Family Inc. v. U.S. Citizenship ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FAMILY INC., a Washington 
corporation; TAE JUNG OH,
Plaintiffs-Appellants, No. 05-35310
v.
 D.C. No.
CV-04-00648-FDB
US CITIZENSHIP AND IMMIGRATION
SERVICES, an agency of the United OPINION
State Government,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Washington
Franklin D. Burgess, District Judge, Presiding
Submitted October 26, 2006*
Seattle, Washington
Filed December 4, 2006
Before: Alfred T. Goodwin and Alex Kozinski,
Circuit Judges, and Milton I. Shadur,**
Senior District Judge.
Opinion by Judge Goodwin
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Milton I. Shadur, Senior United States District Judge
for the Northern District of Illinois, sitting by designation.
19037
FAMILY INC. v. USCIS 19039
COUNSEL
Michael E. Piston, Troy, Michigan, for the plaintiffs-
appellants.
Christopher L. Pickrell, Assistant United States Attorney,
Seattle, Washington, for the defendant-appellee.
OPINION
GOODWIN, Circuit Judge:
Tae Jung Oh appeals a summary judgment in favor of the
United States Citizenship and Immigration Services (USCIS).1
In the district court, he sought reversal of a USCIS order
denying his petition for a change of status. The question
before this court is whether the USCIS decision was arbitrary,
1
In 2003, services provided by the Bureau of Citizenship and Immigra-
tion Services (BCIS) at the Immigration and Naturalization Service (INS)
were transitioned to the USCIS at the newly-created Department of Home-
land Security (DHS). See USCIS Website, http://www.uscis.gov. Appel-
lant filed the instant visa petition two months before the creation of
USCIS.
19040 FAMILY INC. v. USCIS
capricious, or an abuse of discretion. The district court held
that it was not, and we agree.
I. BACKGROUND
A native and citizen of South Korea, Oh first entered the
United States as a temporary non-immigrant visitor in 1995.
In 1996 his immigration status was changed to “temporary
non-immigrant E2 treaty investor,” which was extended to
November 1, 2005. Oh is the president of Family, Inc. (Fam-
ily), a corporation that owns a dry cleaning operation that
employs Oh, his wife, three pressers, and a cashier. In January
2003, the corporation filed a Form I-140 petition on Oh’s
behalf, seeking his reclassification as a “multinational manag-
er” under the Immigration and Nationality Act (INA). The
petition described Oh’s duties as (1) managing Family; (2)
supervising and controlling the work of other supervisory
employees (namely, Family’s manager); (3) managing an
essential function of the company (namely, its overall busi-
ness); (4) exercising the authority to hire and fire all Family
employees as well as approving other personnel actions; (5)
functioning at a senior level within the organization’s hierar-
chy; and (6) exercising direction over Family’s day-to-day
operations.
Classification as a multinational manager requires, inter
alia, that Oh prove he is operating in a “managerial capacity.”
8 U.S.C. § 1153(b)(1)(C).2 After making findings with respect
2
The term “managerial capacity” is defined as “an assignment within an
organization in which the employee primarily —
(i) manages the organization, or a department, subdivision, function,
or component of the organization;
(ii) supervises and controls the work of other supervisory, profes-
sional, or managerial employees, or manages an essential function within
the organization, or a department or subdivision of the organization;
(iii) if another employee or other employees are directly supervised,
has the authority to hire and fire or recommend those as well as other per-
FAMILY INC. v. USCIS 19041
to Oh’s duties, and requesting and receiving further evidence
of the role Oh plays in Family’s operations, the USCIS deter-
mined that Oh did not carry his burden of proving that he is
acting in a managerial capacity within the meaning of the stat-
ute. In particular, the agency determined that in light of all the
evidence submitted, including Family’s small size, Oh was
likely to “be involved in the performance of routine opera-
tional activities of the business” rather than in managing the
business. Oh sought judicial review of the agency’s decision,
and the district court granted summary judgment to the gov-
ernment. Oh now appeals to this court.
II. DISCUSSION
We review the entry of summary judgment de novo. Lopez
v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc).
However, the underlying agency action may be set aside only
if “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 5 U.S.C. § 706(2)(A); Ariz. Cat-
tle Growers’ Ass’n v. U.S. Fish & Wildlife, 273 F.3d 1229,
1236 (9th Cir. 2001) (citation omitted). The agency’s factual
findings are reviewed for substantial evidence. Monjarez-
Munoz v. INS, 327 F.3d 892, 895 (9th Cir. 2003), amended
by 339 F.3d 1012 (9th Cir. 2003). We will not disturb the
agency’s findings under this deferential standard “unless the
evidence presented would compel a reasonable finder of fact
to reach a contrary result.” Id. at 895 (citation omitted).
[1] Oh’s sole assignment of error is that the USCIS exclu-
sively and improperly relied on Family’s small size to deter-
sonnel actions (such as promotion and leave authorization) or, if no other
employee is directly supervised, functions at a senior level within the
organizational hierarchy or with respect to the function managed; and
(iv) exercises discretion over the day-to-day operations of the activity
or function for which the employee has authority.
A first-line supervisor is not considered to be acting in a managerial
capacity merely by virtue of the supervisor’s supervisory duties unless the
employees supervised are professional.” 8 U.S.C. § 1101(a)(44)(A).
19042 FAMILY INC. v. USCIS
mine that his duties do not come within the statutory meaning
of managerial capacity. Oh is correct to the extent that he
argues Family’s small size, standing alone, cannot justify the
USCIS’ finding that he is not operating in a managerial capac-
ity. See 8 U.S.C. § 1101(a)(44)(A)(ii) (allowing for supervi-
sion of other supervisory employees or management of an
essential organizational function to satisfy one element of
establishing managerial duties). However, Oh’s broader argu-
ment is precluded by the plain language of the agency’s denial
of the petition.
[2] Having considered all of the evidence before it, the
agency found, as a fact, that Oh was likely to be involved with
performing ordinary operational activities rather than engag-
ing primarily in managerial duties. We have considered the
record evidence in this case, and it does not compel a contrary
conclusion. The company’s organizational chart showed Oh
as president, his wife as the manager, and four other employ-
ees. The organization included one corporate shareholder in
Korea, qualifying this small-scale operation as an interna-
tional business. However, the facts in the record do not com-
pel the conclusion that Oh was primarily engaged in
managerial duties, as opposed to ordinary operational activi-
ties alongside Family’s five other employees. Furthermore,
the agency did not err by considering Family’s size as one
factor in its determination. Other courts faced with this ques-
tion have determined that the USCIS may properly consider
an organization’s small size as one factor in assessing whether
its operations are substantial enough to support a manager.
See, e.g., Republic of Transkei v. INS, 923 F.2d 175, 178
(D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41, 42
(2d Cir. 1990) (per curiam); Q Data Consulting, Inc. v. INS,
293 F. Supp. 2d 25, 29 (D.D.C. 2003). We agree with these
courts, and hold that the agency’s finding that Oh was not
engaged primarily in managerial duties is supported by sub-
stantial evidence. The agency’s denial of the petition was nei-
ther arbitrary or capricious, nor an abuse of discretion. Thus,
FAMILY INC. v. USCIS 19043
the district court’s entry of summary judgment in the govern-
ment’s favor was not error.
AFFIRMED.