Khamisani v. Holder et al
Filing
102
MEMORANDUM OPINION Denying 86 Cross MOTION for Summary Judgment for Plaintiffs, Granting 87 MOTION for Summary Judgment (Signed by Magistrate Judge Nancy K. Johnson) Parties notified.(sbutler, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
IKE KHAMISANI and
K.B. AFFORDABLE, INC.,
§
§
§
§
§
§
§
§
§
§
Plaintiffs,
v.
ERIC HOLDER, et al.,
Defendants.
CIVIL ACTION NO. H-11-3485
MEMORANDUM OPINION
Pending before the court1 are Plaintiff K.B. Affordable,
Inc.’s
(“KBA”)2
Motion
for
Summary
Judgment
(Doc.
Defendants’ Motion for Summary Judgment (Doc. 87).
86)
and
The court has
considered the motions, the responses, all other relevant filings,
and the applicable law. For the reasons set forth below, the court
DENIES Plaintiff KBA’s motion and GRANTS Defendants’ motion.
I.
Case Background
Plaintiff KBA and Ike Khamisani3 filed this action challenging
adverse administrative decisions by the Department of Homeland
Security, U.S. Citizenship and Immigration Services (“USCIS”)
1
The parties consented to proceed before the undersigned magistrate
judge for all proceedings, including trial and final judgment, pursuant to 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. Doc. 11.
2
Ike Khamisani was a movant for summary judgment at the time the
motion was filed but, since then, has been dismissed from the lawsuit. See Doc.
101, Am. Mem. Op. Dated Mar. 14, 2013.
3
Ike Khamisani’s full name is “Mohammed Iqbal Khamisani.” See CAR
Certification of Docs.
The court refers to him throughout this memorandum
opinion as “Ike Khamisani.”
regarding the denials of a Form I-140 Petition for Alien Worker
(“I-140”) filed by Plaintiff KBA on behalf of Ike Khamisani and a
Form I-485 Application to Register Permanent Residence or Adjust
Status
(“I-485”)
filed
by
Ike
Khamisani,
which
required
the
approval of the I-140.
A.
Factual Background
Plaintiff KBA, which is in the furniture retail and car rental
business, was incorporated in Texas on February 12, 2004, by
Mohammad4 Z. Khamisani, its only director at the time.5
Eight days
later, Khamisani Brothers (Pvt) Limited, a Pakistani business,
purchased all of Plaintiff KBA’s common stock.6
In March 2004,
Mohammad Z. Khamisani incorporated Khamisani Business Services Inc.
in the State of Texas, listing himself as the only director.7
On
May 1, 2004, Plaintiff KBA agreed to buy AZ Affordable Furniture,
a d/b/a of Uzair Zavary that was being operated at two locations in
Phoenix, Arizona.8
Ike Khamisani, on behalf of Khamisani Business Services Inc.,
4
This man’s first name is spelled variously as “Mohammad,” “Mohammed,”
and “Muhammad” in the record. Compare, e.g., Certified Admin. R. (“CAR”) 4 with
CAR 194 with CAR 466. For purposes of this memorandum opinion, the court spells
the name “Mohammad,” as it appears under his signature on the I-140, which
differs from the spelling of his name on the first page of the petition. Compare
CAR 2 with CAR 4.
5
CAR 3, 73, 75, 76, 78. In its I-140, Plaintiff KBA indicated that
it had been established in August 2004, an apparent error. See CAR 3.
6
See CAR 97.
7
See CAR 468-70.
8
See CAR 193-94.
2
and Mohammad Z. Khamisani, on behalf of Plaintiff KBA, agreed to
enter a joint venture as of June 2004 for the purpose of expanding
the business in furniture sales and car rentals.9
On June 9, 2004,
Khamisani Brothers Group10 sold Plaintiff KBA to NET-LINE (PK)
(“NL”), a Pakistani information technology business whose sole
proprietor was Mohammed Iqbal Zavary.11
Ike Khamisani, a citizen of Pakistan who was born in India,
entered the United States on June 19, 2004, on a nonimmigrant
visitor’s visa that authorized him to remain in the United States
until December 18, 2004.12
On December 13, 2004, Plaintiff KBA
filed an I-140 on behalf of Ike Khamisani, seeking a multinational
executive or manager visa in order to employ him as “Director,
Business Development.”13
In a letter dated December 15, 2004, Mohammad Z. Khamisani
explained
that
Plaintiff
President/Director,
9
KBA
was
being
Marketing,
and
Aslam
managed
Qasim
as
by
him
as
Management
See CAR 465-66.
10
The sales agreement reflects that Khamisani Brothers Group was “doing
business in the names of Khamisani Brothers pvt limited at Karachi & Pak Arab
Enterprises at Hyderabad.” CAR 13.
11
See CAR 13-15, 19. According to Mohammad Z. Khamisani, Mohammed
Iqbal Zavary established the furniture business in California 1996. See CAR 6.
He relocated to Arizona in July 1999 and established Affordable Furniture Inc.
