Musunuru v. Holder et al
Filing
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DECISION AND ORDER signed by Judge Lynn Adelman on 1/29/15 granting 18 Motion to Dismiss for Lack of Jurisdiction; granting 22 Motion for Leave to File Surreply. This case is dismissed. (cc: all counsel) (dm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
_____________________________________________________________________
SRINIVASA MUSUNURU,
Petitioner,
v.
Case No. 14CV088
ERIC H. HOLDER, JR., et al.,
Respondents.
_____________________________________________________________________
DECISION AND ORDER
Petitioner, an Indian citizen currently in the United States on an employment visa,
brings this action under the Administrative Procedure Act (“APA”) seeking review of various
actions of the U.S. Citizenship and Immigration Services (“USCIS”). Petitioner contends
that USCIS’s conduct led to the wrongful revocation of a petition by his former employer
which resulted in a delay in his ability to become a permanent resident of the United
States. Before me now is respondents’ motion to dismiss.
I. Background
Under the Immigration and Nationality Act (“INA”), a noncitizen worker such as
petitioner undergoes a three-step process to obtain permanent residency. First, his
employer applies for a labor certification from the Department of Labor. 20 C.F.R. §
656.17(a)(1); see also 8 U.S.C. § 1182(a)(5). Second, the employer submits an I-140 visa
petition to the USCIS on the employee’s behalf. 8 C.F.R. § 204.5(l)(1); see also 8 U.S.C.
§ 1153(b)(3)(c). The employer must include in the petition a valid labor certification and
evidence that the employee satisfies the educational, training, or other requirements
dictated by the labor certification, 8 C.F.R. § 204.5(l)(3)(ii), and that the employer can pay
the wage specified in the labor certification until the employee obtains permanent resident
status, 8 C.F.R. § 204.5(g)(2). Third, when the USCIS approves the I-140 petition, the
employee may apply to adjust his immigration status to that of permanent resident. 8
U.S.C. § 1255(a). To obtain permanent residency, however, an immigrant visa must be
immediately available, id., and this will depend on the employee’s priority date, which is the
date the employer applied for a labor certification. 8 C.F.R. § 204.5(d). After an adjustment
application has been pending for 180 days, the employee may change jobs or employers
without affecting the validity of the I-140 petition (and the employee’s priority date) as long
as the new position “is in the same or similar occupational classification as the job for
which the petition was filed.” 8 U.S.C. § 1154(j); 8 C.F.R. § 204.5(e).
In February 2004, Vision Systems Group, Inc. (“VSG”), petitioner’s employer,
applied for a labor certification on his behalf. In December 2005, the Department of Labor
granted certification. VSG then filed an I-140 petition seeking to classify petitioner as a
skilled worker or professional under 8 U.S.C. § 1153(b)(3) (commonly referred to as an EB3 classification). The USCIS approved the petition, and in August 2007, petitioner applied
for an adjustment to permanent resident status. While his application was pending,
petitioner began a new job with Crescent Solutions. In March 2011, Crescent Solutions
filed a I-140 petition on his behalf seeking to classify him as a noncitizen who is a member
of professions holding advanced degrees or is of exceptional ability under 8 U.S.C. §
1153(b)(2) (commonly referred to as an EB-2 classification). The USCIS approved the
petition, but petitioner retained his February 2004 priority date from the VSG I-140 petition
as the INA’s portability provisions allow.
In May 2011, VSG was found to have unlawfully hired noncitizen workers. VSG’s
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officers pled guilty to mail fraud and unlawful hiring and were debarred from participation
in the labor certification program. As a result, the USCIS issued to VSG a notice of intent
to revoke the I-140 petition VSG obtained on behalf of petitioner. Having gone out of
business, VSG failed to respond. The USCIS invalidated VSG’s labor certification, revoked
its I-140 petition, and notified VSG of its right to appeal. VSG did not appeal. The USCIS
did not notify petitioner of any of the proceedings against VSG. The USCIS then amended
its approval of Crescent Solution’s I-140 petition on behalf of petitioner, changing the
priority date from February 2004, when VSG applied for labor certification, to January 28,
2011, when Crescent Solution applied. Petitioner tried to appeal the revocation decision
within the USCIS, but the USCIS determined that, as an employee he lacked standing to
do so.
