,
however, make that analytical step explicit.
Nevertheless, the Court adopts this interpretation. Under
the principle set out by the Supreme Court in Auer v. Robbins,
519 U.S. 452 (1997), an interpretation by an agency of its own
regulations is “controlling unless ‘plainly erroneous or
inconsistent with the regulation.’” Id. at 461 (quoting
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359
(1989)); see also Massachusetts v. Sebelius, 638 F.3d 24, 33-36
(1st Cir. 2011) (clarifying limitations of Auer deference).
Here, the regulation in question requires the employer to
demonstrate an ability to pay the proffered wage. It is not
unreasonable to consider the employer’s ability to pay its total
wage obligations as part of an employee-specific inquiry. Thus,
because this Court cannot say that such an interpretation is
either “plainly erroneous” or “inconsistent” with the regulatory
text, it defers.

27

There are four ways the employer can establish its ability
to pay.

“First, an employer can show that he is already

employing the alien beneficiary at a wage equal to that
specified in the Form ETA-750.”

Taco Especial v. Napolitano,

696 F. Supp. 2d 873, 878-79 (E.D. Mich. 2010) (citing USCIS
Memorandum, Determination of Ability to Pay Under 8 C.F.R.
204.5(g)(2), (May 4, 2004)).

Second, the employer can establish

“that its yearly net income exceeds the expected yearly wage
specified in the [f]orm.”

Id. at 879.

Third, the “employer can

show that its net current assets exceed the expected yearly
wage.”

Id.

Finally, the agency has the discretion to consider

other evidence, including whether the business has a “reasonable
expectation of future profits sufficient to pay the proffered
wage based on a totality of the circumstances.”

Id. (citing

Matter of Sonegawa, 12 I. & N. Dec. 612 (BIA 1967)); see also
Just Bagels Mfg., Inc. v. Mayorkas, 900 F. Supp. 2d. 363, 375
(S.D.N.Y. 2012) (noting that in “marginal or borderline” cases
it is appropriate to consider the “overall magnitude of the
entity’s business activities”) (quoting [Identifying Information
Redacted by Agency], File No. LIN-06-277-50232, 2009 WL 1449670,
at *5 (AAO Feb. 5, 2009)).
Turning back to the present case, the agency first looked
at the wages Bombay Mahal had paid Patel.

AR 39.

The agency

declared that because the Form ETA-750 stated that Patel would

28

be paid $13.01 per hour for a work week of 35 hours, Patel would
nneed to demonstrate income of at least $23,678.20 per year.
39.

AR

Patel provided W-2 forms indicating that he had been paid

$9,450 in 2004, $24,050 in 2005, $24,137.94 in 2007, and
$18,565.27 in 2008.16

AR 52-53, 56-57.

The AAO thus concluded

that Bombay Mahal had not established that it paid the threshold
wage in 2003, 2004, 2006, 2008, or 2009.

AR 40.

While this

Court might quibble about whether to include all of 2003 in that
calculation, since the priority date, and thus the date from
which Patel had to be first paid, was April 4, 2003, it cannot
hold that the conclusion that Bombay Mahal did not bear its
burden of showing that it paid Patel the proffered wage in 2004,
2006, 2008, and 2009 was irrational.

This independently would

be enough to justify revoking the petition.
The AAO next turned to the second and third grounds for
proving ability to pay: yearly net income and net current assets
for all sponsored I-140 petitions.

Here, the agency pointed to

fifteen beneficiaries sponsored by Bombay Mahal and requested
tax documentation from the restaurant to establish that wages
were paid to all of those beneficiaries.
16

AR 40-41.

Bombay

Patel submitted an IRS Form 1040, but not a W-2, in 2006,
which reported that he had $29,380 in wage and salary income,
although it did not indicate the source thereof. AR 54. The
AAO did not accept the Form 1040 in lieu of the W-2 because
“there is no evidence that the wages he received that year were
from [Bombay Mahal].” AR 40 n.8.

