Whitestar Distribs., Inc. v. Cuccinelli

WHITESTAR DISTRIBUTORS, INC., Plaintiff, v. KENNETH T. CUCCINELLI, Senior Official Performing the Duties of the Director, U.S. Citizenship andImmigration Services, AND GREGORY A. RICHARDSON, Director of Texas Service Center Defendants

No. 3:20-cv-970-K-BN

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

September 29, 2020

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

This case has been referred to the undersigned United States magistrate judge for pretrial management under 28 U.S.C. § 636(b) and a standing order of reference from United States District Judge Ed Kinkeade. See Dkt. No. 5.

Plaintiff Whitestar Distributors, Inc. petitioned for a permanent resident visa on behalf of beneficiary Morad Talal Kamal on the basis that, for immigration-classification purposes, Mr. Kamal is an immigrant multinational executive or manager. U.S. Citizenship and Immigration Services ("USCIS") denied the petition.

Whitestar now seeks judicial review of the agency's decision under the Administrative Procedures Act ("APA). The parties have filed cross motions for summary judgment and corresponding responses and replies. See Dkt. Nos. 16-25.

For the following reasons, and as explained below, the Court should deny Plaintiff's Motion for Summary Judgment and grant Defendants' Cross-Motion for Summary Judgment.

Background

Whitestar is a Texas corporation with its headquarters in Dallas, Texas. See Dkt. No. 1 at 4; Dkt. No. 14-12 at 43 (Administrative Record ("AR") at 1148). Beginning in 2012, Whitestar, on behalf of Morad Talal Kamal, filed a series of Petitions for a Nonimmigrant Worker (Form I-129), seeking an L-1A visa-an intra-company visa for a petitioner's alien-employee to remain in the United States temporarily. USCIS approved each Form I-129 petition, and Mr. Kamal was issued L-1A visas valid from January 11, 2013 to January 10, 2020. See Dkt. No. 1-1; Dkt. No. 14-18 at 73-80 (AR at 1578-85).

On August 15, 2016, Whitestar filed an Immigrant Petition for Alien Worker (Form I-140), asserting that it was hiring Mr. Kamal as General Manager and would employ him permanently in the United States. Whitestar sought to classify Mr. Kamal as a multinational executive or manager. See Dkt. No. 14-2 at 54-59 (AR at 154-59).

On January 24, 2017, USCIS issued a Request for Evidence ("RFE") regarding Kamal's qualifying employment both abroad and in the United States. See Dkt. No. 14-8 at 74-76 (AR at 765-67). Whitestar filed a response. See id. at 82-86.

USCIS denied the I-140 petition on August 30, 2017. See Dkt. No. 14-1 at 31-34 (AR at 30-33). USCIS determined that the evidence was insufficient to establishthat Mr. Kamal was employed for at least one year in a managerial or executive capacity with a qualifying foreign organization or that Mr. Kamal has been or will be employed in a managerial capacity in the United States. See id.

Whitestar filed a Motion to Reconsider on September 29, 2017. See Dkt. No. 14-8 at 10 to 14-9 at 106 (AR at 697-894 (Form I-290B)). USCIS dismissed the motion two years later, on October 30, 2019. See Dkt. No. 14-8 at 3-5 (AR at 694-696).

Whitestar sought judicial review of the denial of the I-140 petition and filed a previous lawsuit in this court on December 18, 2019. See Whitestar Distrib., Inc. v. Cuccinelli, No. 3:19-cv-2985-C (N.D. Tex. 2019). In response, on February 27, 2020, USCIS reopened the I-140 petition proceeding and issued a Notice of Intent to Deny ("NOID") to afford Whitestar another opportunity to overcome the evidentiary deficiencies in the record. See Dkt. No. 14-1 at 15-28 (AR at 14-27). In the NOID, USCIS explained that the evidence was insufficient to establish a qualifying corporate relationship with a foreign entity or that Mr. Kamal worked in a qualifying managerial capacity in the United States and overseas. See id. Whitestar filed a response on March 2, 2020. See Dkt. No. 14-4 at 18-44 (AR at 313-39).

