Bustos v. Napolitano et al

Filing 18

MEMORANDUM DECISION denying 6 Motion to Dismiss for Failure to State a Claim. Signed by Judge Ted Stewart on 10/29/2012. (tls)

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

LUCIANA BUSTOS,
Plaintiff,

MEMORANDUM DECISION AND
ORDER DENYING DEFENDANTS’
MOTION TO DISMISS

vs.
JANET NAPOLITANO, Secretary of
Homeland Security; ALEJANDRO
MAYORKAS, Director of Citizenship and
Immigration Services; GERARD
HEINAUER, Director of Nebraska Service
Center; JEANNE KENT, Field Office of
Citizenship and Immigration Services,

Case No. 2:12-CV-515-TS

Defendants.

This matter is before the Court on Defendants’ Motion to Dismiss for Failure to State a
Claim for Relief. The Court heard argument on the Motion on October 23, 2012. For the
reasons stated below, the Court will deny Defendants’ Motion.
I. BACKGROUND
Plaintiff, Luciana Bustos, (also known as Lucy S. Ascua) is a native and citizen of
Argentina. She unlawfully entered the United States on February 17, 1990. On April 30, 2001,
“The Herb Shop Connection” filed, on her behalf, an Application for Alien Employment
Certification (“ETA 750”) with the Utah Department of Workforce Services (“DWS”), the State
Employment Security Agency (“SESA”).

1

In September 2003, the DWS responded to the application by sending a REMAND OF
LABOR CERTIFICATION APPLICATION (“remand notice”). The remand notice sought
changes on four items in the alien employment certification application. The document noted
that two sections needed to be completed, the bilingual preference for the job should be removed,
and that the wage offer was below the prevailing wage for the labor market and needed to be
adjusted.
The remand notice acknowledged that DWS was in receipt of an application for alien
labor certification with a priority date of April 30, 2001, and noted that the case would be closed
if the requested information was not received by November 14, 2003. Because Ms. Bustos never
provided the requested information, in November 2003, the case was closed. Ms. Bustos alleges
that her former attorney closed the case without authorization. Ms. Bustos later filed an
Immigrant Petition for Alien Worker, which was granted. She then filed an application for
adjustment of status, which on August 26, 2009, was denied because United States Citizenship
and Immigration Services (“USCIS”) determined she failed to be grandfathered in, because she
failed to establish that she filed an approvable labor certification on or before April 30, 2001.
USCIS then denied a motion to reopen on February 10, 2010, for the same reason. Ms. Bustos
now files this Complaint, challenging USCIS’s denial of her adjustment application. Defendants
move to dismiss Plaintiff’s Complaint.
II. STANDARD OF REVIEW
In considering a motion to dismiss for failure to state a claim upon which relief can be
granted under Rule 12(b)(6), all well-pleaded factual allegations, as distinguished from
conclusory allegations, are accepted as true and viewed in the light most favorable to Plaintiff as

2

the nonmoving party. 1 Plaintiff must provide “enough facts to state a claim to relief that is
plausible on its face,” 2 which requires “more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” 3 “A pleading that offers ‘labels and conclusion’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice if it
tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” 4 “The court’s function on
a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial,
but to assess whether the plaintiff’s complaint alone is legally sufficient to state a claim for
which relief may be granted.” 5 As the Court in Iqbal stated,
[O]nly a complaint that states a plausible claim for relief survives a motion to
dismiss. Determining whether a complaint states a plausible claim for relief will
. . . be a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense. But where the well-pleaded facts do not
permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged—but it has not show[n]—that the pleader is entitled to
relief. 6
When considering the adequacy of a plaintiff’s allegations in a complaint subject to a
motion to dismiss, a district court not only considers the complaint, but also “documents
incorporated into the complaint by reference, and matters of which a court may take judicial

1

GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.

2

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007).

3

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

4

Id. (quoting Twombly, 550 U.S. at 557) (alteration in original).

5

Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991).

1997).

