Canal v. U.S. Citizenship & Immigration Servs.

964 F.3d 1250

CANAL A MEDIA HOLDING, LLC, Erick Archila, Plaintiffs-Appellants,

v.UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants-Appellees.

No. 19-11193

United States Court of Appeals, Eleventh Circuit.

July 8, 2020

Ira J. Kurzban, John Patrick Pratt, Edward Fortunato Ramos, Ian Keith Shaw, Kurzban Kurzban Tetzeli & Pratt, PA, Coral Gables, FL, for Plaintiffs-Appellants

Joshua Samuel Press, Aaron S. Goldsmith, U.S. Department of Justice, Civil Division, Washington, DC, for Defendants-Appellees

Before MARTIN and NEWSOM, Circuit Judges, and WATKINS,^* District Judge.

MARTIN, Circuit Judge:

Plaintiffs Canal A Media Holding, LLC ("Canal A Media") and Erick Archila appeal the District Court's dismissal of their amended complaint for lack of subject-matter jurisdiction. They seek to challenge the decision by the United States Citizenship and Immigration Services ("USCIS") to deny Canal A Media's petition for a work visa for Mr. Archila. Having carefully reviewed this case, and with the benefit of oral argument, we have decided that the denial of Canal A Media's visa petition was final agency action under the Administrative Procedure Act ("APA"). Also, we hold that 8 U.S.C. § 1252(b)(9) and (g) do not bar the Plaintiffs’ challenge to the visa petition denial. In keeping with these decisions, we reverse the District Court's dismissal of the Plaintiffs’ claims.

I.

A. FACTUAL BACKGROUND

On appeal of a district court's grant of the motion to dismiss, our Court must accept the factual allegations in the plaintiffs’ pleadings as true and construe them in the light most favorable to the plaintiffs. Perez v. USCIS, 774 F.3d 960, 964 (11th Cir. 2014) (per curiam).

Established in 2006, Canal Antigua, S.A. ("Canal Antigua") is a major news and entertainment media company in Guatemala. In 2016, Canal Antigua formed a wholly owned U.S.-based subsidiary, Canal A Media, as part of an effort by Canal Antigua to reach Spanish-speaking Central Americans in the U.S. media market.

Canal Antigua wanted its president, Erick Archila, to serve as president of Canal A Media. Mr. Archila, a Guatemalan national, is not a U.S. citizen. On November 25, 2016, Canal A Media filed with USCIS a Form I-129 Petition for a Nonimmigrant Worker ("I-129") on behalf of Mr. Archila. An I-129 is the first step on the road to an "L-1A" visa, which allows a multinational corporation to transfer one of its "managerial" or "executive" employees to a branch, "affiliate," or "subsidiary" of that company located in the United States. see 8 U.S.C. § 1101(a)(15)(L) ; 8 C.F.R. § 214.2(l)(1)(i), (2)(i). At that time, Mr. Archila was already lawfully present in the United States on a "B-2" visitor visa. The I-129 thus requested that USCIS change Mr. Archila's status from B-2 to L-1A.

After Canal A Media submitted the I-129, the Department of Homeland Security ("DHS") initiated removal proceedings against Mr. Archila, charging him with removability for overstaying his B-2 visa. Mr. Archila then filed an application for asylum before the immigration judge ("IJ") in charge of his removal proceedings. Mr. Archila is still in removal proceedings and his asylum application remains pending with the IJ.

USCIS denied Canal A Media's I-129 on July 24, 2017. The denial was based on USCIS's finding that Canal A Media failed to establish a subsidiary relationship with Canal Antigua, as required by 8 U.S.C. § 1101(a)(15)(L). The agency came to this conclusion "because there was no ‘evidence of capital contribution [of Canal Antigua] in exchange for ownership [of Canal A Media].’ " R. Doc. 36 ¶ 31 (alterations in original) (quoting R. Doc. 36-1 at 4). Even though Canal A Media—pursuant to a request by USCIS—submitted evidence seeking to establish the agency's capital-contribution requirement, USCIS rejected this evidence because (1) a wire transfer Canal A Media submitted to show that Canal Antigua was financing Canal A Media was in Guatemalan currency, not U.S. Dollars; (2) the transfer occurred after the date Canal A Media filed the I-129; and (3) Canal A Media did not present evidence that Canal Antigua authorized the transfer. Id. ¶ 32; see id. ¶ 28.

B. PROCEEDINGS IN THE DISTRICT COURT

On September 1, 2017, Canal A Media and Mr. Archila filed a federal complaint in the Central District of California challenging USCIS's denial of the I-129. The Defendants are USCIS; DHS, of which USCIS is a component agency; the Director of USCIS; the Secretary of Homeland Security; and the Director of the USCIS California Service Center, the center that adjudicated Canal A Media's I-129. On September 30, 2018, the complaint was ordered transferred to the Southern District of Florida, where Mr. Archila resides and in which Canal A Media is incorporated. The Plaintiffs then filed an amended complaint, which is the operative pleading in this case and which we refer to as the "Complaint."

