Gb International Inc. v. Kristine Crandall ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 17 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GB INTERNATIONAL, INC.; et al., No. 19-35866
Plaintiffs-Appellants, D.C. No.
2:18-cv-00227-RAJ
v.
KRISTINE R. CRANDALL, Acting MEMORANDUM*
Director of Nebraska Service Center; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Argued and Submitted March 2, 2021
Seattle, Washington
Before: RAWLINSON and BYBEE, Circuit Judges, and MOSKOWITZ,** District
Judge.
GB International, Inc. (GBI), Dong C. Park, Hyojin Kim, and Y-P- appeal the
district court’s order denying Appellants’ challenge under the Administrative Procedure
Act (APA) to the United States Citizenship and Immigration Services’ (USCIS)
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Barry Ted Moskowitz, United States District Judge for the
Southern District of California, sitting by designation.
decision denying GBI’s I-140 Petition for Alien Worker as a “multinational executive”
and Park, Kim, and Y-P-s’ derivative I-485 Adjustment of Status applications. We have
jurisdiction pursuant to 28 U.S.C. § 1291. We affirm the district court.
We review de novo a district court’s ruling on cross-motions for summary
judgment. Boardman v. Inslee, 978 F.3d 1092, 1103 (9th Cir. 2020). “This court also
reviews de novo the district court’s evaluations of an agency’s actions.” San Luis &
Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 991 (9th Cir. 2014). Under the
APA, we must set aside agency action “found to be arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “An action
is arbitrary and capricious if the agency ‘entirely failed to consider an important aspect
of the problem, offered an explanation for its decision that runs counter to the evidence
before the agency, or is so implausible that it could not be ascribed to a difference in
view or the product of agency expertise.’” Innova Sols., Inc. v. Baran, 983 F.3d 428,
431 (9th Cir. 2020) (quoting Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S.
644, 658 (2007)). “To survive a challenge, the agency must articulate ‘a satisfactory
explanation’ for its action, ‘including a rational connection between the facts found and
the choice made.’” Id. (quoting Dep’t of Commerce v. New York, --- U.S. ----, 139 S.
Ct. 2551, 2569 (2019)).
USCIS’s denial was not arbitrary and capricious for its purported failure to
consider Junseo Pak’s declaration. USCIS adequately addressed the relevant substance
2
of the Pak declaration. USCIS’s reasons for rejecting Park’s executive function claim,
specifically its consideration of Dasom Kim’s job duties, demonstrates that USCIS
considered the Pak declaration.
USCIS’s discounting of the expert opinion letters was supported by substantial
evidence except for one reason asserted. We review the agency’s factual findings for
substantial evidence and will not disturb those findings “unless the evidence presented
would compel a reasonable finder of fact to reach a contrary result.” Fam. Inc. v.
USCIS, 469 F.3d 1313, 1315 (9th Cir. 2006) (internal quotation marks and citation
omitted). One of USCIS’s reasons for discounting the expert letters—relying on the
Occupational Outlook Handbook (OOH)—is not supported by substantial evidence as
USCIS routinely relies on the OOH. See Innova Sols., 983 F.3d at 430 (“USCIS relied
on the [OOH] as an ‘authoritative source’ . . . .”). USCIS’s other reasons for
discounting the experts’ letters—lack of expertise in visa classifications, failure to
discuss the Immigration and Nationality Act (INA) or relevant regulations, and reliance
solely on documents provided by GBI rather than their own observations—were
supported by substantial evidence.
USCIS’s discounting of Youngtaek Lim’s declaration and GBI’s sample invoices
was supported by substantial evidence. USCIS provided sufficient reasoning to
discount the Lim declaration due to its vague contents. USCIS could not conclude that
Lim’s assistance relieved Park of his non-qualifying duties and allowed him to focus on
3
executive functions. Similarly, USCIS’s discounting of the sample invoices was
supported by substantial evidence because the sales listed allow the inference that Park
was engaging in day-to-day operations, rather than executive functions.
USCIS’s finding that Park was not working primarily in an executive capacity
between April 2013 and April 2014 was supported by substantial evidence. Nothing in
Dasom Kim’s job description indicated that she performed secretarial duties and Lim’s
declaration was too vague for USCIS to conclude that Karam employees actually
relieved Park of any non-executive functions. USCIS also reviewed GBI’s personnel
and Park’s job description. It found that Park’s asserted duties were not credible due to
the absence of managers and other team members. The lack of managers and team
members made it unlikely that Park was not significantly involved in the operational
tasks required to operate a business.
USCIS correctly interpreted and applied the term “executive capacity.” The term
“executive capacity” means:
an assignment within an organization in which the employee primarily
(i) directs the management of the organization or a major component or
function of the organization;
(ii) establishes the goals and policies of the organization, component, or
function;
(iii) exercises wide latitude in discretionary decision-making; and
(iv) receives only general supervision or direction from higher level
executives, the board of directors, or stockholders of the organization.
8 U.S.C. § 1101(a)(44)(B)(i)–(iv). Congress later revised the INA stating that “[a]n
4
individual shall not be considered to be acting in a managerial or executive capacity . . .
merely on the basis of the number of employees that the individual supervises,” and
instructed USCIS to “take into account the reasonable needs of the organization . . . in
light of [its] overall purpose and stage of development” in cases where “staffing levels
are used as a factor in determining whether an individual is acting in a managerial or
executive capacity.” 8 U.S.C. § 1101(a)(44)(C).
USCIS’s examination of GBI’s organizational structure ties directly into the
statutory definition of “executive capacity,” namely whether Park had “the ability to
‘direct the management’ and ‘establish the goals and policies’ of that organization.”
Indeed, USCIS looked beyond Park’s title to determine whether Park “primarily
focus[ed] on the broad goals and policies of the organization rather than the day-to-day
operations of the enterprise.”
USCIS properly applied the INA. USCIS considered GBI’s small size as one
factor in assessing whether its operations are substantial enough to support an executive.
After reviewing the evidence, USCIS found the lack of other employees serving as
managers and team members likely meant that Park was not relieved from significant
involvement in the operational tasks required to operate the business. See, e.g., Fam.
Inc., 469 F.3d at 1316; Brazil Quality Stones, Inc. v. Chertoff, 531 F.3d 1063, 1070 (9th
Cir. 2008); Herrera v. USCIS, 571 F.3d 881, 890 (9th Cir. 2009).
AFFIRMED.
5