29

Mahal submitted its IRS Forms 1120S for 2003 through 2008, AR
62-108, which indicated the following:17
Year

Net Income

Net Current Assets

2003

$31,687

-$748

2004

$36,823

-$8,882

2005

$33,601

-$28,581

2006

$31,268

-$18,109

2007

$29,840

$27,057

2008

-$18,317

$0

Looking at these figures, while they are sufficient (in most
years) to pay Patel alone, they would not cover the additional
sponsored workers employed at Bombay Mahal.

See AR 42.

Finally, turning to the fourth method of demonstrating ability
to pay, the fact that the restaurant went out of business
suggests that the AAO need not have looked to see whether there
was a “reasonable expectation of future profits” sufficient to

17

Net income was calculated by looking at Schedule K of the
IRS Form 1120S, which adjusts ordinary income “to account for
additional income, credits, deductions or other adjustments.”
AR 41 n.10. The AAO defines net current assets as “the
difference between the petitioner’s current assets and current
liabilities; the current assets are shown on Schedule L, lines 1
through 6 and current liabilities are shown on lines 16 through
18.” AR 41 n.11. Such a definition is commonly used in AAO
decisions, and Patel does not challenge this method of
calculation. See, e.g., [Identifying Information Redacted by
Agency], 2012 WL 9392067, at *4 (AAO June 8, 2012).

30

cover the wages in question.
2d. at 879.

See Taco Especial, 669 F. Supp.

Thus, because Bombay Mahal could not show its

ability to pay Patel by using any of the four grounds that the
AAO may consider, the agency was not irrational in revoking the
petition on ability-to-pay grounds.
2.

Ability to Show Requisite Work Experience

In order to qualify for a skilled worker employment visa, a
petitioner must demonstrate that the employee in question had
the requisite job experience at the time the application was
submitted.

Matter of Wing’s Tea House, 16 I. & N. Dec. 158,

159-60 (BIA 1977); see also Viraj, LLC v. Holder, No. 2:12-CV00127-RWS, 2013 WL 1943431, at *2 (N.D. Ga. May 8, 2013)
(applying the Wing’s Tea House standard).

The employee

demonstrates compliance with this requirement as follows:
Evidence relating to qualifying experience or training
shall be in the form of letter(s) from current or
former employer(s) or trainer(s) and shall include the
name, address, and title of the writer, and a specific
description of the duties performed by the alien or of
the training received. If such evidence is
unavailable, other documentation relating to the
alien's experience or training will be considered.
8 C.F.R. § 204.5(g)(1); see also id. § 204.5(l)(3)(ii)(A) (“Any
requirements of training or experience for skilled workers,
professionals, or other workers must be supported by letters
from trainers or employers giving the name, address, and title

31

of the trainer or employer, and a description of the training
received or the experience of the alien.”).
Patel submitted two references to vouch for his
qualifications.

First, he sent a letter dated April 30, 1998,

and written by an employee of the Grand Hotel (Bombay), whose
title was not identified, which stated that Patel “has been in
our employment as a cook from April ’95 to April 98 in [the]
India and tandoori section.”

AR 304.

Second, he submitted a

letter dated March 9, 2009, which was written by Vasant K.
Bhalekar, General Manager of the Grand Hotel (Bombay).

AR 220.

This letter said that Patel “had been in our employment as a
Tandoori and Curry (Indian Specialties) Cook from April 1995 to
April 1998.”

Id.

Additionally, on his Form ETA-750, Patel

wrote that during his employment at the Grand Hotel (Bombay), he
“cooked many styles of Indian foods for lunch and dinner,
including tandoori style, curry, special vegetarian dishes, and
non-vegetarian dishes, cold and hot appetizers and daily
specials.”

AR 161.

Patel’s two letters are not sufficiently specific to
satisfy the regulatory requirements detailed above.

The 1998

letter does not identify the title of his employer, nor does it
describe Patel’s specific duties beyond “a cook . . . in [the]
India and tandoori section,” which plausibly describes Patel’s
role or job title, but not his training or experience.

32

AR 304.