II. Discussion
Petitioner challenges the USCIS’s failure to provide him with notice and an
opportunity to respond to its revocation of VSG’s I-140 petition on his behalf and its denial
of his internal appeal of the revocation decision. Respondents first move to dismiss
pursuant to Fed. R. Civ. P. 12(b)(1), arguing that 8 U.S.C. § 1252(a)(2)(B)(ii) precludes
judicial review of “any . . . decision or action of the Attorney General or Secretary of
Homeland Security . . . which is specified under this subchapter to be in the[ir] . . .
discretion . . .” While revocation of a previously-approved visa petition is a discretionary
decision which I may not review, El-Khader v. Monica, 366 F.3d 562, 563 (7th Cir. 2004),
petitioner’s lawsuit does not challenge the revocation itself but claims that the USCIS failed
to follow the correct procedure in revoking the I-140 petition and argues that procedure is
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not discretionary. See 8 C.F.R. § 103.2(b)(16)(i) (“[T]he applicant or petitioner . . . shall be
advised of” derogatory information and given an opportunity to be heard.); 8 C.F.R. §
204.5(n)(2) (“The petitioner shall be informed in plain language of the reasons for denial
and of his or her right to appeal.); Kurapati v. U.S. Bureau of Citizenship & Immigration
Servs., No. 13-13554, 2014 WL 7242841, at *5 (11th Cir. Dec. 22, 2014) (“Even when a
decision is committed to agency discretion, a court may consider allegations that an
agency failed to follow its own binding regulations.” (internal quotation omitted)). Based on
this authority, I conclude that Congress has not stripped the federal courts of jurisdiction
over the claim that plaintiff asserts.
Respondents also contest petitioner’s standing to sue, both Article III standing and
so-called prudential standing. To establish Article III standing, petitioner must allege (1) a
“personal injury” or injury in fact, (2) that the injury is “fairly traceable to the defendant’s
allegedly unlawful conduct,” and (3) that the injury is “likely to be redressed by the
requested relief.” Allen v. Wright, 468 U.S. 737, 751 (1984). An injury in fact is one “that
is (a) concrete and particularized and (b) actual or imminent, not conjectural or
hypothetical.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,
180–81 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). The
proponent of jurisdiction must “‘set forth’ by affidavit or other evidence ‘specific facts’”
supporting standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (quoting Fed.
R. Civ. P. 56(e)).
Petitioner contends that he suffered injury by losing his original priority date, and
respondents do not dispute this. Also, at least two circuits have recognized such a loss as
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a concrete injury for Article III standing purposes. Kurapati, No. 13-13554, 2014 WL
7242841, at *3; Patel v. U.S. Citizenship & Immigration Servs., 732 F.3d 633, 638 (6th Cir.
2013). I agree that by being forced to wait longer to become a permanent resident
petitioner suffered a concrete, particularized injury. I also conclude that petitioner’s injury
is traceable to respondents’ actions and redressable. Petitioner alleges that respondents
failed to give him notice of and an opportunity to be heard regarding derogatory information
relevant to VSG’s I-140 petition and barred him from appealing revocation of the petition
within USCIS in violation of federal regulations and due process, and that these actions
directly affected his eligibility for permanent residency. He alleges that had he been able
to contest the revocation, he would have shown that it was improper because VSG did not
fraudulently obtain a labor certificate on his behalf. He points out that he overcame
allegations of fraud regarding his work with VSG when the USCIS attempted to revoke
Crescent Solutions’s I-140 petition. This is enough to show that respondents’ alleged
failure to follow required procedures caused his injury and that his injury is redressable
because if given the opportunity to be heard, petitioner is likely to succeed in preventing
the revocation.
With respect to prudential standing, the APA entitles a person “suffering legal wrong
because of agency action, or adversely affected or aggrieved by agency action within the
meaning of a relevant statute” to seek judicial review of the action. 5 U.S.C. § 702. To bring
a claim under the APA, a petitioner’s alleged injuries must be “arguably within the zone of
interests to be protected or regulated by the statute or constitutional guarantee in
question.” Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970).
This is not a particularly demanding standard. Clarke v. Sec. Indus. Ass’n, 479 U.S. 388,
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399 (1987). I apply the zone-of-interests test “in keeping with Congress’s evident intent
when enacting the APA to make agency action presumptively reviewable.” Patchak, 132
S. Ct. at 2210 (internal quotations omitted). “In cases where the plaintiff is not itself the
subject of the contested regulatory action, the test denies a right of review if the plaintiff’s
interests are so marginally related to or inconsistent with the purposes implicit in the statute
that it cannot reasonably be assumed that Congress intended to permit the suit.” Clarke,