See CAR 6-7. In January 2003, Mohammed Iqbal Zavary sold the Arizona operations
to Uzair Zavary, who apparently renamed it AZ Affordable Furniture. See CAR 7.
12
See CAR 2.
13
See CAR 2-4.
3
Consultant.14
Mohammad Z. Khamisani stated that Plaintiff KBA
planned to expand the business into a chain of in-mall stores and
to
open
stores
in
Arizona,
subsequent five-year period.15
California,
and
Texas
over
the
Ike Khamisani was responsible for
business development at NL at the time of the I-140 and had been
the Director, Business Development, of the Khamisani Group since
June 1994.16
•
Responsible for the expansion of [Plaintiff KBA]
within the US;
[sic]Plan and develop the US investments, analyze
market trends, set strategic planning goals and be
responsible for the sales efforts of furniture
retail and car rental business;
Responsible for operating the business in all
material aspects including payments of all debts,
payment of employee salaries, employee taxes, and
keep [sic] the business and its activities in full
compliance with all licensing regulations of
[Plaintiff KBA];
Responsible for formulating policies regarding
sales and marketing of furniture retail and car
rental business;
Responsible for hiring and firing personnel in the
sales and marketing department of [Plaintiff KBA.]17
•
•
•
•
On
At Plaintiff KBA, he would:
a
document
entitled
“Functional
Flow
Chart
for
the
Beneficiary,” Plaintiff KBA listed Mohammad Z. Khamisani as its
President/Director, Marketing, and explained his duties, but did
14
CAR 7.
15
See CAR 7.
16
See CAR 8.
17
CAR 8.
4
not include any reference to Ike Khamisani.18
On an organizational
chart for Khamisani Business Services, Inc., Ike Khamisani was
listed
as
the
“Director
Business
Development,”
the
ultimate
supervisor for five employees and “Various Cleaners, Drivers and
Misc Contractors.”19
Yousuf
Kamran
Development.20
In
May
On an organizational chart for Plaintiff KBA,
Khamisani
was
listed
as
Director,
Business
Ike Khamisani was not on that chart.21
2005,
the
USCIS
sent
a
request
for
evidence
to
Plaintiff KBA, explaining that it needed documentation reflecting
the following: 1) the purchase/sale of the foreign company and the
U.S. company; 2) an offer to Ike Khamisani of permanent employment
with salary listed; and 3) proof that Plaintiff KBA was solvent and
able to pay the salary, including tax returns for Plaintiff KBA and
AZ Affordable Furniture.22
Plaintiff KBA responded by letter and
over one hundred pages of exhibits.23
The letter provided a
narrative summarizing the facts and explaining the previously
submitted exhibits.24
Among other information and legal argument,
the letter stated that AZ Affordable Furniture had been in business
18
See CAR 150.
19
CAR 175.
20
CAR 176.
21
See id.
22
CAR 488.
23
See CAR 491-641.
24
See CAR 491-96.
5
for about eight years prior to Plaintiff KBA’s acquiring it.25
On August 30, 2005, the USCIS issued a letter explaining its
intent to deny the I-140 on the basis that Plaintiff KBA had not
been in business for at least one year prior to filing the I-140,
that it could not verify its solvency and ability to pay the
offered
wage,
and
that
discrepancies
existed
in
the
record
concerning the number of employees working for Plaintiff KBA and
the duties to be performed by Ike Khamisani.26
The letter allowed
thirty days for Plaintiff KBA to submit evidence to counter the
above findings, specifically requesting “a detailed description of
the beneficiary’s job duties and the percentage of time spent on
each task per week.”27
In a letter dated August 11, 2005,28 Plaintiff KBA responded
with additional documentation attached.29
Among other information
and legal argument, the letter stated that Ike Khamisani had been
working in business development for both the furniture and the car
rental businesses.30
which
was
An organizational chart for Plaintiff KBA,
submitted
25
letter,
showed
Ike
Khamisani,
CAR 642-44.
27
the
CAR 491-92.
26
with
CAR 642, 643.
28
This date must be a typographical error as the letter to which it
responded was dated August 30, 2005. See CAR 642.
29
See CAR 649-771.
30
See CAR 653-54.
6
“Director Business Development,” as one of four directors reporting
to Mohammad Z. Khamisani, “President/Director Marketing.”31 A total
of seventeen employees, as well as contract loaders, drivers, and
cleaners, were listed as ultimately reporting to the group of four
directors.32
Plaintiff KBA also provided the following details
about Ike Khamisani’s duties and the time allotted for each:
•
Responsible for the overall expansion of [Plaintiff
KBA] (Affordable Furniture) and Khamisani Business
Services Inc. (Thrifty Car Rental), within the US
with regard to Territories, Locations, Sales
volume, Inventory volume, Product/Services line
etc.; [25%]
•
[sic]Plan and develop the US investments including
new ventures, new territories, new locations, new
products/services, analyze market trends, set
strategic planning goals and be responsible for the
sales efforts of furniture retail/wholesale and car
rental business; [20%]
•
Responsible for operating the business in all
material aspects including payments of all debts,
payment of employee salaries, employee taxes, and
keep [sic] the business and its activities in full
compliance with all licensing regulations of
[Plaintiff KBA] and Khamisani Business Services
Inc.; [10%]
•
Responsible for formulating policies and guidelines
regarding sales and marketing of furniture retail
and car rental business; [20%]
•
Responsible for hiring and firing personnel in the
sales and marketing department of [Plaintiff KBA]
and Khamisani Business Services Inc.; [15%]
•
Responsible to keep management updated by attending
31
CAR 764.
