Dezire Trip Private Ltd v. Kelly et al, No. 2:2016cv01854 - Document 22 (W.D. Wash. 2017)
Court Description: ORDER denying DTPL's 14 Opening Brief/Motion for Summary Judgment ; granting Defendants' 15 Response/Motion for Summary Judgment ; dismissing administrative appeal and AFFIRMS USCISs August 26, 2016, decision denying the petition ; di recting the Clerk to update the docket, signed by Judge James L. Robart. (SWT) (James McCament and Jefferson B. Sessions added. Loretta Lynch (Attorney General of the United States) and Leon Rodriguez (Director of United States Citizenship and Immigration Services) terminated.)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 DEZIRE TRIP PRIVATE LTD., 10 Plaintiff, 11 v. CASE NO. C16-1854JLR ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT 12 JOHN F. KELLY, et al., 13 Defendants. 14 15 I. 16 INTRODUCTION Before the court are cross-motions for summary judgment by Plaintiff Dezire Trip 17 Private Limited (“DTPL”) and Defendants James McCament, Acting Director of United 18 States Citizenship and Immigration Services (“USCIS”); John F. Kelly, Secretary of the 19 Department of Homeland Security (“DHS”); Jefferson B. Sessions III, Attorney General 20 of the United States; Linda Dougherty, Director of the USCIS Seattle Field Office; and 21 // 22 // ORDER - 1 1 Anne Carsano, the USCIS District Director (collectively, “Defendants”).1 (DTPL Mot. 2 (Dkt. # 14)2; Def. Mot. (Dkt. # 15).) The court has considered the parties’ submissions, 3 the administrative record, and the applicable law. Being fully advised,3 the court 4 DENIES DTPL’s motion for summary judgment and GRANTS Defendants’ motion for 5 summary judgment. Accordingly, the court DISMISSES the administrative appeal and 6 AFFIRMS the August 26, 2016, decision denying the petition. 7 II. DTPL filed this action under the Administrative Procedures Act (“APA”), 5 8 9 BACKGROUND U.S.C. § 701 et seq., challenging USCIS’s denial of its Form I-129 Petition for a 10 Nonimmigrant Worker Visa on behalf of its co-founder, Himanshu Attri. (Compl. 11 (Dkt. # 1).) DTPL is a travel agency formed and organized in 2013 under the laws of the 12 Republic of India. (Administrative Record (“A.R.”) at 99-116.)4 Mr. Attri, DTPL’s 50% 13 owner and a citizen of the Republic of India, entered the United States on a tourist visa in 14 // 15 16 17 18 19 20 21 1 The court directs the Clerk to substitute James McCament for former USCIS Director Leon Rodriguez and Jefferson B. Sessions III for former Attorney General of the United States Loretta Lynch. See Fed. R. Civ. P. 25(d). Defendants inaccurately named Joseph F. Kelly, rather than John F. Kelly, as Secretary of DHS. (See Not. of Appear. (Dkt. # 8) at 1.) The court also directs the Clerk to correct Defendants’ typographical error. DTPL titled its filing “Plaintiff’s Opening Brief,” but the court refers to the document as DTPL’s motion for summary judgment because the court’s scheduling order provided for the filing of cross-motions for summary judgment. (See Sched. Order (Dkt. # 13) at 1-2.) 2 3 Neither party requests oral argument on the motions (see DTPL Mot. at 1; Def. Mot. at 1), and the court concludes that oral argument would not be helpful to its disposition of the motions, see Local Rules W.D. Wash. LCR 7(b)(4). 4 22 The administrative record is filed in physical format under seal. (Not. of Physical Filing (Dkt. # 10).) ORDER - 2 1 April 2016. (Id. at 95-96, 109.) Over the following month, Mr. Attri formed a 2 United States company called Dezire Trip LLC and submitted a business license 3 application to the State of Washington. (Id. at 178-83.) On May 23, 2016, DTPL filed a 4 Form I-129 on Mr. Attri’s behalf, seeking to classify Mr. Attri as an L-1A “intracompany 5 transferee”5 and extend his stay in the United States until June 30, 2017. (Id. at 66-77.) 6 DTPL indicated, among other things, that it sought an L-1A classification because Mr. 7 Attri would “be opening the U.S. Branch” for DTPL, characterizing Dezire Trip LLC as 8 that branch. (Id. at 75.) 