6

Iqbal, 556 U.S. 677–78 (alteration in original) (internal quotation marks and
citations omitted).
3

notice.” 7 Thus, “notwithstanding the usual rule that a court should consider no evidence beyond
the pleadings on a Rule 12(b)(6) motion to dismiss, ‘[a] district court may consider documents
referred to in the complaint if the documents are central to the plaintiff’s claim and the parties do
not dispute the documents’ authenticity.’” 8
Ms. Bustos brings this claim under the Administrative Procedure Act, 5 U.S.C. §§ 701–06,
which requires a reviewing court to “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 the law.” 9 This Act explicitly grants district courts jurisdiction over challenges
of individuals “suffering legal wrong because of agency action, or adversely affected by agency
action within the meaning of a relevant statute.” 10 Further, “[t]hese standards require the
reviewing court to engage in a substantial inquiry.” 11 Nevertheless, the district court’s review
under this standard is “narrow and deferential” and the court is required to uphold the agency’s
action if it has “articulated a rational basis for the decision and has considered relevant
factors.” 12 Where the matter at issue is a question of law, it is grounds for reversal to fail to

7

Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (citing 5B
Wright & Miller § 1357 (3d ed. 2004 and Supp. 2007)).
8

Alvarado v. KOBTV, LLC, 493 F.3d 1210, 1215 (10th Cir. 2007) (quoting
Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002)).
9

5 U.S.C. § 706.

10

Id. § 702.

11

Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1574 (10th Cir. 1994).

12

Mountain Side Mobile Estates P’ship v. Sec’y of Hous. and Urban Dev., 56 F.3d
1243, 1250 (10th Cir. 1995).
4

apply the correct legal standard or fail to provide the court with a sufficient basis to determine
that all legal principles have been followed. 13
III. DISCUSSION
A. GRANDFATHERING
To be eligible for legal permanent residence through adjustment of status, applicants
generally must show proof of inspection and admission to the United States. Section 245(i) of
the Immigration and Nationality Act exempted certain aliens from the lawful status and lawful
entry requirements in seeking an adjustment of status. 14 Aliens who could not meet the lawful
entry and status requirements could pay a $1,000 penalty to file their adjustment of status
applications. This exception has since expired, although certain aliens are grandfathered in and
may still use the provision. 15
To establish eligibility for this grandfathering provision, an alien must have had a labor
certification or visa petition filed and accepted by the appropriate agency before April 30, 2001
(the expiration of the most recent § 1255(i) provision). The labor certification or visa petition
filed before April 30, 2001, must either have been approved, or have been “approvable when
filed.” 16 Indeed, “[t]he denial, withdrawal, or revocation of the approval of a qualifying
immigrant visa petition, or application for labor certification, that was properly filed on or before
April 30, 2001, and that was approvable when filed, will not preclude its grandfathered alien . . .

13

Id.

14

8 U.S.C. § 1255(i).

15

See Esquivel-Garcia v. Holder, 593 F.3d 1025, 1029 n.1 (9th Cir. 2010) (noting
that 1255(i) benefits are available only to those aliens who have been grandfathered into the
provision).
16

8 C.F.R. § 245.10(a)(3).
5

from seeking adjustment of status under section 245(i) of the Act on the basis of another
approved visa petition.” 17 Additionally, the federal regulations state a “visa petition that was
properly filed on or before April 30, 2001, and was approvable when filed, but was later
withdrawn, denied or revoked due to circumstances that have arisen after the time of filing, will
preserve the alien beneficiary’s grandfathered status.” 18 Therefore, even an alien who hopes to
adjust her status after April 30, 2001, may be eligible for this grandfathering provision if she had
an “approvable when filed” visa petition or labor certification filed before April 30, 2001, that
was filed and accepted by the appropriate agency.
B. PROPERLY FILED
“Properly filed” means the application was “properly filed and accepted pursuant to the
regulations of the Secretary of Labor, 20 C.F.R. 656.21.” 19 Section 656.21 lays out the labor
certification supervised recruitment process and states in detail the advertising requirements for
the job opportunity, but does not explain what criteria must be met for an application to be
accepted. According to the Federal Register, “[t]he Department of Labor considers an
application for labor certification that is filed and accepted at a SESA to be properly filed.” 20
The Government argues that Ms. Bustos filed her ETA 750 application with the SESA on
April 30, 2001, but that her application was never accepted by the agency. Instead it was
rejected when the agency remanded the application by seeking additional information. The

17

Id. § 245.10(i).

18

Id. § 245.10(a)(3).

19

Id. § 245.10(a)(2).

20

66 Fed. Reg. 16383, 16385 (March 26, 2001) (emphasis added).
6

Government relies on De Acosta v. Holder 21 to show that an application that had been received
was not accepted for filing because De Acosta had failed to provide her signature on one of the
required supporting forms. Plaintiff argues that to be accepted, the application need only be
received and stamped by the SESA. She argues that in order for the received application not to
be accepted it must contain a fundamental filing infirmity such as the wrong filing fee or the
check is returned as non-payable. Further, she argues that the DWS remand notice provides
proof the application was filed and received because it lists a priority date of April 30, 2001. 22
Finally, she argues that a DWS letter dated April 9, 2009, supplies sufficient proof that Ms
Bustos’ application was accepted. 23
Viewing the facts in the light most favorable to Plaintiff as the non-moving party, as the
Court must do when considering a motion to dismiss, the Court finds that Plaintiff has stated a
plausible claim that her application for labor certification was properly filed and accepted by the
SESA. Plaintiff has shown that her application was filed with the SESA and that, though the
SESA requested additional information, it did not reject her application. The government’s
reliance on De Acosta is misplaced because the application there was without a critical
component—a signature. There was no such deficiency here. Therefore, the Court must deny
the Motion to Dismiss on this ground.