32
Id.
7
conventions/shows/seminars/conferences/exhibitions
and
interacting
with
principles/suppliers/
manufacturers with regard to upcoming products/
services and trends thereon; [5%]
•
Responsible
for
offering,
negotiating
formulating corporate accounts agreements
rental car services[.][5%]33
and
for
On November 14, 2005, the director of the USCIS’s Texas
Service Center issued her decision denying Plaintiff KBA’s I-140.34
In the explanation for the denial, the director stated that, in
light
of
including
conflicting
the
and/or
indication
invalid
that
Ike
evidence
Khamisani
in
had
the
record,
engaged
in
unauthorized employment with Plaintiff KBA, “doubt ha[d] been shed
on
this
case
and
the
evidence
is
deemed
unreliable.”35
Additionally, the director found that Plaintiff KBA failed to
establish that it had been in business for one year prior to the
date the I-140 was filed and that Ike Khamisani was working in an
executive or managerial capacity.36
Plaintiff KBA filed an administrative appeal of the denial
with the USCIS’s Administrative Appeals Office (“AAO”).37
In an
accompanying brief, Plaintiff KBA noted an error in the denial that
confused the identities of Ike Khamisani and Mohammad Z. Khamisani,
33
CAR 765-66.
34
See CAR 772-76.
35
CAR 773.
36
CAR 773-74.
37
See CAR 779.
8
Ike Khamisani’s son.38
It claimed that Ike Khamisani was not
involved in unauthorized employment but “relied on others with the
requisite immigration status to work for the business and take
executive
charge
at
the
appropriate
stages.”39
In
general,
Plaintiff KBA took issue with the reasons cited by the Texas
Service Center director for finding the evidence unreliable.40
Among the documents attached to the brief was an organizational
chart for Plaintiff KBA in which more positions were identified
than any chart previously submitted, but it did not list Ike
Khamisani in any position.41
On May 12, 2006, the AAO notified Plaintiff KBA that the
appeal was dismissed.42
alternative”
reasons
The AAO provided three “independent and
supporting
the
denial
of
the
I-140:
1)
Plaintiff KBA had not been doing business for at least one year
prior to the date that the petition was filed; 2) Plaintiff KBA
lacked credibility, which called into question the reliability of
the claims it made in support of the I-140;43 and 3) Plaintiff KBA
38
CAR 782.
39
CAR 783.
40
See CAR 783-88.
41
See CAR 824.
42
See CAR 990-95.
43
The second basis for dismissal was divided into two parts: 1) the
record lacked sufficient evidence to establish that Plaintiff KBA had the
staffing structure indicated in the organizational chart at the time it filed the
I-140; and 2) the record suggested that Ike Khamisani was being paid by Plaintiff
KBA, indicating that he was employed while lacking documentation to authorize
9
failed
to
establish
that
Ike
Khamisani
would
performing duties of an executive or manager.44
primarily
be
Citing a federal
district court opinion out of California, the AAO explained to
Plaintiff KBA that, when the AAO denies a petition based on
multiple alternative grounds, a challenge will succeed only if the
petitioner can show that the AAO abused its discretion with respect
to all of the enumerated grounds.45
B.
Procedural Background
Plaintiff KBA and Ike Khamisani filed their original complaint
on September 26, 2011, and, by agreement of the parties and with
leave of court, amended in February 2012.46 They sought relief from
the USCIS’s decisions pursuant to the Administrative Procedures
Act47 (“APA”) and the Declaratory Judgment Act48 (“DJA”).49
They
asked the court to direct the USCIS to reverse its prior denials.50
Defendants answered the amended complaint on March 9, 2012,
employment. See CAR 993-94. Contrary to Defendant’s view, the court sees this
as one reason in support of the denial, not two separate reasons.
44
CAR 991-95.
45
See CAR 995 (citing Spencer Enters. v. United States, 229 F. Supp.2d
1025, 1037 (E.D. Cal. 2001), aff’d, 345 F.3d 683 (9th Cir. 2003)).
46
See Doc. 1, Pls.’ Original Compl., Doc. 6, Jt. Mot. for Extension of
Time; Doc. 7, Order Dated Dec. 9, 2011; Doc. 13, Pls.’ Am. Compl.
47
5 U.S.C. §§ 701-706.
48
28 U.S.C. §§ 2201-2202.
49
See Doc. 13, Pls.’ Am. Compl., ¶¶ 29, 30.