479 U.S. at 399.
I cannot say that petitioner’s interests are so marginally related to the purpose of the
statute that petitioner should be precluded from suing. Also, when determining whether
petitioner’s interests are within the zone of interests protected by the statute, I consider not
just the regulation at issue but the context and purpose of the statute. Id. Although under
the statute a noncitizen worker does not petition for a visa, 8 U.S.C. § 1153(b)(3) makes
visas available to noncitizen workers. Additionally, other sections of the INA consider the
interests of the noncitizen worker. See, e.g., § 1255(a) (permitting noncitizen workers to
apply for permanent residence not tied to employment); § 1154(j) (providing status
adjustment applicants job flexibility by allowing them to change jobs and employers). Thus,
Congress arguably intended to provide some protection of a noncitizen worker’s interest
in the employment-based visa petition. See Kurapati, No. 13-13554, 2014 WL 7242841,
at *5 (concluding that “a beneficiary of an I-140 visa petition who has applied for
adjustment of status and has attempted to port under § 1154(j) ‘falls within the class of
plaintiffs’ Congress has authorized to challenge the denial of that I-140 visa petition”);
Patel, 732 F.3d at 635–37 (concluding that “it is arguable, to say the least, that a qualified
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alien who wants an employment visa is within that provision’s zone of interests”);
Stenographic Machs., Inc. v. Reg’l Adm’r for Emp’t & Training, 577 F.2d 521, 528 (7th Cir.
1978) (concluding that “”the prospective alien employee would be economically injured if
not given a [labor] certificate and has an interest which is within the zone of interests to be
regulated”). Thus, I decline to dismiss the case for lack of prudential standing.
I turn next to respondents’ motion under Fed. R. Civ. P. 12(b)(6) that petitioner’s
complaint fails to state a claim for relief. With respect to petitioner’s contention that he was
entitled to pre-revocation notice, 8 C.F.R. § 103.2(b)(16)(i) provides that: “If the decision
will be adverse to the applicant or petitioner and is based on derogatory information
considered by the Service and of which the applicant or petitioner is unaware, he/she shall
be advised of this fact and offered an opportunity to rebut the information and present
information in his/her own behalf before the decision is rendered.” Petitioner argues that
because he had applied for a status adjustment at the time the USCIS sought to revoke
VSG’s I-140 petition, he was an “applicant” under the regulation and therefore entitled to
notice. Respondents argue that “petitioner or applicant” refers to the party initiating the
petition or application at issue, here, the employer, VSG.
I conclude that an employee is not “a petitioner or applicant” within the meaning of
§ 103.2(b)(16)(i) and thus is not entitled to notice. The Department of Homeland Security,
promulgator of the regulation, has consistently interpreted it as requiring notice only to the
petitioning employer. “[A]n agency’s interpretation of its own regulation is controlling unless
it is ‘plainly erroneous or inconsistent with the regulation,’ or there is ‘reason to suspect that
the interpretation does not reflect the agency’s fair and considered judgment on the matter
in question.’” U.S. v. P.H. Glatfelter Co., 768 F.3d 662, 672–73 (7th Cir. 2014) (quoting
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Auer v. Robbins, 519 U.S. 452, 461–62 (1997)). I cannot say that respondents’
interpretation is plainly erroneous or inconsistent with the regulation, and in fact I find it to
be the more persuasive of the two interpretations. The regulation uses the terms “petitioner
or applicant,” clearly referring to the party filing the petition or application. Further, related
regulations refer to the employee not as a petitioner or applicant but as the “beneficiary”
of an I-140 petition. See, e.g., 8 C.F.R. § 204.5 (referring to employees as “beneficiaries”
in the context of employment-based petitions); 8 C.F.R. § 103.2(b)(9) (distinguishing
between applicants, petitioners and beneficiaries). Additionally, the purpose of the
regulation was to provide procedural rights to the employer, not the employee. Matter of
Obaigbena, 19 I. & N. Dec. 533, 536 (BIA 1988) (“[T]he intended purpose of a notice of
intention to deny is to provide due process to the petitioner”). Nor does the INA suggest
that Congress intended to give employees a right to pre-revocation notice. Under the
statute, only an employer may initiate an I-140 petition. See § 1154(a)(1)(F) (“Any
employer desiring and intending to employ . . . an alien . . . may file a petition with the
Attorney General.”).
I also conclude that the USCIS’s decision that petitioner lacked standing to
administratively appeal did not violate federal regulations. The regulations leave little doubt
on this point. 8 C.F.R. § 204.5(n)(2) provides that “[t]he petitioner shall be informed in plain
language of the reasons for denial of his or her right to appeal,” and mentions no one else.
