United States District Court, W.D. Washington, Seattle
RICHARD A. JONES
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT AND DENYING PLAINTIFFS' MOTION FOR SUMMARY
HONORABLE RICHARD A. JONES, UNITED STATES DISTRICT JUDGE
matter comes before the Court on the parties'
cross-motions for summary judgment. Dkt. ##18, 22. For the
reasons below, the Court GRANTS
Defendants' motion and DENIES
2007, Plaintiff Dong Choel Park established GB International,
Inc. (GBI), a Washington company that procures products and
services relating to offshore drilling, shipbuilding,
military defense, and building infrastructure for companies
based in South Korea. Dkt. # 13 at 78; Dkt. # 14 at
Several years later, in December 2011, Park established GBI
Korea, an affiliate company based in Busan, South Korea. Dkt.
# 13 at 78. He is the President and CEO of both
companies. Id. at 82. According to Park, GBI grew
substantially between 2013 and 2015 primarily because he was
able to cultivate business relationships with several South
Korean companies and procure specialized equipment for
GBI's customers. Dkt. # 18 at 3. During these two years,
GBI grew from a company of four employees to seven employees.
Dkt. # 14 at 129-31.
April 2013 to April 2014, Park performed his job duties
primarily from abroad. Dkt. # 13 at 466-67. In addition to
establishing relationships with South Korean companies, Park
claims he attended industry events, negotiated contracts for
the purchase and sale of new products, and reviewed reports
from subordinate employees on various topics, including
regulatory conditions and currency fluctuations. Id.
at 466-71. Park also claims that he conducted meetings with
subordinate employees to formulate corporate goals and
policies. Id. Although Park had a manager in the
United States, he desired to spend more face-to-face time
with his U.S.-based suppliers and employees. Id. at
83. In April 2014, Park entered the United States on an E-1
visa along with his wife and child who came as derivative
family members. Dkt. # 18 at 6. They are also plaintiffs in
December 23, 2015, GBI filed a Petition for Alien Worker
(Form I-140) for Park's benefit, classifying him as a
“multinational executive or manager” of GBI.
Id. at 78. Park and each of his derivative family
members concurrently filed an Application for Adjustment of
Status (Form I-485) based on GBI's I-140 petition. Dkt. #
13 at 2; Dkt. # 15 at 2; Dkt. # 16 at 2. While the
I-140 petition and the I-485 applications were pending,
Park's E-1 visa expired on July 28, 2017. Dkt. # 22-1. On
December 8, 2017, U.S. Citizenship and Immigration Services
(USCIS) denied GBI's I-140 petition, finding GBI failed
to establish that Park was employed in an “executive
capacity” from April 2013 to April 2014. Dkt. # 13 at
78. On January 9, 2018, GBI and Park filed a motion to reopen
and reconsider the I-140 petition, which was granted. Dkt. #
13 at 78; Dkt. # 14 at 102. On or about August 7, 2018, USCIS
again denied GBI's I-140 petition. Id. Having
again denied the underlying I-140 petition, USCIS
subsequently denied the Parks' I-485 applications. Dkt. #
13 at 2; Dkt. # 15 at 2; Dkt. # 16 at 2.
February 2018, Plaintiffs filed this Complaint against
Defendants United States of America, Kristine R. Crandall, L.
Francis Cissna, and Kirstjen Nielsen alleging USCIS's
denial of the I-140 petition violated the Administrative
Procedures Act (APA). Dkt. # 1. After the administrative
records were certified, Plaintiffs moved for summary judgment
and a preliminary injunction on November 27, 2018. Dkt. ##
18, 19. On January 7, 2019, Defendants filed a response and
cross-motion for summary judgment. Dkt. # 22. On January 29,
2019, the Court denied Plaintiffs' motion for a
preliminary injunction. Dkt. # 24. The parties' motions
for summary judgment are now before the Court.
Administrative Procedures Act (APA) permits judicial review
of a “final agency action for which there is no other
adequate remedy in court.” 5. U.S.C. § 704. The
Court may only set aside the underlying agency decision if it
is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” Id.
§ 706(2)(A). Thus, the Court does not, as it would in
ruling on an ordinary summary judgment motion, determine
whether there is any genuine dispute of material fact.
See Occidental Eng'g Co. v. I.N.S., 753 F.2d
766, 769 (9th Cir. 1985); Fla. Power & Light Co. v.
Lorion, 470 U.S. 729, 744 (1985). Instead, summary
judgment serves as a mechanism for deciding, as a matter of
law, whether the agency action passes muster under the APA.
Nw. Motorcycle Ass'n v. U.S. Dep't Agric.,
18 F.3d 1468, 1471-72 (9th Cir. 1994); Occidental
Eng'g, 753 F.2d at 769-70. Accordingly, the Court
reviews the evidence included in the administrative record to
determine whether, as a matter of law, the evidence permitted
the agency to make the decision it did. Id. Although
the Court's review of the evidence is to be
“searching and careful, ” it is “not
empowered to substitute [its] judgment for that of the
agency.” Citizens to Preserve Overton Park, Inc. v.
Volpe, 401 U.S. 402, 416 (1971).
Immigration and Nationality Act (INA) provides for preference
visas to “[c]ertain multinational executives and
managers” who come to the United States to serve
“in a capacity that is managerial or executive.”
8 U.S.C. § 1153(b)(1)(C). USCIS claims that its decision
to deny GBI's I-140 petition based on 8 C.F.R.
§204.5(j)(2) was neither arbitrary or capricious, and
thus must be upheld by this Court. Dkt. # 22. Plaintiffs
argue there are several reasons to support finding that
USCIS's decision was arbitrary, capricious, and otherwise
not in accordance with the law.
Plaintiffs contend that 8 C.F.R. §204.5(j)(2) is an
ultra vires regulation. Dkt. # 19 at 10. Where, as
here, a I-140 petition classifies a beneficiary as a
“multinational executive or manager, ” USCIS
requires the beneficiary to be employed in “managerial
or executive” capacity in the year preceding his or her
entry to the United States. See 8 C.F.R.
§204.5(j)(2). Plaintiffs claim, however, that the plain
language of the INA does not require a beneficiary to be
employed in a “managerial or executive” capacity
before entering the United States, and in fact only ...