50
See generally id. ¶¶ 30, 32.
10
and, three days later, filed a motion for partial dismissal.51
about
the
same
time,
Defendants
submitted
the
At
Certified
Administrative Record.52
After the parties completed briefing on
the
they
motion
to
dismiss,
filed
cross-motions
for
summary
judgment.53
The court addressed the motion for partial dismissal in a
prior
memorandum
opinion,
granting
it
in
large
measure.54
Specifically, the court determined that it lacks subject matter
jurisdiction to review the USCIS’s decision to deny Ike Khamisani’s
I-485, that Ike Khamisani lacks standing to challenge the denial of
Plaintiff KBA’s I-140, and that U.S. Attorney General Eric H.
Holder should be dismissed.55
The only remaining claims relate to
Plaintiff KBA’s challenge to the denial of its I-140.
At this
time, the court directs its attention to the parties’ motions for
summary judgment, which address the merits of the remaining claim.
II.
Legal Standard
Summary judgment is warranted when the evidence reveals that
no genuine dispute exists regarding any material fact and the
51
See Doc. 18, Defs.’ Answer; Doc. 19, Defs.’ Mot. to Dismiss.
52
See Doc. 20, Notice of Filing Certified Admin. R.; Docs. 21-71,
Sealed Certified Admin. R.
53
See Doc. 86, Pls.’ Mot. for Summ. J.; Doc. 87, Defs.’ Mot. for Summ.
54
See Doc. 101, Am. Mem. Op.
55
See id. pp. 6-13.
J.
11
moving party is entitled to judgment as a matter of law.
Fed. R.
Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
Triple Tee Golf, Inc., v. Nike, Inc., 485 F.3d 253, 261 (5th Cir.
2007).
The summary judgment mechanism is particularly appropriate
for the review of a decision of a federal administrative agency.
Girling Health Care, Inc. v. Shalala, 85 F.3d 211, 214-15 (5th Cir.
1996).
The explanation for this lies in the relationship between
the summary judgment standard of no genuine issue as to
any material fact and the nature of judicial review of
administrative decisions . . . . [T]he administrative
agency is the fact finder. Judicial review has the
function of determining whether the administrative action
is consistent with the law – that and no more.
Id. at 215 (quoting 10A Charles Alan Wright, Arthur R. Miller &
Mary
Kay
Kane,
Federal
Practice
and
Procedure
§
2733
(1983))(alterations in the original).
The court is authorized to review final agency decisions and
to set aside any decision that is “arbitrary, capricious, an abuse
of discretion or otherwise not in accordance with the law.”56
5
U.S.C. § 706(2)(A); see also F.C.C. v. Fox Television Stations,
Inc., 556 U.S. 502, 513 (2009).
Examples of when an agency
decision is arbitrary or capricious include when the agency relied
on factors not intended by Congress, when it entirely failed to
56
The statute also directs the court to set aside agency actions if
found to be contrary to a constitutional right, in excess of statutory
jurisdiction, without proper procedural requirements, unsupported by substantial
evidence in cases of hearings, or unwarranted by the facts to the extent the
facts are subject to trial de novo by the court. 5 U.S.C. § 706(2). Here,
Plaintiff KBA claims that the decision was arbitrary and/or capricious.
12
consider an important aspect, or when it offered an explanation
that was contrary to the evidence or completely implausible. Motor
Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983).
The court’s task is to apply the APA standard of review to the
agency decision based solely on the administrative record.
Fla.
Power & Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985).
The
standard of review is narrow, requiring only that an agency
“examine
the
relevant
data
explanation for its action.”
and
articulate
a
satisfactory
F.C.C., 556 U.S. at 513 (quoting
Motor Vehicle Mfrs. Ass’n of U.S., Inc., 463 U.S. at 43).
A court should not substitute its own judgment in place of the
agency’s and should “uphold a decision of less than ideal clarity
if the agency’s path may reasonably be discerned.”
F.C.C., 556
U.S. at 513-14 (quoting Bowman Transp., Inc. v. Ark.-Best Freight
Sys., Inc., 419 U.S. 281, 286 (1974)).
should
consider
only
whether
the
In other words, the court
decision
was
based
on
the
consideration of relevant factors and whether the agency committed
a “clear error of judgment.”
285.
Bowman Transp., Inc., 419 U.S. at
“The decision need only have a rational basis and the
reviewing court need not have come to the same conclusion.” Boi Na
Braza Atlanta, LLC v. Upchurch, 194 Fed. App’x 248, 249 (5th Cir.
2006).
III. Analysis
13
In their motion for summary judgment, Defendants contend that
the AAO did not abuse its discretion with regard to any of the
separate and independent reasons supporting denial of Plaintiff
KBA’s I-140.
Plaintiff KBA’s motion focuses on the regulatory
requirement that the prospective employer have been doing business
for at least one year prior to filing an I-140.