9 USCIS’s California Service Center reviewed DTPL’s petition and issued a 10 Request for Evidence (“RFE”) on May 28, 2016. The RFE informed DTPL that USCIS 11 required additional information to determine whether Mr. Attri was eligible for L-1A 12 classification. (Id. at 203-11.) The RFE identified a number of deficiencies with the 13 petition and supporting documentation that DTPL submitted. (Id. at 206-11.) For each 14 deficiency, the RFE provided a list of documents that DTPL could submit to make the 15 requisite showing. (Id.) DTPL timely responded to the RFE by submitting several 16 additional documents without explaining their relevance. (Id. at 186-202.) USCIS denied DTPL’s petition on August 26, 2016. (Id. at 66.) By letter dated 17 18 September 2, 2016, the Director of the California Service Center notified DTPL that 19 USCIS denied the petition on four independent and alternative bases: DTPL’s petition 20 // 21 An L-1A “intracompany transferee” visa allows managers and executives to transfer from a foreign company to its United States branch, subsidiary, or affiliated company to perform temporary services. 8 U.S.C. § 1101(a)(15)(L); 8 C.F.R. § 214.2(l)(1)(ii)(A). 22 5 ORDER - 3 1 and supporting documentation were insufficient to establish (1) a qualifying relationship 2 between DTPL and Dezire Trip LLC; (2) that Mr. Attri had been employed abroad in a 3 position that was managerial, executive, or involved specialized knowledge; (3) that 4 Dezire Trip LLC had secured sufficient physical premises to house the new office; and 5 (4) that the new office would support Mr. Attri in a primarily managerial or executive 6 position within one year of approval of the petition. (Id. at 48-57.) DTPL filed a motion 7 for reconsideration of USCIS’s decision, which USCIS denied. (Id. at 2, 7-46). DTPL 8 initiated the instant action under the APA, challenging USCIS’s denial of its petition. 9 (See Compl.) The parties agreed that this matter can be resolved on the court’s review of 10 the administrative record and filed cross-motions for summary judgment. (Joint Sched. 11 Prop. (Dkt. # 12) at 1; Sched. Order (Dkt. # 13) at 1; DTPL Mot.; Def. Mot.) Those 12 cross-motions are now before the court. 13 14 15 III. A. ANALYSIS Standard of Review DTPL bases its challenge to USCIS’s denial on the APA. (Compl. ¶¶ 1, 16.) As 16 relevant here, the APA provides that a federal court shall hold unlawful and set aside 17 agency action found to be “arbitrary, capricious, an abuse of discretion, or otherwise not 18 in accordance with law.”6 5 U.S.C. § 706(2)(A). Under this deferential standard of 19 review, “[a]gency action should be overturned only when the agency has ‘relied on 20 6 21 22 In its complaint DTPL cites broadly to 5 U.S.C. § 706, which provides several other grounds for compelling agency action or holding agency action unlawful. (See Compl. ¶ 16.) However, DTPL specifically and exclusively relies on 5 U.S.C. § 706(2)(A) in its motion for summary judgment. (See generally DTPL Mot.) ORDER - 4 1 factors which Congress has not intended it to consider, entirely failed to consider an 2 important aspect of the problem, offered an explanation for its decision that runs counter 3 to the evidence before the agency, or is so implausible that it could not be ascribed to a 4 difference in view or the product of agency expertise.’” Pac. Coast Fed’n of Fishermen’s 5 Ass’n, Inc. v. Nat’l Marine Fisheries Serv., 265 F.3d 1028, 1034 (9th Cir. 2001) (quoting 6 Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). In applying this standard, the court’s review is based on the administrative record 7 8 that was before the agency at the time of the agency’s decision. Asarco, Inc. v. U.S. 9 Envtl. Prot. Agency, 616 F.2d 1153, 1159 (9th Cir. 1980). Summary judgment motions 10 are the appropriate mechanism by which the parties ask the court to decide whether, on 11 the basis of the administrative record, the agency action passes muster under the APA. 12 Occidental Eng’g Co. v. I.N.S., 753 F.2d 766, 769-70 (9th Cir. 1985). “[T]he function of 13 the district court is to determine whether or not as a matter of law the evidence in the 14 administrative record permitted the agency to make the decision it did.” Id. at 769. Thus 15 the court does not, as it would in ruling on a summary judgment motion in an original 16 district court proceeding, determine whether there is any genuine dispute of material fact. 17 Good Samaritan Hosp., Corvallis v. Mathews, 609 F.2d 949, 951 (9th Cir. 1979). 