The Plaintiffs contend that USCIS's capital-contribution requirement has no basis in "statute, regulation, case law, or other authority." They also say Canal A Media did in fact satisfy the capital-contribution requirement in its response to USCIS's request for evidence. The Plaintiffs claim that USCIS's adoption of the capital-contribution requirement violated the APA; the new rule was improperly retroactively applied, harming both Canal A Media and Mr. Archila; and the denial of the I-129 violated Canal A Media's due process. They seek, among other relief, a declaration that USCIS acted unlawfully in denying Canal A Media's I-129 and an injunction requiring USCIS to approve the I-129 and grant Mr. Archila an L-1A visa.

The Defendants moved to dismiss the Complaint for lack of subject-matter jurisdiction. The Defendants argued the Plaintiffs cannot challenge the I-129 denial because there is no "final agency action" given the pendency of removal proceedings against Mr. Archila. They also argued that judicial review of USCIS's decision is precluded by 8 U.S.C. § 1252(g) and that, to the extent the Plaintiffs do have any valid claims, 8 U.S.C. § 1252(b)(9) (known as the "zipper clause") requires those claims be brought in Mr. Archila's removal proceedings. The Plaintiffs opposed the motion.

On March 27, 2019, the District Court granted the motion to dismiss. Canal A Media Holding, LLC v. USCIS, 369 F. Supp. 3d 1312, 1324 (S.D. Fla. 2019). The court first held the denial of the I-129 was not final agency action because Mr. Archila's removal proceedings are ongoing. Id. at 1319–21. The District Court held alternatively that § 1252(g) bars review of the I-129 denial "because this action was filed after Mr. Archila's removal proceedings commenced and unmistakably sought to moot those proceedings." Id. at 1321. The District Court also ruled that § 1252(b)(9) requires any claims the IJ or BIA cannot resolve be brought to the Court of Appeals after Mr. Archila is ordered removed. Id. at 1322–23. The Plaintiffs timely appealed.

II.

The APA provides a general authorization of judicial review for cases in which "review [of agency action] is sought not pursuant to specific authorization in the substantive statute." Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 882, 110 S. Ct. 3177, 3185, 111 L.Ed.2d 695 (1990) ; see Fanin v. U.S. Dep't of Veterans Affairs, 572 F.3d 868, 877 (11th Cir. 2009) (stating that judicial review of agency action can be sought via the APA when "the statute allegedly violated does not provide a private right of action"). This provision applies here, where the challenged agency action is the denial of a visa petition. see Cabaccang v. USCIS, 627 F.3d 1313, 1315 (9th Cir. 2010).

In our circuit, dismissal for the reason that the challenged agency action was not a final order is a dismissal for lack of subject-matter jurisdiction. see LabMD, Inc. v. FTC, 776 F.3d 1275, 1278, 1280 (11th Cir. 2015). That is true, too, for dismissals under 8 U.S.C. § 1252(b)(9) and (g). see Madu v. U.S. Att'y Gen., 470 F.3d 1362, 1365–66 (11th Cir. 2006). We review de novo dismissal for lack of subject-matter jurisdiction. LabMD, 776 F.3d at 1278.

III.

As set out above, the District Court dismissed the Complaint based on the APA as well as two of 8 U.S.C. § 1252 ’s jurisdictional provisions. After careful review, we conclude the District Court erred in its analysis of all three grounds for dismissal. We therefore reverse its dismissal of the Complaint.

A. APA FINALITY

In order to bring suit under the APA, plaintiffs must demonstrate that the decision at issue was "final agency action." 5 U.S.C. § 704 ; Lujan, 497 U.S. at 882, 110 S. Ct. at 3185. The Supreme Court has set forth a two-part test for determining whether agency action is "final" under the APA: "First, the action must mark the consummation of the agency's decisionmaking process—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow." U.S. Army Corps of Eng'rs v. Hawkes Co., 578 U.S. ––––, 136 S. Ct. 1807, 1813, 195 L.Ed.2d 77 (2016) (quoting Bennett v. Spear, 520 U.S. 154, 177–78, 117 S. Ct. 1154, 1168, 137 L.Ed.2d 281 (1997) ). The "core question" about finality "is whether the agency has completed its decisionmaking process, and whether the result of that process is one that will directly affect the parties." Franklin v. Massachusetts, 505 U.S. 788, 797, 112 S. Ct. 2767, 2773, 120 L.Ed.2d 636 (1992).

The District Court found that USCIS's denial of Canal A Media's I -129 was not final agency action. In the eyes of the District Court, neither prong of the finality analysis was satisfied in this case because Mr. Archila, the beneficiary of the I-129, can still receive "similar relief to what he seeks here—lawful status in the United States"—through his removal proceedings. Canal A Media, 369 F. Supp. 3d at 1319. The District Court said that the Plaintiffs must wait until there is "a final decision on [Mr. Archila's]...