Plaintiff KBA also
argues that contrary decisions in similar cases indicate that the
USCIS ignored “long[-]established and well-recognized practices of
prior immigration decisions” and issued a decision in this case
that
was
arbitrary
and/or
capricious.57
In
its
response
to
Defendants’ motion, Plaintiff KBA included the assertion that the
AAO abused its discretion with regard to each of the reasons given
for denial. In the remainder of that brief, however, Plaintiff KBA
discussed only two of the reasons.
The court addresses each of the reasons identified by the AAO,
beginning
with
credibility
and
Plaintiff essentially ignored.
reliability,
the
grounds
that
After discussing all three grounds
for denial, the court then turns to Plaintiff’s assertion that the
decision in this case was arbitrary or capricious because it was
not in line with prior decisions in similar cases.
A.
Credibility and Reliability
The AAO found that Plaintiff KBA lacked credibility due to
inconsistencies
57
in
the
evidence,
particularly
Doc. 86, Pls.’ Mot. for Summ. J. p. 3.
14
regarding
its
staffing structure at the time of the petition and its employment
relationship with Ike Khamisani prior to filing the petition.
The
AAO pointed out two credibility/reliability problems with Plaintiff
KBA’s I-140: 1) the evidence did not establish that, at the time of
filing
the
indicated
I-140,
on
its
Plaintiff
KBA
organizational
had
the
chart;
staffing
and
2)
the
structure
evidence
indicated that Ike Khamisani was working for Plaintiff KBA and
being paid while in the United States on a visitor’s visa for
pleasure.58
Defendants separately address these two problems.
As
noted above, Plaintiff KBA does not address credibility/reliability
at all.
The AAO provided multiple reasons for denying the I-140 and
specifically identified them as independent and alternative.
Therefore, in order for Plaintiff KBA to succeed in its challenge
to the AAO’s decision, it must establish that every reason given
was “arbitrary, capricious, an abuse of discretion or otherwise not
in accordance with the law.”
5 U.S.C. § 706(2)(A)(instructing a
reviewing court on what grounds it should set aside an agency
action); see also Khamisani v. Holder, Civil Action No. H-10-0728,
2011 WL 1232906, at *8 (S.D. Tex. Mar. 31, 2011)(unpublished)
(acknowledging that, when the AAO denies a petition based on
multiple grounds, a challenge can succeed only if every one of the
grounds violates the agency’s authority).
58
See CAR 993-94.
15
Because Plaintiff KBA
failed to show that the AAO’s credibility/reliability determination
was arbitrary, capricious, or an abuse of discretion, its challenge
to the AAO’s decision to deny the I-140 falls short of success.
Nevertheless,
the
court
reviews
the
record
whether each of the AAO’s reasons passes muster.
to
determine
The court finds
more than sufficient evidence to support the AAO’s conclusion on
credibility and reliability, specifically with regard to the two
particular inconsistencies mentioned by the AAO.
The Texas Service Center noted in the “Intent to Deny” letter
that the organizational chart for Plaintiff KBA directly conflicted
with its quarterly federal tax returns (“941 forms”) and its annual
federal unemployment tax returns (“FUTA forms”) with regard to the
number of employees.59
Plaintiff KBA responded that there were “no
real discrepancies” and that employment levels fluctuated, but that
the
fluctuation
was
not
an
“indication
of
inconsistency
or
subterfuge.”60
In her decision, the Texas Service Center director reiterated
the
same
problem,
noting
that
the
organizational
chart
for
Plaintiff KBA showed a larger number of employees than the federal
tax forms.61
The director further stated that it was not possible
to tell from the organizational chart whether it included combined
59
CAR 643.
60
CAR 653.
61
CAR 774.
16
employees from all of their companies in one chart.62
In its
appeal, Plaintiff KBA stated:
There are no conflicts between the organizational chart
and the 941[] [forms].
As it was explained to the
Service in the responses to the requests for evidence,
the chart reflects the employees under the unified
executive team depicted in those charts. The operations
encompass several operations consisting of not just
“payrolled” employees (which would be reflected in the
[941 forms]) but also contractors.63
Plaintiff KBA’s explanation did little to clarify the record.
As the AAO noted in its decision on appeal, “[W]ithout documentary
evidence to support the claim, the assertions of counsel will not
satisfy the petitioner’s burden of proof.”64 The AAO found that the
additional evidence related to 2005, not to the organization and
payroll at the time the I-140 was filed.65
The
administrative
record
contained
multiple,
undated
organizational charts for Plaintiff KBA and related entities.66 The
charts varied in the number of employees and in the positions held
by the employees for Plaintiff KBA.67
Because the organizational
charts
not
were
not
dated,
they
could
be
matched
with
the
corresponding federal tax forms to determine consistent reporting.
62
Id.
63
CAR 786.
64
CAR 993.
65
See CAR 993-94.
66
See, e.g., CAR 71, 150, 175, 176, 764, 824.
67
See id.
