Calexio Warehouse, Inc. v. Neufeld

259 F.Supp.2d 1067

CALEXICO WAREHOUSE, INC., Plaintiff, v. Donald W. NEUFELD, Director, and Robert P. Wienmann, Director, U.S. Immigration and Naturalization Service, Defendants.

No. CIV. 00CV0169BTM(JFS).

United States District Court, S.D. California.

November 26, 2002.

Robert A. Mautino, Mautino and Mautino, San Diego, CA, for plaintiff.

ORDER GRANTING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

STIVEN, United States Magistrate Judge.

I. INTRODUCTION

Plaintiff Calexico Warehouse, Inc., ("Calexico") filed suit challenging the United States Immigration and Naturalization Service's ("INS") decision to revoke the visa petition that Calexico filed on behalf of the beneficiary, Gilda Villanueva ("Villanueva"). Calexico filed a Motion for Summary Judgment, asserting: 1) the INS and the American Consul revoked the visa petition filed by Calexico on behalf of Villanueva for reasons not found in the law or regulations; 2) at all times since the visa petition was filed, Villanueva has met the requirements set forth for an "L" visa to be issued; and, 3) the INS decision to revoke Calexico's visa petition should be reversed as a matter of law.

The INS filed a cross-motion to dismiss or for summary judgment arguing: 1) this Court lacks subject matter jurisdiction because Calexico failed to assert applicable law granting this Court jurisdiction; 2) Congress expressly vested the Attorney General with the discretion to revoke visa petitions, eliminating this Court's ability to review a decision by the INS; and, 3) even if this Court has jurisdiction to review the INS's decision, this Court should grant the Government's summary judgment motion because there was no abuse of discretion by the INS when it revoked Calexico's visa petition.

This Court held oral argument in the above entitled action on September 17, 2002 and subsequently ordered supplemental briefing to clarify certain points raised by counsel. This Court held a second hearing on this matter on October 25, 2002, after which the Court took the respective motions under submission.

For the reasons stated herein, the Court HEREBY GRANTS the Government's cross-motion for summary judgment and DENIES Calexico's motion for summary judgment.

II. BACKGROUND

Pertinent to the instant case is the procedure by which nonimmigrant "L" type visas are granted or denied by the INS and American Consuls. First, the petitioner must file a visa petition at an American Consulate Office. The visa petition is forwarded by the Consulate to an INS Service Center, where it is either approved or denied. See 8 C.F.R. § 214.2(0(2). If the visa petition is approved, it is then returned to the consulate office where it was filed and the American Consul makes the final decision on whether to grant or deny the visa.¹ If the American Consul decides to deny the visa, the INS is informed of that decision and the INS may subsequently send a Notice of Intent to Revoke ("NIR") the visa petition to the petitioner. See 8 C.F.R. § 214.2(1)(9)(iii). The petitioner has thirty days from the receipt of the NIR in which to present rebuttal evidence. See 8 C.F.R. § 214.2©(9)(B). The director considers all relevant information in making his/her final decision of whether or not to revoke the visa petition. Id. If the petition is denied or revoked, an appeal process is available pursuant to 8 C.F.R. § 103. See 8 C.F.R. § 214.2(0(10).

In the present case, Calexico, which is claimed to be the U.S. affiliate of the Mexican Company, Exclusivas Infantiles ("Exclusivas"), filed a visa petition on or about May 4, 1998 on behalf of Gilda Villanueva, president and owner of Calexico, requesting that the INS issue a "L" type visa.² The INS initially approved Calexico's visa petition, however, the American Consulate General denied Villanueva the actual visa.³ In a letter sent by the Consulate General in Tijuana, Lori A. Stubbs, visa specialist, stated that Villanueva was denied a visa after an interview revealed that she did not qualify for a "L" type visa. See C.R. at 419. Additionally, Ms. Stubbs wrote that "[i]t appears that [Villanueva] is just looking for a way to live legally in the U.S." Id.

Calexico filed its first lawsuit against the Secretary of State in December 1998, alleging that Villanueva was entitled to a "L" type visa as a matter of law.

On January 27, 1999, the INS sent a NIR regarding the previously-approved visa petition, which reads, in part: "[t]he visa was refused on the basis of a nonqualifying relationship .... [T]he evidence of record does not establish that the beneficiary is the owner of both entities or that she is acting in a managerial or executive capacity."⁴ C.R. at 410.

On March 12, 1999, the INS issued a notice of decision revoking the visa petition; Calexico filed an appeal on April 12, 1999.