USCIS dismissed the I-140 petition on April 3, 2020 for three reasons: Whitestar failed to establish that (1) it has a qualifying relationship with the foreign entity - The Modern Establishment (Smadi) for Agricultural Supplement ("Smadi"); (2) Mr. Kamal had been employed in the proper capacity by Smadi in Palestine; and (3) Mr. Kamal will be working for Whitestar in the United States in a qualifying multinational managerial or executive capacity. See Dkt. No. 14-1 at 13 (AR 12).

Whitestar now seeks judicial review of the April 30, 2020 Decision. See Dkt. No. 1. The parties have filed cross-motions for summary judgment. See Dkt. Nos. 1, 16, 18. Whitestar seeks a court order declaring the Decision unlawful and directing Defendants to approve the Petition. The Defendants move the court to affirm the Decision.

The sole issue before the Court is whether USCIS's denial of the I-140 petition was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

Legal Standards

I. Motion for Summary Judgment

Under Federal Rule of Civil Procedure 56, summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). A factual "issue is material if its resolution could affect the outcome of the action." Weeks Marine, Inc. v. Fireman's Fund Ins. Co., 340 F.3d 233, 235 (5th Cir. 2003). "A factual dispute is 'genuine,' if the evidence is such that a reasonable [trier of fact] could return a verdict for the nonmoving party." Crowe v. Henry, 115 F.3d 294, 296 (5th Cir. 1997).

If the moving party seeks summary judgment as to his opponent's claims or defenses, "[t]he moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but is not required to negate elements of the nonmoving party's case." Lynch Props., Inc. v. Potomac Ins. Co., 140 F.3d 622, 625(5th Cir. 1998). "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." FED. R. CIV. P. 56(c)(1). "Summary judgment must be granted against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which it will bear the burden of proof at trial. If the moving party fails to meet this initial burden, the motion must be denied, regardless of the nonmovant's response." Pioneer Expl., L.L.C. v. Steadfast Ins. Co., 767 F.3d 503, 511 (5th Cir. 2014) (internal quotation marks and footnote omitted).

"Once the moving party meets this burden, the nonmoving party must set forth" - and submit evidence of - "specific facts showing a genuine issue for trial and not rest upon the allegations or denials contained in its pleadings." Lynch Props., 140 F.3d at 625; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); accord Pioneer Expl., 767 F.3d at 511 ("[T]he nonmovant cannot rely on the allegations in the pleadings alone" but rather "must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial." (internal quotation marks and footnotes omitted)).

The Court is required to consider all evidence and view all facts and draw all reasonable inferences in the light most favorable to the nonmoving party and resolve all disputed factual controversies in favor of the nonmoving party - but only if the summary judgment evidence shows that an actual controversy exists. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Pioneer Expl., 767 F.3d at 511; Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005); Lynch Props., 140 F.3d at 625. "The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in [her] favor. While the court must disregard evidence favorable to the moving party that the jury is not required to believe, it gives credence to evidence supporting the moving party that is uncontradicted and unimpeached if that evidence comes from disinterested witnesses." Porter v. Houma Terrebonne Hous. Auth. Bd. of Comm'rs, 810 F.3d 940, 942-43 (5th Cir. 2015) (internal quotation marks and footnotes omitted). And "[u]nsubstantiated assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a motion for summary judgment," Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir. 2003), and neither will "only a scintilla of evidence" meet the nonmovant's burden, Little, 37 F.3d at 1075; accord Pioneer Expl., 767 F.3d at 511 ("Conclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial." (internal quotation marks and footnote omitted)). "[W]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply showthat there is some metaphysical doubt as to the material facts." Scott v. Harris, 550 U.S. 372, 380 (2007) (internal quotation marks omitted).

Rather, the non-moving party must "set forth specific facts showing the existence of a 'genuine issue concerning every essential component of its case." Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998). "If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may: (1) give an...