17
The court finds it even more troubling that at least three of the
four organizational charts for Plaintiff KBA did not list Ike
Khamisani at all and that it appears no two of Plaintiff KBA’s
organizational charts are alike.68
The other issue raised by the AAO as causing it to deem the
evidence unreliable was the indication in a letter by Mohammad Z.
Khamisani that Plaintiff had been earning a salary while in the
United
States
Khamisani’s
on
a
visitor
participation
visa.69
with
The
Plaintiff
AAO
KBA
found
and
the
that
Ike
related
entities was “more than merely that of an investor,” citing a
letter dated August 12, 2005, in which Mohammad Z. Khamisani stated
that Plaintiff KBA would “continue” to employ Ike Khamisani at a
salary of $34,000.70
There is nothing arbitrary or capricious about the AAO’s
interpretation of this evidence; rather, its conclusion that the
evidence raised doubts as to Plaintiff KBA’s credibility is based
on an examination of relevant data, is satisfactorily explained,
and is reasonable.
B.
“Doing Business” Requirement
The AAO found that Plaintiff KBA had not been doing business
for at least one year prior to filing the I-140 on Ike Khamisani’s
68
See CAR 150, 176, 764, 824.
69
CAR 994.
70
CAR 994; see also CAR 532.
18
behalf. Defendants contend that decision is correct, but Plaintiff
contends that the AAO misinterpreted the regulation.
The point of
contention between the parties is the AAO’s interpretation that
“doing business” requirement applies to the petitioner and not to
the
established
business
that
the
newly
formed
petitioner
purchased.
A federal agency’s interpretation of statutory or regulatory
language
under
its
administration
is
“to
be
accepted
unless
Congress has spoken directly on the issue,” even if the language is
ambiguous. Defensor v. Meissner, 201 F.3d 384, 386 (5th Cir. 2000).
According to the regulations, “A United States employer may file a
petition on Form I-140 for classification of an alien . . . as a
multinational executive or manager.”
8 C.F.R. § 204.5(j)(1).
The
petition must be supported by a statement from an authorized
official of the petitioning U.S. employer which demonstrates, among
other things, that “[t]he prospective United States employer has
been
doing
business
204.5(j)(3)(i)(D).
for
at
least
one
year.”
8
C.F.R.
§
The statute defines the term “doing business”
as “the regular, systematic, and continuous provision of goods
and/or services by a firm, corporation, or other entity [that] does
not include the mere presence of an agent or office.”
8 C.F.R. §
204.5(j)(2).
Plaintiff KBA puts a tortured spin on the definition of “doing
business” by distinguishing the petitioner from the U.S. employer.
19
As Plaintiff KBA acknowledges, the USCIS is concerned with the
viability of the U.S. employer.71
Yet, Plaintiff KBA contends it
is the petitioner in this case and the business it purchased is the
U.S. employer.
According to Plaintiff KBA, “‘Employer’ connotes a
broader concept in the employment relationship; to an employee
going to work day by day, his employer remains the same regardless
of changes in EIN (employer identification number), IRS findings,
corporate name, ownership, etc., provided the employee continues in
his job duties and receives similar wages.”72
that
regulatory
intent
and
recognized
practices favor its interpretation.
Plaintiff KBA argues
business
concepts
and
Plaintiff KBA admits that it
was incorporated only three and one-half months prior to filing the
I-140, but argues that the prior business owner had been in
operation for more than eight years.
Plaintiff KBA’s comparisons
to the corporate world and to other immigration categories are
simply not factually comparable.
The court finds nothing arbitrary or capricious in the AAO’s
interpretation of the applicable provision.
The regulations very
clearly state that a U.S. employer may file a petition on behalf of
an alien it seeks to employ as a multinational executive or
manager.
8 C.F.R. § 204.5(j)(1).
The regulations also explain
that the “prospective employer in the United States is the same
71
See Doc. 86, Pls.’ Mot. for Summ. J. p. 9 (citing the comments to 8
U.S.C. § 204.5).
72
Id. p. 7.
20
employer” or a related entity of the foreign employer.
204.5(j)(3)(i)(C).
been
doing
It is the prospective employer who must have
business
204.5(j)(3)(i)(D).
8 C.F.R. §
for
at
least
one
year.
8
C.F.R.
§
Even the I-140 itself indicates that the
petitioner and the employer are one and the same where it seeks
“[a]dditional information about the petitioner” in part five of the
form.73
The first question asks for the type of petitioner and
offers three choices: employer, self, and other.74
On the I-140 at
issue here, Plaintiff KBA listed information about itself as
employer, not information about AZ Affordable Furniture.75
The record evidence shows that Plaintiff KBA was incorporated
in February 2004, purchased AZ Affordable Furniture in early May
2004, and entered a joint venture in the furniture sales and car
rental businesses with Khamisani Business Service in June 2004,
shortly after the latter company’s creation.
Khamisani Brothers
Group sold Plaintiff KBA to a Pakistani company in June 2004.
Plaintiff KBA filed the instant I-140 in December 2004.