The 2009 letter does identify its author, but similarly only
describes Patel’s role; there is not a “specific description” of
his duties as is required by the regulation.

While Patel’s Form

ETA-750 does sufficiently describe his duties, the regulations
are clear that work experience documentation must be from an
employer or trainer, rather than a self-affidavit.18
C.F.R. § 204.5(g)(1).

See 8

For that reason, while Patel criticizes

the AAO for not interviewing him “to ask about his work
experience and his job duties,” Pls.’ Mem. 16, such an
interview, even had it occurred, would not satisfy the
“documentation” requirement of the governing regulations.
Thus, given this evidence and framework, this Court cannot
find that “the evidence presented would compel a reasonable
finder of fact to reach a contrary result,” and thus must affirm
this independent ground for revocation.

Family Inc. v. United

States Citizenship & Immigration Servs., 469 F.3d 1313, 1315
(9th Cir. 2006) (internal citation and quotation marks omitted).
E.

Procedural Challenges

Patel raises three additional procedural arguments in favor
of overturning the AAO’s decision.

18

While one of these three

The regulation does provide that “[i]f such [documentary
letters are] unavailable, other documentation relating to the
alien’s experience or training will be considered.” 8 C.F.R. §
204.5(g)(1). Here, because the letters are available, though
inadequate, the agency need not look to other evidence.
33

arguments has some merit, it is not sufficient to justify
reversing the AAO’s decision.
1.

Length of Time to Revoke Petition

First, Patel argues that the Government took an improperly
long period of time to revoke his petition.

See Pls.’ Mem. 13

(“[T]he passage of time from when the [USCIS] first took action
to revoke the visa petition until the AAO requested other
evidence from a dissolved corporation caused serious prejudice
to Patel by inhibiting his and Bombay’s ability to contest the
agency’s actions.”).

This argument, however, is foreclosed by

the statutory provision governing revocation, which provides
that the Secretary of Homeland Security “may, at any time . . .
revoke the approval of any petition.”

8 U.S.C. § 1155.

“The

statute permits revocation ‘at any time,’ so there plainly was
no time constraint on when the agency could revoke the
approval.”

Herrera, 571 F.3d at 886.

Moreover, insomuch as Patel is making an implicit argument
that the Government ought be estopped from arguing that no time
limit applies, that argument, too, fails.

Estoppel against the

federal government is generally disfavored, see Heckler v.
Community Health Servs. of Crawford Cnty., Inc., 467 U.S. 51, 60
(1984), and in order to successfully bring a claim, the
plaintiff must establish that:

34

(1) the government engaged in affirmative misconduct
going beyond mere negligence; (2) the government made
a knowing false representation or concealment of
material facts to a party ignorant of the facts with
the intention that the other party should rely on it;
and (3) the wrongful acts must cause a serious
injustice and the public's interest must not suffer
undue damage by the imposition of liability.
Perejoan-Palau v. United States Citizenship & Immigration
Servs., 684 F. Supp. 2d. 225, 231 (D.P.R. 2010).

Patel cannot

meet that standard –- at worst, the delay was the result of
negligence on the part of the Government (and there is no
indication of even that), and there is simply no evidence in the
record of affirmative misconduct or knowing false
representations on the part of the Government.19
2.

Notice

Second, Patel alleges that the USCIS did not provide proper
notice, as required both by regulation and statute.
12-13; see 5 U.S.C. § 555(e); 8 C.F.R. § 205.2.

Pls.’ Mem.

Turning to the

first ground for terminating the petition, automatic revocation,
19

In an effort to establish such misconduct, Patel seeks to
introduce a series of affidavits by immigration attorneys in the
Massachusetts area, which allege that the USCIS’s action was
motivated solely by the fact that Patel’s previous attorney, who
had been accused of misconduct, had been on the case. See,
e.g., Aff. Attorney 2, ECF No. 33-1. As evidence extrinsic to
the administrative record available to the agency at the time it
made its decision, this Court cannot consider such material
unless there is a “strong showing of bad faith or improper
behavior” on the part of the government or a “failure to explain
administrative action as to frustrate effective judicial
review.” Olsen, 414 F.3d at 155-56 (internal citations and
quotation marks omitted). These affidavits do not satisfy
either criteria.

