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GB International v. Crandall

United States District Court, W.D. Washington, Seattle

August 22, 2019

GB INTERNATIONAL, et al., Plaintiffs,
KRISTINE R. CRANDALL, et al., Defendants.





         This 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 Plaintiffs' motion.


         In 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 85.[1] 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.

         From 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 this action.

         On 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.

         On 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.[2]


         The 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).


         The 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.

         First, 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 ...

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