AZ
Affordable Furniture was not a predecessor of Plaintiff KBA; it was
not a situation of AZ Affordable Furniture changing its name and
continuing to do business as it had for a number of years.
Plaintiff KBA was a brand new entity that, for nearly two months,
73
See CAR 3.
74
See id.
75
See id.
21
was not engaged in any course of business.
Then, it purchased two
furniture stores from AZ Affordable Furniture and immediately
expanded into the car rental business. There is simply no evidence
that AZ Affordable Furniture was the prospective employer of Ike
Khamisani.
The AAO’s reading of the regulations and application to the
facts is reasonable and leaves no room for finding the decision
arbitrary or capricious.
C.
Executive or Managerial Capacity
The AAO found that Plaintiff KBA failed to establish that Ike
Khamisani would primarily be performing duties of an executive or
a manager.
Defendants argue that this conclusion is supported by
substantial evidence. Plaintiff KBA contends that it satisfied its
burden by including sufficient detail regarding Ike Khamisani’s
daily responsibilities as “Director, Business Development.”
The applicable regulation defines “executive capacity” and
“managerial capacity:”
Executive capacity means an assignment within
organization in which the employee primarily:
an
(A) Directs the management of the organization or a major
component or function of the organization;
(B) Establishes the goals and policies
organization, component, or function;
(C)
Exercises
wide
decisionmaking; and
latitude
in
of
the
discretionary
(D) Receives only general supervision or direction from
higher level executives, the board of directors, or
22
stockholders of the organization.
Managerial capacity means an assignment within
organization in which the employee primarily:
an
(A) Manages the organization, or a department,
subdivision, function, or component of the organization;
(B) Supervises and controls the work of other
supervisory, professional, or managerial employees, or
manages an essential function within the organization, or
a department or subdivision of the organization;
(C) If another employee or other employees are directly supervised,
has the authority to hire and fire or recommend those as well as
other
personnel
actions
(such
as
promotion
and
leave
authorization), or, if no other employee is directly supervised,
functions at a senior level with the organizational hierarchy or
with respect to the function managed; and
(D) Exercises direction over the day-to-day operations of
the activity or function for which the employee has
authority.
8 C.F.R. § 204.5(j)(2); see also 8 U.S.C. § 1101(a)(44).
A first-
line supervisor does not qualify as an executive or manager under
the guidelines “merely by virtue of the supervisor’s supervisory
duties unless the employees supervised are professional.” 8 U.S.C.
§ 1101(a)(44)(A)(iv); 8 C.F.R. § 204.5(j)(4)(I).
The petitioner must furnish a job offer that indicates that
the alien is to be employed in an executive or managerial capacity,
and the “letter must clearly describe the duties to be performed by
the alien.”
8 C.F.R. § 204.5(j)(5).
The burden of proof for
establishing that the beneficiary is to be employed in an executive
or managerial capacity falls on the petitioner.
See 8 U.S.C. §
1361 (placing the burden on one applying for a visa or other
23
document required for entry).
In the “Intent to Deny” letter, the Texas Service Center
sought “a detailed description of [Ike Khamisani’s] job duties and
the percentage of time spent on each task per week.”76
KBA
responded
indicated.77
with
a
list
of
seven
duties
with
Plaintiff
percentages
Based on the Texas Service Center director’s overall
finding that the evidence was unreliable, she found that the
evidence did not establish that the position was executive or
managerial and that Plaintiff KBA failed to meet its burden on this
requirement.78
On appeal, the AAO addressed the duties that
Plaintiff KBA assigned Ike Khamisani in detail, stating:
In the instant matter, while the petitioner provided a
percentage
breakdown
of
the
beneficiary’s
responsibilities, it failed to identify the specific
duties the beneficiary would perform on a daily basis.
For example, the petitioner stated that 25% of the
beneficiary’s time would be devoted to expanding the
petitioner’s existing business.
However, there is no
indication as to the actual duties involved in such
expansion.
The petitioner also indicated that an
additional 20% of the beneficiary’s time would be
allotted to planning and developing the petitioner’s U.S.
investments, which would include seeking out new
locations, analyzing market trends and setting sales
goals. However, there is no indication that planning and
developing investments is in any way different from
expanding the petitioner’s business.
The petitioner
reiterated
the
beneficiary’s
responsibility
for
formulating policies and setting sales goals and
attributed another 20% of the beneficiary’s time to this
unspecified set of duties.
Specifics are clearly an
76
CAR 643.
77
See CAR 765-66.
78
See CAR 774-75.
24
important indication of whether a beneficiary’s duties
are primarily executive or managerial in nature;
otherwise meeting the definitions would simply be a
matter of reiterating the regulations. . . . In the
instant
matter,
however,
at
least
65%
of
the
beneficiary’s time would be spent performing duties that
are entirely undefined.
As such, the AAO cannot
affirmatively determine that the beneficiary would
primarily perform duties of a qualifying nature.79
In Khamisani v. Holder, a sister court addressed a very
similar case in which Plaintiff KBA was seeking to employ Shaheen
Khamisani in the position of “Director of Business Development.”
