Tri-V's Homes, Inc. v. United States Department of Homeland Security , 418 F. App'x 615 ( 2011 )

FILED
NOT FOR PUBLICATION MAR 04 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
TRI-V’S HOMES, INC.; VICTORIO No. 09-56494
GUICO; REGINA GUICO; CLIEN
LESTER GUICO; LESLLYN GUICO; D.C. No. 2:08-cv-06954-RGK-JC
LIEZEL GUICO; VIC GUICO, Jr.,
Plaintiffs - Appellants, MEMORANDUM *
v.
UNITED STATES DEPARTMENT OF
HOMELAND SECURITY; UNITED
STATES CITIZENSHIP AND
IMMIGRATION SERVICES,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted February 7, 2011
Pasadena, California
Before: D.W. NELSON, REINHARDT, and N.R. SMITH, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Appellants Tri-V’s Homes et al. (collectively, “Tri-V”) appeal the order and
judgment issued against them and in favor of Defendants-Appellees U.S.
Department of Homeland Security et al. (collectively, “Defendants”). Tri-V’s suit
arises out of the United States Citizenship and Immigration Services’ (“USCIS”)
and the Administrative Appeals Office’s (“AAO”) rejection of Tri-V’s petition to
extend L-1 visa status for an employee, Victorio Guico (“Guico”). The district
court found that Tri-V had failed to show that, under the Administrative Procedure
Act (“APA”), the administrative agency’s denial of its extension petition was
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
the law.” We affirm.
“In examining a district court’s decisions after a bench trial, we review the
district court’s findings of fact for clear error and its conclusions of law de novo.”
Brazil Quality Stones, Inc. v. Chertoff, 531 F.3d 1063, 1067 (9th Cir. 2008). The
underlying agency decision may not be set aside “unless it is ‘arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with the law.’” Id. (quoting
5 U.S.C. § 706(2)(A)). “The agency’s factual findings are reviewed for substantial
evidence.” Family Inc. v. USCIS, 469 F.3d 1313, 1315 (9th Cir. 2006) (citations
omitted).
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1. We agree with Tri-V that USCIS erred in treating Tri-V’s Form I-
290B as an appeal rather than a motion to reopen or reconsider. Tri-V’s Form I-
290B was clearly marked as a motion to reopen or reconsider. USCIS was
required to issue a written decision on the motion pursuant to its regulations. 8
C.F.R. § 103.5(a)(7). Instead, USCIS did not issue a written decision and
forwarded the matter as an appeal to AAO.
We conclude, however, that USCIS’s error was harmless. City of Sausalito
v. O’Neill, 386 F.3d 1186, 1220 (9th Cir. 2004) (“In reviewing agency action, the
APA requires that ‘due account shall be taken of the rule of prejudicial error.’”
(quoting 5 U.S.C. § 706)). On appeal, AAO did consider the amended tax return
submitted by Tri-V in its motion to reopen, and found that it failed to establish that
Tri-V and its foreign parent company were “qualifying organizations” for the
purposes of the L-1 visa extension. Because that finding alone would have been
sufficient to deny the motion to reopen, the agency’s failure to treat the motion as
such was harmless.
2. USCIS and AAO did not abuse their discretion in denying Tri-V’s L-1
extension application. The company’s corporate tax return failed to show that it
had foreign ownership. Further, the AAO determined that the company’s amended
tax return did not resolve the question as to why the company had filed a tax form
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“which [was] inappropriate for its purported ownership structure and which
contain[ed] averments which directly contradict[ed] its claim to be 70% owned by
the foreign employer.” The AAO found that the amended tax return was not to be
given serious weight, because it was prepared after the denial of the petition by
USCIS.
Further, Tri-V failed to submit a copy of its Notice of Transaction Pursuant
to Corporations Code Section 25102(f), as requested by USCIS. Finally, Tri-V
failed to provide any evidence that the $10,000 cash investment originated with the
foreign parent company, even after the agency specifically requested documentary
proof.
On this record, we cannot say that the agency’s conclusion that Tri-V failed
to meet the “qualifying organizations” requirement was arbitrary or capricious.
Because this was an independent and sufficient ground for the agency’s denial of
Tri-V’s L-1 extension application, we need not consider the agency’s two separate
grounds for denial.
AFFIRMED.
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