18 Where USCIS denies a visa petition on multiple grounds, each of which is 19 independently sufficient, a plaintiff will succeed on its challenge only by showing that 20 USCIS abused its discretion with respect to all of the enumerated grounds. See Spencer 21 Enters., Inc. v. United States, 229 F. Supp. 2d 1025, 1037 (E.D. Cal. 2001), aff’d, 345 22 // ORDER - 5 1 F.3d 683 (9th Cir. 2003). Conversely, USCIS must show that it had at least one valid 2 ground for denial. See id. 3 B. 4 Statutory Framework The Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., sets forth 5 the criteria under which foreign nationals may receive nonimmigrant visas to lawfully 6 work or reside in the United States. One type of nonimmigrant visa is the L-1A 7 “intracompany transferee” visa, which allows multinational firms to transfer employees 8 from the firm’s overseas operations to its operations in the United States. 8 U.S.C. 9 § 1101(a)(15)(L); 8 C.F.R. § 214.2(l)(1)(ii)(A). A petitioner—the employer—seeking to 10 classify a beneficiary—its employee—as an “intracompany transferee” bears the burden 11 of proving eligibility for L-1A status. 8 U.S.C. § 1361; see also 8 C.F.R. § 214.2(l)(1)(i). 12 The petitioner must file Form I-129 with USCIS on behalf of the alien whom it seeks to 13 employ. 8 C.F.R. § 214.2(l)(2)(i). USCIS adjudicates the petition and makes an 14 eligibility determination under the INA and the relevant regulations at 8 C.F.R. 15 § 214.2(l). Abiodun v. Gonzales, 461 F.3d 1210, 1211 (10th Cir. 2006) (citing 6 U.S.C. 16 § 271(b)). 17 The INA and its implementing regulations require an alien granted an L-1A visa to 18 be employed in a managerial or executive capacity by the entity sponsoring his or her 19 petition for a continuous period of at least one year within the three years preceding the 20 petition. 8 U.S.C. § 1101(a)(15)(L); 8 C.F.R. § 214.2(l)(3)(iii)-(iv). In addition, the 21 noncitizen must “seek[] to enter the United States temporarily in order to continue to 22 render his services to the same employer or a subsidiary or affiliate thereof in a capacity ORDER - 6 1 that is managerial, executive, or involves specialized knowledge.” 8 U.S.C. 2 § 1101(a)(15)(L). Specifically, the implementing regulations require a petitioner to 3 establish that the petitioner and the organization that will employ the alien meet one of 4 the “qualifying relationships” defined in the regulations: “parent, branch, affiliate or 5 subsidiary.” 8 C.F.R. §§ 214.2(l)(1)(ii)(G)(1), 214.2(l)(3)(i). 6 If the alien or beneficiary is coming to the United States to open or be employed in 7 a “new office,” the regulations require the petitioner to make additional showings. Id. 8 § 214.2(l)(3)(v). As relevant here, the petitioner must submit evidence that “sufficient 9 physical presence to house the new [United States] office have been secured” and that the 10 “United States operation, within one year of the approval of the petition, will support an 11 executive or managerial position.” Id. 12 C. 13 USCIS’s Grounds for Denying DTPL’s Form I-129 USCIS denied DTPL’s petition for four alternative and independent reasons. 14 (A.R. at 48-57.) Because DTPL has not met its burden to show that USCIS’s decision 15 was arbitrary and capricious with respect to all of the enumerated reasons, the court 16 affirms the decision of USCIS. See Spencer Enters., 229 F. Supp. 2d at 1037. 17 1. Qualifying Relationship 18 The first ground USCIS cited for denying DTPL’s petition is the lack of a 19 qualifying relationship between DTPL and Dezire Trip LLC. (A.R. at 49); 8 C.F.R. 20 §§ 214.2(l)(3)(i), 214.2(l)(1)(ii)(G)(1). USCIS concluded DTPL did not meet this 21 requirement because DTPL’s petition indicated that Dezire Trip LLC is the parent of 22 DTPL but provided no evidence to establish that relationship. (A.R. at 49.) DTPL ORDER - 7 1 contends that USCIS’s denial of the petition on this ground was arbitrary and capricious 2 for two reasons: (1) USCIS mischaracterized the LLC as the parent company of DTPL, 3 and (2) DTPL presented overwhelming evidence establishing that Dezire Trip LLC is the 4 subsidiary of DTPL. (DTPL Mot. at 5-6.) DTPL’s contentions are not supported by the 5 administrative record or legal authority, and the court concludes that USCIS’s denial of 6 DTPL’s petition on this ground was not arbitrary or capricious. 