Khamisani, 2011 WL 1232906, at **1, 5. During the petition process
for Shaheen Khamisani, Plaintiff KBA, as petitioner, identified
twelve responsibilities for her, four of which are very similar to
ones that make up eighty percent of Ike Khamisani’s proposed work
week in this case.
requested
See id. at *5.
additional
information
Plaintiff KBA provided more detail.
The Nebraska Service Center
regarding
her
Id. at *6.
duties,
and
The Nebraska
Service Center found that the identified duties did not meet the
definition of executive or managerial and found that Plaintiff KBA
did not meet its burden of proof.
Id.
The AAO affirmed the
decision finding that Plaintiff KBA “failed to sufficiently clarify
the
specific
otherwise
tasks
document
[Sheehan
what
Khamisani]
proportion
of
would
[her]
perform
duties
or
to
would
be
managerial or executive in nature in relation to the organizational
hierarchy, as opposed to other non-qualifying tasks.”
79
See CAR 994 (internal citations omitted).
25
Id.
The court found that, although the petitioner had provided
additional information about the beneficiary’s proposed position,
it had not provided information about the actual tasks that would
be required for her to carry out the board objectives in the job
description and had left out any information about the portion of
her duties that would be managerial versus non-managerial.
Id. at
*7. The court concluded that the general job description which the
petitioner provided did not meet the requirement in the regulations
of a detailed description from which a determination could be made
that the actual duties would be primarily executive or managerial.
Id.
In agreeing with the AAO that the petitioner failed to meet
its burden of proof on this point, the court found that the
administrative agency’s decision was not arbitrary, capricious, or
an abuse of discretion.
Id.
Here, Plaintiff KBA also failed to provide details about the
beneficiary’s actual tasks.
In the letter Plaintiff KBA submitted
with its I-140, Mohammad Z. Khamisani listed five general duties
that would be assigned to Ike Khamisani.80
They included expanding
the business, planning and developing investments and analyzing
market trends, operating the business, formulating policies, and
hiring and firing personnel in sales.81
When asked to provide more
detail as to Ike Khamisani’s prospective tasks, Plaintiff KBA
80
See CAR 8.
81
See id.
26
provided a list of seven duties including the five originally
listed with very little additional detail and two other duties that
were to occupy ten percent of his time.82
Based on the limited information provided by Plaintiff KBA
regarding the actual tasks (as opposed to the general duties) to be
performed by the beneficiary, the AAO did not abuse its discretion
in determining that Plaintiff KBA did not meet its burden of
proving
that
Ike
Khamisani’s
position
would
be
executive
or
managerial in nature.
D.
Prior Decisions in Similar Cases
Plaintiff points to allegedly favorable USCIS decisions on I-
140s filed by members of his family.
In particular, Plaintiff
mentions Mohammad83 H. Khamisani and Yousuf Khamisani, both of whom
had their lawful permanent resident status reinstated after they
filed lawsuits challenging the USCIS’s revocation of their I-140s
and I-485s. Defendants contend that these two relatives and others
were ultimately placed in removal proceedings in December 2010 for
reasons related to their I-140s.84
82
Plaintiff provides no response
See CAR 765-66.
83
Plaintiff KBA spells this man’s first name “Mohammad,” but the
spelling on the immigration documents is “Mohammed.” Compare Doc. 86, Pl. KBA’s
Mot. for Summ. J. p. 3 with Doc. 77-5, Sealed Immigration Documents. The court
uses Plaintiff KBA’s spelling.
84
Doc. 96, Defs.’ Resp. to Pl. KBA’s Mot. for Summ. J. pp. 6-7 (citing
Doc. 77, Sealed Exs. to Defs.’ Mot. for Leave to File a Reply Br., Immigration
Docs.). Defendants previously submitted Notices to Appear that were served on
Mohammad H. Khamisani and Yousuf Khamisani in December 2010. See Docs. 77-4 &
77-5, Sealed Exs. to Defs.’ Mot. for Summ. J., Mohammad H. Khamisani & Yousuf
Khamisani’s Immigration Docs.
27
to Defendants’ assertion.
Unlike
the
case
of
Sheehan
Khamisani,
about
which
an
unpublished court decision exists on the merits, the immigration
cases of Mohammad H. Khamisani and Yousuf Khamisani do not appear
to
be
recorded
authority.
in
any
persuasive,
much
less
binding,
legal
Plaintiff KBA certainly has not cited any legally
authoritative
source
or
any
information about their cases.
competent
evidence
that
contains
The court lacks any information on
the status of their cases since December 2010.
Even if it were
proper to consider the results in those cases as evidence of an
arbitrary and capricious decision here, the court is without
information for comparison.
IV.
Conclusion
Based on the foregoing, the court DENIES Plaintiff KBA’s
motion for summary judgment and GRANTS Defendants’ motion for
summary judgment.
SIGNED in Houston, Texas, this 22nd
28
day of March, 2013.
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