21

556 F.3d 16, 19–20 (1st Cir. 2009).

22

Docket No. 9, Ex. B

23

Specifically, the DWS letter states, “I confirm that an Application for Alien
Employment Certification was filed on the above matter on April 30, 2001 under the 245i Law”
and goes on to note the application was closed in November 2003. Docket No. 10, Ex. A.
7

C. MERITORIOUS IN FACT
Though not discussed in the hearing, the outcome of this case does not fully hinge on
whether Plaintiff’s application was properly filed and accepted by the SESA. The application
must also either have been approved or approvable when filed. “Approvable when filed” means
the qualifying petition was “properly filed, meritorious in fact, and non-frivolous (‘frivolous’
being defined herein as patently without substance). This determination will be made based on
the circumstances that existed at the time the qualifying petition or application was filed.” 24
There is no argument that Ms Bustos’ application was frivolous. Therefore, the issue is whether
Ms. Bustos’ application was meritorious in fact.
Plaintiff argues that meritorious in fact means only that the application is without
evidence of fraud. Ms. Bustos relies on a USCIS Memorandum, which states that “[a]bsent
evidence of fraud, when a qualifying application for labor certification . . . is properly filed and
accepted by the United States Department of Labor in accordance with 20 C.F.R. 656.21, USCIS
will consider the requirements of 8 C.F.R. § 245.10 related to ‘properly filed’ and ‘approvable
when filed’ to have been met for grandfathering purposes under section 245(i).” 25
The Government argues that Plaintiff’s application was never accepted by the SESA
because it was incomplete and, thus, was not meritorious in fact. Indeed, the Government would
ask this court to confine this inquiry to the information actually listed on the ETA 750
application at the time of its filing. The Government appears to argue that because the
application was unsuccessful, it was not meritorious in fact.

24

8 C.F.R. § 245.10(a)(3).

25

Docket No. 1, Ex. E, at 4 (Yates Memo).
8

The Court does not adopt either of these approaches, and instead takes the approach that
an application is meritorious in fact if it merits a legal victory. This inquiry is based on facts that
existed at the time of filing and allows for supplemental information to prove such facts.
“[T]he determination of whether a visa petition is approvable when filed is not limited to
the question of whether the petition was actually approved.” 26
“Meritorious” means “meriting a legal victory” or “having legal worth,” but does
not require actual legal success. Moreover, § 1245.10(a)(3) requires that the
determination of whether a petition is meritorious in fact “be made on the
circumstances that existed at the time the qualifying petition or application was
filed.” This provision contemplates that evidence other than that actually
submitted in support of the petition might be considered for purposes of
determining whether an alien is grandfathered. 27
In Ogundipe, the Fourth Circuit held that a visa petition is meritorious in fact if “based on
the circumstances that existed at the time the petition was filed, the beneficiary of the petition
qualified for the requested classification.” 28 Moreover, the court noted that an alien whose visa
application was previously denied could prove the application was meritorious in fact by
“making an appropriate factual showing in removal proceedings, subject to any applicable
evidentiary and procedural rules.” 29 Though given the opportunity to do so, Ogundipe failed to
demonstrate that he was a special immigrant, a requirement for the visa he sought. 30

26

Ogundipe v. Mukasey, 541 F.3d 257, 260 (4th Cir. 2008).

27

Id. (quoting Black’s Law Dictionary (8th ed. 2004)).

28

Id. at 261.

29

Id.

30

Id.
9

Under this standard, Plaintiff will have to show that, if her application had not been
abandoned and subsequently closed, her labor certification could have been approved. 31 Plaintiff
has presented a plausible claim under this standard.
IV. CONCLUSION
It is therefore ORDERED that Defendants’ Motion to Dismiss (Docket No. 6) is
DENIED.
DATED October 29, 2012.
BY THE COURT:

_____________________________________
TED STEWART
United States District Judge

31

In re Jara Riero, 24 I. & N. Dec. 267 (BIA 2007) (noting that denial of the
petition is not dispositive of whether the petition was meritorious in fact and noting that on a
marriage-based visa petition, the alien must not only prove that he was married, but also prove
that the marriage was bona fide at its inception.)
10