7 First, DTPL contends that USCIS mischaracterized DTPL’s petition by stating that 8 Dezire Trip LLC purported to be the parent company of DTPL. (Id. at 5.) DTPL 9 contends this was a “completely inaccurate reading of the petition’s most basic request” 10 that demonstrates USCIS “did not take any time to adequately consider or objectively 11 review [DTPL’s] petition and the supporting documentation.” (Id.) Contrary to DTPL’s 12 assertions, DTPL’s petition is ambiguous as to the purported qualifying relationship. In 13 response to one question, DTPL’s petition suggests that Dezire Trip LLC may be the 14 parent of DTPL. (See A.R. at 75 (responding to the question, “How is the U.S. company 15 related to the company abroad?” with the answer “Parent”).) Elsewhere in its petition, 16 DTPL suggests that Dezire Trip LLC is the subsidiary rather than the parent of DTPL, 17 stating that “Dezire Trip Private Limited has a 100% ownership interest in Dezire Trip 18 LLC.” (Id. at 76). In response to a third question, DTPL states that “Dezire Trip LLC 19 will be the U.S. branch for Dezire Trip Private Limited.” (Id. at 75). Because “parent,” 20 “subsidiary,” and “branch” have separate and distinct meanings under the regulations, 21 DTPL’s petition can be read as internally contradictory with respect to the purported 22 qualifying relationship. ORDER - 8 After reviewing DTPL’s petition, USCIS sent DTPL an RFE, informing DTPL 1 2 that the petition and supporting documentation were insufficient to establish a qualifying 3 relationship and providing a list of documents that would satisfy the requirement. (Id. at 4 206-07.) In response to the RFE, DTPL did not include any of these documents or 5 provide any explanation or clarification about the purported qualifying relationship. (Id. 6 at 186-202.) In light of the internal contradictions in DTPL’s petition and DTPL’s failure 7 to clarify these contradictions in response to the RFE, the court cannot conclude that 8 USCIS “‘offered an explanation for its decision that runs counter to the evidence before 9 the agency.’” Pac. Coast Fed’n of Fishermen’s Ass’n, 265 F.3d at 1034 (quoting Motor 10 Vehicle Mfrs. Ass’n, 463 U.S. at 43). Notwithstanding these inconsistent representations, DTPL contends that USCIS’s 11 12 decision was arbitrary and capricious because DTPL submitted overwhelming evidence 13 that Dezire Trip LLC is the subsidiary of DTPL. (DTPL Mot. at 6.) DTPL relies on 14 “evidence concerning [Mr.] Attri’s common ownership and stake in both companies”— 15 specifically, evidence that Mr. Attri fully owns Dezire Trip LLC and owns half of DTPL. 16 (DTPL Mot. at 6; DTPL Resp. (Dkt. # 16) at 3.) To support its petition, DTPL submitted 17 what it describes as a print out from the Washington Secretary of State’s website showing 18 that Mr. Attri is the sole member of Dezire Trip LLC. (DTPL Resp. at 3 n.1; A.R. at 19 182-83.) DTPL also submitted a document called “Memorandum and Articles of 20 Association” for DTPL showing that Mr. Attri owns 5,000 out of 10,000 shares in DTPL. 21 (A.R. at 99-116.) 22 // ORDER - 9 1 2 Evidence that Mr. Attri has a stake in both companies, however, does not establish a qualifying parent-subsidiary relationship. A “subsidiary” is 3 a firm, corporation, or other legal entity of which a parent owns, directly or indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50–50 joint venture and has equal control and veto power over the entity; or owns, directly or indirectly, less than half of the entity, but in fact controls the entity. 4 5 6 8 C.F.R. § 214.2(l)(1)(ii)(K). Under this definition, DTPL and Dezire Trip LLC do not 7 have a parent-subsidiary relationship because DTPL does not own or control any shares 8 in Dezire Trip LLC. See Olamide Olorunniyo Ore v. Clinton, 675 F. Supp. 2d 217, 219 9 (D. Mass. 2009) (holding that, notwithstanding their common ownership, two companies 10 did not have a parent-subsidiary relationship because neither controlled or owned shares 11 in the other). Rather, according to DTPL’s own representations, supported by the 12 evidence in the record, Mr. Attri is the sole owner of Dezire Trip LLC.7 (DTPL Resp. at 13 3; A.R. at 76, 182-83.) USCIS’s conclusion that DTPL failed to demonstrate a qualifying 14 relationship between DTPL and Dezire Trip LLC is thus well supported by the 15 administrative record, and USCIS’s decision to deny DTPL’s petition on this ground was 16 not arbitrary and capricious. 