In October 1999, the INS sent a letter to Calexico stating that it would forward the case file and all other documentation to the Administrative Appeals Office ("AAO") in Washington D.C. if the petitioner, Calexico, filed a Form I-290B.⁵ Pending the outcome of the administrative appeal, Calexico dismissed the December 1998 lawsuit on November 8, 1999.

On January 25, 2000, Calexico discovered that the case had not been forwarded to the AAO for review. Calexico filed the instant lawsuit on January 26, 2000, which remained inactive while Calexico sought to exhaust its administrative remedies through the INS and the AAO.⁶

On May 25, 2001, Calexico filed its most recent administrative appeal of the decision to revoke Calexico's visa petition filed on behalf of Villanueva. On November 29, 2001, the AAO issued its final order affirming the INS decision to revoke the visa petition.

Calexico filed its motion for summary judgment in the instant action on June 3, 2002. In its moving papers, Calexico alleges: 1) the INS and the American Consul revoked the visa petition filed by Calexico on behalf of Villanueva for reasons not found in the law or regulations; 2) at all times since the visa petition was filed, Villanueva has met the requirements set forth for an "L" visa to be issued; and, 3) the INS decision to revoke Calexico's visa petition should be reversed as a matter of law.

The Government's cross-motion was filed on July 9, 2002. The Government maintains: 1) this Court lacks subject matter jurisdiction because Calexico failed to assert applicable law granting this Court jurisdiction; 2) Congress expressly granted the Attorney General with the discretion to revoke visa petitions, eliminating this Court's ability to review a decision by the INS; and, 3) even if this Court has jurisdiction to review the INS's decision, this Court should grant the Government's summary judgment motion because there was no abuse of discretion by the INS when it revoked Calexico's visa petition.

This Court held oral argument on the motion and cross-motion for summary judgment on September 17, 2002. At that hearing, the Court determined that it could not rule on either motion due to the parties' failure to articulate clearly the bases for their positions or the duties reserved to the Court pursuant to the immigration laws. The Court ordered additional briefing on the following issues:

1. Does the Immigration and Naturalization Service's (INS) authority to revoke a non-resident alien visa petition stem from 8 U.S.C. § 1155, or does it come from some other code section? If from another code section, state the section or regulation and cite authority.

2. Assuming the INS's authority to revoke a non-resident alien visa petition stems from 8 U.S.C. § 1155, do 8 U.S.C. § 1252(a)(2)(B), and the sections cross-referenced therein, bar judicial review of an INS administrative decision to revoke a nonimmigrant visa petition? Cite authority.

3. To what types of action does 8 U.S.C. § 1252(a)(2)(B) apply, i.e., when does the INS or the Attorney General invoke Section 1252(a)(2)(B)? Cite authority.

4. With respect to the granting of a nonimmigrant "L" type visa (8 U.S.C. 1101(a)(15)(1)), what is the procedure for filing, approving or revoking such a petition? Cite authority which authorizes that procedure?

5. Assuming that this Court has the power to review the administrative decision taken by the INS or the Attorney General in this case, what authority exists to guide the Court in fashioning a remedy? What federal law grants this Court the authority to fashion a remedy? What are appropriate remedies? Cite authority

See Doc. No. 30 at 2. The parties filed their respective supplemental briefs on October 11, 2002. The Court held a second hearing in this matter on October 25, 2002.

III. DISCUSSION

Pursuant to 28 U.S.C. § 636(c), the parties consented to having the instant case heard and adjudicated by the Honorable James F. Stiven, United States Magistrate Judge. See Doc. No. 24. Accordingly, Judge Stiven has jurisdiction to rule on the parties' motion and cross-motion for summary judgment.

A. Subject Matter Jurisdiction

Although the Government argues that this Court does not have jurisdiction to review the AAO's decision, this Court has the jurisdiction to determine whether it has jurisdiction to review the INS's decision. See Flores-Miramontes v. INS, 212 F.3d 1133, 1135 (9th Cir.2000).

1. Standard of law

District courts have original jurisdiction of all civil actions arising under the constitution, laws, or treaties of the United States. See 28 U.S.C. § 1331. "To bring a case within a statute, a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiffs cause of action." Gully v. First Nat'l Bank in Meridian, 299 U.S. 109, 112, 57 S.Ct. 96, 81 L.Ed. 70 (1936) (emphasis added). "In order to assert federal jurisdiction under 28 U.S.C. § 1331, the plaintiffs claim must be founded directly upon federal law." Robison v. Wichita Falls and North Texas Community Action Corporation, 507 F.2d...