Further, 8 C.F.R. §§ 103.4 and 103.5 allow only an “affected party” to administratively
challenge a revocation decision and define such a party as “the person or entity with legal
standing in a proceeding . . . not includ[ing] the beneficiary of a visa petition.” 8 C.F.R. §
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103.3(a)(1)(iii). Further, the INA does not suggest congressional intent to authorize an
employee to administratively challenge a revocation decision. Compare 8 U.S.C. §
1229a(c)(5)–(7) (specifying an alien’s rights to administratively challenge a removal
decision), with 8 U.S.C. § 1155 (describing revocation but conferring no employee right to
bring an administrative challenge).
Finally, I turn to petitioner’s argument that he has a due process right to prerevocation notice and/or post-revocation standing to bring an administrative challenge. In
order to have a valid due process claim, “a claimant must have a liberty or property interest
in the outcome of the proceedings.” Dave v. Ashcroft, 363 F.3d 649, 652–53 (7th Cir.
2004). A procedural entitlement is not a protected liberty or property interest, Cevilla v.
Gonzales, 446 F.3d 658, 662 (7th Cir. 2006), because “process is not an end in itself[;] [i]ts
constitutional purpose is to protect a substantive interest in which the individual has a
legitimate claim of entitlement,” Olin v. Wakinekona, 461 U.S. 238, 250–51 (1983). Thus,
petitioner must show a liberty or property interest not in the revocation procedures, but in
the end result of those procedures.
“In immigration proceedings, a petitioner has no liberty or property interest in
obtaining purely discretionary relief.” Dave, 363 F.3d at 653. “Thus, an alien’s right to due
process does not extend to proceedings that provide only discretionary relief, and the
denial of such relief does not violate due process.” Hamdan v. Gonzales, 425 F.3d 1051,
1061 (7th Cir. 2005); Khan v. Mukasey, 517 F.3d 513, 518 (7th Cir. 2008) (“[I]t is wellestablished that a party complaining of a due-process violation must assert a liberty
interest in order to maintain his due-process claim. As a result, we have repeatedly held
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that an alien’s right to due process does not extend to proceedings that provide only . . .
discretionary relief because an appeal to discretion is not a substantive entitlement.”). The
decision whether or not to revoke an I-140 petition that has already been approved is
discretionary. § 1155 (“The Secretary of Homeland Security may, at any time, for what he
deems to be good and sufficient cause, revoke the approval of any petition approved by
him under section 1154.”); El-Khader, 366 F.3d at 563 (holding that “the revocation of a
previously approved visa petitioner under 8 U.S.C. § 1155 is a discretionary decision”).
Because petitioner’s interest regarding revocation of an I-140 petition is subject to
administrative discretion, petitioner does not have a property interest entitled to
constitutional protection nor any constitutionally protected procedural rights associated with
the government’s decision to revoke it. See Azizi v. Thornburgh, 908 F.2d 1130, 1134 (2d
Cir. 1990) (holding that plaintiffs “do not have an inherent property right in an immigration
visa”).
Petitioner argues that the Due Process Clause guarantees him a meaningful right
to be heard, but the cases he cites for this proposition confer a meaningful right to be
heard in deportation proceedings. See, e.g., Rodriguez Galicia v. Gonzales, 422 F.3d 529,
538 (7th Cir. 2005); Kaczmarczyk v. I.N.S., 933 F.2d 588, 595–96 (7th Cir. 1991). “The
essence of due process is the requirement that ‘a person in jeopardy of serious loss [be
given] notice of the case against him and the opportunity to meet it.” Mathews v. Eldridge,
424 U.S. 319, 348 (1976) (internal quotation omitted). Being taken into custody and
deported clearly qualifies as a “serious loss” sufficient to constitute a liberty interest, see
Cevilla, 446 F.3d at 662 (“[Petitioner] has a liberty interest in remaining in the United
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States.”), while the loss in the present case, revocation of an I-140 petition and the
resulting delay in obtaining permanent residency status does not. Petitioner does not have
a constitutionally protected property interest in a petition which the Attorney General has
discretion to revoke and has not established that revocation results in a loss serious
enough to rise to the level of a constitutionally protected liberty interest. Thus, I conclude
that petitioner’s due process claim fails.
III. Conclusion
THEREFORE, IT IS ORDERED that petitioner’s motion for leave to file surreply
(ECF No. 22) is GRANTED.
IT IS FURTHER ORDERED that respondents’ motion to dismiss (ECF No. 18) is
GRANTED and this case is DISMISSED.
Dated at Milwaukee, Wisconsin, this 29th day of January, 2015.
s/ Lynn Adelman
_____________________
LYNN ADELMAN
District Judge
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