17 // 18 // 19 // 20 7 21 22 As noted above, DTPL made a contradictory assertion in its petition, which it repeats in its complaint but not in its motion for summary judgment, that “Dezire Private Trip Limited has a 100% ownership interest in Dezire Trip LLC.” (A.R. at 76; Compl. ¶ 11; DTPL Mot.) However, DTPL provided no evidence to support this assertion. (See A.R. at 66-184.) ORDER - 10 1 2. Year Abroad 2 Although the court’s conclusion above is independently sufficient to affirm 3 USCIS’s denial, several of USCIS’s alternative reasons for denying DTPL’s petition are 4 also well supported. USCIS also cited DTPL’s failure to provide any evidence that Mr. 5 Attri was employed on a full-time basis for at least one year in a managerial or executive 6 capacity abroad. 8 U.S.C. § 1101(a)(15)(L); 8 C.F.R. § 214.2(l)(3)(iv), (v)(B); (A.R. at 7 49-52.) DTPL’s petition states that Mr. Attri “opened [DTPL] in 2013 with his brother” 8 and has “operated all financial and business aspects of the company.” (A.R. at 75.) In its 9 RFE, USCIS informed DTPL that its petition failed to show that Mr. Attri worked in a 10 managerial or executive capacity abroad, and USCIS provided a list of documents that 11 DTPL could submit to remedy the deficiency. (Id. at 208-09.) These documents 12 included “[c]opies of the beneficiary’s training, pay, or other personnel records” and a 13 letter from a DTPL representative describing “the beneficiary’s typical managerial duties, 14 and the percentage of time spent on each.” (Id.) DTPL did not provide any of the 15 documents listed in the RFE. (See id. at 186-202.) 16 USCIS did not abuse its discretion in finding that DTPL’s cursory description of 17 Mr. Attri’s responsibilities was insufficient to meet DTPL’s burden. See, e.g., Brazil 18 Quality Stones, Inc. v. Chertoff, 531 F.3d 1063, 1070-71 (9th Cir. 2008) (affirming an 19 agency determination that the L-1A beneficiary was not acting in a managerial capacity 20 at the time of the petition to extend his visa where the petition “maintain[ed] that [the 21 beneficiary] was responsible for overseeing . . . domestic and international sales and its 22 distribution chains. . . . [y]et the documents submitted to the agency [did] not describe ORDER - 11 1 with particularity what such duties entailed”); see also Saga Overseas, LLC v. Johnson, 2 200 F. Supp. 3d 1341, 1348 (S.D. Fla. 2016) (quoting Fedin Bros. Co. v. Sava, 724 F. 3 Supp. 1103, 1108 (E.D.N.Y. 1989)) (“General descriptions are inadequate to satisfy the 4 implementing regulations because . . . ‘[t]he actual duties themselves reveal the true 5 nature of the employment.’”). 6 DTPL argues that Mr. Attri was employed in a managerial or executive capacity 7 abroad because “he was one of only two people to run [DTPL] from India and . . . he held 8 wide discretion to make decisions relating to the management of [DTPL].” (DTPL Resp. 9 at 3.) This assertion, however, is not in the administrative record and merely constitutes 10 another cursory description of Mr. Attri’s responsibilities that is insufficient to meet 11 DTPL’s burden. Moreover, courts have concluded that the employee of a company that 12 employs only one other person is less likely to work in a managerial or executive 13 capacity because he will have to be significantly involved in non-managerial and 14 non-executive tasks “simply because there is nobody else to carry out these duties.” 15 Fedin Bros. Co., 724 F. Supp. at 1109; see Niagara Handpiece, Ltd. v. U.S. Citizenship & 16 Immigration Servs., No. 05-CV-667S, 2006 WL 2792292, at *6 (W.D.N.Y. Sept. 27, 17 2006) (affirming an agency decision that the intended beneficiary was not employed in a 18 primarily managerial or executive capacity because the company had no other employees 19 and thus he was “required to perform nearly all of the company’s operational tasks”). 20 USCIS’s conclusion that DTPL did not establish that Mr. Attri was employed for at least 21 one year in a managerial or executive capacity abroad was not arbitrary or capricious. 22 // ORDER - 12 1 3. Managerial or Executive Position Within One Year 2 USCIS also did not abuse its discretion in denying DTPL’s petition on the ground 3 that DTPL failed to demonstrate that the new office in the United States will support a 4 managerial or executive position within one year of the approval of the petition. (A.R. at 5 53-54.) To demonstrate that a new office will support an executive or managerial 6 position within one year, the regulations require information regarding: 7 8 9 (1) The proposed nature of the office describing the scope of the entity, its organizational structure, and its financial goals; (2) The size of the United States investment and the financial ability of the foreign entity to remunerate the beneficiary and to commence doing business in the United States; and (3) The organizational structure of the foreign entity. 