35

the regulation in question requires only ex post notification.
See 8 C.F.R. § 205.1(b) (“When it shall appear to the director
that the approval of a petition has been automatically revoked,
he or she shall cause a notice of such revocation . . . to be
mailed to the petitioner’s last known address.”).

Here, it

appears that the AAO appeal which noticed such revocation was
sent to Bombay Mahal and Patel’s attorney, thus satisfying the
notice requirement.20

See AR 32.

The second and third grounds –- ability to pay and ability
to show job qualifications –- are for-cause grounds requiring ex
ante notification.

See 8 C.F.R. § 103.2(b)(16); id. § 205.2(b).

Here, the agency sent notices addressing both points.

Turning

first to the ability to pay, the AAO’s January 10, 2013, Request
For Evidence discussed in detail the need for Bombay Mahal to
provide evidence –- through W-2 documentation –- of payment of
the proffered wage to Patel.

AR 112.

The notice also pointed

to Bombay Mahal’s additional I-140 beneficiaries and requested
tax records issued to each beneficiary in order to establish
whether the restaurant had the ability to pay the combined

20

Moreover, though not required, the agency provided pretermination notice to Bombay Mahal and Patel. The November 1,
2012, Notice of Intent to Dismiss and Derogatory Information
stated that the agency was planning to revoke the petition on
the grounds that it “would be subject to automatic revocation
due to the termination of [Bombay Mahal’s] business.” AR 193.
36

proffered wage.

AR 112-113.

Such notice was sufficient and

satisfies the relevant regulatory requirements.
The agency’s job qualifications notice, however, was
insufficient.

The February 18, 2009, Notice of Intent to Revoke

expressed doubts about the reliability of Patel’s employment
verification letter and, quoting 8 C.F.R. section 204.5(g)(1),
requested additional information.

AR 318.

In its appeal

decision, the AAO concluded that this notice “neither provided
nor referred to specific evidence or information relating to . .
. [Patel]’s lack of qualifications in the present case.”

AR 35.

Such notice, the agency concluded, failed to comply with the
rule set out in Matter of Arias, which provides that “where a
notice of intention to revoke is based upon an unsupported
statement . . . , revocation of the visa petition cannot be
sustained.”

19 I. & N. Dec. 568, 570 (BIA 1988).

Because the

agency did not supplement this notice with an additional, more
specific statement, this Court agrees with the AAO that such
notice was inadequate, and thus would conclude that there was
insufficient notice to justify revocation on this ground alone.
3.

Due Process Claim

Finally, Patel avers generally that he was “denied due
process” during the appeals process, although he does not
provide any context or explanation for this claim.

37

Compl. ¶

18.21

A court, however, may “consider the [Due Process Clause]

only if the statute and regulations are deficient,” and here the
procedures in place are constitutionally adequate.

Portillo-

Rendon v. Holder, 662 F.3d 815, 817 (7th Cir. 2011).

Even were

they not, in order to bring a due process claim, a claimant must
establish a “constitutionally protected property interest.”
Centro Medico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d
1, 8 (1st Cir. 2005).
I-140 petition.

There is no such property interest in an

See, e.g., Smirnov v. Clinton, 806 F. Supp. 2d

1, 12 (D.D.C. 2011), aff’d, 487 F. App’x 582 (D.C. Cir. 2012)).
Therefore this claim must fail.
III. CONCLUSION
For the aforementioned reasons, this Court GRANTS the
Government’s motion for summary judgment, ECF No. 22, and DENIES
Patel’s cross-motion for summary judgment, ECF No. 32.

SO ORDERED.

/s/ William G. Young
WILLIAM G. YOUNG
DISTRICT JUDGE

21

The Complaint includes two paragraphs numbered as
eighteen. This citation refers to the second of those
paragraphs.
38