HEALTHY & NATURAL TRADING LLC V. DEPT. OF HOMELAND SECURITY, No. 15-55030 (9th Cir. 2017)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MAY 24 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT HEALTHY AND NATURAL TRADING LLC; MARCELO SALLES PEREIRA DE LUCENA, Principal Beneficiary, No. 15-55030 D.C. No. 2:14-cv-02332-PA-E Plaintiffs-Appellants, MEMORANDUM* v. U.S. DEPARTMENT OF HOMELAND SECURITY; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; CALIFORNIA SERVICE CENTER; VERMONT SERVICE CENTER; JEH CHARLES JOHNSON, in his official capacity as Secretary of the United States Department of Homeland Security; LEON RODRIGUEZ, Director of the U.S. Citizenship and Immigration Services - Substituted for Alejando Mayorkas; KATHY BARAN, in her official capacity as Director of the California Service Center; CARRIE SELBY, Acting Director of the Vermont Service Center - Substituted for Daniel Renaud, Defendants-Appellees. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding Submitted November 9, 2016** Pasadena, California Before: O’SCANNLAIN, FERNANDEZ, and RAWLINSON, Circuit Judges. Healthy and Natural LLC (Healthy) and Marcelo Salles Pereira de Lucena (Lucena), appeal a district court decision granting summary judgment in favor of the United States Citizenship and Immigration Service (USCIS). USCIS denied Healthy and Lucena’s petition to extend Lucena’s nonimmigrant L-1A visa for failure to establish Lucena as a qualifying executive or manager under 8 U.S.C. § 1101(a)(15)(L) and 8 U.S.C. § 1101(44)(A)-(B). We have jurisdiction under 28 U.S.C. § 1291 and affirm. 1. The district court did not err in affirming the USCIS’s determination that Lucena was not primarily employed in an executive or a managerial capacity. See Brazil Quality Stones, Inc. v. Chertoff, 531 F.3d 1063, 1067 (9th Cir. 2008) (reviewing under the Administrative Procedures Act). Healthy submitted vague, conclusory job descriptions that lacked specificity, failed to clarify Lucena’s ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 day-to-day non-supervisory duties, and merely recited the elements of the regulatory definition of “executive.” See id. at 1070 (requiring “documents submitted to the agency [to] describe with particularity” the duties of the employee). 2. USCIS was not bound by its decision granting Healthy’s initial L-1A petition. See id. at 1066-67, 1071 (affirming the denial of a second petition despite approval of an initial petition). An L-1A petitioner applying for an extension must reestablish eligibility under the applicable statute and regulations. See 8 C.F.R. § 214.2(l)(7)(i)(A)(2),(3); see also Brazil Quality, 531 F.3d at 1066-67. 3. USCIS properly considered the size of Healthy’s organization. See Brazil Quality, 531 F.3d at 1070 (holding that although “an organization’s small size, standing alone, cannot support a finding that its employee is not acting in a managerial capacity, . . . size is nevertheless a relevant factor in assessing whether an organization’s operations are substantial enough to support a manager”) (citation, alteration, and internal quotation marks omitted). 4. We decline to address the challenge to the evidentiary standard applied by USCIS because that issue was not sufficiently raised in the district court. See United States v. Williams, 846 F.3d 303, 311 (9th Cir. 2016). AFFIRMED. 3
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