10 8 C.F.R. § 214.2(l)(3)(v). DTPL did not provide any such information with its petition. 11 (See A.R. at 66-67.) In its RFE, USCIS provided a list of documents that DTPL could 12 submit to satisfy this requirement, including “[a]n original letter from the foreign entity 13 explaining the need for the new office in the United States”; “[a] copy of a feasibility 14 study . . . by which the foreign parent company determined the need for, and the 15 probability that the proposed U.S. company would support a manager or executive within 16 one year of approval of the petition”; “[a] copy of the business plan . . . for commencing 17 the start-up of the new office”; or “[d]ocuments showing the foreign entity paid for 18 services to start business at the U.S. location[, which could] include evidence of vendor 19 contracts, utilities, . . . etc.” (Id. at 209-10.) DTPL did not provide any of these 20 documents in its response to the RFE. (Id. at 186-202). Although DTPL submitted 21 DTPL’s business bank account statements and its fiscal year 2015-16 balance sheet, 22 ORDER - 13 1 DTPL did not provide any explanation that would indicate whether and how these 2 documents make the requisite showing. (Id.) 3 DTPL instead relies on Mr. Attri’s personal bank account statements “and copies 4 of contracts with vendors” that allegedly “showed [Mr.] Attri handling all of [the] LLC’s 5 financial operations” and additional evidence purporting to show that Mr. Attri “was the 6 one who purchased inventory . . . and obtained office space for [Dezire Trip LLC].” 7 (DTPL Mot. at 6-7.) DTPL also contends that its documentation showed that Mr. Attri 8 “was already in the process of obtaining clientele for [the] LLC.” (DTPL Resp. at 4.) 9 The bank account statements and vendor contracts on which DTPL relies are not properly 10 before the court because DTPL submitted them to USCIS with its motion for 11 reconsideration. (See A.R. at 26-45); 8 C.F.R. § 103.5(a)(3) (providing that motions for 12 reconsideration must establish that USCIS’s decision was incorrect “based on the 13 evidence of record at the time of the initial decision”); Asarco, 616 F.2d at 1159 (stating 14 the district court’s review is limited to the administrative record that was before the 15 agency at the time of the agency’s decision). Moreover, even if the court were to 16 consider that evidence together with the evidence that is properly before the court, the 17 evidence suggests that Mr. Attri has spent time performing duties for Dezire Trip LLC 18 that are not primarily executive or managerial, including ordering supplies, obtaining 19 office space, and paying for telephone service. (See A.R. at 27, 44-45, 83-87); see Matter 20 of Church Scientology Int’l, 19 I. & N. Dec. 593, 604 (BIA 1988) (“An employee who 21 primarily performs the tasks necessary to produce a product or to provide services is not 22 considered to be employed in a managerial or executive capacity.”). USCIS reasonably ORDER - 14 1 denied DTPL’s petition on the ground that it failed to establish that Dezire Trip LLC’s 2 new office in the United States would be able to support an executive or managerial 3 position in one year.8 4 5 IV. CONCLUSION Based on a review of the administrative record, the court concludes that USCIS’s 6 decision to deny DTPL’s I-129 Petition was not arbitrary or capricious. The court 7 therefore DENIES DTPL’s motion for summary judgment (Dkt. # 14) and GRANTS 8 Defendants’ motion for summary judgment (Dkt. # 15). The court DISMISSES the 9 administrative appeal and AFFIRMS USCIS’s August 26, 2016, decision denying the 10 petition. Finally, the court DIRECTS the Clerk to update the docket to reflect 11 substitution of government officials sued in their official capacities and correct the name 12 of defendant John F. Kelly. See supra n.1. 13 Dated this 20th day of July, 2017. 14 15 A 16 JAMES L. ROBART United States District Judge 17 18 19 20 21 22 The court expresses no opinion on USCIS’s final reason for denying DTPL’s petition— the failure to establish that Dezire Trip LLC secured sufficient physical premises to house the new office. (See A.R. at 52-53.) 8 ORDER - 15
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